Tuesday, July 3, 2012

Reyes v Jeffcoat, 2012 WL 2428587 (D.S.C.) [Venezuela] [Habitual Residence] [Video Testimony]

In Reyes v Jeffcoat, 2012 WL 2428587 (D.S.C.) the Petitioner, Maritza Meszaros Reyes and the Respondent, Harry Lee Langford Jeffcoat were married and had three children, one of whom was over the age of 16. On January 21, 2012, Petitioner commenced a suit by filing a Verified Petition for Return of Child to Petitioner and for Issuance of a Show Cause Order. Petitioner and Respondent filed divorce proceedings in Venezuela and in the United States, respectively. Both proceedings were stayed while this court decided the issues. Over the course of the trial, the court heard testimony from live witnesses who came from both the United States and Venezuela, witnesses by video conference from Venezuela. The court took in camera testimony from all three children.

The Court found that Petitioner and Respondent were married in Venezuela in 1993. They had three children-an oldest son, born in 1994; a daughter, born in 1996; and a youngest son, born in 2000. All three children had dual citizenship. Petitioner was a citizen of Venezuela. Since 2003, she held a United States Permanent Resident Card (also known as a green card), which she used each time she entered the United States. Respondent was a citizen of the United States. Between 1992 and 2003, he
possessed a Venezuelan resident visa, allowing him to permanently reside in Venezuela. That visa expired in 2003. He had not been authorized to live or work in Venezuela since 2003. Each time Respondent entered Venezuela since 2003, he entered as a tourist and was prohibited from staying in Venezuela for longer than 90 consecutive days. The family resided in Venezuela from 1993 until 2001. The Respondent was employed in Venezuela from 1993 to 2000. The Petitioner remained continuously employed in Venezuela, except for a two-year period beginning in 2001 when the Respondent took a job in South Carolina and Petitioner took a "leave of absence" from her employment. In 2001, the family moved to South Carolina.

Between 2001 and 2011, all three children spent substantial amounts of time in
both the United States and Venezuela. They participated in various activities, including educational, religious, social, musical, and athletic endeavors while present in each country. Since 2006, the Petitioner owned a large apartment in Caracas, Venezuela, and, since 2008, the Petitioner and the Respondent jointly owned a large house in Lexington, South Carolina. Both properties were capable of being a home for the entire family. Between 2006 and 2008, the father and children resided in Lexington, South Carolina. During this time, the children attended school at Heritage Christian Academy in Lexington, South Carolina. The parties' daughter began attending Heritage in the 2005-2006 school year. Both the daughter and the youngest son attended Heritage for the full 2006-2007 and 2007-2008 school years. Beginning in September 2008 and continuing until September 2011, the father and the children frequently traveled between the United States and Venezuela. The father and children never spent more than 90 consecutive days in Venezuela. The only time that they spent more than 90 consecutive days in the United States was from June 9, 2011 until September 12, 2011, the time period immediately preceding the date on which the mother alleged that the wrongful retention began.

Since 2008, the children were home schooled through the South Carolina

Association of Independent Home Schools. Mostly, the children worked on their studies in Caracas, Venezuela; however, educational activities also took place while the children were present in Lexington, South Carolina. Between September 2008 and September 2011, the children regularly traveled between the United States and Venezuela, using their United States passports when entering and exiting Venezuela and the United States. When they entered Venezuela, the children entered as tourists.

In October 2009, the parties renewed the three children's United States passports. The renewal applications for the United States passports listed the Lexington, South Carolina address as the children's permanent address. In May 2011, the parties renewed the daughter's and the oldest son's Venezuelan passports. The renewal applications for the Venezuelan passports listed the Caracas, Venezuela address as the children's current residence. Since 2008, the children were covered by a United States based health insurance plan through the mother's employer. The children's primary pediatrician and dentist were located in South Carolina. The children had received pediatric and dental care in Venezuela. The children's only orthodontist and eye doctor were located in South Carolina. They never received orthodontic or ophthalmologic care in Venezuela. The children indicated that they considered themselves Americans and wished to remain in the United States.

