In Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) Petitioner Oleg Yuriyovich Khalip (Petitioner) sought the return of his two minor children, claiming that the children's mother, Respondent Alla Viktorivna Khalip, a/k/a Alla Viktorivna Galkin, (Respondent), wrongfully removed them from the Ukraine to Michigan. Petitioner was born in 1964 in the Ukraine and was a citizen and resident of the Ukraine since his birth. Respondent was born in 1977 in the Ukraine. She was a native and citizen of the Ukraine, where she resided until June 11, 2010. Petitioner and Respondent were married on January 25, 2002. Their two children were born in the Ukraine; IOK in 2002 and KOK in 2003. On November 20, 2009, Petitioner and Respondent divorced; a custody agreement was not reached during the divorce proceedings. On May 11, 2010, Petitioner signed a notarized application, which gave consent to Respondent to permanently move IOK and KOK to the United States. On June 1, 2010, Petitioner signed a notarized application revoking his consent because, according to Petitioner, Respondent breached an oral agreement related generally to the upbringing of the children and their permanent residence after the age of 16. According to Petitioner, he personally served the revocation application on Respondent on June 8, 2010. In support, he proffed three affidavits from witnesses who said that they overheard the conversation between Petitioner and Respondent. Respondent disputed that she was ever served with Respondent's revocation. On June 10, 2010, Respondent moved to Michigan with IOK and KOK, where they permanently resided since. According to Petitioner, Respondent picked up the children from school on June 10, 2010, and secretly took them to Michigan without Petitioner's knowledge. According to Respondent, Petitioner agreed to the move. Respondent asserted that upon their arrival in Michigan, she provided Petitioner with telephone and email contact information. She said that the children had regular contact with Petitioner via phone and video chat and that Petitioner visited them twice in Michigan within two months. Petitioner did not admit or deny the visits. On June 14, 2010, Respondent remarried to Leonardo Alex Galkin (Galkin). Respondent, Galkin, and the two children now lived together in Ann Arbor, Michigan.
The Court observed that under Ukrainian law, each spouse has equal rights and obligations in the marriage and family. Article 51, Ukraine Constitution. The Family Code of Ukraine establishes the equal rights and duties of the parents with regard to a child whether they were married or not. Article 141, Ukraine Family Code. Particularly, a divorce does not influence on the extent of the parental rights and duties. A child's residence under the age of ten shall be determined by the consent of his or her parents. Article 160, Ukraine Family Code. If a mother and a father who live separately have not come to agreement in the question where the minor children should live, their dispute may be resolved by a court. Article 161, Ukraine Family Code. Finally, if one of the parents or any other person willfully, without consent of another parent or another persons, with whom the minor child lived according to the law or by the court decision, change the place of his or her residence, also by means of abduction, a court, upon application of the interested person, has the right to deliver immediately the decision on depriving the child and his or her return to the last place of residence. Article 162, Ukraine Family Code.
On July 7, 2010, a Ukraine district court entered a decision in response to Petitioner's consent revocation application, which certified Petitioner's revocation and held that Respondent had illegally taken the children without Petitioner's consent. The Ukrainian appeals courts affirmed the lower court's decision, after which the Ukranian district court ordered immediate taking of the children. On February 2, 2011, Respondent appealed to the Highest Specialized Court of Ukraine. The high court accepted the appeal, effectively staying the lower court's rulings.
On September 3, 2010, Petitioner filed the petition. On March 9, 2011, the Court heard oral argument on the petition. On March 23, 2011, the Court interviewed the children in chambers. Each articulated the reasons that they do not want to return to the Ukraine: generally, because they recalled that the Ukraine was dirty and preferred the United States, which they said was cleaner and bigger. KOK stated that she did not want to be without her mother. Petitioner moved the Court to appoint an independent psychologist to interview the children, and the Court ordered a psychologist to "determine and report to the Court and both parties whether or not the children have attained an age and degree of maturity for the Court to take account of their views." If the answer to the first question was "yes," the psychologist was further ordered to "determine and report the children's views regarding returning to the Ukraine to live." The psychologist's report was filed with the Court, and both parties, on April 19, 2011. In response to the Court's first question, the psychologist stated: In my professional opinion, speaking as a psychologist, neither child (IOK or KOK) is at his or her present age and stage of cognitive and emotional development capable of conducting a mature (in the sense of: thoughtful, rational, and reasonably balanced and comprehensive) analysis of his or her own best interests with respect to the question of returning to live in the Ukraine with their father.
Respondent conceded that the Ukraine, where the children were born and had always lived, was the habitual residence of the children prior to their removal. To demonstrate that he was exercising valid custody rights at the time the children were removed to Michigan, Petitioner, inter alia, cited his consent revocation application and the decisions from the Ukraine district and appellate courts, which certified the revocation and ordered the children's return. Respondent said she did not wrongfully remove the children because Petitioner consented to the children's permanent change of residency, relying on the May 11, 2010, consent application. She asserted that she was not aware of Petitioner's June 1, 2010, revocation at the time that she moved with the children on June 10, 2010. Based on the evidence, particularly the consent revocation document, which was notarized before Respondent moved with the children, the court held that Petitioner submitted sufficient evidence to show that at the time the children were removed he was exercising his custody rights. Further, the surreptitious nature of Respondent's move with the children--without Petitioner present and executed in an unplanned manner by picking up the children from school without the Petitioner's knowledge or that of the children's caretaker--weighed in favor of Petitioner's assertion that Respondent moved without his consent. Finally, even if Respondent was not aware of the revocation, it did not take away from the fact that Petitioner exercised his rights by expressly revoking his consent in a notarized writing, which he then filed in the Ukranian courts for certification. This was not a case where Petitioner simply changed his mind. Thus, Petitioner established by a preponderance of the evidence that the children were wrongfully removed.
Respondent argued that Petitioner consented to the removal when he signed the consent application, and that he subsequently acquiesced in the removal of the children when he visited them in Michigan on two occasions. In response, Petitioner argued that he did not consent to the children's removal and again profferred the consent revocation document and the Ukranian district and appellate court decisions to support his assertion. On balance, the evidence weighed in Petitioner's favor. Particularly, the consent revocation document and the Ukranian district and appellate court decisions persuaded the Court that Petitioner was actively exercising his custodial rights before and after the children were removed. Also, the manner in which the children were removed supported the inference that Petitioner did not consent to the children's removal. Petitioner's visits to Michigan and communication over email and through video chat failed to demonstrate that he acquiesced in the removal. The Court also found that IOK and KOK had not reached the requisite level of maturity that a Court should consider their views. Accordingly, the Court found that the age and maturity defense did not apply.
