GIA KAYLNA JANAKAKIS-KOSTUN v. IN RE THE APPLICATION OF EMMANUEL JANAKAKIS
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RENDERED:
March 19, 1999; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000259-MR
GIA KAYLNA JANAKAKIS-KOSTUN
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE T. STEVEN BLAND, JUDGE
ACTION NO. 97-CI-00493
v.
IN RE THE APPLICATION OF
EMMANUEL JANAKAKIS
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE: EMBERTON, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE.
This is an appeal by Gia Kaylna Janakakis-Kostun
(Gia) from an order of the Hardin Circuit Court granting the
motion of appellee, Emmanuel Janakakis (Emmanuel), to require Gia
to relinquish custody of the parties’ daughter, Bronte-JudithDespina (Bronte), to Emmanuel and permitting the return of the
child to Greece.
This matter arose on Emmanuel’s motion to
return the parties’ child, Bronte, to Greece pursuant to the
terms of the Hague Convention on the Civil Aspects of Child
Abduction, October 25, 1980, 1988 WL 411501 (entered into force
December 1, 1983) (hereinafter Hague Convention).
The Hague
Convention has been signed by the United States, and Congress has
adopted procedures for its implementation by enactment of the
International Child Abduction Remedies Act.
et seq.
42 U.S.C. § 11601,
Greece is likewise a signatory to the Hague Convention.
We affirm.
Emmanuel is a citizen of Greece and a captain in the
Greek Navy.
In 1986, while on a two-year assignment to the
United States Naval Base at San Diego, California, Emmanuel met
Gia, a member of the U.S. Navy, and a relationship developed
between the parties.
In 1988, Emmanuel’s tour of duty in the
United States ended, and he returned to Greece.
same time, Gia decided to leave the U.S. Navy.
At about the
In November 1988,
Gia traveled to Greece to be with Emmanuel, and the parties were
married on September 2, 1989.
On October 2, 1991, Bronte, was
born in Chania, Greece, on the Island of Crete.
Following
Bronte’s birth, Gia and Bronte made yearly visits to the United
States to visit Gia’s relatives, though, because of conflicting
evidence, the trial court was unable to determine the exact dates
and duration of the visits.
However, Gia and Bronte spent
approximately three to four months in the United States in each
of the years 1992, 1993, and 1994.
At some point the parties’ marriage began to
deteriorate, and sometime in 1995 Gia threatened to leave with
Bronte.
Consequently, Emmanuel began to have concerns about Gia
removing Bronte from Greece without his knowledge or permission.
On February 24, 1996, Gia told Emmanuel that she was going to the
United States and was going to take Bronte with her.
Gia
thereupon left the marital residence in Chania, taking Bronte
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with her, and went to Athens with the intention of flying to the
United States and settling permanently.
Emmanuel thereupon filed
a criminal complaint charging Gia with interfering with his
custodial rights.
On February 27, 1996, Emmanuel filed a petition in the
Lower Court of Athens, Security Measure Division, seeking
temporary custody of Bronte.
The Court issued an order
prohibiting the removal of Bronte from Greece and scheduled a
hearing on the merits of Emmanuel’s petition.
Gia attempted to
leave Greece with Bronte on February 27, but, pursuant to the
court order, this was prevented by Greek authorities.
Gia
alleges that subsequent to her detention, she and Bronte were
abused by Greek authorities.
held in the Athens Court.
On March 28, 1996, a hearing was
On April 22, 1996, the Athens Court
issued an order prohibiting the removal of Bronte from Greece
until a final determination of custody.
On February 28, 1996, the aforementioned criminal
charge was heard by an Athens Court.
after the hearing.
The charges were dropped
Emmanuel claims that the charges were dropped
because all he wanted was to keep Bronte in Greece, not actually
prosecute Gia.
Gia claims the charges were dropped following an
evidentiary hearing because the judge found the charges to be
without merit.
In any event, the charges were dropped and Gia
was released from custody.
Gia and Bronte thereupon returned to
live with Emmanuel at the parties’ marital residence.
On May 2,
1996, Gia departed the marital residence with Bronte and went to
the Greece hotel lodgings of her father, George William Kostun.
