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Karpenko v. Leendertz

March 3, 2010

MARINA KARPENKO A/K/A MARINA P. LEENDERTZ PETITIONER
v.
PAUL P. LEENDERTZ RESPONDENT



The opinion of the court was delivered by: Golden, J.

MEMORANDUM OPINION AND ORDER

Petitioner Maria Karpenko filed a Verified Petition for Return of Child to Petitioner after her daughter was removed from the Netherlands by Respondent on May 27, 2009. The Court held an evidentiary hearing on the Petition on September 22 and September 23, 2009. For the reasons that follow, the Petition is granted and the child will be ordered returned to the Netherlands, her country of habitual residence.

Petitioner Maria Karpenko (the "Mother") and the Respondent, Paul Leendertz (the "Father") were married in Lehigh County, Pennsylvania on February 29, 2000. The Mother and the Father are the parents of Ekaterina Gerdina Pavlova Leendertz (the "child") who was born June 13, 2001 in Pennsylvania and is currently eight years old. The Mother and the Father separated in 2002 and were officially divorced in 2007.

The Mother and the Father lived together as husband and wife with the minor child in the United States until September of 2002. In 2001, the Mother and Father began custody litigation in the Court of Common Pleas of Lehigh County, Pennsylvania (the "Pennsylvania Court"). On February 20, 2002, the Pennsylvania Court entered an Order awarding the Mother and the Father shared legal and physical custody of the child on a two-day rotation schedule, and requiring the Mother to surrender her passport to the Pennsylvania Court. Pet. Ex. 4.

By stipulation dated February 28, 2002, the Mother and the Father agreed, inter alia, that they would continue to share legal and physical custody of the child, that neither would remove the child from Lehigh Valley, Pennsylvania without the express permission of the other, and that the United States would be considered the child's "habitual residence" for a purpose of the Hague Convention. Pet. Ex. 5. This Stipulation was adopted by the Pennsylvania Court as a court order. Id.

On September 19, 2002, the parties entered into another stipulation in which they agreed, inter alia, to continue to share legal custody of the child; that the Mother would have primary physical custody of the child; that the Mother would be able to live outside the United States with the child, specifically in Kiev, Ukraine; that the Father would be permitted to visit with the child in the Ukraine, the Netherlands and/or the United States; and that the stipulation would "not be rendered null and void by operation of law in Holland or the Ukraine." Pet. Ex. 7. This Stipulation was also adopted by the Pennsylvania Court as a court order. Id. That court order additionally provided that "all previous custody orders are vacated." Id.

In September 2002, the Mother and the child left the United States and relocated temporarily in Krivoy Rog, Ukraine. In May of 2003, the Mother and the child permanently moved to Ede, Netherlands. In fact, the Father requested that the Mother and the child relocate to the Netherlands because the Father is Dutch, has family in the Netherlands, and, as a pilot, for Continental Airlines, would have less trouble seeing the child in the Netherlands. The Father testified, however, that this arrangement was only temporary and that the Mother and the Father agreed that the child would eventually return to the United States.

The Mother and the child have lived in Ede, Netherlands since May of 2003. The child has attended Dutch public schools since she was four years old. Dutch is her primary language. She also has numerous friends in Ede and socializes with the Mother's relatives.

During the six years the Mother and child have lived in the Netherlands, the Mother has failed to comply with numerous orders from to visit the child in the Netherlands and in the United States. Prior to the removal of the child on May 27, 2009, the Father had not seen the child since September, 2006. After the Mother moved to a new address in Ede, Netherlands in 2007, the Mother did not disclose the address or phone number to the Father. In addition, the Mother has left many messages with the Father claiming that he will never see the child again and that if he tries to see her, the Mother will change the child's name and get her a new passport.

On February 28, 2008, the Mother filed a Request to Amend Custody and to Deny Access with the District Court of Arnhem in the Netherlands, seeking sole physical and legal custody of the child and also seeking to deny the Father any visitation rights. Pet. Ex. 13. On May 23, 2008, the Father filed a Petition for Modification of a Custody Order and Petition for Civil Contempt in the Pennsylvania Court, seeking sole physical and legal custody of the child. Pet. Ex. 12.

On October 28, 2008, the Pennsylvania Court granted the Father partial physical custody of the child for one week in the Netherlands between October 26 and November 30, 2008. Petitioner's Exhibit 19. On January 8, 2009, the Father filed another Petition for Contempt in the Pennsylvania Court, alleging that the Mother refused to allow the Father his visitation rights as ordered by the Pennsylvania Court in its Order of October 28, 2008. Pet. Ex. 20.

On February 20, 2009, the District Court of Arnhem stayed the Mother's Request to Amend Custody and to Deny Access, pending a decision on custody by the Pennsylvania Court. Pet. Ex. 21.

Following a trial on the Father's Petition for Contempt, the Pennsylvania Court issued an Order on May 20, 2009, which transferred sole legal and primary physical custody to the Father, and awarded visitation to the Mother "as she and the Father may agree." Pet. Ex. 23. The Order also provided the Father with the "sole authority to apply for and obtain a United States passport for the minor child without Mother's consent or authorization and without any further notice to Mother." Id. The May 20, 2009 Order allowed the Father to "obtain custody of the child at any place that she may be found, whether in the United States or any other country" and that "[n]o further proceedings of any further orders shall be required for Father to obtain custody of the child." Finally, the Order stated that either the Father or his sister "shall be permitted to pick up the child at her school or any location to transfer custody to Father as specified herein." The Mother has appealed this Order to the Superior Court of Pennsylvania. That appeal is still pending.

The Father never registered the Pennsylvania Court's May 20, 2009 Order in any Court in the Netherlands. Instead, the Father made arrangements with an unknown third party to remove the child from her school without the consent of the Mother or the school. The Father testified that on May 27, 2009, he just happened to be walking past a school in Ede with the unknown third party when he suddenly spotted his daughter playing on the sidewalk. The Father testified that he picked up his daughter with the aid of the unknown third party, placed her in his car and then drove the child to Germany ...


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