Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) [France] [Habitual Residence]

In Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) Nicolas F. Brosselin filed a petition for the return of his child to France. The district court held a hearing and determined that the Hague Convention did not apply to the petition because the child’s habitual residence was Oak Harbor, Washington, not France and dismissed the petition for lack of jurisdiction. Petitioner Brosselin had requested the Court issue an order compelling the return of Petitioner's and Respondent Shannon Harless's son, LT, to France. The Court observed that the Ninth Circuit has counseled that the habitual residence of an infant is determined by examining the parents' mutual, settled intent to move to a new country for a sufficiently "appreciable period of time" for the infant to acclimatize to the new country of residence. “ Petitioner has the burden to prove habitual residence by a preponderance of the evidence.
The Court found that Petitioner Nicolas Brosselin was a citizen and resident of France. Respondent Shannon Harless was a citizen of the United States of America and a legal permanent resident of France. Harless and Brosselin met in 2007 in France and began living together in France in May 2008. Harless became pregnant in January 2009 with a child conceived with Brosselin in France. Harless resided in France with Brosselin until April 2009, when she moved to Oak Harbor, Washington, and began residing with her mother. Harless gave birth to LT in October 2009 in Oak Harbor, Washington. Brosselin was present at the birth. LT had both French and American citizenship. Brosselin returned to France after the birth and organized the purchase of a new home. Emails sent by Harless to Brosselin in November, 2009, showed the house was intended to be shared by Harless, Brosselin, and their son. In December, 2009, Harless and LT travelled to France and stayed with Brosselin until February 6, 2010. On February 6, 2010, Harless and LT travelled back to Oak Harbor, Washington, and returned to Harless's mother's home. Harless held a variety of jobs during her residence in Washington in 2010. In April, 2010, Harless informed Brosselin that she had become engaged to Troy Williams in Oak Harbor. Harless did not return to France. Although the parties disputed whether Harless intended to move back to France, it was clear the relationship between Harless and Brosselin became fractured by this point in 2010. Brosselin traveled to Oak Harbor, Washington to visit LT and Harless in June 2010 for ten days. Brosselin's parents also visited LT and Harless in August 2010. Brosselin made a second trip in October 2010, at which point he proposed marriage to Harless. During this trip Brosselin appeared to have prompted Harless to consider reconnecting with Brosselin in France, but only equivocally. In November, 2010, Harless suffered a severe injury from a horse and spent multiple days in the Harborview Hospital in Seattle. During her recuperation, she continued to reconnect with Brosselin. At some point in January 2011, Harless and Brosselin agreed that Harless and LT would travel to France. On February 2, 2011, Brosselin purchased a round-trip ticket for Harless and LT for travel from February 17, 2011 to May 10, 2011. Harless testified that she was traveling to France to see if she and Brosselin could get along. Brosselin testified that Harless was returning to stay in France permanently. Amy Gumbel, another friend of Harless, spoke to Harless prior to the February 17, 2011 departure, and Harless stated that she was leaving to go back to France for a little while. Harless told Gumbel it was not intended to be an indefinite stay. Harless wrote an email to Brosselin on February 12, 2011, explaining that she believed LT needed more stability than she could offer and that she was "scared and tired." She wrote that she was "ready to start again," but that she wanted Brosselin to "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In February 17, 2011, Harless traveled to France with LT with four suitcases. She brought clothing and some toys for LT, as well as her own clothes and her horse riding saddle. She did not ship any boxes or move any furniture. She left furniture, baby items, and clothing in her mother's home in Oak Harbor, although she did not possess much. Upon her return to France with LT, took up residence with Brosselin. Although LT had his own bedroom, Harless did not consistently share a room with Brosselin. On March 6, 2011, Brosselin left on a 3-week Army mission to Libya. During their son's absence, Brosselin's parents visited Harless and LT. In this same time frame, Harless wrote to Brosselin: "It's poop to yell all the time ... lets [sic] just talk about happy things and not get into it. I'll settle things down in my own mind and heart." At some point in March, 2011, Harless discovered that Brosselin had become romantically involved with another woman in Ireland, who had been identified as Pauline. Brosselin admited to having traveled to Ireland to be with Pauline for one weekend prior to Harless's arrival in February 2011. He denied any further contact at the hearing, but email records showed he had substantial correspondence with Pauline. Emails between Brosselin and Pauline from March 7, 2011 through March 13, 2011, reveal a significant romantic relationship had developed. On March 9, 2011, Brosselin wrote to Pauline: "I absolutely did not expect to see Shannon burst back into my life with LT under her arm, settle into the house for an undetermined period of time and start to blackmail me in order to be the only woman in my life." He wrote further, "I thought all was over, that I was going to be
able to make a new start at a nice quiet life with you at my side and afterward find a
way to get my son back." He concluded, "I deeply hope at the bottom of my heart
that things can be resolved and bring us [he and Pauline] back to each other." In a second email to Pauline, sent on March 9, 2011, Brosselin wrote "I don't really know what Shannon wants for the long term .. to stay in France, or make my life so impossible that I put her on the plane with a big maintenance allowance every month
and guarantee her that I won't try to take LT away from her.". Brosselin also discovered that Harless continued her romantic relationship with Williams. Brosselin included screen captures of one online sexual encounter between Harless and Williams. A postcard sent by Harless to Williams dated March 5, 2011 includes Harless's protestation of love for Williams and her desire to return to him. In or around March 18, 2011, Harless's friend Margaret Sara Celik visited Harless and LT in France. She testified that Harless was living out her suitcase and had not settled in the home.
