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Kulahin Ruslan YURIIOVYCH, Petitioner, v. Kulahina Zhanna HRYHORIVNA, Respondent.
ORDER
On August 13, 2024, Petitioner Kulahin Ruslan Yuriiovych filed a Verified Petition for the return of his child (“K.M.R.” or “the Child”) to Ukraine under the Convention on the Civil Aspects of International Child Abduction (the “Convention” or “Hague Convention”) and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001, et seq. (Doc. 1.) He alleges that as of August 27, 2023, Respondent Kulahina Zhanna Hryhorivna has wrongfully retained K.M.R. in the United States within the meaning of Article 3 of the Convention and continues to do so despite Petitioner's efforts under the Convention to have the Child returned to Ukraine. (Id.) A trial was held in Missoula, Montana on December 10–11, 2024. Both parties presented witness testimony and offered exhibits.
Because it is undisputed that Petitioner presented a prima facie case for return under the Convention, (see Doc. 29 at 15; Tr. 6), the only issues to be resolved are (1) whether Respondent showed by clear and convincing evidence a “grave risk” of return under Article 13(b), see 22 U.S.C. § 9003(e)(2)(A), and, if so, (2) whether ameliorative measures are appropriate, see Golan v. Saada, 596 U.S. 666, 676–79 (2022) (recognizing that “a court may find it appropriate to consider both questions at once”). Having considered the law, the parties’ arguments, and the record evidence, the Child is ordered returned to Chernivtsi, Ukraine.
Background
The background information included below is taken from Petitioner's Verified Complaint, (Doc. 1), Respondent's Verified Answer, (Doc. 23), and the trial testimony and exhibits.1 At the trial, Respondent offered her own testimony and that of two experts on the war on Ukraine, Tom Malinowski 2 and Igor Kotler 3 . Petitioner testified by live video from Ukraine, his mother also testified remotely, as did Maria Poliak, a family law attorney practicing out of Chernivtsi. All the witnesses are credible but the testimony of those with no stake in the litigation were given the most weight. Additionally, the news articles submitted by both sides were carefully weighed as “[i]nformation placed into the public domain by both Ukraine and Russia will, inevitably, be influenced by strategic expediency. Propaganda is a weapon of war.” M & F, 2024 EWHC 1689, ¶ 40 (Fam. July 1, 2024).
I. Removal and Retention
The parents, both Ukrainian nationals, met sometime in October 2019. (Doc. 1 at ¶ 11.) They were married on May 16, 2020, in Veselinovo, Ukraine, (Doc. 1-1), and lived in Odesa, Ukraine in an apartment owned by Petitioner, (Tr. 16–17; Ex. 102 (photos of apartment).) In June 2021, their daughter K.M.R. was born. (Tr. 17; Doc. 1-2.) Except for a few temporary visits to Chisinau, Moldova and Chernivtsi, Ukraine, K.M.R. lived with Petitioner and Respondent in Odesa and both were actively involved in her daily life. (Doc. 1 at ¶¶ 12, 36.) It is undisputed, however, that while Petitioner worked, Respondent was primarily responsible for the care of K.M.R. (Tr. 131–32.)
In February 2022, Russia invaded Ukraine. (Doc. 1 at ¶ 14.) Immediately, the parties began to hear explosions and air raid sirens in Odesa based on Russian aerial attacks, and they were forced to sleep in their basement at times. (Tr. 18–20; Ex. 3.) Respondent testified that as a result of the stress related to the war, K.M.R. developed dermatitis and experienced hair and weight loss. (Tr. 20.) Petitioner does not remember K.M.R. experiencing these symptoms. (Tr. 121.) While Petitioner, Respondent, and K.M.R. continued to live in Odesa, because of the situation in the war they agreed that Respondent and K.M.R. in March 2022 would temporarily travel to Chisinau, Moldova to stay with friends of Petitioner's mother. (Tr. 21–22.) During a three-month period, Petitioner continued to financially support them, and he and Respondent communicated regularly regarding decisions affecting K.M.R. (Doc. 1 at ¶ 17.) In April or May 2022, Respondent returned to a city in western Ukraine, Chernivtsi, to be with her family. (Tr. 25.) While there, Respondent experienced daily air raid sirens. (Tr. 26.) Other than to reunite with Respondent and K.M.R. to return to Odesa in June 2022, Petitioner did not visit Respondent and K.M.R. in Chernivtsi because he does not get along with Respondent's family. (Tr. 130.) Upon returning to Odesa, the parties once again endured bombings and air raid alarms and were forced on occasion to shelter in either their basement or a nearby shelter. (Tr. 27.)
Respondent's mother and sister moved to the United States in late 2022. (Doc. 1 at ¶ 20.) While Respondent requested the family move as well, (id. ¶ 22; Tr. 29–30), Petitioner could not leave Ukraine due to a war-based travel restriction for Ukrainian men, (Doc. 1 at ¶ 21; Tr. 30). Even so, Respondent made arrangements for her and K.M.R. to join her mother and sister in Bozeman, Montana. (Doc. 1 at ¶ 23.) In July 2023, Respondent began the application process for the “Uniting for Ukraine” Program, which would allow her and K.M.R. to temporarily stay in the United States as part of a war-based “parole” program. (Id. ¶ 24; see Doc. 1-5.)
