USA – NJ – Roskwoski v Roszkowski(Court ruled mother must return child from Poland)ROSZKOWSKI v ROSZKOWSKI. The mother sent the child to Poland. The father requested the court to order the return of the child. The mother and father remained in the U.S. The court took the case to determine if it had jurisdiction to determine the issue of custody and whether the court had jurisdiction to enter an order requiring the child to be returned from Poland to NJ. The court ruled that New Jersey was the child’s habitual residence and ordered that pursuant to The Hague Convention the mother is required to return the child from Poland to the United States.
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Roszkowski v Roszkowska (N.J.Super.Ch. 1993)274 N.J.Super 620 [644 A.2d 1150]
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MIROSLAW ROSZKOWSKI, Plaintiff
v.
GRAZYNA ROSZKOWSKA, Defendant.
ROSZKOWSKI v. ROSZKOWSKA
DOCKET NO. FM-20-174-94
SUPERIOR COURT OF NEW JERSEY
CHANCERY DIVISION
FAMILY PART
UNION COUNTY
December 8, 1993, Decided
SUBSEQUENT HISTORY: Approved for Publication June 27, 1994.
COUNSEL:
Elliot H. Gourvitz for plaintiff (Elliot H. Gourvitz, P.A.,
Richard Outhwaite on the brief).
Kevin J. Daly for defendant (Kevin J. Daly, P.C.).
OPINION: MELVIN S. WHITKEN, J.S.C.
PROCEDURAL HISTORY
On July 27, 1993 the plaintiff, Miroslaw Roszkowski, filed a
complaint for divorce against his wife, Grazyna Roszkowska, based
upon the grounds of extreme cruelty and further alleging that the
defendant, without his consent, removed their child, Rafal, from
the jurisdiction of New Jersey and sent the child to Poland. The
plaintiff, in his complaint, seeks a dissolution of the marriage,
sole legal and residential custody of Rafal with reasonable
visitation to the defendant, that the defendant surrender her
passport during the periods of visitation, and further seeks
child support from the defendant, as well as equitable
distribution and counsel fees.
A motion on short notice was thereafter filed by the plaintiff,
returnable August 6, 1993, seeking pendente lite custody of
Rafal, compelling the defendant to return Rafal to New Jersey
within ten days and thereafter prohibiting her from removing
Rafal from New Jersey without further order of the Court,
requesting that this Court retain jurisdiction over Rafal,
demanding that the defendant immediately surrender her passport
to the court, and incarcerating her if the child is not returned
within ten days. The plaintiff further sought a probation
department investigation as to the issue of permanent custody
along with an examination of the defendant and the child by a
psychologist.
Kevin J. Daly, Esq. was thereafter appointed by the Honorable
Ross R. Anzaldi to represent the defendant; a cross-motion was
filed on behalf of the defendant requesting that the court deny
the plaintiff’s motion in its entirety or, in the alternative,
awarding custody of the child to the defendant, and for counsel
fees.
Thereafter, the matter was assigned to this court at which time a
plenary hearing was held for the sole purpose of determining
whether this court had jurisdiction to determine the issue of
custody and whether this court had jurisdiction to enter an order
requiring Rafal to be returned from Poland to New Jersey.
FINDINGS OF FACT
I find that the parties were married on April 19, 1986 in
Bialystok, Poland, and Rafal was born on February 21, 1989 in
Poland.
The plaintiff presently resides at 430 Vine Street in Elizabeth
whereas the defendant resides in an apartment in Staten Island,
New York, on weekends and works in Brooklyn, New York during the
week. Both parties are Polish citizens as is Rafal.
The plaintiff arrived in the United States from Poland on
September 27, 1989, seeking employment, which was approximately
seven months after Rafal was born. Rafal lived with the
defendant, who remained in Poland, during this period of time.
The plaintiff visited the defendant and his son in Poland on two
occasions: once in February of 1992 and thereafter from August to
September of 1992.