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Emmanuel subsequently retrieved Bronte from the hotel and refused
to allow Gia to communicate with Bronte.
Also on May 2, Gia filed a petition in the Lower Court
of Chania seeking custody of Bronte.
On June 28, the Chania
Court issued an order, inter alia, assigning “temporarily to
[Gia] the care of . . . [Bronte] until issuance of the final
judgment[.]”
The Chania order recognized that the April 28
Athens order prohibited the removal of Bronte from Greece and did
not set aside or otherwise disturb that prohibition.
Pursuant to
the Chania order, on July 1, Emmanuel relinquished custody of
Bronte to Gia.
Gia alleges that upon Bronte’s return to her,
Bronte was suffering from a variety of physical and emotional
problems, though this is denied by Emmanuel.
A final hearing
was set on Gia’s custody petition for September 5, 1996.
On July
4, Emmanuel filed a petition seeking specific rights of
communication and visitation with Bronte.
On July 22, the Chania
court awarded Emmanuel liberal visitation and communication
rights with Bronte.
The order threatened Gia with a fine and
imprisonment for violation of the visitation and communication
rights established therein.
When Emmanuel subsequently attempted to exercise his
communication and visitation rights, he was unable to locate Gia
and Bronte.
As it turns out, sometime in late July or early
August 1996, Gia, with the help of her father, a former Green
Beret with multiple European contacts, smuggled Bronte out of
Greece.
Upon arriving in the United States, Gia and Bronte
initially stayed, variously, with Gia’s father in Gray Hawk,
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Kentucky, with Gia’s mother in Houston, Texas, and in
Elizabethtown, Kentucky.
Finally, sometime in the Spring of
1997, Gia and Bronte came to Elizabethtown where they remained.
In the meantime, Emmanuel sought to find his daughter.
On July 27, 1996, he filed another action in the Chania Court.
hearing was set on that action for January 16, 1997.
A
On
September 5, 1996, the hearing on Gia’s petition was held as
scheduled.
While Gia, no longer in Greece, did not appear,
Emmanuel testified that her attorney was present.
That hearing
was continued until January 16, 1997, so that all pending matters
could be heard together.
Following the January 16, 1997,
hearing, by order dated February 28, 1997, the Lower Court of
Chania assigned “exclusively to [Emmanuel] the exertion and care
of [Bronte] [.]”
On November 14, 1996, Emmanuel applied for relief with
the Greek Central Authority responsible for implementing the
Hague Child Abduction Convention.
He first sought enforcement of
the Hague Convention in Houston in March of 1997.
On March 28,
1997, Emmanuel filed a petition in Hardin Circuit Court pursuant
to the Hague Convention, where service on Gia was obtained.
On
November 13, 1997, the trial court entered an order sustaining
Emmanuel’s motion for the return of Bronte to his custody and
authorizing Bronte’s return to Greece.
Following a denial of
Gia’s motion to alter, amend, or vacate, this appeal was taken.
On February 11, 1998, this Court denied Gia’s petition for an
emergency stay of the trial court’s order pending appeal;
however, on March 20, 1998, Kentucky Supreme Court Chief Justice
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Robert F. Stephens granted a stay pending further order of the
full Supreme Court.
On May 14, 1998, the Supreme Court dissolved
the temporary stay.
On June 18, 1998, United States Supreme
Court Justice John Paul Stevens denied Gia’s application for a
stay pending appeal.
On June 29, 1998, Gia delivered Bronte to
Emmanuel, and Emmanuel and Bronte returned to Greece.
The Hague Child Abduction Convention and the
International Child Abduction Remedies Act each require an
abduction or wrongful retention to trigger their provisions and
protections.
(1996).
Harsacky v. Harsacky, Ky. App., 930 S.W.2d 410, 413
Under Article Three of the Hague Convention, removal or
retention is considered wrongful where there is a breach of
custody rights under the law of the state in which the child was
a habitual resident immediately before the removal or retention.
Id.
It follows that a child cannot be wrongfully removed or
retained if the jurisdiction to which the child is taken can be
considered its habitual residence.
Id.
