Matter of Lakhera-Bonnefoy v Lakhera-Bonnefoy
Annotate this CaseDecided on December 13, 2006
Supreme Court, Kings County
In the Matter of Opal A. Lakhera-Bonnefoy, Petitioner,
against
Hamid Lakhera-Bonnefoy, Respondent.
36012/06
Bruce Balter, J.
Petitioner's Order to Show Cause for an Order pursuant to Article 15 of the Hague Convention of the Civil Aspects of International Child Abduction, determining the State of New York to be the habitual residence of the subject child, Sylvain Lakhera-Bonnefoy, [date of birth, September 12, 2001].
Upon the filing of Petitioner's petition by Order to Show Cause dated November 27, 2006 and the Affidavit of Service with certified translation showing that personal service of the petition upon Respondent was made on November 30, 2006, and upon Respondent's failure to appear in court on December 13, 2006 or submit opposition papers, the Court conducted a hearing upon Petitioner's application.
Petitioner Opal A. Lakhera-Bonnefoy, testified that she has resided at 129 Sheridan Avenue, in the County of Kings, with the subject child, since his birth in 2001. Petitioner testified that the subject child resided in Kings County and attended school in New York County, State of New York. Petitioner testified that at the time the subject child went to France, where Respondent currently resides, for a surgical procedure, she had purchased a return ticket; with the intention of the subject child returning with his father, Respondent in March 2006. Petitioner testified that the subject child was, in fact, registered for the 2006-2007 school year in the County of New York.
In support of Petitioner's application, Wilson Grant, Reverend of the Grace Church of the First Born, testified. Reverend Grant testified that he had performed the christening of the subject child and had further observed the child throughout his life attending Sunday School and other activities within the Church, located in Kings County. [*2]
In further support of Petitioner's application, the subject child's maternal grandmother, Maureen McFarlane, testified that she had "home schooled" the subject child, prior to his enrollment in a formal institution of learning.
Michael Dezego also provided testimony in support of Petitioner's application. Mr. Dezego testified that he is married to Petitioner's sister, and, had sponsored Respondent in his application for permanent residence in the United States, upon the request of Respondent. Mr. Dezego further testified with his respect to his interactions and relationship with the subject child.
In order to invoke relief under the Hague Convention, a petitioner must meet several requirements: Both of the involved countries must be signatories to the Hague Convention; the child involved must be under sixteen years of age; and the "[p]etitioner must show by a preponderance of the evidence that under the [Hague] Convention, the child was wrongfully removed or retained from the place of habitual residence". See 42 USC §11601. The Hague Convention does not define the term habitual resident'; its interpretation is left to the Courts. Courts interpreting that term have held that it refers to a degree of settled purpose' as evidenced by the child's circumstances in that place and the shared intentions of the parents regarding their child's presence there. The focus is on the child, rather than the parents, and on past experience rather than future intentions. See People of the State of New York v. Ron, 279 Ad2d 860[3rd Dept. 2001]; Cohen v. Cohen, 158 Misc 2d 1018 [1993]; David B. v. Helen O., 164 Misc 2d 566 [1995]; Gitter v. Gitter, 2003 U.S. Dist. LEXIS 21015 [2003].
After a careful review of the Order to Show Cause presented to the Court, the accompanying exhibits and the testimony presented to the Court, the Court hereby determines that the settled purpose of the subject child's residence has been clearly exhibited as evidenced by his education, religious and family involvement, since his birth in Brooklyn, Kings County. As such, the Court determines that the habitual residence of the subject child, Sylvain Lakhera-Bonnefoy, has been clearly established, by a preponderance of the evidence, pursuant to 42 USC §11601, to be Kings County, State of New York.
It is ORDERED that Petitioner's petition is granted in its entirety.
E N T E R
FORTHWITH,
J.S.C.
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