USA – KY – JANAKAKIS-KOSTUN – 1999 (Return ordered on appeal) JANAKAKIS-KOSTUN v JANAKAKIS. This is an appeal to the Kentucky Court of Appeals. The lower court ordered the child returned to Greece. The appeals court affirmed the lower court’s order to return the child to Greece. The mother took her appeals to the US Supreme Court. Justice Stevens denied mothers request for a stay pending appeal. The mother turned the child over to the father.

JANAKAKIS-KOSTUN v JANAKAKIS (Ky. App. 1999)199 KY 42026; No No. 1998-CA-000259-MR
13 Interntional Abduction [USA 1999]


No. 1998-CA-000259-MR


March 19, 1999





Brief For Appellant: William D. Rogers Kathleen A.
Behan Laura K. McNally Layli Miller-Bashir Dinesh Verma
Arnold & Porter Washington, DC Stephen Miller Mulloy, Fore,
Miller & Schwartz Louisville, KY Amanda Anayati Tahirih
Justice Center Falls Church, VA Oral Argument For Appellant:
Kathleen A. Behan Washington, DC

Brief And Oral Argument For Appellee: Stephen T.
McMurtry McMurtry and Wolff Covington, KY

Before: Emberton, Knopf, And Schroder, Judges.

The opinion of the court was delivered by: Knopf, Judge.





001 This is an appeal by Gia Kaylna Janakakis-Kostun
(Gia) from an order of the Hardin Circuit Court granting the
motion of appellee, Emmanuel Janakakis (Emmanuel), to
require Gia to relinquish custody of the parties’ daughter,
Bronte-Judith-Despina (Bronte), to Emmanuel and permitting
the return of the child to Greece. This matter arose on
Emmanuel’s motion to return the parties’ child, Bronte, to
Greece pursuant to the terms of the Hague Convention on the
Civil Aspects of Child Abduction, October 25, 1980, 1988 WL
411501 (entered into force December 1, 1983) (hereinafter
Hague Convention). The Hague Convention has been signed by
the United States, and Congress has adopted procedures for
its implementation by enactment of the International Child
Abduction Remedies Act. 42 U.S.C.  11601, et seq. Greece is
likewise a signatory to the Hague Convention. We affirm.

002 Emmanuel is a citizen of Greece and a captain in the
Greek Navy. In 1986, while on a two-year assignment to the
United States Naval Base at San Diego, California, Emmanuel
met Gia, a member of the U.S. Navy, and a relationship
developed between the parties. In 1988, Emmanuel’s tour of
duty in the United States ended, and he returned to Greece.
At about the same time, Gia decided to leave the U.S. Navy.
In November 1988, Gia traveled to Greece to be with
Emmanuel, and the parties were married on September 2, 1989.
On October 2, 1991, Bronte, was born in Chania, Greece, on
the Island of Crete. Following Bronte’s birth, Gia and
Bronte made yearly visits to the United States to visit
Gia’s relatives, though, because of conflicting evidence,
the trial court was unable to determine the exact dates and
duration of the visits. However, Gia and Bronte spent
approximately three to four months in the United States in
each of the years 1992, 1993, and 1994.

003 At some point the parties’ marriage began to
deteriorate, and sometime in 1995 Gia threatened to leave
with Bronte. Consequently, Emmanuel began to have concerns
about Gia removing Bronte from Greece without his knowledge
or permission. On February 24, 1996, Gia told Emmanuel that
she was going to the United States and was going to take
Bronte with her. Gia thereupon left the marital residence in
Chania, taking Bronte with her, and went to Athens with the
intention of flying to the United States and settling
permanently. Emmanuel thereupon filed a criminal complaint
charging Gia with interfering with his custodial rights.

004 On February 27, 1996, Emmanuel filed a petition in
the Lower Court of Athens, Security Measure Division,
seeking temporary custody of Bronte. The Court issued an
order prohibiting the removal of Bronte from Greece and
scheduled a hearing on the merits of Emmanuel’s petition.
Gia attempted to leave Greece with Bronte on February 27,
but, pursuant to the court order, this was prevented by
Greek authorities. Gia alleges that subsequent to her
detention, she and Bronte were abused by Greek authorities.
On March 28, 1996, a hearing was held in the Athens Court.
On April 22, 1996, the Athens Court issued an order
prohibiting the removal of Bronte from Greece until a final
determination of custody.