Gia first argues that
the trial court erroneously concluded that Greece was the
habitual residence of Bronte, and contends that Bronte’s habitual
residence at the time of her removal was, in fact, the United
States.
Neither the Hague Convention nor the International
Child Abduction Remedies Act defines “habitual residence.”
Indeed, it was intended that this concept remain fluid and
fact-based, without becoming rigid.
Id., citing
Willis, 907 F. Supp. 57, 61 (S.D.N.Y. 1995);
Levesque v.
Levesque, 816 F. Supp. 662, 666 (D. Kan. 1993);
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Brooke v.
Friedrich v.
Friedrich, 983 F.2d 1396, 1400-1401 (6th Cir. 1993).
The
definition of habitual residence must be determined by the facts
and circumstances presented in each particular case.
Id., citing
Meredith v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991).
As reflected in Harsacky, the test for determining habitual
residence under the settled purpose analysis is broader than
domicile.
There are alternative approaches to determining a
child’s habitual residence, see Harsacky v. Harsacky, supra,
however, this Court has previously decided that a determination
of habitual residence “must focus on the child, not the parents,
and examine past experience, not future intentions.”
Harsacky,
930 S.W.2d at 415 (quoting Friedrich v. Friedrich, 983 F.2d at
1401).
Under this test, the record supports the trial court’s
determination that Greece was Bronte’s habitual residence
immediately prior to her removal.
Following Bronte’s birth, the parties at all times
maintained their home in Greece, and at no time lived together as
a family unit in the United States with the intention of making
the United States their permanent home.
The evidence shows that
Bronte’s permanent home, at all times following her birth and
prior to her removal, was Greece, and that her three- to fourmonth trips to the United States in 1992, 1993, and 1994 were
temporary visits to this country for the purpose of visiting her
maternal relatives.
Greece has been the center of Bronte’s life.
Gia’s argument that the United States was Bronte’s
habitual residence because the parties held United States social
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security numbers, bank accounts, driver’s licences, had once
consulted with a U.S. realtor, and had plans to move and settle
in the United States following Emmanuel’s retirement is
unpersuasive.
These connections do not overcome Bronte’s more
prevalent and continuing contacts with Greece.
Also unpersuasive is Gia’s assertion that her residence
in Greece for the year preceding her departure “was not
consensual.”
The Greek Court orders establish that Emmanuel’s
efforts to prevent Bronte’s removal from Greece, though
disapproved of by Gia, were pursuant to Greek law.
Even if Gia’s
last year in Greece was “not consensual” — and the evidence is
that she could have returned without Bronte to the United States
at anytime — this would not alter Bronte’s habitual residence
from Greece to the United States.
In view of the foregoing factors, the trial court
properly concluded that Bronte’s habitual residence was Greece.
Gia next contends that the trial court erroneously
concluded that Gia breached Emmanuel’s custody rights when she
left Greece.
The objective of the Hague Convention is to protect
children who are “wrongfully removed” from their country of
habitual residence.
Hague Convention art. 1.
The Hague Convention art. 3 provides as follows:
The removal or the retention of a child is to
be considered wrongful where - a it is in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under
the law of the State in which the child was
habitually resident immediately before the
removal or retention;
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and
b at the time of removal or retention those
rights were actually exercised, either
jointly or alone, or would have been so
exercised but for the removal or retention.
The rights of custody mentioned in subparagraph a above, may arise in particular by
operation of law or by reason of a judicial
or administrative decision, or by reason of
an agreement having legal effect under the
law of that State.
The burden is on the petitioner, here, Emmanuel, to
establish that the minor child was wrongfully removed within the
meaning of the Hague Convention by a preponderance of the
evidence.
42 U.S.C. § 11603(e)(1); In re Ponath 829 F. Supp. 363
(D. Utah 1993).
Rights of custody may arise by judicial decision.1
Hague Convention art. 3.
The Athens order of April 22, 1996,
prohibited Gia from removing Bronte from Greece pending a final
resolution of the parties’ custody dispute.
Admittedly, the
Chania decision of June 28, 1996, awarded temporary custody to
Gia.
The June 28 order, however, also cited the previous
prohibition on removing Bronte from Greece.