The Petition was granted and it was ordered that the parties' children, IOK and KOK, be returned to the Ukraine, pursuant to the Convention and ICARA. However, in light of Respondent's May 13, 2011, supplemental filing, submitted on the eve of the Court's decision, the Court stayed the effectiveness of this decision for 30 days. The Court recognized that the July 7, 2010, decision from a district court in the Ukraine, which ordered the immediate return of the children appeared to have been effectively stayed by the Highest Specialized Court of Ukraine. In the Ukraine, "High Specialized Courts shall consider cassation complaints of respective court jurisdiction; analyze, study, and cumulate court practice; assist lower courts to ensure identical application of Constitutional norms and laws in court practice; perform other functions." Martindale-Hubbell Law Digest, Ukraine, 11 (2008). The Highest Specialized Court of Ukraine "ruled": (1) [t]o start cassation proceedings, concerning the claim of [Petitioner] towards [Respondent] ... concerning separation of the children, their return to the permanent place of residence to Ukraine and determination of the place of residence of the children with [Petitioner]"; (2) [t]o suspend execution of decision of Leninskiy district court of Zaporizhya city dated July 07, 2010 till termination of the cassation proceedings of the case"; (3) "[t]o demand the mentioned civil case from Leninskiy district court of Zaporizhya city"; and (4) "[t]o send the copies of the cassation appeal and the enclosed materials of the case to the persons who participate in the case[,] to explain their right to file an objection to cassation appeal till May 20, 2011."
Based on the above ruling, the nature of the future proceedings in the Ukraine courts was not altogether clear. As it related to the present petition, under Article 15 of the Convention: judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. The Court should also consider the "length of time it will take to obtain the required documentation." Hague International Child Abduction Convention; Text and Legal Analysis, Department of State, March 26, 1986, at 14-15. In the interest of comity, the Court gave considerable weight to the Ukraine court decisions in deciding whether the children were wrongfully removed and should therefore be returned to Petitioner; the Highest Specialized Court's decision is no different. On the other hand, the Court has an obligation under the Convention to make an expeditious decision. With these conflicting considerations in mind, effectiveness of this decision was stayed for 30 days to allow the parties the opportunity to further illuminate the status of the legal proceedings in the Ukraine, including the time it will take the courts in the Ukraine to resolve the pending proceedings.
Showing posts with label Library of Hague Cases. Show all posts
Showing posts with label Library of Hague Cases. Show all posts
Monday, May 23, 2011
Thursday, May 12, 2011
Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) [Israel] [Habitual Residence]
In Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) the Eight Circuit reiterated the rule it established in Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir.2010) and Silverman v. Silverman, 38 F.3d 886, 897 (8th Cir.2003) (en banc) that the factors relevant to the determination of habitual residence include "the settled purpose of the move from the new country from the child’s perspective....", rejecting the approach of the Ninth Circuit.
Michelle, a dual citizen of the United States and Israel, met Martin, on a visit to Israel in 2000. He was a dual citizen of Israel and Canada. Michelle moved from the United States to Israel with her two children. Martin and Michelle were married in a religious ceremony in Israel. Their son DJ was born in 2003. In 2005 Michelle was accepted in a doctoral program at Iowa State University, and Martin signed a document consenting to her traveling to Iowa with DJ "for as long as she is enrolled in her PhD studies." Martin characterizes the document as memorializing a mutual agreement that Michelle and DJ would return to Israel as soon as her studies ended. Michelle denied there was such an agreement, and only Martin signed it. The document did not specify what would happen after Michelle's studies ended. In August 2005 Michelle moved to Iowa with her older children and DJ, who was then two. Martin followed in October 2005, after closing his taxi business in Israel. Michelle filed for divorce in October 2007 although she did not serve Martin with any papers. Martin returned to Israel in February 2008. At that time he believed Michelle would soon follow him there with the children. Shortly after Martin left the United States, Michelle proceeded with the divorce and requested temporary custody of DJ. During divorce proceedings, Michelle revealed that she would return to Israel with DJ and her other children only if she could find work there in her field.
Martin brought an action in the district court for DJ's return to Israel under ICARA. The district found after trial that DJ habitually resided in the United States. It found DJ had "considerable connections with his current [Iowa] environment." At the time DJ was seven years old and had been living in Iowa since he was two. He had visited Israel once when he was three. DJ had finished one year of kindergarten in Iowa and had celebrated holidays with Michelle's family in Des Moines. In sum, the district court found that DJ had acclimated to Iowa. Regarding the intentions of DJ's parents, the district court found that the couple had intended to make Iowa DJ's habitual residence, at least during Michelle's studies, even though they planned to return to Israel eventually. Based on its findings it denied Martin's petition. The Eighth Circuit affirmed.
On appeal, Martin argued that the district court gave insufficient weight to the parties' intention to return to Israel after Michelle graduated. The Eight Circuit pointed out that in Barzilay, supra, it explained that "factors relevant to the determination of habitual residence [include] 'the settled purpose of the move from the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.' " Settled purpose "need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' " It concluded that from the perspective of the child, who had lived in Missouri for five years, the settled purpose of the family's move was to remain there permanently despite an agreement by the parents to move the whole family to Israel should either spouse return. Here, the district court found that from DJ's perspective, the settled purpose of his relocation to Iowa was to reside there habitually. In reaching this decision, the court relied on Barzilay and a Third Circuit case discussing the element of settled purpose, Whiting v. Krassner, 391 F.3d 540 (3rd Cir.2004). Whiting held that settled purpose does not require an intention to stay in a new location forever. Rather, one's "purpose while settled may be for a limited period," and education could prompt such a move.(quoting In re Bates, CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).
Martin argued that the district court gave too much weight to DJ's perspective in considering the move's "settled purpose" and too little to the Sterns' intent to return to Israel after Michelle finished her degree. He argued that the Court should focus on the parents' intention to return to Israel rather than on DJ's acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), a Ninth Circuit case that did not consider the settled purpose concept "very useful" which held, in contrast to its decisions in Barzilay and Silverman, that without "settled parental intent, courts should be slow to infer from [a child's] contacts that an earlier habitual residence has been abandoned." The Eighth Circuit rejected this approach, pointing out that the settled purpose of a child's move must be viewed from the child's perspective, and observing it had been rejected by the Sixth Circuit, which characterized it as having "made seemingly easy cases hard and reached results that are questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007). It held that the child's perspective should be paramount in construing this convention whose very purpose is to "protect children," and declined to adopt a framework that would contradict its own precedent and frustrate the Convention's goal of 'deter [ring] parents from crossing borders in search of a more sympathetic court.
The record here favored Iowa as DJ's habitual residence whether the Court emphasized DJ's perspective or that of his parents. The district court found that the parties' intent at the time of the move was to make Iowa DJ's habitual residence. It did not clearly err in doing so. The Court concluded that under the Hague Convention "the court must focus on the child, not the parents, and [must] examine past experience, not future intentions," Silverman, 338 F.3d at 898.
