2010-074, In the Matter of Cynthia Rix and Rajesh Jathar

Law Offices of Justin P. Nadeau, P.A.

No. 2010-074

Portsmouth Family Division

1990. He possesses a green card, which is valid until November 2, 2014. respondent is a citizen of India, who has resided in the United States since Massachusetts. The petitioner is a citizen of the United States. The parents of a seven-year-old son, A.J., born on November 23, 2003, in Brighton, recommended by a Marital Master (Cross The following facts are drawn from the record. The parties are the CONBOY, J. The petitioner, Cynthia Rix, appeals from an order

Shaheen & Gordon, P.A. ___________________________

the parties’ child to India for a vacation. We affirm. exercised its discretion by permitting the respondent, Rajesh Jathar, to take Family Division (Korbey, J.), on the grounds that the trial court unsustainably

and orally), for the respondent.

on the brief and orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as that a visit to India with the respondent would not be in A.J.’s best interests, p. 2 visit would require his absence from school. The petitioner argued, therefore, respondent, that he had never traveled without his mother, and that such a the petitioner offered that A.J. is “currently somewhat afraid” of the On December 14, 2009, the petitioner filed an ex weeks despite the respondent’s claim that she had difficulty traveling. Finally, and that the respondent’s mother recently visited the United States for five had expressed a strong interest in having the respondent and A.J. live in India, compelled to return. The petitioner also offered that the respondent’s mother States, and because the respondent is a citizen of India he could not be was possible that the respondent would not return with A.J. to the United petitioner further offered that because of the parties’ troubled relationship it an undetermined length of time, “possibly a month, possibly longer.” The The petitioner offered that the respondent wanted to take A.J. to India for

paperwork necessary to renew it. A.J.’s passport had expired and the petitioner declined to execute the together have traveled with A.J. to India on three other occasions, by 2009 Although the parties obtained a passport for A.J. shortly after his birth, and into January 2010, to visit with A.J.’s grandmother and his extended family. his desire to take A.J. on vacation with him to India, from late December 2009 relationship. At around this time, the respondent expressed to the petitioner In May 2009, the parties were experiencing a “rough patch” in their

on December 21, 2009, which was conducted by offers of proof. to the petitioner’s ex parte motion. The trial court held a hearing on the motion from the other party. On December 16, 2009, the respondent filed an objection both parties from leaving the state without a court order or written permission to India and not return. The trial court issued a temporary order restraining believed the respondent intended to follow through on his threats to take A.J. pressuring him to take A.J. to India and not return; and (4) the petitioner paperwork to obtain a passport for A.J.; (3) the respondent’s mother was respondent threatened the petitioner in an attempt to force her into executing that: (1) the respondent threatened to take A.J. to India and not return; (2) the the respondent from taking A.J. to India. In that motion, the petitioner alleged

businesses, a hair salon, employs the petitioner. businesses located in Newmarket and Waltham, Massachusetts. One of these approximately $250,000. He is also the sole owner and investor in two where he has worked for the past thirteen years. His 2009 earnings were respondent is a full-time employee at a computer company in Portsmouth, orders regarding parenting responsibilities were previously issued. The shared a residence, as well as parenting responsibilities for A.J. No court an “on-again, off-again” romantic relationship, during which time they have For approximately the past nine years the parties have been involved in p. 3 India, but the objective evidence does not recognizes that mother is concerned about father not returning the child from reiterated its initial findings following the hearing, and stated, “The court information.” In its January 8, 2010 order denying the motion, the trial court it improperly submitted new evidence, including “alleged and unverified The respondent objected to the motion for reconsideration, arguing that

Consular Affairs, relative to parental child abduction in India. obtained from the website of the United States Department of State, Bureau of harm to A.J. against the benefits of his traveling to India with the respondent. visit with her grandson.” The petitioner attached to her motion material to the Hague Convention, the trial court failed to properly weigh the risk of vacation to visit a grandmother who could as well travel to the United States to The petitioner argues that in light of the fact that India is not a signatory the respondent not return with A.J. “against the benefit of the child going on a Aspects of International Child Abduction (Hague Convention). failure . . . as expressed . . . in her Pro Se Ex Parte Emergency Motion” should concerning India’s status as a signatory to the Hague Convention on the Civil to the United States.” The petitioner urged the trial court to “weigh the risk of properly preserved. Accordingly, we will consider the petitioner’s argument provide safeguards for American citizens to ensure the return of their children for the respondent conceded that this issue was raised below and was therefore a Signatory to the Hague Convention and in fact, is a nation that fails to Aspects of International Child Abduction.” However, at oral argument counsel 3 arguing that the trial court failed to consider that India “is a nation that is not able to secure the child’s return through the Hague Convention on the Civil The petitioner moved for reconsideration and an evidentiary hearing, petitioner failed to preserve the issue of whether “[the petitioner] would not be At the outset, we note that the respondent argues in his brief that the

concern.” This appeal followed.

