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D.T.J. v. Schmirer

United States District Court, S.D. New York

July 26, 2013

IN THE MATTER OF D.T.J., a minor child under the age of 16, GYULA JANOS JAKUBIK, Petitioner, -v- EVA SCHMIRER, Respondent

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[Copyrighted Material Omitted]

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For Gyula Janos Jakubik, Petitioner: Adam Shawn Mintz, David Owen, Cahill Gordon & Reindel LLP, New York, NY.

For DTJ, Movant: Courtney Meghan Wen, LEAD ATTORNEY, O'Melveny & Myers LLP, New York, NY; Karen L. Koniuszy, LEAD ATTORNEY, O'Melveny & Myers, LLP(NYC), New York, NY; Jennifer Baum, St. John's University School of Law, Jamaica, NY.

For Eva Schmirer, Respondent: Robert E. Slatus, LEAD ATTORNEY, Law Office of Robert E Slatus, New York, NY.

OPINION

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OPINION & ORDER

PAUL A. ENGELMAYER, United States District Judge.

Petitioner Gyula Janos Jakubik (" Jakubik" or " Petitioner" ) petitions this Court for the return of his daughter, D.T.J., to Hungary, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (the " Convention" or " Hague Convention" ) and its implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. § § 11601 et seq . (" ICARA" ). D.T.J., who is approximately two weeks shy of turning age 15, was removed from Hungary and brought to the United States by her mother, Respondent Eva Schmirer (" Schmirer" or " Respondent" ), on September 6, 2011. For the reasons that follow, Jakubik's petition is denied.

I. Procedural History

On June 14, 2013, Jakubik filed the petition, see Dkt. 1, along with an application for emergency relief in the form of an Order to Show Cause, see Dkt. 2. That Order, which the Court issued that day, directed the United States Marshals Service to take D.T.J.'s and Schmirer's passposts into custody for safekeeping by the Court; it set a hearing for June 24, 2013.

On June 24, 2013, the Court held a conference with counsel for Petitioner and for Respondent. At that conference, the Court discussed with the parties the potential for a voluntary resolution of the case, and directed the parties to meet and confer regarding such a resolution. See Dkt. 4. The Court also raised with the parties whether an attorney should be appointed for D.T.J. See id .

On June 26, 2013, the Court received a letter from counsel for Petitioner, reporting on the parties' Court-ordered meet-and-confer session, which did not lead to a voluntary resolution. Dkt. 7. That letter also informed the Court of the parties' agreement that the Court should appoint separate counsel for D.T.J. " as soon as practicable." Id .

On June 27, 2013, the Court held its next conference with the parties. At that conference, the Court set a pretrial and trial schedule. Also on June 27, 2013, Respondent filed her answer to the petition. See Dkt. 5, 10.

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On July 3, 2013, the Court appointed Jennifer Baum, Esq., as counsel for D.T.J. See Dkt. 9. On July 9, 2013, the Court granted, over Petitioner's objection, see Dkt. 12, D.T.J.'s motion to intervene as a party to the case. See Dkt. 13 (available at No. 13 Civ. 4087 (PAE), 2013 WL 3465857 (S.D.N.Y. July 9, 2013)).

Between July 22 and July 25, 2013, the Court conducted a bench trial. At that trial, the Court heard testimony from the following witnesses: Jakubik; Jakubik's " life partner," Adrienn Viczian, with whom he cohabits and has a child; Schmirer; Leslie Schwartz and Damaris Veras, two of D.T.J.'s teachers at North Rockland High School; Katalin O'Toole, D.T.J.'s grandmother (and Schmirer's mother); Dr. Mark Rand, a child psychologist; Professor Lenni Benson, a professor of immigration law; and D.T.J., whom the Court interviewed at length, with D.T.J. under oath, in the Court's robing room, having been provided with proposed questions from the parties, ex parte , in advance. The Court's interview with D.T.J. was conducted in the presence of counsel; and counsel were given the opportunity before the interview ended to propose supplemental questions to the Court. The Court has set out on the record the reasons for receiving D.T.J.'s testimony in this manner. See Transcript of July 12, 2013 Conference 29-35; Transcript of July 17, 2013 Conference (" July 17 Tr." ) 3-8.

