Diorinou v. Mezitis

• Decision Date: 28 November 2000
• Docket Number: No. 00 CIV. 8241(LLS).,00 CIV. 8241(LLS).
• Citation: 132 F.Supp.2d 139
• Parties: Marina Mezitis DIORINOU, Petitioner, v. Nicholas H.E. MEZITIS Respondent.
• Court: U.S. District Court — Southern District of New York

132 F.Supp.2d 139

Marina Mezitis DIORINOU, Petitioner, v. Nicholas H.E. MEZITIS Respondent.

No. 00 CIV. 8241(LLS).

United States District Court, S.D. New York.

November 28, 2000.

Law Offices of Robert D. Arenstein, New York City (Robert D. Arenstein, of counsel), for petitioner.

Gartner, Bloom & Greiper, New York City (Stuart F. Gartner, Arthur P. Xanthos, of counsel), for respondent.

AMENDED OPINION and ORDER

STANTON, District Judge.

Petitioner Marina Mezitis Diorinou seeks an order pursuant to the Hague Convention on the Civil Aspects of Child Abduction, as implemented by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., requiring her former husband Nicholas H.E. Mezitis to return their two children, Elias Mezitis and Alexandra Mezitis, to Greece, where Ms. Diorinou resides. For the following reasons her petition is granted.

Background

Ms. Diorinou, a citizen of Greece, and Dr. Mezitis, a citizen of the United States, were married in 1988 in New York. Their two children, Elias (now age seven) and Alexandra (now age five) were both born in New York and are dual citizens of the United States and Greece. The family lived together in New York, where Dr. Mezitis is Chief of the Clinical Pharmacology Program, Division of Endocrinology, Diabetes and Nutrition, at St. Luke's-Roosevelt Hospital and an assistant professor of clinical medicine at Columbia University.

In June of 1995, the parties and their children flew to Greece for a summer vacation. The evidence and the parties' contentions are in conflict about happenings after that. It is clear that the parents separately took some trips back and forth, but the children remained in Greece all that summer, and thereafter in Greece with their mother until their father Dr. Mezitis brought them back to New York on October 1, 2000, over five years later.

Litigation in Greece

On September 14, 1995, Ms. Diorinou commenced a custody proceeding in the Athens Court of First Instance in Greece, in which she applied for and obtained temporary custody of the children, after a hearing of which Dr. Mezitis received notice but did not attend. After a delay to allow resolution of Dr. Mezitis' Hague petition (see below), on January 30, 1998 the Athens court granted Ms. Diorinou primary custody of the children. On Dr. Mezitis' appeal from that decision, it was affirmed by the Athens Court of Appeals by order published on May 6, 1999. He has filed an appeal with the Greek Supreme Court, which is still pending.

In 1996, Dr. Mezitis filed a Hague Petition in the Thessaloniki Court of First Instance for the return of the children to New York. It was denied on July 29, 1996. After trial, the Thessaloniki court found that Dr. Mezitis was not exercising his custody rights at the time the children were brought to Greece, that he had consented to their remaining in Greece permanently, and that there was a serious risk that returning them to New York would expose them to physical or psychological harm. Dr. Mezitis appealed that decision to the Court of Appeals, which affirmed it on May 12, 1997. He then appealed to the Greek Supreme Court, which affirmed on July 2, 1998. That fully-litigated determination that Ms. Diorinou did not wrongfully remove the children to Greece is highly significant in this proceeding, for under ICARA I must give it full faith and credit in determining that Greece is the children's habitual residence (see pp. 144-45 below).

Dr. Mezitis obtained visitation rights from the Thessaloniki Court of First Instance, on the condition that his visitation be in Greece.

In November 1998, Dr. Mezitis petitioned the Thessaloniki Court of First Instance seeking to enforce a judgment of the New York State Supreme Court (discussed below) granting him full custody of the children. The Court of First Instance "recognized" the New York court's order as valid, but the Greek Court of Appeals by judgment published on July 16, 1999 reversed, because of the conflicting Greek award of custody to Ms. Diorinou, referred to above.

