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Thursday, December 29, 2011

Leser v Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) [Czech Republic] [Federal & State Judicial Remedies]

In Leser v Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) Respondent Alena Berridge relocated to Denver, Colorado from the Czech Republic with her two children. Subsequently, Petitioner Max Joseph Leser, Respondent's ex-husband and father of the children, filed a petition in the United States District Court seeking return of the children to the Czech Republic pursuant to the Hague Convention and ICARA. The district court held a hearing on the petition, at which it addressed Respondent's motion to continue. Respondent filed the motion to continue in response to a summons for the children to attend a custody hearing in the Czech court on March 24, 2011. Respondent indicated that the Czech court at the March hearing intended to rule on Petitioner's and Respondent's cross motions for "custody rights," "contact rights," and "the right to determine residence ." The district court asked respondent: "[Y]our position with regard to this ICARA action is that it is the Czech court that should make this determination and [you are] willing to take the children back to [the Czech Republic] so that indeed that determination can be made. Is that correct?"Respondent answered affirmatively. Petitioner also agreed that the Czech court was the court where all custody issues should be heard, including whether Respondent had the right to relocate the children to the United States. The district court asked Respondent if she planned to attend the March hearing in the Czech Republic. Respondent stated she would attend if Homeland Security would allow her to leave the United States without adverse effect to her visa status. Before pronouncing its decision, the district court stated it did not believe the real issue before the court was whether Respondent had wrongfully removed her children to the United States. Rather, the district court believed the issues to be which court, the Czech court or United States court, should interpret the custody orders and determine whether Respondent violated those custody orders. Because both parents agreed the Czech court was the appropriate court to hear these issues, the district court, pursuant to the stipulation and without objection, ordered the children returned to the Czech Republic for the March 24, 2011 hearing. The district court made no finding as to wrongful removal as required by the Hague Convention. Rather than granting Respondent's motion to continue, however, the court asked the parties to submit a proposed order setting forth the court's ruling. Respondent agreed to prepare the order and stated she could submit it to Petitioner the next day. But because the parties could not agree to the wording of a proposed order, both Respondent and Petitioner filed separate proposed orders with the court. The court then drafted and entered an order granting the petition for return of the children based not on wrongful removal, but on the parties' stipulation that the children would be present for the hearing in the Czech Republic: “ The Respondent represents that the children will be present for the hearing.... Given the parties' stipulation, there was no disputed issue for this Court to determine. Accordingly, pursuant to the authority of the Court under 42 U.S.C.
11603(a), it is ordered that (1) The Petition (# 1) is granted. (2) Respondent Alena
Berridge f/k/a Alena Leserova shall return the minor children, [M.L. and O.L.], to the
jurisdiction of the Czech Republic within such time as is necessary to participate in the
Czech court's hearing on March 24, 2011. The children shall remain within the
jurisdiction of such court until directed or authorized otherwise by such court. The
return of the children shall be expeditiously reported to the appropriate Central
Authority.”
Respondent appealed. Once the children arrived in the Czech Republic, the Czech courts seized the children's passports and issued new custody orders. The Tenth Circuit dismissed the appeal as moot. On appeal, Respondent asserted the district court order was ultra vires because the district court lacked jurisdiction to grant the petition. Respondent contended ICARA authorizes United States district courts "to order the return of a child to the country of habitual residence upon a finding of wrongful removal." According to Respondent, "the [district] court lacked jurisdiction to order anything" without a finding of wrongful removal. Thus, Respondent argued the district court erred when it ordered the children to attend and participate in legal proceedings in the Czech Republic despite the fact she agreed to it. Although Respondent acknowledged the district court did not make an explicit finding of wrongful removal of the children, at oral argument Respondent asserted that in granting the petition, the district court implicitly found wrongful removal and that such a finding was clear error based on the existing Czech custody orders.
