United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge
THE COURT is the Report and Recommendation of the Magistrate
Judge (Dkt 62), recommending that Petitioner's petition
for the return of her minor child, S.O.T., to Ukraine
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (the "Hague
Convention") be granted. Respondent never filed an
answer to the petition. No objections to the Report and
Recommendation have been filed and the time within which to
do so has passed. Upon consideration, the Report and
Recommendation is adopted as the opinion of the Court and
Petitioner's petition for return of S.O.T. to Ukraine
under the Hague Convention is GRANTED.
STANDARD OF REVIEW
district court may accept, reject, or modify a magistrate
judge's report and recommendation. 28 U.S.C. §
636(b)(1). In absence of specific objections, there is no
requirement that factual findings be reviewed de novo.
Id.; Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir.
1993). Rather, a district court is bound to defer to the
factual findings of a magistrate judge unless the findings
are clearly erroneous. Cooper-Houston v. Southern Ry.
Co., 37 F.3d 603, 604 (11th Cir. 1994) (per curiam).
Legal conclusions are reviewed de novo, even in the
absence of an objection. See id.;LeCroy v. McNeil,
397 F.App'x 554, 556 (11th Cir. 2010) (per curiam)
(citing United States v. Warren, 687 F.2d 347, 348
(11th Cir. 1982)).
establish wrongful retention of S.O.T. under the Hague
Convention, Petitioner must establish by a preponderance of
the evidence that (1) S.O.T. was a habitual resident of
Ukraine at the time Respondent retained her in the United
States, (2) the retention was in breach of her custody rights
under the law of Ukraine, and (3) she had been exercising her
custody rights at the time of the retention. Ruiz v.
Tenorio, 392 F.3d 1247, 1251 (11th Cir. 2004) (per
curiam). If Petitioner meets this burden, S.O.T. must be
" 'promptly returned unless one of the narrow
exceptions set forth in the Convention applies.' "
Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998)
(quoting 42 U.S.C. § 11601(a)(4)). It is
Respondent's burden to establish that an exception
applies. Fuentes-Rangel v. Woodman, 617 F.App'x
920, 922 n.2 (11th Cir. 2015) (citing 22 U.S.C. § 9003).
careful consideration of the thorough and well-reasoned
Report and Recommendation, in conjunction with an independent
examination of the file, the Court is of the opinion that the
Report and Recommendation should be adopted, confirmed, and
approved in all respects. The Magistrate Judge recommended
that the petition for return of S.O.T. to Ukraine be granted
after concluding that Petitioner established that:
S.O.T. was a "habitual resident" of Ukraine
immediately before the wrongful retention by Respondent; (2)
the wrongful retention was in breach of Petitioner's
custody rights under the laws of Ukraine; (3) Petitioner had
been exercising or would have been exercising custody rights
concerning S.O.T. at the time of the wrongful retention of
S.O.T.; and (4) S.O.T. has not attained the age of 16.
and Recommendation, Dkt. 62 at p. 20) (citing Ruiz,
392 F.3d at 1251; Lops, 140 F.3d at 936). The
Magistrate Judge also concluded that Respondent failed to
establish any of the Hague Convention's narrow
exceptions. (Id. at p. 28). On de novo
review, the Court agrees with the Magistrate Judge's
conclusions. LeCroy, 397 F.App'x at 556.
S.O.T. 's Habitual Residence At the Time of Retention and
Petitioner's Exercise of Custody Rights
established aprimafacie case of wrongful retention
under the Hague Convention. It is undisputed that S.O.T. is
under the age of 16. It is also undisputed that
Respondent's decision to retain S.O.T. beyond a six month
visit to the United States that terminated on June 3, 2013
was in breach of Petitioner's custody rights under the
laws of Ukraine. (Report and Recommendation, Dkt. 62 at p.
21). It appears from Respondent's documentary evidence
and testimony, since he did not file an answer to the
petition, that he argued that S.O.T. was not a habitual
resident of Ukraine and Petitioner had not been exercising
her custody rights over S.O.T. prior to his retention of her
in the United States. (Id.).
Eleventh Circuit provides an analytical framework for
determining habitual residence. See Ruiz, 392 F.3d
at 1252. "The first step toward acquiring a new habitual
residence is forming a settled intention to abandon the one
left behind." Id. The shared intention of the
parents governs. Id. at 1253. In addition to the
settled intention of the parents to acquire a new habitual
residence, "there must be an actual change in geography
and the passage of a sufficient length of time for the child
to have become acclimatized." Id. As for
custody rights, courts define "exercising custody"
broadly and find that a parent is exercising custody
"whenever a parent with dejure custody rights
keeps, or seeks to keep, any sort of regular contact with his
or her child." Friedrich v. Friedrich, 78 F.3d
1060, 1065 (6th Cir. 1996); see also Rodriguez v.
Yanez, 817 F.3d 466, 472 (5th Cir. 2016) ("[E]ven
occasional contact with the child constitutes
'exercise' of those rights.").
Magistrate Judge found that S.O.T. resided in Ukraine from
her birth date of March 28, 2008 until at least February
2011. S.O.T. made temporary visits to the United States in
2011 and 2012 to visit Respondent, who permanently relocated
to the United States in 2009, but returned to Ukraine after
each visit. Petitioner agreed to S.O.T. making another
temporary visit to the United States while she received
medical treatment for her back. Respondent initially proposed
a three month visit. Petitioner agreed to a six month visit
that would start in December 2012 and end on June 3, 2013
after Respondent unilaterally purchased non-refundable
tickets for a trip of that length. While S.O.T. was in the
United States, Petitioner registered her to start preschool
in Ukraine when she returned. She maintained regular contact
with S.O.T. during the six month trip. (Report and
Recommendation, Dkt. 62 at pp. 4-5, 8-11).
Magistrate Judge's findings are not clearly erroneous,
and establish that S.O.T. was a habitual resident of Ukraine
prior to Respondent's retention of her in the United
States. S.O.T.'s trip to the United States was intended
to be for a specific, delimited period, and the parties
therefore had no shared, settled intention to abandon Ukraine
and make the United States S.O.T.'s habitual residence.
See Ruiz, 392 F.3d at 1252-53. Further, the six
months that S.O.T. was in the United States immediately prior
to Respondent's retention of her was an insufficient
amount of time for her to become acclimatized. Id.
at 1255. The absence of the parties' shared intention to
establish a new habitual residence and because S.O.T. did not