Case 2:13-cv-05399-JTM-DEK Document 17 Filed 09/04/13 Page 1 of 23 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA PIERRE BIEL CIVIL ACTION LUXEMBOURG NO. 13:5399 PETITIONER SECTION “H” (3) VERSUS JUDGE MILAZZO DINARA BEKMUKHAMEDOVA MAGISTRATE KNOWLES KAZAKHSTAN RESPONDENT FINDINGS OF FACT AND CONCLUSIONS OF LAW NOW INTO COURT, through undersigned counsel, comes plaintiff, Pierre Biel, who respectfully submits his proposed findings of fact and conclusions of law. To the extent that any of the proposed findings of fact are considered by the Court to be legal conclusions, they are hereby submitted as such. Similarly, to the extent that any of the proposed conclusions of law are considered by the Court to be factual findings, they are submitted as such. FINDINGS OF FACT 1. The Petitioner, Pierre Biel, is a citizen of Luxembourg. 2. Respondent, Dinara Bekmukhamedova, is a citizen of Kazakhstan. 3. Biel and Bekmukhamedova met in New Orleans, Louisiana in April of 2010. Biel and Bekmukhamedova were together numerous times over the course of the following year. Biel travelled from Luxembourg to New Orleans, New York City, and Miami to meet with Bekmukhamedova. Both parties also spent 10 to 12 days together in the Maldives. 4. After Biel’s May 2011 visit to New Orleans, Bekmukhamedova told him that she was pregnant with his child. On or about June 6, 2011, Bekmukhamedova travelled to PD.10375352.1 Case 2:13-cv-05399-JTM-DEK Document 17 Filed 09/04/13 Page 2 of 23 Luxembourg on a three-month tourist visa. During that visit, she and Biel decided that she would live with him in Luxembourg prior to and after giving birth. Because her initial visa was expiring, Bekmukhamedova returned to the United States at the end of August or beginning of September. Two months later, on November 11, 2011, Bekmukhamedova returned to Luxembourg on a one-year renewable resident permit. When she arrived in Luxembourg in November, Bekmukhamedova brought all of her belongings with her as she had moved out of her apartment in the United States. 5. Luxembourg is a small landlocked country in Western Europe, bordered by Belgium, France, and Germany. The country lies on the linguistic divide between Romance Europe and Germanic Europe, borrowing customs from each of the distinct traditions; hence Luxembourg is trilingual. Under the law of 1984 concerning the use of languages, French is the legislative language, as well as an administrative and judicial language, together with Luxemburgish and German. Much of the population also speaks English. 6. Luxembourg has a population of approximately 484,000 people (a third of which are foreigners) in an area of 2,586 square kilometers (999 square miles). The country is divided into three administrative districts (Luxembourg, Diekirch and Grevenmacher), 12 cantons and 116 communes. It has a highly developed economy, with the second highest Gross Domestic Product per capita in the world. 7. Like Louisiana, Luxembourg’s legal system is governed in civil law. 8. Bekmukhamedova lived with Biel in Luxembourg from November 11, 2011. Their child, VPZB, was born on January 21, 2012 in Luxembourg. Once discharged from the hospital, Biel, Bekmukhamedova, and the child lived together as a family in Biel’s home. All of - 2 - Case 2:13-cv-05399-JTM-DEK Document 17 Filed 09/04/13 Page 3 of 23 their names appear on the official Luxembourg Certificate of Household Composition issued by Commune of Mondercange. 9. VPZB is a citizen of Luxembourg, has a Luxembourg passport, and a Luxembourg Residency Certificate issued by Commune of Mondercange. His father and relatives on his father’s side are Luxembourg citizens. His mother and relatives on his mother’s side are Kazakhstan citizens. None of the persons before this Court are United States citizens. 10. From birth until November 2012, VPZB’s treating pediatrician in Luxembourg was Uwe Blecker, M.D., PhD. 11. Dr. Blecker is certified by the American Boards of Pediatrics & Pediatric Gastroenterology. In addition to his medical degree, Dr. Blecker is a PhD in Biomedical Sciences. He is a former professor and chief of St. Christopher’s Hospital for Children in Philadelphia, Pennsylvania. He is also a former professor and chief at West Virginia University Hospital. 12. As VPZB’s pediatrician, Dr. Blecker noted that petitioner Biel arranged for and attended all of VPZB’s regular “well baby” visits. 13. Dr. Blecker observed that VPZB was always well cared for and at no time did Dr. Blecker see any indication of abuse. 14. VPZB received the following vaccinations at Dr. Blecker’s office: - 3 - Case 2:13-cv-05399-JTM-DEK Document 17 Filed 09/04/13 Page 4 of 23 15. In May 2012 Bekmukhamedova travelled with Biel and the child to the United States to finalize her divorce from her prior-husband. The family returned home to Luxembourg within a week, as planned. 