Case Update (16 May 2022): Dumitrascu v. Dumitrascu; 10th Circuit affirms habitual residence finding

Abduction

May 31

On May 16, 2022, the 10th Circuit affirmed the trial court's finding that Romania, and not the United States, was the minor child's habitual residence. On September 15, 2021, the U.S. District Court in Colorado ordered the minor child returned to Romania under the Hague Abduction Convention. Despite a request to stay the return order pending appeal, the court did not stay it. The primary issue at trial, and on appeal, revolves around the minor child's habitual residence, which, under Monasky v. Taglieri, is a factual determination only to be disturbed upon a finding of clear error.

The case itself involves two parents who agreed to travel to Romania in August 2019 to give birth to the child. Apparently, at the point in time of their travel, they "intended to return to the United States at some point to raise the child." The child was born on September 4, 2019 in Romania, and lived there for about 10 months before traveling to Colorado with her father. During those 10 months, their "plan for the future diverged." Violeta, the child's mother, got a job, her U.S. green card expired, her application for an extension was denied, and she developed reservations about returning to the U.S. The coupled also applied to a Romanian program to assist young families in buying their first home. Alin, the child's father, however, intended for the family to return to the U.S., and so he got Violeta's permission for the child to travel with him to the U.S., so he could obtain the child's U.S. social security card, and to work on "getting Violeta a green card, to bring her over to the United States, and to earn money through a job." Violeta signed an affidavit that consented for the child to travel to the U.S. from July 6, 2020 until December 31, 2020. When Alin got to the U.S., he did not help Violeta apply for a green card, and did not return by the December 31st deadline.

Alin's argument revolves around intent. He had a steadfast intent to always return to the U.S., and Violeta's intent evolved while in Romania. The 10th Circuit, however, said that Violeta's intent to return to the U.S. was only if they were to return "as a family," and she never shared Alin's intent to be in the U.S. if they were to live apart.

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/