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Marcin Tlustochowicz v. Emilia Tlustochowicz

August 31, 2012

MARCIN TLUSTOCHOWICZ, PETITIONER,
v.
EMILIA TLUSTOCHOWICZ, RESPONDENT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

On September 22, 2011, Respondent Emilia Tlustochowicz left Illinois for Poland, taking along her minor child without the consent of Petitioner Marcin Tlustochowicz, who is Emilia's husband and the child's father. Marcin brought a petition in the Regional Court for Szczecin Prawobrzeze and Zachod, in the Republic of Poland, seeking return of the child to the United States pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670, S. Treaty Doc. No. 99-11 (Oct. 25, 1980). Article 15 of the Convention permits a court of a nation that is party to the Convention to "request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention." Convention, Art. 15; see Sorenson v. Sorenson, 563 F. Supp. 2d 961 (D. Minn. 2008), aff'd, 559 F.3d 871 (8th Cir. 2009). On April 12, 2012, the Polish court issued an Article 15 order requesting Marcin "to submit [to] the authorities of the state of the habitual residence of the child a decision or other determination that the removal of a minor child [first name]

Tlustochowicz was wrongful within the meaning of Article 3 of the Convention." Doc. 1-1 at 41. On July 11, 2012, Marcin filed an Article 15 petition with this court. Doc. 1.

Having examined the parties' written submissions, and having conducted an evidentiary hearing at which the parties offered testimony and exhibits, this court finds that Emilia's removal of the child from Illinois to Poland was a wrongful removal within the meaning of Article 3. To support that finding, the court makes the following findings of fact and conclusions of law under Federal Rule of Civil Procedure 52(a)(1). The court emphasized during the evidentiary hearing, and reiterates here, that its role under Article 15 is strictly limited to determining whether the removal was wrongful under Article 3. Any further proceedings that may be necessary under the Convention-including any affirmative defenses Emilia may wish to assert, see Khan v. Fatima, 680 F.3d 781, 784 (7th Cir. 2012); Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir. 2008); Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859, 863-64 (N.D. Ill. 2001)-are beyond the scope of the Polish court's referral to this court and are reserved for the Polish court to consider as it deems fit.

Findings of Fact

The court finds that the following facts have been established by a preponderance of the evidence:

1. Marcin was born in Poland in 1972 and moved to the United States in 1992. Although he initially came to the United States to study, he decided soon thereafter to remain permanently. He is now, and was at the time of the events at issue here, a dual citizen of the United States and Poland.

2. Marcin received a Bachelor of Science degree in Civil Engineering from the University of Illinois at Chicago in 1996, a Master of Science degree in the same subject from Northwestern University in 1998, and a Ph.D. in Materials Engineering from the University of Illinois at Chicago in 2009.

3. Emilia was born in Poland in 1979. She is a Polish citizen and a permanent resident of the United States.

4. Emilia has had many years of study of the English language, beginning in primary school and including language classes in Cambridge, United Kingdom, and in Illinois.

5. Marcin and Emilia met in Poland in November 2008 when Marcin was there visiting members of his family.

6. Marcin very quickly informed Emilia that he lived in the United States. Emilia indicated that she did not consider this an impediment to their having a romantic relationship, and the two began dating.

7. Marcin and Emilia were married in a religious ceremony in Poland in November 2009, followed by a civil ceremony in Illinois in December 2009. The purpose of the civil ceremony was to facilitate Emilia's becoming a permanent resident of the United States.

8. In December 2009, Marcin and Emilia settled together at the house Marcin owned in Plainfield, Illinois.

9. Emilia brought with her from Poland to Illinois several heavy suitcases containing many of her possessions and personal effects, including the majority of her photographs and of the wedding gifts the couple received.

10. Both Marcin and Emilia agreed and intended to live together in Illinois.

11. After going through the application process with Marcin's assistance, Emilia became a permanent resident of the United States in May 2010.

12. While Emilia was pregnant with the child, Marcin read books on parenting and attended ...


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