Michelle, a dual citizen of the United States and Israel, met Martin, on a visit to Israel in 2000. He was a dual citizen of Israel and Canada. Michelle moved from the United States to Israel with her two children. Martin and Michelle were married in a religious ceremony in Israel. Their son DJ was born in 2003. In 2005 Michelle was accepted in a doctoral program at Iowa State University, and Martin signed a document consenting to her traveling to Iowa with DJ "for as long as she is enrolled in her PhD studies." Martin characterizes the document as memorializing a mutual agreement that Michelle and DJ would return to Israel as soon as her studies ended. Michelle denied there was such an agreement, and only Martin signed it. The document did not specify what would happen after Michelle's studies ended. In August 2005 Michelle moved to Iowa with her older children and DJ, who was then two. Martin followed in October 2005, after closing his taxi business in Israel. Michelle filed for divorce in October 2007 although she did not serve Martin with any papers. Martin returned to Israel in February 2008. At that time he believed Michelle would soon follow him there with the children. Shortly after Martin left the United States, Michelle proceeded with the divorce and requested temporary custody of DJ. During divorce proceedings, Michelle revealed that she would return to Israel with DJ and her other children only if she could find work there in her field.
Martin brought an action in the district court for DJ's return to Israel under ICARA. The district found after trial that DJ habitually resided in the United States. It found DJ had "considerable connections with his current [Iowa] environment." At the time DJ was seven years old and had been living in Iowa since he was two. He had visited Israel once when he was three. DJ had finished one year of kindergarten in Iowa and had celebrated holidays with Michelle's family in Des Moines. In sum, the district court found that DJ had acclimated to Iowa. Regarding the intentions of DJ's parents, the district court found that the couple had intended to make Iowa DJ's habitual residence, at least during Michelle's studies, even though they planned to return to Israel eventually. Based on its findings it denied Martin's petition. The Eighth Circuit affirmed.
On appeal, Martin argued that the district court gave insufficient weight to the parties' intention to return to Israel after Michelle graduated. The Eight Circuit pointed out that in Barzilay, supra, it explained that "factors relevant to the determination of habitual residence [include] 'the settled purpose of the move from the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.' " Settled purpose "need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' " It concluded that from the perspective of the child, who had lived in Missouri for five years, the settled purpose of the family's move was to remain there permanently despite an agreement by the parents to move the whole family to Israel should either spouse return. Here, the district court found that from DJ's perspective, the settled purpose of his relocation to Iowa was to reside there habitually. In reaching this decision, the court relied on Barzilay and a Third Circuit case discussing the element of settled purpose, Whiting v. Krassner, 391 F.3d 540 (3rd Cir.2004). Whiting held that settled purpose does not require an intention to stay in a new location forever. Rather, one's "purpose while settled may be for a limited period," and education could prompt such a move.(quoting In re Bates, CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).
Martin argued that the district court gave too much weight to DJ's perspective in considering the move's "settled purpose" and too little to the Sterns' intent to return to Israel after Michelle finished her degree. He argued that the Court should focus on the parents' intention to return to Israel rather than on DJ's acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), a Ninth Circuit case that did not consider the settled purpose concept "very useful" which held, in contrast to its decisions in Barzilay and Silverman, that without "settled parental intent, courts should be slow to infer from [a child's] contacts that an earlier habitual residence has been abandoned." The Eighth Circuit rejected this approach, pointing out that the settled purpose of a child's move must be viewed from the child's perspective, and observing it had been rejected by the Sixth Circuit, which characterized it as having "made seemingly easy cases hard and reached results that are questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007). It held that the child's perspective should be paramount in construing this convention whose very purpose is to "protect children," and declined to adopt a framework that would contradict its own precedent and frustrate the Convention's goal of 'deter [ring] parents from crossing borders in search of a more sympathetic court.
The record here favored Iowa as DJ's habitual residence whether the Court emphasized DJ's perspective or that of his parents. The district court found that the parties' intent at the time of the move was to make Iowa DJ's habitual residence. It did not clearly err in doing so. The Court concluded that under the Hague Convention "the court must focus on the child, not the parents, and [must] examine past experience, not future intentions," Silverman, 338 F.3d at 898.
Saturday, April 30, 2011
Mc Curdy v Shreve-McCurdy, 2011 WL 1457158 (E.D.Mich.) [Canada] [Habitual Residence]
In Mc Curdy v Shreve-McCurdy, 2011 WL 1457158 (E.D.Mich.) the court granted Brian McCurdy’s petition against Respondent Princess Shreve McCurdy for immediate return of the couple's minor child, B.M., to Canada. Brian was 43 years old. Princess was also 43 years old. Brian and Princess had two children together, Brian McCurdy, Jr., who was 18 years old and resided with his mother in Southfield, Michigan; and B.M., who was born in 2004 and was six years old. Princess also had an adult daughter named Lutece Shreve. Brian resided at 450 Superior, LaSalle, Ontario Canada N9H 0A3 ("the 450 Superior Residence"), with his sister, Linda McCurdy, and her minor son, LM. Brian had dual citizenship in the United States and Canada. Princess resided in Southfield, Michigan, along with Brian McCurdy, Jr. Princess was a licenced registered nurse in both Canada and Michigan. BJM was born in Canada in 2004. Following her birth, Brian and Princess resided together with BJM in LaSalle, Ontario Canada for a short period of time. At that time, they resided at the 450 Superior Residence, with Brian's sister Linda. Brian, Princess and BJM later moved to Detroit, Michigan, where they resided with Princess's sister Laura Lee and her husband, until August of 2005.
In August of 2005, the couple and BJM moved to Flatrock, Michigan. Brian and Princess were married on April 20, 2006. As of 2007, however, the couple's relationship was deteriorating. In July or August of 2007, the couple separated and Brian returned to LaSalle, Ontario Canada. Brian and Princess agreed that BJM would reside with Brian at the 450 Superior Residence and attend school in LaSalle the following year. At this time, Brian was still in the process of obtaining his masters degree at Michigan State University. In the fall of 2008, Brian had an internship position that required him to temporarily reside in California. In the fall of that same year, Princess's mother was diagnosed with terminal cancer. After the diagnosis, Princess cared for her ill mother and, as a result, was unable to care for BJM on a full-time basis. At that time, Brian, Princess, and Linda agreed that BJM would reside at the 450 Superior Residence in LaSalle and attend school in LaSalle. On October of 2008, Brian, Princess, and Linda executed a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of BJM and that BJM "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." That agreement further provided that Linda "shall have the authority to make inquiries and decisions concerning the health, education and welfare of the child. Specifically, the Aunt shall have the authority to enroll the child in school in LaSalle." The parties entered in to that written agreement so that Linda would be able to enroll BJM in school in LaSalle. Linda was able to enroll BJM in school in LaSalle. On November 3, 2008, BJM was registered in junior kindergarten at Sandwich West Public School in LaSalle, Ontario Canada. B.M. attended the remainder of that school year at Sandwich West Public School, while residing at the 450 Superior Residence. Princess's mother passed away in December of 2008. Once the school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan.