005 On February 28, 1996, the aforementioned criminal
charge was heard by an Athens Court. The charges were
dropped after the hearing. Emmanuel claims that the charges
were dropped because all he wanted was to keep Bronte in
Greece, not actually prosecute Gia. Gia claims the charges
were dropped following an evidentiary hearing because the
judge found the charges to be without merit. In any event,
the charges were dropped and Gia was released from custody.
Gia and Bronte thereupon returned to live with Emmanuel at
the parties’ marital residence. On May 2, 1996, Gia departed
the marital residence with Bronte and went to the Greece
hotel lodgings of her father, George William Kostun.
Emmanuel subsequently retrieved Bronte from the hotel and
refused to allow Gia to communicate with Bronte.

006 Also on May 2, Gia filed a petition in the Lower
Court of Chania seeking custody of Bronte. On June 28, the
Chania Court issued an order, inter alia, assigning
“temporarily to [Gia] the care of . . . [Bronte] until
issuance of the final judgment[.]” The Chania order
recognized that the April 28 Athens order prohibited the
removal of Bronte from Greece and did not set aside or
otherwise disturb that prohibition. Pursuant to the Chania
order, on July 1, Emmanuel relinquished custody of Bronte to
Gia. Gia alleges that upon Bronte’s return to her, Bronte
was suffering from a variety of physical and emotional
problems, though this is denied by Emmanuel. A final hearing
was set on Gia’s custody petition for September 5, 1996. On
July 4, Emmanuel filed a petition seeking specific rights of
communication and visitation with Bronte. On July 22, the
Chania court awarded Emmanuel liberal visitation and
communication rights with Bronte. The order threatened Gia
with a fine and imprisonment for violation of the visitation
and communication rights established therein.

007 When Emmanuel subsequently attempted to exercise his
communication and visitation rights, he was unable to locate
Gia and Bronte. As it turns out, sometime in late July or
early August 1996, Gia, with the help of her father, a
former Green Beret with multiple European contacts, smuggled
Bronte out of Greece. Upon arriving in the United States,
Gia and Bronte initially stayed, variously, with Gia’s
father in Gray Hawk, Kentucky, with Gia’s mother in Houston,
Texas, and in Elizabethtown, Kentucky. Finally, sometime in
the Spring of 1997, Gia and Bronte came to Elizabethtown
where they remained.

008 In the meantime, Emmanuel sought to find his
daughter. On July 27, 1996, he filed another action in the
Chania Court. A hearing was set on that action for January
16, 1997. On September 5, 1996, the hearing on Gia’s
petition was held as scheduled. While Gia, no longer in
Greece, did not appear, Emmanuel testified that her attorney
was present. That hearing was continued until January 16,
1997, so that all pending matters could be heard together.
Following the January 16, 1997, hearing, by order dated
February 28, 1997, the Lower Court of Chania assigned
“exclusively to [Emmanuel] the exertion and care of [Bronte]

009 On November 14, 1996, Emmanuel applied for relief
with the Greek Central Authority responsible for
implementing the Hague Child Abduction Convention. He first
sought enforcement of the Hague Convention in Houston in
March of 1997. On March 28, 1997, Emmanuel filed a petition
in Hardin Circuit Court pursuant to the Hague Convention,
where service on Gia was obtained. On November 13, 1997, the
trial court entered an order sustaining Emmanuel’s motion
for the return of Bronte to his custody and authorizing
Bronte’s return to Greece. Following a denial of Gia’s
motion to alter, amend, or vacate, this appeal was taken. On
February 11, 1998, this Court denied Gia’s petition for an
emergency stay of the trial court’s order pending appeal;
however, on March 20, 1998, Kentucky Supreme Court Chief
Justice Robert F. Stephens granted a stay pending further
order of the full Supreme Court. On May 14, 1998, the
Supreme Court dissolved the temporary stay. On June 18,
1998, United States Supreme Court Justice John Paul Stevens
denied Gia’s application for a stay pending appeal. On June
29, 1998, Gia delivered Bronte to Emmanuel, and Emmanuel and
Bronte returned to Greece.

