The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This is a proceeding brought by Linzi Enslin Smyth ("the petitioner," "the mother" or" Smyth") the mother of three children and a Swiss resident, seeking the return of the children presently in visitation with their father, Anric Blatt, ("the Respondent," "the father" or "Blatt"). This Petition is brought pursuant to the Convention on the Civil Aspects of International Child Abduction ("the Hague Convention") and the International Child Abduction Remedies Act ("ICARA"). The three children of the parties are XXXXX [Minor Childs Name removed by Versuslaw], 15 years of age; XXXXX [Minor Childs Name removed by Versuslaw], 13 years of age; and XXXXX [Minor Childs Name removed by Versuslaw], 11 years of age. The petitioner requested that the Court schedule an expedited hearing and reach an expedited determination, as to whether the children have been "wrongfully retained" by their father.
During a nine day hearing held between September 8, 2009 and September 24, 2009, the parties presented evidence and argument in support of and in opposition to the petition. Having reviewed the evidence, assessed the credibility of the witnesses, and considered the arguments of counsel, the Court makes the following Findings of Fact and reaches the following Conclusions of Law pursuant to Fed. R. Civ. P. 52(a).
The petitioner, a British national and the respondent, a German national, were married in Capetown, South Africa on February 10, 1994. The three children were born to the marriage. The parties were divorced in Switzerland on March 31, 2008. The petitioner has the right of custody of the three minor children, pursuant to the Swiss Judgment of Divorce, which states the following:
... 3. Custody of the said children is awarded to Linzi Enslin Blatt, who will exercise that custody in accordance with clause 1 of the settlement on the incidental effects of the divorce dated October 2007...
In addition, the addendum to the Divorce Agreement between the parties, reads as follows:
1. Custody... a. Linzi Smyth to have sole custody of XXXXX [Minor Childs Name removed by Versuslaw], XXXXX [Minor Childs Name removed by Versuslaw] and XXXXX [Minor Childs Name removed by Versuslaw]...
All three children left the mother's residence in Switzerland for a planned visit to their father on July 2, 2009. They were all scheduled to return to their mother on July 26, 2009. However, the respondent retained the three children in New York, without the knowledge or consent of the petitioner. The petitioner asked the respondent to return the children to Switzerland. The respondent refused. The petitioner then commenced this proceeding in an effort to compel the respondent to return the children to Switzerland, their "Habitual Residence."
II. AS TO THE PROCEEDING IN THE FAMILY COURT
On July 27, 2009, the respondent initiated a proceeding in the Family Court of Nassau County for an order of protection and other relief. After some proceedings were heard in the Family Court, on August 24, 2009, that Court issued a multi-faceted decision which provided that Blatt "shall have temporary custody of the minor issue, XXXXX [Minor Childs Name removed by Versuslaw]... XXXXX [Minor Childs Name removed by Versuslaw]... and XXXXX [Minor Childs Name removed by Versuslaw]...." On September 12, 2009, this Court issued an order which provided, in part, as follows:
Article 16 fo the Hague Convention, art. 16, 19 I.L.M. at 1503, precludes a state court from determining custody rights until the competent authority entertaining the petition under the Hague Convention has an opportunity to decide whether the children should be returned to their habitual residence. In particular, Article 16 provides that: the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
Hague Convention, art. 16, 19 I.L.M. at 1503.
The present situation--namely where there is a federal Hague Convention case and a state custody action going forward together--was addressed by the United States Court of Appeals for the Third Circuit in Yang v. Tsui, 416 F.3d 199, 203 (3d Cir. 2005). In Yang, it was stated that: the Hague Convention provides that any state court custody litigation be stayed pending the outcome of the Hague Convention litigation. Hague Convention, art. 16, 19 I.L.M. at 1503.
Although ICARA does not contain a similar express provision, the purpose of the Hague Convention is to provide for a reasoned determination of where jurisdiction over a custody dispute is properly placed. Therefore, it is consistent with this purpose that it is a custody determination, not the Hague Convention Petition, that should be held in abeyance if proceedings are going forward in both state and federal courts. 416 F.3d at 203.
Thus, under Article 16, the provision in the August 24, 2009 order awarding the respondent temporary custody of the three boys was premature and must be vacated. By the express terms of the Hague Convention, the custody proceeding in the Family Court must await this Court's determination of Ms. Smyth's allegation that the respondent has wrongfully retained the children in the United States. In the event that this Court determines that the respondent has not wrongfully retained the children, the Nassau County Family Court would then have an opportunity to decide on the merits of the parties' respective custody rights. Until that time, any proceedings in the state court with regard to custody should be held in abeyance.
