United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
Hague Convention on the Civil Aspects of International Child
Abduction (the “Hague Convention”), ratified by
Congress under the International Child Abduction Remedies Act
(“ICARA”), 22 U.S.C. § 9001, et
seq., requires that when a child under the age of
sixteen has been wrongfully removed or retained from his or
her country of habitual residence, the court must generally
order the return of the child, unless certain exceptions
apply. Plaintiff Ivica Kovacic (“Plaintiff” or
“Mr. Kovacic”) brings this Verified Complaint
under the Hague Convention for the Return of his Child to
Croatia, alleging that his ex-wife, Defendant Danijela Harris
(“Defendant” or “Mrs. Harris”), has
been wrongfully retaining their daughter, N.K., in the United
States since December of 2015. (ECF No. 1.) On July 2 and 3,
2018, this Court held a hearing and bench trial on whether
Mrs. Harris is wrongfully retaining N.K. in the United States
and, if so, whether two exceptions to ordering N.K.'s
reasons explained below, this Court concludes that while Mrs.
Harris is wrongfully retaining N.K. in the United States
under the Hague Convention, N.K. has reached an age and
degree of maturity that this Court takes into account her
objections to returning to Croatia and does not order her
return. Accordingly, Plaintiff Ivica Kovacic's Verified
Complaint for Return of Child to Croatia (ECF No. 1) is
January 6, 2017, Mr. Ivica Kovacic filed a Verified Complaint
under the International Child Abduction Remedies Act
(“ICARA”), 22 U.S.C. § 9001, et
seq., seeking the return of his daughter, N.K., to
Croatia where, if necessary and appropriate, a further
custody and visitation determination can be made by a
Croatian court under Croatian law.On September 7, 2017, this
Court approved the parties' voluntary stipulation of
dismissal on the ground that they had “agreed to settle
this matter and ha[d] fully executed a settlement
agreement.” (ECF Nos. 36, 37.) Six months later,
however, Plaintiff Kovacic filed a Motion for Relief from
Judgment, asserting that Mrs. Harris had not honored
commitments to intermittently send N.K. to Croatia. (ECF No.
39.) This Court granted Plaintiff's Motion, reopened the
case, and pursuant to Local Rule 101.1a permitted Mrs. Harris
to represent herself. (ECF No. 41.) Shortly thereafter, this
Court scheduled a bench trial for July 2 and 3, 2018.
to the bench trial, Plaintiff filed two motions for partial
summary judgment.The first motion was for partial summary
judgment on his affirmative Hague Convention claim. As
explained in this Court's prior Opinions in this case,
“the [Hague] Convention provides that a child who was
‘wrongfully removed' from his place of habitual
residence in violation of a person's custody rights must
be returned to that place unless certain ‘narrow
exceptions' apply.” (ECF No. 24, Kovacic v.
Harris, No. RDB-17-0044, 2017 WL 2719362 (D. Md. June
23, 2017); ECF No. 55, Kovacic v. Harris, No.
RDB-17-0044, 2018 WL 3105775 (D. Md. June 25, 2018).) Article
III of the Hague Convention provides that a child's
removal is “wrongful” where “it is in
breach of rights of custody attributed to a person . . .
either jointly or alone, under the law of the State in which
the child was habitually resident immediately before the
removal or retention.” Finding that a hearing would be
helpful to determine whether Plaintiff Kovacic has custody
rights over N.K. as defined by the Hague Convention, this
Court scheduled a hearing on this legal issue prior to the
start of trial.
second motion was for partial summary judgment on
Defendant's third affirmative defense, which invoked the
“well-settled” exception in Article 12 of the
Hague Convention. The “well-settled” exception
provides that if the parent filing suit under ICARA did so
more than one year after the date of wrongful removal or
retention, the other parent may defend against the suit by
showing that the child is now settled in the new environment.
Kovacic, 2018 WL 3105772. Plaintiff, however, filed
suit one day shy of a full year since the date of alleged
wrongful retention. Mrs. Harris made the decision to stay in
the United States with N.K. on January 7, 2016, and Mr.
Kovacic filed this action on January 6, 2017. Therefore, this
defense was not available to Mrs. Harris and this Court
granted Plaintiff's motion.
2 and 3, 2018, this Court conducted a hearing on
Plaintiff's partial motion for summary judgment on his
affirmative Hague Convention claim and a bench trial on
whether two exceptions to N.K.'s return apply. Based on
the testimony and documentary evidence presented, this Court
makes the following findings of fact.
Ivica Kovacic and Defendant Danijela Harris (formerly
Kovacic) were married on February 22, 2003 in Desna Martinska
Ves, Croatia. (Croatian 2009 Judgment, Pl.'s Ex. 1.) On
May 31, 2003, their daughter, “N.K.”, was born.
(Id.) She is currently fifteen-years-old.
Harris testified that four years after N.K. was born, Mrs.
Harris and her husband separated because he “was
abusive to [her] physically and psychologically [and]
emotionally, ” and also abusive to his mother and
grandmother. (July 2 Tr. 114:19-20.) Two years after the
couple separated, on February 9, 2009, the parties formally
dissolved their marriage in the Municipal Court in Sisak.