In August 2023, Petitioner once again arranged for Respondent and K.M.R. to stay with family friends in Moldova due to the increased bombing of Odesa. (Doc. 1 at ¶ 25; Tr. 30.) On August 14, 2023, Petitioner accompanied Respondent and K.M.R. to the bus station, (Doc. 1 at ¶ 26; Tr. 31), and the two communicated regularly while Respondent and K.M.R. were in Moldova, (Doc. 1 at ¶ 27). On August 26, 2023, Respondent informed Petitioner that she was intending to fly to Montana with K.M.R. to be with her mother and sister. (Id. ¶ 28; see Tr. 30–31 (explaining that she wanted to come to the United States because she “knew that [her] family would support her” and she “w[ould] have a place to live”).) On August 27, 2023, over Petitioner's objection, Respondent took K.M.R. to the United States. (Doc. 1 at ¶¶ 29–30; Tr. 30.) According to Petitioner, Respondent's decision to abscond with K.M.R. to the United States solidified his decision to file for divorce, which was finalized in Ukraine on November 10, 2023. (Doc. 1 at ¶ 31.) While a custody proceeding was opened in Ukraine, it was closed without decision in light of the Child's absence from the jurisdiction. (Tr. 32; see Ex. 34.)
Since K.M.R. was taken to Montana, Petitioner has continually objected to her remaining in the United States. (Doc. 1 at ¶ 32.) While Petitioner proposed K.M.R.’s return to a different part of Ukraine or Moldova due to Respondent's concerns regarding the Russian invasion, Respondent has made clear that she has no intention of returning to the area. (Id. ¶¶ 33–34.) Indeed, the record shows that while there are valid concerns on both sides about K.M.R.’s presence in Ukraine, the discord between the parties and their families runs much deeper. (See Exs. 1a, 2a, 116a, 117a, 118a.) Accordingly, Petitioner began to take steps to secure the return of K.M.R., including making a Hague Convention request through the Central Authority of Ukraine, (see id. ¶¶ 40–42; Doc. 1-7), and filing the present action, (see generally, Doc. 1).
II. Current Situation in Ukraine
In February 2022, Russia launched a full-scale invasion of Ukraine with the goal of “end[ing] Ukraine's existence as an independent state.” (Tr. 75.) Russia's President, Vladimir Putin, “has repeatedly stated his view that Ukraine's separation from Russia, when the Soviet Union disintegrated in 1991 was a historical tragedy.” (Tr. 75; see Tr. 106 (“Putin ․ considers that Ukraine is a historical part of Russia, that Ukrainian people shouldn't exist as a specific ethnic entity.”)) Thus, “[t]his is not a war aimed at changing some policy of the government of Ukraine; it's a war aimed at ending it and subjugating all or at least most of Ukraine to the Russian empire.” (Tr. 75.) Russia's initial expectation, and that shared by much of the world, was that it would take Ukraine easily and in a matter of days. (Tr. 75–76.) Russia was wrong, and Ukraine, with the aid of the international community, has mounted a valiant defense. (Tr. 76.) As a result, the war continues more than two years later, and Russia's strategy has shifted to targeting civilians and civilian infrastructure in an effort to destroy civilian morale and Ukrainian support of the war. (Tr. 75–76.) While it may be posturing, Russia has also announced that it has lowered the threshold for its potential use of nuclear weapons. (Ex. 27 at 17.)
Russia is not following international law as it relates to the conduct of war. (Tr. 117.) In areas under Russian control, Russia has engaged in mass executions, torture, and kidnapping. (Tr. 76; see Tr. 107 (discussing Russia's land invasion); Ex. 13 (map).) It has also deployed approximately 2 million landmines in eastern Ukraine that will remain active after the conflict ends. (See Ex. 28 at 3, 25.) In parts of the country not under Russia's control, such as western Ukraine and Odesa, “Russia has struck from the air, firing everything from drones to rockets to missiles, including ballistic and hypersonic missiles, often aimed at civilian targets such as apartment buildings, schools and hospitals, sometimes aimed at energy infrastructure, a particular problem in the winter.” (Tr. 76; see Ex. 23 (State Dep't Press Release dated Oct. 25, 2024 confirming bombs have struck schools, hospitals, and energy infrastructure). Russia “want[s] Ukrainians to be cold and without heat or electricity.” (Tr. 76; see Tr. 108.) Accordingly, “all of Ukraine is a target.” (Tr. 90, 108; see also Tr. 94 (“[E]very populated area is strategic.”).) Ukraine is also facing product shortages and diminished social services. (Tr. 110.) Notably, since the Russian invasion in 2022, around 6 to 7 million Ukrainians, or roughly ten percent of the population, have left the country. (Tr. 100, 110.)
Most recently, at the end of November 2024, Russia escalated its drone and missile strikes in Ukraine, targeting energy infrastructure across the country. (See Ex. 39.) “Explosions were reported in multiple cities, including Kyiv, Kharkiv, Mykolaiv, Odesa, Lviv, and Volyn oblasts.” (Id. at 2.) These attacks included targets more than 600 miles from the Russian border, (id.), and in the Chernivtsi region in western Ukraine, air defense shot down a missile, (id. at 3). According to Ukrainian President Volodymyr Zelensky, in the week of November 24, 2024, “Russia had launched more than 800 KAB-guided aerial bombs, nearly 460 attack drones, and more than 20 missiles.” (Id. at 4.) In these attacks, Russia also used a new intermediate-range ballistic missile. (Id.) Based on the above, the NATO-Ukraine Council called an emergency meeting and “renewed calls for advanced air defense systems from Western partners.” (Id.)