Under the provisions of the Hague Convention, once the petitioner proves a wrongful retention or removal, the children must be returned unless the respondent can establish one of two defenses. First, that there is a grave risk that the return of the children would expose them to physical or psychological harm. Second, that a mature child or children consented to stay with the parent who has initially wrongfully retained them.
A hearing was held before this Court over nine days in September, 2009, during which time five witnesses testified.
The petitioner-mother was born in Durban, South Africa on [XXXXX Birthdate removed by Versuslaw] 1970, and is presently 38 years of age. The respondent-father was born in Nambia, Southwest Africa on [XXXXX Birthdate removed by Versuslaw] 1970, and is presently 39 years of age. The parties were married in Capetown, South Africa on February 10, 1994. Their first child, XXXXX [Minor Childs Name removed by Versuslaw], was born on XXXXX[Birthdate removed by Versuslaw], in Capetown, and is presently 15 years of age. Their second child, XXXXX [Minor Childs Name removed by Versuslaw], was born in Johannesburg, South Africa on XXXXX[Birthdate removed by Versuslaw], and is presently 13 years of age. Their third and last child, XXXXX [Minor Childs Name removed by Versuslaw], was born in Hong Kong on XXXXX[Birthdate removed by Versuslaw], and is presently 11 years of age. The parties left South Africa "in a big hurry", and went to Hong Kong, where they resided for six years. Then they moved to Switzerland also "in a big hurry". The reasons for the "big hurries" were never adequately explained.
A divorce action was commenced in December 2005, and the divorce was consummated on March 31, 2008 in Switzerland. In December 2005, the respondent moved to New York. In the Agreement of Divorce, in paragraph 1 it is stated that, "Linzi Smyth to have sole custody of XXXXX [Minor Childs Name removed by Versuslaw], XXXXX [Minor Childs Name removed by Versuslaw], and XXXXX [Minor Childs Name removed by Versuslaw]". (Pet. Ex. 14). The Agreement also provided visitation to the father, including the summer holiday, when school finished, for a minimum of 28 days. In 2009, the father's visitation with his three sons was to commence on June 25, 2009, and was to have concluded on July 27, 2009.
At the present time, there are proceedings still pending in the Swiss Courts. In one proceeding, there is a motion by the respondent to vacate the Divorce Agreement, and also to modify the Agreement to transfer custody of XXXXX [Minor Childs Name removed by Versuslaw] to him. Apparently, no decision has been rendered by the Swiss Court.
Prior to the circumstances leading to this proceeding the three children resided with the mother in Anzere, a small town in Switzerland. This town is a ski resort. The children live with the petitioner in a chalet. Photographs of the residence are in evidence. (Pet. Ex. 15). The petitioner testified that the children have friends in the schools in Anzere. She named some of their friends and the activities they were involved in, with photographs to support her testimony. (Pet. Ex. 16A, 16B, 17A, and 17B).
There was introduced in evidence a certification from Switzerland including a school report. (Pet. Ex. 18). In that certification it is reported that the school authorities had "no specific problem with these pupils.... They were well behaved toward both their classmates and their teachers. Their appearance and hygiene were always perfect... (and) nothing in their behavior nor in their appearance, suggested any lack of attention or support on behalf of their mother." The report went on to comment that the childrens' mother has always been present and that there were good relations between the school and the mother. The certification concluded with the following words:
We can only wish that, for the good of the three children, the children are able to complete their compulsory schooling in Ayent in order to give them the best possible opportunities for their future careers.
The Court notes that in the "report concerning XXXXX [Minor Childs Name removed by Versuslaw]", there is the following comment as to his behavior:
Report concerning XXXXX [Minor Childs Name removed by Versuslaw]
XXXXX [Minor Childs Name removed by Versuslaw] is a pupil whose behavior is reproachless. He is polite and shows respect for his teachers and peers. He has received no punishment during his three years in the Ayent Junior Secondary School.
XXXXX [Minor Childs Name removed by Versuslaw] is rather an introvert. He does not particularly seek the company of his peers and often remains outside the group. He sometimes suffers from not being well integrated into the class. He also lacks self-confidence, is seeking his way and is extremely concerned about his future.
