Case Update (8 January 2024): Tereshchenko v. Karimi; two children, removed from Ukraine, are returned to father in France
The parties are Ukrainian and the divorced parents of 2 children. They negotiated a custody agreement in May 2019 for the children to reside with their Mother and maternal grandmother in Odesa, with their Father having at least 7 days per month access and the ability to “freely visit” the children and participate in their upbringing. Shortly thereafter, the Mother began traveling, “spending more than half of her time away from Odesa”, so the “children came to live with their Father and his mother.” On October 11, 2021, “the Children’s Service of Odesa City Council determined that the children were to reside with their Father in Odesa.” “Shortly after the ruling had awarded custody to the children’s Father, the Mother abducted the children and took them to an undisclosed location in Odesa” and “[i]t would be almost two years before the Father was able to visit his children again.” After Russia invaded Ukraine, the Mother phoned the Father and sought the children’s travel documents so she could remove the children from the country. The Father, who was out of the country, had a representative deliver the documents to the Mother, “but asked that the children be brought to him in Dubai, where he had a home. That did not happen.” After this, the Mother took the children to Poland on March 2, 2022, then to the Netherlands, and then to Spain. On July 11, 2022, she brought them to the United States as part of DHS’s “Uniting for Ukraine” program. She did not inform the Father where the children were. The Father located the children with the assistance of the State Department in March 2023 in New York, and promptly filed a petition to return the children pursuant to the Hague Abduction Convention. A custody case was ongoing in Ukraine, and, on November 21, 2023, the Ukrainian court issued its decision, ordering the children to reside with their Father. The Mother has appealed that order (an appeal having the effect of staying the trial court’s order). Apparently, during the course of the litigation in the NY court, the Mother agreed to abide by the decision of the trial court in Ukraine.
The Mother raised 4 separate exceptions to returning the children. In her Answer, she argued articles 13b and 20, and in a motion in limine, filed on January 1, 2024, she argued articles 13 and 13a. On the eve of the hearing, she also argued article 12 - that the children are now settled. The Mother argued 13b on the basis that it would expose the children to a grave risk of harm to return them to Ukraine because of the war. The Father, however, represented that, if required, he would move with the children to western Ukraine, outside of the zone of combat. The court, citing an English case, found that the Father’s suggested move defeated any article 13b argument. The court also rejected Mother’s other argued exceptions, and also granted a motion in limine to prevent some arguments made too proximate to trial.
At the time of trial, the Father was residing in France, not Ukraine. The Mother argued that Father may only seek the return of the children to Ukraine, their habitual residence. The court stated, “[w]hen a petitioner has succeeded in his claim, it may be appropriate to restore the children to him at his current residence even when that residence is not in the country that was the children’s habitual residence. In the circumstances that exist here, that is certainly appropriate.” While various court cases, and the Convention’s preamble, specifically reference returning a child to their habitual residence, “[n]one of these cases, however, addressed whether a court, in ordering the return of a child to a parent, may order that the return be to a parent’s current abode in a third country. And, apart from the Preamble, no other provision of the Convention refers to the return of the child to the state where they were once habitually resident.” The court cited to an English case confirming return of a child to a third country, and to the Perez-Vera (Explanatory) report, which specifically notes that the drafters did not specifically require in the Convention that a child must always be returned to their habitual residence, as it might create practical problems. Further, the State Department has stated, “[i]f the petitioner has moved from the child’s State of habitual residence the child will be returned to the petitioner, not the State of habitual residence.” (Pub. Not. 957, 51 Fed. Reg. at 10511).
On January 18, 2024, the district court denied Mother’s request for a stay pending appeal (but for to give her a 3 day administrative stay to allow her to seek a stay from the Second Circuit).