On December 21, 1992 the defendant and Rafal arrived in the
United States and resided with the plaintiff in New Brunswick,
New Jersey. When the defendant and Rafal came to the United
States, they each possessed a visitor’s visa with expiration
dates of March 21, 1993, which may have been extended to November
1994, although no proof of same was submitted to the court. On
the second day that the defendant was in the United States, the
plaintiff advised her that he had a girl friend and as of the
date of the hearing before this court, the plaintiff admitted
that his girl friend had, in fact, recently delivered his child.
The plaintiff then changed jobs and moved to his present address
in Elizabeth, although the defendant and Rafal remained in New
Brunswick.
Some time in March of 1993, the defendant moved to an apartment
in Staten Island and Rafal resided with the plaintiff a minimum
of five per nights per week and sometimes six nights per week in
Elizabeth. The plaintiff enrolled Rafal in a Montessori School in
Staten Island and, in fact, transported Rafal back and forth to
the school. During this period of time he also took Rafal to the
doctors when required.
On July 18, 1993, the defendant sent Rafal back to Poland and
indicated she was going to stay here to attempt to work through
her marital problems with the plaintiff; she contends that the
plaintiff knew Rafal was being sent to Poland and he approved of
this arrangement. The plaintiff denies that he knew Rafal was
being returned to Poland permanently and stated that it was his
understanding that Rafal was merely going for a visit.
The parties have stipulated that Rafal was physically in the
State of New Jersey from December 21, 1992 to July 18, 1993,
which is a period slightly in excess of six months.
LAW
The plaintiff posits the theory that since this Court has in
personam jurisdiction over both the plaintiff and defendant, FN
01 this Court has jurisdiction to order the return of their
child, Rafal, from Poland and to determine custody. Specifically,
the plaintiff argues that “the court only need find that there is
jurisdiction over the parties (rather than the child) in order to
compel the parties to submit to the Orders of this court.” See
Letter Brief of Plaintiff, dated September 10, 1993, at 8.
However, it has been noted that “because jurisdiction over child
custody determinations derives from the child’s contacts with the
state, a parent’s contacts with the state are irrelevant.” Monica
J. Allen, Child-State Jurisdiction: A Due Process Invitation to
Reconsider Some Basic Family Law Assumptions, 26 Family L.Q. 293,
306 (1992). Thus, the Court must examine the nature of the
child’s contacts with the state to ascertain whether they are
sufficient to confer jurisdiction in accordance with both
statutory law and the Hague Convention.
Under New Jersey statutory law, the Superior Court has
jurisdiction over child custody disputes and is empowered to make
a ruling provided that certain condition precedents are
satisfied. Most importantly under the Uniform Child Custody
Jurisdiction Act (“UCCJA”), jurisdiction is conferred when New
Jersey:
(i) is the home state of the child at the time
of commencement of the proceeding, or (ii) had
been the child’s home state within 6 months
before commencement of the proceeding and the
child is absent from this State because of his
removal or retention by a person claiming his
custody or for other reasons, and a parent or
person acting as parent continues to live in
this State . . .
[N.J.S.A. 2A:34-31(a)(1).]
The statute further provides that the “physical presence of the
child, while desirable, is not a prerequisite for jurisdiction to
determine his custody.” Id. 2A:34-31(c).
Thus, the first jurisdictional requirement is that the forum be
the child’s “home state,” which is defined as:
the state in which the child immediately
preceding the time involved lived with his
parents, a parent, or a person acting as
parent, for at least 6 consecutive months, and
in the case of a child less than 6 months old
the state in which the child lived from birth
with any of the persons mentioned. Periods of
temporary absence of any of the named persons
are counted as part of the 6-month or other
period.
[N.J.S.A. 2A:34-30(e), codifying Uniform Child Custody
Jurisdiction Act | 3(1).]
See also Parental Kidnapping Prevention Act, 28 U.S.C.A.
1738A(b)(4). WMH FN 01
The UCCJA was intended primarily to pertain to the states,
territories, and possessions of the United States as well as the
District of Columbia and the Commonwealth of Puerto Rico. N.J.S.A.
2A:34-30(j). The present case involves Poland and New Jersey and,
thus, is not a dispute contemplated by the UCCJA. WMH FN 02
Furthermore, “the UCCJA only applies to an international child
custody case when the State is asked to recognize and enforce
decrees of foreign countries.” Schmidt v. Schmidt, 227 N.J. Super.