The petitioner further testified that she does not know what her former husband does for a living. However, he has not paid child support since October 2008. In this regard, legal proceedings are pending in Switzerland. In addition, the respondent made an application in a Court in Ayent, Switzerland: (1) to extend the visitation in New York by four additional days for the 2009 summer holidays; and (2) to transfer custody of XXXXX [Minor Childs Name removed by Versuslaw] to his father. Apparently, the Swiss Court granted the application only for XXXXX [Minor Childs Name removed by Versuslaw] "remaining an extra four days with his father." (Pet. Ex. 25). No decision was made on the request to transfer custody of XXXXX [Minor Childs Name removed by Versuslaw] to his father. The petitioner testified that the decision in the custody matter is not now pending.
According to their agreement, after the summer visit with their father, the children were due to return to Switzerland on July 27, 2009. On that date, Smyth drove to the Zurich airport. She left her home at 3:00 am and arrived at the Zurich airport at 7:20 am. Smyth waited at the airport for the children to arrive. They never did. She tried to contact the respondent and/or his wife, by telephone and text message, without success. There was no response by the respondent. She called the police and her attorney and learned that the children were at the Blatt residence in New York. The boys were never returned to the petitioner.
On July 16, 2008, Blatt threatened not to return the children. On July 20, 2008, Blatt sent an unpleasant e-mail to Smyth. The Court notes that he used some unpleasant language, referring to her as a "stupid woman", "careless, arrogant and selfish" and a "completely selfish and unintelligent mother". (Pet. Ex. 36B). The Court notes that these rude assertions never help and only exacerbate these emotional situations. On July 27, 2009, the respondent enrolled the children in public schools in Oyster Bay, New York. XXXXX [Minor Childs Name removed by Versuslaw] and XXXXX [Minor Childs Name removed by Versuslaw] were enrolled in the Oyster Bay High School. XXXXX [Minor Childs Name removed by Versuslaw] was enrolled in the James H. Vernon School. (Pet. Ex. 37).
The petitioner was asked by her counsel about the "maturity" of the boys. Her response was as follows:
BY MS. SOBAL: Q: Have you been in this courtroom and heard testimony that your boys are mature, Ms. Smyth?
Q: And are your boys mature?
A: Well, the children generally respect adults who they are not necessarily familiar with, who they do not know very well. Adults with authority. So they tend to switch into mature, serious, well-mannered.
THE COURT: Excuse me. They tend to switch?
THE WITNESS: Switch. Tend to be mature, serious, very well-mannered if it is expected of them. That's how they've been raised. However, when they are with family members or friends, they are completely different people. They are more - - they are joking about more. They don't come across as serious or overly mature. They are just kids, because they are in a relaxed environment.
BY MS. SOBAL: Q: Are they always dressed in their Sunday best when they are meeting adults? Are they usually dressed in their Sunday best when they are meeting with best (sic)?
A: No, not usually in their Sunday best, but they are respectfully dressed.
In a telephone conversation by Smyth with the children on August 8, 2009, they were upset, screaming, and crying that they did not want to return to Switzerland. The petitioner related that they wanted to speak about "the trial".
Smyth also discussed the constant moving and "uprooting" of their family from South Africa to Hong Kong and then to Switzerland which caused distress to the children. Also, the petitioner related the inappropriate conduct of the respondent who failed to attend the children's schools in Switzerland. She noted that he was "always absent"; didn't give the children the attention they required; and slapped the children in the presence of family and friends. In addition, she complained that her Skype video telephone calls were not complied with and the children persisted in discussing the pending legal proceedings, even though they were supposed to be prohibited from doing so. In the United States, the petitioner first saw her children at a visitation in August 12, 2009, and then on September 3rd, September 5th, and September 6th for about two hours at a time. The visits went very well.
The petitioner also testified about her visits to the Kenilworth Clinic in South Africa in June 2008. She timed that event with the childrens' June 21, 2008 visit to the respondent. Smyth testified that she told the children that she was going to the Clinic to receive treatment for cancer. She admitted that she lied to the children about the nature of the clinic visit, because she was advised by her attorney not to tell the children the true reason; her alcoholic problem. The petitioner was at the Kenilworth Clinic for three weeks between June 5, 2008 and June 25, 2008. During that time she spoke to the children everyday, except when they were with their father.
The petitioner joined Alcoholic Anonymous ("AA") on June 5, 2008, as part of the Kenilworth Clinic treatment. She attends 3 to 4 AA meetings each week, including when she is in the United States because of this proceeding. Smyth testified that she is sober, and is in close contact with her sponser on a daily basis, 24 hours per day, 7 days per week.