The Tenth Circuit observed that Article III of the Constitution limits a federal court's jurisdiction to "cases and controversies." Its duty is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions. It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. A case or controversy no longer exists when it is impossible to grant any effectual relief. In this appeal, Respondent requested that the court reverse the district court order and dismiss the petition for return of children, or in the alternative, remand to the district court to hold an evidentiary hearing on the issue of wrongful removal. In discussing mootness at oral argument, Respondent criticized the district court order for "granting" the petition for return of children without a finding of wrongful removal. In making that argument, Respondent attacked the merits of the district court order. The Court held that because it could not offer Respondent any relief, it could not decide whether the district court erred in ordering Respondent to return the children to the country of habitual residence without a finding of wrongful removal, where the parents stipulated that the children would return to the Czech Republic for the hearing. The district court's order, entitled "Order for Return of Children," clearly articulated the court's belief that no disputed issues existed because of the stipulation to return the children. After "granting" the petition, the court ordered Respondent to return the children to the Czech Republic to participate in the custody hearing. The order also stated the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court." Furthermore, the district court's language that the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court" was not contrary to the parties' stipulation. Respondent expressed concern that, without reversal of the district court order, she would be in violation of the district court order if she returned to the United States with the children. The Court believed Respondent misread the district court order. Because ICARA empowers United States courts "to determine only rights under the Convention and not the merits of any underlying child custody claims," the Czech court has jurisdiction to decide custody issues-including jurisdiction to restrict the children's travel by seizing their passports. If the Czech court determines to return the children's passports and Respondent returns to the United States with the children, it envisioned no scenario where she would be in violation of the district court order. And if the children subsequently returned to the United States, Petitioner may file a second petition for the return of children if he believes such removal to the United States to be wrongful without being subject to either issue preclusion or claim preclusion. Because it concluded that the district court made no finding as to wrongful removal and because it found no language in the district court order preventing the children from returning to
the United States upon return of their passports, any ruling on the merits "would have
no effect in the world we now inhabit but would serve only to satisfy the curiosity of the
litigants about a world that once was and is no more." Wyoming, 587 F.3d at 1253. Thus, given the unique circumstances of this case, it concluded that this action was moot. Accordingly, the appeal was dismissed as moot, the district court opinion was
vacated, and the action was remanded to the district court with instructions to
dismiss the petition for lack of subject matter jurisdiction.

Rowe v Vargason, 2011 WL 6151523 (D.Minn.) [Australia] [Federal and State Judicial Remedies]

In Rowe v Vargason, 2011 WL 6151523 (D.Minn.) the Respondent moved for a stay pending appeal. The district court noted that it may stay enforcement of a judgment while an appeal is pending pursuant to Fed.R.Civ.P. 62(c) if the following factors support such a stay: "(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The party seeking such a stay has a difficult burden. Haimdas v.. Haimdas, 720 F.Supp.2d 183,210 (E.D.N.Y.2010) (citing United States v. Private Sanitation Indus. Ass'n, 44 F.3d 1082, 1084 (2d Cir.1994)). The most important factor is the likelihood of success on the merits. Brady v. National Football League, 640 F.3d 785, 789 (8th Cir.2011). The Court found that the proper standard is a strong showing of success on the merits or substantial case on the merits, as set forth in the Hilton decision. The court analyzed the factors and denied the motion.
It found, inter alia, that the Respondent had not made a substantial case on the merits and rejected her argument that a conflict of law exists as to whether evidence of abuse of the mother is sufficient to establish the Article 13(b) defense. The Court disagreed that a conflict of law exists in the circuit courts of appeal as to the relevance of evidence concerning abuse of the mother in determining whether a grave risk of harm exists as to the child. The cases cited by Respondent on this issue applied the same standard as the Eighth Circuit. See Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000); In re Adan, 437 F.3d 381 (3d Cir.2006); Simcox v. Simcox, 511 F.3d 594, 608-09 (6th Cir.2007); Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2005). The applicable standard in the Eighth Circuit, and in the cases cited above, is whether Respondent demonstrated, by clear and convincing evidence, that there exists a grave risk that the child would be exposed to harm if returned to Australia. Accordingly, the argument that a conflict of law existed had no merit.

Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) [France] [Habitual Residence]

In Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) Nicolas F. Brosselin filed a petition for the return of his child to France. The district court held a hearing and determined that the Hague Convention did not apply to the petition because the child’s habitual residence was Oak Harbor, Washington, not France and dismissed the petition for lack of jurisdiction. Petitioner Brosselin had requested the Court issue an order compelling the return of Petitioner's and Respondent Shannon Harless's son, LT, to France. The Court observed that the Ninth Circuit has counseled that the habitual residence of an infant is determined by examining the parents' mutual, settled intent to move to a new country for a sufficiently "appreciable period of time" for the infant to acclimatize to the new country of residence. “ Petitioner has the burden to prove habitual residence by a preponderance of the evidence.
The Court found that Petitioner Nicolas Brosselin was a citizen and resident of France. Respondent Shannon Harless was a citizen of the United States of America and a legal permanent resident of France. Harless and Brosselin met in 2007 in France and began living together in France in May 2008. Harless became pregnant in January 2009 with a child conceived with Brosselin in France. Harless resided in France with Brosselin until April 2009, when she moved to Oak Harbor, Washington, and began residing with her mother. Harless gave birth to LT in October 2009 in Oak Harbor, Washington. Brosselin was present at the birth. LT had both French and American citizenship. Brosselin returned to France after the birth and organized the purchase of a new home. Emails sent by Harless to Brosselin in November, 2009, showed the house was intended to be shared by Harless, Brosselin, and their son. In December, 2009, Harless and LT travelled to France and stayed with Brosselin until February 6, 2010. On February 6, 2010, Harless and LT travelled back to Oak Harbor, Washington, and returned to Harless's mother's home. Harless held a variety of jobs during her residence in Washington in 2010. In April, 2010, Harless informed Brosselin that she had become engaged to Troy Williams in Oak Harbor. Harless did not return to France. Although the parties disputed whether Harless intended to move back to France, it was clear the relationship between Harless and Brosselin became fractured by this point in 2010. Brosselin traveled to Oak Harbor, Washington to visit LT and Harless in June 2010 for ten days. Brosselin's parents also visited LT and Harless in August 2010. Brosselin made a second trip in October 2010, at which point he proposed marriage to Harless. During this trip Brosselin appeared to have prompted Harless to consider reconnecting with Brosselin in France, but only equivocally. In November, 2010, Harless suffered a severe injury from a horse and spent multiple days in the Harborview Hospital in Seattle. During her recuperation, she continued to reconnect with Brosselin. At some point in January 2011, Harless and Brosselin agreed that Harless and LT would travel to France. On February 2, 2011, Brosselin purchased a round-trip ticket for Harless and LT for travel from February 17, 2011 to May 10, 2011. Harless testified that she was traveling to France to see if she and Brosselin could get along. Brosselin testified that Harless was returning to stay in France permanently. Amy Gumbel, another friend of Harless, spoke to Harless prior to the February 17, 2011 departure, and Harless stated that she was leaving to go back to France for a little while. Harless told Gumbel it was not intended to be an indefinite stay. Harless wrote an email to Brosselin on February 12, 2011, explaining that she believed LT needed more stability than she could offer and that she was "scared and tired." She wrote that she was "ready to start again," but that she wanted Brosselin to "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In February 17, 2011, Harless traveled to France with LT with four suitcases. She brought clothing and some toys for LT, as well as her own clothes and her horse riding saddle. She did not ship any boxes or move any furniture. She left furniture, baby items, and clothing in her mother's home in Oak Harbor, although she did not possess much. Upon her return to France with LT, took up residence with Brosselin. Although LT had his own bedroom, Harless did not consistently share a room with Brosselin. On March 6, 2011, Brosselin left on a 3-week Army mission to Libya. During their son's absence, Brosselin's parents visited Harless and LT. In this same time frame, Harless wrote to Brosselin: "It's poop to yell all the time ... lets [sic] just talk about happy things and not get into it. I'll settle things down in my own mind and heart." At some point in March, 2011, Harless discovered that Brosselin had become romantically involved with another woman in Ireland, who had been identified as Pauline. Brosselin admited to having traveled to Ireland to be with Pauline for one weekend prior to Harless's arrival in February 2011. He denied any further contact at the hearing, but email records showed he had substantial correspondence with Pauline. Emails between Brosselin and Pauline from March 7, 2011 through March 13, 2011, reveal a significant romantic relationship had developed. On March 9, 2011, Brosselin wrote to Pauline: "I absolutely did not expect to see Shannon burst back into my life with LT under her arm, settle into the house for an undetermined period of time and start to blackmail me in order to be the only woman in my life." He wrote further, "I thought all was over, that I was going to be
able to make a new start at a nice quiet life with you at my side and afterward find a
way to get my son back." He concluded, "I deeply hope at the bottom of my heart
that things can be resolved and bring us [he and Pauline] back to each other." In a second email to Pauline, sent on March 9, 2011, Brosselin wrote "I don't really know what Shannon wants for the long term .. to stay in France, or make my life so impossible that I put her on the plane with a big maintenance allowance every month
and guarantee her that I won't try to take LT away from her.". Brosselin also discovered that Harless continued her romantic relationship with Williams. Brosselin included screen captures of one online sexual encounter between Harless and Williams. A postcard sent by Harless to Williams dated March 5, 2011 includes Harless's protestation of love for Williams and her desire to return to him. In or around March 18, 2011, Harless's friend Margaret Sara Celik visited Harless and LT in France. She testified that Harless was living out her suitcase and had not settled in the home.
