Hadjittofi vs Hadjittofi (New York 1996)Family Court Docket Number V-2008/9-96


Daniel Hadjittofi,

vs Docket No: V-2008/9-96

Catherine Ann Orlando Hadjittofi,


APPEARANCES: Vincent D. Cardone, Esq.
Thomas D. Calandra, Esq.
Attorneys for Petitioner

Kaman, Berlove, Marafioti,
Jacobstein & Goldman
Deborah A. Crowder, Esq.
Of Counsel
Robert D. Arenstein, Esq.
Attorneys for Respondent

Margaret A. Burt, Esq.
Law Guardian


The facts of thin case are largely undisputed. The parties
met as students while attending Hamilton College in Clinton,
New York in 1980. The petitioner was a citizen of the
Republic of Cyprus and respondent was a citizen of the
United States. Following a courtship in the United States
and completion of graduate studies by petitioner, the
parties relocated to Cyprus in September of 1983 and were
married there in December 1983. Their first child,
Christopher, was born in Cyprus on November 12, 1985 and
their second child, Andrew, was born August 2O, 1989 also in
Cyprus. The children have resided In Cyprus since birth and
attended school there. Prior to the retention of the
children in the United States by respondent, both parties as
husband and wife exercised equal custody and responsibility
for the children. In fact, petitioner had been president of
the Parent Teacher Association of the school which
Christopher and Andrew attended.

In June 1996, the petitioner who is the executive director
of the Commission For Educational Exchange between Cyprus
and the United States came to Washington D.C. on official
business. He purchased round trip tickets for his wife and
children so that they could come to the United States and
visit with her mother and step father in Rochester, New
York. Petitioner went to Kennedy Airport in New York City on
June 30th to greet his family upon their arrival from
Cyprus. He spent the night of June 30th in New York City
with them and then saw them to the airport on July 1st for
the flight to Rochester. His plan was to Join the family in
Rochester at the conclusion of his business in Washington on
July 10th and vacation with them.

On July 9th he received a phone call from respondent telling
him for the first time that the marriage was over, that she
wanted a divorce, that the children would remain in the
United States with her and that he was not welcome to come
to Rochester or to visit with the children. The petitioner
testified that he was devastated by this news and was in a
state of shock and disbelief. He acknowledged to her his
ongoing obligation to support the children and the
conversation concluded. He called several times thereafter,
was allowed one short conversation with his eldest son, and
another time had a conversation with the step grandfather in
which he asked him to make sure the children would maintain
their religion and that violin lessons would continue for
his son Christopher. He then cut short his stay in the
United States, returned to Cyprus and immediately sought
legal advice. He obtained an ex parte order from the Family
Court of Cyprus which ordered the return of the children to
Cyprus for determination of custody. He proceeded in
accordance with the provisions of the Hague Convention to
notify the United States Department Of State, retained
counsel in the United States and filed a petition in this
Court for immediate return of the children to Cyprus under
the Hague Convention on the Civil Aspects of International
Child Abduction and the implementing Federal law, The
International Child Abduction Remedies Act (42 USC 11601 et.
seq.) hereinafter referred to as ICARA. Responsive pleadings
were filed by respondent, a law guardian was appointed for.
the children, and a full hearing including an in camera
interview with the children was held by the Court.

The Court notes that both the Republic of Cyprus end the
United States have ratified the Hague Convention. The object
of the Hague Convention is to secure the prompt return of
children wrongfully removed to or retained in any
contracting State and that persons should not be permitted
to obtain custody of children by virtue of their wrongful
removal or retention. Hague Convention, Article 1; ICARA 42
USC 11601.

The elements necessary to be proven by the petitioner are
that the children are under the age of sixteen, that the
action was commenced within one year of their wrongful
removal or retention in breach of the rights of custody and
that Cyprus is the country of habitual residence of the
children. Hague convention Articles 3 and 12, ICARA 42 USC
11603(e)(1)(A). Of these points, only the country of
habitual residence is contested by respondent. There is no
question that the unilateral decision of the respondent to
convert a short visitation in the United States into a
permanent residency for her and the children was a wrongful
retention of the children. The petitioner had fully expected
the children to be returned as evidenced by his purchasing
of round trip tickets for them and was sharing custody of
the children with their mother at the time. Respondent
argues however that petitioner’s return to Cyprus end his
apparent willingness to allow the children to remain behind
is sufficient acquiescence to vitiate the respondent’s
wrongful retention and make the United States the country of
habitual residence. The case of Friedrich v. Friedrich 78
F.3d 1060 (6th Cir 1996) 1s instructive on that point. There
the court set up a three pronged teat to determine if
acquiescence had occurred. The tests were that acquiescence
under the convention requires either: an act or statement
with the requisite formality, such as testimony in a
judicial proceeding; a convincing written renuncication of
rights; or a consistent attitude of acquiescence over
significant period of time. WMHFN1 None of those elements
were present here. The petitioner’s response to respondent’s
wrongful retention was at first shock and disbelief with
corresponding statements of concern for the children
followed within days by a prompt and vigorous pursuit of all
his legal remedies. This Court therefore rules that the
respondent’s retention of the children in the United States
was wrongful and that the country of habitual residence is
the Republic of Cyprus. See also Brennan vs Cibault (A.D.
4th Dept 1996) 643 N.Y.S.2d 780.

