Papers Numbered Notice of Motion/Cross Motion, Affirmation in Support and Exhibits 1 Order to Show Cause, Affidavits Annexed, and Memorandum of Law 2 Answering Affidavits in Opposition and Exhibits 3 Replying Affidavits 4 Exhibits Other DECISION AND ORDER Petitioner B. E. brought this Writ of Habeas Corpus to produce the child M. C.-E., their child. The Writ was satisfied on January 4, 2022. Mr. E. filed a petition permitting him to immediately take M. to London based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a (7), and 76-c and the Hague Convention on the Civil Aspects of International Child Abduction. Currently M. is with his mother, Respondent T. C. in Brooklyn. Ms. C. moved by Order to Show Cause to, inter alia, dismiss petitioner’s application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). The court conducted a hearing on these application on January 4, 2022, January 7, 2022, and January 10, 2022. Mr. E. and Ms. C. were the only witnesses. The court finds that both parties, generally, testified honestly, but given the totality of the testimony, Ms. C. was more credible. For the following reasons, the Petition is denied. Petitioner B. E. and respondent T. C. were married in London, England, in June 2007. In 2013 they adopted their son M. C.-E. They resided in London until Mr. E., who works in the financial field, received an offer from Andreesen, Horowitz, after which, in 2014, the family relocated to San Francisco, California. Ms. C. is a musician, well-known for her particular-musical style. Disenchanted with the marriage and her role as a mother, Ms. C. asked Mr. E. to move out with M. The two moved into a rental apartment. In 2016, Mr. E. filed a divorce proceeding in Superior Court of California, County of San Francisco, and asked the court to award the parties joint custody of M. Ms. C. moved to New York in 2018, for medical treatment. Mr. E. brought M. from England to visit his mother on July 25, 2021. Ms. C. refused to return M. to Mr. E. on August 29. She contends that she and Mr. E. had an agreement for M. to reside and attend school in New York. On September 21, 2021, Mr. E. filed a Declaration under California’s Uniform Child Custody Jurisdiction and Enforcement Act for the return of M. to his custody because the parties and child had lived in San Francisco since January 2014 and thus California was the “home state” for child custody purposes. In March 2018, Ms. C. became seriously ill, with a spinal condition, while visiting M. and Mr. E. in New York, where Mr. E. was having work meetings. She had spinal surgery in New York, where the doctors inserted a titanium rod in her spine. Soon afterward, she was diagnosed with breast cancer and underwent a double mastectomy. She then suffered complications that delayed reconstructive surgery and decided to stay in New York to maintain continuity of care. Mr. E. and M. continued to live in San Francisco and in November 2019, he and M. visited Ms. C. in New York. During this visit, Mr. E. declared his unilateral decision to move with M. They went back to California, packed up and moved into Mr. E.’s parent’s home in England in December 2019. Mr. E. started a financial newsletter and continued his work in the financial industry while M. began attending school. Even then, Ms. C. believed the move to England was temporary, until Mr. E. could get his newsletter and other business opportunities off the ground. Mr. E. brought M. to visit his mother in New York for the holidays in December 2019 and again during a school break in February 2020. In March 2020, their travel was restricted due to the COVID-19 pandemic. The parties attended mediation in New York and San Francisco. Both before and after M.’s move to England Ms. C. sent many emotionally charged text messages — some telling Mr. E. that she never wanted a child and for him to keep M. She also and threatened not to speak with them. These texts were often in response to her claims that Mr. E. ignored informal agreements about parenting time with M. He often responded with benign unrelated statements. Ms. C. never challenged or sought M. in a judicial or other proceeding in any jurisdiction. But text messages before and during a visit to New York beginning on July 25, 2021, indicate they seriously explored schools for M. in New York to attend that fall. Mr. E. said he could work from New York and would eventually move. Ms. C. claims the parties had a written agreement to allow M. to remain in New York. She signed the agreement. They agreed to spend the weekend on Fire Island after it was executed by Mr. E. Yet Ms. C. went to Fire Island without Mr. E.’s signature based on his representation that he would sign it after the weekend. Upon their return he refused to sign the agreement. Mr. E. and M. had return tickets to England for August 29, 2021. Ms. C. believed the purpose of the return trip to England was to bring M.’s belongings to New York. Once Ms. C. realized that Mr. E. planned to return to England with M. permanently, she refused to return M. for the return trip. Mr. E. confirmed that Ms. C. believed he agreed to allow M. to remain in New York and attend school here. He did not explain the basis for her belief. On September 21, 2021, Mr. E. moved ex parte for an emergency custody order and permission to proceed with M. to London in the San Francisco Superior Court, where the parties’ divorce had been pending since 2016. Ms. C. filed opposing papers. The case was adjourned to November 8, 2021. The court questioned whether San Francisco had UCCJA jurisdiction since neither party resided in San Francisco for the past six months. They participated in court-ordered mediation. The court calendared a hearing for January 20, 2022 and refused to issue emergency orders because “respondent [Ms. C.] made a prima facie case that the parties have agreed to have the child enroll and remain in New York-based upon emails submitted as part of Ms. C.’s responsive declaration.” While Judge Hwang questioned whether New York or England had jurisdiction he did not believe a “New York Court has any greater claim to emergency jurisdiction.” He also believed Mr. E. was “forum shopping.” This court agrees. He was open to communication with the New York Court. We spoke, on the record, on January 4, 2022. He said he doubted either had jurisdiction for a California UCCJA claim. But would not make a final determination until the January 20 hearing. Judge Hwang also received a letter from the United