Case Update (22 June 2023): Lomanto v. Agbelusi; 14 year old was mature and objected and it would present psychological harm to separate siblings; children were now settled in NY

The parties are parents to two children born in Spain, where they had met and lived together on and off. The oldest child was born in late 2008, and was 14 years old at the time of trial. The youngest child was born in Fall 2016, and was age 6 at the time of trial. Respondent Mother conceded that she had wrongfully retained the children in New York. After his oldest son told him that they would be remaining in New York on or about August 24 or 25, 2021, Petitioner filed a police report on August 25, 2021, and subsequently filed a legal proceeding in Spain. Respondent participated, with counsel, in the Spanish custody proceedings and argued that New York provided better economic prospects and opportunities for the children. She did not levy allegations of abuse against Petitioner during these proceedings. On September 29, 2021, the Spanish court issued an order and required Respondent to return the children to their habitual residence of Spain. On October 1, 2021, Respondent texted Petitioner and told him she was "organizing" the children's return to Spain. But, in mid-October, she cut off all contact between children and their father and filed an unsuccessful appeal in the Spanish courts. In April 2022, during the appeals process, Respondent alleged that Petitioner mistreated and threatened her and she left to "save herself and her children..." On August 26, 2022, Petitioner filed his Hague Abduction Convention return petition in federal court in New York.

Respondent argued that a return should be denied because it would expose the children to a grave risk of harm, that the children were mature and objected, and that the children were now settled. The court appointed lawyers for the children, and several experts testified in trial, including a forensic psychologist, who concluded that the oldest child was mature and objected (but the youngest child was influenced by his surroundings). Both children were enrolled in school and doing well, participating in activities, partaking in church, engaging with friends, and, all around, faring better than they had been in Spain (according to evidence from the schools). While the children did not have legal status in the United States, there appeared no threat to remove them. In addition to the various experts, the court conducted in camera interviews with the transcript sealed. The court also agreed that the oldest child was mature, and that the children had a strong bond that, if severed, would present psychological harm to them. The court heard from an expert who evaluated the respondent and concluded that she had been in a relationship punctuated by intimate partner violence, and that she exhibited symptoms of PTSD. The court likewise found her "detailed, consistent, and unique" testimony of events credible. The court concluded that the children were not in danger with Petitioner, as the forensic found no evidence of abuse by the father against the children, and both children seemed to want to maintain a relationship with their father. The court likewise found that Respondent was not harmful to the children, despite a physical altercation between mother and oldest son. The Petitioner had been attempting to argue that her abuse of the children meant they could not be settled in NY. The court found the children were not unduly influenced by their mother and not parroting her views.

The court found that Petitioner filed his petition more than one year from the date of the wrongful retention (August 24, 2021, petition filed on August 26, 2022). The lynchpin was the filing of his police report in Spain on August 25, 2021 that clearly stated, under oath that he considered the children to have been kidnapped.

The court made a special note of some significant discovery disputes, but indicated it erred on the side of permitting certain of petitioner's evidence, despite his not adhering to the FRCP. The one problematic piece of evidence was the full video of the Spanish proceeding, which he refused to produce timely during discovery, and not until the trial was nearly complete.

The Petitioner's request to return the children was denied based on the mature older child objecting, the psychological harm of separating the siblings, and the children being now settled. A footnote in the opinion referenced an ongoing Spanish custody proceeding during the pendency of the Hague Abduction Convention matter. It is unclear if the case that yielded the order mandating the children's return kept moving forward, and what, if any order may be handed down in those proceedings, and whether that order can, would, and should be enforced in a New York family court.