USA – NY – SHEIKH – 1989

Sheikh v Cahill (Supp. 1989)546 N.Y.S.2d 517
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Anwar Sheikh v Margaret Sheikh Cahill

546 N.Y.S.2d 517 (Supp. 1989)

Supreme Court, Kings County, William Rigler, Judge

15 Sep 1989, Index No 336/83

David A. Feinerman, Brooklyn, NY, for Anwar Sheikh

Attorney for Margaret Sheikh Cahill: Robert D. Arenstein, 295
Madison Ave., No. 1002, New York, NY 10017 (212) 679-3999

(518) In this modern society, the advances in travel has
increased the mobility of individuals and families through out the
world. While in many situations the increase in mobility leads to
a vitality in society, in the arena of matrimonial law and more
particularly custody or visitation, the increase in mobility has
created major problems. One of the hardest problems concerns the
removal of a child form the jurisdiction by one parent without the
consent of the other parent. It is just this issue which the
court must now confront in the case at bar. In fact in this case
the child, though only nine years old has lived with one or both
of his parents in Pakistan, the United States, Ireland and the
United Kingdom.

This present application will give the court in what it
believes is a case of first impression, a chance to address the
1980 Hague Convention on the Civil Aspects of International Child
Abduction (hereinafter “The Hague Convention”). The Hague
Convention became effective in the United States on July 1, 1988.
From that date on the Hague Convention has been in force between
the United States and other signatories. HAGUE.ASC

The Hague Convention provides for the prompt return of
children abducted to or wrongfully retained in a country when both
that country (in this case the United States) and the country of
the child’s habitual residence (in this case the United Kingdom)
are parties to the Hague Convention and for so long as the child
is under age 16 (true in this application). The obligation to
return a child, which is subject to certain limited exceptions,
applies whether or not there is an outstanding custody decree for
the child (519) and regardless of the child’s nationality. The
beauty of the Hague Convention is that if the requirements are met
the return of the child is mandatory so long as the petition is
made within one year of the wrongful retention.

In order to provide for the uniform and effective
implementation of the Hague Convention in the United States,
Congress enacted the “International Child Abduction Remedies Act”,
Pub. L. No. 100-300, 42 U.S.C. Sec. 11601 et seq. which deals
primarily with requests for the return of children from the United
States and which addresses such matters as which courts have
jurisdiction to hear return requests in the United States, venue,
the burden of proof to be met by the petitioning parent and the
respondent, and certain functions of the U.S. Central Authority.
The regulations setting out the procedures to be followed in using
the Hague Convention are contained in 22 CFR Part 94 of June 23,
1988 Federal Register. 42USC.ASC

The U.S. Central Authority under the Convention, which
provides assistance to those seeking to avail themselves of the
Convention benefits and screens incoming requests from other
countries is located in the State Department’s Bureau of Consular
Affairs. It was through a communication from this office as well
as an Order to Show Cause that the present case came to the
attention of the court.

Facts

The parties were married in 1978 in Karachi, Pakistan. Later
that year they moved to New York City. In April 1980 the child,
Nadeem Khalid Sheikh was born in the United States. In March,
1981 the child was taken to Pakistan. Defendant claims and a
later decision of a court found, that this was done without her
knowledge or consent. Defendant in turn took the child from
Pakistan, without plaintiff’s knowledge or consent. She brought
him to her relatives in Ireland. Thereafter, defendant returned
to New york for at most a few weeks. Nadeem remained in Ireland.
Both parties started various New York City Family Court
proceedings which were eventually abandoned, denied or marked off
the calendars. Defendant returned to Ireland.

Three years later in 1984 plaintiff served defendant with
papers for a divorce. Service was made in Dublin, Ireland. In
May, 1984 defendant returned to the United States with Nadeem.
Defendant did not answer the divorce papers. She claims she
thought a reconciliation was in the works. The divorce was
processed as an uncontested on July 23, 1984 with custody of
Nadeem remaining with both parties.