States Department of State notifying him that Mr. E. applied for M.’s return under the International Child Abduction and Contact Unit (ICACU). The State Department advised the court to “make no rulings pursuant to Article 16 of the Hague Convention.” Here, Mr. E. wants the court to assume temporary emergency jurisdiction of M. under Domestic Relations Law section 76 — C and because M. is imminent danger for among other things, he will miss the starts of the school semester. He asks this court to determine an emergency under New York’s Domestic Relation Law to avoid a possible negative outcome in San Francisco. CPLR section 3211 (a) (4) permits a court to dismiss a proceeding “if the action between the same parties for the same cause of action” already exists. The court may consider what justice requires. (U.S. Bank National Association v. Karnaby 190 A.D. 3D 1005 [2nd Department 2021].) Though Judge Hwang remains skeptical that either party has jurisdiction in California, that action pre-dates the New York case even though Judge Hwang may determine on jurisdiction on January 20. If he dismisses the UCCJA proceeding, Mr. E. has the Hague proceeding as a fallback position. He is not prejudiced Based on these facts the court denies the petitioner’s application to apply UCCJA jurisdiction. Concurrently, Mr. E. seeks a ruling that under the Hague convention the court must determine that England is M.’s “habitual residence” and immediately return M. him to his care. The application is denied. The Hague Convention is codified in the United States as the International Child Abduction Remedies Act? 22 USC 9001. It forces someone who wrongfully removes or retains a child outside their country of “habitual residence” to return them. It has the purpose to prevent a family member from removing a child to a jurisdiction more favorable to [their] custody claims in the country to which the child ha[d] been taken.” (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]), citing (Mota v. Castillo 692 F3d 108, 112 [2d Cir, 2012]) Its “focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings.” Id (internal quotation marks omitted). To deprive such disfavored conduct of any “practical or juridical consequences,” the Convention “places at the head of its objectives the restoration of the status quo, by means of the prompt return of children wrongfully removed to or retained in any Contracting State.” (Mota at 111-112) A petitioner, must demonstrate by a preponderance of the evidence: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” (Giter v. Gitter 396 F3d 124 [2d Cir. 2005]) To determine habitual residence, “the court must also inquire into the shared intent of those entitled to fix the child’s home (usually the parents) at “the latest time that they had the same interests”. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parent’s home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020. The “habitual residence” determination is “fact driven,” and “courts must be sensitive to the case’s unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct. 719, 723 [2020]). The residence must have the “quality of being habitual.” Id The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. (Id at fn.3) Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court finds two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021. The court finds that Ms. C.’s emotionally charged texts with her husband were due to her anger and frustration about their relationship. Mr. E. never responded to her specific complaints but diverted or attempted to check Ms. C.’s comments with unrelated statements. Further, Ms. C. never abandoned her apartment in San Francisco and never consented to M. relocating permanently to England in December 2019. She wanted Mr. E. and M. to reside in New York. Mr. E. seemed to lead her along. Ms. C. did not move to New York to gain the upper hand in a custody proceeding. She was genuinely ill. She then made friends and realized her career could continue while residing there. When she realized M.’s move to England was permanent, she began asking Mr. E. to relocate with M. to New York. In early 2020 the Covid-19 pandemic prohibited travel between England and New York. Once travel restrictions were lifted, the father and son visited New York and Mr. E. began texting about M.’s relocation to New York. The court considered M.’s acclimation to England, where he had maternal and paternal relatives. Mr. E. did not mention any family outings, visits, or continuous relations with cousins. He dispassionately wrote about M.’s education. Nothing indicates M. acclimated to England. Mr. E. lived with his parents and did not find an apartment with M. which signifies a transient situation. The pandemic kept M. home most of 2020, and he did not do much that year. Like many parents who planned special activities at great lengths to make the children’s lockdown palatable, it does not appear that Mr. E. spent any significant parenting time with M. during that year. Ms. C. wrote about M.’s current school, in-school and extracurricular activities, special program, etc. While not dispositive, she seems more invested in M.’s life in New York. Mr. E.’ description about M.’s acclimation in England was matter of fact indicating little interaction between them. He seems more acclimated to New York. The court determines that Mr. E. did not create a situation that changed M.’s “habitual residence” to England. His actions in San Francisco and New York, indicate he did not rely on a Hague Convention case setting a new “habitual residence.” In 2021 Ms. C. began texting Mr. E. about his role relocating to New York with M. Mr. E. indicated his need to obtain more subscribers for his newsletter but that he could work in New York. They texted about schools, and apparently, Mr. E. wrote about visiting one school in New York. They had a written agreement Ms. C. signed which Mr. E. agreed to sign. He then refused to do so and planned to return to England on August 29. Nevertheless, the court finds that both parents had a shared intent that New York would become M.’s habitual residence as of July 2021. The facts do not establish that England is M.’s “habitual residence.” Counsel may make further application, upon proper proof, for attorney’s fees. Wherefore, Mr. E. petition for an order mandating M.’s return to England is denied. Ms. C.’s application for dismissal is granted to that extent. This constitutes the court’s decision and order