Given Russia's preferred method of air attack, Ukraine has defended itself primarily with missile defense systems provided by the United States and other allies. (Tr. 77–78; Ex. 28 at 25 (describing the function of NATO as a “defensive Alliance”); Ex. 23 at 2 (“The United States continues to be the largest provider of security assistance to Ukraine, providing approximately $67 billion in security since Russia's full-scale invasion ․”).) Such systems are expensive, however. (Tr. 78.) For example, a single Patriot interceptor missile costs approximately $4 million while the drones and bombs being used by Russia cost only approximately $30,000 to $40,000 apiece. (Tr. 78.) “So the challenge for Ukraine is rationing these very expensive and sophisticated defense systems to shoot down as much as they can” recognizing that their supply is limited. (Tr. 79.) Complicating matters, the United States’ assistance in this area is running out with little hope of renewal. (Tr. 79–80.) Mike Johnson, the Speaker of the United States House of Representatives, has explicitly stated that Congress will not approve further aid, and President-Elect Trump has not contradicted that position. (Tr. 79–80.) To the contrary, President-Elect Trump, who will assume office in January 2025, “has questioned the wisdom of assistance to Ukraine.” (Tr. 80.) In light of these recent developments and the onset of winter, it is anticipated that Russia will increase the number of attacks in the near future. (Tr. 80; see also Tr. 95–96 (explaining how Ukraine's European allies lack the resources necessary to replace that provided by the United States).)
In addition to dwindling air defense options, Ukraine also faces a manpower shortage. Ukraine is a smaller country than Russia and, as a democracy, cannot simply throw bodies into the conflict. (Tr. 82–83.) Consequently, Ukraine has prohibited military-age men from leaving the country and is considering lowering the conscription age from 25 to 18. (Tr. 83, 100.) Petitioner is currently of conscription age and is therefore subject to the draft and cannot leave Ukraine. It is unclear how likely it is that he will be required to serve. While Respondent indicated that the current draft includes women in specialized fields, such as medicine, she presented no evidence in support of that assertion. (See Tr. 23–25, 41.) Respondent also testified that, as a dentist, she falls within that category of medically obligated personnel. (Tr. 23–25.) Even assuming her description of her service obligation is true, the record is also silent on the likelihood of her call to service should she return to Ukraine. (See Tr. 40–41.)
As of October 2024, the United States Department of State issued a Level 4 advisory for travel to Ukraine, advising United States citizens not to travel the area due to the conflict. (Ex. 19.) That advisory notes, however, that “[s]ome regions may have lower level of risk due to air defense capabilities and distance from active combat zones.” (Id. at 2.)
Analysis
The Hague Convention is a multilateral treaty designed “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Chafin v. Chafin, 568 U.S. 165, 168 (2012) (quoting Convention, Art. 1). It aims “to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contract States.” Id. (quoting Convention, Art. 1). The Convention's “core premise” is that “the interests of children ․ in matters related to their custody are best served when custody decisions are made in the child's country of habitual residence.” Monasky v. Taglieri, 589 U.S. 68, 72 (2020) (internal quotation marks omitted); see Abbott v. Abbott, 560 U.S. 1, 9 (2010) (“The Convention's central operating feature is the return remedy.”). “The Convention thus addresses both the interests of children who have been wrongfully removed or retained and the interests of the relevant authorities in the Contracting State from which the children have been removed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (6th Cir. 2024) (citing Abbott, 560 U.S. at 20). The United States and Ukraine are both signatories to the Convention. See U.S. Hague Convention Treaty Partners, U.S. Dep't of State, https://travel.state.gov/content/travel/en/Intemational-Parental-ChildAbduction/abductions/hague-abduction-country-list.html [https://perma.cc/CFP2-AVGT] (last visited Dec. 4, 2024).
Under ICARA, the Convention's implementing statute in the United States, the petitioning party bears the burden of proving by a preponderance of evidence that the child was “wrongfully removed or retained.” 22 U.S.C. § 9003(e)(1)(A). Once a petitioner makes out a prima facie case that removal or retention was wrongful, a court must order the child's prompt return unless the respondent shows that one of the Convention's “narrow” exceptions applies. 22 U.S.C. § 9001(a)(4); Convention, Art. 12. Specifically, here, whether the respondent can prove by clear and convincing evidence that “there is a grave risk that ․ [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, Art. 13(b); 22 U.S.C. § 9003(e)(2)(A). Even if a “grave risk” is shown, however, a court has “the discretion to consider ameliorative measures that could ensure the child's safe return.”4 Golan, 596 U.S. at 677–78 (“[T]he question of whether ameliorative measures would be appropriate or effective will often overlap considerably with the inquiry into whether a grave risk exists.”). Moreover, “a federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.” Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996); In re ICJ, 13 F.4th 753, 760 (9th Cir. 2021) (“Even where the court finds such a grave risk, however, the district court still has discretion to order the child's return.”)
I. Prima Facie Case
To establish a prima facie case of removal or retention, a petitioner must show: “(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.” Tereshchenko, 102 F.4th at 127 (quoting Gitter v. Gitter, 396 F.3d 124, 130–31 (2d Cir. 2005)); see Convention, Art. 3; Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001), abrogated on other grounds by Monasky, 589 U.S. 68.
