The opinion of the court was delivered by: ALLYNE R. ROSS
Ross, United States Magistrate:
By papers filed July 3, 1991, petitioner, Klaus Klam, a German citizen, petitioned the court for "a warrant in lieu of writ of habeas corpus," presumably a request that the court, as a provisional remedy, "arrest" his minor children, Philip and Kristina, who were then living with their mother, respondent, Renate Klam, in East Hampton, Long Island, New York, so that they could be brought before the court for proceedings pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) (51 Fed. Reg. 10490) and its implementing legislation, the International Child Abduction Remedies Act (ICARA) (42 U.S.C. § 11601 et seq.). The Convention and ICARA provide a procedure for securing the return to their country of residence children who have been abducted or wrongfully retained outside that country. By order filed July 24, 1991, Judge Korman denied the application without prejudice, and judgment was entered accordingly, on July 26, 1991.
Nine months later, on April 24, 1992, petitioner refiled the identical papers in support of the identical request, except this time purporting to serve respondent by mailing the petition to Caleca & Towner, Esqs., asserted to be "Attorneys for Respondent." Judge Korman has referred for report and recommendation this most recent petition and request for provisional relief. For the following reasons, I recommend that the application for a warrant be denied.
The petition and appended declaration (Ex. E to the petition) allege that petitioner and respondent, Klaus and Renate Klam, were married in Berlin, Germany on September 18, 1992, separated in East Hampton, New York on September 13, 1990 and are the parents of two children, Philip and Kristina, born February 7, 1983 and January 4, 1985, respectively. The petition alleges, without further support or elaboration: that "Philip Klam and Kristina Klam are being illegally held in custody, confinement or restraint by Renate Klam at 81 Dunemere Lane, East Hampton, County of Suffolk, State of New York" (P 4); that "as of December 1990, the respondent wrongfully detained the children within the meaning of Article 3 of the Convention and has since failed to return the children to petitioner or their habitual residence in Germany" (P 6); and that "petitioner believes that the children will be carried out of the jurisdiction of the Court or will suffer irreparable injury unless a warrant is issued" (P 2).
The petition also appends (as Ex. B) and makes extensive reference to the decision of Justice John Dunn, Supreme Court of the State of New York, County of Suffolk, dated June 14, 1991 in Renate Klam v. Klaus Klam, Index No. 18827-90. In that case, Renate Klam had brought suit for divorce against Klaus Klam and, according to the declaration (Ex. E at P 3), also sought custody of the children. Klaus moved to dismiss the action, asserting absence of jurisdiction on the ground that Renate failed to meet the one year residency requirement in New York State required by N. Y. Dom. Rel. Law § 230(3) (McKinneys 1986) prior to commencing the matrimonial action.
Justice Dunn agreed and dismissed the suit. In so doing, he made various factual findings, some of which are noted in the petition, including, inter alia: that both Renate and Klaus Klam are German citizens; that Klaus purchased a residence in East Hampton, New York, in 1983, to provide a home base permitting Renate to join him on business trips to the New York area; that Renate's visit to Germany from September of 1989 until May of 1990 constituted objective evidence that she was reasserting her German residence; and that during a period that Klaus Klam was incarcerated in connection with Renate's bringing of criminal charges against him, Renate "invaded" Klaus's Swiss bank account by making certain misrepresentations to bank officials.
Also referred to in the petition (and annexed as Ex. C) is what petitioner purports to be excerpts from an affidavit submitted by Renate in the divorce action. Among the highly truncated excerpts listed on the exhibit, Renate is alleged to have attested: "I have been forced to sell books in violation of the Court's Order simply to exist . . .".
Finally, referred to in the petition (and annexed as Ex. B) is a July 3, 1991 letter from John Markey, Cousular Officer, Child Custody Unit, Office of Citizens Consular Services of the Department of State, advising that, under the Convention, the German Central Authority had submitted an application on behalf of Klaus Klam for the return of the two children; and that Ronald Sussman, Esq., representing Mr. Klam, would provide the court with "documentation received from the German Central Authority." No such documentation has been submitted.
In the declaration annexed to the petition (Ex. E), petitioner's attorneys advise (at P 3) that petitioner is a party to a custody proceeding pending in Berlin, Germany -- Klaus Klam v. Renate Klam. The declaration does not recite any details concerning the status of that proceeding.
On April 28, 1992, four days after the filing of the most recent petition, Andrew Towner, Esq. of Caleca & Towner, on whom Sussman served the petition purportedly as attorneys for respondent, wrote to Sussman with a copy to the court. Towner advised that he had "not been retained" and is "not authorized to represent Renate Klam in this matter." Accordingly, he asserted: "I am not authorized to accept service on this matter on behalf of Mrs. Klam at this time." Towner also reminded Sussman that, as he had previously advised, the court in the German custody litigation had "issued a decision dated October 2, 1991 denying Mr. Klam's motion for custody and held that the status quo (custody with Mrs. Klam) will remain in effect pending a final determination of the action." Petitioner did not respond to this letter, nor has he provided the court with any evidence that service of the petition has been effected by any additional means.
The Convention and its implementing legislation, ICARA, were designed "to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence. . . " 51 Fed. Reg. 10498 (1986). Under Article 3 of the Convention, "wrongful removal" is defined as "the removal or the retention of a child in breach of the rights of custody attributed to a person under the law of the State in which the child was habitually a resident . . . providing that at the time of removal those rights were being actually exercised." While the ultimate merits of the custody issue are not adjudicated in proceedings pursuant to the Convention and ICARA, which are limited, rather, to the determination of whether the child was wrongfully retained or abducted (42 U.S.C. § 11601(4), 51 Fed. Reg. 10500 , Article 19), petitioner must establish that the removal or retention was "wrongful," meaning in breach of the law of the child's habitual residence -- here, assertedly Germany. 42 U.S.C. § 11603(e)(1)(A), 51 Fed. Reg. 10497, Article 3.
To prevail in an ICARA proceeding, a petitioner must prove by a preponderance of the evidence that the child has been "wrongfully removed or retained within the meaning of the Convention" (51 Fed. Reg. 10499, Article 3, 5), and the respondent bears the burden of proving exceptions under the convention. 42 U.S.C. § 11603(e); 51 Fed Reg. 10499, Article 12, 13; 51 Fed. Reg. 10500, Article 20. One such exception concerns petitions brought more than one year after the child was assertedly illegally removed or retained, as is the case here. In those circumstances, if respondent establishes that the child is settled in the current ...