GABOR VIRAGH vs. MARIA FOLDES [Note 1] & another [Note 2].

GREANEY, J. The plaintiff father, Gabor Viragh (Gabor), brought this action pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Convention) in the Probate and Family Court Department in May, 1991, seeking the immediate return of his two sons to his custody in Hungary. [Note 3] In the alternative, Gabor requested that the defendant mother, Maria Foldes (Maria), be ordered to send the children to Hungary at least twice a year, at her expense, during their stay in the United States. Maria, who was granted sole custody of the children by the Central District

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Court of Budapest in connection with her divorce from Gabor in 1986, came to the United States with the children in November, 1990.

An evidentiary hearing on the matter was held in July, 1991, at which Gabor was not present but was represented by counsel, and a judgment was entered on October 4, 1991. The Probate Court judge concluded that the Convention does not mandate that children be returned to their habitual residence for the purpose of visitation. The judge specifically found that there exists a substantial risk that Gabor will not return the children to Maria's custody if they are sent to Hungary and ordered that Gabor exercise his visitation rights twice a year in the United States. Maria was ordered to reimburse Gabor for his reasonable travel expenses. Gabor appeals from this ruling arguing that the judge improperly construed the Convention and Hungarian law. We granted Gabor's application for direct appellate review. We conclude that the judge properly interpreted the Convention. Although the judge did not issue any interpretation of Hungarian law, we conclude that a ruling of the Hungarian court on this matter, issued subsequent to the judgment now before us, supports the judge's application of the Convention to this case.

The facts are as follows. Gabor and Maria were married in Budapest, Hungary, in 1983, and divorced there in 1986. Their son Robert was born in 1983, and another son. Attila, was born in 1985. At the time of divorce, Gabor opposed the grant of custody to Maria and appealed from the order of the Central District Court of Budapest. This appeal was denied on several grounds including that the best interest of the children would be served by Maria's having custody of them and that Gabor had demonstrated his lack of cooperation since the divorce by keeping Robert three weeks beyond the expiration of his summer visitation period. Gabor remarried in November, 1987, and lives in Budapest with his second wife and their two year old child.

In Hungary, custody issues are decided by the courts while specifics of visitation matters are determined by an administrative

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system, referred to as the Guardianship Authority. The visitation order presently in effect was issued by the Budapest Guardianship Authority in November, 1989, and grants Gabor visitation on alternate weekends, two weeks each in July and August, and three days during the children's winter and spring holidays. Gabor filed a subsequent request for additional visitation which was denied by the Guardianship Authority. Since the divorce, Gabor has filed approximately fifty complaints and appeals against Maria in different Hungarian courts and before various executive authorities, all of which have ultimately been dismissed.

In June, 1990, Maria informed Gabor that she was traveling to the United States for a three-week period. During her visit, she married Mihaly Gereb (Mihaly), a dual citizen of the United States and Hungary, and became pregnant with Mihaly's child. On her return to Hungary, Maria petitioned for a visa for immediate entry into the United States as the wife of a United States citizen and made arrangements to bring her two children to live with her and her second husband. Mihaly, an assistant professor at Tufts University, had a two-year appointment which was scheduled to expire on August 31, 1991. Maria intended to stay in the United States until June, 1991, the end of Mihaly's required attendance at Tufts. Despite her intention to remain for less than one year, Maria obtained a "green card" to permit her to work while in the United States and an unpaid leave of absence from her job in Hungary until December, 1991.

On November 11, 1990, Maria, who was more than five months pregnant, and the two children left Hungary using one-way airline tickets purchased by Mihaly. On their arrival, their passports were stamped in a manner which indicates that they may lawfully remain as permanent residents. Maria did not inform Gabor of her plans prior to leaving, but sent him a letter the day she left in which she explained that she was returning to the United States. She furnished Gabor with her new address so that he could write to the children and stated that routine visitation would have to be suspended during their absence. Maria indicated, however, that she was

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willing to work out a mutually acceptable schedule for visitation and suggested that Gabor make contact with her Hungarian attorney for further information. Although she had experienced great difficulties with Gabor, Maria did not intend to deprive him of contact with the children. Her sole reason for leaving Hungary was to live with Mihaly.

