Hadjittofi vs Hadjittofi (New York 1996) Family Court Docket Number V-2008/9-96 =========================================================== STATE OF NEW YORK COUNTY OF MONROE FAMILY COURT ____________________________________________ Daniel Hadjittofi, Petitioner, vs Docket No: V-2008/9-96 Catherine Ann Orlando Hadjittofi, Respondent. ____________________________________________ APPEARANCES: Vincent D. Cardone, Esq. Thomas D. Calandra, Esq. Attorneys for Petitioner Kaman, Berlove, Marafioti, Jacobstein & Goldman Deborah A. Crowder, Esq. Of Counsel Robert D. Arenstein, Esq. Co-Counsel Attorneys for Respondent Margaret A. Burt, Esq. Law Guardian DECISION and ORDER The facts of thin case are largely undisputed. The parties met as students while attending Hamilton College in Clinton, New York in 1980. The petitioner was a citizen of the Republic of Cyprus and respondent was a citizen of the United States. Following a courtship in the United States and completion of graduate studies by petitioner, the parties relocated to Cyprus in September of 1983 and were married there in December 1983. Their first child, Christopher, was born in Cyprus on November 12, 1985 and their second child, Andrew, was born August 2O, 1989 also in Cyprus. The children have resided In Cyprus since birth and attended school there. Prior to the retention of the children in the United States by respondent, both parties as husband and wife exercised equal custody and responsibility for the children. In fact, petitioner had been president of the Parent Teacher Association of the school which Christopher and Andrew attended. In June 1996, the petitioner who is the executive director of the Commission For Educational Exchange between Cyprus and the United States came to Washington D.C. on official business. He purchased round trip tickets for his wife and children so that they could come to the United States and visit with her mother and step father in Rochester, New York. Petitioner went to Kennedy Airport in New York City on June 30th to greet his family upon their arrival from Cyprus. He spent the night of June 30th in New York City with them and then saw them to the airport on July 1st for the flight to Rochester. His plan was to Join the family in Rochester at the conclusion of his business in Washington on July 10th and vacation with them. On July 9th he received a phone call from respondent telling him for the first time that the marriage was over, that she wanted a divorce, that the children would remain in the United States with her and that he was not welcome to come to Rochester or to visit with the children. The petitioner testified that he was devastated by this news and was in a state of shock and disbelief. He acknowledged to her his ongoing obligation to support the children and the conversation concluded. He called several times thereafter, was allowed one short conversation with his eldest son, and another time had a conversation with the step grandfather in which he asked him to make sure the children would maintain their religion and that violin lessons would continue for his son Christopher. He then cut short his stay in the United States, returned to Cyprus and immediately sought legal advice. He obtained an ex parte order from the Family Court of Cyprus which ordered the return of the children to Cyprus for determination of custody. He proceeded in accordance with the provisions of the Hague Convention to notify the United States Department Of State, retained counsel in the United States and filed a petition in this Court for immediate return of the children to Cyprus under the Hague Convention on the Civil Aspects of International Child Abduction and the implementing Federal law, The International Child Abduction Remedies Act (42 USC 11601 et. seq.) hereinafter referred to as ICARA. Responsive pleadings were filed by respondent, a law guardian was appointed for. the children, and a full hearing including an in camera interview with the children was held by the Court. The Court notes that both the Republic of Cyprus end the United States have ratified the Hague Convention. The object of the Hague Convention is to secure the prompt return of children wrongfully removed to or retained in any contracting State and that persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention. Hague Convention, Article 1; ICARA 42 USC 11601. The elements necessary to be proven by the petitioner are that the children are under the age of sixteen, that the action was commenced within one year of their wrongful removal or retention in breach of the rights of custody and that Cyprus is the country of habitual residence of the children. Hague convention Articles 3 and 12, ICARA 42 USC 11603(e)(1)(A). Of these points, only the country of habitual residence is contested by respondent. There is no question that the unilateral decision of the respondent to convert a short visitation in the United States into a permanent residency for her and the children was a wrongful retention of the children. The petitioner had fully expected the children to be returned as evidenced by his purchasing of round trip tickets for them and was sharing custody of the children with their mother at the time. Respondent argues however that petitioner's return to Cyprus end his apparent willingness to allow the children to remain behind is sufficient acquiescence to vitiate the respondent's wrongful retention and make the United States the country of habitual residence. The case of Friedrich v. Friedrich 78 F.3d 1060 (6th Cir 1996) 1s instructive on that point. There the court set up a three pronged teat to determine if acquiescence had occurred. The tests were that acquiescence under the convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renuncication of rights; or a consistent attitude of acquiescence over significant period of time. WMHFN1 None of those elements were present here. The petitioner's response to respondent's wrongful retention was at first shock and disbelief with corresponding statements of concern for the children followed within days by a prompt and vigorous pursuit of all his legal remedies. This Court therefore rules that the respondent's retention of the children in the United States was wrongful and that the country of habitual residence is the Republic of Cyprus. See also Brennan vs Cibault (A.D. 4th Dept 1996) 643 N.Y.S.2d 780. The respondent contends however that even if the retention was wrongful and the country of habitual residence is Cyprus, the Court should refuse to return the children under two defenses established by the Hague Convention. The first of those defenses is that a return to Cyprus would pose a grave risk to the children of physical or psychological harm or otherwise place the children in an Intolerable situation. Hague convention Article 13(b). The grave risk exception must be proven by clear and convincing evidence by the party asserting the defense. 