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Capalungan v. Lee

United States District Court, S.D. Ohio, Eastern Division

July 15, 2019

GOLDI Y. CAPALUNGAN, Petitioner,
v.
EMMANUEL R. LEE, Respondent.

          JUDGE GEORGE C. SMITH

          Magistrate Judge Jolson

          OPINION AND ORDER

          MICHAEL H. WATSON, CHIEF JUDGE

         On April 26, 2019, the United States Magistrate Judge issued a Report and Recommendation recommending that Petitioner's Petition for the Return of Child to Australia Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction be denied. (See Report and Recommendation, Doc. 38). The parties were advised of their right to object to the Report and Recommendation. This matter is now before the Court on Petitioner's Objections to the Report and Recommendation. (See Doc. 39). Both parties have filed multiple responses and replies. (See Docs. 40-45). This matter is fully briefed. The Court will consider the matter de novo. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         I. BACKGROUND

         The factual background is set forth in detail in the Report and Recommendation and the entirety will not be repeated. However, a summary is included for reference.

         Petitioner, Goldi Y. Capalungan, and Respondent, Emmanuel R. Lee, are the biological parents of EZL, the subject of the instant Petition. (Doc. 1; Doc. 36-3, Resp.'s Ex. A). The parties began their relationship in the Philippines approximately ten years ago. EZL was born on August 31, 2012 in the Philippines. (Doc. 36-3, Resp.'s Ex. A). At that time, Respondent was living in the United States. Respondent had limited contact with EZL in the years immediately following EZL's birth. The parties were never married and did not have any custody agreement.

         In January 2016, Petitioner and EZL moved to Australia. Petitioner and EZL lived with Petitioner's sister and her daughter, Gabrianna, who was like a sister to EZL. EZL attended school full-time. Respondent had no contact with EZL when he lived in Australia.

         In January 2017, Petitioner obtained new employment in Australia and she would have to participate in an extended training program. The parties agreed that EZL could visit Respondent in the United States during Petitioner's training period. The parties expected the training to last about six months-the same length of time as EZL's tourist visa. Petitioner and EZL traveled to the United States in late February 2017. Petitioner stayed with Respondent for approximately two weeks, but then returned to Australia for her training. After Petitioner's departure in March 2017, EZL adjusted well to life in the United States by spending time with family, attending church and school. Shortly after Petitioner returned to Australia, her relationship with Respondent began to deteriorate.

         The Magistrate Judge in her Report and Recommendation acknowledged that the parties "offered competing accounts of the terms of their agreement for the return of EZL to Australia." (Doc. 38, R&R at 5). Petitioner testified that the parties1 original plan was for EZL to stay in the United States while she completed her training in Australia. Petitioner further testified that the agreement changed in that EZL would be returned after Petitioner's training was complete and after EZL was granted permanent residency in the United States, which she believed would be completed before she was done with her six-month training. (Transcript at 84). Although Respondent conceded that "initially" EZL "was to be returned to Australia" in August 2017, at another point, he insisted that the agreement had always been that EZL would reside in the United States until he received citizenship here. Despite EZL obtaining his United States citizenship, Respondent never returned him to Australia as agreed.1

         During the next few months, the parties had many conversations, generally via text message, regarding EZL's current Filipino passport and his immigration status in the United States. (Doc. 36-1, Pet's Exs. 9-11). Additionally, to enroll EZL in school, the parties executed a Shared Parenting Plan that provided that both parties were ''residential parents and legal custodians" of EZL and that Respondent was "designated the residential parent" of EZL "for school purposes." (Doc. 36-1, Pet's Ex. 8 at II(A)-(B)).

         In December 2017, Petitioner traveled to the United States to take EZL back to Australia. Respondent refused to give her EZL's passport, and she was unable to bring EZL home with her. Before Petitioner returned to Australia, Respondent agreed to return EZL when his U.S. passport was issued. On January 8, 2018, shortly after Petitioner returned to Australia, EZL received his permanent resident card. (Doc. 36-2, Pet's Ex. 35). Towards the end of January, Respondent informed Petitioner that he would not return EZL to Australia when EZL's passport was issued. Petitioner contacted the State Department's Office of Children's Issues to enroll in the Children's Passport Issuance Alert Program ("CPIAP") and put a hold on EZL's United States passport. In response. Respondent burned EZL's expired Filipino passport and sent Petitioner photos of the burnt passport. (Doc. 36-2, Pet's Ex. 23). Petitioner subsequently withdrew EZL from CPIAP, which allowed his application for a passport to be processed. (Doc. 36-3, Resp.'s Ex. H).

         EZL's United States passport was ultimately issued on February 16, 2018. (Doc. 36-2, Pet's Ex. 36). Respondent repeatedly refused to return EZL to Australia. (Id., Pet's Exs. 26-29, 31-33). Although Respondent had previously represented that the parties' Shared Parenting Plan would only be used to enroll EZL in school, to justify his refusal to return EZL, he insisted that it gave him custody of EZL and therefore he was under no obligation to return EZL to Petitioner as the parties had agreed. (Id., Pet's Ex. 26). On July 13, 2018, the United States government issued EZL's certificate of citizenship, which indicated that EZL became a citizen of the United States on January 6, 2018. (Doc. 36-3, Resp.'s Ex. E at 9, PAGEID #: 778). Respondent did not return EZL to Australia.

         Petitioner filed the Petition currently before the Court on October 23, 2018. (Doc. 1). The Court subsequently referred this matter to the Magistrate Judge ''to conduct a trial on Petitioner's Petition for the Return of Child ... and for all related matters." (Doc. 17). Respondent filed a Motion for Summary Judgment (Doc. 22), which the Court denied in its March 25, 2019 Opinion and Order (Doc. 27). The Magistrate Judge ...


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