USA – MA – VIRAGH – 1993 (Return for visitation denied) VIRAGH v FOLDES. Mother has custody in Hungary, father has visitation. Father has filed over 50 complaints and appeals against the mother in Hungary. All were dismissed. The mother takes the children to the US to live with her new husband. The father applied for return of the children for visitation. The trial court ruled that the Convention does not mandate the return of children for visitation. The father appealed the decision. The appeals court affirmed the trial court’s order, but remanded the action back to the trial court for consideration of visitation consistent with this opinion.
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Viragh v Foldes (Mass. 1993)612 N.E.2d 241
Gabor VIRAGH
vs.
Maria FOLDES FN-1 & another FN-2
Supreme Judicial Court of Massachusetts, Norfolk.
Argued: 02 Feb 1993
Decided: 29 Apr 1993.
Present: Liacos, C.J., Nolan, O’Connor, & Greaney, JJ.
Haque Convention on the Civil Aspects of International Child
Abduction. International Child Abduction Remedies Act. Minor,
Visitation rights. Parent and Child, Custody. Divorce and
Separation, Child custody, Attorney’s fees. Words, “Rights of
custody,” “Rights of access.” ‘
Civil action commenced in the Norfolk Division of the Probate and
Family Court Department on May 23, 1991.
The case was heard by David H. Kopelman, J.
The Supreme Judicial Court granted a request for direct
appellate review.
Gerald L. Nissenbaum, West Boxford, for the plaintiff.
Mihaly Gereb, pro se.
Maria Foldes, pro se, was present but did not argue.
The following submitted briefs for amici curiae:
Pr. Katalin Benedek of the Republic of Hungary, for the
Republic of Hungary.
Sanford S. Dranoff & Paula S. Seider of New York, for U.S.A.
Chapter of the International Academy of Matrimonial Lawyers.
<* 243>
GREANEY, Justice
The plaintiff father, Gabor Viragh (Gabor), brought this
action pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (Convention) in the Probate and
Family Court Department in May, 1991, seeking the immediate return
of his two sons to his custody in Hungary. FN-3 In the
alternative, Gabor requested that the defendant mother, Maria
Foldes (Maria), be ordered to send the children to Hungary at
least twice a year, at her expense, during their stay in the
United States. Maria, who was granted sole custody of the
children by the Central District Court of Budapest in connection
with her divorce from Gabor in 1986, came to the United States
with the children in November, 1990.
An evidentiary hearing on the matter was held in July, 1991,
at which Gabor was not present but was represented by counsel, and
a judgment was entered on October 4, 1991. The Probate Court
Judge concluded that the Convention does not mandate that children
be returned to their habitual residence for the purpose of
visitation. The judge specifically found that there exists a
substantial risk that Gabor will not return the children to
Maria’s custody if they are sent to Hungary and ordered that Gabor
exercise his visitation rights twice a year in the United States.
Maria was ordered to reimburse Gabor for his reasonable travel
expenses. Gabor appeals from this ruling arguing that the judge
improperly construed the Convention and Hungarian law. We granted
Gabor’s application for direct appellate review. We conclude that
the Judge properly interpreted the Convention. Although the judge
did not issue any interpretation of Hungarian law, we conclude
that a ruling of the Hungarian court on this matter, issued
subsequent to the judgment now before us, supports the judge’s
application of the Convention to this case.
The facts are as follows. Gabor and Maria were married in
Budapest, Hungary, in 1983, and divorced there in 1986. Their son
Robert was born in 1983, and another son, Attila, was born in
1985. At the time of divorce, Gabor opposed the grant of custody
to Maria and appealed from the order of the Central District Court
of Budapest. This appeal was denied on several grounds including
that the best interests of the children would be served by maria’s
having custody of them and that Gabor had demonstrated his lack of
cooperation since the divorce by keeping Robert three weeks beyond
the expiration of his summer visitation period. Gabor remarried in
November, 1987, and lives in Budapest with his second wife and
their two year old child.
In Hungary, custody issues are decided by the courts while
specifics of visitation matters are determined by an
administrative system, referred to as the Guardianship Authority.