The Court concluded that because only two of the parties' children were under the age of sixteen, it would only make a determination as to whether those two children were wrongfully retained by the Respondent on or about September 12, 2011. It observed that Federal courts have developed a two-part framework to assist in the habitual residence analysis." Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). Under the two-part framework, courts evaluate the following: (1) shared parental intent-whether the parents shared a settled intention to abandon the former country of residence; and (2) acclimatization-whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment. With regard to shared parental intent, federal courts have cautioned that " 'the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence.' "(quoting Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir.2005)). Federal courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence. The question of acclimatization " 'is not simply whether the child's life in the new country shows some minimal degree of settled purpose,' but whether the 'child's relative attachments to the countries have changed to the point where ordering the child's return would now be tantamount to taking the child out of the family and social environment in which its life has developed.' " (quoting Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). With regards to the acclimatization of the children, courts have considered the following: school environment; participation in social activities; the length of stay in the relative countries; and the child's age.

The Court found the facts of the case distinguishable from those of other cases were federal courts have explored the habitual residence of children under the Hague Convention. Because this family was a family of considerable means, many of the factors that federal courts consider in determining habitual residence (both those under shared intent and acclimatization) were unhelpful in the analysis of habitual residence in this case. It was clear from the facts presented that the parties' children had full and active lives in the United States and in Venezuela. The parties had very nice homes in both countries, and the facts show that the children spent considerable time in both places throughout their lives.

The following facts supported the mother's argument that as of September 12, 2011, the parties' children were habitually resident in Venezuela: the mother, the sole provider of the family since 2006, was employed as an attorney in Venezuela and is only licensed to practice in Venezuela; between September 2008 and September 2011, the children completed the majority of their homeschool activities while physically located in Venezuela; and * between September 2008 and September 2011, the children's time in the United States was during times traditionally considered holiday/vacation. The following facts supported the father's argument that as of September 12, 2011, the parties' children were habitually resident in the United States:
the children lived and attended school in South Carolina from 2006 to September  2008; the children participated in a South Carolina homeschool curriculum; the father was prohibited from remaining in Venezuela for more than 90 consecutive days; since 2008, the children always entered Venezuela as tourists using their United States passports; and the children's primary pediatrician and dentist were located in South Carolina, and the children's only eye doctor and orthodontist were located in South Carolina.

In balancing all of the facts, this court resolved the issue of habitual residence in favor of the father and found that since approximately 2006, the children's habitual residence had been the United States. Importantly, although the children stayed in Venezuela for an appreciable period of time from September 2008 to September 2011, they continued to travel in and out of Venezuela as tourists using their American passports. Also, their father, who administered their homeschool lessons, entered Venezuela as a tourist and was prohibited from staying in Venezuela for more than 90 days at a time. As such, neither the father nor the children were ever present in Venezuela for 90 consecutive days or more during the three-year period from September 2008 to September 2011. It may have been the mother's intent for her family to move to Venezuela in September 2008; however, the father did not share her intent, and the children's pattern of travel and their activities from September 2008 to September 2011 were not sufficient to establish Venezuela as their new habitual residence. Thus, from September 2008 to September 2011 the habitual residence of the children remained the United States.

Accordingly, the court found that Petitioner had not proven a prima facie case of wrongful retention and denied the petition.

