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IN RE KIM v. KIM

December 9, 2005.

In Re SOL IRIS KIM YOO KYUNG CHOI, Petitioner,
v.
CHEE KWAN KIM, Respondent.



The opinion of the court was delivered by: KENNETH KARAS, District Judge

OPINION AND ORDER

Sol Iris Kim is a four-year-old girl who is the subject of a brewing custody battle between her estranged parents. Before this Court is the Petition of Sol Iris's mother, Yoo Kyung Choi ("Petitioner"), which she brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, art. 2, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) [hereinafter Hague Convention], and the International Child Abduction Remedies Act, 42 U.S.C. § 11601-11611 (2005) ("ICARA"). The Petition seeks an order requiring that Sol Iris return to Toronto, Ontario. On September 21, 2005, the Court dismissed the Petition, promising that a written opinion would be forthcoming. This is that written opinion.

I. Background

  On August 12, 2005, Petitioner filed in this Court a Petition for the Return of Child to Petitioner pursuant to the Hague Convention and ICARA ("Petition"). Accompanying the Petition, was an Emergency Petition for a Warrant in lieu of a Writ of Habeas Corpus ("Emergency Petition"). The Emergency Petition sought an order from this Court for the immediate return of Sol Iris to Petitioner without notice to Chee Kwan Kim ("Respondent"). In support of the Emergency Petition, Petitioner submitted a sworn affidavit complete with several attachments.*fn1

  In addition to the exhibits to the Emergency Petition, the Court heard sworn testimony from the Petitioner and considered additional statements from counsel for Petitioner. During the ex parte proceeding on August 12, 2005, Petitioner, through her sworn statements, and her counsel, through his comments, represented that: (i) Petitioner is a lawful permanent resident of Canada and intends to become a Canadian citizen and live there permanently (Tr. 20, Aug. 12, 2005);*fn2 (ii) Sol Iris was born in Toronto, Ontario, where Petitioner resides with her parents, and lived there from August 2004 until May 2005 (Tr. 21-23, Aug. 12, 2005); (iii) Respondent agreed that while he was in law school Petitioner was to be the primary caregiver (Tr. 23, Aug. 12, 2005); (iv) Respondent provided written consent to permit Petitioner to travel with Sol Iris from Toronto to Cambodia and back to Toronto beginning in May 2005 (Tr. 3, Aug. 12, 2005); (v) on her return trip from Cambodia to Toronto, Petitioner brought Sol Iris to New York on August 2, 2005, for a four-day stay to permit Sol Iris to visit with Respondent (Tr. 25, Aug. 12, 2005); (vi) upon arrival in New York on August 2, 2005, Petitioner was told that she could not stay in the apartment where Respondent resided with his aunt (Tr. 26, Aug. 12, 2005); (vii) Petitioner had not seen or talked to Sol Iris since, and was barred by Respondent from seeing or speaking with Sol Iris after, August 6, 2005 (Tr. 8, 25, Aug. 12, 2005); (viii) on August 5, 2005, Petitioner sent Respondent an email insisting that she be allowed to take Sol Iris "home" to Toronto (Tr. 27-28, Aug. 12, 2005); (ix) after sending the August 5 email, Petitioner spoke to Respondent who told Petitioner that she would never see Sol Iris again and that Sol Iris's home was Korea and not Canada (Tr. 14, 28, Aug. 12, 2005); (x) after Petitioner's arrival in New York on August 2, Respondent on several occasions asked for Sol Iris's Korean passport (Tr. 14, Aug. 12, 2005); (xi) Respondent filed a custody action in New York State Family Court with an unknown return date (Tr. 4, Aug. 12, 2005) and; (xii) Respondent has a history of physically abusing Petitioner, and because of Respondent's "depression problem," Petitioner believed that it was "very reasonable to suspect" that Respondent might engage in physical violence toward Sol Iris. (Tr. 29, Aug. 12, 2005) Based on these representations, the Court entered an Order and issued a warrant directing the United States Marshals Service to remove Sol Iris from Respondent's custody and turn her over to Petitioner.*fn3 Petitioner was directed to surrender her passport, as well as Sol Iris's passport, to stay within the confines of the Southern and Eastern Districts of New York, and to provide the Marshals Service with her local address.*fn4 (Tr. 48, Aug. 12, 2005; Order, Aug. 12, 2005) The Court scheduled a hearing on the matter for the next business day, which was Monday, August 15, 2005.