Respondent does not dispute that Petitioner has met his burden of establishing a prima facie case that K.M.R.’s retention in the United States is wrongful under Article 3 of the Convention. (See Doc. 29 at 15; Tr. 6.) Regardless, the record shows, by a preponderance of the evidence, that: (1) K.M.R. was removed from her habitual residence in Ukraine and retained in the United States; (2) her retention in the United States is in breach of Petitioner's custody rights under the Ukrainian Family Code, and (3) Petitioner was exercising those rights at the time Respondent refused to return K.M.R. to Ukraine.5 See Tereshchenko, 102 F.4th at 122, 127 (“[T]he Ukrainian Family Code governs the parents’ rights vis-à-vis their children ․ These decisions expressly include those regarding where the children will reside ․”); 22 U.S.C. § 9003(e)(1)(A).
II. Grave Risk
The Convention's overarching “policy of deterrence gives way to concern for the welfare of the child only in extreme cases.” Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010). A court “is not bound to order the return of the child” if the court finds that return would expose the child to a “grave risk” of physical or psychological harm. Golan, 596 U.S. at 676; Convention, Art. 13(b). The existence of “grave risk” must be proved by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A). Neither “grave risk” nor “clear and convincing evidence” lend themselves to a precise meaning. In terms of the level of proof required, courts have held that the “clear and convincing” standard requires “an abiding conviction that the truth of [the] factual contentions” at issue is “highly probable.” Mondaca-Vega v. Lynch, 808 F.3d 413, 422 (9th Cir. 2015) (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)). Accordingly, this standard is met “only if the material ․ offered instantly tilt[s] the evidentiary scales in the affirmative when weighed against the evidence ․ offered in opposition.” Colorado, 467 U.S. at 316. In terms of “grave risk,” the Convention forces a court to act as Nostradamus in predicting the future of harm that a child is likely to be subjected to if the Convention and its implementing statutes are followed. While not demanding certainty, the Convention requires a court to assess the existing conditions in a child's country of habitual residence as well as any circumstances that may change and therefore inflict serious or injury or death upon the child. But the existence of a dangerous condition by itself is insufficient; rather, a court must also determine the probability of the untoward event impacting the child upon his or her return. It is only when it is proved with clear and convincing evidence that there is danger to the child, in other words, the unacceptable combination of the changing circumstances and the probability of an untoward event, that the standard for grave risk under the Convention is satisfied. The analysis below attempts to fit the facts of this case within this demanding framework.
While many “grave risk” cases involve individualized familial circumstances, such as domestic abuse, there is no such evidence here; rather, the overarching safety risk in this case is the ongoing war in Ukraine. The conflict in Ukraine has forced the Ukrainian government to expend innumerable resources to counter an existential threat presented by an unpredictable, nuclear power. It has forced many parents to choose between their country and the safety of their children. It has forced courts to become clairvoyant on complex matters of statehood and military strategy. Against this backdrop, the simple premise of the Hague Convention—i.e., that custody matters should be resolved by the courts of the country of a child's habitual residence—becomes less simple. See Re N, 2024 EWHC 871, ¶ 44 (Fam. Apr. 17, 2024) (“No-one intended that an instrument designed to secure the protection of children from the harmful effects of international child abductions should itself be turned into an instrument of harm.” (internal quotation marks omitted)).
Prior to this conflict, the application of Article 13(b) to a war zone received little attention. See, e.g., Friedrich, 78 F.3d at 1067 (merely proffering that “returning the child to a zone of war, famine or disease” would constitute grave risk); Silverman v. Silverman, 338 F.3d 886, 900–01 (8th Cir. 2003) (holding that the existence of regional violence, such as suicide bombers, did not make Israel a “zone of war”); Rodriguez v. Sieler, 2012 WL 5430369, at *8 (D. Mont. Nov. 7, 2012) (rejecting grave risk defense where respondent argued generalized cartel violence in Mexico). Since February 2022, however, numerous courts around the world have since been forced to grapple with this issue. Unsurprisingly, courts have reached various and often inconsistent conclusions about whether returning children to Ukraine under these circumstances poses a grave risk of harm. Despite this variability, there is consensus on the relevant considerations.6
First, the mere fact a war is ongoing in Ukraine does not, by itself, trigger Article 13(b). See Kosenkov v. Kosenkova, 2024 ONSC 3807 (Ont. Sup. Ct. July 3, 2024) (“[I]t is not sufficient to simply find that because the country is at war, the Article 13(b) exemption applies.”); see In re Z & X, 2023 EWHC 602, ¶ 24 (Fam. Mar. 17, 2023) (“[I]t would be wrong in principle to adopt an indiscriminate blanket policy ․ A more nuanced and granular approach is necessary.”); I.F. & J.G., 2023 IEHC 495, ¶ 8.31 (July 25, 2023) (“In order to prove grave risk, in a situation where this is an ongoing war, one must prove there is a specific risk to this specific child.”); Re N, 2024 EWHC 871, ¶ 44 (emphasizing that it is “clear that it is not appropriate to treat the ongoing hostilities as automatically establishing a grave risk of harm to the child”); O.T. & D.T., 2024 IEHC 654 (Oct. 4, 2024) (“[I]t is insufficient to suggest that there is a grave risk of remaining in Ukraine at present without details as to why, details describing what conditions prevail in the place to which the child would otherwise return and details of the current situation in that region or city.”). In this same vein, the unpredictability of the war or Russia's actions does not give rise to a “grave risk” in every case. See Q & R, 2022 EWHC 2961, ¶ 50 (Sept. 21, 2022) (“[W]ar is unpredictable, particularly war waged in a country led by President Putin.”)
