Martin Kladny v. Alexandra Jazmin Ruiz Deza

Summary

The United States District Court for the Eastern District of New York considered Martin Kladny’s petition under the Hague Convention and ICARA for the return of his child to Argentina. The court found that Argentina was the child’s habitual residence, that the child had been wrongfully retained in the United States in breach of the petitioner’s custody rights, and that the petitioner was exercising those rights. The court rejected the respondent’s asserted defenses of grave risk, violation of fundamental freedoms and human rights, and the child’s maturity-based objection, and granted the petition.

Holdings

1. Argentina was the child's habitual residence immediately before Respondent's wrongful retention.
2. Petitioner established by a preponderance of the evidence that the child was wrongfully retained in the United States.
3. Respondent failed to establish by clear and convincing evidence that returning the child to Argentina would expose her to a grave risk of physical or psychological harm or place her in an intolerable situation.
4. Respondent failed to establish by a preponderance of the evidence that the seven-year-old child possessed a sufficient degree of maturity for the court to consider her objection to return.
5. Respondent failed to establish that return to Argentina would violate fundamental principles of human rights and fundamental freedoms under Article 20 of the Hague Convention.
6. The petition for return was granted, and the child was ordered returned immediately to Argentina for an Argentine court to decide custody issues.

Questions Presented

1. Whether Argentina was the child's habitual residence immediately before the alleged wrongful retention.
2. Whether Respondent's retention of the child in the United States breached Petitioner's custody rights and whether Petitioner was exercising those rights at the time of retention.
3. Whether Respondent established the Hague Convention Article 13(b) grave-risk defense.
4. Whether Respondent established the mature-child objection defense under Hague Convention Article 13.
5. Whether return would violate fundamental principles of human rights and fundamental freedoms under Hague Convention Article 20 because the child had a pending asylum application.
6. Whether the petition should be granted and the child returned to Argentina for custody proceedings.

Disposition

other