(Pl.'s Exh. 1.) The Municipal Court Judgment entered that
day ordered that N.K. “will live with the mother
Danijela Kovacic in Sisak . . . [and] parental care remains
shared.” (Id.) The Judgment further set a
specified schedule for Mr. Kovacic's visitation with
N.K., including every other weekend while N.K. was in school,
“the first half of all winter, spring and summer school
holidays, . . . other holidays alternately, and according to
the agreement of parents.” (Id.) In line with
the Judgment, N.K. stayed with her father while she was in
school every second weekend from Friday until Sunday. (July 2
Tr. 32:16-20.) Mr. Kovacic testified that due to work, he
would miss a weekend with N.K. approximately four times a
year. (Id. at 38:25-39:1-2.)
years later, Mr. Kovacic sought to amend the Municipal
Court's Judgment, asserting that N.K. should be entrusted
to his care due to a change in circumstances. (Croatian 2011
Amended Judgment, Pl.'s Ex. 2.) The court declined Mr.
Kovacic's petition, noting a “problem of
communication” between the parties “about their
shared care of the minor child, ” and finding that
there was not a sufficient change in circumstances warranting
an amended judgment. (Id.)
this time, N.K. was still visiting with her father pursuant
to the Municipal Court's visitation schedule. She
testified, however, that when she would go to her
father's, she spent most of the time with her friends and
her paternal grandmother. (July 2 Tr. 133:8-10) (sealed).
When sleeping at her father's home, she slept downstairs
with her grandmother. (Id.) Her father slept on the
top floor of the home with his current wife, with whom N.K.
testified she does not have a good relationship.
(Id. at 132:19-22.)
2015, Mrs. Harris and N.K. decided to travel to the United
States to visit Mrs. Harris' family, including her ill
grandmother and aunt. (July 2 Tr. 117:5-7.) Mrs. Harris
testified that she has relatives who have been living in the
United States for a long time. (Id.) N.K. was
twelve-years-old at the time and needed to obtain a tourist
visa. In order to do so, Mr. Kovacic notarized a statement
declaring that he gave Mrs. Harris permission to request a
tourist visa for their daughter. (July 2 Tr. 40:18-20; Pl.
Exh. 3.) He further stated that “I also agree that once
her visa is issued, my daughter has my permission to spend
her winter school vacation, 2015-2016, in the United States
of America, in the company of Danijela Kovacic.” (Pl.
Exh. 3.) On the night Mrs. Harris and N.K. were
leaving Croatia, however, N.K. testified that Mr. Kovacic
grabbed Mrs. Harris' wrist and would not let her go.
(July 2 Tr. 134:2-5) (sealed). When N.K. and Mrs. Harris got
into the car, he banged on the windows and doors, screaming
and yelling. (Id.)
January 7, 2016, Mrs. Harris told Mr. Kovacic that she and
N.K. would not be returning to Croatia. Mrs. Harris and N.K.
testified that they decided to stay so that N.K. could enroll
in school and take English classes. (July 2 Tr. 117:7-11.)
Fourteen days later, on January 21, 2016, Mr. Kovacic filed a
Request for Return in Croatia under Article 3 of the Hague
Convention. (July 2 Tr. 43:4-44:6; Pl.'s Ex. 12.)
Subsequently, on February 8, 2016, the Assistant Minister for
the Ministry for Demography, Family, Social Policy, and Youth
(“the Ministry”) sent the United States Department
of State, Office of Children's Issues a letter stating:
According to Mr. Kovacic, Danijela Kovacic illegally and
without his consent and approval, and against his will,
retained their minor child N.K. in the United States of
America . . . Please note that according to the Croatian
Family Act parents equally, jointly and consensually care
about children, regardless of the fact whether they live
together or they are separated. . . Therefore, the decision
about residence of the child has to be made jointly by both
parents or by the decision of the court. The mother retained
the minor N.K. with her in the United States of America,
without the knowledge . . . of Mr. Kovacic, contrary to
reached agreement and the Croatian legislation. . . . We
kindly ask you to take, without any delay, all necessary
steps to secure the prompt return of minor N.K. to Croatia,
who has been wrongfully removed to the United States of
America, by her mother.
(Pl.'s Ex. 12.) The letter also stated that if the United
States Office of Children's Issues had any questions,
they could contact Ms. Suncica Loncar, Service for
International Cooperation in the Field of Protection of
Children and Coordination of Social Security System.
N.K. was staying with her mother in the United States, she
testified that at first she and her father talked almost
every other day through Facebook messenger. (July 2 Tr.