if she wished, at her own expense. that the petitioner was entitled to travel to India with the respondent and A.J., occasions and returned without incident. The trial court concluded by ruling and that the parties had traveled with their son to India on three separate United States, including a high-paying job and ownership of two businesses, India. The trial court found that the respondent had significant ties to the from India with A.J. and ruling that he was entitled to vacation with A.J. in had presented no evidence to suggest that the respondent would not return That same day, the trial court issued its order finding that the petitioner

permitted only if the petitioner was allowed to travel to India with them. that it posed a risk of irreparable injury, and that any such visit should be with a parent outside the country. As the court stated in Abouzahr v. Matera p. 4 alone, be determinative of whether it is in the best interests of a child to travel should be a significant factor for the trial court to consider, it cannot, standing we conclude that while a foreign country’s Hague Convention signatory status including his substantial ties to the United States. Under these circumstances, above, he pointed to several factors supporting his intention to return, 4 denied any intention of keeping A.J. in India after the visit, and, as noted enforcing a New Hampshire parenting order in India. However, the respondent status, and he did not minimize the difficulties the petitioner would have in will not return with the child.” Indeed, although the petitioner alleged in her ex signatory to the Hague Convention, the respondent did not dispute India’s Abouzahr As for the petitioner’s arguments concerning India’s status as a non- trial court specifically noted it had heard “no evidence to suggest that father, 824 A.2d 268, 282 (N.J. Super. Ct. App. Div. 2003): light of the potential risk that the respondent may not return with him, the In determining whether A.J. should be permitted to travel to India in

such trips, provided that she obtains her own accommodations. respondent has agreed that the petitioner could accompany him and A.J. on traveled to India together with their son three times in the past, and the Moreover, the respondent’s undisputed offer indicated that the parties have In contrast, the respondent demonstrated significant ties to the United States. evidence of any such threats and appeared to have abandoned that argument. return with A.J. from India, at the hearing on the motion she offered no parte motion that the respondent threatened on numerous occasions to not

trial court’s order. (1980), and upon review of the record, conclude that the evidence supports the applied the proper standard, see Grabowski v. Grabowski, 120 N.H. 745, 748 standard it employed in making its rulings, we assume that the trial court the applicable standard. While the trial court did not expressly articulate the be guided by the best interests of the child.” The petitioner agrees that this is rights and responsibilities and expressly states that in doing so “the court shall (Supp. 2010) provides the trial court with the authority to determine parental In the Matter of Kosek & Kosek, 151 N.H. 722, 724 (2005). RSA 461-A:6 visitation except where there has been an unsustainable exercise of discretion. We will not overturn a trial court’s determination regarding an award of

abducted a child to India would not be extradited to the United States. parental child abduction is not a criminal offense there, a parent who has court decisions as to parenting are not generally enforced in India, and because to ensure A.J.’s safe return to this country. She asserts that United States States it will be extremely difficult, and potentially impossible, for the petitioner The petitioner argues that if the respondent fails to return A.J. to the United analysis regarding the propriety or practicality of such an order here. See p. 5 posting of a bond or other security, and we therefore do not undertake an with A.J. in India. We note that the petitioner did not ask for relief such as the unsustainably exercise its discretion in permitting the respondent to vacation the trip to India with A.J., we conclude that the trial court did not requirement that the respondent permit the petitioner to accompany him on accommodations. For these reasons, and particularly in light of the with him and A.J. on their trips to India, provided that she make her own done so. Moreover, the respondent invited the petitioner to continue to travel returned at any time prior to the expiration of A.J.’s passport – and he has not respondent intended to abduct A.J., he could have taken him to India and not and that each time they have returned to the United States. Presumably, if the have traveled to India with him three times to visit A.J.’s paternal grandmother, A.J. has possessed a passport since shortly after his birth, that the parties has lived in this country for over twenty years. Further, it was undisputed that return. The respondent has significant financial ties to the United States, and indication that the respondent intended to flee to India with A.J. and not

Here, as noted above, the evidence presented by the petitioner gave no

DALIANIS, C.J.