Second, the “grave risk” inquiry must focus on “what risk [a child] w[ould] face in the part of the county [she] will return to and whether that will imperil [her] unacceptably.” In re Z & X, 2023 EWHC 602, ¶ 24; see Tereshchenko, 102 F.4th at 130 (holding the district court's grave risk analysis insufficient in part because it “did not inquire into the details of conditions in a specific city and residence in Ukraine to which the children could be brought”); Q & R, 2022 EWHC 2961, ¶ 54 (“It seems to me one has to avoid generalities, and in so far as possible evaluate the particular risk to this particular child in a return to a particular area, rather than to apply a general or a broad brush[.]”). In this nuanced assessment, courts have found that return to certain cities or eastern Ukraine poses a grave risk. See, e.g., Kosenkov, 2024 ONSC 3807 (refusing to order return to Kharkiv, which is located in northeastern Ukraine); Tereshchenko, 102 F.4th at 130–31 (finding grave risk in L'viv in western Ukraine due to recent missile strikes and civilian casualties); In re Z & X, 2023 EWHC 602, ¶¶ 9–10 (finding return to Kyiv posed grave risk but only after noting that father actually withdrew his petition given the situation on the ground); but see M & F, 2024 EWHC 1689, ¶ 40 (ordering return to Kyiv “primarily on the evidence of the parents” that “supports a conclusion that [Kyiv] has, so far, weathered the war effectively”). Courts have also found “grave risk” when the return location is near a strategic installation, such as power plants or ports. See Re N, 2024 EWHC 871, ¶ 63 (“I am particularly concerned about C Facility and the extent to which it may become a target for a Russian missile or air strike.”). And, in assessing the propriety of return to specific localities, courts have considered not only acts of active aggression—i.e., missile strikes or invasion—but also the functionality of the court systems and the provision of social services in the area. See Q & R, 2022 EWHC 2961, ¶¶ 18, 46–47, 57 (considering the fact that the court system in Ukraine is functioning and “schools are open,” “shops are open and well stocked,” and “[w]ork is carrying on.”); see Salame v. Tescari, 29 F.4th 763, 770 (6th Cir. 2022) (rejected a claim of grave risk for Venezuela but recognizing that “an ‘intolerable situation’ can encompass situations where the courts of the state of habitual residence are practically or legally unable to adjudicate custody”).
Third, “[r]isk of physical harm must be considered, depending on whether [the child] would reside, until such time as the Ukrainian courts make long term welfare decisions for him.” See Re N, 2024 EWHC 871, ¶ 58; see Friedrich, 78 F.3d at 1069 (requiring courts to consider “when return of the child puts the child in imminent danger prior to the resolution of the custody dispute”). Thus, the relevant timeframe is a temporary one; only that time needed for the courts of the country of habitual residence to assume jurisdiction and determine custody. See In re ICJ, 13 F.4th at 764–65 (“[T]he grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” (internal quotation marks omitted)), abrogated on other grounds by Golan, 596 U.S. 666 (2022). The record in this case indicates that custody determination in Ukraine takes approximately 9 months, 6 months for an initial determination and 3 months for an appeal, if any. (Tr. 70.)
An assessment of grave risk also requires an understanding of what factors are not relevant to this determination. First, “[t]he fact that a child has grown accustomed to her new home is never a valid concern under the grave risk exception, as it is the abduction that causes the pangs of subsequent return.” Cuellar, 596 F.3d at 511 (internal quotation marks and emphasis omitted). Second, the exception does not provide “license for a court in the abducted-to country to speculate on where the child would be happiest,” id. at 509 (internal quotation marks omitted), or who would be the better parent, id. at 510. Third, “grave risk does not encompass a home where money is in short supply, or where educational or other opportunities are more limited.” Id. (internal quotation marks omitted); see Friedrich, 78 F.3d at 1067 (“[E]ven if the home of [the petitioner] were a grim place to raise a child in comparison to the pretty, peaceful streets of Ironton, Ohio, that fact would be irrelevant to a federal court's obligation under the Convention.”).
Additionally, even if a “grave risk” is shown, a court has “the discretion to consider ameliorative measures that could ensure the child's safe return.”7 Golan, 596 U.S. at 678. In that consideration, a court “must prioritize the child's physical and psychological safety,” id. at 680, ensure it does “not usurp the role of the court that will adjudicate the underlying custody dispute,” id., and avoid “undue delay,” id. at 682. “The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate.” Id. “Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention.” Id.
Based on the record in this case, return of K.M.R. to Odesa possess a grave risk to the Child. While there is also a certain level of risk associated with return to any other part of Ukraine, return to Chernivtsi is an appropriate ameliorative measure that both mitigates this risk and serves the purposes of the Convention.