The June 28 order
took no action to diminish or lessen the effect of the Athens
1
Under the Hague Convention, whether a parent was
exercising lawful custody rights over a child at the time of
removal must be determined under the law of the child’s habitual
residency, Hague Convention art. 3; Friedrich, 938 F.2d at 1402.
Neither the trial court, nor either party on appeal, applied or
cited relevant Greek statutory or case law relevant to the issue
of whether Emmanuel had existing “custody rights” to Bronte at
the time of Bronte’s removal and whether Emmanuel was
“exercising” those “custody rights” at the time of her removal.
However, as discussed infra, the record established by a
preponderance of the evidence that Emmanuel had custodial rights
by “judicial decision,” and the ongoing custody litigation in the
Greek courts supports that by a preponderance of the evidence he
was attempting to “exercise” those rights.
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prohibition of removal.
In addition to this, the Chania decision
of July 22, 1996, defined liberal and specific visitation rights
for Emmanuel and threatened Gia with fines and imprisonment if
she violated the provisions of the order.
These orders were
entered prior to Gia’s removal of Bronte and, together, establish
beyond a preponderance of the evidence that Emmanuel had
custodial rights to Bronte under Greek law by virtue of judicial
decision.
Gia’s argument, that since the June 28, 1996, Chania
order awarded her sole temporary care of Bronte, Emmanuel was
divested of all custodial rights, is unpersuasive.
The order as
translated was, on its face, a temporary order, pending final
resolution of the custody issue.
Pursuant to the orders,
Emmanuel had ongoing “custodial rights” and was, in fact, seeking
as a final resolution permanent sole custodial rights for
himself.
Indeed, following Gia’s removal of Bronte, Emmanuel was
granted custody of the child by the Chania court in its February
28, 1997 order.
Visitation rights alone, such as those granted to
Emmanuel in the July 22, 1996, Chania order have been held to
fall within the meaning of “custodial right.”
See David S. v.
Zamira S., 574 N.Y.S.2d 429 (N.Y.Fam. Ct. 1991).
David S.
acknowledged that visitation rights may not always equate to
custodial rights.
The case nevertheless held that such a
distinction was meritless where a respondent, i.e., the removing
parent, engaged in “contemptuous conduct” in removing the child
from its habitual residence.
In view of the pending court orders
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prohibiting the removal of Bronte from Greece, Gia similarly
acted in contempt of Greek court orders by nevertheless removing
Bronte.
Accordingly, David S. provides a rule appropriate to
this case.
Finally, in view of Emmanuel’s active and ongoing legal
efforts prior to, at the time of, and subsequent to Gia’s removal
of Bronte, it is clear that Emmanuel was exercising his custodial
rights, or would have but for Gia’s removal of Bronte.
Gia next contends that the trial court did not properly
consider Gia’s evidence that returning Bronte to Greece would
subject her to a grave risk of physical and psychological harm
under Article 13b.
Article 13b establishes an affirmative
defense to an otherwise wrongful removal and provides that
the judicial or administrative authority of
the requested State is not bound to order the
return of the child if the person,
institution or other body which opposes its
return establishes that - . . . .
b there is a grave risk that his or her
return would expose the child to physical or
psychological harm or otherwise place the
child in an intolerable situation.
. . . .
In considering the circumstances referred
to in this Article, the judicial and
administrative authorities shall take into
account the information relating to the
social background of the child provided by
the Central Authority or other competent
authority of the child’s habitual residence.
A respondent who opposes the return of the child has
the burden of proving that the exception set forth in article 13b
exists by clear and convincing evidence.
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42 U.S.C. 11603(e)(2).
"Clear and convincing proof does not necessarily mean
uncontradicted proof.
It is sufficient if there is proof of a
probative and substantial nature carrying the weight of evidence
sufficient to convince ordinarily prudent-minded people."
Rowland v. Holt, Ky., 70 S.W.2d 5, 9 (1934).
Gia alleges that, at trial, she established that Bronte
would face an “intolerable situation” if returned to Greece.
Gia
further alleges that she has established the insufficiency of the
Greek judicial system and its unwillingness to protect the
interests of non-Greek citizens.
