(1) operation of law; (2) a judicial or administrative decision;
or (3) an agreement having legal effect under the law of that
State. Convention Art. 3. Whether a parent was exercising lawful
custody rights over a child at the time of removal must be
determined pursuant to the law of the child's habitual residence.
See Convention Art. 3; Friedrich I, 983 F.2d at 1402.
In support of his claim that he has a right of custody within
the meaning of the Convention, Mr. Croll relies on the interim
order issued by the Hong Kong court on February 23 which provides
that Christina may not be removed from Hong Kong before her 18th
birthday without either leave of court or the written consent of
the other parent. Ms. Croll, on the other hand, contends that
that order on its face simply provided Mr. Croll with a right of
access to Christina, and not a right of custody and, therefore,
the petition must be denied.
The right to determine a child's place of residence is
tantamount to a "right of custody" within the meaning of the
Convention. See Convention Art. 5. Although there is a dearth
of federal case authority, several courts have held that a
provision restricting a custodial parent's right to remove a
child from a geographical area vests the non-custodial parent
with a "right of custody" within the meaning of the Convention.
See, e.g., Janakakis-Kostun v. Janakakis, ___ S.W.3d ___, ___,
No. 98-0259, 1999 WL 153369, at 5 (Ky. Mar. 19, 1999) (temporary
order granting custody to respondent and prohibiting removal of
child from Greece gave petitioner a right of custody within the
meaning of the Convention); David S. v. Zamira S., 151 Misc.2d 630,
635, 574 N.Y.S.2d 429, 432 (1991) (relying in part on
respondent's contemptuous conduct in removing children in
violation of order prohibiting removal of the children from
Ontario in deciding that petitioner had a right of custody within
the meaning of the Convention); B v. B., 3 W.L.R. 865
(U.K.Ct.App. 1993)*fn4 (granting order for return of child where
court had a right of custody by virtue of an interim custody
order prohibiting custodial parent from removing child from
Ontario); C v. C, 1 W.L.R. 654 (U.K.Ct.App. 1989) (providing
that "right to give or withhold consent to any removal of the
child from Australia, coupled with the implicit right to impose
conditions, is a right to determine the child's place of
residence, and thus a right of custody within the meaning of arts
3 and 5 of the convention"); Re H., 2 F.L.R. 439 (U.K.Fam.Ct.
1990) (removing child from Ontario in violation of order granting
respondent interim custody and prohibiting removal of child from
Ontario without leave of court was in breach of respondent's
rights of custody and wrongful within meaning of Convention).
As set forth above, the Hong Kong order dated February 23, 1999
provides that Christina may not be removed from Hong Kong before
her 18th birthday without either leave of court or both parents'
consent. Accordingly, this Court determines that Mr. Croll had a
right, along with respondent, to determine Christina's place of
residence and he had a corresponding right of custody within the
meaning of the Convention. Christina's removal from Hong Kong —
her habitual residence — was in violation of her father's right
of custody and was, therefore, wrongful pursuant to the
Ms. Croll urges that even if this Court were to determine that
her former husband has a right of custody pursuant to the
Convention, an order directing that
Christina be returned to Hong Kong should not issue because (1)
Mr. Croll was not exercising his right of custody at the time of
Christina's removal; (2) Mr. Croll consented to Christina's
removal; and (3) returning Christina to Hong Kong would place
Christina at grave risk of harm. All of these exceptions to the
Convention are to be narrowly construed in order not to frustrate
the objectives of the Convention. See 42 U.S.C. § 11601(a)(4).
A. Exercise of Custody Right
Ms. Croll claims that even if Mr. Croll had a "right of
custody" within the meaning of the Convention, he failed to
exercise that right and, thus, an order of return should not
issue. See Convention Art. 3(b). Ms. Croll has the burden of
establishing this defense by a preponderance of the evidence.
42 U.S.C. § 11603(e)(2)(B). Absent evidence that
constitute[s] clear and unequivocal abandonment of
the child [,] [o]nce [the court] determines that the
parent exercised custody rights in any manner, the
court should stop — completely avoiding the question
whether the parent exercised the custody rights well
or badly. These matters go to the merits of the
custody dispute and are, therefore, beyond the
subject matter jurisdiction of the federal courts.
Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)
(Friedrich II); see also Freier v. Freier, 969 F. Supp. 436, 441
(E.D.Mich. 1996); Sampson v. Sampson, 267 Kan. 175,
975 P.2d 1211, 1218 (1999).
Despite the parties' disagreement regarding the frequency of
Mr. Croll's visits with Christina, he was exercising his right of
custody at the time that Christina was removed from Hong Kong.