A. Odesa 8
Odesa is a city of approximately one million people located on the Black Sea in southern Ukraine. (Ex. 113; Tr. 120.) Because it is the only deep-water port in Ukraine, Odesa is a strategic target for Russia. (Tr. 83.) The port in Odesa is the entry and exit point for most of Ukraine's imports and exports, including a significant amount of the world's grain supply. (Tr. 83–84.) As a result, Odesa is subject to relatively more Russian missile and drone strikes, (Tr. 84–84), and, consistently, air raid sirens often go off in Odesa, (Exs. 13, 14, 15). Strikes are not only targeted at the port, but also at Odesa's civilian areas and infrastructure. (Tr. 84.) Odesa has been hit hundreds of times since the 2022 Russian invasion, including seven reported attacks in the last month. (See Ex. 41.) Odesa has also suffered numerous civilian casualties as a result of these attacks, including a November 18, 2024 attack on a residential building that killed ten people. (Ex. 41; Tr. 84.) While there are air raid alarms and other early notice systems in place, Russia's use of hypersonic missiles has minimized the effectiveness of such safety measures. (Tr. 85.) Additionally, as mentioned above, escalation is anticipated. (Tr. 86.)
That is not to say that all the evidence in the case supports Respondent's contention that Odesa is so unsafe as to be unlivable. To the contrary, despite the undisputed fact that Odesa has not been spared from Russian attacks, the evidence in the record overwhelming shows that the people of Odesa have made every effort to maintain as “normal” a life as possible. (See Tr. 87; see Tr. 145 (“The city lives its regular life. Stores are open. Banks are open. Daycares are open. Movie theaters, theaters. Everything is functioning.”).) Indeed, “where people have made the decision to stick it out, they generally maintain things like schools and shops and all the features of a normal life.” (Tr. 87.) “[T]hey will find a way to provide for the education of their children and do other normal things because there's not greater safety in avoiding those things.” (Tr. 88.) And such displays of normalcy are a message in-and-of themselves, a way to defy the enemy. (Tr. 88–89; see also Tr. 99 (“[T]here's no reason not to have a normal life if you choose to stay. And there is an additional positive reason to display that normalcy because it is a sign of the failure of your enemy to change your morale.”)) More specifically, Odesa has a consistent supply of water and power, although the electricity supply is subject to systematic blackouts to account for Russian disruptions to the grid. (Ex. 111 at 1; see also Tr. 146.) While determined to be in a “high risk zone,” schools are open and have been fitted with bomb shelters. (Ex. 111 at 1–2; see also Exs. 16, 17 (summarizing facilities and listing shelters).) The Ukrainian government also provides an early warning system to its citizens through, for example, phone applications. (See Tr. 147.)
On balance, however, Respondent has shown by clear and convincing evidence that return to Odesa poses a grave risk to K.M.R.’s physical safety. The record shows that Odesa is a strategic target, and that Russia has recently escalated its attacks on such targets. The record also shows that civilian casualties have been experienced in Odesa and that they continue in the status quo. The Ukrainian government itself has determined that schools are “high risk zones.” (See Exs. 16, 17.) Additionally, Petitioner himself appears to recognize the risk of living in Odesa, as he has made return to western Ukraine, not Odesa, his primary request. Accordingly, K.M.R. is not ordered returned to Odesa.
B. Chernivtsi
Because return to Odesa would pose a grave risk to the Child, Petitioner has proposed, as an ameliorative measure, return to Chernivtsi in western Ukraine.9 Respondent objects to this alternative, maintaining that return to any part of Ukraine, and this region in particular, still poses a grave risk that cannot be ameliorated. “[T]he Hague Convention is generally intended to restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.” Friedrich, 78 F.3d at 1064. Consistently, the Court must fashion a remedy that both protects KMR “from the ‘grave risk’ of harm ․ found, while still honoring the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child's home country.” Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999). Return to Chernivtsi accomplishes that goal.
Chernivtsi is a city and oblast 10 located in southwestern Ukraine. (Ex. 113.) The city has a population of approximately 300,000. (Ex. 108 at 1.) On the whole, the evidence shows that western Ukraine in general and Chernivtsi in particular is at less risk than the eastern portion of the country or strategic targets, such as Odesa. (See Ex. 108 (news article dated July 2023 indicating how peaceful the city is compared to the rest of the country).) Indeed, many Ukrainians have relocated to the western part of the country since the invasion in 2022. (Tr. 125 (Petitioner indicating the realty office he works for opened satellite branches in western Ukraine following the outbreak of the war in light of the migration).) Notably, while two years ago, Respondent and her family viewed Chernivtsi as a safe place to escape the escalating conflict. (Tr. 47; see also Tr. 122 (Petitioner describing visit in 2022 as “a city that lives with no war in it”).
Maria Poliak, a family law attorney from Chernivtsi, testified that air raids were three times less common in Chernivtsi than in Odesa or Kyiv, and that no missile strikes have hit the city and there have been no civilian deaths. (Tr. 65.) According to Poliak, Chernivtsi is currently one of the safest regions of Ukraine and all schools, daycares, and courts are fully operational. (Tr. 66, 69 (noting that operations are suspended when the air raid sirens are active)); cf. Q & R, 2022 EWHC 2961, ¶ 58 (noting that while life in Ukrainian town was not “quite as normal” post-invasion, it had “minimal or limited disruption”). The schools and daycares also have bomb shelters, as required by Ukrainian law. (Tr. 65–66.) And while the United States Department of State has issued a Level 4 “no travel” advisory for Ukraine generally, it has issued a Level 3 advisory for the Chernivtsi region. (See Ex. 19 at 2.) This means that travelers are warned to “react to air alerts and seek appropriate shelter” and recognize that certain areas are subject to curfews. (Id.) The Advisory also recommends that travelers download an air alert application on their phones and closely monitor the developing situation. (Id. at 3.)
