On February 9, 2021, in the case of Lukic v. Elezovic, the U.S. District Court for the ED of NY ordered the minor child returned to Montenegro after both parties filed motions for summary judgment. The court reviewed memorandums and affidavits, and issued its order granting the father’s motion, and denying the mother’s.
The court concluded that Montenegro was the child’s habitual residence. The parents had a written custody order from a Montenegrin court that, on its face, appeared to give the father only access rights, but the Montenegrin Code provided for the father to retain rights to decide the child’s residence jointly with the mother unless abrogated by court order, so the court concluded the father had a ne exeat right in the vein of Abbott v. Abbott. The mother argued that the father signed a travel consent form for an “unlimited” amount of time, but looking at the father’s subjective intent, the consent form was merely to authorize an unrestricted number of temporary trips, and it was never consent for the child to relocate. In fact, the mother and child entered the U.S. on a tourist visa. Further, the Respondent showed no evidence that would indicate the father had clearly and unequivocally abandoned the child, so he was exercising his right of custody.
The mother further argued the child is now settled, but the court pinpointed the date of retention as January 1, 2020, when the child’s tourist visa lapsed, and the father filed his lawsuit in July 2020, less than one year after the date of the wrongful retention. (And, even if the father had exceeded the one year beyond the retention, the court concluded that the mother provided insufficient evidence that the child was now settled).
Finally, the mother argued that it would be a grave risk to return the child to Montenegro. “[A] grave risk of harm from repatriation arises in two situations: (1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” “[Respondent] appears to claim that [the child’s] living conditions in Podgorica would amount to “serious abuse or neglect,” because after petitioner kicked respondent and [the child] out of his home when [the child] was twenty days old, the two lived in squalor in Podgorica and petitioner failed to pay child support despite being aware of their economic conditions.” This however does not amount to abuse or neglect, and the Respondent admitted that the courts in Podgorica conduct hearings and both parties were heard as part of those hearings, which caused this court to conclude that the parties could avail themselves of the Montenegrin judicial system for protections.