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Iulian Cristian Radu v. Petruta Toader

August 3, 2011

IULIAN CRISTIAN RADU, PETITIONER,
v.
PETRUTA TOADER, ALSO KNOWN AS
PETRUTA NICOLAIE, AND FORMERLY KNOWN AS PETRUTA RADU, RESPONDENT.



The opinion of the court was delivered by: Azrack, United States Magistrate Judge:

MEMORANDUM & ORDER

Iulian Cristian Radu ("petitioner") brings this action against Petruta Toader ("respondent") for the return of their child L.R.*fn1 to Romania pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention" or "Convention") as implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ("ICARA"). Petitioner is a Romanian citizen, and currently lives in Romania. Pet.'s Verified Pet. for the Return of a Child to Romania Under the Hague Convention ("Pet.'s Br.") ¶¶ 7--8, ECF No. 1; Pet.'s Mem. of Law in Supp. of Verified Pet. for the Return of a Child, ("Pet.'s Mem. of Law") 1, ECF No. 2. Respondent and L.R. are also Romanian citizens, but currently reside in Forest Hills, New York. Compl. ¶ 8.

The petition was filed on April 6, 2011. Compl., ECF No. 1. The Honorable Edward R. Korman issued an order later that day commanding respondent to appear on April 14, 2011, to show cause why L.R. should not be returned to Romania. Order to Show Cause, ECF No. 3. On April 21, 2011, the parties consented to me to preside over this case. ECF No. 19. Prior to the hearing, both petitioner and respondent filed briefs outlining their respective positions. Pet.'s Mem. of Law; Resp.'s Verified Answer to Pet. for the Return of a Child To Romania ("Resp.'s Br."), ECF No. 13. After attempts to settle this matter failed, the hearing occurred on June 27, 2011. ECF No. 29. For the reasons stated below, the Hague Convention petition is denied.

I.BACKGROUND

A.The Family in Romania

Petitioner and respondent were born in Romania and are Romanian citizens. Pet.'s Mem. of Law 3. In January 2003, the two married in Romania. Id.; Transcript of June 27, 2011 Hearing ("Tr.") 4:21--23. Two years later, on January 13, 2005, L.R. was born in Romania. Pet.'s Mem. of Law 3. Petitioner, respondent, and L.R. lived together in respondent's parent's home in Bucharest, Romania until August 2009. Id. Petitioner contends that he maintained a strong and loving relationship with his son. Id. Petitioner attests that while the family lived together, he helped provide L.R. with medical care, clothing, and other necessary items, and dropped him off at kindergarten.*fn2 Pet.'s Br. ¶ 12; Tr. 8:18--22. Respondent counters that when she would ask petitioner to pick up the child from school, he would respond that he needed to sleep or felt too tired. Tr. 34:12--17. Respondent alleges that during their marriage, petitioner was a "very lazy person," who played videogames frequently. Tr. 34:7--15.

B.The Divorce Decree

In May 2009, respondent took a business trip to New York for approximately five days. Pet.'s Mem. of Law 4. Upon her return, she demanded that the family move to New York. Id. When petitioner refused, respondent filed for divorce at the end of May 2009. Id. In June 2009, petitioner and respondent traveled to Turkey in hopes of salvaging their marriage.*fn3 Tr. 10:1--8. Upon returning from the trip, however, respondent decided to end the marriage and filed for divorce.

Petitioner contends that after respondent filed for divorce, she refused to let him see his child.*fn4 Tr. 10:12--25. In August 2009, petitioner went to respondent's place of employment to confront her about the divorce and his visitation access to L.R. Resp.'s Br. ¶¶ 60--62; Tr. 11, 36:4--7. Respondent recounts that when petitioner arrived at her work, petitioner yelled at her and choked her in front of her co-workers. Resp.'s Br. ¶ 62; Tr. 36:8. Respondent contends that her colleagues had to pull petitioner away from her, and that she and her boss called the police.*fn5

Tr. 36:8. Respondent also alleges that petitioner keyed the hood of her car. Tr. 36:23; Resp.'s Br. ¶ 62. Petitioner denies both of these allegations. Tr. 11:19--22.

On October 2, 2009, a Bucharest court issued a Divorce Decree*fn6 granting respondent sole custody of the child and granting petitioner visitation rights, for one year, for two weekends each month, two weeks during the summer, one week during winter vacation, and one week during the Easter holiday.*fn7 Pet.'s Mem of Law 4; Pet.'s Br., Ex C. ("Divorce Decree"). The Divorce Decree provides that, pursuant to Romanian Family Code and Law no. 272/2004, the non-custodial parent "shall retain the right to a personal relationship with the child," have input in the "upbringing and education of the child," and maintain a "close emotional relationship" with the child. Divorce Decree 3--4. The Decree also requires that petitioner pay 300 Lei each month in alimony, which he has continued to do since the divorce. Id.; Tr. 12:2--16. The court explicitly defines the custody determination as a "final and irrevocable court decision." Divorce Decree 4.

C.After the Divorce

Between the divorce in October 2009 and L.R.'s removal from Romania in September 2010, petitioner exercised his visitation rights and provided financial and emotional support to the child. Pet.'s Mem. of Law. 4--5. From approximately December 2009 to June 2010, respondent permitted petitioner to have additional visits with the child beyond his decreed visitation schedule. Id. Petitioner testified that he actively participated in L.R.'s life and cared for his son's emotional and educational needs. Tr. 12:24--13:15. Respondent argues that, during this time, petitioner once returned L.R. from his scheduled visitation period two days early, despite being allotted a full week with the child. Resp.'s Br. ¶ 63; Tr. 38:12--23. Respondent also alleges that petitioner would return the child home with sunburns, and, on one occasion, returned the child sick. Resp.'s Br. ¶ 61; Tr. 37:13--38:23. Petitioner denies these accusations. Tr. 13:4--24.

In June 2010, respondent informed petitioner that she wished to take their son to Disneyland, California for a week in August. Pet.'s Mem. of Law 5. On June 28, 2010, petitioner signed a form granting his permission.*fn8 Pet.'s Br. 6; Pet.'s Trial Exs., Ex. 8. Although she received petitioner's approval, respondent never took the child to Disneyland.

On September 17, 2010, respondent and the child moved to the United States without notifying petitioner. *fn9 Pet.'s Mem. of Law 6; Tr. 41:17--19. On September 25, 2010, petitioner went to pick up his child from respondent's home for his scheduled visit and was told by respondent's parents that respondent and the child had resettled in the United States. Tr. 15:14--19. On September 29, 2010, petitioner received a letter from respondent's attorney, which provided him with respondent and L.R.'s new address and telephone number in Forest Hills, New York. Tr. 16:1--12; Pet.'s Trial Exs., Ex. 9. Petitioner has since had telecommunications with his child via both phone calls and video conference. Resp.'s Br. ¶ 64.

D.Petitioner's Legal Proceedings

On February 25, 2011, petitioner filed a petition in the Bucharest Court seeking a decision that respondent's removal and retention of L.R. outside of Romania was illegal. Pet.'s Mem. of Law; Pet.'s Br., Ex. G. On May 5, 2011, the Bucharest Court dismissed the action, finding that petitioner did not have ...


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