  At the August 15, 2005 hearing, both Petitioner and Respondent appeared through counsel. Cognizant that Respondent had not yet had an opportunity to present his case, the Court gave Respondent an opportunity to summarize his position and inquired of Respondent as to when he would be prepared to conduct an evidentiary hearing. Respondent noted that he had filed an Order to Show Cause in New York State Family Court seeking temporary emergency jurisdiction to prevent harm to Sol Iris.*fn5 (Tr. 6, Aug. 15, 2005) Ultimately, Respondent indicated that he would consent to a stay of the state court action,*fn6 that he would be prepared to proceed with an evidentiary hearing by August 17, 2005, and that he and Petitioner would agree to a custody arrangement of Sol Iris until that time.*fn7 (Tr. 52, 91, 93, 100, 106)

  The Court then conducted an evidentiary hearing on August 17, 19, 23, 24, 25, 31 and September 1, 2005. During this hearing, Petitioner and Noah Novogodsky, a professor at the University of Toronto Law School, testified on behalf of Petitioner. Respondent, Gwin Joh Chin (Respondent's aunt), and Chee Wan Kim (Respondent's brother), testified on behalf of Respondent. Respondent also called, as a hostile witness, Timothy Pfeifer, a New York attorney with whom Petitioner appears to have had an extramarital affair during the preceding months.

  II. Findings of Fact

  A. Credibility

  Before turning to the Court's findings of fact, it is important to note that some of these findings involve facts about which there is agreement between the parties. Other facts, however, are the subject of sharp disagreement, including, of course, those facts most crucial to the resolution of the dispute. Thus, to resolve the dispute, the Court is required to make certain findings regarding the credibility of the witnesses.

  Broadly speaking, the Court finds that Respondent and those who testified on his behalf were credible and that Petitioner was not. First, Petitioner's testimony was proven to be demonstrably false on several occasions. For example, during the ex parte hearing on August 12, 2005, Petitioner testified that it was made clear to her that she could not stay at Ms. Chin's apartment upon her arrival in New York on August 2, 2005, and that she was not allowed to speak or see Sol Iris after August 6, 2005. (Tr. 4, 8, 25, Aug. 12, 2005) Yet, the credible evidence presented at the hearing was directly to the contrary. Ms. Chin specifically invited Petitioner to stay with her upon her arrival on August 2, 2005, but Petitioner declined claiming that she was going to stay with a "friend." (Tr. 575) Later that day, Petitioner confided to Ms. Chin that her "friend" was a "man," and that Respondent did not know that Petitioner's friend was a man. (Tr. 575) That man, it turned out, was Mr. Pfeifer. (Tr. 872). Under the circumstances, it is no stretch to imagine that Petitioner had every interest in staying with Mr. Pfeifer during her visit to New York, and therefore, that the decision not to stay at Ms. Chin's was entirely Petitioner's.

  Moreover, the evidence conclusively proved that Respondent did not block Petitioner from speaking with or seeing Sol Iris. Indeed, the evidence demonstrated that Sol Iris refused to speak with Petitioner on the phone, in part because she was distracted by the toys she happened to be playing with when Petitioner called Respondent. (Tr. 720) Moreover, after being pressed on cross-examination, Petitioner finally admitted that she never even asked to visit Sol Iris at Ms. Chin's apartment. (Tr. 366-68)

  Second, based on Petitioner's demeanor during her testimony, and particularly on cross-examination, it was clear to the Court that Petitioner was not truthful. On several occasions, Petitioner fumbled her answers to simple questions and feigned memory loss regarding events that had happened only days before her testimony. For example, Petitioner initially claimed memory loss when asked about her comment on August 2, 2005 that Sol Iris would be a New Yorker — which was suspect given that she had only made the comment two weeks earlier — but she then changed her testimony and admitted making the statement. (Tr. 238-39) On another occasion, Petitioner claimed language difficulty as a reason for struggling with a cross-examination question (Tr. 129, 229), but Petitioner, a third-year law student who has lived in North America since 2000, did not appear to the Court to have much difficulty with the English language.