In September of 2009, B.M. returned to LaSalle. From September 8, 2009 to June 30, 2010, B.M. was registered in senior kindergarten at Sandwich West Public School in Canada. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Towards the end of the 2009-2010 school year, Princess told Brian that she wanted B.M. to come live with her in Michigan and the couple argued about her request. Brian expressed that he wanted B.M. to remain with him during the school years, at least until the couple's older son graduated from high school. Brian wanted his son to be able to get through his senior year of high school without having to baby-sit and care for his sister while his mother was working. Although Brian understood that Princess wanted B.M. to come to Michigan to attend first grade at Laurus Academy, Brian did not agree or consent to that. In June, 2010, B.M. came to Michigan to stay with her mother. When B.M. left Canada for the summer, she did not take her personal belongings with her to Michigan. Her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Before leaving to visit her mother for the summer, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. In August of 2010, Princess called Brian and asked for B.M.'s vaccination records. Brian believed that Princess wanted those records so that she could enroll B.M. in first grade in Michigan and he did not give her the records. In August of 2010, Brian consulted a lawyer to advise him about his custody rights. B.M. returned to the 450 Superior Residence on September 3, 2010. From September 3, 2010 to September 7, 2010, B.M. was in Canada with Brian. On September 7, 2010, B.M. was registered in grade 1 at Sandwich West Public School in Canada. On September 7, 2010, Brian took B.M. to school for her first day of first grade at Sandwich West Public School. Later that evening, however, Princess came to the 450 Superior Residence and took B.M. back to Michigan without Brian's consent. On September 8, 2010, Princess registered B.M. in grade 1 at Laurus Academy in Southfield, Michigan. B.M. began attending Laurus Academy on September 8, 2010.
After Princess took B.M. to the United States on September 7, 2010, Brian sought legal advice on how to obtain a custody determination through the appropriate legal channels. On November 11, 2010, Princess brought B.M. back to Canada so that B.M. could receive medical treatment. Because the child was ill and could not return to school, and Princess was working full-time, Princess returned B.M. to the 450 Superior Residence and asked that Brian care for B.M. Princess asked that Brian return B.M. to her in Michigan on November 14, 2010, but Brian did not do so. On November 18, 2010, Brian filed an Application for Custody in the Ontario Court of Justice. As of November 21, 2010, B.M. was still in Canada with Brian, residing at the 450 Superior Residence. Princess and Brian McCurdy Jr. went to the 450 Superior Residence on November 21, 2010. At that time, Brian stated that he would not let Princess take B.M. to Michigan. Both Brian and Princess were upset and argued with each other. Linda, who was an attorney in Canada, was also present at the home and served Princess with legal documents from the custody action in the Ontario Court of Justice. Princess then left the house and returned to the United States without B.M. Princess read the documents that she was served with on November 21, 2010, and understood that Brian had initiated custody proceedings in Canada. On November 22, 2010, Brian re-enrolled B.M. at Sandwich West Public School, so that she could go back to school there. On November 24, 2010, Brian picked B.M. up from school and dropped her off at his sister's house, Cheryl McCurdy-Ducre, to play with B.M.'s cousins. On November 24, 2010, Princess traveled to LaSalle in order to get B.M. and bring her to the United States. Princess drove to Canada with her adult daughter, Lutece Shreve, her sister, Laura Lee, and a friend, Tammy Biddles. The group knew that B.M. was at Brian's sister's house and drove to the house. Because Princess knew that they would not let her in the house if she came to the door, Princess told her daughter Lutece to go in the house and get B.M. Lutece left the house with B.M., and brought B.M. to the car where Princess and the others were waiting. Neither Princess nor Lutece told Brian or his family members that they were taking B.M. from the house or that they were taking B.M. to the United States. Upon learning that Princess had taken B.M., Brian immediately contacted border control, to try to prevent Princess from taking B.M. across the United States-Canadian border. Brian also went to the LaSalle police station on November 24, 2010 and told the LaSalle police that B.M. had been removed from Canada by Princess without his consent. After returning to the United States with B.M. on November 24, 2010, Princess then stayed at a friend's house for a period of approximately two weeks and did not inform Brian where they were. From November 24, 2010 B.M. remained in Michigan with Princess and was attending Laurus Academy. On December 1, 2010, Princess initiated divorce and custody proceedings in the United States. Although she was aware that Brian had initiated custody proceedings in Canada in November, Princess signed an Affidavit stating that she had "no information" regarding other custody proceedings concerning B.M. On December 8, 2010, Brian filed a Hague application in Canada. On March 11, 2011, Brian initiated this action.
The District Court observed that it was undisputed that Brian had custody rights and that Brian was exercising his custody rights. Thus, the Court had to determine whether Canada was B.M.'s habitual residence immediately prior to the removal. Brian alleged that B.M. was wrongfully removed from Canada on September 7, 2010, and that she had been wrongfully retained by Princess in the United States since that time. Thus, the Court had to determine B.M.'s habitual residence immediately prior to her removal on September 7, 2010. It found that Brian had established by a preponderance of the evidence that Canada was B.M.'s habitual residence immediately prior to her removal on September 7, 2010. B.M. was born in Canada. In the fall of 2008, Brian, Princess, and Linda all verbally agreed that B.M. would reside at the 450 Superior Residence in LaSalle during the school year and attend school there. In addition, in October of 2008, Brian, Princess, and Linda formalized that agreement by executing a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of B.M. and that B.M. "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." B.M. was enrolled in junior kindergarten at Sandwich West Public School in LaSalle on November 3, 2008, and attended the remainder of the 2008-2009 school year there, while residing at the 450 Superior Residence. Once the 2008-2009 school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan. That same plan was followed for the 2009-2010 school year. In September of 2009, B.M. returned to LaSalle to live with Brian and attend school at Sandwich West Public School. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Thus, for B.M.'s first two years of school, she attended school in Canada while residing with her father at the 450 Superior Residence during the school years and spent only the summer months visiting her mother in the United States. Respondent had stipulated that Canada was B.M.'s habitual residence as of June, 2010. After the end of her senior kindergarten school year, in June, 2010, B.M. came to Michigan to stay with her mother for the summer--as she had done the two previous years. When B.M. left Canada for the summer, she did not take her personal belongings with her. That is, her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Moreover, while living in Canada, B.M. participated in extracurricular activities such as cheerleading. Before leaving to visit her mother for the summer in June, 2010, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. Based on the evidence presented, the Court found that Canada was B.M.'s habitual residence prior to her removal on September 7, 2010, and that the removal was wrongful under the Hague Convention. (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). The Court found that Princess had not presented any evidence to establish that Brian consented by virtue of an action or statement with requisite formality, such as testimony in a judicial proceeding. To the contrary, Brian initiated legal proceedings in both Canada and the United States in order to retain custody of B.M. Moreover, although the couple had previously executed a written agreement that B.M. would attend school in Canada while residing at the 450 Superior Residence, there was no evidence to establish that the couple executed any subsequent written agreements regarding any changes in custody, schools, or B.M.'s primary residence. There was no evidence to establish that Brian signed any written renunciation of rights to custody. Nor was there any evidence that Brian consented or had a "consistent attitude of acquiescence over a significant period of time."