In support of this position,
Gia cites several examples of violent behavior by Emmanuel toward
herself and Bronte.
Among these: (1) Emmanuel’s regular manner
of punishing Bronte is to “give her a smack on the back”; (2) on
one occasion Emmanuel went into a violent rage, destroyed items
in the house, and pushed Gia and Bronte to the floor; (3) on one
occasion Emmanuel pulled Gia’s hair so violently during a quarrel
that she was hospitalized with severe neck injuries; and (4) on
one occasion Emmanuel tore up Bronte’s passport.
Gia also refers
us to the June 28, 1996, Chania order which recounts accusations
of violence by Emmanuel toward herself and Bronte.
Gia moreover presented the testimony of a child
psychologist who testified that Bronte was suffering from (1)
post-traumatic stress syndrome; (2) probable sexual, physical and
emotional abuse; and (3) probable child neglect.
The
psychologist recommended that Bronte not be returned to Greece.
The trial court made a specific finding that it “does not find
the psychologist’s testimony compelling,” and that “[i]t is
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lacking in substantiation and does not establish that returning
Bronte to Greece would subject her to grave and intolerable
injury.”
We adopt the following analysis of Gia’s 13b argument
from the order of the trial court:
The 13(b) exception under the [Hague]
Convention must be narrowly construed.
Rydder v. Rydder, 49 F.2d 369 (8th Cir.
1995); Nunez-Escudero v. Tice-Menley, 58 F.2d
374 (8th Cir. 1995); Feder v. Evans-Feder, 63
F.3d 217 (3rd Cir. 1995). Most of the
evidence presented by Gia was more closely
akin to that which might be relevant in a
custody proceeding. That type of evidence is
not relevant in a 13(b) hearing. Tahan v.
Dugquette, 613 A.2d 486 (N.J. Super. A.D.
1992); In Re Petition For Coffield, 644
N.E.2d 662 (Ohio App. 11 Dist., 1994). In
Friedrich v. Friedrich, 78 F.3d 1060 (6th
Cir. 1996) [ ] Judge Boggs’ opinion very
succinctly states how the court should view
the 13(b) exception:
The exception for grave harm to the
child is not license for a court to
speculate on where the child would
be happier. That decision is a
custody matter, and reserved to the
court in the country of habitual
residence.
Id. at 1068.
Judge Boggs then goes on to define exactly
when the 13(b) exception should apply:
[w]e believe that a grave risk of
harm for the purposes of the
[Hague] Convention can exist only
in two situations. First, there is
a grave risk of harm when return of
the child puts the child in
imminent danger prior to the
resolution of the custody dispute e.g., returning the child to a zone
of war, famine, or disease.
Second, there is a grave risk of
harm in cases of serious abuse or
neglect, when the court in the
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country of habitual residence, for
whatever reason, may be incapable
or unwilling to give the child
adequate protection.
Id. at 1069.
The evidence offered by Gia in support of
her 13(b) argument, psychological and
otherwise, simply does not establish that
Bronte faces a grave risk of harm if she is
returned to Greece. There is absolutely no
competent evidence before the Court that
Bronte has been abused or neglected by
Emmanuel, or that Bronte faces certain danger
in Greece. Likewise, there is no evidence
that the courts in Greece cannot protect
Bronte. Indeed, the last order issued before
Gia left gave Gia temporary custody, subject
to certain conditions. This court has
absolutely no reason to believe that the
Greek Courts will not properly and adequately
decide the ultimate issue of custody, and
protect Bronte’s interests in so doing. The
Court concludes that Gia has failed to
satisfy her 13(b) burden.
Gia next alleges that the trial court did not properly
consider her evidence that returning Bronte to Greece would
violate fundamental principles of human rights under Article 20
of the Hague Convention.
More particularly, Gia alleges that (1)
the actions of the Greek police in physically removing her and
Bronte from a plane in Athens, holding her in isolation at the
station for several days without food, water or restrooms, and
subjecting her to physical and verbal abuse violated various
articles of the International Covenant on Civil and Political
Rights, December 16, 1966, 6 I.L.M. 368 (entered into force March
23, 1976) (hereinafter ICCPR); (2) that various articles of the
ICCPR were violated when Emmanuel destroyed Bronte’s passport and
Greek authorities forcibly prevented her and Bronte from moving
freely from one place to another; and (3) she was denied
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assistance of counsel in custody proceedings in violation of the
ICCPR.