528, 548 A.2d 195 (App. Div. 1988). This limitation has been
defined as such:
while the UCCJA is reciprocal WMH FN 03 among
those states and territories of the United
States which have enacted it; it is not
reciprocal between the United States and any
other country. While Section 23 of the UCCJA
makes it applicable to the international
arena, the UCCJA does not contain language
providing for judicial reciprocity. Thus, the
UCCJA only recognizes and enforces foreign and
domestic custody decrees within the United
States and its territories. A state court in
the United States, under the UCCJA, may
enforce custody or visitation rights ordered
by a foreign court against a United States
citizen but it cannot order a citizen of
another country to return a child to the
United States. . . . In international child
custody disputes, United States courts should
favor ICARA [International Child Abduction
Remedies Act, 42 U.S.C.A. || 11601-11610] over
the UCCJA. [Julia R. Rutherford, Note,
Removing the Tactical Advantages of
International Parental Child Abductions under
the 1980 Hague Convention on the Civil Aspects
of International Child Abduction, 8 Ariz. J.
Int’l & Comparative Law 149, 152 (1991)
(emphasis added) [hereinafter International
Parental Child Abductions].]
Here, there is no Polish decree requiring enforcement; rather, the
plaintiff seeks to have this court order the defendant, a Polish
citizen, to return the child to New Jersey for a custody
determination. Thus, on its face, the UCCJA does not apply to the
current dispute. See also Warren Cole, Border Crossing, A.B.A. J.,
July 1993, at 90.
The Hague Convention on the Civil Aspects of International Child
Abduction FN 02 [hereinafter “the Hague Convention”] “streamlines
judicial procedures for obtaining the return of internationally
abducted children.” Edward S. Snyder, Convention Aids Returns in
Abduction Cases, N.J. L.J., Nov. 15, 1993, at 11. The scope of the
Hague Convention “establishes legal rights and procedures for the
prompt return of children who have been wrongfully removed or
retained, as well as for securing the exercise of visitation
rights.” 42 U.S.C.A. | 11601(a)(4). “The Convention seeks only to
return a child to the status quo prior to the wrongful retention
or removal.” International Parental Child Abductions, supra, at
151. Specifically, the Hague Convention’s objectives are:
a. to secure the prompt return of children
wrongfully removed to or retained in any
Contracting State; and
b. to ensure that rights of custody and of
access under the law of one Contracting State
are effectively respected in the other
Contracting States.
Hague Convention Art. 1.
Both the United States and Poland are signatories to the Hague
Convention. The United States deposited its instrument of
ratification of the Convention with the Ministry of Foreign
Affairs of the Kingdom of the Netherlands on April 29, 1988;
Poland did so on August 10, 1992. Hague Convention n.11, 6c. In
accordance with Article 43 of the Hague Convention, the treaty
entered into force on July 1, 1988 for the United States, whereas
it entered into force for Poland on November 1, 1992. Id. Of equal
importance is the fact that should the present scenario be found
to be within the contemplation of the Hague Convention, this Court
has “concurrent original jurisdiction of actions arising under the
Convention” with the United States District Courts. 42 U.S.C.A.
11603(a).
Under the Hague Convention, a custody determination is left to the
law of the state to which the child is returned. “The Convention
provides only a mechanism for determining whether a child has been
wrongfully removed or retained. Any decision on, enforcement, or
modification of the custody dispute or decree is left to the
appropriate judicial or administrative agency of the child’s home
State.” International Parental Child Abductions, supra, at 151.
(footnotes omitted). Under the Hague Convention, a “court is
empowered to determine the merits of an alleged abduction, but not
the merits of the underlying custody claims or issues.” Meredith
v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991). Further, the
Meredith court noted that “custody rights are determined by the
law of the child’s habitual residence.” Id.
In Schmidt, supra, 227 N.J. Super. at 534, the Appellate Division
found that the Hague Convention did not apply even though the
United States had signed it on December 23, 1981 and the Senate
had thereafter given its advice and consent on October 9, 1986.
