Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.) [Northern Ireland] [Habitual Residence][Consent] [Wishes of Child] [Petition denied]

    In Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.) the district court denied the Petition of Paula Mary for the return of her ten year-old child, Gregory Patrick Bowen ("Patrick"), to Northern Ireland.

Ms. Bowen, the Petitioner, was Caucasian and a citizen of Northern Ireland, and the Respondent, Mr. Bowen, was an African-American citizen of the United States. Mr. Bowen was unemployed and resided in Pittsburgh, Pennsylvania, where he received Supplemental Security Income  and Patrick's welfare checks. Ms. Bowen lived off welfare and her savings in Northern Ireland. The litigants met in Pittsburgh while Ms. Bowen was working at a Pittsburgh hotel on a visa exchange program. The Bowens married on July 30, 2002, and shortly thereafter moved to Tennessee, where Patrick was born on April 10, 2003. The Bowens moved to Florida, where Mr. Bowen served jail time for cocaine possession. In November of 2005, Ms. Bowen, pregnant with the parties' next child, Chloe, moved back to Northern Ireland, taking Patrick with her. Chloe was then born.   Mr. Bowen traveled to Northern Ireland and they reconciled on September 3, 2007, Ms. Bowen gave birth to their third child, Paul. Ms. Bowen testified that Mr. Bowen was abusive towards her, and that during one episode, Mr. Bowen shouted at her and grabbed her arm, such that she left Mr. Bowen, out of fear, to stay at a women's shelter for about a month. Mr. Bowen testified that he never hit or threatened to hit Ms. Bowen, and that he witnessed approximately seven (7) occurrences when Ms. Bowen hit Patrick on the head.

         Around the summer of 2011, the parties reconciled. Ms. Bowen testified that while the family was together in Northern Ireland, Patrick did not experience any incidents of racism at school. Ms. Bowen also testified that Mr. Bowen exaggerated his experience with racism in Northern Ireland, and explained that she and he conspired with a mutual friend to set up an April 14, 2012 firebombing of Ms. Bowen's vehicle. After she and he
executed this plan, Mr. Bowen claimed that the firebombing was a racist attack,
when instead it was a ploy to get the insurance proceeds from Ms. Bowen's
destroyed car.  

In May of 2012, Ms. Bowen received inheritance money from her mother. Ms. Bowen used this money to buy five (5) one-way plane tickets for her, Mr. Bowen, and their three children, so that the Bowen family could relocate to the United States. Ms. Bowen had a ten-year ban on her visa to enter the United States, which she claimed was due to her overstaying her visa during her previous visit to this country.  Mr. Bowen and Patrick ultimately relocated to the United States. However, Ms. Bowen testified that due to difficulties in her marriage and her visa complications, she ultimately "decided" not to relocate to the United States. Ms. Bowen contended that she never contemplated that Patrick and Mr. Bowen would move to the United States permanently and without her and the remainder of the family. Ms. Bowen expanded upon this premise in her testimony, stating that she wanted Mr. Bowen to stay in Northern Ireland until her visa situation was resolved but Mr. Bowen disagreed, and she did not protest because she was afraid of him.   Mr. Bowen testified that on the day that the Bowens were all supposed to leave Northern Ireland, their travel agent informed them that Ms. Bowen's visa problems persisted. Mr. Bowen contended that he and Ms. Bowen agreed that he and Patrick would depart as scheduled for the United States, where Mr. Bowen would work to resolve Ms. Bowen's visa issues so that the family could reunite. Mr. Bowen also stated that he could not stay in Northern Ireland because his legal immigration status there had expired, and he could not obtain his necessary disability benefits.

    On July 20, 2012, Mr. Bowen and Patrick left Northern Ireland for the United
States, where they moved in with Clara Jones, Mr. Bowen's ex-sister-in-law, and
her husband Ricky Jones, in Pittsburgh, Pennsylvania. After arriving in Pittsburgh, Mr. Bowen swiftly made inquiries about legal representation to resolve Ms. Bowen's visa issue. He paid $500.00 to Attorney Mark A. Goldstein and signed a July 24, 2012 representation agreement with Goldstein and Associates for immigration legal services.   In November of 2012, Ms. Bowen wrote a letter to Mr. Bowen asking that he "do the right thing" and return Patrick to Northern Ireland. However, from the time of Mr. Bowen and Patrick's arrival in Pittsburgh until Mr. Bowen was served with Ms. Bowen's Verified Petition, Mr. Bowen spoke on a weekly basis with Ms. Bowen, and Mr. Bowen testified that he was under the impression that Ms. Bowen and their other children still planned to move to the United States after Ms. Bowen's visa issues were straightened out.

    Mr. Bowen testified that in late May of 2013, he learned that Child Protective
Services in Northern Ireland had allegedly removed the parties' two other children
from Ms. Bowen's care and custody as a result of their youngest child's claims
that Ms. Bowen pushed him down a flight of stairs.