Redmond v Redmond, 2012 WL 2368800 (N.D.Ill.) [Ireland] [Habitual Residence]

In Redmond v Redmond, 2012 WL 2368800 (N.D.Ill.) Derek Redmond filed a petition for the return of his son ("JMR") to Ireland. Ms. Redmond was born in the United States on December 24, 1977. Although a United States citizen, Ms. Redmond testified that she also held citizenship in Ireland, where her father was born. Mr. Redmond was born in Ireland on June 14, 1975. In 1996, at the age of nineteen, Ms. Redmond went to Ireland and attended college. Around this time, she began an intimate relationship with Mr. Redmond. Mr. Redmond and Ms. Redmond never married. Ms. Redmond received her Irish Associates Degree in 1998, and continued to live in Ireland until November 2007. In 2006, the parties, who were living together, conceived a child. They agreed that the child should be born in the United States. On March 28, 2007, JMR was born in Blue Island, Illinois. Mr. Redmond was present for JMR's birth and was listed as the father on JMR's United States birth certificate. On April 8, 2007 the parties returned with JMR to their common residence in Ireland. From his birth until November 2007, JMR lived with both of his parents in Ireland. During this time, Mr. and Ms. Redmond shared the intent that JMR be raised in Ireland. By November 10, 2007, however, the relationship soured and Ms. Redmond "changed her intent as to where she wanted to live and where JMR should be raised. Respondent informed Petitioner personally of her intent to return permanently to the United States on November 10, 2007.". Mr. Redmond has never changed his intent that JMR be raised in Ireland. On
November 10, 2007, Ms. Redmond took JMR to Illinois. Ms. Redmond returned to Ireland with JMR in February 2008 for a period of about two months.

On March 25, 2008, Mr. Redmond filed a petition in the Irish district court seeking  legal guardianship and custody of JMR and the matter was set for hearing on April 17, 2008. At the time he filed the petition, Ms. Redmond and JMR were in Ireland. After learning that they were planning to leave Ireland, Mr. Redmond obtained an ex parte Order preventing them from doing so. Pursuant to that Order, the Irish National Police stopped Ms. Redmond and JMR from departing Ireland on April 8, 2008. Mr. and Ms. Redmond were represented by counsel throughout the Irish proceedings. On April 17, 2008, Ms. Redmond attended the hearing and moved to set aside the April 8 Order. Her motion was denied and she appealed. On April 22, 2008, the appellate court ruled in her favor, setting aside the April 8 Order. The Order noted that Ms. Redmond had agreed to return to Ireland for a future hearing. On April 23, 2008, Ms. Redmond left with JMR for Illinois. On June 25, 2008, the Irish district court ruled that it did not have jurisdiction over Mr. Redmond's application for guardianship and custody because JMR had been removed to the United States. Mr. Redmond appealed and a hearing was set for July 29, 2008. On July 23, 2008, Mr. Redmond obtained an ex parte Order requiring Ms. Redmond to appear with JMR at the July 29 hearing. At the hearing, neither Ms. Redmond nor JMR appeared. The Irish appellate court found that it had jurisdiction to consider Mr. Redmond's application for guardianship and custody. Ms. Redmond subsequently appealed to the Irish High Court. The High Court heard the matter on November 18, 2008, and issued judgment on November 26, 2008, ruling against Ms. Redmond. Ms. Redmond conceded in January 2009 that the Irish courts  had jurisdiction to hear Mr. Redmond's custody application.

In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to permanently relocate with her to the United States. On February 10, 2011, the Irish court, after a hearing, denied Ms. Redmond's application to relocate JMR to the United States and granted Mr. Redmond guardianship and joint custody of JMR. The Order directed Ms. Redmond not to make any application to any court outside the State in respect of JMR; not to remove JMR to a third country"; and "to live within a reasonable distance of Ballymurphy bearing in mind the Court's order that JMR
should attend Ballymurphy National School. The court also directed the parties to "share access to JMR on a 50/50 basis.

In response to the February 10 Order, Ms. Redmond requested leave of court to return to the United States for a short period in order to settle her affairs. The Irish court granted her request on the condition that she promise to: (1) return to Ireland with JMR no later than March 30, 2011; (2) not to apply to another court for custody; (3) terminate her employment in Illinois; (4) move to County Carlow, Ireland, and live within a reasonable distance of Ballymurphy National School; (5) have JMR attend Ballymurphy National School; (6) share custody with Mr. Redmond on an every-other-day basis; and (7) purchase a plane ticket for JMR's return trip to Ireland within seven days of her return to the United States. Ms. Redmond conceded that she made each of these promises under oath, and that she never intended to keep any of them. Ms. Redmond ailed to comply with all of the above sworn promises. Ms. Redmond admitted this at the June 8, 2012 evidentiary hearing.