The sole reason the Hague Convention was deemed to be inapplicable
was the fact that Congress had not enacted legislation setting
forth the procedures necessary to implement the Hague Convention.
Id. Since the Schmidt decision, however, Congress has codified the
procedures in the International Child Abduction Remedies Act FN 03
(ICARA) at 42 U.S.C.A. Secs 11601-11610. See also Linda K.
Girdner, Obstacles to the Recovery and Return of Parentally
Abducted Children, 13 Children’s Legal Rights J. 2-6 (1992).
n3 One law review commentator noted that there is a sparsity of
case law interpreting the ICARA provisions. As of early 1991, In
re Mohsen, 715 F. Supp. 1063 (D. Wyo. 1989), was the only case
which mentioned this statute. Julia R. Rutherford, Note, Removing
the Tactical Advantages of International Parental Child Abductions
under the 1980 Hague Convention on the Civil Aspects of
International Child Abduction, 8 Ariz. J. Int’l & Comp. Law 149,
153 n.30 (1991). Since that time, a New Jersey case has provided a
cursory review of the ICARA provisions. Duquette v. Tahan, 252
N.J. Super. 554, 600 A.2d 472 (App. Div. 1991). Apparently, most
state courts rely on the UCCJA since it is well-established.
“However, as federal law, the ICARA must be applied to disputes
between citizens of Contracting States, under the Supremacy Clause
of the United States Constitution and the Erie Doctrine.”
International Parental Child Abductions, supra, at 153 (footnotes
omitted).
Accordingly, “the Hague Convention is the starting point when a
child is believed to have been illegally removed to, or is being
illegally retained in another country.” Cole, supra, at 90. The
Hague Convention’s focus is on “situations involving removal from
the United States to a foreign country and vice versa.” Id. Note,
however, that it is “not an extradition treaty and contains no
provision for the imposition of criminal sanctions.” Id.
The Hague Convention may be invoked in one of two ways. The
primary, and most common, method is for the party seeking the
return of the child to contact the central authority of the
country in which that party resides; in the United States, the
central authority is the Department of State. Hague Convention
art. 8 and n.11. See also Lon Vinion, When Custody Conflicts Cross
the Border, Family Advocate, Spring 1993, at 30. Under this
procedure, the plaintiff could have contacted the United States
Department of State, which in turn would have contacted the
appropriate authority in Poland. However, the plaintiff chose not
to pursue this route.
The plaintiff has chosen to use the Hague Convention’s
alternative, which is set forth in Article 29:
This Convention shall not preclude any person,
institution or body who claims that there has
been a breach of custody or access rights
within the meaning of Article 3 or 21 from
applying directly to the judicial or
administrative authorities of a Contracting
State, whether or not under the provisions of
this Convention.
[Hague Convention Art. 29.]
“In other words, instead of contacting a central authority, an
individual may file directly in the appropriate local jurisdiction
for the return of a child being wrongfully held.” Vinion, supra,
at 30-31. This route is specifically provided for in 42 U.S.C.A. |
11603(b). This court is within the definition of “authorities” and
thus may properly decide this issue. Id. Sec 11603(f)(1).
Furthermore, this Court has subject-matter jurisdiction. Id. Sec
11603(a).
Since the plaintiff is seeking relief, the plaintiff is designated
the “petitioner” whereas the defendant is the “respondent.” Id.
Sec 11602(4), (6). The burden of proof is on the petitioner to
show that the child has been wrongfully removed, as contemplated
by the Hague Convention, by a preponderance of the evidence. Id.
Sec 11603(e)(1)(A). Thus before reaching a determination, this
Court must consider the Hague Convention’s prerequisites and the
petitioner’s pleadings.
The first requirement is that both countries involved be
signatories to the Hague Convention. Here, as previously
discussed, this requisite is easily satisfied since it is
undisputed that both Poland and the United States are signatories.
The second requirement is that the party petitioning the court
must demonstrate that the child involved was “habitually resident
in a Contracting State immediately before any breach of custody,”
which encompasses a wrongful removal. Hague Convention Art 4.
