Opinion
NNHFA144061039S
12-18-2015
Fatou S. Samb v. Jewu Richardson
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE PLAINTIFF'S REQUEST TO TRAVEL OUTSIDE OF THE UNITED STATES WITH THE MINOR CHILD
Karen Goodrow, J.
I. Procedural History
This application for custody action commenced on April 10, 2014. The parties have one minor child together, born September 2013. In her application for custody, the plaintiff/mother requested custody, child support, and parenting time, and indicated " my family [lives] out of USA need to be able to [travel] with my son." The plaintiff filed an application for waiver of fees and costs on August 6, 2014, in which she indicated " being able to travel with my son without notice." The parties appeared self-represented at a hearing on September 17, 2014. The court entered various orders including that the parties would share joint legal custody of the minor child, primary residence with the plaintiff/mother and a parenting schedule for the defendant/father. The court also appointed a guardian ad litem (GAL) for the minor child.
Document 108 in the court file is a memo dated 8/20/14 indicating that a probate matter was then pending regarding the defendant/father's request to have temporary custody of the minor child.
On October 2, 2014, the defendant/father filed an application for emergency ex parte order of custody in which he alleged, among other things, that he was assaulted by the plaintiff/mother while he was holding the minor child, that he had witnessed the plaintiff/mother hit the minor child on numerous occasions, and that he was concerned for the child's safety. The application was denied by this court.
There was evidence which the court credits that the parties have a contentious relationship, and that both parties have been arrested for alleged incidents in which the other party is the alleged victim.
On March 4, 2015, the parties appeared at a hearing at which the court ordered additional parenting time for the defendant/father and an order of child support.
On April 29, 2015, the parties appeared and entered into an agreement regarding the minor child. The plaintiff appeared with counsel; the defendant continued to be self-represented. The court approved and so ordered the agreement, which provided that the parties would continue to share joint legal custody of the minor child, primary residence with the plaintiff/mother, and included the prior parenting schedule for the defendant/father. The parties also agreed to communicate with each other concerning issues regarding medical, education, religion, daycare and activities of the child. In the event that the parties could not agree, plaintiff/mother would have final decision-making authority.
On June 19, 2015, both parties appeared with counsel and the court (Emons, J.) entered judgment based upon the agreement of the parties, with the exception of plaintiff/mother's request to travel outside of the United States with the minor child. A hearing commenced on that issue on June 19, 2015, and continued on August 4, 2015, November 10, 2015, and December 8, 2015. Both parties were represented at the hearing, and both parties testified. The plaintiff/mother seeks to travel to Spain with the minor child in order to visit family members; the defendant/father objects to the minor child travelling out of the United States with the plaintiff/mother.
II. Facts
Based upon a careful consideration of all of the evidence, the stipulations of the parties, and a review of the record, having afforded appropriate weight and credibility to the testimony of the witnesses and to the evidence, the court finds the following facts by a preponderance of the evidence.
The plaintiff is the mother of the minor child; the defendant is the father of the minor child. The parties were never married. The plaintiff is a citizen of Senegal; the defendant is a citizen of the United States. The minor child is a citizen of the United States. The plaintiff has lived in the United States for approximately ten years, and is the sole employee in a small hair business which she operates. She has minimal family members or other contacts in the United States, and is not established financially in the United States. Most of the plaintiff's family members reside in Senegal and Spain.
The plaintiff seeks to travel with the minor child to Spain to visit with the maternal grandmother and other family members. She has no immediate plans for travel, but speculates that she would travel sometime around the child's next birthday in September 2016. The maternal grandmother is a citizen of Senegal, but is presently living with the plaintiff's sister in Spain because the maternal grandmother is suffering from medical issues for which she is receiving treatment in Spain.
The defendant and the paternal grandfather both testified that the plaintiff threatened to take the child out of the country, possibly to Africa or Spain, and not return the child to the United States. Additionally, the paternal grandfather testified that the plaintiff/mother has responsibility for another child living in Senegal. The plaintiff denied that she had any intention of taking the child out of the country and not returning him to the United States. The court credits the testimony of the defendant/father and paternal grandfather, and does not credit the testimony of the plaintiff/mother.
The guardian ad litem testified that she had no concern with the mother travelling outside of the United States with the minor child, although she did not believe it was appropriate when the child was one year of age. The court has had the benefit of observing the testimony of the witnesses and assessing their credibility. The court is concerned with the mother travelling outside of the country and not returning with the minor child based on the court's finding that the plaintiff's testimony was not credible.
The plaintiff testified on direct examination on June 19, 2015 that she had a valid ten-year " green card" based on her permanent legal residence, and that she was eligible to apply for citizenship at any time. She testified she could go anywhere in the world with her passport and green card, and that if she travelled to Spain " tomorrow, " she would have no problem getting back into the United States. The court does not credit this testimony. At the time of the June 19, 2015 testimony, the plaintiff's " green card" (permanent resident card) had already expired. Contrary to her testimony, she was aware that she did not possess a valid permanent resident card. Additionally, it was not until cross examination that the plaintiff admitted that her passport had expired.
The plaintiff, counsel and the parties used the term " green card" to refer to a permanent resident card.
