The opinion of the court was delivered by: Hochberg, District Judge.
This matter comes before the Court by Wim Delvoye's petition for the
return of his son (referred to as "Baby S") to Belgium under the Hague
Convention on the Civil Aspects of International Child Abduction (the
"Convention"), Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
Petitioner contends that Baby S was wrongfully removed from Belgium by
Christina Lee (Respondent), Petitioner's former girlfriend and the mother
of Baby S, and that under the Convention Baby S should be returned to
Belgium so that the Belgian courts may adjudicate a custody hearing.
Petitioner and Respondent first met during February or March 2000 when
Petitioner was an artist and Respondent was working for an art gallery.
Petitioner and Respondent began a romantic relationship shortly
thereafter. Petitioner testified that during the months of March and
April 2000, he traveled to New York from Belgium approximately five
times, solely to see Respondent. During those visits, Petitioner and
Respondent stayed in Petitioner's Manhattan apartment. As the
relationship progressed, Petitioner and Respondent met a few more times,
again staying in Petitioner's apartment in Manhattan, and, on one
occasion, meeting in Belgium.
In August 2000, Respondent moved into Petitioner's Manhattan
apartment.*fn1 Petitioner lived mostly in Belgium at the time, but spent
about a quarter of his time in New York. When Respondent moved into the
apartment, she brought with her a number of items, including a night
table, a kitchen table and chairs, books, a television, clothes, a
microwave, shoes, jewelry, kitchenware, and other items.
Respondent learned in late September 2000 that she was pregnant. After
a number of discussions regarding the possibility of an abortion —
which Petitioner vehemently opposed — the couple decided to carry
the baby to term and Respondent began prenatal care in New York City.
Petitioner, on at least one occasion, joined Respondent on a visit to her
obstetrician in New York.
The original plan was to have the baby in the United States. On or
about October 2000, the parties discussed the cost of having a baby in
the United States. Petitioner testified that he was told that the cost
would be about $20,000 and that he thought this was "really funny" (in
the surprising sense). Petitioner testified that a person could "even get
money [for giving birth] in Belgium." Both parties testified that
Petitioner refused to pay for any of Respondent's medical costs if the
baby were carried to term in the United States. Rebecca Sutherland, a
graduate student at Harvard University who is a close personal friend of
Respondent, was telephoned by Petitioner several times in his effort to
get Sutherland to persuade Respondent to travel to Belgium temporarily so
as to take advantage of that country's free medical services.
The parties' testimony differs on the purpose of their travel to
Belgium. Petitioner testified that he asked Respondent to join him in
Belgium since he was settled there, had a large apartment there, and
based his artistic career there.*fn2 Respondent testified that
Petitioner adamantly insisted that she join him in Belgium for the term
of the pregnancy, threatening not to pay for any medical care if she did
not do so. She testified that her decision to travel to Ghent, Belgium
was made under duress, as she was afraid about financing the pregnancy
and wanted very much to get married. Respondent at all times believed
that her travel to Belgium was temporary and she planned to return to the
United States as soon after the birth of her baby as she could safely
travel. After returning to the United States, Respondent testified, the
couple would always keep a Manhattan apartment and would also consider a
metropolitan European city as a future second residence. Respondent's
testimony was corroborated by Ms. Sutherland, whose testimony was based
substantially on direct conversations with Mr. Delvoye. Before the
birth, Mr. Delvoye told Ms. Sutherland that Ms. Lee and her baby would
spend at least half the year in New York, with the remainder in Europe
— either in Belgium. Paris or London.
In November 2000, when Respondent was four months pregnant, she
traveled to Belgium on a three-month tourist visa. She brought along only
one or two suitcases filled with maternity clothing. Respondent did not
remove her belongings from the Manhattan apartment; rather, she left her
non-maternity clothes, books, jewelry, shoes, microwave, dishes and
furniture in New York.
Petitioner's apartment in Ghent, Belgium consisted of a large loft
space where he lived and worked. Sutherland testified that Petitioner's
loft could be reached only by scaling several steep flights of stairs,
the last flight of which had no railing. (Late in the pregnancy, a
railing was installed.) Petitioner and Respondent slept on a mattress on
the floor in one part of the loft, which had no closets or dividing
walls. The only private room was a bathroom. In the middle of the loft
was a long table that Petitioner used for his art; work.
Sutherland testified that when she visited Ghent in March 2001,
Respondent was still living out of a single suitcase, which was not
unpacked. Indeed, during Respondent's entire stay in Belgium, she lived
out of her suitcase. Neither Petitioner nor Respondent took any steps to
extend Respondent's three-month tourist visa or to obtain any permanent
visa. Despite having great difficulties communicating in a region where
people spoke mostly Flemish, Respondent never attempted to learn Flemish.
Petitioner thereupon signed a two-parent consent form needed to obtain
a United States passport for Baby S. Petitioner drove Respondent and Baby
S to the airport and they returned to the United States.*fn4 Although
Petitioner testified that he only agreed that Respondent could return to
the United States with Baby S for a short visit, his behavior at the
airport suggests otherwise.*fn5 Respondent and Baby S moved in with
Respondent's mother in Fort Lee, New Jersey.
Petitioner returned to the United States on a number of occasions
between July 2001 and January 2002. While the parties disagree on the
nature of the trips — whether for business or to visit Respondent
and Baby S — it is undisputed that on these trips the parties tried
in vain to reconcile. While attempting to reconcile, Petitioner offered
to return to the United States and to make a home there.*fn6 He and
Respondent investigated housing options in New York, as his Manhattan
apartment was ...