16. After her November 11, 2011 arrival in Luxembourg on a resident visa, Bekmukhamedova did not maintain a home anywhere other than Luxembourg. Between VPZB’s birth on January 21, 2012 and October 18, 2012, VPZB and Bekmukhamedova’s only home was in Luxembourg. While the family occasionally left Luxembourg for various short trips, they always returned home to Luxembourg. Bekmukhamedova and Biel never discussed raising VPZB anywhere other than Luxembourg. 17. Bekmukhamedova’s mother and sister travelled from Kazakhstan to Luxembourg to see VPZB and the family. During that visit, Bekmukhamedova’s mother and sister discussed their intent to return to Luxembourg to see the child in the future. 18. In October 2012 the family traveled from Luxembourg to New York for Bekmukhamedova to retain her U.S. Green Card. As shown on the trip itinerary, the family was scheduled to depart Luxembourg on October 18, 2012 and return from New York on October 23, 2012. 19. When the family left Luxembourg on October 18, 2012, Bekmukhamedova left a much of her clothes, books, and other personal affects in Luxembourg. Similarly, much of VPZB’s belongings were also left in Luxembourg, including ultrasound photographs of Victor and other sentimental items. 20. On October 18, 2012, VPZB was settled in the culture of Luxembourg, where he had lived from birth with his mother and father. - 4 - Case 2:13-cv-05399-JTM-DEK Document 17 Filed 09/04/13 Page 5 of 23 21. On October 18, 2012, Biel clearly intended that VPZB would continue to live and be raised at the family’s home in Luxembourg. 22. Regardless of her present testimony regarding her subjective intent, prior to and after VPZB’s birth, and until at least October 18, 2012, Bekmukhamedova manifested an intent to have the child be raised in Luxembourg. 23. After several days in New York, Bekmukhamedova told Biel that she needed to extend her trip in order to apply for a waiver from the United States government so she could remain away from the U.S. for more than six months without losing her Green Card. 24. Because Biel needed to return to his employment in Luxembourg, he left Bekmukhamedova and the child in New York. Biel returned to New York in November to bring necessary documentation for Bekmukhamedova to renew her one-year Luxembourg residency permit, which Bekmukhamedova signed. 25. During Biel’s November 2012 visit, Bekmukhamedova informed him that she could return to Luxembourg with VPZB because her papers were not ready yet. Biel left New York and returned to the family’s home in Mondercange, Luxembourg. Over the next several months he repeatedly visited New York to be with his son and to convince Bekmukhamedova to return to Luxembourg with VPZB. She refused. 26. At the end of January, Bekmukhamedova informed Biel that she was leaving New York and relocating to New Orleans. She told him that she was never coming back to Luxembourg. She also told him that she would never let VPZB return to Luxembourg. 27. After it became clear that Bekmukhamedova would not return VPZB to his home, Biel retained a Luxembourg lawyer. In March of 2013 Biel commenced an action in the Luxembourg Courts to obtain formal custody of his child. He also contacted government - 5 - Case 2:13-cv-05399-JTM-DEK Document 17 Filed 09/04/13 Page 6 of 23 authorities in Luxembourg, who put him in contact with the United States Department of State’s Bureau of Consular Affairs, the Office of Children’s Issues. 28. On March 20, 2013, the Juvenile and Guardianship Court at the Luxembourg District Court entered a preliminary order on Biel’s request for exclusive parental authority of his son. Bekmukhamedova was not present or represented at that preliminary hearing. The Judge set a final hearing for June 5, 2013 in the Juvenile and Guardianship Court in Luxembourg. 29. Preliminary Judgment in hand, Biel flew to New Orleans and hired a local lawyer and attempted to gain recognition of the preliminary custody determination in Orleans Parish Civil District Court. He also ran ads in the Times Picayune Newspaper informing Bekmukhamedova of the custody hearing set in Luxembourg on June 5, 2013. Biel also hired a private investigator to find Bekmukhamedova and serve her with the notice of the hearing in Luxembourg. Personal service was accomplished at her New Orleans residence. 30. On June 5, 2013, both Biel and Bekmukhamedova personally appeared with counsel in Luxembourg before the Juvenile and Guardianship Court at the Luxembourg District Court. Bekmukhamedova did not bring VPZB to that hearing. On June 20, 2013, the court issued a written ruling and order that VPZB shall reside with his father, Biel, in Luxembourg.