The visitation order presently in effect was issued by the
Budapest Guardianship Authority in November, 1989, and grants
Gabor visitation on alternate weekends, two weeks each in July and
August, and three days during the children’s winter and spring
holidays. Gabor filed a subsequent request for additional
visitation which was denied by the Guardianship Authority. Since
the divorce, Gabor has filed approximately fifty complaints and
appeals against Maria in different Hungarian courts and before
various executive authorities, all of which have ultimately been
dismissed.
<* 244> In June, 1990, Maria informed Gabor that she was
traveling to the United States for a three-week period. During her
visit, she married Mihaly Gereb (Mihaly), a dual citizen of the
United States and Hungary, and became pregnant with Mihaly’s
child. On her return to Hungary, Maria petitioned for a visa for
immediate entry into the United States as the wife of a United
States citizen and made arrangements to bring her two children to
live with her and her second husband. Mihaly, an assistant
professor at Tufts University, had a two-year appointment which
was scheduled to expire on August 31, 1991. Maria intended to stay
in the United States until June, 1991, the end of Mihaly’s
required attendance at Tufts. Despite her intention to remain for
less than one year, Maria obtained a “green card” to permit her to
work while in the United States and an unpaid leave of absence
from her job in Hungary until December, 1991.
On November 11, 1990, Maria, who was more than five months
pregnant, and the two children left Hungary using one-way airline
tickets purchased by Mihaly. On their arrival, their passports
were stamped in a manner which indicates that they may lawfully
remain as Maria did not inform Gabor of her plans prior to
leaving, but sent him a letter the day she left in which she
explained that she was returning to the United States. She
furnished Gabor with her new address so that he could write to the
children and stated that routine visitation would have to be
suspended during their absence. Maria indicated, however, that
she was willing to work out a mutually acceptable schedule for
visitation and suggested that Gabor make contact with her
Hungarian attorney for further information. Although she had
experienced great difficulties with Gabor, Maria did not intend to
deprive him of contact with the children. Her sole reason for
leaving Hungary was to live with Mihaly.
The decision not to inform Gabor of her plans prior to
leaving Hungary was based on several concerns. Gabor had not been
a model husband. He physically abused and verbally threatened
Maria on a number of occasions both prior to and following the
divorce, FN-4 one time attacking her when she was seven months
pregnant with their second child. At the time Maria requested the
divorce, Gabor was so distressed that he threatened to kill
himself and the two children and also told Maria that, if she
continued with her divorce action, she would never see the
children again. Maria feared that Gabor would physically abuse her
if he knew that she was leaving Hungary. She also believed, based
on the numerous complaints he previously had filed against her,
that Gabor would file a law suit or petition for custody thus
forcing her to remain in Hungary to appear and answer new
allegations. It was Maria’s understanding that she would not be
permitted to fly overseas during her iast three months of
pregnancy and, therefore, any potential litigation in Hungary
would result in her separation from Mihaly until after the birth
of their child. The judge found that Maria’s fears, and thus her
reasons for not informing Gabor prior to her departure, were
reasonable.
Shortly after their arrival in the United States, Maria sent
a second letter to Gabor informing him that she and the children
had moved to a different address. She also described the
children’s progress in their new school and wished Gabor a Merry
Christmas on behalf of herself and the children. Although Gabor
stated in his verified complaint that he has “yet to receive a
reply to any of his weekly letters to the children,” and that he
has “had no information about the children” except for the two
letters sent in November, 1990, the <* 245> judge found these
statements to be false. In fact, Maria has encouraged and fostered
contact between Gabor and the children since leaving Hungary. She
has written to Gabor on a monthly basis, enclosing letters and
drawings from the children. She also sent a package in March,
1991, with pictures of the children and samples of their
schoolwork. Gabor, in his letters to the children, has
acknowledged receipt of their letters and has thanked them for
writing. The children are provided with all letters received from
Gabor.