The decision not to inform Gabor of her plans prior to leaving Hungary was based on several concerns. Gabor had not been a model husband. He physically abused and verbally threatened Maria on a number of occasions both prior to and following the divorce, [Note 4] one time attacking her when she was seven months pregnant with their second child. At the time Maria requested the divorce, Gabor was so distressed that he threatened to kill himself and the two children and also told Maria that, if she continued with her divorce action, she would never see the children again. Maria feared that Gabor would physically abuse her if he knew that she was leaving Hungary. She also believed, based on the numerous complaints he previously had filed against her, that Gabor would file a law suit or petition for custody thus forcing her to remain in Hungary to appear and answer new allegations. It was Maria's understanding that she would not be permitted to fly overseas during her last three months of pregnancy and, therefore, any potential litigation in Hungary would result in her separation from Mihaly until after the birth of their child. The judge found that Maria's fears, and thus her reasons for not informing Gabor prior to her departure, were reasonable.

Shortly after their arrival in the United States, Maria sent a second letter to Gabor informing him that she and the children

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had moved to a different address. She also described the children's progress in their new school and wished Gabor a Merry Christmas on behalf of herself and the children. Although Gabor stated in his verified complaint that he has "yet to receive a reply to any of his weekly letters to the children," and that he has "had no information about the children" except for the two letters sent in November, 1990, the judge found these statements to be false. In fact, Maria has encouraged and fostered contact between Gabor and the children since leaving Hungary. She has written to Gabor on a monthly basis, enclosing letters and drawings from the children. She also sent a package in March, 1991, with pictures of the children and samples of their schoolwork. Gabor, in his letters to the children, has acknowledged receipt of their letters and has thanked them for writing. The children are provided with all letters received from Gabor.

The financial resources of both Gabor and Maria appear to be quite limited. Gabor was trained as a psychologist, but officially works only four hours a day as a physical education teacher in a public school (earning a salary of less than $120 a month). A mandatory 32% of Gabor's monthly salary is automatically deducted for child support. It is Maria's belief, however, that Gabor earns income from unofficial work from which he does not pay child support. Maria, who earned approximately $260 per month working as an arbitrage dealer in the foreign exchange department of the Commercial and Credit Bank of Hungary, has not earned any income since arriving in the United States and does not have any assets or savings, other than an account in Hungary into which child support payments are deposited. She has attempted to start a business with Mihaly; however, this endeavor has not produced income. Mihaly, whose salary at Tufts is $49,000 a year, supports Maria, the two children from her first marriage, and the couple's baby. Shortly before the July, 1991, hearing, Mihaly learned that his appointment at Tufts had been extended for two years. Maria now intends to stay in the United States with Mihaly and the three children at least until August, 1993.

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According to Maria, Gabor did not make contact with her Hungarian attorney to discuss the matter of visitation but instead instituted formal proceedings under the Convention to enforce his access rights. [Note 5] In February, 1991, the Hungarian Ministry of Justice, as the designated Hungarian central authority to the Convention, sent a document on behalf of Gabor to the United States Department of State, requesting access rights (visitation) in accordance with the Convention. The standardized document, which was designed for the purpose of requesting the return of children wrongfully removed or retained from Hungary, had been altered throughout to make clear that only access rights, and not return of the children, were being requested. It appears that the present action was instituted in connection with that request.

In addition to this action in the Probate and Family Court, Gabor sought relief in Hungary by petitioning for modification of the order which had granted Maria custody of the children. This petition was based on Gabor's assertion that Maria prevents him from maintaining relations with the children and the fact that Maria removed the children from Hungary without his consent. The Central District Court of Budapest denied Gabor's petition in a written decision issued on March 11, 1992. [Note 6] The decision specifically referred to the October 4, 1991, judgment of the Probate and Family Court. Although the Hungarian court noted that visitation twice a year in the United States will place a considerable financial burden on Gabor, the court recognized that Maria must reimburse Gabor for his expenses. The Hungarian court found

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that removal of the children from Maria, with whom they have always lived, will cause them greater psychological harm than that caused by limited visitation and contact with Gabor. For this reason, as well as the fact that Maria and Mihaly provide the children with a suitable home, the court denied Gabor's petition. The decision of the Hungarian court did not in any way challenge the findings, judgment, or order of the Probate and Family Court.

1. Mandatory return of children under the Convention. At the July, 1991, hearing, it was clear that this case concerned only one issue, Gabor's access rights under the Convention. There was no question that Maria had been granted sole custody of the children by the Hungarian court and that Gabor had expressly been granted visitation rights, but not joint custody rights. The central argument presented by counsel for Gabor was that Maria had violated Gabor's access rights by leaving Hungary without receiving permission from either Gabor or the Guardianship Authority. Although he conceded that Maria could legally travel abroad with the children, counsel further argued that Maria now intends permanently to remain with the children in the United States. According to counsel, Hungarian law requires that the custodial parent receive permission from either the noncustodial parent or the court before children are permanently removed from Hungary. Because Maria did not receive this permission, counsel argued that Maria's retention of the children in the United States constitutes "wrongful retention" within the meaning of art. 3 of the Convention.

