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Tomynets v. Koulik

United States District Court, M.D. Florida, Tampa Division

June 19, 2017

SVITLANA VASILVNA TOMYNETS, Petitioner,
v.
MOSES IVANOVICH KOULIK, Respondent.

          ORDER

          JAMES D. WHITTEMORE United States District Judge

         BEFORE 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.[1] 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.

         I. STANDARD OF REVIEW

         A 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)).

         II. DISCUSSION

         To 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).

         After 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:

         (1) 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.

         (Report 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.

         A. S.O.T. 's Habitual Residence At the Time of Retention and Petitioner's Exercise of Custody Rights

         Petitioner 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.).

         The 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.").

         The 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).

         The 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 ...


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