Dumitrascu v. Dumitrascu
| Decision Date | 15 September 2021 |
| Docket Number | Civil 21-cv-01813-PAB |
| Parties | VIOLETA DUMITRASCU, on behalf of A.M.B.D., Plaintiff-Petitioner, v. ALIN DUMITRASCU, Defendant-Respondent. |
| Court | U.S. District Court — District of Colorado |
This matter is before the Court on the Verified Petition for the Immediate Return of the Minor Child to Romania Pursuant to 22 U.S.C. § 9001, et seq., and the Hague Convention on the Civil Aspects of Child Abduction [Docket No. 1]. The Court held an evidentiary hearing on August 25 2021. Both parties presented testimony and tendered exhibits. The Court has jurisdiction pursuant to 22 U.S.C. § 9003(a) and 28 U.S.C. § 1331.
Petitioner a Romanian citizen, and respondent, a United States citizen met online in 2007 and dated for eight years before marrying in 2015 in Romania. The couple moved to Colorado in 2016, and respondent successfully sponsored petitioner for a green card. While in Colorado, they lived at respondent's mother and step-father's house in Morrison, Colorado. Respondent “worked on a van, ” although it is unclear whether this was a paying job, and petitioner worked at a Chipotle restaurant.
In the late summer or early fall of 2019, petitioner and respondent traveled to Galati, Romania, where their daughter, A.M.B.D., was born on September 4, 2019. See Exh. 3. They chose to give birth in Romania in part because hospital costs for childbirth are free there and may have been unaffordable in Colorado. Petitioner, however, had some form of health insurance in the United States. Petitioner also wanted to give birth in Romania due to disagreements she had with her mother-in-law while in Colorado and in order to be close to her own family members in Romania after the birth. Both petitioner and respondent intended to return to the United States at some point to raise the child. The parties left certain belongings in Colorado, see Exh. C, and discussed returning there after A.M.B.D. was born.
Petitioner, respondent, and A.M.B.D. lived with respondent's father in Romania for ten months after A.M.B.D. was born. Petitioner breast fed A.M.B.D., the parties shared parenting responsibilities equally, and both were involved in her upbringing. Petitioner's family was not happy about petitioner's marriage at this point. Her family did not visit her in the hospital after the baby was born, but did spend holidays and special occasions with A.M.B.D. during the ten months that the child lived in Romania. When A.M.B.D. was five weeks old, petitioner got a job because someone had to earn money and respondent did not want to work in Romania. The family's belongings in Romania include clothing for A.M.B.D., a bicycle, a safe, a washing machine, and a car. Respondent used a credit card to pay expenses in Romania. His mother reimbursed some of these expenses.
While living in Romania, the parties' plan for the future diverged. Not long after A.M.B.D.'s birth, in October or November 2019, while the parties were living in Romania, petitioner's green card expired. In January 2020, the United States denied an extension of her green card.
Respondent believed that he needed to return to Colorado to work on getting his wife a green card and to obtain a Social Security card for A.M.B.D., which would help confirm her U.S. citizenship. Petitioner also believed that it was not possible for her to apply for a green card from Romania. The parties went to the U.S. Embassy in Romania to apply for a U.S. passport for the child. Two weeks later, the child's passport was sent to them. Respondent intended for the family to live in the United States eventually. However, without a green card, petitioner was not sure if the family could live in the United States. Petitioner testified that, had her green card been renewed on time, she may have traveled with respondent back to the United States, but their intentions were not set in stone because her green card had expired, relations with her mother-in-law in Colorado had soured, and petitioner noticed a change in respondent's behavior after their arrival in Romania in that respondent was unwilling to find a job there. Moreover, while petitioner wanted her daughter to be a United States citizen, petitioner did not intend to be separated from A.M.B.D. for any substantial length of time. She therefore made plans for the family to live in Romania. She wanted the couple to apply for the First House program, a Romanian program to assist young families in buying their first home. She applied for the program in March 2020, but respondent was not employed and they could not pay the interest on any loan. Therefore, the application was denied. Moreover, respondent was not interested in the program.