Brian did not consent or acquiesce to the removal and retention of B.M. In Respondent's Answer she asserted as an affirmative defense, that "[e]quitable estoppel bars the Father from relief in this cause of action." The Court noted that the case law in the Sixth Circuit reflects that if a Petitioner establishes that removal or retention was wrongful, "the child must be returned unless" the defendant
can establish one of the narrow defenses that are expressly provided for in the Hague Convention. Friedrich, 78 F.3d at 1067. "Equitable estoppel" is simply not one of the narrow defenses set forth in the Hague Convention. Respondent had not supplied the Court with any legal authority to show that the Court had the authority to decline to order the child returned based on a theory of equitable estoppel. Accordingly, the Court rejected this proffered defense as a matter of law.
In August of 2005, the couple and BJM moved to Flatrock, Michigan. Brian and Princess were married on April 20, 2006. As of 2007, however, the couple's relationship was deteriorating. In July or August of 2007, the couple separated and Brian returned to LaSalle, Ontario Canada. Brian and Princess agreed that BJM would reside with Brian at the 450 Superior Residence and attend school in LaSalle the following year. At this time, Brian was still in the process of obtaining his masters degree at Michigan State University. In the fall of 2008, Brian had an internship position that required him to temporarily reside in California. In the fall of that same year, Princess's mother was diagnosed with terminal cancer. After the diagnosis, Princess cared for her ill mother and, as a result, was unable to care for BJM on a full-time basis. At that time, Brian, Princess, and Linda agreed that BJM would reside at the 450 Superior Residence in LaSalle and attend school in LaSalle. On October of 2008, Brian, Princess, and Linda executed a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of BJM and that BJM "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." That agreement further provided that Linda "shall have the authority to make inquiries and decisions concerning the health, education and welfare of the child. Specifically, the Aunt shall have the authority to enroll the child in school in LaSalle." The parties entered in to that written agreement so that Linda would be able to enroll BJM in school in LaSalle. Linda was able to enroll BJM in school in LaSalle. On November 3, 2008, BJM was registered in junior kindergarten at Sandwich West Public School in LaSalle, Ontario Canada. B.M. attended the remainder of that school year at Sandwich West Public School, while residing at the 450 Superior Residence. Princess's mother passed away in December of 2008. Once the school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan.
In September of 2009, B.M. returned to LaSalle. From September 8, 2009 to June 30, 2010, B.M. was registered in senior kindergarten at Sandwich West Public School in Canada. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Towards the end of the 2009-2010 school year, Princess told Brian that she wanted B.M. to come live with her in Michigan and the couple argued about her request. Brian expressed that he wanted B.M. to remain with him during the school years, at least until the couple's older son graduated from high school. Brian wanted his son to be able to get through his senior year of high school without having to baby-sit and care for his sister while his mother was working. Although Brian understood that Princess wanted B.M. to come to Michigan to attend first grade at Laurus Academy, Brian did not agree or consent to that. In June, 2010, B.M. came to Michigan to stay with her mother. When B.M. left Canada for the summer, she did not take her personal belongings with her to Michigan. Her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Before leaving to visit her mother for the summer, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. In August of 2010, Princess called Brian and asked for B.M.'s vaccination records. Brian believed that Princess wanted those records so that she could enroll B.M. in first grade in Michigan and he did not give her the records. In August of 2010, Brian consulted a lawyer to advise him about his custody rights. B.M. returned to the 450 Superior Residence on September 3, 2010. From September 3, 2010 to September 7, 2010, B.M. was in Canada with Brian. On September 7, 2010, B.M. was registered in grade 1 at Sandwich West Public School in Canada. On September 7, 2010, Brian took B.M. to school for her first day of first grade at Sandwich West Public School. Later that evening, however, Princess came to the 450 Superior Residence and took B.M. back to Michigan without Brian's consent. On September 8, 2010, Princess registered B.M. in grade 1 at Laurus Academy in Southfield, Michigan. B.M. began attending Laurus Academy on September 8, 2010.
After Princess took B.M. to the United States on September 7, 2010, Brian sought legal advice on how to obtain a custody determination through the appropriate legal channels. On November 11, 2010, Princess brought B.M. back to Canada so that B.M. could receive medical treatment. Because the child was ill and could not return to school, and Princess was working full-time, Princess returned B.M. to the 450 Superior Residence and asked that Brian care for B.M. Princess asked that Brian return B.M. to her in Michigan on November 14, 2010, but Brian did not do so. On November 18, 2010, Brian filed an Application for Custody in the Ontario Court of Justice. As of November 21, 2010, B.M. was still in Canada with Brian, residing at the 450 Superior Residence. Princess and Brian McCurdy Jr. went to the 450 Superior Residence on November 21, 2010. At that time, Brian stated that he would not let Princess take B.M. to Michigan. Both Brian and Princess were upset and argued with each other. Linda, who was an attorney in Canada, was also present at the home and served Princess with legal documents from the custody action in the Ontario Court of Justice. Princess then left the house and returned to the United States without B.M. Princess read the documents that she was served with on November 21, 2010, and understood that Brian had initiated custody proceedings in Canada. On November 22, 2010, Brian re-enrolled B.M. at Sandwich West Public School, so that she could go back to school there. On November 24, 2010, Brian picked B.M. up from school and dropped her off at his sister's house, Cheryl McCurdy-Ducre, to play with B.M.'s cousins. On November 24, 2010, Princess traveled to LaSalle in order to get B.M. and bring her to the United States. Princess drove to Canada with her adult daughter, Lutece Shreve, her sister, Laura Lee, and a friend, Tammy Biddles. The group knew that B.M. was at Brian's sister's house and drove to the house. Because Princess knew that they would not let her in the house if she came to the door, Princess told her daughter Lutece to go in the house and get B.M. Lutece left the house with B.M., and brought B.M. to the car where Princess and the others were waiting. Neither Princess nor Lutece told Brian or his family members that they were taking B.M. from the house or that they were taking B.M. to the United States. Upon learning that Princess had taken B.M., Brian immediately contacted border control, to try to prevent Princess from taking B.M. across the United States-Canadian border. Brian also went to the LaSalle police station on November 24, 2010 and told the LaSalle police that B.M. had been removed from Canada by Princess without his consent. After returning to the United States with B.M. on November 24, 2010, Princess then stayed at a friend's house for a period of approximately two weeks and did not inform Brian where they were. From November 24, 2010 B.M. remained in Michigan with Princess and was attending Laurus Academy. On December 1, 2010, Princess initiated divorce and custody proceedings in the United States. Although she was aware that Brian had initiated custody proceedings in Canada in November, Princess signed an Affidavit stating that she had "no information" regarding other custody proceedings concerning B.M. On December 8, 2010, Brian filed a Hague application in Canada. On March 11, 2011, Brian initiated this action.
