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MATTER OF KOC

January 18, 2001

IN THE MATTER OF PAULINA KOC, INFANT UNDER THE AGE OF 16 ANDRZEJ KOC, PETITIONER
V.
KRYSTYNA KOC, RESPONDENT.



The opinion of the court was delivered by: Cheryl L. Pollak, U.S. Magistrate Judge

      REPORT AND RECOMMENDATION

On August 25, 2000, petitioner Andrzej Koc filed a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, reprinted in 51 Fed. Reg. 10,494 (March 26, 1986) (the "Convention"), and implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601-11610 (2000), seeking the return of his daughter, Paulina Koc, to Poland (the "Petition"). By order dated November 17, 2000, the petition was referred to the undersigned to conduct a hearing and prepare a Report and Recommendation.

FACTUAL BACKGROUND

Petitioner, a citizen of Poland, married the respondent Krystyna Koc, also a Polish citizen, in Athens, Greece on December 29, 1990. (Koc Decl. ¶¶ 1-3).*fn1 On February 2, 1992, their daughter, Paulina, was born in Athens. (Id. ¶ 4). She is also a Polish citizen and lived with both her parents in Poland until May 1998. (Id. ¶¶ 4-5; 12/1/00 Tr. at 26).

In 1997, during the winter recess, Ms. Koc traveled to the United States with Paulina for two weeks to visit her family. (12/1/00 Tr. at 26). She returned with the child to Poland at the conclusion of the two-week visit. (Id.) Ms. Koc also came to the United States in 1997 without her daughter, remaining here for four or five months. (Id. at 6, 27). During that time, Mr. Koc cared for the child in Poland. (Id. at 27).

In May 1998, Ms. Koc traveled again to the United States with Paulina to visit Ms. Koc's parents. (Id. at 7, 26). According to Ms. Koc, she received a six month visa which expired in November 1998. (Id. at 7, 16). Neither she nor Paulina currently have permanent resident alien status, and at this time they are technically in the United States illegally. (Id. at 16-17).

Mr. Koc testified that his wife and daughter were scheduled to return to Poland at the end of the summer vacation in August 1998 so that Paulina could attend school in the fall.*fn2 (Id. at 7, 26-27). However, when the time came for Ms. Koc to return to Poland, she made the decision to remain in the United States. (Id. at 7). Ms. Koc testified that when she left Poland in May 1998, she was planning to return to Poland and she told her husband she would be returning. (Id. at 17). She testified that she decided to stay in the United States, however, because "I don't have anyone there. Here I can — I have a family and I can depend on their help." (Id.)

Ms. Koc informed her husband by phone of her decision to stay in the United States, and he demanded that she return to Poland with the child. (Id. at 7). According to Ms. Koc, her husband wrote letters to Ms. Koc's sister and her parents and he sent short letters to the child as well. (Id. at 8). In addition, Mr. Koc tried to convince his wife to return to Poland whenever she contacted him by phone. (Id. at 27). Indeed, Mr. Koc testified that he "hope[d]" that she would return to Poland (id. at 27), and she "repeatedly" told him that she would. (Koc Decl. ¶ 6).

According to Ms. Koc, she and Paulina resided with her parents when they originally came to the United States in May 1998, staying at her parents' home at 107 Engert Avenue in Brooklyn from May 1998 until August 1998, at which time she moved to 227 East 7th Street in Brooklyn. (12/1/00 Tr. at 14-15, 18). She subsequently moved with Paulina to another apartment, located at 87-86 116th Street in Richmond Hill, Queens, where she claims to have lived for a year and a half (Id. at 18, 14).*fn3

There appears to be some dispute as to whether Ms. Koc kept her husband informed as to her whereabouts. Ms. Koc claims that while Mr. Koc had her phone number, he never asked her or her parents for Ms. Koc's address. (Id. at 18). By contrast, Mr. Koc states that he had only periodic phone contact with his daughter after August 1998. (Id. at 28). He testified that at first he would speak to Paulina once a month and that later in the spring of 1999, he received phone calls from his daughter more frequently. (Id. at 27). At that time, his "hope was revived that after all we were going to work it out and we were going to meet." (Id. at 27-28). However, he testified that for nine months, his contact with his daughter was severed completely until late July 2000 when his wife contacted him again. (Id. at 28).

When asked on cross-examination whether he knew why Ms. Koc did not want him to know her address, Mr. Koc testified that "[f]rom what I know, she is living with another man, and that most probably, this is the reason." (Id. at 41). He admitted that he told his wife in a phone conversation that he would do everything to bring back his daughter. (Id.) He sent an e-mail to Ms. Koc's sister in which he cited a Polish criminal law that makes it a crime to kidnap a child. (Id. at 43-44). He also testified that it is possible in Poland to notify the Polish border patrol, and they will stop the child if she and her mother return to Poland. (Id. at 43). However, it did not appear from the testimony that Mr. Koc had made such a notification. He also conceded that on the day prior to the hearing, his wife voluntarily, without court order, allowed him to see the child. (Id. at 35).