On August 4, 2015, the court ordered the plaintiff to obtain a valid permanent resident card and passport, and to provide copies to the defendant's attorney, as well as to the GAL. At the hearing on November 10, 2015, the plaintiff presented a valid permanent resident card and passport, copies of which were entered as Plaintiff's Ex. 1. The plaintiff made no effort to renew her passport or to obtain a legitimate permanent resident card until after the commencement of the hearing and the court's order.
Personal identifying information was redacted from the exhibit pursuant to Connecticut Practice Book Section 4-7. The court ordered that copies of the permanent resident card and passport be provided to the defendant's attorney, as well as to the GAL.
The plaintiff offered no evidence from any immigration official or entity regarding her ability to travel out of the United States and back into the United States, and she had not checked with immigration regarding her ability to so travel. She last travelled outside of the United States in 2010 when she went to Senegal, and has never travelled to Spain. The minor child has never travelled outside of the United States. The plaintiff testified that she had applied for citizenship two years prior to her testimony, but that she was not made a citizen because she was legally married to someone who had incurred a lot of debt. The court does not credit this testimony. The court also does not credit the plaintiff's testimony that her divorce in April 2014 made her eligible to renew her passport.
Over the plaintiff's objection, the defendant proffered testimony from an expert witness regarding the potential problems which could occur should the plaintiff travel with the minor child to Spain. The court does not credit the expert's testimony, and has not considered that testimony in its ruling.
Additional facts shall be set forth as is necessary for the court's analysis.
III. Discussion
The plaintiff/mother seeks permission to travel to Spain with the minor child to visit the maternal grandmother and other family members. The plaintiff denies that she has any intention to remain out of country with the child, or that she intends to travel to Senegal. At the commencement of the hearing, the plaintiff possessed no valid permanent residence card and no valid passport. In spite of this fact, she testified under oath that she had a ten-year " green card" and could travel anywhere with it and with her passport. The court does not credit her testimony.
The defendant/father contends that the plaintiff/mother intends to remove the child from the United States with the intention of not returning with the child. The defendant offered credible evidence of the plaintiff's intention through his testimony and the testimony of the paternal grandfather. Both testified that the mother had articulated her intention to remove the child from the United States and not return the child. Although the plaintiff denied these threats, the court does not credit her testimony. The court credits the testimony of the defendant and the paternal grandfather.
Additionally, the plaintiff appeared to be genuinely concerned with her mother's health, and the fact that there were not many family members who were available to care for her mother. Indeed, in the past, the plaintiff had taken care of her mother. The maternal grandmother temporarily resides in Spain, and is being cared for by the plaintiff's sister. However, the maternal grandmother is a citizen of Senegal and may return there prior to the plaintiff's anticipated travel with the minor child. The plaintiff's testimony was inconsistent regarding when she expected her mother to return to Senegal, and whether or not the plaintiff intended to travel to Spain if her mother returned to Senegal prior to the plaintiff's travel. Although the plaintiff testified that she was not seeking to travel to Senegal, the court does not credit that testimony.
The court takes judicial notice of the fact that Spain is a signatory to the Hague Convention [on the Civil Aspects of International Child Abduction (Hague Convention)], and that Senegal is not a signatory. See United States Department of State, U.S. Hague Convention Treaty Partners, 1980 Hague Convention on the Civil Aspects of International Child Abduction, available at http://travel.state.gov/content/childabduction/en/country/hague-party-countries.html . In spite of the plaintiff's claims to the contrary, it is likely that the plaintiff will travel to Senegal, particularly when her mother returns there. Should the plaintiff travel to Senegal with the minor child and refuse to return the child to the United States, any effort by the defendant to have the child returned would be burdened by the fact that Senegal is not a signatory to the Hague Convention.
The defendant's expert testified that Senegal is a signatory to the Hague Convention. The court did not credit his testimony. See footnote 7.
Lastly, the plaintiff claims that she is rooted in the United States and intends to return to the United States with the minor child. The court does not credit her testimony. The fact that the plaintiff has lived in the United States for approximately ten years, and has a modest business, does not establish sufficient proof of her intent to permanently reside in the United States. She testified that she is not financially established, and has few relatives living in the United States. The plaintiff demonstrated her lack of commitment to permanent residency by making no effort to obtain a valid permanent resident card or passport until the court ordered her to do so. She testified falsely to the court, and has made no effort to obtain United States citizenship since her unsuccessful attempt to do so some years ago.
The court finds that it is not in the best interest of the minor child to travel outside of the United States with the plaintiff/mother because there is credible evidence that the plaintiff would refuse to return the child to the United States if she were allowed to travel with the child outside of the United States. Stancuna v. Stancuna, 135 Conn.App. 349, 41 A.3d 1156 (2012).
IV. Conclusion
It is not in the best interest of the minor child to travel outside of the United States with the plaintiff/mother. The plaintiff/mother's request to travel outside of the United States with the minor child is denied without prejudice. No passport shall issue for the minor child without the express written consent of both parties, or upon further order of the court. Neither party shall travel outside of the United States with the minor child without the express written consent of the other party, or upon further order of the court.