In the fall of 1984 defendant started proceedings to reopen
the divorce based upon lack of jurisdiction and lack of proper
service. The parties were in litigation approximately 1 1/2 years
concerning the jurisdiction, economic issues, and visitation.
Plaintiff did not see Nadeem during this time. In June, 1986, the
matters were finally resolved in an order by Judicial Hearing
Officer Joseph Imperato. Custody was not disturbed. However, the
child was to reside with defendant. Plaintiff was given only
limited supervised visitation which was to slowly increase. This
visitation was in part based upon plaintiff’s previous removal of
the child to Pakistan.

In July 1986, without the consent or knowledge of plaintiff
defendant left New York with Nadeem to settle in London, England.
She had family there. A warrant was issued from Kings County
Family Court for defendant’s arrest due to violation of the
visitation order.

In Nov 1988, after tracking defendant and Nadeem to London,
plaintiff commenced a wardship proceeding in the High Court of
Justice Family Division, Principal Registry, London. He thus
submitted himself to the jurisdiction of that court thereby
agreeing to abide by its decision. He did not commence a
proceeding pursuant to the Hague Convention even though both the
United States and the United Kingdom were signatories as of July
1, 1988.

Initially, the court committed Nadeem to the interim care and
control of plaintiff pending a hearing. Once week later on
November 10, 1988, the child was returned to the care and control
of defendant and (520) the matter was adjourned. Plaintiff then
returned to the United States. While plaintiff was in New York
the warrant of arrest for defendant under Kings County Family
Court docket No. V766/86 was vacated. Plaintiff’s application in
that court for custody was also denied due to the fact that the
courts in London where exerting jurisdiction over the matter.

The litigation resumed in London where the matter returned to
the High Court of Justice’s calendar in the middle of December,
1988. The court permitted extended visitation with Nadeem by
plaintiff over the holiday season but continued the previous
interim award of care and control being with defendant. This
visitation appears to have proceeded without problems.

A final order was rendered by the High Court of Justice on
April 26, 1989. The court ordered that Nadeem was to remain a
ward of the court in London with care and control to remain with
defendant. Plaintiff, however, would have long periods of
visitation with the child in the United States, including not less
than one month in the summer. It was at the end of this first
summer visitation that plaintiff refused to return Nadeem to the
United Kingdom and applied to this court to award him custody of
Nadeem.

As a result of plaintiff’s failure to return Nadeem, an order
has been issued form the High Court of Justice finding that
plaintiff has wrongfully retained Nadeem within the meaning of
Article 3 of the 1980 Hague Convention on the Civil Aspects
International Child Abduction.

Analysis

The court is now faced with an application by plaintiff to
enforce a 1986 custody decree of this court and thereby award him
custody due to defendant’s violation of the award of joint
custody. In response, defendant has brought an application
pursuant to the Hague Convention, for the return of Nadeem based
upon the April, 1989 order of the High Court of Justice of London.
Her contention is that Nadeem is being imporperly retained in the
United States.

The first question is whether the Hague Convention applies.
The court is faced wiht a facially valid order of a court from a
country which is a co-signatory of the Convention. Plaintiff
raises the issue, however, that since the initial decree was made
in New York and defendant violated it, the High Court of Justice’s
decree is a nullity. He argues that this court’s orders should
control.

The problem with this analysis is that plaintiff did not take
ths court’s order to the High Court of Justice to petition for
enforcement under the Hague Convention. Rather he commenced a
wardship proceeding in the High Court of Justice. He thereby
submitted himself to the jurisdiction of the foreign court so that
it could make a de novo custody award in part based upon
defendant’s actions in New York. WMH FN1 Not being satisfied
with the resluts of that strategy, palintiff cannot now come back
to this court to ask it to ignore the custody/visitation dicision
and order of a court of a Hague convention cosignatory nation
which was subsequent to the decision and order of this court.
Plaintiff’s remidies lie in the appellate procedures of the courts
fo the United Kingdom not a collateral attack in the New York
State courts.

