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