010 The Hague Child Abduction Convention and the
International Child Abduction Remedies Act each require an
abduction or wrongful retention to trigger their provisions
and protections. Harsacky v. Harsacky, Ky. App., 930 S.W.2d
410, 413 (1996). Under Article Three of the Hague
Convention, removal or retention is considered wrongful
where there is a breach of custody rights under the law of
the state in which the child was a habitual resident
immediately before the removal or retention. Id. It follows
that a child cannot be wrongfully removed or retained if the
jurisdiction to which the child is taken can be considered
its habitual residence. Id. Gia first argues that the trial
court erroneously concluded that Greece was the habitual
residence of Bronte, and contends that Bronte’s habitual
residence at the time of her removal was, in fact, the
United States.

011 Neither the Hague Convention nor the International
Child Abduction Remedies Act defines “habitual residence.”
Indeed, it was intended that this concept remain fluid and
fact-based, without becoming rigid. Id., citing Brooke v.
Willis, 907 F. Supp. 57, 61 (S.D.N.Y. 1995); Levesque v.
Levesque, 816 F. Supp. 662, 666 (D. Kan. 1993); Friedrich v.
Friedrich, 983 F.2d 1396, 1400-1401 (6th Cir. 1993). The
definition of habitual residence must be determined by the
facts and circumstances presented in each particular case.
Id., citing Meredith v. Meredith, 759 F. Supp. 1432, 1434
(D. Ariz. 1991). As reflected in Harsacky, the test for
determining habitual residence under the settled purpose
analysis is broader than domicile.

012 There are alternative approaches to determining a
child’s habitual residence, see Harsacky v. Harsacky, supra,
however, this Court has previously decided that a
determination of habitual residence “must focus on the
child, not the parents, and examine past experience, not
future intentions.” Harsacky, 930 S.W.2d at 415 (quoting
Friedrich v. Friedrich, 983 F.2d at 1401). Under this test,
the record supports the trial court’s determination that
Greece was Bronte’s habitual residence immediately prior to
her removal.

013 Following Bronte’s birth, the parties at all times
maintained their home in Greece, and at no time lived
together as a family unit in the United States with the
intention of making the United States their permanent home.
The evidence shows that Bronte’s permanent home, at all
times following her birth and prior to her removal, was
Greece, and that her three-to four-month trips to the United
States in 1992, 1993, and 1994 were temporary visits to this
country for the purpose of visiting her maternal relatives.
Greece has been the center of Bronte’s life. Gia’s argument
that the United States was Bronte’s habitual residence
because the parties held United States social security
numbers, bank accounts, driver’s licences, had once
consulted with a U.S. realtor, and had plans to move and
settle in the United States following Emmanuel’s retirement
is unpersuasive. These connections do not overcome Bronte’s
more prevalent and continuing contacts with Greece.

014 Also unpersuasive is Gia’s assertion that her
residence in Greece for the year preceding her departure
“was not consensual.” The Greek Court orders establish that
Emmanuel’s efforts to prevent Bronte’s removal from Greece,
though disapproved of by Gia, were pursuant to Greek law.
Even if Gia’s last year in Greece was “not consensual” – and
the evidence is that she could have returned without Bronte
to the United States at anytime – this would not alter
Bronte’s habitual residence from Greece to the United

015 In view of the foregoing factors, the trial court
properly concluded that Bronte’s habitual residence was

016 Gia next contends that the trial court erroneously
concluded that Gia breached Emmanuel’s custody rights when
she left Greece. The objective of the Hague Convention is to
protect children who are “wrongfully removed” from their
country of habitual residence. Hague Convention art. 1.

017 The Hague Convention art. 3 provides as follows:

“The removal or the retention of a child is to
be considered wrongful where – -”

“a. it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under the
law of the State in which the child was
habitually resident immediately before the
removal or retention;”


“b. at the time of removal or retention those
rights were actually exercised, either jointly
or alone, or would have been so exercised but
for the removal or retention.”

“The rights of custody mentioned in
sub-paragraph a above, may arise in particular
by operation of law or by reason of a judicial
or administrative decision, or by reason of an
agreement having legal effect under the law of
that State.”