The financial resources of both Gabor and Maria appear to be
quite limited. Gabor was trained as a psychologist, but officially
works only four hours a day as a physical education teacher in a
public school (earning a salary of less than $120 a month). A
mandatory 32% of Gabor’s monthly salary is automatically deducted
for child support. It is Maria’s belief, however, that Gabor earns
income from unofficial work from which he does not pay child
support. Maria, who earned approximately $260 per month working as
an arbitrage dealer in the foreign exchange department of the
Commercial and Credit Bank of Hungary, has not earned any income
since arriving in the United States and does not have any assets
or savings, other than an account in Hungary into which child
support payments are deposited. She has attempted to start a
business with Mihaly, however, this endeavor has not produced
income. Mihaly, whose salary at Tufts is $49,000 a year, supports
Maria, the two children from her first marriage, and the couple’s
baby. Shortly before the July, 1991, hearing, Mihaly learned that
his appointment at Tufts had been extended for two years. Maria
now intends to stay in the United States with Mihaly and the three
children at least until August, 1993.
According to Maria, Gabor did not make contact with her
Hungarian attorney to discuss the matter of visitation but instead
instituted formal proceedings under the Convention to enforce his
access rights. FN-5 In February, 1991, the Hungarian Ministry of
Justice, as the designated Hungarian central authority to the
Convention, sent a document on behalf of Gabor to the United
States Department of State, requesting access rights (visitation)
in accordance with the Convention. The standardized document,
which was designed for the purpose of requesting the return of
children wrongfully removed or retained from Hungary, had been
altered throughout to make clear that only access rights, and not
return of the children, were being requested. It appears that the
present action was instituted in connection with that request.
In addition to this action in the Probate and Family Court,
Gabor sought relief in Hungary by petitioning for modification of
the order which had granted Maria custody of the children.
This petition was based on Gabor’s assertion that Maria prevents
him from maintaining relations with the children and the fact that
Maria removed the children from Hungary without his consent.
The Central District Court of Budapest denied Gabor’s petition in
a written decision issued on March 11, 1992. FN-6 The decision
specifically referred to the October 4, 1991 judgment of the
Probate and ramily Court. Although the Hungarian court noted that
visitation twice a year in the United States will place a
considerable financial burden on Gabor, the court recognized that
Maria must reimburse Gabor for his expenses. The Hungarian court
found that removal of the children from Maria, with whom they have
always lived, will cause them greater psychological harm than that
caused by limited visitation and contact with Gabor. For this
reason, as <* 246> well as the fact that Maria and Mihaly provide
the children with a suitable home, the court denied Gabor’s
petition. The decision of the Hungarian court did not in any way
challenge the findings, judgment, or order of the Probate and
Family Court.
[1] 1. Mandatory return of children under the Convention. At
the July, 1991, hearing, it was clear that this case concerned
only one issue, Gabor’s access rights under the Convention. There
was no question that Maria had been granted sole custody of the
children by the Hungarian court and that Gabor had expressly been
granted visitation rights, but not joint custody rights. The
central argument presented by counsel for Gabor was that Maria had
violated Gabor’s access rights by leaving Hungary without
receiving permission from either Gabor or the Guardianship
Authority. Although he conceded that Maria could legally travel
abroad with the children, counsel further argued that Maria now
intends permanently to remain with the children in the United
States. According to counsel, Hungarian law requires that the
custodial parent receive permission from either the noncustodial
parent or the court before children are permanently removed from
Hungary. Because Maria did not receive this permission, counsel
argued that Maria’s retention of the children in the United States
constitutes “wrongful retention” within the meaning of Art. 3 of
the Convention.
At the time of the hearing, less than eight months had passed
since Maria left Hungary. The judge made no finding regarding
Maria’s intention permanently to remain in the United States, but
specifically found that she did not intend permanently to remain
here when she left Hungary in November, 1990. In response to the
assertion by Gabor’s counsel that her retention of the children in
the United States is wrongful, Maria declared that she does not
wish to keep the children here beyond the period permitted by
Hungarian law. Maria explained that Hungarian law permits a
custodial parent to take children abroad without permission from
either the noncustodial parent or the Guardianship Authority, at
least for a period of one year. The judge, therefore, focused on
the only issue then properly before him, Gabor’s access rights
under the Convention.