The District Court observed that it was undisputed that Brian had custody rights and that Brian was exercising his custody rights. Thus, the Court had to determine whether Canada was B.M.'s habitual residence immediately prior to the removal. Brian alleged that B.M. was wrongfully removed from Canada on September 7, 2010, and that she had been wrongfully retained by Princess in the United States since that time. Thus, the Court had to determine B.M.'s habitual residence immediately prior to her removal on September 7, 2010. It found that Brian had established by a preponderance of the evidence that Canada was B.M.'s habitual residence immediately prior to her removal on September 7, 2010. B.M. was born in Canada. In the fall of 2008, Brian, Princess, and Linda all verbally agreed that B.M. would reside at the 450 Superior Residence in LaSalle during the school year and attend school there. In addition, in October of 2008, Brian, Princess, and Linda formalized that agreement by executing a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of B.M. and that B.M. "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." B.M. was enrolled in junior kindergarten at Sandwich West Public School in LaSalle on November 3, 2008, and attended the remainder of the 2008-2009 school year there, while residing at the 450 Superior Residence. Once the 2008-2009 school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan. That same plan was followed for the 2009-2010 school year. In September of 2009, B.M. returned to LaSalle to live with Brian and attend school at Sandwich West Public School. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Thus, for B.M.'s first two years of school, she attended school in Canada while residing with her father at the 450 Superior Residence during the school years and spent only the summer months visiting her mother in the United States. Respondent had stipulated that Canada was B.M.'s habitual residence as of June, 2010. After the end of her senior kindergarten school year, in June, 2010, B.M. came to Michigan to stay with her mother for the summer--as she had done the two previous years. When B.M. left Canada for the summer, she did not take her personal belongings with her. That is, her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Moreover, while living in Canada, B.M. participated in extracurricular activities such as cheerleading. Before leaving to visit her mother for the summer in June, 2010, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. Based on the evidence presented, the Court found that Canada was B.M.'s habitual residence prior to her removal on September 7, 2010, and that the removal was wrongful under the Hague Convention. (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). The Court found that Princess had not presented any evidence to establish that Brian consented by virtue of an action or statement with requisite formality, such as testimony in a judicial proceeding. To the contrary, Brian initiated legal proceedings in both Canada and the United States in order to retain custody of B.M. Moreover, although the couple had previously executed a written agreement that B.M. would attend school in Canada while residing at the 450 Superior Residence, there was no evidence to establish that the couple executed any subsequent written agreements regarding any changes in custody, schools, or B.M.'s primary residence. There was no evidence to establish that Brian signed any written renunciation of rights to custody. Nor was there any evidence that Brian consented or had a "consistent attitude of acquiescence over a significant period of time."
Brian did not consent or acquiesce to the removal and retention of B.M. In Respondent's Answer she asserted as an affirmative defense, that "[e]quitable estoppel bars the Father from relief in this cause of action." The Court noted that the case law in the Sixth Circuit reflects that if a Petitioner establishes that removal or retention was wrongful, "the child must be returned unless" the defendant
can establish one of the narrow defenses that are expressly provided for in the Hague Convention. Friedrich, 78 F.3d at 1067. "Equitable estoppel" is simply not one of the narrow defenses set forth in the Hague Convention. Respondent had not supplied the Court with any legal authority to show that the Court had the authority to decline to order the child returned based on a theory of equitable estoppel. Accordingly, the Court rejected this proffered defense as a matter of law.
Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) [Germany] [Full Faith and Credit] [Well-Settled in New Enviorment]
In Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) on July 17, 2007, Mr. Muhlenkamp filed his petition for return. Also in the spring of 2007, Mr. Muhlenkamp began legal proceedings in Germany to regain custody of E.M. Apparently, without any notice to Ms. Blizzard or opportunity to defend herself. The Bayreuth Local Court entered a judgment finding Ms. Blizzard "wrongfully removed" E.M. from Germany to the United States based on a "plausible" showing of facts by Mr. Muhlenkamp. E.M. was born to Mr. Muhlenkamp and Ms. Blizzard on April 29, 2004, in Duisburg, Germany. Shortly thereafter, the parties obtained a U.S. birth certificate, a U.S. passport, and a U.S. social security number, all for E.M. The parties repeatedly discussed an eventual relocation to the United States. Mr. Muhlenkamp and Ms. Blizzard married on June 8, 2005, in Duisburg. Mr. Muhlenkamp was a musician and a citizen of Germany. Ms. Blizzard was an academic professor, a born citizen of the United States, and later became a resident of Germany, where she was a resident until June 2006. Mr. Muhlenkamp, Ms. Blizzard, and E.M. moved to Bayreuth, Germany, in August or September of 2005. At some point Ms. Blizzard's mother became ill. In order to receive care, Ms. Blizzard's mother moved from Germany to Mesa, Arizona, in January 2006. On February 22, 2006, Ms. Blizzard drafted a permission letter allowing her to travel with E.M. to Mesa, Arizona, from February 25, 2006, to March 20, 2006, which Mr. Muhlenkamp signed and was notarized. During this period, Ms. Blizzard and E.M. visited Ms. Blizzard's mother, who was in declining health, in Arizona at the address contained in the consent letter. In the spring of 2006 Ms. Blizzard was also focused on finding a career position outside of Germany. Her two-year term as a professor at a university in Bayreuth was to expire soon and, under local German law, Ms. Blizzard could not continue employment in the Bayreuth area. Ms. Blizzard explored new positions in a number of countries, including the United States. In late April and early May of 2006, Ms. Blizzard went alone to Spokane, Washington, for a job interview at Spokane Falls Community College. Upon arriving at the train station in Frankfurt, Germany, on May 1, 2006, for her final train leg to Beyreuth, Ms. Blizzard called Mr. Muhlenkamp to inform him she had arrived a day early. During this phone call, Mr. Muhlenkamp told Ms. Blizzard that he wished to separate from her. When Ms. Blizzard returned from the Spokane Falls interview, Mr. Muhlenkamp moved out of their shared apartment into his own apartment. He expressed no desire to visit Ms. Blizzard or to provide care for E.M. between May 1 and June 12, 2006. E.M. remained in the care of Ms. Blizzard and continued full-time daycare until June 12, 2006. On or about May 23, 2006, Ms. Blizzard informed Mr. Muhlenkamp that Spokane Falls Community College had offered her a job which he understood she would accept. Mr. Muhlenkamp then signed a letter terminating the lease on the marital apartment. On May 5, 2006, Ms. Blizzard drafted a permission letter to allow her "to travel internationally and remain abroad indefinitely with [E.M.]," which Mr. Muhlenkamp signed and was notarized. On June 7, 2006, at Mr. Muhlenkamp's request, Mr. Muhlenkamp and Ms. Blizzard met with Hubert Wattenbach, a social worker employed by the city of Bayreuth. Mr. Wattenbach testified that Mr. Muhlenkamp was concerned whether E.M. would be returned to him if Ms. Blizzard died while living with E.M. in the United States. Therefore, as of June 7, 2006, Mr. Muhlenkamp understood E.M. was to relocate to the United States because her mother, Ms. Blizzard, had employment in the United States. On June 12, 2006, Ms. Blizzard left with E.M. for the United States without any prior notice to Mr. Muhlenkamp. After arriving in the United States, Ms. Blizzard had her belongings shipped to her. When Ms. Blizzard and E.M. arrived in Phoenix, Arizona, Ms. Blizzard attempted to call Mr. Muhlenkamp several times in order to tell him their whereabouts, finally connecting with him on June 14, 2006, after 25 phone calls. During the phone call, Ms. Blizzard impressed upon Mr. Muhlenkamp that she would return to Germany within two weeks. In an email sent to Ms. Blizzard on June 16, 2006, Mr. Muhlenkamp expressed displeasure that Ms. Blizzard had taken E.M. to the United States without his knowledge. Mr. Muhlenkamp felt he had lost two weeks of time with E.M. prior to her final departure for the United States with Ms. Blizzard and pleaded with Ms. Blizzard, "please promise me that you will not just leave [E.M.] in America." On June 22, 2006, Mr. Muhlenkamp sent another email to
Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with
E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court found that Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany under German law. At some point in August or September of 2006, Ms. Blizzard moved to Spokane, Washington, with E.M., where they resided since.