The petitioner has known Robert Perris for almost six years. He is a "very, very close friend of mine and the children's". (Tr. at 600). Today, she has a close relationship with Robert Perris, who is her "partner" and with whom she had a physical relationship, which ceased in December 2008, based on the objection of the children.
The petitioner also testified that she was involved in four motor vehicle accidents in the past four years. The first accident was on December 26, 2005. On the initial brief, cross-examination, the subject of this automobile accident was pursued by counsel for the respondent. It was elicited that, at the time of the accident, the petitioner was subjected to an alcohol test by the Swiss police. Her alcohol level was either.162 or.169. Also, in the car with her at the time of this accident were all three of her children. This was a four car accident; the other three cars were parked. XXXXX [Minor Childs Name removed by Versuslaw] mentioned that his knees were injured, but he required no medical treatment. Prior to getting in the car, the petitioner drank wine at a friend's apartment in Anzere. After the accident she went home and had two tumbler glasses of whiskey before the police tested her alcohol level. As a result of this accident, the petitioner received a suspended sentence of 80 hours of community service.
In addition to the December 26, 2005 accident, the petitioner had another automobile accident in January 2008. Her mother and the three children were in the car. It was a minor accident with property damage and no one was hurt. Also, the petitioner had a third minor motor vehicle accident in March 2009 and a fourth accident on April 28, 2009, when a deer crossed the road in front of her car.
The petitioner also commented on Blatt's conduct. She testified that Blatt gets very intoxicated on many occasions; at parties; at home; and while driving. He also was arrested for speeding while XXXXX [Minor Childs Name removed by Versuslaw] was in the car. In Hong Kong, Blatt was given a fine for speeding, while all three children were in the car.
Smyth concluded her direct testimony by her statement that she feels "that if the children don't come back to Switzerland, I do believe that I will never see the children again." (Tr. at 669). She bases that statement on the pattern of Blatt's behavior; in refusing to return the children; in making it difficult for her to contact the children; in withholding the children's passports; in refusing to pay child support; in attempting to obtain temporary custody of the children in the Family Court; and that "it doesn't stop. And I know it will continue, and he will try as hard as he can to cut me out of the children's lives". (Tr. at 671).
On continued cross-examination, Smyth was closely questioned about her Kenilworth Clinic experience. Smyth was in the South African clinic from June 5, 2008 through June 27, 2008, a period of 22 days. She then went directly to the Tharagay House, also in South Africa, on June 27, 2008, where she stayed until July 21, 2008. The petitioner was at these facilities for a total of 46 days. She was in both facilities for treatment for alcoholism. Some of the pertinent testimony in regard to the petitioner's alcoholism, is as follows:
Q: Now, while you were in Tharagay House, did you tell them that you had been an absent mother as a result of your alcoholism?
MS. SOBAL: Obejction, your Honor. THE COURT: Overruled.
Q: And the alcoholism that you suffered from made you an absent mother because you were involved in drinking, and when you were drunk you could not properly care for the children; isn't that so?
MS. SOBAL: Obejction, your Honor.
A: Can you repeat the question, please?
I said: You were an absent mother because when you drank alcohol during the time you drank and in recovery from a night's drinking or a day's drinking, you could not care for the children; isn't that so?
Q: And how long had you been an absent mother as a result of your alcoholism?
A: A few weeks prior to going to Kenilworth.
Q: So your testimony is that sometime in May or thereabouts - -
Q: - - that is when you started to become an absent mother?
A: Yes. A few weeks prior to that, yes.
Q: Before that you were a functioning alcoholic and you were capable of caring for your children, even though you had an alcoholic disease?
The Kenilworth and Tharagay House records are in evidence. (Resp. Ex. S). Smyth testified as to the note in the record regarding her alcoholism, as follows:
Q: Now, read that, please.
A: It emerged that Robert had only stuck around for the children as Linzi hadn't been a mother to them due to her alcoholism.
Q: Read the next sentence.
A: She struggled to face this and the amount of damage her drinking had had on her relationship with the children.
Tell me in your own words what damage your drinking had on your relationship with the children.
A: At the time I was defocused because of what was going on with the divorce.
Smyth told the children that the purpose of her stay at Kenilworth was for cancer treatment. She did this partly because she didn't want this information to be related to their father. In that vein, Smyth testified in a Swiss Court proceeding, under oath, that she was hospitalized in Kenilworth because she was "suffering from severe depression caused by the pressure that was put on me by Mr. Blatt and Mrs. Laura Louise Blatt, as well as their hostility towards me". (Resp. Ex. 38). This statement was not true. In fact, the petitioner was in the Kenilworth and Tharagay facilities for 46 days for alcoholism.
