United States District Court, Eastern District of New York
For the Petitioner: ANDRZEJ GASAK Law Office of Andrzej Gasak
For the Respondent: KAMELIA KATRINA POPPE Law Firm of Shaw & Associates
MEMORANDUM AND ORDER
FREDERIC BLOCK, SENIOR UNITED STATES DISTRICT JUDGE
On February 11, 2014, Cezary Gwiazdowski (“Cezary”) brought this petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11, 670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10494 (Mar. 26, 1986), as implemented in the United States by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001–11. Cezary seeks the return to Poland of his two children, K.G. and M.G., who have resided in the United States with Anetta Gwiazdowska (“Anetta”), his wife and the biological mother of the two children, since April 2011.
For the reasons that follow, the Court concludes that although the children’s removal from Poland was likely wrongful, Anetta has established that the children are now “settled” in the United States – an affirmative defense under Article 12 of the Hague Convention. Accordingly, Cezary’s petition is denied.
The following constitutes the Court’s findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
The Hague Convention, to which the United States and Poland are both signatories,  was adopted to “protect children internationally from the harmful effects of their wrongful removal and to establish procedures to ensure their prompt return to the State of their habitual residence.” Hague Convention, pmbl. In adjudicating a Hague Convention petition, “a United States District Court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.” Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999).
To prevail on a Hague Convention claim, the petitioner must show by a preponderance of the evidence that (1) the child was habitually resident in one State and was 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).
Once a petitioner establishes these elements, “the child is to be returned unless the defendant establishes one of four defenses.” Ermini v. Vittori, 758 F.3d 153, 161 (2d Cir. 2014). One defense is of particular relevance here. Under Article 12 of the Hague Convention, if a Hague Convention petition is filed more than one year after the wrongful removal, the Court “shall . . . order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Hague Convention, art. 12. The respondent bears the burden of establishing this defense by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(2)(B).
Though the Convention does not define the term “settled, ” the Second Circuit has stated that the term “should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012). In adopting the “settled” defense, “the Convention’s framers recognized that . . . there could come a point at which a child would become so settled in a new environment that repatriation might not be in its best interest.” Blondin, 238 F.3d at 164.
The Court held a hearing on March 26 and 30, 2015, at which the Court heard testimony from Cezary and Anetta. With consent from both parties, the Court interviewed K.G. (age 10) and M.G. (age 8) in camera outside of the presence of the parties and their respective counsel. The parties also submitted various documents into evidence, including (1) school report cards for K.G. and M.G., (2) immigration documents for Anetta and the children, and (3) documents from Queens County Family Court (“Family Court”) relating to custody petitions filed by Cezary and Anetta.
Cezary and Anetta met in Elbląg, Poland, in 1996 and became romantically involved. At that time, they were both studying to become physicians. In July 2003, the couple married in a Polish Catholic church in Brooklyn, New York, a choice they made so that Anetta’s mother, who lives in Maspeth, New York, could attend the wedding. The couple returned ...