II. Applicable Law

The purpose of the Hague Convention is " to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Hague Convention, pmbl.; accord Souratgar v. Fair , No. 12-5088, 720 F.3d 96, 2013 WL 2631375, at *2 (2d Cir. June 13, 2013) (quoting Abbott v. Abbott , 560 U.S. 1, 130 S.Ct. 1983, 2002 n.6, 176 L.Ed.2d 789 (2010)). The Convention does so by " ensur[ing] that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States," Chafin v. Chafin , 133 S.Ct. 1017, 1021, 185 L.Ed.2d 1 (2013) (quoting Hague Convention, art. 1), so that parents are " deter[red] from crossing international boundaries in search of a more sympathetic court," Blondin v. Dubois ( Blondin II ), 189 F.3d 240, 246 (2d Cir. 1999) (citation omitted). See Elisa Perez-Vera, Hague Convention on the Civil Aspects of International Child Abduction: Explanatory Report , ¶ 14, in 3 Acts and Documents of the Fourteenth Session (1982) (" Perez-Vera Report" ) (in the absence of such a system, " the abductor w[ould] hold the advantage, since it is he who has chosen the forum in which the case is to be decided, a forum which, in principle, he regards as more favourable to his own claims" ). ICARA was passed in 1988 to implement the Hague Convention in the United States. See id .

The Convention allows a parent alleging breach of his or her custody rights to initiate a proceeding to repatriate the child to the state of " habitual residence." ICARA provides that " [a]ny person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for . . . securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 42 U.S.C. § 11603(b). Under the Convention, a removal is wrongful when " (1) the child was habitually resident

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in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention." Gitter v. Gitter , 396 F.3d 124, 130-31 (2d Cir. 2005); see Hague Convention, art. 3 (" The removal or the retention of a child is to be considered wrongful where . . . it is in breach of rights of custody attributed to a person . . . , either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention." ); see also Abbott , 130 S.Ct. at 1989 (" A removal is 'wrongful' where the child was removed in violation of 'rights of custody.'" (quoting Hague Convention, arts. 3, 5)). ICARA places on the petitioning party the burden of proving by a preponderance of the evidence that a child's removal was wrongful. 42 U.S.C. § 11603(e)(1)(A).

A petitioner who has established wrongful removal by a preponderance of the evidence has made out a prima facie case under ICARA. At that point, ICARA requires that the child be repatriated for custody proceedings unless the respondent can make out one of four " narrow" affirmative defenses. 42 U.S.C. § § 11601(a)(4), 11603(e)(2); Souratgar , 2013 WL 2631375, at *2; Blondin II , 189 F.3d at 245. The four affirmative defenses include that: (1) the proceeding was commenced more than a year after the child's removal and the child has become settled in his or her new environment, Hague Convention, art. 12; (2) the person seeking the child's return was not exercising his or her custody rights at the time of removal or retention, or he or she consented to--or subsequently acquiesced in--the child's removal or retention, Hague Convention, art. 13(a); (3) returning the child poses a " grave risk" to his or her physical or psychological well-being or would place him or her " in an intolerable situation," Hague Convention, art. 13(b); or (4) the return of the child " would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms," Hague Convention, art. 20. The first and second affirmative defenses must be established by a preponderance of the evidence, see 42 U.S.C. § 11603(e)(2)(B); the third and fourth must be established by clear and convincing evidence, see 42 U.S.C. § 11603(e)(2)(A).

In addition, courts may consider a fifth affirmative defense: Article 13 provides that " [t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13; see also Blondin v. Dubois ( Blondin IV ), 238 F.3d 153, 166 (2d Cir. 2001) (" [T]he unnumbered provision of Article 13 provides a separate ground for repatriation and . . . a court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child." (emphases in original)); Broca v. Giron , No. 11 CV 5818 (SJ) (JMA), 2013 WL 867276, at *9-10 (E.D.N.Y. Mar. 7, 2013), aff'd by summary order , No. 13-1014-cv, 530 Fed.Appx. 46, 2013 WL 3745985 (2d Cir. July 18, 2013); Matovski v. Matovski , No. 06 Civ. 4259 (PKC), 2007 WL 2600862, at *9 (S.D.N.Y. Aug. 31, 2007); accord de Silva v. Pitts , 481 F.3d 1279, 1286 (10th Cir. 2007). Like the Article 12 defenses, this defense must be proven by a preponderance of the evidence. See 42 U.S.C. § 11603(e)(2)(B).

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Importantly, " [a] decision under [the] Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue." Hague Convention, art. 19; see Mota v. Castillo , 692 F.3d 108, 112 (2d Cir. 2012) (" The Convention does not establish substantive standards for resolving the merits of any underlying custody dispute. Rather, the Convention's focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings." (citations omitted)); Blondin II , 189 F.3d at 245 (same); 42 U.S.C. § 11601(b)(4) (" The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." ); cf . Perez-Vera Report, ¶ 124 (decision regarding return of the child " must not prejudge the merits of custody rights" ; Article 19 " seeks to prevent a later decision on these rights being influenced by a change of circumstances brought about by the unilateral action of one of the parties" ). And the affirmative defenses " do not authorize a court to exceed its Hague Convention function by making determinations, such as who is the better parent, that remain within the purview of the court with plenary jurisdiction over the question of custody." Blondin II , 189 F.3d at 246; accord In Re Lozano , 809 F.Supp.2d 197, 218 (S.D.N.Y. 2011), aff'd , 697 F.3d 41 (2d Cir. 2012).

