The Hague Domestic Violence Project—Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky.Ct.App.1999)

Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky.Ct.App.1999)

Docket Number

1998-CA-000259-MR

Published

Yes

Decision Date

1999-03-19

Name of Court

Cour of Appeals of Kentucky

Opinion by

Knopf, William L

Counsel for Petitioner

McMurtry, Stephen T

Counsel for Respondent

Rogers, William D; Behan, Kathleen A; McNally, Laura ; Verma, Stephen ; Anayati, Amanda

Counsel for Court

Requesting State

Greece

Requested State

United States of America

Procedural History

On March 28, 1997, the Petitioner/father filed a motion to return the parties child to Greece pursuant to the terms of the Hague Convention. On November 13, 1997, the trial court granted the motion for the return of the child. The Respondent/mother appealed and requested an emergency stay of the trial courts order pending the appeal. On February 11, 1998, the court of appeals denied the emergency stay. The Respondent/mother appealed the February 11th denial of the stay to the Kentucky Supreme Court, and on March 30, 1998, the court granted the stay pending further review. On May 14, 1998, the Kentucky Supreme Court dissolved the emergency stay. The Respondent/mother appealed the stay again to the U.S. Supreme Court, and on June 18, 1998, the court denied the pending stay on appeal. On June 29, 1998, the Respondent/mother delivered the child to the Petitioner/father and they returned to Greece. The Respondent/mothers appeal was still before the Kentucky Court of Appeals.

Summary of Facts

The Respondent/mother, a United States citizen, and the Petitioner/father, a citizen of Greece, were married in 1989 in Greece and had one child, Bronte, in 1991. Between 1992 and 1994, Respondent/mother and the child spent approximately three to four months in the United States each year. The marriage began to deteriorate, and on February 24, 1996, the Respondent/mother threatened to leave for the U.S. with the child. The Petitioner/father immediately filed a criminal complaint charging the Respondent/mother with custodial interference. On February 27, 1996, the Petitioner/father filed a petition with a court in Athens seeking a temporary custody order of the child and the court issued an order prohibiting the removal of the child. On February 27, 1996, the Respondent/mother tried to leave with the child but was prevented by the authorities pursuant to the order. On February 28, 1996, criminal charges were heard by the Athenians court regarding the criminal custodial interference complaint. The charges were later dropped. On April 22, 1996, the Athenian court granted the petition and also issued an order prohibiting the removal of the child from Greece until a final determination of custody. On May 2, 1996, the Respondent/mother moved out of the marital residence and filed a petition in a lower court seeking custody of the child. The Petitioner/father subsequently retrieved the child and refused to allow the Respondent/mother to communicate with the child. The petition was granted on June 28, 1996; however, the lower court recognized that the Athenian court order prohibiting removal was still in effect. The Petitioner/father then relinquished the custody of the child to the Respondent/mother. The Respondent/mother claimed that the child had suffered from various physical and emotional problems while in the custody of his father. Thus, Respondent/mother fled Greece with the child to Kentucky where she resided until the trial. The Petitioner/father sought to exercise his rights, but was unable to locate the Respondent/mother. On July 4, 1996, the Petitioner/father petitioned seeking rights to communicate and visit with the child. During trial, Respondent/mother alleged violent behavior by Petitioner/father towards herself and the child. On July 22, 1996, the lower court granted the Petitioner/father liberal visitation and communication rights and threatened the Respondent/mother with fine and imprisonment for violation of those rights. However, when the Petitioner/father attempted to exercise his rights, he found out that the Respondent/mother had fled with the child to Kentucky.

Defenses Raised

Hague Article 3(a): The childs habitual residence is not the requesting state

Hague Article 13(b): Grave risk of harm to the child if returned to the petitioning country

Statutes Considered (ICARA)

11601, 11603(e)(1), 11603(e)(2)

Articles Considered (Hague Convention)

1, 3, 13(b), 20

Cases Considered

Black Motor Company v. Greene, Ky., 385 S.W.2d 954 (1965); Brook v. Willis, 907 F.Supp. 57 (S.D.N.Y.1995); Caro v. Sher, 296 N.J.Super. 594 (1996); David S. v. Zamira S., 151 Misc.2d 630 (1991); Feder v. Evens-Feder, 63 F.3d 217 (3rd Cir.1995); Friedrich v. Friedrich, 983 F.2d 1396 6th Cir. 1993); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); Harsacky v. Harsacky, 930 S.W.2d 410 (1996); In re Petition for Coffield, 644 N.E.2d 662 (Ohio App. 11 Dist., 1994); In re Ponath, 829 F.Supp. 363 (D.Utah 1993); Kentucky State Racing Commission v. Fuller, Ky., 481 S.W.2d 298 (1972); Levesque v. Levesque, 816 F.Supp. 662 (D.Kan.1993); Meredith v. Meredith, 759 F.Supp. 1432 (D.Ariz.1991); Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir.1995); Rowland v. Holt, Ky., 70 S.W.2d 5 (1934); Rydder v. Rydder, 49 F.3d 369 (8th Cir.1995); Tahan v. Duquette, 259 N.J.Super. 328 (1992)

Judicial Outcome or Order

Return Order Affirmed (for appellate cases)

Posted

2005-09-29

Why this Project?

We are a team of individuals from various professional backgrounds who are dedicated to creating a comprehensive resource that will enable mothers, domestic violence advocates, attorneys and judges to better prepare themselves for Hague Convention cases in the United States' legal system.