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Cite As: 176 F.Supp.2D 1045) 176 F.Supp.2d 1045 Page 1 176 F.Supp.2d 1045 (Cite as: 176 F.Supp.2d 1045) Remedies Act, § 2 et seq., 42 U.S.C.A. § 11601 et United States District Court, seq. E.D. Washington. [2] Child Custody 76D 806 Anthony TSARBOPOULOS, Petitioner, v. 76D Child Custody Kristi Lee TSARBOPOULOS, Respondent. 76DXI International Issues No. CS-00-0083-EFS. 76Dk806 k. Grave Risk. Most Cited Cases Nov. 19, 2001. Treaties 385 8 Father filed petition under the Hague Convention on 385 Treaties the Civil Aspects of International Child Abduction. 385k8 k. Construction and Operation of Particular The District Court, Shea, J., held that: (1) mother's Provisions. Most Cited Cases removal of parties' children from Greece to United Spousal abuse is a factor to be considered in the de- States was not actionable in a petition for return un- termination of whether the Article 13(b) exception der Hague Convention, and (2) even if Hague Con- under Hague Convention on the Civil Aspects of In- vention was applicable, Article 13(b) exception ternational Child Abduction applicable where grave where grave risk exists that return of child would risk exists that return of child would expose child to expose child to physical or psychological harm was physical or psychological harm applies because of the applicable. potential that the abuser will also abuse the child. International Child Abduction Remedies Act, § Petition denied. 4(e)(2)(A), 42 U.S.C.A. § 11603(e)(2)(A). West Headnotes [3] Child Custody 76D 823 [1] Child Custody 76D 804 76D Child Custody 76DXI International Issues 76D Child Custody 76Dk820 Evidence 76DXI International Issues 76Dk823 k. Burden of Proof. Most Cited 76Dk804 k. Habitual Residence. Most Cited Cases Cases Child Custody 76D 826 Treaties 385 8 76D Child Custody 385 Treaties 76DXI International Issues 385k8 k. Construction and Operation of Particular 76Dk820 Evidence Provisions. Most Cited Cases 76Dk826 k. Weight and Sufficiency. Most Mother's removal of parties' children from Greece to Cited Cases United States was not actionable in a petition for re- turn under Hague Convention on the Civil Aspects of Treaties 385 8 International Child Abduction; parties did not share a settled intent to change the family's habitual resi- 385 Treaties dence from the United States to Greece, and there- 385k8 k. Construction and Operation of Particular fore, mother did not remove the children from their Provisions. Most Cited Cases habitual residence. International Child Abduction Burden is on removing party to prove by clear and © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 176 F.Supp.2d 1045 Page 2 176 F.Supp.2d 1045 (Cite as: 176 F.Supp.2d 1045) convincing evidence the applicability of the Article CONVENTION 13(b) exception under Hague Convention on the Civil Aspects of International Child Abduction applicable SHEA, District Judge. where grave risk exists that return of child would expose child to physical or psychological harm. In- I. PROCEDURAL HISTORY ternational Child Abduction Remedies Act, § 4(e)(2)(A), 42 U.S.C.A. § 11603(e)(2)(A). On March 10, 2000, Dr. Anthony Tsarbopoulos (“Dr.Tsarbopoulos”) commenced this action by filing [4] Child Custody 76D 826 a Petition under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 76D Child Custody 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 (the 76DXI International Issues “Hague Convention”); 42 U.S.C. § 11601et. seq. to 76Dk820 Evidence which both the United States and Greece are signato- 76Dk826 k. Weight and Sufficiency. Most ries. (Ct.Rec.1). This Court has jurisdiction over ac- Cited Cases tions brought under the Hague Convention*1047 through the International Child Abduction Remedies Treaties 385 8 Act (“ICARA”), which implements the Hague Con- vention in the United States. See42 U.S.C. § 11601 385 Treaties et. seq. A hearing on cross motions was held on April 385k8 k. Construction and Operation of Particular 25, 2000, before another judge of this District. That Provisions. Most Cited Cases Court ordered the children returned to Greece on Even if mother's removal of parties' children from May 5, 2000 at the expense of the father, Dr. Tsarbo- Greece to United States was actionable under Hague poulos. (Ct.Rec.42). Kristi Tsarbopoulos filed an Convention on the Civil Aspects of International appeal on May 3, 2000. (Ct.Rec.46). An amended Child Abduction, Article 13(b) exception where order was entered by that Court on May 4, 2000, grave risk exists that return of child would expose (Ct.Rec.44). On November 17, 2000, the Ninth Cir- child to physical or psychological harm was applica- cuit Court of Appeals filed a Memorandum reversing ble; there was clear and convincing evidence that the order granting summary