[2] The judge correctly concluded that the Convention does
not mandate the return of children to the noncustodial parent for
the purpose of visitation. The Convention distinguishes between
“rights of custody” and “rights of access,”and mandates return
only when children have been removed or retained in breach of
rights of custody attributed to a person, institution or other
body. Art. 3 FN-7 Art. 12. See Meredith v. Meredith, 759
F.Supp. 1432, 1434 (D. Ariz. 1991) (party seeking mandatory return
must satisfy threshold requirement of proving lawful rights of
custody at the time of removal or retention). Rights of custody
“include rights relating to the care of the person of the child
and, in particular, the right to determine the child’s place of
residence.” Art. 5(a). Rights of access “include the right to
take a child for a limited period of time to a place other than
the child’s habitual residence.” Art. 5(b). When a child has been
removed or retained in breach of rights of custody, and no
exceptions set forth in Art. 13 have been established, FN-8 the
Convention mandates that <* 247> the nation to which the child has
been taken order the return of the child to its habitual residence
“forthwith.” Art. 12. See Sheikh v. Cahill, 145 Misc.2d 171, 176
(N.Y.Sup.Ct. 1989). In contrast, the Convention does not mandate
any specific remedy when a noncustodial parent has established
interference with rights of access. FN-9 Rather, nations are
instructed in Art. 21 to “Promote the peaceful enjoyment of access
rights and the fulfillment of any conditions to which the exercise
of those rights may be subject,” as well as to “take steps to
remove, as far as possible, all obstacles to the exercise of such
rights. FN-10 FN-11
In his appeal, Gabor does not argue that the Convention mandates
the return of children for the exercise of access rights by the
noncustodial parent. Rather, he argues that the term “rights of
custody” is broadly defined under the Convention and that he has
rights of custody under Hungarian law which have been violated
the wrongful retention of his children in the United States.
FN-12 Article 3 provides that determination whether the party who
has requested mandatory return is indeed vested with rights of
custody should be based on the “law of the State in which the
child was habitually resident immediately before the removal or
retention.” To support his <* 248> claim that he has rights of
custody, Gabor points to certain provisions of the family law of
Hungary, as well as to a recent ruling issued by the Civil College
of the Supreme Court of Hungary, referred to as Ruling 284. This
ruling was issued in December, 1991, after the judgment in this
case, but before the ruling by the Central District Court of
Budapest which denied Gabor’s petition for modification of
custody. It appears that Ruling 284 applies the family law of
Hungary to the terms of the Convention to establish the boundaries
of hlongful removal and retention under Hungarian law. FN-13
According to Ruling 284, a custodial parent who wishes to
remove a child abroad for a period longer than one year must
receive the consent of the noncustodial parent or permission from
the court, otherwise the retention of the child abroad qualifies
as wrongful retention. It appears, however, that the custodial
parent must have formed the intention to leave for a period
longer than one year prior to removing the child abroad. FN-14
Ruling 284 further states that the custodial parent may not
permanently remove a child from Hungary without approval from the
Guardianship Authority. According to Ruling 284, the Guardianship
Authority is vested with rights over children of divorced or
separated parents which qualify as rights of custody attributed to
an institution under Art. 3. Therefore, the Guardianship
Authority may commence proceedings for mandatory return whenever a
child has permanently been removed from Hungary without the
requisite permission from the Guardianship-Authority, if the
noncustodial parent has consented to the removal. FN-15
The provisions of Ruling 284 are not instructive in this case
because, at the time she left Hungary, Maria intended to return
with the children within one year. Furthermore, there is no clear
indication in the record that the Guardianship Authority has
commenced proceedings for mandatory return of the children on the
grounds that Maria intends permanently to remain in the United
States. It is apparent that Gabor could have argued before the
Central District Court of Budapest that Maria now intends to keep
the children in the United States well beyond one year, or even
permanently. The Hungarian court, however, did not apply Ruling
284 to this case or find that Maria’s current retention of the
children in the United States is wrongful under <* 249> Hungarian
law. Rather, the Hungarian court found that the best interests of
the children require that Maria retain custody. In these
circumstances, we conclude that the ruling of the Hungarian court
constitutes a declaration under Hungarian law that Maria’s
retention of the children in the United States is not wrongful.
See David S. v. Zamira S., 574 N.Y.S. 2d 429, 432 (Fam. Ct. 1991)
(custody decision by court of child’s habitual residence, made
subsequent to removal of child and petition for return,
constitutes declaration concerning wrongfulness under Art. 3).