018 The
burden is on the petitioner, here, Emmanuel, to establish
that the minor child was wrongfully removed within the
meaning of the Hague Convention by a preponderance of the
evidence. 42 U.S.C.  11603(e)(1); In re Ponath 829 F. Supp.
363 (D. Utah 1993).

019 Rights of custody may arise by judicial decision.
*fn1 Hague Convention art. 3. The Athens order of April 22,
1996, prohibited Gia from removing Bronte from Greece
pending a final resolution of the parties’ custody dispute.
Admittedly, the Chania decision of June 28, 1996, awarded
temporary custody to Gia. The June 28 order, however, also
cited the previous prohibition on removing Bronte from
Greece. The June 28 order took no action to diminish or
lessen the effect of the Athens prohibition of removal. In
addition to this, the Chania decision of July 22, 1996,
defined liberal and specific visitation rights for Emmanuel
and threatened Gia with fines and imprisonment if she
violated the provisions of the order. These orders were
entered prior to Gia’s removal of Bronte and, together,
establish beyond a preponderance of the evidence that
Emmanuel had custodial rights to Bronte under Greek law by
virtue of judicial decision.

020 Gia’s argument, that since the June 28, 1996, Chania
order awarded her sole temporary care of Bronte, Emmanuel
was divested of all custodial rights, is unpersuasive. The
order as translated was, on its face, a temporary order,
pending final resolution of the custody issue. Pursuant to
the orders, Emmanuel had ongoing “custodial rights” and was,
in fact, seeking as a final resolution permanent sole
custodial rights for himself. Indeed, following Gia’s
removal of Bronte, Emmanuel was granted custody of the child
by the Chania court in its February 28, 1997 order.

021 Visitation rights alone, such as those granted to
Emmanuel in the July 22, 1996, Chania order have been held
to fall within the meaning of “custodial right.” See David
S. v. Zamira S., 574 N.Y.S.2d 429 (N.Y.Fam. Ct. 1991). David
S. acknowledged that visitation rights may not always equate
to custodial rights. The case nevertheless held that such a
distinction was meritless where a respondent, i.e., the
removing parent, engaged in “contemptuous conduct” in
removing the child from its habitual residence. In view of
the pending court orders prohibiting the removal of Bronte
from Greece, Gia similarly acted in contempt of Greek court
orders by nevertheless removing Bronte. Accordingly, David
S. provides a rule appropriate to this case.

022 Finally, in view of Emmanuel’s active and ongoing
legal efforts prior to, at the time of, and subsequent to
Gia’s removal of Bronte, it is clear that Emmanuel was
exercising his custodial rights, or would have but for Gia’s
removal of Bronte.

023 Gia next contends that the trial court did not
properly consider Gia’s evidence that returning Bronte to
Greece would subject her to a grave risk of physical and
psychological harm under Article 13b. Article 13b
establishes an affirmative defense to an otherwise wrongful
removal and provides that

“the judicial or administrative authority of
the requested State is not bound to order the
return of the child if the person, institution
or other body which opposes its return
establishes that – -”

“. . . .”

“b. there is a grave risk that his or her
return would expose the child to physical or
psychological harm or otherwise place the child
in an intolerable situation.”

“. . . .”

024 In considering the circumstances referred to in this
Article, the judicial and administrative authorities shall
take into account the information relating to the social
background of the child provided by the Central Authority or
other competent authority of the child’s habitual residence.

025 A respondent who opposes the return of the child has
the burden of proving that the exception set forth in
article 13b exists by clear and convincing evidence. 42
U.S.C. 11603(e)(2). “Clear and convincing proof does not
necessarily mean uncontradicted proof. It is sufficient if
there is proof of a probative and substantial nature
carrying the weight of evidence sufficient to convince
ordinarily prudent-minded people.” Rowland v. Holt, Ky., 70
S.W.2d 5, 9 (1934).