Having determined that the High Court of Justice decree is
viable this court must now appply the dictates of the Hague
Convention to determine how the foreign decree is to be enforced.
WMH FN2 The child Nadeem is under 16 years of age thus meeting
the under 16 years of age requirment of the Hague Convention
(Article 4). Since he has live in London for over 2 1/2 years,
the United Kingdom, a signatory nation, would be the country in
which he habitually resides. WMH FN3 Thus, the Hague Convention
is applicable to Nadeem’s situation (Article 4).

Defendant has now come before this court to seek the return of
Nadeem contending that he has been wrongfully retained in the
United States. Article 3 of The Hague Convention sets forth the
guidelines in this area. It reads in full:

(521) Article 3

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.

Clearly pursuant to the April 1989 order of the High Court of
Justice Nadeem was to be returned to defendant’s care but without
the permission of defendant, plaintiff has failed to do so. In
fact, the High Court of Justice has already made a determination
that Nadeem is being wrongfully retained. This court concurs that
within the meaning of Article 3 of the Hague Convention, Nadeem is
being wrongfully detained in this country.

Once the child is declared to be wrongfully retained Article
12 and 13 of the Hague Convention dictate what procedures are to
be followed. They read in pertent part:

Article 12

Where a child has been wrongfully removed or retained in
terms of Article 3 and, at the date of the commencement
of the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a
period of less than one year has elapsed from the date
of the wrongful removal or retention, the authority
concerned shall order the return of the child
forthwith….

Article 13

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–

(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.

The judicial or administrative authority may also refuse
to order the return of the child if it 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.

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.

Since Nadeem has been retained in the United States for less
than one year unless an exception under Article 13 applies, this
court must order the return of Nadeem forthwith (Article 12).

Plaintiff seeks to avoid Nadeem’s return to the United Kingdom
by claiming that the exceptiosn contained in subsection (b) and
the next unlettered paragraph of Article 13 apply. Specifically,
he argues that there is a grave risk that Nadeem’s return would
expose him to physical or psychological harm or otherwise place
him in a intolerable situation and that Nadeem, who is of suitable
age, objects to the return.

The court notes that a finding that an exception under Art.
13(b) exists must be based upon clear and convincning evidence (42
U.S.C. Sec 11603(4)(2)). The court interviewed Nadeem in camera.
Nothing in that interview or in the papers presented to the court
on plaintiff’s motion or in plaintiff’s offer of proof indicated
taht Nadeem’s return to the United Kingdom would pose a grave risk
of exposure to physical or psychological harm or that he would be
placed in an intolerable situation.

In addition, this court finds that Nadeem has not attained an
age and degree of maturity to warrant this court to take account
of his views so as to avoid his return (522) to London. He is
only 9 years old. The in camera interview revealed that Nadeem
did prefer to stay in the United States. However, this appeared
to be very much the result of his being wooed by his father during
the vistation. Given Nadeem’s age and maturity, this reaction to
the summer vacation is to be expected.

Therefore, the exceptions to mandatory return contained in
Article 13 do not apply to this case. Pursuant to Article 13
since Nadeem has been wrongfully retained for less than one year
he must be returned to the United Kingdom. The court notes,
however, that it is not making a determination on custody. The
Hague Convention does not permit such a determination at this
stage (See Article 16). In fact Article 19 specifically states:

Article 19

A decision under this Convention concerning the return
of the child shall not be taken to be a determination on
the merits of any custody issue.

The custody issue is now for the courts of the United Kingdom
to address. Therefore, it is ordered that plaintiff’s appliation
is denied in its entirety and the child is to be returned to the
United Kingdom under defendant’s care. The issues of cost and
counsel fees are reserved for future determination by the court
upon the submission of papers.

WMH Footnoes
——————–

1. This also could be considered as an acquiescence by the
father to the removal of the child by the mother. See Art.
13(a).

2. Strictly speaking The Convention does not enforce orders of
a contracting state, notwithstanding the language of the
preamble. The Convention rather is a forum determinative
process and its goal is to return the child to its Habitual
Residence so the courts of that country may resolve the
merits of the custody/visitation dispute.

3. Again, the child was in London with at least the tacit
consent of the father.