“Accordingly, it would be contrary to both Hungarian law as well
as Massachusetts law to mandate that the children be returned to
Hungary. See G. L. c. 208, Sec. 28 (1990 ed,); G. L. c. 209B, Sec.
14 (1990 ed.)
[3-5] 2. Effective exercise of riqhts of access. A major
purpose of the Convention is to protect the access rights of the
noncustodial parent when the children reside in a contracting
nation other than where the noncustodial parent resides. The
Convention provides that the parent who has removed the children
from their habitual residence, and made the exercise of access
rights more difficult, may be ordered to pay the necessary
expenses incurred by the noncustodial parent effectively to
exercise rights of access. Art. 26. This provision is particularly
relevant in a case such as this, where the average salary in
Hungary is dramatically less than in the United States. The
Convention also recognizes that a judge may not enter a visitation
order which is impractical. By instructing the judge to remove,
“as far as possible,” all obstacles to the exercise of access
rights, the Convention emphasizes that the judge must consider all
practical limitations. Art. 21.
In this case, it is apparent that the judge considered the
principles articulated in Art. 21 when he determined the specific
order of visitation. FN-16Because he found a substantial risk
that Gabor will not return the children to Maria’s custody if they
are sent to Hungary, the judge properly declined to issue an order
that the children be returned for visitation. See note 10, supra.
The judge ordered, however, that Gabor be granted visitation in
the United States twice a year, two weeks each summer and
approximately ten days each Christmas vacation period. FN-17
Maria was ordered to reimburse Gabor on his arrival in the United
States for reasonable travel expenses incurred. Furthermore, the
judge ordered that Gabor’s child support obligation be suspended
to defray yisitation expenses during the period the children
reside in the United States.
Gabor contends that the reimbursement order renders the
entire visitation order meaningless because he does not have
sufficient funds, nor the ability to borrow sufficient funds, to
purchase an airline ticket to the United States. He further
claims that, even if he could purchase a ticket, he cannot afford
living expenses for himself and the children during his stay in
the United States. Thus, he argues, the visitation order is
contrary to Art. 21 because he cannot afford to exercise his
rights of access in the United States.
We cannot assess whether the visitation order issued by the
Judge sufficiently protects Gabor’s rights of access because Gabor
did not submit any evidence of his earnings or assets at the
hearing. The only evidence of Gabor’s financial status was Maria’s
testimony that she has received 32% of Gabor’s official salary, or
approximately $37 a month, as child support. It is apparent that
the judge concluded that Maria and Mihaly can afford to pay
Gabor’s travel expenses to and from the <* 250> United States
twice a year. There was not sufficient evidence, however, for the
judge to determine whether Gabor is able to collect funds to
purchase his tickets to the United States, or whether Gabor is
able to pay necessary living expenses, such as hotel, motel, or
other temporary housing, food and transportation, for himself and
the children during visitation. Accordingly, we remand this case
to the Probate and Family Court with the instruction that the
parties be ordered to submit evidence from which the judge may
craft an appropriate visitation order which recognizes the costs
associated with visitation as well as the financial limitations of
the parties.
[6] Gabor also claims that the Judge improperly limited his
visitation period because the Guardianship Authority order
included four weeks of visitation in the summer as well as
alternate weekends throughout the year. It is Gabor’s position
that the judge should have entered an order which is a “mirror
image” of the Guardianship Authority order. Obviously, the
Convention does not require that a mirror image visitation order
be entered because such a requirement would be impractical. To the
extent practical, however, the visitation order of the
Guardianship Authority should be followed during the children’s
stay in the United States. See G. L. c. 209B, Sec. 14 (1990 ed.).
On remand, the judge may consider Gabor’s request for a longer
visitation period when determining the practical limits of
visitation. Furthermore, the judge may consider Gabor’s request
for telephone contact with the children which was included in the
document submitted to the United States Department of State.