At the time of the hearing, less than eight months had passed since Maria left Hungary. The judge made no finding regarding Maria's intention permanently to remain in the United States, but specifically found that she did not intend permanently to remain here when she left Hungary in November, 1990. In response to the assertion by Gabor's counsel that her retention of the children in the United States is wrongful, Maria declared that she does not wish to keep the children here beyond the period permitted by Hungarian law. Maria explained that Hungarian law permits a custodial parent

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to take children abroad without permission from either the noncustodial parent or the Guardianship Authority, at least for a period of one year. The judge, therefore, focused on the only issue then properly before him, Gabor's access rights under the Convention.

The judge correctly concluded that the Convention does not mandate the return of children to the noncustodial parent for the purpose of visitation. The Convention distinguishes between "rights of custody" and "rights of access," and mandates return only when children have been removed or retained in breach of rights of custody attributed to a person, institution or other body. Art. 3 [Note 7] ; art. 12. See Meredith v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991) (party seeking mandatory return must satisfy threshold requirement of proving lawful rights of custody at the time of removal or retention). Rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5 (a). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Art. 5 (b). When a child has been removed or retained in breach of rights of custody, and no exceptions set forth in art. 13 have been established, [Note 8] the Convention mandates

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that the nation to which the child has been taken order the return of the child to its habitual residence "forthwith." Art. 12. See Sheikh v. Cahill, 145 Misc. 2d 171, 176 (N.Y. Sup. Ct. 1989). In contrast, the Convention does not mandate any specific remedy when a noncustodial parent has established interference with rights of access. [Note 9] Rather, nations are instructed in art. 21 to "promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject," as well as to "take steps to remove, as far as possible, all obstacles to the exercise of such rights." [Note 10] , [Note 11]

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In his appeal, Gabor does not argue that the Convention mandates the return of children for the exercise of access rights by the noncustodial parent. Rather, he argues that the term "rights of custody" is broadly defined under the Convention and that he has rights of custody under Hungarian law which have been violated by the wrongful retention of his children in the United States. [Note 12] Article 3 provides that determination whether the party who has requested mandatory return is indeed vested with rights of custody should be based on the "law of the State in which the child was habitually resident immediately before the removal or retention." To support his claim that he has rights of custody, Gabor points to certain provisions of the family law of Hungary, as well as to a recent ruling issued by the Civil College of the Supreme Court of Hungary, referred to as Ruling 284. This ruling was issued in December, 1991, after the judgment in this case, but before the ruling by the Central District Court of Budapest which denied Gabor's petition for modification of custody. It appears that Ruling 284 applies the family law of

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Hungary to the terms of the Convention to establish the boundaries of wrongful removal and retention under Hungarian law. [Note 13]

According to Ruling 284, a custodial parent who wishes to remove a child abroad for a period longer than one year must receive the consent of the noncustodial parent or permission from the court, otherwise the retention of the child abroad qualifies as wrongful retention. It appears, however, that the custodial parent must have formed the intention to leave for a period longer than one year prior to removing the child abroad. [Note 14] Ruling 284 further states that the custodial parent may not permanently remove a child from Hungary without approval from the Guardianship Authority. According to Ruling 284, the Guardianship Authority is vested with rights over children of divorced or separated parents which qualify as rights of custody attributed to an institution under art. 3. Therefore, the Guardianship Authority may commence proceedings for mandatory return whenever a child has permanently

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been removed from Hungary without the requisite permission from the Guardianship Authority, even if the noncustodial parent has consented to the removal. [Note 15]

The provisions of Ruling 284 are not instructive in this case because, at the time she left Hungary, Maria intended to return with the children within one year. Furthermore, there is no clear indication in the record that the Guardianship Authority has commenced proceedings for mandatory return of the children on the ground that Maria intends permanently to remain in the United States. It is apparent that Gabor could have argued before the Central District Court of Budapest that Maria now intends to keep the children in the United States well beyond one year, or even permanently. The Hungarian court, however, did not apply Ruling 284 to this case or find that Maria's current retention of the children in the United States is wrongful under Hungarian law. Rather, the Hungarian court found that the best interests of the children require that Maria retain custody. In these circumstances, we conclude that the ruling of the Hungarian court constitutes a declaration under Hungarian law that Maria's retention of the children in the United States is not wrongful. See David S. v. Zamira S., 574 N.Y.S. 2d 429, 432 (Fam. Ct. 1991) (custody decision by court of child's habitual residence, made subsequent to removal of child and petition for return, constitutes declaration concerning wrongfulness under art. 3). Accordingly, it would be contrary to both Hungarian law as well as Massachusetts law to

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mandate that the children be returned to Hungary. See G. L. c. 208, Section 28 (1990 ed.); G. L. c. 209B, Section 14 (1990 ed.)