On February 15, 2011, Ms. Redmond returned with JMR to Illinois. On March 23,  2011, she retained Illinois counsel and filed a petition for award of sole custody in the Circuit Court of Cook County, Illinois. Ms. Redmond did not return with JMR to Ireland on March 30, 2011. On May 10, 2011, the Irish court issued an Order requiring Ms. Redmond to produce JMR on June 30, 2011. The Irish court further declared that the retention of JMR in the United States after March 30, 2011 was wrongful within the meaning of Article 3 of the Convention. When Ms. Redmond failed to personally appear on June 30, the Irish court issued an Order directing that Ms. Redmond be attached and brought before the court to answer for her failure to comply with the promises that she made in February 2011. On July 27, 2011, the Circuit Court of Cook County denied Ms. Redmond's petition for custody, finding that the Irish courts had jurisdiction over the underlying custody issues. At the June 8, 2012 evidentiary hearing, Ms. Redmond testified to learning, that morning, of an outstanding warrant for her arrest in Ireland based on her failure to comply with the custody order.

The District Court observed that the Hague Convention does not define the term habitual residence," but rather regards it as a question of fact. Koch v. Koch. 450 F.3d  703, 712 (7th Cir.2006). The determination of 'habitual residence' is to be based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them. Avila, 538 F.3d at 583. The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for 'the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time 'immediately before the removal or retention.'" Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir.2010). The Court found that the date of the alleged wrongful retention was March 30, 2011, the date upon which JMR's retention in Illinois first violated Irish law. The Court had to decide whether JMR was a habitual resident of Ireland immediately prior to March 30, 2011 and did not consider the events in JMR's life after March 30, 2011. In determining habitual residence, the Court first examines the shared intent of the parents. Koch, 450 F.3d at 715; see also Gitter v. Gitter, 396 F.3d 124, 133 (2d. Cir.2005) In nearly all of the cases that arise under the Convention ... the parents have come to disagree as to the place of the child's habitual residence. It then becomes the court's task to determine the intentions of the parents as of the last time that their intentions were shared.". This examination is especially relevant in cases involving young children such as JMR. See Koch, 450 F.3d at 713 ("In the case of young children, the court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence.").

The Court noted that Mr. and Ms. Redmond, unmarried, had an intimate relationship for over ten years and maintained a home in Ireland. Ms. Redmond was born in the United States, but at the time of her pregnancy with JMR, had lived in Ireland for a decade. While JMR was also born in the United States, Mr. and Ms. Redmond immediately returned with him to Ireland when he was only eleven-days-old. The parties lived together with JMR in Ireland until November 2007. The quick return with JMR to their home in Ireland after his birth evidences the parents' shared intent that JMR reside in Ireland. Therefore, at least initially, JMR's habitual residence was in Ireland. Since November 2007, the parties have not maintained a shared intent as to the location of JMR's habitual residence. The question before the Court, therefore, was  whether JMR's habitual residence has changed from Ireland to Illinois. 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 one end 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 v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001). On the other end "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." "In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence." The present dispute fell much closer to the latter end.