There is evidence, however, that risk remains. Chernivtsi, as other parts of western Ukraine, has been the target of recent air attacks by Russia, including attacks on November 28, December 2, and December 9, 2024. (Tr. 107.) Such missile attacks do not distinguish between military personnel and civilians, and, consistent with Russia's general escalation, it is likely that places like Chernivtsi will be attacked in the future. (Tr. 109.) Even so, the missile that came closest to Chernivtsi in November was more than 150 km away from city, (Tr. 68), and successfully thwarted by the air defense system, (Tr. 67). Moreover, Chernivtsi is on the border of Romania, which is a NATO country, which may give Russia some pause in engaging in air attacks. (Tr. 64, 93, 127.) Thus, as it currently stands, Ukraine has been able to successfully defend places like Chernivtsi against Russian attack.
However, the future is uncertain. The successful defense of western Ukraine has largely been based on air defense systems. Those systems are expensive, and Ukraine has required significant external funding, primarily from the United States, to maintain them. Both Respondent's experts testified that future support is uncertain as the United States Congress leadership has indicated that it will not approve further aid and President-Elect Trump has said nothing to counter that statement. In the absence of an effective air defense system, there is little protecting western Ukraine, which has no Russian soldiers on the ground, from consistent bombardment. Both experts also testified that it is likely that Russian missile barrages will increase in the coming months. Considered in totality, the situation on the ground is expected to get worse before it gets better in Ukraine, even in Chernivtsi. This uncertain future is of great concern given that while a child in Chernivtsi arguably has a low risk of being a civilian casualty, “the seriousness of the harm is very grave.” In re N, 2024 EWHC 871, ¶ 63.
As recognized by both parties, the true challenge of this case is that almost every aspect of the above is outside of both Petitioner's and Respondent's control. In re Z & X, 2023 EWHC 602, ¶ 29 (“[T]he source of the grave risk is entirely independent of the applicant and beyond his control. He can do nothing to influence the military strategy of Vladimir Putin or the Russian state.”). Also complicating matters is the unique fact that Petitioner cannot leave Ukraine and the suggestion that both Petitioner and Respondent may be drafted. However, what remains in Petitioner's control, and what tips the scales in favor of return, is Petitioner's demonstrated willingness to take extreme measures to protect and ensure the welfare of his daughter, including allowing her and Respondent to leave the country twice to avoid the war. (Tr. 126.) There is no reason to believe this will change going forward.
To the contrary, Petitioner has proposed uprooting his life in an effort to maintain the Child's safety in Chernivtsi pending a custody determination. Petitioner testified that if K.M.R. were returned to Chernivtsi, he would relocate there to live with her. (Tr. 123.) Specifically, he would get an apartment and transfer offices as the realty company he works for now has an office in Chernivtsi. (Tr. 123–25; Ex. 104 (apartment listings for Chernivtsi).) Petitioner has also reviewed available daycare, (Tr. 125), and can financially afford to move, (Tr. 125–26). He also testified that, if ordered by the Court, he would remain in Chernivtsi with K.M.R. pending the outcome of the custody proceedings. (Tr. 128.) He also recognized the potential for psychological trauma from being in a war zone, and indicated he would seek psychological care for K.M.R. if necessary. (Tr. 136.) And, as indicated above, the Ukrainian government continues to provide an early warning system to its citizens of potential attack. (See Tr. 147 (discussing available phone applications); see also Tr. 158 (“Some people get it on the radio. Some people use the app. Some people listen to the ․ overhead announcements ․”).) Such evidence is compelling.
In response, Respondent testified that she doubted Petitioner's true commitment to moving to Chernivtsi, as he did not visit her while she and K.M.R. were there in 2022 and all of his family, friends, and life is in Odesa. (Tr. 33–34.) When pressed on whether Petitioner would violate a direct court order, however, Respondent stated that she had “no way of knowing.” (Tr. 47.) The Court is not persuaded by Respondent's skepticism. To the contrary, the present lawsuit itself shows the lengths Petitioner is willing to go to be a part of his daughter's life and to accept a custody determination by the Ukrainian courts. As indicated above, the evidence suggests Petitioner will promote K.M.R.’s welfare. Q and R, 2022 EWHC 2961, ¶ 62 (Sept. 21, 2022) (considering actions of left-behind parent in assessing success of ameliorative measures).
In assessing ameliorative measures, the Court is required to “prioritize the child's physical and psychological safety,” Golan, 596 U.S. at 680, avoid adjudicating custody matters, id., and prevent undue delay, id. at 681–82. In so doing, it is necessary to “address the parties’ substantive arguments and its specific obligations under the Convention.” Id. at 682. Return to Chernivtsi accomplishes both goals. The record shows that while Chernivtsi is not entirely beyond the conflict and civilian casualties are possible, to date, there have not been any such casualties. Additionally, Petitioner testified that he is willing to take any steps necessary to protect the Child's physical and psychological wellbeing should matters escalate. While Respondent's contention that having the Child remain in the United States pending custody proceedings would pose no physical risk from the war, (see, e.g., Doc. 51), such a finding ignores both the fact that the Court must avoid engaging in a custody determination and avoid undue delay. The purpose of the Convention is not only to have custody adjudicated by a Ukrainian court, but also to return the status quo prior to the unlawful retention. Friedrich, 78 F.3d at 1064. Allowing the Child to remain in the United States pending that outcome serves neither purpose. (See Doc. 52.) And, as argued by Petitioner, it would result in the very thing the Convention seeks to prevent: Respondent obtaining a more favorable venue through abduction. To serve the purpose of the Convention, the Child must be returned to Ukraine for custody proceedings. And trust must be placed “in the courts of the child's habitual residence to protect the child even in a situation where physical harm was a risk faced by that child.” See I.F., 2023 IEHC 495, ¶ 8.6.