Finally, it should be noted that, even where an affirmative defense has been established, it remains within the discretion of a court whether to allow the child to remain with the abducting parent or to order repatriation. See Souratgar , 2013 WL 2631375, at *3 (" [E]ven where the grounds for one of these 'narrow' exceptions have been established, the district court is not necessarily bound to allow the child to remain with the abducting parent." (quoting Blondin II , 189 F.3d at 246 n.4)); Lozano , 809 F.Supp.2d at 218; Matovski , 2007 WL 2600862, at *7, 15.

III. Findings of Fact

Based on the parties' submissions and the testimony at trial, the Court makes the following findings:

Jakubik and Schmirer met in 1996, at the ages of 20 and 19, respectively; they became cohabitants and life partners. Jakubik Decl. 1; Trial Transcript (" Tr." ) 21, 259. On August 11, 1998, D.T.J. was born to them in Kistarcsa, Hungary. See Jakubik Decl. 1; Schmirer Decl. ¶ 2; Tr. 22, 259. For the next six years, D.T.J. and her parents lived together in Valko, Hungary. See Jakubik Decl. 1-2; Schmirer Decl. ¶ 14; Tr. 23, 260. Jakubik worked, and still works, in the construction business. Tr. 20-21.

During the time the couple was living together, Jakubik was physically and verbally abusive to Schmirer, both in and out of the presence of D.T.J. This opinion chronicles some of these episodes in greater detail below, see infra pp. 31-34, but the evidence clearly established that Jakubik engaged in a pattern of serious physical and verbal abuse of Schmirer during the time they were a couple, including hitting and punching her, as well as threatening to kill her on repeated occasions. See Tr. 263-84; Petitioner's Exhibit (" PX" ) 2 at 2. The Court found Schmirer's testimony credible and indeed compelling on this point. Jakubik, by contrast, admitted only to having hit Schmirer on one occasion, see Tr. 32, in contradiction to Schmirer's more credible account. Jakubik's denial of other acts of violence is also in tension with the Hungarian court's having found " several occasions" of physical assault of Schmirer by Jakubik, see PX 2 at 2, and with the repeated references to,

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and threats of, violence that permeate Jakubik's 2012-2013 Facebook communications with D.T.J. See, e.g., Intervenor's Exhibit (" IX" ) 6 at DTJ0131-DTJ0132, DTJ0140--DTJ0141; IX2 at DTJ0117.

The couple separated in 2004. See Jakubik Decl. 2; Schmirer Decl. ¶ ¶ 11, 14; Tr. 23, 260; PX 2 at 2. Schmirer left the residence, taking D.T.J. with her; the two moved to a residence in Karancsaija, where they lived with a Laszlo Paulo, with whom Schmirer was then in a relationship. Tr. 260. Jakubik alleges that he was unable to contact his daughter or Schmirer for the next six months. Jakubik Decl. 2; Tr. 24.

On August 11, 2005, D.T.J.'s seventh birthday--while D.T.J. was living with Schmirer and Laszlo Paolo--Jakubik came to take D.T.J. to McDonald's to celebrate her birthday. Tr. 281-82; 421. Both Schmirer and D.T.J. vividly recall this incident, and the Court found their testimony about it credible. Specifically, upon their return to Schmirer's home, where Schmirer was standing outside awaiting them, Jakubik refused to allow D.T.J. to exit the car, grabbing her by the arm and hand. Tr. 283, 422. Jakubik was shouting at Schmirer, who was attempting to pull D.T.J. from the car. Tr. 283, 422-23. Suddenly, Jakubik drove off. Tr. 283, 423. For the next 10 months, D.T.J. lived with Jakubik in the house in Valko with Jakubik's mother. Tr. 25, 423-24, PX 2 at 2. D.T.J. began the first grade there. Tr. 25, 425; PX 2 at 2. On one occasion, on August 20, 2005 (a national holiday in Hungary), D.T.J. recalls being told about her mother attempting to come, accompanied by relatives and men of imposing stature, to retrieve her. Tr. 425-26. D.T.J. believes that her father attempted to hit her mother with his car, but that the men intercepted to prevent that from happening. Id .; D.T.J. Decl. ¶ 16.

