Brandt v Caracciolo, 2023 WL 7015680 (Fourth Circuit, 2023) [Sweden][Petition denied[[Wrongful retention not established]

 

[Sweden][Petition denied[[Wrongful retention not established]

 

In Brandt v Caracciolo, 2023 WL 7015680 (Fourth Circuit,2023) the Fourth Circuit affirmed by unpublished opinion (Unpublished opinions are not binding precedent in this circuit.) the denial of the petition of Minna-Marie Brandt (“Appellant”) for return of her minor children to Sweden. It held that the Appellant failed to demonstrate wrongful retention of the minor children in violation of her custody rights.  

Appellant, a Swedish citizen, met Appellee, a United States citizen, in 2015 while Appellee was in Sweden. The two began an on-again, off-again relationship that continued through 2021. Throughout their relationship, the parties sometimes resided together in Sweden. Although they never married, Appellant and Appellee have two children together: a son, S.C., and a daughter, J.C. The children were born in Örebro, Sweden, in 2016 and 2019 respectively, and were Swedish citizens. Until April 16, 2021, the children lived continuously in Sweden with Appellant. Appellee also resided with them intermittently. During this time, the children took a few short trips to visit Appellee’s family in the United States. Appellant maintained sole custody until March 2020, when the parties reached a custody agreement. Appellant agrees the parties held joint custody pursuant to their agreement. On December 30, 2020, social services in Sweden (“social services”) began an investigation into the safety of Appellant’s home and the children’s’ welfare. According to Appellant, social services advised that the children may be moved to foster care. Appellant contends that the parties then discussed Appellee taking the children to the United States for a three-month trip. In contrast, Appellee claims the parties agreed that the entire family would move to the United States and Appellee would obtain citizenship for the children. On April 16, 2021, Appellee and the children traveled to North Carolina, where they have remained. Appellee brought along the children’s passports, as well as most of their clothing and toys. On July 3, 2021, Swedish Social Services sent a letter to the parties stating that “[s]ocial services were planning to place the children in temporary care,” but that the parties had “finally [come] to the agreement that the children could live with [Appellee] and [his] family in the U.S. for some time.” On July 6, 2021, as part of the ongoing custody dispute in Sweden, a Swedish district court entered an “interim decision” confirming that the parties had joint custody of the children, pending resolution of the custody dispute. And while it acknowledged that the children resided with Appellee in the United States, the Swedish district court’s interim order did not require Appellee to return the children to Sweden. Nevertheless, on July 7, 2021, when the children did not return to Sweden, Appellant reported that they had been kidnapped by their father. On July 21, 2021, Appellant filed an application with the Swedish Ministry for Foreign Affairs pursuant to the Hague Convention, seeking return of the children to Sweden. *2 On March 31, 2022, the Swedish district court entered a final order awarding Appellee sole custody of the children and providing Appellant with a right of contact in the form of a weekly call. Thereafter, on July 6, 2022, Appellant filed a petition in the Western District of North Carolina, for return of the children. After considering the evidence, the district court denied Appellant’s petition.

 

Appellant argued that the district court erred by ignoring her joint custody rights and improperly placing exclusive reliance on the March 31, 2022 order from the Swedish district court, which, despite being issued nearly a year after the alleged wrongful retention, awarded Appellee sole custody. However, this is not what the district court did.

 The district court began by correctly identifying “the relevant time period [a]s April through July 2021,” the period when the children traveled to the United States. As this court has explained, “the only reasonable reading of the [Hague] Convention is that a removal’s wrongfulness depends on rights of custody at the time of removal.” White v. White, 718 F.3d 300, 306 (4th Cir. 2013) (emphasis is original). Thereafter, the district court explicitly stated that “[t]he March 2022 custody order is not dispositive as a matter of law on the issue of wrongful retention ... [b]ut the [c]ourt [did] consider that order as evidence.”

While the Hague Convention prevents a person from “insulat[ing] the child from the ... return provisions merely by obtaining a custody order in the country of new residence, or by seeking there to enforce another country’s order,” it does not preclude the court from considering the facts and circumstances surrounding any such order. 51 Fed. Reg. 10494-01, 10504. To the contrary, the Hague Convention expressly permits “the judicial or administrative authorities of the requested State⁷ [to] take account of the reasons for [a decision relating to custody] in applying this Convention.” Hague Convention art. 17, T.I.A.S. No. 11,670, at 5. Moreover, nothing in the Courts precedent prevents the district court from considering the full panoply of circumstances surrounding the alleged retention. This included the March 31, 2022 order. Therefore, the district court did not err in considering the March 31, 2022 final custody order.

 

“Rights of custody” as defined by the Hague Convention arise by: (1) operation of law; (2) judicial or administrative decision; or (3) an agreement having legal effect pursuant to the law of the state of habitual residence of the child prior to the wrongful abduction. 51 Fed. Reg. 10494-01, 10506 (citing Hague Convention, art. 3, T.I.A.S. No. 11,670, at 2). And, pursuant to Article 14 of the Hague Convention, a court “may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of habitual residence” in order to determine whether the removal breached Appellant’s custodial rights. Hague Convention art. 14, T.I.A.S. No. 11,670, at 5. Appellant contended that, as joint custodian of the minor children at the time of retention, Swedish law provides her with the right to “make decisions concerning the child[ren’s] personal affairs,” including determining where the children reside. J.A. 270; Föräldrabalk [FB] [Children and Parents Code] 1983:47 (Swed.). In support, Appellant directed this court to section 14a of the Swedish Children and Parents Code. But nothing in section 14a suggests Appellee violated Appellant’s joint custody rights. Section 14a merely states, “[i]f both parents have custody of the child the court may, on application of one or both of them, decide which of the parents the child is to live with.” Föräldrabalk [FB] [Children and Parents Code] 2006:458 (Swed.). Here, the parties both presented evidence that a Swedish custody dispute and child welfare investigation was ongoing during the time period preceding the purported retention. And to prevent the children from being placed in foster care, the parties agreed that Appellee would take the children to the United States. While the parties dispute the permanency of this stay, Appellant bore the burden of proving that Appellee wrongfully retained the children. She failed to do so.  In reaching its conclusion that Appellant had failed to meet her burden to demonstrate wrongful retention, the district court relied on Appellant’s own testimony that she, as a joint custodian, had consented to the children taking an indeterminate trip to the United States to live with Appellee. Specifically, the district court relied upon Appellant’s testimony at the evidentiary hearing that “it was up to [Appellee] to decide [the departure and return dates] himself.” Thus, by Appellant’s own concession, there was not a meeting of the minds that Appellee would return the children on a specific date -- or at all. “Appellee possessed physical and legal custody of the children at the time of the alleged retention. And since a primary purpose of the Hague Convention is to “preserve the [pre-removal or pre-retention] status quo,” it  concluded that the children indefinitely staying with the joint custodial father, in the United States, was the status quo. White, 718 F.3d at 306 (quoting Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001)). As such, there was no wrongful retention in the first instance.