As a final consideration, it became clear through these proceedings that Respondent's objection to mediating a return is that if she or the Child leaves the United States, they would lose their parole status under the Uniting for Ukraine Program. Accordingly, future return to the United States would require them to reapply to the program. In the Sixth Circuit, at least one judge has determined that “[c]hildren are placed in an intolerable situation when their parent is forced to choose between the risk that the parent will lose their asylum status in the United States and the risk that the parent will lose custody of the children if the parent fails to return to the county in which custody will be adjudicated.” Salame, 29 F.4th at 776–77 (Moore, J., dissenting). However, Respondent's voluntary parole status in the United States is not the same as asylum. To the extent Respondent now faces a Hobson's choice, it is a dilemma of her own making. The record shows that Petitioner was willing to allow Respondent and K.M.R. to reside outside of Ukraine, but close enough for contact, while custody was determined. Respondent instead chose to come to the United States, as opposed to Moldova or another neighboring country, for the undisputed reason that her family was here. (See Tr. 30–31.) Neither the Convention nor this Court's decision are constrained by that choice.
Conclusion
Based on the foregoing, IT IS ORDERED that Petitioner's request for return is GRANTED. The Respondent shall cooperate fully with the return of the Child to Chernivtsi, Ukraine on or before February 1, 2025. This will give Petitioner time to make arrangements in Chernivtsi in preparation for the arrival of the Child and Respondent time to make arrangements for the Child's travel. On or before January 7, 2025, the parties must submit a proposed travel plan, indicating specifics, including who will travel with the Child and on what dates. Respondent shall bear the cost of return.
IT IS FURTHER ORDERED that Petitioner's fees and costs shall be awarded pursuant to 22 U.S.C. § 9007(b)(3) unless Respondent shows, on or before January 7, 2025, that such an award would be “clearly inappropriate.”
FOOTNOTES
1. The transcript is cited as “Tr. [page no.].”
2. Malinowski is a former Assistant Secretary of State for Democracy, Human Rights, and Labor (2014–2017) and Congressman (2019–2023). (Tr. 72–73.) He has been involved with and monitoring the situation in Ukraine over the course of his career and was a senior state department official when the conflict began in 2014. (Tr. 73.) His last visit to Ukraine was in 2023. (Tr. 73.) He is recognized as an expert in the field of Ukrainian security.
3. Kotler is Director of Global Relations and a member of the Center for the Study of Genocide and Human Rights at Rutgers University. (Tr. 104.) He has spent a significant part of his career studying Ukraine. (Tr. 105.) He is recognized as an expert in the field of Ukrainian history and security.
4. These are often referred to as “undertakings.” See Golan, 596 U.S. at 674 n.4.
5. Ukraine's March 2022 issuance of an executive order that allowed parents to unilaterally cross the border with children did not diminish Petitioner's custody rights under Ukrainian law. (See Ex. 8); I.F. & J.G., 2023 IEHC 495, ¶¶ 5.4, 5.6, 7.2–7.3 (July 25, 2023); cf. Friedrich, 78 F.3d at 1066 (counseling courts against assessing the nuances of whether a parent was “exercising” their custody rights under the laws of the habitual state).
6. While foreign jurisdictions, the decisions cited below are “entitled to considerable weight” because they come from “sister signator[ies]” to the Convention. Abbott, 560 U.S. at 12 (internal quotation marks omitted). “The principle applies with special force here, for Congress has directed that ‘uniform international interpretation of the Convention’ is part of the Convention's framework.” Id. (quoting 42 U.S.C. § 11601(b)(3)(B), now codified at 22 U.S.C. § 9001(b)(3)(B)).
7. Neither the Convention nor its implementing statutes or decisions in the Ninth Circuit allocate the burden of proof regarding ameliorative measures. See Radu v. Short, 62 F.4th 1165, 1176–77 (9th Cir. 2023) (Murguia, C.J., concurring). Consistent with the approach taken in at least three circuits, however, Petitioner has carried this burden here as to those measures he has proposed as discussed below. See id.
9. Petitioner also proposed return to Chisinau, Moldova. If return to Chernivtsi were indeed to pose a grave risk, the Child would be ordered returned to Moldova. Respondent presented no evidence that return to Moldova poses a risk and it would undisputedly permit access to the Ukrainian courts for custody proceedings, serving the fundamental purpose of the Convention in this unique situation where Petitioner cannot leave Ukraine. Moreover, Petitioner's mother testified that she would live with the Child in Moldova for the duration of the proceedings if Respondent did not return. (Tr. 153–54.)
10. An “oblast” is an administrative division or region, often considered the equivalent of an American state. Although references in the record are sometimes to the city and sometimes to the oblast, Petitioner requests return of K.M.R. specifically to the city. (See Tr. 123.)
Donald W. Molloy, District Judge
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Docket No: CV 24-78-BU-DWM
Decided: December 23, 2024
Court: United States District Court, D. Montana,
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