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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
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.
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
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).
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,
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,
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