“Habitual residence has been defined as the child’s usual place of
residence and primary home immediately before he or she was
removed to a foreign country.” Vinion, supra, at 32 (citing 51
Fed. Reg. 10,504 (1980)). Unfortunately, the Hague Convention does
not explicitly define this term. Given that this term is not
expressly delineated, one commentator observed that:
in most cases it should not be difficult to
ascertain what the state of habitual residence
is. Habitual residence is akin to domicile; it
may be looked at as a place that is the focus
of the child’s life.
[Snyder, supra, at 31.]
In Meredith, supra, 759 F. Supp. at 1434, the court stated
“‘habitual residence’ is an undefined term in the Convention. It
is apparent that it must be determined by the facts and
circumstances presented in each particular case.” The Meredith
case involved a family living in Arizona and comprised of a
mother, who was a French citizen, and a father, an American
citizen. Id. at 1432. The mother removed the child to France and
finally England. Id. at 1433. The court found that the mother
removed the child to these two foreign countries in order to
obtain a custody award in her favor. Id. at 1435. The court also
found that until the mother’s misrepresentation that she was
taking the child to France only for a holiday visit, the child had
lived continuously in Arizona and had been born there. As such,
the court found the child’s “habitual residence” to have been
Arizona. Id. at 1436. The Meredith court observed that:
to equate the temporary removal and subsequent
sequestration of the minor child to legal
status of “habitual residence” in another
country would be to reward [the mother] for
her ability to conceal the child from the
[father], her lawful, custodial parent.
[Id. at 1435.]
Thus, a determination as to what constitutes the child’s “habitual
residence” involves consideration of the child’s contacts with a
given state, as well as each parent’s conduct.
I find that based upon the facts in the matter before this court
the habitual residence of Rafal immediately before the wrongful
removal was in fact New Jersey. Rafal lived in New Jersey
initially with both of his parents, then with his mother and
finally with his father for more than six months; during this
period of time, Rafal attended a nursery school in Staten Island.
Both of his parents resided in New Jersey during that period of
time and in fact, as of this date, his father still resides in New
Jersey, whereas his mother resides in New York.
Given that “habitual residence” is an undefined term, it is
appropriate to look to the law of New Jersey for guidance. As
previously stated, New Jersey applies the UCCJA to child custody
disputes. Under New Jersey law, the child’s home state is the
state where the child resided for six months immediately prior to
the action. Here, the six month requirement is satisfied and both
parties do not dispute that Rafal lived in New Jersey for a six
month plus period. Thus, under New Jersey law, New Jersey is the
home state of Rafal. Accordingly, Rafal’s home state will be
considered to be his “habitual residence” for purposes of the
Hague Convention.
Although an argument can be made that Rafal is a Polish citizen
and has lived in Poland his entire life other than for the six
month plus period of time when he was residing in the United
States, this court is satisfied that New Jersey was in fact his
“habitual residence” at the time he was wrongfully removed from
New Jersey and remains so during his current unlawful detention in
Poland.
The third prerequisite under the Hague Convention is that the
child be under the age of 16. Hague Convention Art. 4. Here, Rafal
is 4 1/2 years old and thereby within the Convention’s
contemplation.
The final requirement is that a wrongful removal or retention of
the child must have occurred. Id. art. 3. The most obvious example
of a wrongful removal or retention is when “it violates the
custody rights of an individual who was exercising those rights,
and who would have continued to do so had the child not been
removed.” Vinion, supra, at 32. Note that “the terms ‘wrongful
removal or retention’ and ‘wrongfully removed or retained'” as
used in the Convention, include a removal or retention of a child
before the entry of a custody order regarding that child.” 42
U.S.C.A. Sec 11603 (f)(2) (emphasis added). As is the case here,
no custody order has been entered. Nevertheless, the lack of an
order does not act as an automatic bar.
Custody rights may arise in one of three ways: by agreement
carrying legal effect, by judicial order, or by operation of law.
Hague Convention Art. 3. In the present case, no custody decision
has been made by this court, and this court has no knowledge of
any Polish custody orders. However, Rafal had been living with the
plaintiff up until the time that the defendant unilaterally
decided to return the child to Poland as a permanent solution.
