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Miltiadous v. Tetervak

February 19, 2010


The opinion of the court was delivered by: Eduardo C. Robreno, J.


I. Introduction

This is a Petition for Return of Children brought pursuant to the Hague Convention.*fn1 Miltiadis Achillea Miltiadous, the father ("Petitioner"), filed for a petition for the return of his two children from the United States to Cyprus.*fn2

Inna Tetervak, his wife and the mother ("Respondent") of the children, contends that the United States is the children's "habitual residence," and that the children's return to Cyprus would expose them to a grave risk of physical or psychological harm. For the reasons discussed below, the Court will deny the petition.

Having heard the evidence and arguments presented by the parties, the Court makes the following findings of fact and conclusions of law.

II. Findings of Fact*fn3

Petitioner is a citizen of Cyprus and Respondent is a Russian citizen. The two met in Cyprus in 2000 while the Respondent was in Cyprus on a worker's visa. After a brief courtship, Petitioner and Respondent were married on November 29, 2000, in Aradippou, Cyprus, and continued to live together in Cyprus until November 23, 2007. After her marriage to Petitioner, Respondent had temporary resident status in Cyprus that was dependent upon Petitioner signing her visa yearly.

Petitioner and Respondent had two children together, Iliana Miltiadous and Achilleas Miltiadous (jointly referred to as the "children"), born on August 24, 2002, and March 29, 2004, respectively. The children were born in Cyprus and are Cyprus citizens. At the time the instant motion was filed, the children were six and four years old, respectively.

Petitioner and Respondent experienced a violent and tumultuous relationship throughout their marriage. Petitioner was an "avid drinker and habitual drug user," and physically and psychologically abused Respondent "almost throughout the duration of their marriage." (Resp., doc. no. 9 at 13) Although Petitioner has never physically harmed the children, he has "always harassed the children by yelling at them and threatening them that he would take them away and they would never see their mother again." (Id.)

On November 23, 2007, the family departed for a temporary vacation to visit extended family in the United States. Return airline tickets were purchased; Petitioner was to return to Cyprus on January 20, 2008, and Respondent and both children were to return on February 24, 2008.

While the family was visiting Respondent's parents in the United States, Petitioner's abusive behavior continued. On December 1, 2007, Petitioner returned to Respondent's parents home drunk and aggressive. Respondent called the police on December 1, 2007, and Petitioner left to stay with his cousins in New Jersey.

Petitioner was served with a "Notice of Hearing and Order" for temporary restraints, issued by the Pennsylvania Court of Common Pleas on December 10, 2007. On December 14, 2007, after a hearing at which both Petitioner and Respondent were represented by counsel, Respondent obtained a Protection from Abuse Order from the Court of Common Pleas in Philadelphia, ordering Petitioner to stay away from Respondent, granting Respondent sole custody of the children, and allowing Petitioner weekly supervised visitation rights with the children. Despite this order, on December 21, 2008, Petitioner called Respondent and left a threatening voicemail, urging her to stop the legal proceedings. Thereafter, Respondent called the police and a warrant was issued for Petitioner's arrest.

Respondent filed for political asylum in the United States on May 9, 2008, seeking permanent asylum for herself and her children due to the fear of imminent physical and mental abuse by her husband in Cyprus. (Doc. no. 9, Ex. 2). On July 22, 2009, Respondent was granted asylum and her children's immigration status is derived from hers. Trial Tr. at 7:19-21, Oct. 29, 2009. Respondent and the children currently reside with her parents in Philadelphia, Pennsylvania.

Since returning to Cyprus, Petitioner has spoken with Respondent by telephone and requested that she voluntarily allow the children to return to Cyprus. Respondent has refused this request. On November 14, 2008, Petitioner filed an "Application for Assistance Under the Hague Convention on Child Abduction from Cyprus to the Central Authority of the United States of America: Request for Return of Child Under Article 12 of the Convention."

(Doc. no. 1.) In addition, Petitioner is pursuing legal action in Cyrus for Respondent's retention of the children in the United States without Petitioner's consent.*fn4

III. Legal Standard under the Hague Convention

1. Background

The Hague Convention on the Civil Aspects of International Child Abduction reflects a universal concern about the harm done to children by parental kidnaping and a strong desire among the Contracting States to implement an effective deterrent to such behavior. Hague Convention, Preamble, 42 U.S.C. § 11601(a)(1)-(4). The United States and Cyprus are signatories to this multilateral treaty. The United States Congress implemented the Convention in the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq.

Pursuant to the preamble of the Hague Convention, there are two main purposes of the Convention: (1) "to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed;" and (2) "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." The Convention's procedures are not designed to settle international custody disputes, but rather to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases. Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005).

2. Petitioner's Burden

Any person seeking the return of a child in the United States may commence a civil action under the Convention by filing a petition in a court of the jurisdiction in which the child is located. 42 U.S.C. § 11603(b). To obtain an order for the child's return under the Hague Convention, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was "wrongful" under Article 3. 42 U.S.C. § 11603(e)(1)(A).*fn5

Specifically, a petitioner must show: (1) the child was habitually residing 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.

42 U.S.C. § 11603(e)(1)(A).

The Third Circuit highlights these requirements and notes that wrongful removal or retention claims under Article 3 of the Convention typically raise four questions: "(1) When did the removal or retention at issue take place?; (2) Immediately prior to the removal or retention, in which state was the child a habitual resident?; (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?; and (4) Was the petitioner exercising those rights ...

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