The District Court observed that in determining the appropriate location of a child under the Hague Convention, the threshold issue is whether the removal or retention of the child was wrongful. Here, the Bayreuth Local Court may have superseded the District Court in its determination that Ms. Blizzard wrongfully removed E.M. Thus, the Court was confronted with the question of whether the Court must respect the Bayreuth Local Court's decision and enter an order compelling the return of E.M. It noted thta United States courts are to give full faith and credit "to the judgment of any other ... court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." 42 U.S.C. 11603(g). The Bayreuth Local Court entered an order and "Certificate of Wrongfulness" declaring the removal of E.M. was "wrongful" within the meaning of the Hague Convention. Article 15 of the Hague Convention allows: The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Hague Conv. art. 15. Here, the question of the wrongfulness of E.M.'s detention had already been decided by the Bayreuth Local Court. Ahough the typical procedure under Article 15 would be for the District Court to request a determination of wrongfulness by a German court, because the Bayreuth Local Court had already made a determination, the Court had to determine whether to give the decision full faith and credit under ICARA, 42 U.S.C. 11603(g). The Court found that several concerns arose from the Bayreuth Local Court's decision. First, Ms. Blizzard never received notice of this proceeding , nor did the Bayreuth Local Court or Mr. Muhlenkamp ever attempt to notify Ms. Blizzard of the custody proceeding and Hague Convention issue. Second, the Bayreuth Local Court's requisite level of burden of proof was below the standard mandated by ICARA and the Hague Convention. That court simply stated that Mr. Muhlenkamp had "shown plausibly by submission of an affidavit dated October 18, 2006, and the notarized revocation of travel permission dated August 14, 2006[sic] that he has joint right of custody of [E.M.]," and therefore the court made a finding of "wrongfulness" pursuant to the Hague Convention. However, the requisite burden of proof is more than "plausible"; a petitioner must "establish by a preponderance of the evidence" the child was wrongfully removed. 42 U.S.C. 11603(e)(1)(a). Because no notice was made to Ms. Blizzard of the proceeding and the Bayreuth Local Court applied a burden of proof substantially less then the requisite burden, the District Court did not give full faith and credit to the Bayreuth Local Court decision.
The Court found that Removal of E.M. from Germany occurred on June 12, 2006. Retention, if wrongful, occurred after the two-week window Mr. Muhlenkamp believed Ms. Blizzard would be in the United States. Thus, retention occurred on June 26, 2006. In determining the location of Habitual Residence the Court observed that although E.M. possessed a U.S. social security card, U.S. birth certificate, and U.S. passport prior to the removal, E.M. was born and lived in Germany her entire life. Therefore, at the time of removal, the Court concluded E.M.'s habitual residence was in Germany, though it is certain that the parties agreed that Ms. Blizzard was relocating to the United States with E.M. to begin her job in Spokane, Washington.
The Court noted that under the Hague Convention, rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Conv. art. 5. German law gives both parents equal custody of a child.(citing Burgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, ss 1621 P 1, 1627;) "The violation of a single custody right suffices to make removal of a child wrongful." Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir.2004) "Rights of access do not constitute rights within the meaning of the Hague Convention...." Croll v. Croll, 229 F.3d 133, 135 (2d Cir.2000). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Conv. art. 5(b). This case presented the question of whether Mr. Muhlenkamp retained merely a right of access, rather than rights of custody, when he agreed to let Ms. Blizzard take E.M. to the United States. On May 5, 2006, Mr. Muhlenkamp signed a general letter written by Ms. Blizzard giving his "express permission for Allison Blizzard to travel internationally and remain abroad indefinitely with [E.M.]." Mr. Muhlenkamp and Ms. Blizzard disagreed as to what "indefinitely" meant. From the facts, the court determined that Mr. Muhlenkamp retained the right to determine custody rights, including parental-decision making roles and the right of visitation, in Germany. For this reason, the Court concluded Mr. Muhlenkamp possessed rights of custody at the time of removal. Mr. Muhlenkamp did not know of Ms. Blizzard's intention on June 12, 2006, the time of removal, and therefore did not exercise his custodial right at the time of removal. However, when Mr. Muhlenkamp became aware of Ms. Blizzard's intent, he exercised his rights and did not acquiesce to the retention of E.M. in the United States. Therefore, the Court concluded wrongful retention occurred on June 26, 2006.
Mr. Muhlenkamp filed his petition on July 17, 2007. Wrongful retention began on June 26, 2006. The Court concluded the filing occurred outside the one-year limitation. It observed that the Ninth Circuit has stated: The question whether a child is in some sense "settled" in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life there. Further, attempting to make the standard more rigorous might actually make matters worse, as it could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit-such as having the child profess allegiance to the new sovereign. Mozes, 239 F.3d at 1079. The Ninth Circuit provides a dim light as to what factors are pertinent: "[S]ome courts regard the question whether a child is doing well
in school, has friends, and so on, as more straightforward and objective...." Here, E.M. was performing at two to three age levels above her own. E.M. also was well-liked and had a strong core of friends. Ms. Blizzard routinely took E.M. to community cultural events. E.M. had many relatives in the Northwest and in Arizona, where they often spent holidays. Thus, the Court found E.M. had settled. Because E.M. had settled, the one-year limitation exception applied. Therefore, even though the Court found Ms. Blizzard wrongfully retained E.M. outside of Germany, the Court concluded E.M. shall remain with Ms. Blizzard in the United States.