[7] 3. Attorney’s fees. Gabor argues that the Judge erred in
denying his request for attorney’s fees because ICARA, 42 U.S.C. s
11607 (b)(3), mandates that attorney’s fees and costs be awarded
when a court orders the return of children pursuant to the
Convention. rn this case, we have found that the Judge correctly
denied Gabor’s request that the children be returned to Hungary.
Furthermore, attorney’s fees and costs must be awarded only when
children who have been wrongfully removed or retained under Art. 3
are returned, not when children are returned under Art. 18 for
purposes of visitation. Therefore, there is no merit to Gabor’s
argument. Neither the Convention nor ICARA mandate the award of
costs or fees to a party who successfully petitions for rights of
access. The Judge properly denied Gabor’s request for attorney’s
fees.
4. Disposition. The action is remanded to the Probate and
Family Court for further proceedings concerning the order of
visitation consistent with this opinion. In all other respects
the judgment is affirmed.
So ordered.
——————–
1. In his “verified” complaint, the plaintiff referred to the
defendant Maria Foldes as “Maria Viragh” and never stated
that they had been divorced.
2. Mihaly Gereb. The plaintiff amended his complaint to add
Maria’s husband as a defendant.
3. The Convention was adopted by the signatory nations “to
protect children internationally from the harmful effects of
their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of
their habitual residence, as well as to secure protection
for rights of access.” 51 Fed. Reg. 10,498 (1986). The
United States and Hungary are signatories to the Convention.
The enabling legislation giving force to the Convention was
enacted in 1988 as the International Child Abduction
Remedies Act (ICARA), Pub. L. No. 100-300, s 1, 102 Stat.
437 (1988) (codified at 42 U.S.C. Para 11601-11610).
4. For example, in September, 1987, Gabor slapped Maria,
causing her face to be bruised. Because of this incident
and the fact that Gabor did not return Robert until three
weeks after his visitation period had expired, Gabor was
fined and his visitation rights were suspended for six
months. Within six months of that attack, Gabor approached
Maria in a threatening manner and struck her father when he
intervened to protect her. As a result, Gabor was placed on
probation for one year by a criminal court in Budapest.
Gabor was also permanently restrained from entering Maria’s
residence.
5. Maria stated in her motion to dismiss that, prior to the
present action, Gabor had never directly requested that the
children be sent to Hungary for visitation. She also stated
that Gabor has refused to negotiate with her concerning
visitation and, therefore, she fears that he will abduct the
children if they are sent. Despite this fear, Maria offered
to send the children to Hungary once a year, at Mihaly’s
expense, provided that Gabor post a bond with her attorney
in Hungary to assure the children’s timely return. The
record indicates that Gabor is not willing to accept the
conditions of this offer.
6. Gabor apparently appealed from this decision, however, the
record does not include the result of that appeal, if any
has been issued.
7. Article 3 of The Convention provides:
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; and
(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.
8. Article 13 provides in relevant part: “Notwithstanding the
provisions of the preceding Article, 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–
(a) the person, institution or other body having the care of
the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
retention; or
(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.”
9. When addressing access rights, The Conveniont speaks in
terms terms of “securing the effective exercise of rights of
access.” Chap. IV, Art. 21. The Judge found that Maria did
not violate Gabor’s rights of access because she did not
prevent him from exercising his visitation rights in the
United States. The Judge further recognized that the
visitation order issued by the Guardianship Authority did
not expressly state that visitation must be exercised in
Budapest. It is obvious that the childrens’ presence in the
United States makes practically impossible the exercise of
the precise yisitation schedule ordered by the Guardianship
Authority. That, however, does not mean that Gabor is
prevented from effectively exercising his access rights to
the children in the United States.
10. Under art. 18, a Judge is granted the discretion to order
that children be returned to their habitual residence for
the purpose of visitation. The Convention, however, clearly
distinguishes between mandatory return due to wrongful
removal or retention under Art. 3, and discretionary return
under Art. 18. Gabor argues that the judge should have
ordered that the children be returned to Hungary for
visitation because Maria did not prove by clear and
convincing evidence that any Art. 13 (b) exceptions apply to
this case. See 42 U.S.C. Sec. 11603 (e)(2)(A). Gabor’s
argument is misplaced. Art. 13(b) exceptions apply only to
cases of mandatory return, not discretonary return for
visitation.