2. Effective exercise of rights of access. A major purpose of the Convention is to protect the access rights of the noncustodial parent when the children reside in a contracting nation other than where the noncustodial parent resides. The Convention provides that the parent who has removed the children from their habitual residence, and made the exercise of access rights more difficult, may be ordered to pay the necessary expenses incurred by the noncustodial parent effectively to exercise rights of access. Art. 26. This provision is particularly relevant in a case such as this, where the average salary in Hungary is dramatically less than in the United States. The Convention also recognizes that a judge may not enter a visitation order which is impractical. By instructing the judge to remove, "as far as possible," all obstacles to the exercise of access rights, the Convention emphasizes that the judge must consider all practical limitations. Art. 21.

In this case, it is apparent that the judge considered the principles articulated in art. 21 when he determined the specific order of visitation. [Note 16] Because he found a substantial risk that Gabor will not return the children to Maria's custody if they are sent to Hungary, the judge properly declined to issue an order that the children be returned for visitation. See note 10, supra. The judge ordered, however, that Gabor be granted visitation in the United States twice a year, two weeks each summer and approximately ten days each Christmas vacation period. [Note 17] Maria was ordered to reimburse Gabor on his arrival in the United States for reasonable

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travel expenses incurred. Furthermore, the judge ordered that Gabor's child support obligation be suspended to defray visitation expenses during the period the children reside in the United States.

Gabor contends that the reimbursement order renders the entire visitation order meaningless because he does not have sufficient funds, nor the ability to borrow sufficient funds, to purchase an airline ticket to the United States. He further claims that, even if he could purchase a ticket, he cannot afford living expenses for himself and the children during his stay in the United States. Thus, he argues, the visitation order is contrary to art. 21 because he cannot afford to exercise his rights of access in the United States.

We cannot assess whether the visitation order issued by the judge sufficiently protects Gabor's rights of access because Gabor did not submit any evidence of his earnings or assets at the hearing. The only evidence of Gabor's financial status was Maria's testimony that she has received 32% of Gabor's official salary, or approximately $37 a month, as child support. It is apparent that the judge concluded that Maria and Mihaly can afford to pay Gabor's travel expenses to and from the United States twice a year. There was not sufficient evidence, however, for the judge to determine whether Gabor is able to collect funds to purchase his tickets to the United States, or whether Gabor is able to pay necessary living expenses, such as hotel, motel, or other temporary housing, food and transportation, for himself and the children during visitation. Accordingly, we remand this case to the Probate and Family Court with the instruction that the parties be ordered to submit evidence from which the judge may craft an appropriate visitation order which recognizes the costs associated with visitation as well as the financial limitations of the parties.

Gabor also claims that the judge improperly limited his visitation period because the Guardianship Authority order included four weeks of visitation in the summer as well as alternate weekends throughout the year. It is Gabor's position that the judge should have entered an order which is a

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"mirror image" of the Guardianship Authority order. Obviously, the Convention does not require that a mirror image visitation order be entered because such a requirement would be impractical. To the extent practical, however, the visitation order of the Guardianship Authority should be followed during the children's stay in the United States. See G. L. c. 209B, Section 14 (1990 ed.). On remand, the judge may consider Gabor's request for a longer visitation period when determining the practical limits of visitation. Furthermore, the judge may consider Gabor's request for telephone contact with the children which was included in the document submitted to the United States Department of State.

3. Attorney's fees. Gabor argues that the judge erred in denying his request for attorney's fees because ICARA, 42 U.S.C. Section 11607 (b) (3), mandates that attorney's fees and costs be awarded when a court orders the return of children pursuant to the Convention. In this case, we have found that the judge correctly denied Gabor's request that the children be returned to Hungary. Furthermore, attorney's fees and costs must be awarded only when children who have been wrongfully removed or retained under art. 3 are returned, not when children are returned under art. 18 for purposes of visitation. Therefore, there is no merit to Gabor's argument. Neither the Convention nor ICARA mandates the award of costs or fees to a party who successfully petitions for rights of access. The judge properly denied Gabor's request for attorney's fees.

4. Disposition. The action is remanded to the Probate and Family Court for further proceedings concerning the order of visitation consistent with this opinion. In all other respects the judgment is affirmed.

So ordered.