026 Gia alleges that, at trial, she established that
Bronte would face an “intolerable situation” if returned to
Greece. Gia further alleges that she has established the
insufficiency of the Greek judicial system and its
unwillingness to protect the interests of non-Greek
citizens. In support of this position, Gia cites several
examples of violent behavior by Emmanuel toward herself and
Bronte. Among these: (1) Emmanuel’s regular manner of
punishing Bronte is to “give her a smack on the back”; (2)
on one occasion Emmanuel went into a violent rage, destroyed
items in the house, and pushed Gia and Bronte to the floor;
(3) on one occasion Emmanuel pulled Gia’s hair so violently
during a quarrel that she was hospitalized with severe neck
injuries; and (4) on one occasion Emmanuel tore up Bronte’s
passport. Gia also refers us to the June 28, 1996, Chania
order which recounts accusations of violence by Emmanuel
toward herself and Bronte.

027 Gia moreover presented the testimony of a child
psychologist who testified that Bronte was suffering from
(1) post-traumatic stress syndrome; (2) probable sexual,
physical and emotional abuse; and (3) probable child
neglect. The psychologist recommended that Bronte not be
returned to Greece. The trial court made a specific finding
that it “does not find the psychologist’s testimony
compelling,” and that “[i]t is lacking in substantiation and
does not establish that returning Bronte to Greece would
subject her to grave and intolerable injury.”

028 We adopt the following analysis of Gia’s 13b argument
from the order of the trial court:

029 “The 13(b) exception under the [Hague] Convention
must be narrowly construed. Rydder v. Rydder, 49 F.2d 369
(8th Cir. 1995); Nunez-Escudero v. Tice-Menley, 58 F.2d 374
(8th Cir. 1995); Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir.
1995). Most of the evidence presented by Gia was more
closely akin to that which might be relevant in a custody
proceeding. That type of evidence is not relevant in a 13(b)
hearing. Tahan v. Dugquette, 613 A.2d 486 (N.J. Super. A.D.
1992); In Re Petition For Coffield, 644 N.E.2d 662 (Ohio
App. 11 Dist., 1994). In Friedrich v. Friedrich, 78 F.3d
1060 (6th Cir. 1996) Judge Boggs’ opinion very succinctly
states how the court should view the 13(b) exception:”

“The exception for grave harm to the child is
not license for a court to speculate on where
the child would be happier. That decision is a
custody matter, and reserved to the court in
the country of habitual residence.” Id. at

030 Judge Boggs then goes on to define exactly when the
13(b) exception should apply:

“[w]e believe that a grave risk of harm for the
purposes of the [Hague] Convention can exist
only in two situations. First, there is a grave
risk of harm when return of the child puts the
child in imminent danger prior to the
resolution of the custody dispute – e.g.,
returning the child to a zone of war, famine,
or disease. Second, there is a grave risk of
harm in cases of serious abuse or neglect, when
the court in the country of habitual residence,
for whatever reason, may be incapable or
unwilling to give the child adequate
protection.” Id. at 1069.

031 The evidence offered by Gia in support of her 13(b)
argument, psychological and otherwise, simply does not
establish that Bronte faces a grave risk of harm if she is
returned to Greece. There is absolutely no competent
evidence before the Court that Bronte has been abused or
neglected by Emmanuel, or that Bronte faces certain danger
in Greece. Likewise, there is no evidence that the courts in
Greece cannot protect Bronte. Indeed, the last order issued
before Gia left gave Gia temporary custody, subject to
certain conditions. This court has absolutely no reason to
believe that the Greek Courts will not properly and
adequately decide the ultimate issue of custody, and protect
Bronte’s interests in so doing. The Court concludes that Gia
has failed to satisfy her 13(b) burden.

032 Gia next alleges that the trial court did not
properly consider her evidence that returning Bronte to
Greece would violate fundamental principles of human rights
under Article 20 of the Hague Convention. More particularly,
Gia alleges that (1) the actions of the Greek police in
physically removing her and Bronte from a plane in Athens,
holding her in isolation at the station for several days
without food, water or restrooms, and subjecting her to
physical and verbal abuse violated various articles of the
International Covenant on Civil and Political Rights,
December 16, 1966, 6 I.L.M. 368 (entered into force March
23, 1976) (hereinafter ICCPR); (2) that various articles of
the ICCPR were violated when Emmanuel destroyed Bronte’s
passport and Greek authorities forcibly prevented her and
Bronte from moving freely from one place to another; and (3)
she was denied assistance of counsel in custody proceedings
in violation of the ICCPR. The burden is on Gia to establish
an Article 20 exception by clear and convincing evidence. 42
U.S.C.  11603(e)(2).