The respondent contends however that even if the retention
was wrongful and the country of habitual residence is
Cyprus, the Court should refuse to return the children under
two defenses established by the Hague Convention. The first
of those defenses is that a return to Cyprus would pose a
grave risk to the children of physical or psychological harm
or otherwise place the children in an Intolerable situation.
Hague convention Article 13(b). The grave risk exception
must be proven by clear and convincing evidence by the party
asserting the defense. 42 U.S.C. 11603(e)(1)(A). Respondent
argues that the political turmoil in Cyprus is so intense
and the potential for warfare to erupt so real that to send
the children back to Cyprus would expose them to grave risk
of harm. This Court cannot agree. The only evidence on this
point brought forward by respondent were her own statements.
These were contradicted by a witness produced by the
petitioner, Mr. Kapsos the Consul General in New York City
for the Republic of Cyprus. Mr. Kapsos testified that in
1974 Turkish troops invaded Cyprus and since then have
occupied 37% of the country. A U.N. peace keeping force has
patrolled the buffer zone between the Greek community in
Cyprus and the Turkish controlled territory. The situation
has been relatively stable since 1974. Tourism continues as
a large industry in Cyprus and there is a seizable
contingent of American citizens living in Cyprus. There are
no state Department advisories in effect cautioning against
travel to Cyprus and no warnings for American citizens or
their dependents to leave the country. The respondent
married the petitioner in 1983 well after the Turkish
invasion. She chose to marry the petitioner, to reside in
Cyprus, to have children with him and to raise their
children there. She cannot now suggest that the situation
has changed so dramatically as to pose a grave risk to the
children. Her proof is utterly lacking in this regard.

No court can guarantee the absolute safety of any child in
the United States or Cyprus. This Court is all too familiar
with the effects of juvenile violence in this country.
Respondent testified that her children would be much safer
here than in Cyprus. Yet a recent series of articles in the
Rochester Democrat and Chronicle portrayed the epidemic of
youth violence here in Monroe County where respondent
proposes to raise the children. In a poll of teen-agers
conducted for that series 31.9% thought that their lives
would be cut short by violence and 18.5% carried weapons
with them because of their fear of violence. See Rochester
Democrat and Chronicle Saturday September 28, 1996 page 1A
and following.

Finally, respondent puts forth the defense that the children
hare opted to stay in the United States. Article 13 of the
the Convention allows for the judicial authority to consider
the children’s wishes. This must be proven by a
preponderance of the evidence. ICARA 42 USC 11603(e)(2)(B).
Establishment of this defense depends upon the children’s
age and degree of maturity, and is not binding upon the
Court but only a factor which the court may consider. The
Court held an in camera interview to determine the wishes of
the children. As to the child Andrew, he is 7 years old and
clearly lacks the maturity and ability to form a rational
judgment. Suffice it to cay without revealing the
confidences of the in camera proceeding that Andrew is
ambivalent about where he wants to reside. He is torn by his
parents’ conflict and wants to have a decision made so he
can get on with his life. If this case Involved just Andrew
there is no question that under the law he would be on the
first plane back to Cyprus. The respondent maintains however
that Christopher, the ten year old child is mature and
capable of making a decision. To bolster this contention the
law guardian had Dr. Santo M. Hontivegna a New York State
licensed psychologist examine Christopher. He testified that
his examination revealed Christopher to be well above
average intelligence for a ten year old. Respondent
testified at trial that Christopher preferred the
educational system here even though he has only been
enrolled in school in the United States for a few weeks,
that he feared the political situation in Cyprus, that he
was especially afraid of having to serve in the military,
(all Cypriot citizens must do military service commencing at
age sixteen), and that the possibility of enhancing his
talent as a violinist are much greater here than in Cyprus.

Again without revealing the confidences of the in camera
proceeding, it was clear to the court that although
Christopher might have some preference for this country his
primary relationship and the strongest bond be has is with
his younger brother. There is no question that whatever
preferences he may have are subservient to his love for his
brother ad the desire to remain with him even if that means
returning to Cyprus. For decades our courts have recognized
that separation of siblings is to be frowned upon and only
to be done in the most overwhelming of circumstances. White
v. White, 209 Ad 2d 949 (4th Dept. 1994). No such
overwhelming circumstances apply here. It in abundantly
clear to this Court from all of the evidence presented that
the petitioner has met his burden of proof, that the
defenses raised by the respondent have no merit and that the
children should be returned to Cyprus. All questions of
custody and visitation shall be decided by the courts of the
Republic of Cyprus.

The Hague Convention to which both the United States and the
Republic of Cyprus are signatories is founded and rests on
the unanimous rejection by the ratifying states of illegal
child removals and upon the conviction that the best way to
combat this is to refuse to grant them legal recognition.
This case falls squarely into that framework. If the
decision here was otherwise, the treaty would be entirely
meaningless. The Court therefore orders that the children
Christopher and Andrew be forthwith transferred to
petitioner for return to Cyprus and for determination of all
other matters relating to these children by the courts of
that country.

The application to this Court for stay for leave to appeal
to Appellate Division is denied.

The petitioner may move this Court for counsel fees and
other expenses upon motion with notice to respondent’s

This decision constitutes the Order of the Court.

Signed this 2nd day of October, 1996 at Rochester, New York.

/s Michael J. Miller
Family Court Judge.

1. It could be held that the one year period of Art. 12 is
a “significant period of time.”