On May 24, 2013, Ms. Bowen filed a Verified Petition seeking the return of Patrick to Northern Ireland, Patrick's alleged habitual residence, pursuant to the Hague Convention. The Court appointed Patricia L. Dodge, an attorney, as Guardian ad Litem for Patrick, to represent his interests as a citizen of the United States in this action.  On December 12, 2013, Ms. Dodge ("GL" ) filed reports as Guardian ad Litem, in which she set forth her assessment of Patrick and Patrick's interests.  During they hearing, Ms. Bowen testified from Northern Ireland via video conference, and Mr. Bowen testified before the Court.

   
The district court found that on July 20, 2012, Mr. Bowen took Patrick with him when he relocated to Pittsburgh from Northern Ireland. Therefore, the alleged wrongful removal took place on July 20, 2012.  The court noted that a child's habitual residence is "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, 63 F.3d at 224. This analysis "considers a child's experiences in and contacts with her surroundings, focusing on whether she developed a certain routine and acquired a sense of environmental normalcy by forming meaningful connections with the people and places she encountered in a country prior to the retention date." Karkkainen, 445 F.3d at 292. Determining a child's habitual residence is a fact-intensive analysis, and "necessarily varies with the circumstances of each case." In re Application of Adan, 437 F.3d 381, 392 (3d Cir.2006). In reaching a habitual residency determination, a court must also consider the "parents' present, shared intentions regarding their child's presence in a particular location." Tsui, 499 F.3d at 272 (citing  Baxter, 423 F.3d at 369)  "Feder requires that we give independent weight to [the] parents' shared intent.  We have held that, in cases involving very young children, the shared intent of  the parents in determining the residence of their children is of paramount  importance and acclimatization is secondary.... Thus, shared parental intent  that a very young child will reside in a new country, even for a limited period  of time, is sufficient to establish the child's habitual residence in that  country. We give somewhat less weight to shared parental intent in cases  involving older children ... who have reached an age where they are capable of  becoming "firmly rooted" in a new country. In such cases, our attention  generally turns first to the child's perspective, not the parents' intent. But  shared parental intent remains relevant to habitual residence in all cases under  the Hague Convention.... When the parents share an intent as to the child's  habitual residence, it must be given some weight. Were a court to exclude shared  parental intent entirely from the habitual residence inquiry, and instead focus solely on a child's contacts and experiences, it would fail to consider whether  a parent is acting unilaterally to alter what was jointly intended or agreed upon. Karkkainen, 445 F.3d at 296.

 Up until Mr. Bowen relocated with Patrick to the United States on July 20, 2012
when Patrick was nine years old, Patrick had lived in Northern Ireland since 2005,
when Ms. Bowen and Patrick moved there from Florida. Patrick had formed meaningful relationships with his mother's Northern Ireland family, was enrolled in school in Northern Ireland, and participated in activities at the Bosco Youth Club in Newry. Until his departure for the United States in 2012, Patrick had lived in Northern
Ireland for the majority of his life, and, from Mr. Bowen's 2006 arrival there, Patrick and his parents had a marked degree of settled purpose in Northern Ireland. While parents' shared intent is not dispositive in wrongful removal or retention cases involving older children, Mr. and Ms. Bowen had a shared intent, up until Patrick finished out the school year at St. Patrick's Primary School in Newry, and left for the United States with Mr. Bowen, that Patrick would reside in Northern Ireland. It followed  that Northern Ireland was Patrick's habitual residence immediately prior to his July 20, 2012 departure for the United States.   Mr. Bowen did not dispute that Ms. Bowen had rights of joint custody under Northern Ireland law.  Mr. Bowen relocated with Patrick to the United States and Ms. Bowen alleged that Mr. Bowen was keeping Patrick in the United States in a unilateral attempt to establish a new residence for Patrick. Mr. Bowen acted in violation of Ms. Bowen's rights of custody under Northern Ireland law. The court also found that Ms. Bowen was exercising her custody rights at the time of Patrick's alleged removal.  The Court found that Ms. Bowen had proven by a preponderance of the evidence that Patrick was wrongfully removed within the meaning of the Hague Convention.

      In her Verified Petition, Ms. Bowen conceded that "[i]t was the intention of
the Petitioner and the Respondent, along with their three (3) children (including
Patrick) to relocate to the United States, and one-way plane tickets were purchased for all five (5) family members."  However, Ms. Bowen claimed that because her visa problem was not solved by the parties' July 20, 2012 anticipated departure date, and because of "difficulties in the marriage," "[Ms. Bowen] ultimately decided not to relocate to the United States." The record reflected that Ms. Bowen and Mr. Bowen did, as Mr. Bowen represented, come to an agreement that Mr. Bowen would go ahead and relocate to the United States with Patrick on July 20, 2012, work to resolve Ms. Bowen's visa issues, and that Ms. Bowen would bring the remainder of the family to the United States when that resolution was reached. Consistent with this plan of action was a  July 24, 2012 Representation Agreement that Mr. Bowen entered into with a Pittsburgh attorney four (4) days after Mr. Bowen's arrival in the United States.  As for Ms. Bowen, instead of altogether cancelling her plan to join Mr. Bowen and Patrick in the United States, Ms. Bowen testified that she postponed the departure date of her one-way plane ticket to September 2012, and did the same for her other children, Chloe and Paul. While these tickets eventually went unused due to the continuing ban on Ms. Bowen's travel to this country, Ms. Bowen's choice to postpone her one-way departure to the United States rather than outright cancel her family's relocation plans strongly demonstrated the reality that the Bowens had come to an agreement that their family would permanently relocate to the United States, with Ms. Bowen's visa ban only temporarily putting a wrench in the family's relocation plans until Mr. Bowen could resolve that visa problem, state-side. Ms. Bowen chose to reschedule all of their one-way tickets for two months later. The Court found that Ms. Bowen consented to Patrick's departure with Mr. Bowen, and the scope of this consent was that Patrick would depart for the United States with his father, as part of the Bowens' ultimate plan to relocate to and unify their family in the United States.