032 We adopt the trial court’s analysis of this issue:

“Gia also asserts that the return of Bronte to
Greece should be denied pursuant to Article 20
of the [Hague] Convention. Gia’s burden under
this Article is to show, again by clear and
convincing evidence, that the return of Bronte
“would not be permitted by the fundamental
principles of the requested State relating to
the protection of human rights and fundamental
freedoms.[“] [Hague Convention art. 20]. “With
respect to an Article 20 defense, it places a
heavy burden on the respondent.” Caro v. Sher,
687 A.2d 354 (N.J.Super.Ch., 1996). The court
in Caro relied on the Explanatory Report as to
the adoption of the [Hague] Convention,
prepared by Elisa Perez-Vera, to explain
Article 20:”

“To be able to refuse to return a child on the
basis of this article, it will be necessary to
show that the fundamental principles of the
requested State concerning the subject matter
of the [Hague] Convention do not permit it; it
will not be sufficient to show merely that its
return would be incompatible, even manifestly
incompatible, with those principles . . . A
study of the case law of different countries
shows that the application by ordinary judges
of the laws on human rights and fundamental
freedoms is undertaken with a care which one
must expect to see maintained in the
international situations which the [Hague]
Convention has in view.”

“This exception, like the others, was intended
to be restrictively interpreted and applied,
and is not to be used, for example, as a
vehicle for litigating custody on the merits or
for passing judgment on the political system of
the country from which the child was removed.”
Caro, supra at 359.

“In Gia’s case, her complaints are with the way
she was treated by the Greek police and court
system. Her complaints are no different than
those this Court has heard many times before
from defendants in proceedings in Kentucky.
This Court finds no evidence that the Nation of
Greece is suspect in its treatment of Gia
and/or Bronte. Gia’s Article 20 defense is
totally without merit.”

033 Finally, Gia alleges that the trial court’s findings
of fact should be set aside as clearly erroneous. “Findings
of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses.” Ky. R.
Civ. Proc. (CR) 52.01. Findings of fact are not clearly
erroneous if supported by substantial evidence. See Black
Motor Company v. Greene, Ky., 385 S.W.2d 954 (1965). The
test for substantiality of evidence is whether when taken
alone, or in the light of all the evidence, it has
sufficient probative value to induce conviction in the minds
of reasonable men. Kentucky State Racing Commission v.
Fuller, Ky., 481 S.W.2d 298, 308 (1972).

034 Gia identifies three examples of erroneous findings
by the trial court: (1) the trial court’s assertion that
“there is simply no evidence in the case before the court
that Gia was ever prevented from leaving Greece;” (2) the
trial court’s erroneous characterization of Gia’s departure
from Greece as a violation of the Athens court order; and
(3) the trial court’s disregard of the corroborated
testimony provided by Gia’s child psychologist witness which
documented Bronte’s fragile psychological condition and the
severe emotional harm she would suffer if separated from her
mother. There was conflicting evidence regarding each of
these matters and the trial court, as the finder of fact in
this proceeding, was in a better position to weigh the
credibility of the witness and resolve the conflicting
evidence. There was substantial evidence to support the
trial court’s findings of fact, and hence we may not set
aside those findings.

035 For the foregoing reasons, the judgment of the Hardin
Circuit Court is affirmed.



Opinion Footnotes

*fn1 Under the Hague Convention, whether a parent was
exercising lawful custody rights over a child at the time of
removal must be determined under the law of the child’s
habitual residency, Hague Convention art. 3; Friedrich, 938
F.2d at 1402. Neither the trial court, nor either party on
appeal, applied or cited relevant Greek statutory or case
law relevant to the issue of whether Emmanuel had existing
“custody rights” to Bronte at the time of Bronte’s removal
and whether Emmanuel was “exercising” those “custody rights”
at the time of her removal. However, as discussed infra, the
record established by a preponderance of the evidence that
Emmanuel had custodial rights by “judicial decision,” and
the ongoing custody litigation in the Greek courts supports
that by a preponderance of the evidence he was attempting to
“exercise” those rights.