On April 1, 2011, Harless renewed her French business license and contacted the
Mayor of Bras sur Meuse, France, to set up a work opportunity. Harless also gave
some English teaching lessons. Harless also signed up for a one-year membership at a
horse riding facility. Harless also obtained medical insurance coverage with the aid of Brosselin in March. From March 1 through April 30, 2011, LT received in-home babysitting care and also spent time in daycare. After his return from his mission, on April 10, 2011, Brosselin called the police to intervene in a domestic dispute. He also called his parents for assistance. On May 2, 2011, Harless filed a complaint with the French police that she had been psychologically abused by Brosselin. On May 3, 2011, Harless took LT from France to Luxemburg and flew back to the United States on a new ticket purchased by her mother. Brosselin attempted to contact Harless and LT in the United States, but his phone calls and emails have been largely unanswered. Brosselin demanded the return of his child. Harless has not made LT available to his father on any consistent basis. Brosselin commenced this lawsuit on November 7, 2011.
In examining the testimony about the parties' mutual intent to move LT permanently to France, the Court found neither one to be particularly credible. Ultimately the parties' testimony showed that neither shared a mutual intent to have Harless and LT settle in France indefinitely, a fact that the other evidence in the record confirmed. The Court stated that it had to answer the question of whether LT's parents shared a settled intent to move LT to France, and that he stayed there for a sufficiently "appreciable period of time" for him to acclimatize to the new country of residence. See Holder, 392 F.3d at 1015. The Court examined the issue of settled intent before turning to the acclimatization of the child. It indicated that Petitioner must show first that he and Harless shared a settled intent to have LT abandon his residence in Oak Harbor, Washington. Holder, 392 F.3d at 1015. There is no rigid definition of "settled intent," although the Court is instructed to examine the mutual intent of the parents at the time of the translocation and shortly thereafter. Id. at 1017; Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir.2007). The parties and the Ninth Circuit agreed that when the child involved is a young infant, "we look to the subjective intent of the parents, not the children." Hodler, 392 F.3d at 1016. Where the "parents no longer agree on where the children's habitual residence has been fixed, we must look beyond the representations of the parties and consider 'all available evidence.' " (quoting Mozes v. Mozes, 329 F.3d 1067, 1076 (9th Cir.2004)). There are no bright line rules as to when habitual residence changes. Rather, a flexible application of the law to the unique facts of every case has created a continuum. On the one end of the spectrum are cases where "the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move." Mozes, 239 F.3d at 1076. This occurs where "both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country."The Court will usually find abandonment of the habitual residence in favor of the new country, even if one parent's reservations about the move stand in the way of settled intent. On the other end of the continuum "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." The present dispute before the Court fell somewhere in between these cases, though clearly closer to the latter.