146:1-7) (sealed). They also had two video calls via skype
early into her stay in January and February of 2016. (July 3
Tr. 44:21-23.) Over time, however, their communications
slowed down and N.K. stopped responding as often to her
father's messages. (July 2 Tr. 136:9-10) (sealed). She
testified that he was rude to her and her family and on one
occasion made an inappropriate comment. (Id. at
one year after Mrs. Harris told Mr. Kovacic that she and N.K.
were staying in the United States, Plaintiff filed a Verified
Complaint in this Court under the Hague Convention for the
Return of his Child to Croatia. (ECF No. 1.) This Court
scheduled a bench trial for Thursday, September 14, 2017 and
Friday, September 15, 2017. On September 7, 2017, however,
the parties filed a stipulation of dismissal, asserting that
they had “agreed to settle this matter and ha[d] fully
executed a settlement agreement.” (ECF No. 36.) This
Court approved the dismissal that day. (Id.) Having
planned on being present for the bench trial, Mr. Kovacic
flew to the United States four days later on Monday,
September 11, 2017. (July 3 Tr. 2:3-17.) Specifically, he was
in this country from Monday, September 11, 2017 through
Friday, September 15, 2017. (Id.) He flew into
Washington, D.C., and traveled to Newark, Delaware to visit
N.K. (Id.) This was the first time Mr. Kovacic had
been in the United States or seen N.K. since the departure in
December of 2015.
testified that during that visit on Tuesday, September 12,
2017, she and her father went to get lunch. (July 2 Tr.
137:25) (sealed). While at lunch, her father tried to
convince her that she did not understand or speak English
well. (Id. at 137:25-138:2.) N.K. testified that
after lunch she told her father “how [she] felt and
that [she] wanted to stay [in the United States] and live
here.” (Id. at 138:3-6.) When Mr. Kovacic
would not listen, N.K. called her mother to pick her up.
(Id. at 138:5.) Mr. Kovacic then became upset, and
“told [N.K.] that we can go in court again.”
(Id. at 138:5-6) The entire visit lasted
approximately an hour and a half.
next day, Mrs. Harris encouraged N.K to meet with her father
again. (July 2 Tr. 120:17-19.) N.K., however, did not want to
see him. (Id. at 120:16-17.) Messages between N.K.
and her father indicate that N.K. had planned on spending
more time with her father while he was in the country, but he
had “really hurt” her during the visit. (Def.
Exh. 2.) Later that day, Mrs. Harris sent Mr. Kovacic a
message through N.K.'s phone stating:
I called you, Danijela. [N.K.] is crying so much and she
doesn't wanna even talk to us now. She is just saying she
doesn't wanna see you. I ask you to try to establish any
kind of normal communication between us . . ..
[T]ry to be gentle with her, it will take time for everyone
but she is most important in all of this. I'm doing
whatever I can. I'm the one who suggested that she shows
you her school and studio and show you where she lives. She
refuse [sic] it, especially after yesterday.
(Id.) In response, Mr. Kovacic wrote “[y]es,
thank you. I can see you are trying really hard.”
(Id.) Accordingly, the assertion by Mr. Kovacic that
Mrs. Harris exercised undue influence over their daughter is
rebutted by the undisputed facts in this case. After this visit,
N.K. responded to her father's messages even less
frequently. (July 2 Tr. 138:24-139:1) (sealed). Although he
wrote her every couple of days, she only sent him messages
such as Merry Christmas, Happy Birthday, and other
celebratory messages. (July 2 Tr. 143:11-20.)
between the September 2017 visit and February 2, 2018, Mr.
Kovacic claims Mrs. Harris did not honor the settlement
agreement. Mr. Kovacic filed another Request for Return in
Croatia under Article 3 of the Hague Convention. (Pl.'s
Ex. 12.) Subsequently, on February 2, 2018, the Assistant
Minister for the Ministry sent another letter to the United
States Department of State, Office of Children's Issues
stating that N.K. had been wrongfully retained in the United
States and asked for her prompt return. (Id.) Six
weeks later, on March 19, 2018, Plaintiff Kovacic filed a
Motion for Relief from Judgment, (ECF No. 39), which this
Court granted. (ECF No. 41.)
the bench trial, N.K., who is currently fifteen-years-old,
testified that she does not want to return to Croatia with
her father. (July 2 Tr. 140:15-19) (sealed). She currently
lives with her mother and stepfather in Elkton, Maryland. She
objects to returning to Croatia because most of her family
and friends are here in the United States; the friends she
had in Croatia have moved to a different city. (Id.)
She also objects to living with her father in Croatia,
testifying that he has never been there for her when she
needed him, and she is afraid of what he might do after these
court proceedings. (Id. at 140:22-25.) She did
testify, however, that although she is not open to having a
relationship with her father right now, she may in the future
“if things changed, and he shows that he cares about me
and about my decisions.” (Id. at 141:3-5.)
impressed this Court as an extremely mature fifteen-year-old.
She was able to testify in great depth about her relationship
with her father. Specifically, she testified that one of her
father's first comments to her, after having not seen her
for over a year and a half, was “oh, you're wearing
makeup.” (July 2 Tr. 137:16-18) (sealed). This is in
contrast to Mr. Kovacic's testimony that he does not want
his child “raised knowing that she can do illegal and
immoral things.” (July 3 Tr. 22:10-12.) In short, this
Court finds as a factual matter that N.K. seemed more mature
and measured in her testimony than did her father. Indeed,
she did not attempt to embellish her testimony with respect
to any physical reactions of her father. (July 2 Tr.
148:5-15) (sealed). However, she was quite clear in
referencing that even in past years “he was never there
for me when I needed him.” (Id. at 140:23.)