In the United States Court of Appeals For the Second Circuit

August Term, 2023

(Argued: March 19, 2024 Decided: May 16, 2024)

Docket No. 24-172-cv

ROMAN TERESHCHENKO,

Petitioner-Appellee,

–v.–

YASAMIN KARIMI,

Respondent-Appellant.

B e f o r e:

CARNEY, SULLIVAN, and LEE, Circuit Judges.

Yasamin Karimi, a Ukrainian citizen, appeals the grant of a petition brought by her former husband, Roman Tereshchenko, also a Ukrainian citizen, for return of their two children. Tereshchenko filed his petition under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) (“Hague Convention” or “Convention”), as implemented by the International Child Abduction Remedies Act (“ICARA”), 102 Stat. 437, as amended, 22 U.S.C. § 9001 et seq. Immediately after Russia’s invasion of Ukraine on February 24, 2022, Tereshchenko agreed to have Karimi remove the children from Ukraine, their place of habitual residence, for safety reasons, but requested that she come with the children to him in Dubai, where he has a home and an office. Karimi then brought the children to locations that she did not disclose to Tereshchenko, including in July 2022 to the United States. Following a hearing on January 3, 2024, the District Court (Cote, J.) granted Tereshchenko’s petition and ordered the children returned to Tereshchenko at his current residence in France.

We reject Karimi’s challenge to the District Court’s subject matter jurisdiction over Tereshchenko’s petition. We further conclude that Tereshchenko proved a prima facie case of wrongful removal or retention under Article 3 of the Convention, and we identify no abuse of discretion in the District Court’s decision to exclude Karimi’s proffered evidence relating to Article 12’s “now settled” defense. We find error, however, in the District Court’s determination that the children would not be exposed to a grave risk of harm if they were returned to western Ukraine. Nevertheless, and in part because of that grave risk of harm, we conclude that this is one of the rare cases in which the Convention permits—as a temporary ameliorative measure—a district court to order the return of the children not to their place of habitual residence but to the petitioner in a third country. We therefore affirm the District Court’s order to that extent. Because its order was not adequately tailored to maintain the Ukrainian courts’ authority over an ultimate custody determination and to avoid effecting an impermissible custody order, we remand for the District Court to modify the order accordingly. Thus, we AFFIRM IN PART, and REMAND the case for further expeditious proceedings consistent herewith.

MICHAEL BANUCHIS, Green Kaminer Min & Rockmore, LLP, New York, NY (Richard Min, Green Kaminer Min & Rockmore, LLP, New York, NY; Daniel Lipschutz, Aronson Mayefsky & Sloan, LLP, New York, NY, on the brief), for Petitioner-Appellee.

KAREN R. KING, Morvillo Abramowitz Grand Iason & Anello PC, New York, NY (Jeremy D. Morley, The International Family Law Office of Jeremy D. Morley, New York, NY, on the brief), for Respondent-Appellant