11. We reject Gabor’s argument that the judge erred by not
formally requesting a determination from the Hungarian
authorities concerning the wrongfulness of the children’s
removal or retention under Hungarian law. Article 15
provides that the Judicial authorities of a contracting
nation have the discretion to request such a determination
in a case where a party has claimed that the removal or
retention of children was wrongful within the meaning of
Art. 3. The judge properly exercised his discretion in not
requesting an Art. 15 determination from Hungary because the
judge was deciding the issue of access rights, not mandatory
return of the chiidren.
12. Gabor also raises several objections to the Judge’s conduct
of the hearing. Gabor contends that the judge improperly
decided the case prior to the hearing by declaring at the
outset that he would not return the children to Hungary. It
is apparent from the transcript that the judge, after
learning that Maria, and not Gabor, had been awarded custody
by the Hungarian court, and after learning that the
Convention mandates return only when the person with custody
rights requests return, was simply stating that the
Convention’s mandatory return provisions do not apply to
requests for visitation. Gabor further claims that the judge
improperly acted as an advocate for Maria. There is no merit
to this claim. The transcript reveals that the judge was not
biased toward either party, and that his questioning of
Maria, and his decision to allow Maria, who did have a
fluent command of English, broadly to answer questions, were
justified and reasonable in the circumstances. See Adootion
of Seth, 29 Mass.App.Ct. 343, 351 (1990). Finally, Gabor
claims that the judge improperly admitted a Hungarian court
document into evidence which was not translated by a
certified translator. The judge, in fact, excluded this
document from evidence, but properly allowed Maria to use
the document to refresh her memory. There was no error in
the conduct of the hearing.
13. Gabor included a certified translation of Ruling 284 in the
record on appeal. According to Gabor, Ruling 284 must be
followed by the lower courts and Guardianship Authorities.
We have no basis for determining whether a ruling by the
Civil College of the Supreme Court of Hungary has the force
of law in Hungary. Because the provisions of Ruling 284 are
not dispositive in this case, however, we assume for
purposes of analysis that the ruling is an accurate
representation of Hungarian law.
14. The translation of Ruling 284 provided by Gabor states: “To
constitute wrongfulness, it is not necessary for the
retention abroad of the child for over a year to be
realized: it suffices if the parent removes the child abroad
with such intention. The intention of the parent shall be
established through the assessment of all the circumstances
of a given case . . . To establish wrongfulness in the case
of removal or the retention abroad of the child with the
intention of a prolonged stay or final settlement there, it
is not necessary for the retention abroad of the child for
over a year to be realized either: it suffices if a third
party removes the child abroad with such intention.”
(Emphasis supplied.) Ruling 284 does not directly address
the situation presented in this case. Maria did not make
contact with the court or the Guardianship Authority prior
to leaving Hungary because she was not obligated to obtain
permission to take the children abroad for less than one
year. There is no indication in Ruling 284 that, once
abroad, the custodial parent must obtain permission to
retain the children abroad for a period longer than one year
if the custodial parent does not intend permanently to
remain abroad.
15. Under the proyisions of Ruling 284, it appears that neither
the custodial parent nor the noncustodial parent is granted
exclusive custody rights under Hungarian law, because
neither parent is afforded the right to determine the
children’s permanent place of residence. Therefore, in
circumstances such as those present in this case, the
noncustodial parent may not request the mandatory return of
children under the Convention, because the noncustodial
parent did not exercise rights of custody at the time the
children were removed from Hungary. Art. 13(a). See 42
U.S.C. Sec. 11603(e). Apparently, the Guardianship Authority
is the only party which may request the mandatory return of
children in these circumstances.
16. Gabor argues that the children should be returned to Hungary
so that the Guardianship Authority can determine the
appropriate visitation order. There is no merit to this
argument. The Convention contemplates that the judicial or
administrative authorities in the “requested State,” or the
nation in which the children currently reside, have
jurisdiction over visitation matters. See Art. 21; Art. 26.
17. The judge ordered certain measures to ensure that the
children are returned to Maria’s custody following Gabor’s
visitation, including the requirement that Gabor deposit his
passport with the family service office of the Probate and
Family Court prior to taking the children.