judgment to Dr. Tsarbo- there was a grave risk of physical and psychological poulos, finding genuine issues of material fact on the harm to the children were the court to order children's question of habitual residence. The Ninth Circuit also return to Greece in view of evidence of father's phys- found genuine issues of material fact precluding ical and emotional abuse of the children and that they summary judgment on the issue of “whether there is a were settled in the state of Washington. International ‘grave risk’ that returning the children to Greece Child Abduction Remedies Act, § 4(e)(2)(A), 42 would expose them to physical or psychological harm U.S.C.A. § 11603(e)(2)(A). or otherwise place them in an intolerable situation.” *1046 Peter John Karademos, Spokane, WA, for Ha- The latter issue, if proven by clear and convincing rilaos Alexandros Tsarbopoulos, Ionna Isabella Tsar- evidence, would trigger the exception to return of the bopoulos, Iason Antonis Tsarbopoulos. children found in Article 13(b) of the Hague Conven- tion. Allen M. Gauper, Salina Sanger & Gauper, Spokane, WA, Peter John Karademos, Spokane, WA, for An- The Ninth Circuit mandate was filed on November thony Tsarbopoulos. 22, 2000 in this District, (Ct.Rec.54), and the Case was reassigned on November 30, 2000, (Ct.Rec.55). The Court convened a status conference with counsel Mary Elizabeth Schultz, Mary E. Schultz & Asso- for the parties on December 7, 2000 and then issued a ciates PS, Spokane, WA, for Kristi Lee Tsarbopou- Scheduling Order setting a five-day evidentiary hear- los. ing for March 26, 2001, (Ct.Rec.57). On December 21, 2000, during a hearing to address visitation FINDINGS OF FACT AND CONCLUSIONS OF throughout the pendency of the case, counsel for LAW: ORDER DENYING PETITION FOR RE- Kristi Tsarbopoulos suggested rescheduling the evi- TURN OF CHILDREN UNDER THE HAGUE dentiary hearing because of the difficulty in contact- © 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 176 F.Supp.2d 1045 Page 3 176 F.Supp.2d 1045 (Cite as: 176 F.Supp.2d 1045) ing experts during the Holidays. Counsel for Dr. prompt return of children who have been wrongfully Tsarbopoulos had no objection. By Order dated De- removed or retained, as well as for securing the exer- cember 22, 2000, the evidentiary hearing was reset to cise of visitation rights. Children who are wrongfully May 21, 2001, (Ct.Rec.69). removed or retained within the meaning of the Con- vention are to be promptly returned unless one of the On January 19, 2001, there was a substitution of narrow exceptions set forth in the Convention ap- counsel for Dr. Tsarbopoulos, (Ct.Rec.77). On March plies.... 21, 2001, Kristi Tsarbopoulos filed a motion to con- tinue the date set of the evidentiary hearing, 42 U.S.C. 11601et. seq. This language is consistent (Ct.Rec.90). Based on the discussion of counsel dur- with the objectives of the Hague Convention as those ing the hearing on that motion, on April 19, 2001, the objectives are discussed in Rapport Explicatif/ Ex- Court reset the trial for August 27, 2001, (Ct.Rec.96). planatory Report: E. PéREZ-VERa, HAGUE CONF. Trial began on that date and ended on August 31, ON PRIVATE INT'LLAW, 14TH SESS., VOL. III., 2001. At the close of the evidence, the Court took the 1980, P. 426, ¶ 16, P. 429 (HEREINAFTER matter under advisement. On November 6, 2001, the “PéREZ-VERA REPORT”). THIS REPORT IS Court notified the parties, by a facsimile letter to GENERALLY RECOGNIZED AS THE OFFICIAL counsel, that the Petition had been denied and that a HISTORY OF THE CONVENTION. SEE MOZES written decision would follow. V. MOZES, 239 F.3D 1067, 1069 N. 3 (9TH CIR.2001). PéREZ-VERA DESCRIBED THE For the reasons stated herein, the Court finds that MAIN OBJECTIVE OF THE HAGUE CONVEN- there was no shared habitual residence in Greece, and TION AS “THE RESTORATION OF THE STATUS therefore finds that the removal was not wrongful. In QUO BY MEANS OF ‘THE PROMPT RETURN the alternative, the Court finds that, assuming Greece OF CHILDREN WRONGFULLY REMOVED TO was the habitual residence of the children, their return OR RETAINED IN ANY CONTRACTING to Greece would pose a grave risk of physical and STATE.’ ” psychological harm or would be an intolerable situa- tion and that they are well settled in the state of The Pérez-Vera Report states: “the Convention ap- Washington and therefore, concludes as a matter of plies to children of less than sixteen years of age, law that the Article 13(b) exception applies. The who were ‘habitually resident in a Contracting State Court also finds that any undertakings offered by the immediately before any breach of custody or access Petitioner are insufficient to persuade the Court to rights.’ ” Pérez-Vera Report at ¶ .76 P.
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