United States District Court, S.D. Ohio, Eastern Division
GOLDI Y. CAPALUNGAN, Petitioner,
EMMANUEL R. LEE, Respondent.
GEORGE C. SMITH
Magistrate Judge Jolson
OPINION AND ORDER
MICHAEL H. WATSON, CHIEF JUDGE
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).
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.
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.
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.
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.
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
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)).
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).
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.
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 ...