  Third, Petitioner's credibility was undercut by the numerous instances where she contradicted her own testimony. For example, Petitioner admitted that she did not tell the truth when she testified at the ex parte hearing that the first time Respondent indicated he wanted a divorce was on August 2, 2005, the day that Petitioner arrived in New York from Cambodia. (Tr. 231-33) Petitioner also admitted on cross-examination that the portion of her sworn statement submitted in support of her ex parte request for a warrant stating that she had not filed any other action was untrue as she had filed a custody action in New York State Family Court the day before she brought this Petition.*fn8 (Tr. 83-84) In contrast to Petitioner, the Court found the testimony of Respondent, his aunt, and his brother to be credible. The testimony of each witness was corroborated by the documentary evidence in the case, limited as it was, as well as the testimony of the other witnesses. Each witness carried him or herself in the same manner on direct as on cross-examination, and the collective testimony of the three witnesses was far more logical than that of Petitioner. Thus, where there was a clash between the testimony of Petitioner and Respondent and those who testified on his behalf, the Court invariably found Respondent's version to be credible.*fn9 With this backdrop, the Court now turns to its findings of fact.

  B. The Chronology of Events

  Petitioner's and Respondent's Relationship Begins and Sol Iris is Born

  There is no disagreement about the beginnings of the relationship between Petitioner and Respondent, or the chronology of Sol Iris's whereabouts since her birth. Petitioner and Respondent, both Korean citizens, were married under Korean law in 2000. (Petr.'s Aff. ¶ 4, Aug. 8, 2005; Pet. Ex. C) Before Petitioner was pregnant with Sol Iris, she was accepted into Stonybrook Law School in New York. (Tr. 476) In January 2001, Respondent and Petitioner (then pregnant) left Korea and moved so Petitioner could attend law school. (Tr. 476) For the first month, they lived with Ms. Chin in New York City, and then moved to Stonybrook. (Tr. 476-77) However, soon after their arrival in New York, Petitioner and Respondent changed their plans, largely because they did not think it was practical to have Petitioner attend law school while pregnant. Therefore, they moved to Toronto, Ontario, where Petitioner's parents lived. (Tr. 477)

  Sol Iris was born in Toronto, Ontario on March 22, 2001. (Pet. Ex. C) Thereafter, Petitioner and Respondent attended the LL.M. program at the University of Toronto Law School, all the while living with Petitioner's parents and caring for Sol Iris. (Tr. 480) After receiving their LL.M. degrees in 2002, Petitioner and Respondent returned to Korea with the idea of making enough money to attend law school in the United States, preferably in New York. (Tr. 481) In Korea, Petitioner and Respondent taught English while living with Respondent's parents and caring for Sol Iris. (Tr. 481)

  Petitioner Pursues Her Legal Career in New York City while Respondent Cares for Sol Iris in Korea

  Petitioner stayed in Korea for only one year, having been accepted into law school at University at Buffalo, the State University of New York ("SUNY Buffalo"). (Tr. 481) She began her first year in August 2003, while Respondent stayed behind in Korea. (Tr. 481) Initially, Sol Iris lived with Petitioner's parents in Toronto. (Pet. Ex. C; Tr. 482) However, by November 2003, Respondent and Petitioner agreed that Respondent should take Sol Iris to live with Respondent and his family in Korea. (Pet. Ex. C; Tr. 483) From November 2003 until August 2004, Respondent and his family cared for Sol Iris in Korea. (Pet. Ex. C; Tr. 483-84)

  After her first year at SUNY Buffalo, Petitioner spent the summer of 2004 as an intern at the Legal Aid Society in New York City.*fn10 (Tr. 487) While working at Legal Aid, Petitioner lived with Ms. Chin.*fn11 (Tr. 487) By all accounts, it appeared to be an amicable arrangement. Indeed, Ms. Chin did not ask Petitioner to pay rent during her stay. (Tr. 563) It was during her summer in New York that Petitioner became enamored with the idea of becoming an associate at one of the City's big law firms. (Tr. 491) In fact, by August 2004, Petitioner had become "crazy" about New York, in part, because of the high salaries paid by New York law firms.*fn12 (Tr. 491) This ambition was consistent with discussions that Respondent and Petitioner had earlier in their marriage about pursuing a long-term plan to practice law and live in New York. (Tr. 485, 489, 637) Indeed, by August 2004, Petitioner and Respondent agreed that if Petitioner was accepted as a transfer student to either Columbia or NYU Law School for the academic year 2004-05, she and Sol Iris would live with Respondent's aunt (Ms. Chin) in New York.*fn13 (Tr. 489-90)