 The court noted that Article 13(a) of the Hague Convention sets forth the defenses of consent and acquiescence, when it provides that even if the court finds that the child has been wrongfully removed or retained, the court is not required to order the return of the child if the respondent establishes that "the person ... having
the care of the person of the child ... had consented to or subsequently
acquiesced in the removal or retention." Hague Convention art. 13(a)."The consent defense involves the petitioner's conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention." Baxter, 423 F.3d at 371. The Court found that Ms.
Bowen's actions demonstrated not only her consent to Patrick's removal, but "a
consistent attitude of acquiescence over a significant period of time."

The Court concluded that there was insufficient record evidence for the Court to conclude that the return of the child to Northern Ireland would "put[ ] the child in imminent danger," nor did the record reveal any "serious abuse or neglect, or extraordinary emotional dependence, when the court in [Northern Ireland], for whatever reason, may be incapable or unwilling to give the child adequate protection."See  Baxter, 423 F.3d at 373.

The Court noted that the GL' s reports on Patrick shed light on Patrick's views on returning to Northern Ireland, and demonstrated that Patrick has attained a degree of maturity at which it was appropriate for this Court to take account of those views. Contrary to his father's testimony, Patrick explained that "he may have seen a little bit [of racism] himself at school but it did not appear to be a significant issue for him."  According to the GL, during her first two visits with Patrick, he actually believed his mother and siblings were coming to the United States in 2014, and "stated that he d[id] not want to live in Northern Ireland, although he would like to visit it again." After the December 2013 evidentiary hearing, the GL visited Patrick again.  Patrick was made aware that his mother and siblings would not be relocating to the United States. It was the GL' s conclusion after her third visit with Patrick that he was sad about this development, and sad about the separation of his family. Nevertheless, the GL stated that Patrick continued to express his desire to stay in the United States.  The GL concluded that Patrick, at 10, "appears to be a young boy of at least average intelligence and maturity," who "understands that his parents are not likely to reconcile and that his mother and siblings are not coming to the United States to live," and acknowledges that he is sad about the disunion of his family but "[r]egardless of these feelings, however, he remains certain that he wants to stay in the United States, a relatively mature stance for a 10-year-old who has not seen his mother or siblings for over a year."  The GL found that Patrick's reasons for not wanting to return to Northern Ireland were "fairly well-grounded in the world of a ten year-old, i.e., that he was born in the United States, that he would be sad if he had to return to Ireland, that he feels closer to his father than his mother and that the racial mix of the population is different in his present environment than it is in Ireland."  The GL concluded that it did not appear that any undue influence was imposed on Patrick in order to shape his desire to stay in this country, and importantly, Patrick has never wavered, either prior to or after learning that his mother was not moving to the United States, in his position from the outset of this litigation that he wants to remain in the United States.  Importantly, the GL noted that Patrick "appears to have considered the short and long term impact of leaving the country of his birth and living with his mother and not his father."

  The Court found that the GL' s conclusions about Patrick's degree of maturity
was consistent with the record as a whole. The district court noted that in its seminal decision on the "wishes of the child" defense, the Tsui court cautioned that a court should not find that such a defense has been established when "it was the passage of time during the years of wrongful retention and litigation of this case that created [the child]'s desire to remain in Pittsburgh," because if the court applied the defense in such a case, "it would encourage parents to wrongfully retain a child for as long as possible." Tsui, 499 F.3d at 280. However, here, the record was  devoid of any indication that the passage of time generated Patrick's desire to remain in the country of his birth, or that the passage of time was going to change or is going to change Patrick's desire to remain in the country of his birth. Patrick's wish to remain in the United States, coupled with Ms. Bowen's actions demonstrating her consent with Patrick's move to the United States with Mr. Bowen, and with Ms. Bowen's acquiescence, at least until her letter to Mr. Bowen in November of 2012, revealed that while Ms. Bowen had established her prima facie case of wrongful removal, Mr. Bowen has proven (when considered separately, and as to the last, in conjunction with one another) the affirmative defenses of consent, acquiescence, and the "wishes of the child," which counseled that the Court deny Ms. Bowen's Verified Petition.