42 U.S.C. 11603(e)(1)(A). Respondent argues that the political turmoil in Cyprus is so intense and the potential for warfare to erupt so real that to send the children back to Cyprus would expose them to grave risk of harm. This Court cannot agree. The only evidence on this point brought forward by respondent were her own statements. These were contradicted by a witness produced by the petitioner, Mr. Kapsos the Consul General in New York City for the Republic of Cyprus. Mr. Kapsos testified that in 1974 Turkish troops invaded Cyprus and since then have occupied 37% of the country. A U.N. peace keeping force has patrolled the buffer zone between the Greek community in Cyprus and the Turkish controlled territory. The situation has been relatively stable since 1974. Tourism continues as a large industry in Cyprus and there is a seizable contingent of American citizens living in Cyprus. There are no state Department advisories in effect cautioning against travel to Cyprus and no warnings for American citizens or their dependents to leave the country. The respondent married the petitioner in 1983 well after the Turkish invasion. She chose to marry the petitioner, to reside in Cyprus, to have children with him and to raise their children there. She cannot now suggest that the situation has changed so dramatically as to pose a grave risk to the children. Her proof is utterly lacking in this regard. No court can guarantee the absolute safety of any child in the United States or Cyprus. This Court is all too familiar with the effects of juvenile violence in this country. Respondent testified that her children would be much safer here than in Cyprus. Yet a recent series of articles in the Rochester Democrat and Chronicle portrayed the epidemic of youth violence here in Monroe County where respondent proposes to raise the children. In a poll of teen-agers conducted for that series 31.9% thought that their lives would be cut short by violence and 18.5% carried weapons with them because of their fear of violence. See Rochester Democrat and Chronicle Saturday September 28, 1996 page 1A and following. Finally, respondent puts forth the defense that the children hare opted to stay in the United States. Article 13 of the the Convention allows for the judicial authority to consider the children's wishes. This must be proven by a preponderance of the evidence. ICARA 42 USC 11603(e)(2)(B). Establishment of this defense depends upon the children's age and degree of maturity, and is not binding upon the Court but only a factor which the court may consider. The Court held an in camera interview to determine the wishes of the children. As to the child Andrew, he is 7 years old and clearly lacks the maturity and ability to form a rational judgment. Suffice it to cay without revealing the confidences of the in camera proceeding that Andrew is ambivalent about where he wants to reside. He is torn by his parents' conflict and wants to have a decision made so he can get on with his life. If this case Involved just Andrew there is no question that under the law he would be on the first plane back to Cyprus. The respondent maintains however that Christopher, the ten year old child is mature and capable of making a decision. To bolster this contention the law guardian had Dr. Santo M. Hontivegna a New York State licensed psychologist examine Christopher. He testified that his examination revealed Christopher to be well above average intelligence for a ten year old. Respondent testified at trial that Christopher preferred the educational system here even though he has only been enrolled in school in the United States for a few weeks, that he feared the political situation in Cyprus, that he was especially afraid of having to serve in the military, (all Cypriot citizens must do military service commencing at age sixteen), and that the possibility of enhancing his talent as a violinist are much greater here than in Cyprus. Again without revealing the confidences of the in camera proceeding, it was clear to the court that although Christopher might have some preference for this country his primary relationship and the strongest bond be has is with his younger brother. There is no question that whatever preferences he may have are subservient to his love for his brother ad the desire to remain with him even if that means returning to Cyprus. For decades our courts have recognized that separation of siblings is to be frowned upon and only to be done in the most overwhelming of circumstances. White v. White, 209 Ad 2d 949 (4th Dept. 1994). No such overwhelming circumstances apply here. It in abundantly clear to this Court from all of the evidence presented that the petitioner has met his burden of proof, that the defenses raised by the respondent have no merit and that the children should be returned to Cyprus. All questions of custody and visitation shall be decided by the courts of the Republic of Cyprus. The Hague Convention to which both the United States and the Republic of Cyprus are signatories is founded and rests on the unanimous rejection by the ratifying states of illegal child removals and upon the conviction that the best way to combat this is to refuse to grant them legal recognition. This case falls squarely into that framework. If the decision here was otherwise, the treaty would be entirely meaningless. The Court therefore orders that the children Christopher and Andrew be forthwith transferred to petitioner for return to Cyprus and for determination of all other matters relating to these children by the courts of that country. The application to this Court for stay for leave to appeal to Appellate Division is denied. The petitioner may move this Court for counsel fees and other expenses upon motion with notice to respondent's counsel. This decision constitutes the Order of the Court. Signed this 2nd day of October, 1996 at Rochester, New York. /s Michael J. Miller ___________________________ MICHAEL J. MILLER Family Court Judge. -------------------- 1. It could be held that the one year period of Art. 12 is a "significant period of time."