Delvoye v. Lee, 224 F. Supp. 2d 843 (D.N.J. 2002)
- Docket Number
- No. CIV. 02-769(FSH)
- Published
- Yes
- Decision Date
- 2002-09-24
- Name of Court
- United States District Court, D. New Jersey
- Opinion by
- Hochberg, Faith S
- Counsel for Petitioner
- Yuzek, Dean G; Walter, Joan ; Post, Bernard
- Counsel for Respondent
- Avery, Robert W; Lee, Susan M
- Counsel for Court
- Requesting State
- Belgium
- Requested State
- United States of America
- Procedural History
-
In 2002, the Petitioner/father filed a petition seeking the return of Baby S to Belgium under the Convention.
- Summary of Facts
-
The couple met in February of 2000 and began a relationship. In August 2000 the Respondent/mother moved into the Petitioner/father's Manhattan apartment. The Petitioner/father lived in Belgium, but spent about a quarter of his time in New York. In late September of 2000, the Respondent/mother learned that she was pregnant. The couple did not marry; however, they decided to begin prenatal care in New York City. In October of 2000, the parties discussed the cost of having a baby in the U.S. and the free medical services in Belgium. The Petitioner/father refused to pay any of the medical cost in the U.S. During the term of her pregnancy, the Respondent/mother traveled to Belgium to join the Petitioner/father on a three-month tourist visa. The parties differ on the purpose of their travel to Belgium. While the child was born in Belgium, no attempt was made to renew the Respondent/mother's visitor's visa or change the status of her visa. With the exception of her maternity clothes, which she traveled with to Belgium, all of the Respondent/mother's clothing and other possessions remained in New York during her visit to Belgium.
Baby S was born in Belgium on May 14, 2001. The parties' relationship was deteriorating both before and after the birth of their child. The Respondent/mother blames the deteriorating relationship on the Petitioner/father's uncontrollable rage and unusual behavior. The Respondent/mother testified that she sought to return to the United States earlier than July 23, 2001, but she could not get a United States passport for the baby without the Petitioner/father's consent, which he initially declined to give. The Petitioner/father eventually allowed the child to obtain a passport and the Respondent/mother and child left for the United States. The Petitioner/father visited the United States a number of times between July 2001 and January 2002. The parties tried to reconcile unsuccessfully.
- Defenses Raised
-
Hague Article 3a: The child's habitual residence is not the requesting state
Hague Article 13a: Acquiescence or consent to the removal of the child by the requesting party
Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country
- Statutes Considered (ICARA)
- 11601, 11603(e)(1)(A), 11603(e)(2)(A), 11603(e)(2)(A)
- Articles Considered (Hague Convention)
- 3, 12, 13(a), 13(b)
- Cases Considered
- Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir. 1995); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); In re Ponath, 829 F.Supp. 363 (D. Utah 1993); Kanth v. Kanth, 79 F.Supp.2d 1317 (D. Utah 1999); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995); Tsarbopoulos v. Tsarbopoulos, 176 F.Supp.2d 1045 (E.D. Wash. 2001); Wanninger v. Wanninger, 850 F.Supp. 78 D. Mass. 1994)
- Judicial Outcome or Order
- Return Order Denied
- Posted
- 2004-11-12
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