The burden is on Gia to establish an Article 20 exception
by clear and convincing evidence.
42 U.S.C. § 11603(e)(2).
We adopt the trial court’s analysis of this issue:
Gia also asserts that the return of Bronte
to Greece should be denied pursuant to
Article 20 of the [Hague] Convention. Gia’s
burden under this Article is to show, again
by clear and convincing evidence, that the
return of Bronte “would not be permitted by
the fundamental principles of the requested
State relating to the protection of human
rights and fundamental freedoms.[”] [Hague
Convention art. 20]. “With respect to an
Article 20 defense, it places a heavy burden
on the respondent.” Caro v. Sher, 687 A.2d
354 (N.J.Super.Ch., 1996). The court in Caro
relied on the Explanatory Report as to the
adoption of the [Hague] Convention, prepared
by Elisa Perez-Vera, to explain Article 20:
To be able to refuse to return a
child on the basis of this article,
it will be necessary to show that
the fundamental principles of the
requested State concerning the
subject matter of the [Hague]
Convention do not permit it; it
will not be sufficient to show
merely that its return would be
incompatible, even manifestly
incompatible, with those principles
. . . A study of the case law of
different countries shows that the
application by ordinary judges of
the laws on human rights and
fundamental freedoms is undertaken
with a care which one must expect
to see maintained in the
international situations which the
[Hague] Convention has in view.
This exception, like the others,
was intended to be restrictively
interpreted and applied, and is not
to be used, for example, as a
vehicle for litigating custody on
the merits or for passing judgment
on the political system of the
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country from which the child was
removed.
Caro, supra at 359.
In Gia’s case, her complaints are with the
way she was treated by the Greek police and
court system. Her complaints are no
different than those this Court has heard
many times before from defendants in
proceedings in Kentucky. This Court finds no
evidence that the Nation of Greece is suspect
in its treatment of Gia and/or Bronte. Gia’s
Article 20 defense is totally without merit.
Finally, Gia alleges that the trial court’s findings of
fact should be set aside as clearly erroneous.
"Findings of fact
shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the
credibility of the witnesses."
Ky. R. Civ. Proc. (CR) 52.01.
Findings of fact are not clearly erroneous if supported by
substantial evidence.
See Black Motor Company v. Greene, Ky.,
385 S.W.2d 954 (1965).
The test for substantiality of evidence
is whether when taken alone, or in the light of all the evidence,
it has sufficient probative value to induce conviction in the
minds of reasonable men.
Kentucky State Racing Commission v.
Fuller, Ky., 481 S.W.2d 298, 308 (1972).
Gia identifies three examples of erroneous findings by
the trial court: (1) the trial court’s assertion that “there is
simply no evidence in the case before the court that Gia was ever
prevented from leaving Greece;” (2) the trial court’s erroneous
characterization of Gia’s departure from Greece as a violation of
the Athens court order; and (3) the trial court’s disregard of
the corroborated testimony provided by Gia’s child psychologist
witness which documented Bronte’s fragile psychological condition
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and the severe emotional harm she would suffer if separated from
her mother.
There was conflicting evidence regarding each of
these matters and the trial court, as the finder of fact in this
proceeding, was in a better position to weigh the credibility of
the witness and resolve the conflicting evidence.
There was
substantial evidence to support the trial court’s findings of
fact, and hence we may not set aside those findings.
For the foregoing reasons, the judgment of the Hardin
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
William D. Rogers
Kathleen A. Behan
Laura K. McNally
Layli Miller-Bashir
Dinesh Verma
Arnold & Porter
Washington, DC
Stephen T. McMurtry
McMurtry and Wolff
Covington, KY
Stephen Miller
Mulloy, Fore, Miller &
Schwartz
Louisville, KY
Amanda Anayati
Tahirih Justice Center
Falls Church, VA
ORAL ARGUMENT FOR APPELLANT:
Kathleen A. Behan
Washington, DC
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