Case Update (30 Oct 2024): Dashti v. Long; Petition to Return Child to Greece Dismissed for Failure to State Claim of a Right of Custody under Greek Law
The parties are unmarried parents to one child, born in 2019. The child is a U.S. citizen. The Respondent Mother traveled with the child to Florida in March 2020, and were unable to return to Greece until December 2020. The family took a vacation around Europe in December 2022, and, at the end, Respondent Mother returned to the USA with the Child. The Respondent Mother then returned to Greece with the Child in December 2023. On January 9, 2024, the Respondent Mother called a friend to notify them that she and the Child were being held against their will in Greece by Petitioner. Petitioner was arrested by the police, and released on January 13, 2024, at which time he discovered that the Respondent and Child had left, and were ultimately residing together in the Northern District of New York. On July 20, 204, Petitioner Father filed a request seeking the Child’s return to Greece pursuant to the Hague Abduction Convention. On September 6, 2024, the Respondent Mother filed a Motion to Dismiss the petition for lack of subject matter jurisdiction and for failure to state a claim pursuant to FRCP 12(b)(1). The parties briefed the issue, and the Court decided the Motion without oral argument, dismissing the case.
Respondent’s first argument was that the Petitioner was a refugee from Iran, living in Greece, and is not a citizen of a country whose accession to the Convention the USA has recognized. The court rejected this argument, concluding that the Convention does not “contemplate the citizenship of the applicant, or the petitioner.” Respondent’s second argument was that Petitioner’s request fails to state a claim upon which relief can be granted, specifically that it did not make out a prima facie case for the Petitioner having a right of custody under Greek law. The court noted that the Petitioner asserted that under Article 1515 of the Greek Civil Code, he enjoyed custody of the child as of March 2019. The court reviewed the Greek Civil Code, and concluded that he did not have “custody” of the Child, and “to the extent that Greek Civil Code is applicable given the petitioner’s immigration status, Article 1515 does not vest petitioner with custody of [the Child] at the time of the child’s removal from Greece.” The court read the Civil Code provision to say that the parental care of a child born outside of wedlock belongs to the mother, and while the father may “partake” in parental care, he can only exercise that parental care “if the mother’s parental care has ceased or if the mother cannot exercise it on legal or factual grounds.” Petitioner asserted that the parties were not married at the time of the child’s birth, and have never been married. He also did not assert that Respondent ceased or “became unable to exercise her parental care”.
Not germane to the court’s decision, the Court chose to pen a final paragraph that says, Petitioner “is asking this Court to send [the Child] to Greece, where neither petitioner nor [the Child] are citizens.” The Child and his Mother are U.S. citizens, with the Father being Iranian, living in Greece as a refugee. The court went further, saying, “it is unclear how justice would be served by ordering a minor child to be sent to a country where neither he nor his father are citizens. Especially where, as here, his father was not his custodial parent under Greek law. Nor is it clear how the purpose of ICARA, and by extension the Hague Convention, would be served by ordering the return of a minor child from his mother to a father who was in jail at the time of his alleged removal.” This added paragraph doesn’t relate to the underlying legal arguments. In the United States, under the UCCJEA, a child’s citizenship is not the legal basis for a court to assume custody jurisdiction. It is unclear the legal basis for a Greek court to do so, but certainly if a Greek court had custody jurisdiction, and decided custody, it should, hopefully, account for the family’s immigration status and any apparent jail time. In that regard, the immigration status is germane not to the Abduction Convention or even custody jurisdiction analyses, but the best interest of the child (step 3, presumably).