Even if this Court were to credit Ms. Croll's testimony and
assume that Mr. Croll visited Christina only twice per month,
this evidence would be sufficient to find that Mr. Croll had not
abandoned Christina and, thus, was exercising his right of
custody prior to Christina's leaving Hong Kong. See, e.g.,
Sampson, 975 P.2d at 1217-18. Consequently, petitioner has not
relinquished his right of custody by failing to exercise that
Ms. Croll also contends that Mr. Croll consented to her taking
Christina to the United States to live. To establish this
defense, Ms. Croll must show, by a preponderance of the evidence,
that Mr. Croll consented to or subsequently acquiesced in the
removal of Christina from Hong Kong. 42 U.S.C. § 11603(e)(2)(B);
see Friedrich II, 78 F.3d at 1069.
First, Ms. Croll claims that because her former husband never
exercised his right under the Hong Kong interim order to request
that the immigration department not issue Christina a passport
without his consent, he impliedly consented to Christina's
removal from Hong Kong. That argument is not persuasive. Krishna
v. Krishna, No. 97-0021, 1997 WL 195439, at 4 (N.D.Cal. Apr. 11,
1997), on which respondent relies, is distinguishable. In that
case, the court found that Mr. Krishna "freely provided" Ms.
Krishna with their child's passport after Mr. Krishna spoke with
one of Ms. Krishna's relatives in the United States who informed
him of Ms. Krishna's intention to come to the United States. No
such facts are present here.
In this case, Ms. Croll testified that she had always had
control of Christina's passport. (Tr. at 66). Moreover, Mr. Croll
testified that he never requested Christina's passport from Ms.
Croll nor requested that the immigration department not issue
Christina a passport because he had no reason to believe that
Christina would be taken abroad without his knowledge and
consent. (Tr. at 52-53). Mr. Croll's failure to avail himself of
the protections afforded by the February 23 order, while perhaps
imprudent in hindsight, does not establish by a preponderance of
the evidence that Mr. Croll impliedly
consented to Christina's removal from Hong Kong.
Moreover, although both parties testified that prior to
separating they had discussed relocating to the United States,
these discussions are irrelevant to the issue of whether
Christina's father consented to her relocation to the United
States subsequent to the separation. While Ms. Croll testified
that she and Mr. Croll had several "casual discussions" after
they separated about Christina moving with her to the United
States, Ms. Croll could only recall one such conversation in any
detail. (Tr. at 116-17). Specifically, on March 2, 1999, Mr.
Croll allegedly agreed that it would be beneficial for Christina
to live in the United States. (Id.). Mr. Croll, however,
testified that he did not agree to that. (Tr. at 36, 38, 48).
Given the conflicting testimony of Mr. and Ms. Croll, along with
the fact that Mr. Croll filed this petition pursuant to the Hague
Convention for Christina's return within a few weeks of his
daughter's departure from Hong Kong, this Court finds that Ms.
Croll has not established by a preponderance of the evidence that
Mr. Croll consented to Christina's removal from Hong Kong.
C. Grave Risk
Ms. Croll also invokes the exception contained within Art.
13(b) of the Convention that provides that a child need not be
returned to the country where the child is habitually resident if
"there is a grave risk that [the child's] return would expose the
child to physical or psychological harm or otherwise place the
child in an intolerable situation." Convention Art. 13(b). A
party seeking to invoke this exception must prove the
applicability of the exception by "clear and convincing
evidence." 42 U.S.C. § 11603(e)(2)(A). It is well-established
that the grave risk exception is narrowly construed. See
42 U.S.C. § 11601(a)(4); see also Blondin, 189 F.3d 240, 246;
Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376 (8th Cir. 1995)
(citing Rydder, 49 F.3d at 372); Janakakis-Kostun, ___ S.W.3d
___, ___, 1999 WL 153369, at 6. In Friedrich II, the Sixth
Circuit limited the circumstances under which the Article 13(b)
exception applies to only when:
return of the child puts the child in imminent danger
prior to the resolution of the custody dispute —
e.g., returning the child to a zone of war, famine,
or disease [or when there has been] serious abuse or
neglect, or extraordinary emotional dependence [and]
the court in the country of habitual residence, for
whatever reason, may be incapable or unwilling to
give the child adequate protection.
78 F.3d at 1069.
There is no dispute that the first of the circumstances set
forth in Friedrich II does not apply here: Hong Kong is not a
zone of "war, famine, or disease." Moreover, respondent has
failed to demonstrate by clear and convincing evidence that
returning Christina to Hong Kong would subject the child to a
grave risk of harm or place her in an intolerable situation.