Schmirer brought a proceeding in Hungarian court to have D.T.J. returned to her custody. On June 22, 2006, the Municipal Court of Salgotarjan, Hungary granted custody to Schmirer. PX 2. The Court recognized that Jakubik had failed to return D.T.J. to her mother after a visitation, and had instead brought her to live with him. Id . at 2. Jakubik was given visitation rights on every other weekend from 10 a.m. Saturday to 5 p.m. Sunday, as well as half of any multi-day holidays. Id.; see Jakubik Decl. 2; Schmirer Decl. ¶ 4; Tr. 29. For the next five years, D.T.J. lived with Schmirer in Karancsaija. Schmirer Decl. ¶ 14; Jakubik Decl. 2.

In 2007, Jakubik married Adrienn Viczian, and in 2008, the two gave birth to another daughter, Bogolarka. Tr. 41-42, 180-81. The degree to which Jakubik made child support payments to Schmirer during the period from 2006, when Schmirer was given custody of D.T.J. and Jakubik was granted visitation rights, and 2011, is disputed, and Schmirer has made inconsistent statements on this point. See Schmirer Decl. ¶ 11; Tr. 346-48, 365. The Court finds, however, that Jakubik made at least approximately 10 such payments. See PX 4; Tr. 347-48, 365. During that time, D.T.J. visited her father (for the majority of that time, in his residence with Viczian and their daughter) on some occasions, although the frequency of those visits was disputed, with Jakubik claiming that they were frequent and D.T.J. and Schmirer claiming that they were sporadic. Compare Tr. 37, 43, and Jakubik Decl. 2, with Tr. 448, 495, and D.T.J. Decl. ¶ 10. D.T.J. testified that she visited Jakubik approximately 30 times during her last two years in Hungary. Tr. 448. The Court credits that D.T.J. made at least that many visits to Jakubik during this period.

Upon her visits to Jakubik's household, D.T.J. and Jakubik would share a bed,

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with the other two members of the household in another room. Tr. 63, 443. D.T.J., who wore pajama pants and a t-shirt to bed, alleges that on one such occasion, she awoke to find her father, who slept in a t-shirt and his underwear only, cupping her breast with one hand and touching her undergarments in the area of her crotch with the other. Tr. 444. Both hands were still. Tr. 444-45. D.T.J., however, could not say for certain that Jakubik was awake at that moment. She testified that she thought he was, but could not explain the basis for this perception. Tr. 444-45. D.T.J. retreated to the other side of the bed; her father did not ever attempt to touch her intimately again. Tr. 445. D.T.J. never thereafter raised the incident with her father, or with anyone else until the onset of this litigation. Tr. 344, 445-46.

After that time, D.T.J. continued to visit her father. However, she testified, she did not spend the night at his house again. Tr. 448-49. When her father would inquire as to why, she says, she would not say. Tr. 449.[1]

Around the spring of 2011, Schmirer and D.T.J. began talking seriously about coming to America. Tr. 310. Schmirer's mother had, by that time, been living in Haverstraw, New York for a few years with her current husband, John O'Toole, and the two understood that they would be able to live with Schmirer's mother if they came to the United States. According to D.T.J., they made the final decision to come to the United States, together, about one month before their departure in September 2011. Tr. 403. Schmirer and D.T.J. both acknowledge that they did not inform Jakubik of their plans. PX 1; Tr. 406. At the time they left for the United States, D.T.J. testified, she and her mother expected to stay approximately three months; the decision to stay permanently came later. Tr. 403.

The last occasion on which D.T.J. saw Jakubik was on September 5, 2011. Tr. 454. After attending a concert with a friend, D.T.J. went over to her father's house and asked him for some money, which he provided. Tr. 454-55, 465-66, 509-10.

The next day, September 6, 2011, Schmirer and D.T.J. left Hungary and traveled to the United States. Upon their arrival in New York, D.T.J. and Schmirer moved in with Katalin O'Toole in Haverstraw, New York, which is located in Rockland County. Schmirer Decl. ¶ 6; D.T.J. Decl. ¶ 2; Tr. 243. They have lived at that residence from the time of their arrival in the United States to the present day. Tr. 190, 243-44. D.T.J.'s cousin and godmother, Timea Deak, who came over to the United States approximately a year after Schmirer and D.T.J., also lives with them. D.T.J. Decl. ¶ 2; Tr. 190-91, 395. They also have relatives--Schmirer's sister, her husband, and two children--nearby in Clifton, New Jersey. D.T.J. Decl. ¶ 2; Tr. 397.