The District Court observed that while the ICARA allows a court to impose provisional remedies "to protect the well-being of the child involved or to prevent the child's further removal or concealment," IRACA only establishes the authority prior to "final disposition of the petition." 42 U.S.C. 11604 Thus, the Court did not enter a temporary order on custody.
Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with
E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court found that Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany under German law. At some point in August or September of 2006, Ms. Blizzard moved to Spokane, Washington, with E.M., where they resided since.
The District Court observed that in determining the appropriate location of a child under the Hague Convention, the threshold issue is whether the removal or retention of the child was wrongful. Here, the Bayreuth Local Court may have superseded the District Court in its determination that Ms. Blizzard wrongfully removed E.M. Thus, the Court was confronted with the question of whether the Court must respect the Bayreuth Local Court's decision and enter an order compelling the return of E.M. It noted thta United States courts are to give full faith and credit "to the judgment of any other ... court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." 42 U.S.C. 11603(g). The Bayreuth Local Court entered an order and "Certificate of Wrongfulness" declaring the removal of E.M. was "wrongful" within the meaning of the Hague Convention. Article 15 of the Hague Convention allows: The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Hague Conv. art. 15. Here, the question of the wrongfulness of E.M.'s detention had already been decided by the Bayreuth Local Court. Ahough the typical procedure under Article 15 would be for the District Court to request a determination of wrongfulness by a German court, because the Bayreuth Local Court had already made a determination, the Court had to determine whether to give the decision full faith and credit under ICARA, 42 U.S.C. 11603(g). The Court found that several concerns arose from the Bayreuth Local Court's decision. First, Ms. Blizzard never received notice of this proceeding , nor did the Bayreuth Local Court or Mr. Muhlenkamp ever attempt to notify Ms. Blizzard of the custody proceeding and Hague Convention issue. Second, the Bayreuth Local Court's requisite level of burden of proof was below the standard mandated by ICARA and the Hague Convention. That court simply stated that Mr. Muhlenkamp had "shown plausibly by submission of an affidavit dated October 18, 2006, and the notarized revocation of travel permission dated August 14, 2006[sic] that he has joint right of custody of [E.M.]," and therefore the court made a finding of "wrongfulness" pursuant to the Hague Convention. However, the requisite burden of proof is more than "plausible"; a petitioner must "establish by a preponderance of the evidence" the child was wrongfully removed. 42 U.S.C. 11603(e)(1)(a). Because no notice was made to Ms. Blizzard of the proceeding and the Bayreuth Local Court applied a burden of proof substantially less then the requisite burden, the District Court did not give full faith and credit to the Bayreuth Local Court decision.
The Court found that Removal of E.M. from Germany occurred on June 12, 2006. Retention, if wrongful, occurred after the two-week window Mr. Muhlenkamp believed Ms. Blizzard would be in the United States. Thus, retention occurred on June 26, 2006. In determining the location of Habitual Residence the Court observed that although E.M. possessed a U.S. social security card, U.S. birth certificate, and U.S. passport prior to the removal, E.M. was born and lived in Germany her entire life. Therefore, at the time of removal, the Court concluded E.M.'s habitual residence was in Germany, though it is certain that the parties agreed that Ms. Blizzard was relocating to the United States with E.M. to begin her job in Spokane, Washington.
The Court noted that under the Hague Convention, rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Conv. art. 5. German law gives both parents equal custody of a child.(citing Burgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, ss 1621 P 1, 1627;) "The violation of a single custody right suffices to make removal of a child wrongful." Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir.2004) "Rights of access do not constitute rights within the meaning of the Hague Convention...." Croll v. Croll, 229 F.3d 133, 135 (2d Cir.2000). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Conv. art. 5(b). This case presented the question of whether Mr. Muhlenkamp retained merely a right of access, rather than rights of custody, when he agreed to let Ms. Blizzard take E.M. to the United States. On May 5, 2006, Mr. Muhlenkamp signed a general letter written by Ms. Blizzard giving his "express permission for Allison Blizzard to travel internationally and remain abroad indefinitely with [E.M.]." Mr. Muhlenkamp and Ms. Blizzard disagreed as to what "indefinitely" meant. From the facts, the court determined that Mr. Muhlenkamp retained the right to determine custody rights, including parental-decision making roles and the right of visitation, in Germany. For this reason, the Court concluded Mr. Muhlenkamp possessed rights of custody at the time of removal. Mr. Muhlenkamp did not know of Ms. Blizzard's intention on June 12, 2006, the time of removal, and therefore did not exercise his custodial right at the time of removal. However, when Mr. Muhlenkamp became aware of Ms. Blizzard's intent, he exercised his rights and did not acquiesce to the retention of E.M. in the United States. Therefore, the Court concluded wrongful retention occurred on June 26, 2006.
Mr. Muhlenkamp filed his petition on July 17, 2007. Wrongful retention began on June 26, 2006. The Court concluded the filing occurred outside the one-year limitation. It observed that the Ninth Circuit has stated: The question whether a child is in some sense "settled" in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life there. Further, attempting to make the standard more rigorous might actually make matters worse, as it could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit-such as having the child profess allegiance to the new sovereign. Mozes, 239 F.3d at 1079. The Ninth Circuit provides a dim light as to what factors are pertinent: "[S]ome courts regard the question whether a child is doing well
in school, has friends, and so on, as more straightforward and objective...." Here, E.M. was performing at two to three age levels above her own. E.M. also was well-liked and had a strong core of friends. Ms. Blizzard routinely took E.M. to community cultural events. E.M. had many relatives in the Northwest and in Arizona, where they often spent holidays. Thus, the Court found E.M. had settled. Because E.M. had settled, the one-year limitation exception applied. Therefore, even though the Court found Ms. Blizzard wrongfully retained E.M. outside of Germany, the Court concluded E.M. shall remain with Ms. Blizzard in the United States.
The District Court observed that while the ICARA allows a court to impose provisional remedies "to protect the well-being of the child involved or to prevent the child's further removal or concealment," IRACA only establishes the authority prior to "final disposition of the petition." 42 U.S.C. 11604 Thus, the Court did not enter a temporary order on custody.
Wednesday, April 13, 2011
Library of Federal and New York Cases - Hague Convention
All Reported Federal and New York Cases involvng the Hague Convention on the Civil Aspects of Intenatonal Child Abduction arranged by subject and country.
All Reported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically.
All Unreported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically, with subject and country.
All Reported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically.
All Unreported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically, with subject and country.
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