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Karpenko v. Leendertz

August 24, 2010

MARINA KARPENKO, APPELLEE/CROSS-APPELLANT
v.
PAUL LEENDERTZ, APPELLANT/CROSS-APPELLEE



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 5-09-cv-03207). District Judge: Honorable Thomas M. Golden.

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued July 12, 2010

Before: FUENTES, ALDISERT, and ROTH, Circuit Judges.

OPINION

Paul Leendertz, father of the minor child at issue in this proceeding, appeals the District Court's grant of a petition filed by the mother, Marina Karpenko, for the child's return under the Hague Convention on the Civil Aspects of International Child Abduction. For the following reasons, we will affirm the grant of Karpenko's petition and order the minor child's immediate return to her mother in the Netherlands.

I. Background

This action follows a long, bitter dispute between Leendertz and Karpenko over custody of their minor child, E.L., born in Pennsylvania in 2001. Leendertz and Karpenko were married at the time of E.L.'s birth, but separated in 2002 and officially divorced in 2007. In September 2002, the Pennsylvania Court of Common Pleas issued an order incorporating a Custody Stipulation executed by the parties which provided that (1) Karpenko would obtain primary physical custody and live with E.L. in the Ukraine, Karpenko's native country; and (2) Leendertz would have regular visitation rights to be arranged in the Ukraine, the Netherlands, or the United States. Leendertz has family in the Netherlands and, as a commercial pilot, is able to visit the Netherlands.

Karpenko initially moved with E.L. to the Ukraine, but at Leendertz's request, she relocated to Ede, Netherlands. E.L. arrived in the Netherlands at age two and began attending Dutch public school at age four. E.L. has numerous Dutch friends and socializes with Karpenko's relatives in the Netherlands. E.L. learned Dutch as her primary language and became immersed in Dutch culture.

Although Karpenko's relocation from the Ukraine to the Netherlands was ostensibly to accommodate Leendertz, Karpenko refused to allow full visitation in accordance with the court-ordered Custody Stipulation. In 2007, following further deterioration of relations, Karpenko moved to a new location in Ede, Netherlands, and refused to provide Leendertz with her address or phone number. In 2008, both parties filed petitions for sole physical and legal custody: she in the Dutch District Court of Arnhem, he in the Pennsylvania Court of Common Pleas. The Dutch court stayed Karpenko's petition pending a decision by the Pennsylvania court.

By Order of May 20, 2009, the Pennsylvania Court of Common Pleas granted sole custody of E.L. to Leendertz. That order purports to (1) transfer sole legal and primary physical custody to Leendertz; (2) grant Leendertz "sole authority to apply for and obtain a United States passport for the minor child without Mother's consent or authorization and without any further notice to Mother;" (3) grant Leendertz authority to "obtain custody of the child at any place that she may be found, whether in the United States or any other country" without any further proceedings; (4) grant Leendertz and his sister authority "to pick up the child at her school or any location;" (5) award Karpenko visitation rights "as she and the Father may agree;" and (6) adjudge Karpenko in civil contempt for willfully violating prior court orders. Karpenko appealed and the Pennsylvania Superior Court affirmed.

In the Netherlands, a foreign order is not enforceable until domesticated by a Dutch court. Dutch Civil Code, Title 9, Article 985, et seq. However, rather than reducing the May 20, 2009, Order to a domestic judgment under Dutch law, Leendertz arranged to seize E.L. in the Netherlands and return with her to Pennsylvania without notice to Karpenko or the Dutch court presiding over the custody proceeding there. On May 27, 2009, Leendertz located E.L. on the sidewalk outside her school in the Netherlands. With the help of an unidentified third party, Leendertz placed E.L. in a car and drove her to Germany, where they flew to Dubai and ultimately the United States. Dutch authorities issued an Amber Alert within minutes of E.L.'s removal. By Order of May 29, 2009, a Dutch court ruled that (1) at the time of E.L.'s removal, Karpenko and Leendertz had joint custody under Dutch law; (2) Leendertz acted unlawfully by removing the child without Karpenko's permission; and (3) Leendertz shall immediately return E.L. to Karpenko. Leendertz refused to comply with the Dutch Order and currently resides with his new wife and E.L. in Northampton, Pennsylvania.

On July 20, 2009, Karpenko filed the instant petition for return of E.L. under the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, T.I.A.S. No. 11,670 at 1, 22514 U.N.T.S. at 98, reprinted in 51 Fed. Reg. 10, 494 (1986) (Hague Convention), as codified by the International Child Abduction Remedies Act, 42 U.S.C. 11601, et seq. (ICARA). Karpenko claims she is entitled to the immediate return of her daughter because Leendertz wrongfully removed her from the Netherlands to the United States.

The District Court for the Eastern District of Pennsylvania granted Karpenko's petition for E.L.'s return on March 3, 2010. To avoid potentially relocating E.L. multiple times during the pendency of this proceeding, however, the District Court stayed enforcement of its Order pending appeal. Leendertz appeals the District Court's grant of Karpenko's Hague Convention petition. Karpenko cross-appeals the District Court's entry of the stay.

II. Jurisdiction and Standard of Review

The District Court properly exercised jurisdiction under 42 U.S.C. § 11603(a), which confers United States district courts with original jurisdiction over actions arising under the Convention.*fn ...


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