Litigation in the United States

On September 11, 1995, Dr. Mezitis filed an action for divorce and custody of the children and a writ of habeas corpus for return of the children in the Supreme Court of the State of New York, County of New York. On September 27, he filed a petition under the Hague Convention and ICARA in the United States District Court for the Southern District of New York. While Ms. Diorinou received notice of those actions, she never appeared personally in them, although she did appear by her attorneys to contest service in the habeas proceeding.

On February 27, 1997, Justice Fisher-Brandveen of the New York State Supreme Court granted Dr. Mezitis' habeas petition and issued a warrant for Ms. Diorinou's arrest and a precept for the return of the children.

On May 28, 1997, the Honorable Loretta Preska of the United States court dismissed Dr. Mezitis' ICARA petition without prejudice, for lack of jurisdiction because the children were living in Greece.

On July 24, 1997, Justice Heitler of the New York State Supreme Court awarded temporary custody of the children to Dr. Mezitis. Justice Heitler also granted Dr. Mezitis' divorce petition on November 14, and awarded him full custody of the children on November 17, 1997. It is clear that while Justice Heitler was aware generally that several proceedings were pending in Greece concerning custody, as well as Dr. Mezitis' Greek Hague petition, she was misinformed and unaware that the Greek court had already denied Dr. Mezitis' Hague petition, and that its factual findings and judgment had been affirmed by the Greek Court of Appeals (see pp. 141-42 above, pp. 144-45 below). It is Justice Heitler's award of custody to Dr. Mezitis which the Greek Court of Appeals refused to honor.

* * * * * *

On October 1, 2000, using duplicate passports (which he appears to have obtained fraudulently) for the children, Dr. Mezitis removed them from Greece and brought them to New York, in violation of the custody orders of the Greek courts.

On October 27, 2000 Ms. Diorinou filed the instant petition for return of the children to Greece pursuant to the Hague Convention and ICARA.

Discussion

The Hague Convention, which became effective in the United States in 1988,¹ provides for the prompt return of children under the age of 16 who are abducted to or wrongfully retained in a country, provided that both their habitual residence and the country to which they were abducted are parties to the Convention.² Under Article 19 of the Convention, and 42 U.S.C. § 11601(b)(4), the court may determine the merits of an alleged abduction but not the merits of any underlying custody dispute.

In order to prevail on her claim, Ms. Diorinou must establish that her children were "wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1)(A). Under the Convention, the removal of a child is wrongful when:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention ("H.C."), Art. 3. Therefore, Ms. Diorinou must prove by a preponderance of the evidence that Greece was the children's "habitual residence" before Dr. Mezitis removed them to the United States, and that she was exercising her parental custody rights over the children at the time of removal, under the laws of Greece. Once Ms. Diorinou has made such a showing, the children must be returned to Greece unless Dr. Mezitis establishes any one of four affirmative defenses.³

It is uncontroverted that Ms. Diorinou has custody rights in Greece and that she has been exercising them there. The sole point of contention between the parties is whether Greece or the United States is the children's habitual residence.

Ms. Diorinou argues that the children's habitual residence is Greece, where they have both been living since June 1995. Dr. Mezitis contends that their habitual residence is actually the United States, from whence they were wrongfully removed to Greece in 1995 by their mother.

Neither the Hague Convention nor ICARA defines the term "habitual residence," leaving the courts to interpret it in relation to the facts of each case. Harkness v. Harkness, 577 N.W.2d 116, 121 (Mich.App.1998) ("The intent is for the concept to remain fluid and fact-based without becoming rigid."). In this case, that is easy.

That the children have been exclusively living in Greece with their mother for the past five years, during which time they have been attending school, establishing friendships, receiving medical treatment, and enjoying active involvement with Ms. Diorinou's extended family is conclusive evidence that, from their perspective, they are "settled" in Greece. Feder v. Evans-Feder, 63 F.3d 217, 218 (3d Cir.1995) (habitual residence is where child "has been physically present for an amount of time sufficient for acclimatization and which has a `degree of settled purpose' from the child's perspective."); Zuker v. Andrews, 2 F.Supp.2d 134, 137 (D.Mass.1998) (discussing cases that "illustrate further the requirement that there be a `settled purpose.'"); Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993) ("arrangements to keep child in Germany `amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled'").

Nevertheless, Greece may not be their habitual residence if their original removal to Greece was wrongful, because a parent cannot create a new "habitual residence" by the wrongful removal and sequestering of a child. See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir.1995) (...