Ms. Redmond's actions revealed that she was fully aware that JMR's status in Illinois has always been contingent on the Irish custody proceedings. Both Mr. and Ms. Redmond vigorously litigated their cases before the Irish courts. Ms. Redmond was represented throughout the Irish custody proceedings and fully participated in them, frequently traveling with JMR to Ireland for court dates. Ms. Redmond was well aware that Mr. Redmond was seeking guardianship and custody rights of JMR in Ireland. In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to relocate with her to the United States. Although she may have hoped to move permanently to Illinois, Ms. Redmond also recognized that Ireland would have the ultimate say. For his part, Mr. Redmond never wavered that Ireland is JMR's habitual residence, as he filed for custody and guardianship shortly after Ms. Redmond first left. These circumstances weighed against a finding that JMR's habitual residence changed from Ireland to Illinois. JMR's status in Illinois-as evidenced by the conduct of both parties-has always been "contingent" or "temporary," and has never been "settled." Ms. Redmond acknowledged so much when she met with the Irish community welfare officer on March 12, 2008, when she petitioned the Irish courts to allow JMR to relocate with her to the United States in January 2009, and when she promised the Irish court in February 2011 that she would return with JMR to Ireland by March 30, 2011.

The next question was whether acclimatization should suffice to establish a change in JMR's habitual residence. Courts will often consider a child's habitual residence to be "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder. 63 F.3d 217, 224 (3d. Cir.1995). Under this framework, if JMR had become "acclimatized to the new environment to such a  degree," then he can become "a habitual resident of the new country despite the parents' shared intentions." Koch. 450 F.3d at 714. Ms. Redmond contended that JMR's life in Illinois from November 2007 through March 30, 2011, changed his habitual residence from Ireland to Illinois. Ms. Redmond testified that JMR had a pediatrician and dentist in Illinois and that she placed him in KinderCare from the age of two-and-a-half through three-and-a-half. She further testified that JMR went with her (or her parents) to St. Michael's church, had play dates with his friends, and frequently interacted with his large extended family in Illinois. Ms. Redmond noted that JMR spent approximately ten-and-a-half weeks in Ireland between November 2007 and February 2011, but that these returns were (with the exception of the first) all for court dates.

While these facts, coupled with the passage of nearly three-and-a-half years of very early childhood, suggested that JMR was happy and well-adjusted to his life in Illinois, such a finding was not dispositive of habitual residence in this case. The Ninth Circuit has cautioned that despite the superficial appeal of focusing primarily on the child's contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Ms. Redmond unilaterally removed JMR from his original habitual residence in Ireland. Shortly thereafter, Mr. Redmond initiated custody proceedings to get JMR back. Indeed, what makes this case unique is Mr. Redmond's vigorous (and thus far successful) pursuit of his custody rights for nearly the entire duration of JMR's life in Illinois. As properly recognized by the Irish courts as well as the Circuit Court of Cook County, this is an Irish custody dispute, the merits of which have been, and should continue to be, adjudicated in Ireland. Ms. Redmond's flight to Illinois-which was only permitted in the first place because she promised under oath to return to Ireland-is

precisely the conduct that the Convention is designed to prevent.

The Court found that JMR's habitual residence was and still is in Ireland.

The Irish courts granted Mr. Redmond joint custody rights on February 10, 2011. While Ms. Redmond was granted leave to settle her affairs in the United States, she was ordered to return to Ireland with JMR by March 30, 2011, in order to share custody of JMR with Mr. Redmond "on a 50/50 basis." While ostensibly settling her affairs, she filed suit in the Circuit Court of Cook County. Ms. Redmond never returned to Ireland with JMR, and thereby breached Mr. Redmond's custody rights under Irish law.

Once a petitioner has established that he or she has custody rights under the laws of the country of habitual residence, courts 'liberally' find the exercise of those custody rights." Mr. Redmond exercised or attempted to exercise his custody rights since March 25, 2008, the date he initiated the Irish custody case. Mr. Redmond continued to actively pursue those rights through the instant petition under the Convention. Through his past and continued legal efforts, Mr. Redmond has established that he would have exercised his custody rights but for JMR's retention in Illinois. Mr. Redmond established, by a preponderance of the evidence, that as of March 30, 2011, JMR was wrongfully retained in Illinois, in violation of the Convention.

Mr. Redmond's petition for the return of JMR to Ireland was granted.