Thus, by operation of law, the plaintiff has acquired custody
rights and has demonstrated an intense desire to exercise those
rights. Furthermore, “Article 3 provides that [the] 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.'” Viragh v. Foldes, 415 Mass. 96,
612 N.E.2d 241, 247 (Mass. 1993) (discussing a noncustodial
parent’s rights of access for purposes of visitation under the
Hague Convention). Thus, based on this Court’s findings of fact
and New Jersey law, it is apparent that the plaintiff/petitioner
was exercising his rights of custody at the time Rafal was removed
from the United States.
Abduction occurs when a parent removes a child from one
Contracting State without the other parent’s consent or when a
parent wrongfully detains a child from returning even if the other
parent had originally consented to the departure. “Even when the
removal is not initially violative — [for example] for visitation
with a parent in another country — if that parent refuses to
return the child, the retention becomes unlawful under the act.”
Vinion, supra, at 32. Under the Hague Convention, “rights of
custody shall 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.” Hague Convention Art. 5(a). Here, the
plaintiff has exercised his custody rights and objects to the
defendant’s actions which have prevented the child from returning
to the United States from Poland.
Based on the foregoing, it appears that the four requirements
necessary for invocation of the Hague Convention have been
satisfied. As such, “the responding court [namely the Polish
judicial system) is obligated to return the child to his or her
country of habitual residence.” Vinion, supra, at 32. The Hague
Convention merely addresses the jurisdictional issue; it does not
consider the best interests of the child. Id. This is in light of
the fact that “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, the Convention mandates that the nation to which
the child has been taken order the return of the child to its
habitual residence ‘forthwith.'” Viragh, supra, 612 N.E.2d at
246-47.
Once the Hague Convention is deemed applicable, certain defenses
are available to the objecting party. Some of the feasible
defenses are:
(1) 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 [Hague
Convention Art. 13(a)], or
(2) [the person seeking the child’s return]
had consented to or subsequently acquiesced in
the removal or retention [Hague Convention
Art. 13(a)]; or
(3) 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 FN 04 [Hague
Convention Art. 13(b)]; or
(4) the return of the child under the
provisions of Article 12 may be refused if
this 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].
As a consequence, “children who are wrongfully removed or retained
within the meaning of the Convention are to be promptly returned
unless one of the narrow exceptions set forth in the Convention
applies.” 42 U.S.C.A. Sec 11601(a)(4).
The burden of proof for exceptions number 1 and 2 as set forth
above is on the respondent (defendant) and by a preponderance of
the evidence. 42 U.S.C.A. Sec 11603(e)(2)(B). The burden of proof
for exceptions number 3 and 4 as set forth above is on the
respondent (defendant) and by clear and convincing evidence. Id.
Sec 11603(e)(2)(A).
In the present matter, none of the defenses appear to apply.
Firstly, the plaintiff, who has requested the return, was in
physical custody of the child until the child’s departure for
Poland and thus had custody rights by operation of law. The fact
that there was no formal decree of custody is of no import. It is
also apparent that the plaintiff has neither acquiesced in the
removal of Rafal to Poland nor certainly his remaining in Poland,
given that he filed his complaint for divorce and return of the
child within two weeks after the child was removed. Also, there is
no grave risk to the child in New Jersey which is apparent at this
time. Finally, both the United States and Poland are signatories
to the Hague Convention and do not violate human rights or impinge
upon fundamental freedoms. FN 05 Furthermore, the defendant has
not pleaded any of these defenses and has consequently not
satisfied her burdens of proof. Thus, the defendant has no viable
defense to this Court’s application of the Hague Convention.
There are some additional exceptions which require only a cursory
mention in this case. The first exception applies when “the
judicial or administrative authority . . . finds that the child
objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of its views.”
Hague Convention Art. 13(b). The burden of proof for this
exception is on the respondent by clear and convincing evidence.