  Although Petitioner failed to gain acceptance at either school (but was accepted at the University of Toronto) (Tr. 108), Petitioner took advantage of her summer in New York by applying to several dozen New York law firms for a job in the summer of 2005. (Tr. 491, 564-65) According to Ms. Chin, Petitioner received correspondence from 30 to 40 law firms. (Tr. 564-65) Though she interviewed at several firms, Petitioner was unable to secure employment from any of them.*fn14 (Tr. 109, 498-99, 896)

  The Academic Year of 2004-2005: Petitioner and Respondent Attend Law School and Plan for the Future

  In 2004, Respondent was accepted to law school at SUNY Buffalo and attended as a first-year student during the academic year from August 2004 until May 2005. (Tr. 490) Meanwhile, Petitioner attended the University of Toronto Law School as a second-year student. During this time, Sol Iris lived with Petitioner and Petitioner's parents in Toronto. (Pet. Ex. C; Tr. 496) However, Respondent visited Petitioner and Sol Iris on several occasions in Toronto, the last visit occurring in April 2005.*fn15 (Tr. 496-97)

  Respondent had his own career interest in New York. Indeed, from the moment he arrived at SUNY Buffalo, Respondent planned to transfer to a law school in New York, preferably NYU or Columbia. (Tr. 489) In the shorter term, Respondent applied for, and ultimately obtained, an internship in New York. (Tr. 487) From his perspective, Respondent believed that his wife could earn the salary she desired at a New York firm and he could do public interest work, all the while living with or near his family in Manhattan. (Tr. 489, 491-92) To that end, Respondent and Petitioner discussed the plan that both he and Petitioner would live and work in New York City during the summer of 2005. Thereafter, Respondent could attend NYU or Columbia, while Sol Iris lived with him at his aunt's apartment. (Tr. 492, 500-01) Under this plan, Petitioner could join them upon her graduation from the University of Toronto Law School. (Tr. 492, 500-01)

  Planning for Sol Iris to Live in New York City in the Fall of 2005

  Petitioner and Respondent had numerous discussions about where Sol Iris would live after the summer of 2005. These discussions focused on where Respondent might be attending law school. At Petitioner's suggestion, Respondent applied to Georgetown University (in Washington, D.C.), because that school would consider his transfer application after only one semester and because it would be a good test case of his ability to transfer. (Tr. 501) Columbia and NYU, on the other hand, would only consider Respondent's application after he completed his entire first year of law school. (Tr. 501) Thus, he could not apply, let alone hear from, these schools until at least June or July 2005. (Tr. 501)

  In mid-April 2005, Respondent called Petitioner to advise her that he had been accepted at Georgetown. (Tr. 508) After this call, Respondent visited Toronto in late April. (Tr. 508) During this visit, Respondent inquired about having Sol Iris live with him while he attended Georgetown. (Tr. 509) Petitioner expressed concern about Respondent's ability to finance the expenses of caring for Sol Iris, including child care for her in Washington, particularly since there was no family support structure in that city. (Tr. 508-09) In the end, Respondent and Petitioner did not come to an agreement regarding the Georgetown scenario. (Tr. 509) Instead, they agreed that the best option was for Respondent to gain acceptance to NYU or Columbia.*fn16 (Tr. 509, 531, 638) If he did, then Sol Iris would live with Respondent in New York and Petitioner could move to New York after graduating from the University of Toronto. (Tr. 500-01, 508)

  To permit Sol Iris to live for a lengthy period of time with Respondent, who was in the United States on an F-1 visa, Sol Iris would need to obtain an F-2 visa. (Tr. 514) This was discussed during the late April 2005 visit in Toronto.*fn17 (Tr. 515) Petitioner also mentioned the F-2 visa several other times, including in a June 2005 email to Respondent, where she inquired if Respondent had "prepared" the F-2 visa for Sol ...


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