D.T.J. attended the eighth grade at Fieldstone Middle School during her first year in the United States. D.T.J. Decl. ¶ 3; Tr. 377. She is now on summer vacation from North Rockland High School, where she completed the ninth grade. D.T.J. Decl. ¶ 3; Tr. 375, 378. D.T.J. has learned English quickly, has a number of friends, and performs reasonably well in

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school, where she is enrolled primarily in courses for students who speak English as a second language. See PX 64; Tr. 162, 289, 376. The family is supported by Katalin and John O'Toole, both of whom are retired and receive monthly pensions, which together produce approximately $57,000 in annual income. John O'Toole also has savings of at least approximately $200,000. Tr. 231-33, 254-55.

Since her arrival in the United States, D.T.J.'s only communications with Jakubik have been through Facebook, through which communications have been extensive, and, on about three occasions, on Skype. See IX 6, 7; Tr. 483-85. The tenor of the Facebook conversations, which the Court has reviewed and which are described in more detail below, see infra pp. 35-37, ranges from affectionate to extremely hostile, inflammatory, and abusive.

IV. Discussion

A. Prima Facie Case

Petitioner has made out a prima facie case by a preponderance of the evidence, as he must under ICARA. The parties do not dispute, and it was established at trial, that D.T.J. was born in Hungary and lived there until age 13, thus meeting the definition of a " habitual resident" of Hungary. It is also undisputed that Schmirer brought D.T.J. to the United States without the knowledge or consent of Jakubik, and that, according to the custody order of the Municipal Court of Salgotarjan, Jakubik was to have visitation rights every other week. D.T.J.'s abduction by Schmirer, therefore, was in violation of Jakubik's custody rights under the Convention. See Ozaltin v. Ozaltin , 708 F.3d 355, 367 (2d Cir. 2013) (" [T]he Convention's broad definition of rights of custody is not constrained to traditional notions of physical custody. Instead, the Convention recognizes the increasingly common exercise of joint legal custody, in which one parent cares for the child while the other has joint decisionmaking authority concerning the child's welfare." (citing Abbott , 130 S.Ct. at 1991 (other citations and alterations omitted)).

Although Schmirer conceded early in the case that Jakubik had made out a prima facie case of wrongful removal, see Dkt. 7, D.T.J. initially made no such concession. She argued instead that Jakubik was not, in fact, exercising his custody rights at the time of removal. The basis for this claim was her assertion, noted above, that Jakubik frequently missed his scheduled visitations with her.

The evidence on this point, however, sufficiently supported Jakubik. Jakubik and his life partner, Adrienn Viczian, both testified that D.T.J.'s visitations, prior to her departure for the United States, occurred nearly every other weekend, as scheduled. And when asked by the Court approximately how many times she had visited with her father in the final two years before her departure for the United States, D.T.J. estimated the number to be about 30. Tr. 448. In addition, the ongoing custody proceedings in Hungary evince an interest--albeit perhaps sporadic--on Jakubik's part in securing custody of, or at least a more favorable custodial arrangement regarding, D.T.J.

On the eve of trial, presumably in light of a fuller appreciation of these facts, D.T.J.'s counsel, on her behalf, conceded that Jakubik had made out a prima facie case. See Joint Pretrial Order IV(a)(i). The Court agrees, and holds that, measured against the case law, Jakubik's lapses, if any, in visiting with D.T.J. do not disentitle him to relief. The standards applied to evaluating whether a petitioner is exercising custody at the time of removal

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are instead lenient: They have been held to require fairly minimal activity on the part of a petitioner. See Souratgar v. Fair , No. 12 Civ. 7797 (PKC), 2012 WL 6700214, at *4 (S.D.N.Y. Dec. 26, 2012) (" A person cannot fail to exercise [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." (citing Friedrich v. Friedrich , 78 F.3d 1060, 1066 (6th Cir. 1996)); Croll v. Croll , 66 F.Supp. 2d, 554, 560 (S.D.N.Y. 1999) (" Once the court determines that the parent exercised custody rights in any manner, the court should stop--completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of the federal courts." (citation omitted)), rev'd on other grounds , 229 F.3d 133 (2d Cir. 2000), abrogated by Abbott v. Abbott , 560 U.S. 1, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (holding that a statutory ne exeat right qualifies as a right of custody under the Hague Convention).

For these reasons, Jakubik has established a prima facie case of wrongful removal under the Hague Convention and ICARA. This case, therefore, turns solely on whether there have been established one or more affirmative defenses to the wrongful removal.

B. Affirmative Defenses

1. Article 12 " Settled" Defense


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