42 U.S.C.A. Sec 11603(e)(2)(A). Here, the child is merely 4 1/2
years old and not of a suitable age to express an opinion. WMH FN
04
The next exception involves the situation wherein “the petitioning
party has waited more than one year to initiate action against the
child’s removal and the responding court finds that the child is
now settled in his or her new environment.” Vinion, supra, at 32;
Hague Convention Art. 12. The burden of proof in this situation is
on the respondent by a preponderance of the evidence. 42 U.S.C.A.
Sec 11603(e)(2)(B). As the plaintiff moved expediently after the
wrongful removal, this exception is likewise not invoked.
Once the Court determines that a wrongful removal or retention as
contemplated by the Hague Convention has occurred, it may assess
certain civil sanctions against the party who is ordered to return
the child. Accordingly, “if a court finds the [petitioner] is
entitled to enforcement, it shall order the respondent to pay
necessary legal fees incurred by the [petitioner], court costs,
foster home care, transportation costs to return the child, and
other costs of the child.” Cole, supra, at 90. In the Schmidt
case, the Appellate Division instructed the trial court to
consider the defendant’s unilateral action of removing the child
in its decision of whether to make “the defendant share in the
plaintiff’s extra expenses to be incurred because New Jersey [and
not West Germany] retains jurisdiction.” 227 N.J. Super. at 534.
Thus as a sanction, the Hague Convention permits a court to
“require the adverse party to pay legal and travel expenses and
costs incurred locating the child when circumstances make such an
award appropriate.” Vinion, supra, at 34. This sanction, provided
for in Article 26 of the Hague Convention, is codified as follows:
Any court ordering the return of a child pursuant to an action
brought under section 11603 of this title shall order the
respondent to pay necessary expenses incurred by or on behalf of
the petitioner, including court costs, legal fees, foster home or
other care during the course of proceedings in the action, and
transportation costs related to the return of the child, unless
the respondent establishes that such order would be clearly
inappropriate. [42 U.S.C.A. Sec 11607(b)(3).]
As the defendant misrepresented the purpose of Rafal’s departure
to Poland to the plaintiff and, thus, has effectively thwarted the
plaintiff’s rights of custody, this court is satisfied that the
defendant should bear the costs associated with returning Rafal to
New Jersey. This court will reserve as to the issue of the
defendant’s liability, as a sanction permitted under the Hague
Convention, for the plaintiff’s legal fees and costs associated
with this motion until such time as the parties’ respective
incomes can be ascertained and analyzed.
Furthermore, in the majority of abduction cases, one parent leaves
a country with the child or remains in another country with the
child. Here, the defendant has sent the child to reside with her
grandparents in Poland while the plaintiff and defendant remain
here in the United States. This Court is satisfied that New
Jersey was the habitual residence of the child and, but for the
defendant’s unilateral actions, it would have continued to be
such. In conclusion, it should be noted that:
although international child custody cases
provide a novel area of practice, when two
countries signatory to the Hague Convention
are involved, the question of which country
has jurisdiction will not be a subject of
dispute. The clear dictates of the convention
provide the answer.
[Vinion, supra, at 35.]
For the foregoing reasons, it is ORDERED that pursuant to the
Hague Convention, the defendant is required to return Rafal from
Poland to the United States, particularly, New Jersey.
It is further ORDERED that the defendant shall bear the costs
associated with the return of Rafal to the United States, and this
Court reserves on the issue of the defendant’s liability for the
plaintiff’s legal fees and costs associated with this motion.
The Union County Probation Department is directed to conduct a
“best interest” evaluation and counsel are directed to communicate
with the Court so psychological evaluations can be obtained and
the Court can address whether a guardian ad litem should be
appointed for Rafal.
This decision is contingent upon the ability of Rafal to obtain a
visa to permit him entry into the United States and in that regard
will be subject to the appropriate immigration law. However, this
Court recognizes that treaties are the “supreme law of the land”
under Missouri v. Holland, 252 U.S. 416, 433, 40 S. Ct. 382, 64 L.
Ed. 641, 647 (1920) and Article VI, Clause 2 of the United States
Constitution. Consequently, the Hague Convention should take
precedence over any conflicting immigration law.