Significantly, as to the "age and maturity" issue to be discussed later, Smyth conceded that, prior to filing this Hague petition, XXXXX [Minor Childs Name removed by Versuslaw] had, for a period of time told her that he wanted to live with his father in New York.
Q: Now, prior to the time that you filed the Hague petition in this matter, XXXXX [Minor Childs Name removed by Versuslaw] had for a period of time told you that he wanted to live with his father in New York; isn't that so?
Q: And how long had he been telling you that he wanted to live with his father in New York?
A: For approximately two years.
Q: Well, you had testified earlier that your son on numerous occasions, going back two years from today's date, and that being XXXXX [Minor Childs Name removed by Versuslaw], told you he wanted to live in the United States with his dad; is that correct?
Q: In fact, the Swiss authorities got involved with that situation, and you had corresponded with the Swiss authorities regarding the fact that XXXXX [Minor Childs Name removed by Versuslaw] did not want to stay in Switzerland anymore; is that correct?
At the time of their divorce the parties entered into an agreement entitled: "AGREEMENT between Anric Blatt and Linzi Smyth to put an end to divorce procedure". (Pet. Ex. 14). In this agreement, the petitioner was granted sole custody of the three children. The agreement also provided for "joint parental authority", as follows:
a. Anric and Linzi to have joint parental authority. By this it is understood by both parties that matters including, but not limited to, education, health and religion will be discussed between both parties and that neither party may make a significant decision without the consent of the other.
b. Linzi will provide monthly updates of the children's well being and educational progress to Anric.
c. Both parties will encourage the children to make weekly contact with the other party at all times. Verbal contact will be made at least once per week, but other contact including e-mail and videoconferencing will be available and encouraged as well.
d. Linzi agrees to provide Anric with a detailed itinerary of any holiday before the children's departure, to include, but not limited to, flight information, address and fixed-line telephone number of where the children will be staying, etc. Linzi agrees to advise Anric in the event that any changes are made to the itinerary after the children have departed.
e. Linzi agrees to insure that the children will contact Anric by telephone on their arrival after any significant travel (flights, etc.).
f. Linzi agrees to maintain and keep active children's British and South African Passports. Linzi will have custody of these passports.
g. Anric agrees to maintain and keep active children's German Passports. Anric will have custody of these passports.
h. Linzi agrees to assist Anric, where necessary, in the renewal process for the boys German Passports, and vice versa.
The "Parental Authority" provision in the agreement states in part, that "neither party may make a significant decision without the consent of the other." Smyth conceded that she did not tell Blatt that she was leaving the children in the care of Robert Perris. She also conceded that Robert Perris had slept in bed with one of their children. In addition, on July 16, 2008, she sent an e-mail to Blatt in which she advised him that she had given the passports of her three children to Perris and that Perris was to be contacted in the event of an emergency. (Resp. Ex. E).
The petitioner also related that on August 25, 2009, she received an e-mail from Blatt advising her "that the boys are going for treatment with Dr. Favaro who is a caring, sincere, well respected child and adolescent psychologist." (Resp. Ex. I). The e-mail further advised her that Dr. Favaro mentioned that she would be most welcome to contact him and participate in their treatment. However, she decided not to participate.
Again, on cross-examination counsel for the respondent returned to the issue of the petitioner's bout with alcohol. The petitioner acknowledged that in Kenilworth and Tharagay, she told the professionals that she had been an absent mother and that she was struggling to face this fact because of the effect her drinking had on her relationship with her children. (Tr. at 743). She also related how her drinking affected her relationship with her children. This testimony was in conjunction with the "12 Steps" which are suggestions that she is to follow, that are universal among all participants in an AA program.
Q: And if you look at 8, if you make a list - - I will rephrase slightly - - make a list of all the persons - - make a list of all the persons we had harmed and become willing to make amends to them all.
Q: And you knew you had to make amends for the wrongs you had done to your children; is that right?
THE WITNESS: Your Honor, I would have to explain the program, because if you are not in AA there is absolutely no way that you can explain how it works.
THE COURT: So you can't answer that question?
Q: Let me understand this.
You were drinking for a period of time when your infant children were at home with you; is that right?
MS. SOBAL: Objection. Infant ...