The petitioner, Beat Geiser, a Swiss national, moves for a Writ of Habeas Corpus to produce his children, M.G. and N.G., so that they may be returned to Switzerland pursuant to the Hague Convention since Switzerland is their habitual residence.

The respondent, Sherry Valentine, a citizen of the United States, moved by Order to Show Cause for an Order of Protection against the petitioner, for the benefit of their children.

Upon retaining counsel, respondent cross petitioned for release of escrow monies and modification of this court's prior Order of Visitation dated September 27, 2007.

This court heard arguments on the above petitions and motions on October 11, 2007, October 15, 2007, October 16, 2007 and October 22, 2007. The evidence presented at the hearing consisted of the testimony of petitioner, Beat Geiser, and respondent, Sherry Valentine. Petitioner's exhibits numbered 1, 1(a) (Separation Agreement), 2 (Report by Office of Protection of Adults and Minors), 3, 3(a) (Report of police investigation), 4, 4(a) (Summons), 5 and 5(a) (Children's Swiss Identification) were also admitted into evidence. [*2]

This court finds that the testimony of the petitioner is credible while the testimony of the respondent is less than credible.

The petitioner and respondent have two children, M. born 2000 in Bolivia, and N. born 2003 in Switzerland. Both children have dual citizenship in the countries of Switzerland and in the United States of America. The parties, after traveling in various countries, married in Switzerland on July 16, 2003 and have resided continuously in Switzerland since their marriage, leaving only for short periods of time to vacation and to visit respondent's ailing father in New York and then to attend his funeral.

On or about September 12, 2006, the parties entered into a Separation Agreement (Exhibit 1 and 1(a)). Said agreement provided that the parties live in separate residences in Switzerland with the children residing with respondent and the petitioner being granted specific visitation rights. The agreement also forbade the respondent from leaving Switzerland with the children except for a four (4) week summer vacation at the end of the school year, i.e. July 1st.

Based on conversations with her three (3) year old daughter, N., respondent concluded her father-in-law was touching her daughter's nipples in an inappropriate manner. Further in April 2007, the children, especially N. was acting "strangely" in that she wanted to lay on top of her in bed and tried to put her hands between respondent's legs. Respondent further testified that M. was moving a toy magic wand in and out of his mouth. Also, M. exhibited aggressive kissing and hugging and said he did this with his father, petitioner. Further, N. said her arm was a penis, big and long, and when asked whose penis, she replied "I don't want to tell you because Daddy will get mad." Respondent also questioned petitioner's mental stability inferring he may be suicidal and would fail to assure her of the children's safety while they were in his custody.

All of the above cited allegations of abuse and misconduct were made known to the Office of the Protection of Adults and Minors, a Swiss child protection agency, which conducted a full and complete investigation. As part of the investigation the children, and both petitioner and respondent, were interviewed and psychological tests were given to the children.

Before the Office of the Protection of Adults and Minors, as well as the police investigation, finished their reports and findings, the respondent left Switzerland with the children traveling to New York without informing the petitioner. The respondent did tell the petitioner she was planning on going to New York during the summer break with the children. The summer break commenced July 1, 2007, however, the respondent and the children left Switzerland on June 12, 2007, two (2) weeks before school ended. Respondent claims she was assured by school officials this would not prevent M. from graduating first grade. The next day respondent called petitioner to let him know she went to New York with the children, however, she refused to give him the address of her new residence.

The respondent has admittedly remained in New York past the agreed upon four (4) week vacation period and refuses to return to Switzerland with the children alleging the Swiss authorities do not take her allegations of child abuse seriously and her belief that the Swiss people in general are biased against her because she is African American. The respondent has the burden of establishing that the children are in grave danger by clear and convincing evidence. This court has found that the respondent has failed to meet that burden.

Soon after respondent left Switzerland, the Office of the Protection of Adults and Minors [*3]released their reports and findings on June 28, 2007. On July 5, 2007 the Swiss Police concluded their investigation and issued a report. Both the Police and the Office of Protection of Adults and Minors found no basis or merit to the allegations of abuse to the children. On or about June 19, 2007 the petitioner commenced divorce and guardianship proceedings in Switzerland and continues to pay maintenance and child support into an escrow account in Switzerland, as well as maintaining her apartment and health insurance for the children.

The United States and Switzerland are both signatories of the Hague Convention. The United States implemented the provisions under the Hague Convention through the passage of the International Child Abduction Remedies Act, 42 U.S.C. §11601-11610 (1988). Article 11 of the Hague Convention requires the judicial authorities of the contracting States to "act expeditiously in proceedings for the return of children." Article 12 requires the return of the children forthwith to their country of habitual residency if the petition is filed within one (1) year of the children's wrongful removal or retention.

This court finds pursuant to the authority of 42 U.S.C. §11603(a), that this court has original and concurrent jurisdiction with Federal Courts of the United States to enforce the terms of the Hague Convention. This court further finds that the petitioner has moved expeditiously in seeking the return of his children, pursuant to the Hague Convention, well within one (1) year of their removal from Switzerland and wrongful retention in the United States. This court finds the children's habitual residency immediately before their removal and wrongful retention to be Switzerland. The respondent has wrongfully retained the children in New York well past their permitted four (4) week vacation period and has wrongfully interfered in petitioner's rights of custody and visitation. The petitioner has continuously exercised his rights to custody and visitation since the birth of his children.

The respondent has failed to prove by clear and convincing evidence that the children face a grave risk of physical or psychological harm or that returning them to Switzerland will place the children in an intolerable situation.

Accordingly, pursuant to the provisions of The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, the International Child Abduction Remedies Act, 42 U.S.C. 11601 et seq., and the Uniform Child Custody Jurisdiction and Enforcement Act, Domestic Relations Law §75 et seq., the respondent is to produce the minors, N.A.G (d.o.b. /03) and M.V.G (d.o.b. /00), before this court to be returned in the company of their father to the sovereign nation of Switzerland, who is to report the delivery of the children to the appropriate central authority. The respondent may also purchase a ticket for the same flight and accompany her children back to Switzerland if she so desires.

By virtue of this Order, Beat Geiser has the exclusive right to the physical and legal custody of the children during the period of time required to return the above named minors to Switzerland, the country of the minors' habitual residence.

This Order is not a determination of the merits of any custody issues within the meaning of Article 19 of the convention.

Accordingly, the petitioner Beat Geiser is to be given immediate custody of the children,

M.G. and N.G., so that they may be returned to Switzerland, and thereafter upon the return of respondent, Sherry Valentine, to Switzerland the children are to be delivered to her in accordance [*4]with the Separation Agreement of the parties.

This shall constitute the decision and order of the Court.

E N T E R ,

S/ Philip G. MinardoJ.S.C.