In Crane v
Merriman, 2017 WL 4079406 (W.D. Oklahoma, 2017) the district court granted the
Petition by the father for the return of the children to New Zealand.
The district
court found that parties lived together in Auckland, New Zealand, in a domestic
partnership which produced two children, A.E.C. who was born in August 2013,
and R.F.A.C., who was born in September 2016. Both children were dual citizens
of New Zealand and the United States. In April 2016, the parties decided to end
their domestic partnership. Ultimately they agreed that Merriman would depart
New Zealand with the children after Christmas 2016. Until her departure,
Merriman had resided in New Zealand for about fifteen years. The children
resided with both parents in New Zealand following their births. The oldest,
A.E.C., was three years old when she left for the United States with Merriman;
the youngest, R.F.A.C., was a little over two months old. Between April 2016
and December 2016, the parties agreed to, and executed, an agreement for
property division and an agreement regarding the custody and care of the
children. The Custody and Access Agreement executed in November of 2016 made
clear that the parties would continue to be joint guardians of the children and
share custody. The Custody Agreement provided that Merriman would “initially”
have “primary care” of the children, subject to a specific plan for visitation
by Crane during the period of 2017-2020 , as well as alternating residences
over Christmas, with Christmas 2017 to be spent in New Zealand. The Custody
Agreement stated that “no attempt will be made to overturn this agreement in
the United States,” and provided that any review of the Agreement will be
subject to “New Zealand law and jurisdiction.”
It included a provision reflecting Crane’s consent to the children
relocating to the United States with Merriman, this provision appearing
immediately after the provision stating that Merriman will “initially have
primary care of the children ....”. It provided for visitation by Crane in New
Zealand for two months in 2017, and that such visit to New Zealand will take
place “as agreed in the period from the end of May to the end of August ... or
as mutually agreed by both parties.” In mid-April 2017, Merriman asked Crane to
agree to delay the planned visitation until July, to which he assented. The
purpose of the delay was to accommodate Merriman’s job search in Oklahoma. On
June 29, 2017, Merriman caused to be filed in the District Court of Oklahoma County
a Petition for Paternity, Custody, Visitation and Child Support, seeking sole
custody of the children. Merriman did not return with the children as
previously agreed, and had Crane served with the Oklahoma state court Petition
in early July 2017.
The district court found that Merriman’s
desire to obtain a court order in Oklahoma regarding custody of the children
before returning them to New Zealand illuminated an underlying intent to avoid
the parties’ New Zealand Custody Agreement, and was precisely the type of
conduct the Hague Convention and ICARA seeks to prevent.
The district court found that Crane established
by a preponderance of the evidence that (1) the children habitually resided in
New Zealand at the time of the retention. It noted that Courts in this circuit,
adopting the approach implemented by the First, Fourth, and Fifth Circuits,
have stated that “[i]n determining a child’s habitual residence, [the court]
looks first to the shared intent or settled purpose of the persons entitled to
determine the child’s permanent home; as a secondary factor, [it] may consider
the child’s acclimatization to his or her current place of residence.” Mertens
v. Kleinsorge-Mertens, 157 F. Supp. 3d 1092, 1103 (D.N.M. 2015). This approach
is consistent with a prior unpublished decision from the Tenth Circuit, which
states: “[a]lthough it is the child’s habitual residence that the court must
determine, in the case of a young child the conduct, intentions, and agreements
of the parents during the time preceding the [retention] are important factors
to be considered.” Kanth v. Kanth, No. 99-4246, 2000 WL 1644099, at *1 (10th Cir.
Nov. 2, 2000) (unpublished).
The Court found
that, prior to their retention in the United States, the children habitually
resided in Auckland, New Zealand. At birth, both children resided with the
parties in New Zealand. A.E.C. resided with the parties for over three years in
New Zealand; R.F.A.C. was a little more than two months old when he departed
New Zealand with Merriman. Although the children had been in Oklahoma for nine
months, had Merriman abided by the Custody Agreement, two out of the nine
months would have been spent in New Zealand. Moreover, it was a stretch to
contend, as Merriman did, that the Custody Agreement reflected a mutual intent
to permanently relocate the children to Oklahoma, and thus establish Oklahoma
as the place where they habitually reside as those terms are used in the
Convention. A more consistent and sensical reading of the Custody Agreement was
that it sought to preserve the children’s ties to New Zealand, in that it
acknowledged the children’s strong ties to that country, and established a
50/50 residential regime as between Oklahoma and New Zealand for each child
beginning at age six – two years from now for A.E.C. In any event, the Court
found that, absent an expression of mutual intent to establish Oklahoma as
their new permanent residence, presence here for nine months, under the
circumstances of this case, was insufficient to support a finding that the
children have acclimatized here and habitually reside in Oklahoma as opposed to
New Zealand. Thus, the Court found that Crane has established the first element
of his prima facie case by a preponderance of the evidence.
The Court found that Crane established wrongful
retention of the children in Oklahoma in violation of his custodial rights and
that Crane was exercising his joint guardian at the time of the wrongful
retention. It rejected the defense
advanced by Merriman that Crane consented to the relocation of the children in the
Custody Agreement, and otherwise acquiesced in the relocation by agreeing to
delay the visitation called for in the Agreement and assisting Defendant in the
purchase of her home in Oklahoma. The evidence wass clear that Crane’s
agreement to include relocation of the children to Oklahoma in the Custody
Agreement was made in the context of the Agreement as a whole, which provided
for extensive involvement and visitation by Crane until the children reach the
age of six, and then required a 50/50 residential split between New Zealand and
Oklahoma.