The attorney for the plaintiff is directed to prepare an order in
accordance with this decision.
———————–
Foot Notes
01 A consent order, filed on October 13, 1993, extended the
period of time for the defendant to file an answer to the
plaintiff’s complaint for divorce until after the issue
concerning this court’s jurisdiction over Rafal is
resolved.
02 51 Fed. Reg. 10,498 (1986).
03 One law review commentator noted that there is a sparsity
of case law interpreting the ICARA provisions. As of early
1991, In re Mohsen, 715 F. Supp. 1063 (D. Wyo. 1989), was
the only case which mentioned this statute. Julia R.
Rutherford, Note, Removing the Tactical Advantages of
International Parental Child Abductions under the 1980
Hague Convention on the Civil Aspects of International
Child Abduction, 8 Ariz. J. Int’l & Comp. Law 149, 153 n.30
(1991). Since that time, a New Jersey case has provided a
cursory review of the ICARA provisions. Duquette v. Tahan,
252 N.J. Super. 554, 600 A.2d 472 (App. Div. 1991).
Apparently, most state courts rely on the UCCJA since it is
well-established. “However, as federal law, the ICARA must
be applied to disputes between citizens of Contracting
States, under the Supremacy Clause of the United States
Constitution and the Erie Doctrine.” International Parental
Child Abductions, supra, at 153 (footnotes omitted).
04 Note that this defense requires that the grave risk be
self-evident at the time of the request for return. A
plenary hearing cannot be held to determine whether a grave
risk is potentially possible. Similarly, psychological
evaluations of the parties prior to a decision, as well as
investigations of the two countries for purposes of
suitability, are not permitted.
05 To the contrary, Somalia or Iraq would be prime examples of
nations that, arguably, fail to promote and protect basic
human rights.
WMH Comments
——————–
1. 28 U.S.C. 1738A, by its own terms, does not apply to
international cases. See (b)(8).
2. While this is true in a very narrow technical sense, it is
not the prevailing opinion amongst those states that have
applied this section. The Commissioners COMMENT to this
section is instructive:
Not all the provisions of this Act lend themselves to direct
application in international custody disputes; but the basic
policies of avoiding jurisdictional conflict and multiple
litigation are as strong if not stronger when children are
moved back and forth from one country to another by feuding
relatives. Compare Application of Lang, 9 App.Div.2d 401,
193 N.Y.S.2d 763 (1959) and Swindle v. Bradley, 240 Ark.
903, [403 N.W.2d 63] (1966).
The first sentence makes the general policies of the Act
applicable to international cases. This means that the
substance of section 1 and the principles underlying
provisions like sections 6, 7, 8, and 14(B), are to be
followed when some of the persons involved are in a foreign
country or a foreign custody proceeding is pending.
The second sentence declares that custody decrees rendered
in other nations by appropriate authorities (which may be
judicial or administrative tribunals) are recognized and
enforced in this country. The only prerequisite is that
reasonable notice and opportunity to be heard was given to
the persons affected. It is also to be understood that the
foreign tribunal had jurisdiction under its own law rather
than under section 3 of this Act. Compare Restatement of the
Law Second, Conflict of Laws, Proposed Official Draft,
sections 10, 92, 98, and 109(2) (1967) Compare also
Goodrich, Conflict of Laws 390-93 (4th ed.., Scoles, 1954).
Note that this section requires that the UCCJA is to apply
in the international arena in all respects.
See also Tiscornia v Tiscornia (Ariz.App. 1987) 154 Ariz.
376 [742 P.2d 1362, 1362-1363]; Miller v Superior Court of
Los Angeles Cty. (Cal. 1979) 22 Cal.3d 923, 928 [151
Cal.Rptr. 6, 8; 587 P.2d 823];
3. This is simply not correct. The UCCJA is not a reciprocal
law. See the Prefatory Note to the Master Addition of the
UCCJA: “The Act is not a reciprocal law. It can be put into
full operation by each individual state regardless of
enactment of other states.”
4. The “age and maturity” section of Art. 13 is not in (b), it
follows (b). The burden of proof for this section is
perponderance of the evidence, not clear and convincing.