Ms. Croll testified to four specific instances to support her
reliance on the Article 13(b) exception. First, she testified
that on September 28, 1998, Mr. Croll assaulted her. (Tr. at 89,
98-99). Ms. Croll filed a complaint with the police relating to
this incident, but the charges were dismissed due to an
insufficiency of evidence. (Tr. at 42, 94, 96, 97-98). Although
each party's version of this event differs, it is undisputed that
Christina was not present during this incident. (Tr. at 90). The
cases applying the Hague Convention make manifest that the
Article 13 exception is only applicable when the child, as
opposed to a parent, would be placed in danger if she were
returned. See Nunez-Escudero, 58 F.3d at 376-77; In re Walsh,
31 F. Supp.2d 200, 205 (D.Mass. 1998) ("It is thus apparent that
the grave threat contemplated by the Convention must be directed
at the children who are the subject of the petition . . .")
(citing Rechsteiner v. Kendell, 80 A.C.W.S.3d 1195 (Ont.Fam.
1998)); Ciotola, 684 N.E.2d at
769 (insufficient evidence that child was at risk where child's
mother testified that father had explosive temper and that she
herself was victim of domestic abuse). Consequently, because this
incident concerned solely Ms. Croll, even if this Court were to
credit Ms. Croll's version of events, it would not support an
Article 13 defense.
Second, Ms. Croll testified that on one occasion in November
1998, Mr. Croll forcibly dragged her into the bedroom where they
struggled in front of Christina before their housekeeper
intervened to stop the fight. (Tr. at 101). Third, Ms. Croll
testified that, on another occasion, while bathing Christina, she
observed a red hand-print mark on her daughter's thigh that she
had reason to believe was caused by Mr. Croll. (Tr. at 102-03).
Finally, on one occasion in early 1999, when Christina expressed
a reluctance to accompany Mr. Croll to Cape Cod for a visit, Mr.
Croll forcibly placed his hands on Christina's shoulder and spoke
to her in a forceful manner. (Tr. at 105-06). Ms. Croll conceded
that she has never filed a police report on behalf of Christina
and she has not made any allegations of abuse against her husband
on behalf of her daughter in Hong Kong or the pending New York
State matters prior to the hearing held before this Court on July
6. (Tr. at 89, 119, 134). Thus, Ms. Croll has not demonstrated by
clear and convincing evidence that Christina would be placed in
"grave risk" were she to be returned to Hong Kong. See Walsh,
31 F. Supp.2d at 206; Janakakis, ___ S.W.3d ___, ___, 1999 WL
153369, at 6. Moreover, Ms. Croll has adduced no evidence to
demonstrate that the Hong Kong courts would be incapable or
unwilling to protect Christina adequately should she be in danger
of being placed in a situation where she was at risk.
Because Christina has been wrongfully removed from her habitual
place of residence and because none of the exceptions contained
within the Convention apply, Christina should be returned to Hong
Kong pursuant to ICARA and the Convention.
In light of this Court's determination that petitioner's
application should be granted directing that Christina be
returned to Hong Kong, the parties were requested to attempt to
agree on appropriate undertakings by petitioner to ensure that
Christina does not suffer any short term harm pending disposition
of any custody and support dispute in the Hong Kong courts. See,
e.g., Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995);
Walsh, 31 F. Supp.2d at 207. Any such undertakings would not
affect the Hong Kong courts' ability to enter final orders
concerning custody and support arrangements. However, the parties
were unable to agree on specific undertakings.
Accordingly, the Court hereby conditions Christina's return to
Hong Kong on respondent's compliance with the following
(1) Mr. Croll shall pay the U.S. $1,000 support for
Christina each month pursuant to the ex parte order
of the Hong Kong court dated May 3, 1999;
(2) Mr. Croll shall pay for airline tickets to Hong
Kong for Mei Yee Croll and for Christina; and
(3) Mr. Croll shall pay tuition and fees for the
current academic year for the school that Christina
attended during the 1998-1999 academic year.
Mei Yee Croll shall continue to have "custody, care and
control" of Christina and Stephen Halladay Croll shall continue
to have "reasonable access" to Christina pursuant to the February
23, 1999 order of the Hong Kong court. In addition, nothing in
this Order shall be construed to prevent either petitioner or
respondent from seeking a modification of the ex parte orders of
the Hong Kong court dated February 23, 1999 and May 3, 1999
providing for custody and support for Christina and maintenance
For the foregoing reasons, respondent's motion pursuant to
Fed.R.Civ.P. 12(b) to dismiss the petition is denied and
petitioner's application for an order pursuant to the Hague
Convention directing the return of the parties' minor daughter to
Hong Kong is hereby granted upon condition that petitioner
provide the undertakings set forth above.