Although Mr. Koc believed that his wife and daughter would have to return Poland in November 1998 when their visas expired, he attempted on four occasions to get a visa to come to the United States to visit his daughter. (Id. at 28-29; Koc Decl. ¶ 9). On each occasion, his application was denied. (12/1/00 Tr. at 28-29; Koc Decl. ¶ 9). He testified that he was told that as long as his wife and daughter were here illegally, he would not be granted a visa. (12/1/00 Tr. at 29, 36; Koc Decl. ¶ 9).*fn4

On December 29, 1999, Mr. Koc contacted the Polish Central Authority and filed an application for assistance. (Koc Decl. ¶ 10; 12/1/00 Tr. at 32). He testified that according to the Polish Central Authority, there "may be big problems" with getting Paulina returned to Poland because she had been in the United States for more than one year and that he should instead seek contact with the child. (12/1/00 Tr. at 32).*fn5

According to Mr. Koc, his daughter has family, including grandparents and cousins, still living in Poland and that she "had quite a few friends" in Poland. (Id. at 29-30). He testified that whenever he visits her friends, they ask when Paulina is returning to Poland; "Paulina was a very open child who made friends easily and she really had lots of friends." (Id.) He testified that when he spoke with Paulina, she would ask about her friends. (Id.) Before she left Poland, Paulina attended religious instruction in a little school next to the church. (Id. at 44). According to Mr. Koc, he enrolled Paulina in the school when his wife came to the United States without the child in 1997 and that she continued to attend that school until her mother brought her to the United States in May 1998. (Id.)

Mr. Koc, who is a music teacher in Poland, still maintains the same apartment that he had when his wife and daughter were living with him and he testified that Paulina's room is "[i]n the same condition as if she had left yesterday." (Id. at 26, 30). Mr. Koc testified that when Paulina lived with him in Poland, he took care of her, "[b]athing, playing . . . [w]ashing her laundry," and cooking for her when his wife went to the United States. (Id. at 31-32).

Ms. Koc testified that she has completed her higher education and that she has a degree in music. (Id. at 15). She testified that she taught music in the same elementary school as her husband for several years in Poland. (Id.) According to Ms. Koc, after she came to the United States in 1998, Paulina attended first grade at a Catholic school while they resided at 227 East 7th Street in Brooklyn. (Id. at 9, 19). Since that time, Paulina has attended two different public schools. (Id.) She attended second grade in a public school in Greenpoint, Brooklyn (id. at 19-20), and she is currently in third grade at a different public school in Queens. (Id. at 9, 20).*fn6 According to Ms. Koc, Paulina attended an after-school program while she was in second grade, but currently she does not participate in any after-school programs at this new school. (Id. at 20). When asked if Paulina ever has friends from school come over to play, Ms. Koc testified that in the school she is currently attending, "she does not have Polish children in that class, but quite often she meets children her own age, children I work with." (Id.) According to Ms. Koc, Paulina speaks English with her friends. (Id.)

Ms. Koc testified that Paulina has medical insurance in this country, and she produced a medical card from New York Hospital Community Care which Ms. Koc testified allows her to get free doctors' visits for Paulina. She also uses the card for the dentist and to purchase medication for Paulina. (Id. at 23). Ms. Koc admitted, however, that although she is currently working, she does not pay taxes. (Id. at 19).

When asked what she would do if her child was ordered returned back to Poland, Ms. Koc stated that she would return to Poland, but would not live with Mr. Koc. (Id. at 15, 24). She also testified that in the spring of 2000, she went to her lawyer's office to initiate divorce proceedings. (Id. at 25).*fn7

Irena Krotoszynska, respondent's mother, testified that Ms. Koc lived with her and with her husband when Ms. Koc and Paulina first came to the United States, but that after Ms. Koc left their home, she had three addresses — one in Boro Park, the one in Jamaica where she currently resides, and then a temporary address where she lived with a female friend for a month.*fn8 (12/19/00 Tr. at 5). Ms. Krotoszynska testified that her daughter works as a musician, playing organs and teaching music. (Id. at 6). According to Ms. Krotoszynska, she and her husband provide financial assistance to Ms. Koc now and previously sent money and packages to her and to petitioner when she was living in Poland. (Id. at 6-7).

Ms. Krotoszynska testified that Paulina stays with her or with her other daughter while Ms. Koc works. (12/19/00 Tr. at 7). She also stated that Ms. Koc pays a student to care for Paulina. (Id.) When asked how often she sees Paulina, Ms. Krotoszynska stated, "I don't see her that often because she is in school from nine to four and on Saturday she goes to Polish school, but Saturday and Sunday, yes." (Id. at 8). It appears that Ms. Krotoszynska and her husband have also overstayed their visas and are waiting for papers to remain in the United States, but that one of Ms. Koc's sister-in-laws has permanent residence status here and Ms. Koc's sister and brother-in-law have been told that they will get their green cards. (Id. at 10). Ms. Krotoszynska testified that she currently has another daughter who lives in Poland and works at the same school as Mr. Koc. (Id. at 11). According to Ms. Krotoszynska, her daughter in Poland earns "very little," maybe $200 per month. (Id.)

Ms. Kopec testified that Paulina plays with her boys and with the daughters of her neighbor. (Id. at 17).*fn9 She also testified that she attended a birthday party for Paulina where there were 15 to 20 children in attendance. (Id. at 16-18).

This Court interviewed the child briefly in camera.*fn10 Paulina speaks excellent English and although initially a little shy, answered the Court's questions clearly and without hesitation. She stated that she is currently in third grade and that her favorite subjects are math and science. (12/19/00 In Camera Tr. at 2).*fn11 When asked what she does after school, Paulina stated that in second grade she went to "after school" where she did reading and writing. (Id. at 2-3). When asked if she was going to participate in after school activities this year, Paulina stated:

I don't know because this school — we moved again and we're in this school I'm going to the Queens school now . . . I don't know what's going to be after school because I'm the new kid in class.

(Id. at 3). When asked if it was hard to make new friends, Paulina admitted, "It's hard. I just can't be shy and I gotta just ask (ui)." (Id.) When asked if she had friends come over to her house, Paulina told this Court "not really," nor does she ever go to their houses. (Id. at 4). She does have a best friend but she only plays with her in school. (Id.) There is one little boy in her class who lives on her street but Paulina ...


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