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CROLL v. CROLL

October 19, 1999

STEPHEN HALLADAY CROLL, PETITIONER,
v.
MEI YEE CROLL, RESPONDENT.



The opinion of the court was delivered by: Stein, District Judge.

  OPINION & ORDER

This action was brought pursuant to the Convention on the Civil Aspects of International Child Abduction entered into at The Hague in 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 ("Hague Convention" or "Convention") and implemented in the United States by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Petitioner seeks an order directing his former wife to return their minor child to Hong Kong, her "habitual residence." Respondent has moved pursuant to Fed.R.Civ.P. 12(b) to dismiss the petition on the grounds that this Court lacks subject matter jurisdiction and the petition fails to state a claim for relief. Pursuant to the mandate for expedition set forth in the Convention, see Art. 11, on June 30, 1999 and July 6, 1999, this Court heard argument and received evidence relating to petitioner's application and respondent's motion. For the reasons set forth below, this Court finds that it has jurisdiction over this matter and that an order of return is justified.

BACKGROUND

Stephen Halladay Croll and Mei Yee Croll were married in Hong Kong in 1982. (Tr. at 31).*fn1 In 1990, their daughter Christina was born in Hong Kong, where she lived with both parents until they separated in early 1998. (Tr. at 31-32, 46). Thereafter, Christina continued living with her mother in Hong Kong (Tr. at 109); her father, who also continued to live there, visited her regularly. (Tr. at 36). Mr. Croll testified that he saw Christina approximately two to three times each week and accompanied her to after-school activities. (Tr. at 36-37). Ms. Croll testified that Mr. Croll saw Christina approximately two times each month. (Tr. at 112).

Because all of her grandparents live in the United States, Christina has visited the United States on several occasions, usually for a few weeks during the summertime and during school holidays. (Tr. at 46-48, 66).

Sometime in 1998, Mr. Croll commenced a divorce action in the District Court of Hong Kong, Special Administrative Region, Matrimonial Causes. (Tr. at 33). Ms. Croll did not take part in that proceeding, and the parties dispute whether Ms. Croll ever received legally sufficient notice of its pendency. (Tr. at 35-36). On February 23, 1999, the Hong Kong court issued an interim order granting Ms. Croll "custody, care and control" of Christina, and granting Mr. Croll "reasonable access" to Christina. See Pet. Exh. 2. The order also directs that Christina

  be not removed from Hong Kong without leave until she
  attains the age of 18 years but provided that if
  either parent to [sic] give a general undertaking to
  the Court to return the said child to Hong Kong when
  called upon to do so, and unless otherwise directed
  with the written consent of the other parent, that
  parent may remove the said child from Hong Kong for
  any period specified in such written consent.

In addition, the order permitted either parent to request that the immigration department of Hong Kong not issue a passport for Christina to go abroad without that parent's consent. The February 23, 1999 order provides that it is to become final in six weeks unless cause is shown otherwise. Ms. Croll claims not to have had any actual notice of that order prior to the commencement of this Hague Convention action. (Tr. at 113-14). On May 3, 1999, the Hong Kong court issued an order requiring Mr. Croll to pay U.S. $1,000 per month to Ms. Croll for child support.

Mr. Croll testified that after he returned to Hong Kong from a business trip on April 7, 1999, he went to pick up Christina from her school, but was told by Christina's teacher that his daughter had not been in class for two days.*fn2 (Tr. at 37). Mr. Croll then went to Ms. Croll's apartment; not only did he find it empty of all furniture, but the housekeeper informed him that Christina and her mother had "left."*fn3 (Tr. at 37-38). Mr. Croll deduced from that statement that they had gone to the United States. (Tr. at 38). According to Mr. Croll, he called Ms. Croll's parents in New York several times in an attempt to locate Christina, but his calls went unanswered. (Id.). On April 22 Mr. Croll, on the advice of his attorney, filed a missing person report with the police in Hong Kong. (Tr. at 14-15, 40, 53). Shortly thereafter, he retained U.S. counsel and filed this application pursuant to the Hague Convention.

At the evidentiary hearing on the petition, Ms. Croll testified that she and Christina arrived in the United States on April 2, (Tr. at 63), and that Mr. Croll had previously consented to her relocating to the United States with Christina. (Tr. at 65, 115-16). Mr. Croll, however, denied having done so, although he concedes that he and his ex-wife did discuss this possibility before they separated. (Tr. at 36, 38, 48). According to Ms. Croll, she arrived in New York with the intention of having Christina interview at schools here and, if Christina were admitted, having her attend school for a few weeks for a "tryout period," and then return to Hong Kong for the summer, and arrive back in New York this coming fall. (Tr. at 63, 68-69). Ms. Croll testified that she and Christina had purchased return airplane tickets to Hong Kong for June 10, 1999. (Tr. at 69).

After arriving in New York, however, she discovered that her ex-husband had terminated the lease to the Hong Kong apartment where she had been living with Christina and had a warrant issued for her arrest upon her return to Hong Kong. As a result, she decided to remain in New York. (Tr. at 69-70, 85-87). On cross-examination, however, Ms. Croll did concede that "[i]n the back of [her] mind" she had the intention of permanently remaining in the U.S. when she arrived here on April 2. (Tr. at 127). Mr. Croll denies that he took steps to have any warrant issued for Ms. Croll's arrest. (Tr. at 42).

On April 8, 1999, Ms. Croll commenced at least one action seeking orders of protection, custody, and support in New York State court (Tr. at 88); those proceedings have been stayed pending the outcome of this action.

DISCUSSION

The Hague Convention was adopted by signatory nations "to protect children internationally 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." Hague Convention, Preamble. On September 1, 1997, the Convention entered into force between the United States and Hong Kong. The Convention prohibits a court where a petition is brought from ruling on the merits of the underlying custody dispute. See 42 U.S.C. § 11601(b)(4); Convention Arts. 16, 19. Those matters are reserved for the courts of the child's habitual residence, which are presumptively best able to determine and assess what is in the child's best interest. See Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir. 1999) (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (Friedrich I)).; Ciotola v. Fiocca, 86 Ohio Misc.2d 24, 684 N.E.2d 763, 769-70 (1997). This Court's duty pursuant to the Convention is to determine whether Christina has been wrongfully removed from the country of her habitual ...


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