Respondent insisted, however, that he travel to Colorado with A.M.B.D. in order to apply for a Social Security card, during which process A.M.B.D. would need to be fingerprinted. He also planned to work on getting petitioner a green card, to bring her over to the United States, and to earn money through a job.
On June 15, 2020, petitioner and respondent visited a public notary in Galati, where petitioner signed an affidavit, drafted by the notary, that granted respondent permission to travel with A.M.B.D. to the United States from July 6, 2020 to December 31, 2020. Exh. 4. The translated version of the affidavit states, “I agree and consent, that my minor daughter, . . . to travel to the United States of America, starting with July 6, 2020, until December 31, 2020, together with Alin Dumitrascu, as parent of minor.” Id. at 3. The parties discussed these dates before having the affidavit prepared as well as after they obtained the document.
The Court heard testimony from a practicing family law attorney in Romania, Christina-Mihaela Draghici-Nedelcu, who reviewed the June 15, 2020 affidavit as well as other documents in this case. Ms. Draghici-Nedelcu testified that, under Article 483 of the Romanian Civil Code, parental authority is jointly and equally held and must be exercised according to the child's best interest and her care, welfare, education, growth, and health.[1] In addition, both parents are responsible for the upbringing of the minor child. If the child does not live with both parents, Article 496 of the Romanian Civil Code requires joint decision-making by mutual agreement. The parent who the child does not live with has the right to visitation and to maintain a healthy relationship with the child. If the parents cannot reach a mutual agreement on an issue of custody, they must seek relief in a Romanian guardianship court, which is the only authority that can decide issues of custody. Additionally, Article 496 of the Romanian Civil Code forbids one parent from unilaterally changing the location of a child's home, which requires an order of the guardianship court. A unilateral custody decision is only permitted if the guardianship court decides that parental authority is not jointly held.
Ms. Draghici-Nedelcu explained that affidavits like the one petitioner signed are very common because they are required under a 2005 law for one parent to take a child out of the country. These temporary travel affidavits are written by notaries based on a form or model. Ms. Draghici-Nedelcu testified that Romanian courts strictly construe time limitations in such affidavits, and if a parent wishes to live abroad for more than three years or to permanently relocate to another country, the parties must obtain an order from the guardianship court. Therefore, Ms. Draghici-Nedelcu testified that, while the language of the affidavit may appear to provide permission for respondent to leave Romania with A.M.B.D. between July 6, 2020 and December 31, 2020, the affidavit must be “corroborated” with the laws of Romania and interpretation of Romanian courts, which would view the affidavit as providing respondent six months to travel with A.M.B.D. in the United States and then to return her to Romania. Ms. Draghici-Nedelcu opined that, under Romanian law, by respondent exceeding the time period agreed upon in the affidavit, respondent is wrongfully retaining the child and is preventing petitioner from exercising the joint parental authority that the law provides her. Ms. Draghici-Nedelcu characterized taking A.M.B.D. out of Romania permanently to be a deliberate attempt of estrangement of the child and parental alienation, which Romanian courts consider to be a form of child abuse.
On July 8, 2020, respondent and his grandmother flew to the United States with A.M.B.D. See Exh. A at 14-17. Although respondent testified that he had pneumonia for eight months after he arrived in the United States, neither respondent nor his family in Morrison made any effort to help petitioner obtain a green card. Respondent admitted that, during the six month period between July and December 2020, his family was paying $750 per month on a Mercedes van for him. Respondent testified that he sponsored petitioner's green card, but otherwise it was her responsibility to obtain it.
Around November or December 2020, petitioner began to suspect that respondent would not return A.M.B.D. to Romania by the December 31 deadline. On January 14, 2021, given that respondent did not return A.M.B.D., petitioner filed an application with Romanian authorities to secure A.M.B.D.'s return. She filed for divorce in Romania in late May 2021 and filed this petition on July 2, 2021.
Since July 2020, petitioner's contact with A.M.B.D. has been limited to daily video calls. She also testified that she was given access to the respondent's mother and step-father's home security cameras for two weeks. Neither respondent nor his family in Colorado have taken A.M.B.D. to visit plaintiff in Romania. Additionally peti...
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