The Court observed that the case was similar to Papakosmas, where the Court found a family's relocation from California to Greece did not result in the changed habitual residence of the two children in part because the parents did not appear to share a mutual intent to relocate permanently to Greece. 438 F.3d 617.The court found the four-month move was conditional where the evidence showed the husband was selling the couple's American property without his wife's knowledge, the parents lacked employment in Greece, the husband had an affair in Greece, and the couple continued to operate an American business.The case differs to the extent that both husband and wife moved together, but it shares common elements of deception between the parents as evidence lack of settled intent. It observed that a A Fourth Circuit case, Maxwell v. Maxwell, was hauntingly similar to the present case, and worth an in-depth examination. 588 F.3d 245 (4th Cir.2009). The district court and the Fourth Circuit in Maxwell agreed that Kristina and the children's move to Australia was conditional and experimental, and not a change in habitual residence. Id. at 251.The courts held that there was an absence in parental shared intent to move the children to Australia indefinitely particularly where the parties provided conflicting testimony. Looking beyond representations of the parties, the Fourth Circuit found a lack of settled intent in the absence of marital stability, the retention of ties to the United States, and the lack of stability in the home environment. The Court found these factors relevant to the present dispute and the decision in Maxwell instructive.
Brosselin was unable to show that he and Harless possessed a settled intent to
move to France indefinitely. It was clear that at some point in January 2011, Harless and Brosselin agreed that Harless would travel to France with LT. While Brosselin maintained that the stay was to be indefinite, the record appeared otherwise. Harless's intentions as to where to reside seemed in constant flux. Upon her return to Oak Harbor in 2010, she quickly became engaged to Williams and lived either with her mother or Williams. She appeared only to have reconnected with Brosselin in November 2010, at a time that she appeared to have still been engaged with Williams. Central to Harless's lack of settled intent is an email she wrote to Brosselin on February 12, 2011, five days before her departure. The email captures quite clearly the tentative intent of her trip: "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In addition to the unsettled nature of her relationship with Brosselin and Williams, and the ties she left in Washington, this email shows that Harless's return trip was more an experiment than a commitment to stay in France. Brosselin's testimony at the hearing that Harless was moving for an indefinite period is also undermined by emails he wrote to Pauline on March 9, 2011. He told Pauline that he "absolutely did not expect to see Shannon burst back into my life with LT under her arm, [and] settle into the house for an undetermined period of time...." He also wrote to Pauline that he did not "know what Shannon wants for the long term." The Court did not find credible Brosselin's testimony these emails were entirely false and only intended to protect Pauline's feelings. They were probative of the lack of certainty as to Harless's intent and reflect Brosselin's recognition of this fact. They also showed that Brosselin was still attempting to maintain his relationship with Pauline after Harless arrived in France despite the fact he testified that he was only in love with Harless at this time. Given the parties' disputed testimony, the Court, as in Maxwell, looked to other evidence that makes clear there was no shared intent. Most notably, the record showed that the relationship between Harless and Brosselin was not stable and that there was little stability in the home after Harless's arrival in February 2011. The Court did not find Brosselin's evidence of Harless's intent to remain in France convincing. Based on the record and testimony, the Court did not find a settled mutual intent to relocate to France and change LT's habitual residence. Whatever Brosselin might have wished, Harless lacked any firm commitment to live in France indefinitely. As Brosselin wrote in his emails, Harless changed her mind frequently. Neither Harless she nor Brosselin trusted each other as they both carried on relationships with other persons. Harless lived out of her suitcase, did not become settled, and the relationship was dysfunctional enough to require police intervention. It is difficult for the Court to imagine how a young child such as LT might be settled in such an environment where his parents' mood swings dominated the home environment. The Court thus concluded that LT's habitual residence has not changed from Washington to France because there was no mutual settled intent to move LT to France indefinitely. The Hague Convention did not therefore apply, and the Court dismissed the action.

Walker v Walker, 2011 WL 5008533 (N.D.Ill.) [Australia] [Habitual Residence] [Abandonment and Consent]

In Walker v Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the return of his children to Australia who he claimed were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children. At the evidentiary hearing the Petitioner testified, and Respondent moved for a directed verdict. The court found based on its observations in court of Petitioner's testimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. The Court found that Respondent's testimony was entirely credible.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States.
The Respondent decided to permanently remain in the United States with the
Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children.
Petitioner did not visit the Children after he left the United States in July 2010 and
before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of
the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a
parent could establish a habitual residence of a child by the "wrongful removal and
sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.