Case Update (23 Dec 2024): Yuriiovych v. Hryhorivna; Montana court returns child to western Ukraine under Abduction Convention

The parties are parents to one child, born in Ukraine in June 2021. The family is Ukrainian. After Russia invaded Ukraine, the Respondent Mother and child, at times, relocated to Moldova or Western Ukraine, with the agreement of the Petitioner Father. In July 2023, Respondent applied for the Uniting for Ukraine Program, which would allow her and the child to temporarily stay in the United States. Her Mother and Sister had already moved to the USA in late 2022. On August 27, 2023, over Petitioner Father’s objection, Respondent took the child to the USA. The parties were divorced in Ukraine on November 10, 2023, but the custody proceeding that had been opened in Ukraine was closed without decision in light of the child’s absence from the jurisdiction. Petitioner Father proved, by a preponderance of the evidence, that the child had been wrongfully removed from Ukraine and retained in Montana. The only issue before the court was whether returning the child to Ukraine would expose the child to a grave risk of harm, and whether there were any ameliorative measures (a la Golan v. Saada) that would permit the return.

The court provided a brief history of the conflict in Ukraine starting with the incursion in February 2022. It provided an update that “Russia is not following international law as it relates to the conduct of war” and noted that “Russia has engaged in mass executions, torture, and kidnapping” and “has also deployed approximately 2 million landmines in eastern Ukraine”. It then outlined that western Ukraine is not immune, experiencing air strikes, and attempts to take out infrastructure, including energy supplies used to heat cities in the cold winter. The court noted the expense related to defending against air strikes, and the need for foreign assistance. It then stated that “Mike Johnson, the Speaker of the United States House of Representatives, has explicitly stated that Congress will not approve further aid, and President-Elect Trump has not contradicted that position.” It noted the conscription age for men in Ukraine may be lowered from 25 to 18, and that Respondent has stated, but did not present evidence, that certain women in specialized fields are also conscripted, and, as a dentist, she would be subject to conscription if returned. The court also noted that, as of October 2024, the U.S. Department of State issued a Level 4 advisory for travel to Ukraine, although noting that some regions have lower risk.

The District Court looked at what other courts in other countries have been doing in terms of applying the grave risk of harm exception to the war in Ukraine. The court drew certain conclusions on the exception’s application. First, “the mere fact a war is ongoing in Ukraine does not, by itself, trigger Article 13(b).” (referred to Kosenkov v. Kosenkova 2024 ONSC 3807). Second, the court “must focus on ‘what risk [a child] w[ould] face in the part of the county [she] will return to and whether that will imperil [her] unacceptably.” (referred to In re Z & X, 2023 EWHC 602). Third, the risk that the child faces must be considered until such time as the Ukrainian courts “make long term welfare decisions for him.” (referred to Re N, 2024 EWHC 871).

“In this nuanced assessment, courts have found that return to certain cities or eastern Ukraine poses a grave risk.” (citing to, among other cases, Tereshchenko - see below). “Court have also found ‘grave risk’ when the return location is near a strategic installation, such as power plants or ports.” “And, in assessing the propriety of return to specific localities, courts have considered not only acts of active aggression - i.e., missile strikes or invasion - but also the functionality of the court systems and the provision of social services in the area.” The court noted that it must not consider certain things in its analysis: whether the child has grown accustomed to their new home, speculation on where a child would be happiest, who might be a better parent, where money may be in short supply, and where educational opportunities are more limited.

The court then noted that it has the discretion, pursuant to Golan v. Saada, to consider ameliorative measures “that could ensure the child’s safe return” so long as it prioritizes the child’s safety, does not usurp the role of the custody court, and avoids undue delay. The Respondent demonstrated, by clear and convincing evidence, that returning the child to Odesa would expose the child to a grave risk.  The Petitioner then proposed an ameliorative measure - returning the child to an alternative location.  The court concluded  that returning the child to another part of Ukraine, specifically Chernivtsi, is an appropriate ameliorative measure that mitigates the risk and serves the Convention’s purposes. The Petitioner has noted that he would uproot his life and move to Chernivtsi and remain there until a resolution of the underlying custody case.

Finally, the Respondent made some argument that it would present an intolerable situation to her and the child, as beneficiaries under the Uniting for Ukraine parole status, to be forced to leave, and reapply and risk not being able to return to the U.S. if needed. She equated this to the arguments made by a dissenting judge in Salame v. Tescari in the 6th Circuit. The court concluded that her situation was not akin to asylum.

Note that a U.S. District Court in the Southern District of NY returned a child, albeit to France, in January 2024, and it was affirmed by the U.S. Court of Appeals for the 2nd Circuit. You can read more about Tereshchenko v. Karimi here.