On April 1, 2011, Harless renewed her French business license and contacted the
Mayor of Bras sur Meuse, France, to set up a work opportunity. Harless also gave
some English teaching lessons. Harless also signed up for a one-year membership at a
horse riding facility. Harless also obtained medical insurance coverage with the aid of Brosselin in March. From March 1 through April 30, 2011, LT received in-home babysitting care and also spent time in daycare. After his return from his mission, on April 10, 2011, Brosselin called the police to intervene in a domestic dispute. He also called his parents for assistance. On May 2, 2011, Harless filed a complaint with the French police that she had been psychologically abused by Brosselin. On May 3, 2011, Harless took LT from France to Luxemburg and flew back to the United States on a new ticket purchased by her mother. Brosselin attempted to contact Harless and LT in the United States, but his phone calls and emails have been largely unanswered. Brosselin demanded the return of his child. Harless has not made LT available to his father on any consistent basis. Brosselin commenced this lawsuit on November 7, 2011.
In examining the testimony about the parties' mutual intent to move LT permanently to France, the Court found neither one to be particularly credible. Ultimately the parties' testimony showed that neither shared a mutual intent to have Harless and LT settle in France indefinitely, a fact that the other evidence in the record confirmed. The Court stated that it had to answer the question of whether LT's parents shared a settled intent to move LT to France, and that he stayed there for a sufficiently "appreciable period of time" for him to acclimatize to the new country of residence. See Holder, 392 F.3d at 1015. The Court examined the issue of settled intent before turning to the acclimatization of the child. It indicated that Petitioner must show first that he and Harless shared a settled intent to have LT abandon his residence in Oak Harbor, Washington. Holder, 392 F.3d at 1015. There is no rigid definition of "settled intent," although the Court is instructed to examine the mutual intent of the parents at the time of the translocation and shortly thereafter. Id. at 1017; Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir.2007). The parties and the Ninth Circuit agreed that when the child involved is a young infant, "we look to the subjective intent of the parents, not the children." Hodler, 392 F.3d at 1016. Where the "parents no longer agree on where the children's habitual residence has been fixed, we must look beyond the representations of the parties and consider 'all available evidence.' " (quoting Mozes v. Mozes, 329 F.3d 1067, 1076 (9th Cir.2004)). There are no bright line rules as to when habitual residence changes. Rather, a flexible application of the law to the unique facts of every case has created a continuum. On the one end of the spectrum are cases where "the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move." Mozes, 239 F.3d at 1076. This occurs where "both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country."The Court will usually find abandonment of the habitual residence in favor of the new country, even if one parent's reservations about the move stand in the way of settled intent. On the other end of the continuum "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." The present dispute before the Court fell somewhere in between these cases, though clearly closer to the latter.
The Court observed that the case was similar to Papakosmas, where the Court found a family's relocation from California to Greece did not result in the changed habitual residence of the two children in part because the parents did not appear to share a mutual intent to relocate permanently to Greece. 438 F.3d 617.The court found the four-month move was conditional where the evidence showed the husband was selling the couple's American property without his wife's knowledge, the parents lacked employment in Greece, the husband had an affair in Greece, and the couple continued to operate an American business.The case differs to the extent that both husband and wife moved together, but it shares common elements of deception between the parents as evidence lack of settled intent. It observed that a A Fourth Circuit case, Maxwell v. Maxwell, was hauntingly similar to the present case, and worth an in-depth examination. 588 F.3d 245 (4th Cir.2009). The district court and the Fourth Circuit in Maxwell agreed that Kristina and the children's move to Australia was conditional and experimental, and not a change in habitual residence. Id. at 251.The courts held that there was an absence in parental shared intent to move the children to Australia indefinitely particularly where the parties provided conflicting testimony. Looking beyond representations of the parties, the Fourth Circuit found a lack of settled intent in the absence of marital stability, the retention of ties to the United States, and the lack of stability in the home environment. The Court found these factors relevant to the present dispute and the decision in Maxwell instructive.
Brosselin was unable to show that he and Harless possessed a settled intent to
move to France indefinitely. It was clear that at some point in January 2011, Harless and Brosselin agreed that Harless would travel to France with LT. While Brosselin maintained that the stay was to be indefinite, the record appeared otherwise. Harless's intentions as to where to reside seemed in constant flux. Upon her return to Oak Harbor in 2010, she quickly became engaged to Williams and lived either with her mother or Williams. She appeared only to have reconnected with Brosselin in November 2010, at a time that she appeared to have still been engaged with Williams. Central to Harless's lack of settled intent is an email she wrote to Brosselin on February 12, 2011, five days before her departure. The email captures quite clearly the tentative intent of her trip: "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In addition to the unsettled nature of her relationship with Brosselin and Williams, and the ties she left in Washington, this email shows that Harless's return trip was more an experiment than a commitment to stay in France. Brosselin's testimony at the hearing that Harless was moving for an indefinite period is also undermined by emails he wrote to Pauline on March 9, 2011. He told Pauline that he "absolutely did not expect to see Shannon burst back into my life with LT under her arm, [and] settle into the house for an undetermined period of time...." He also wrote to Pauline that he did not "know what Shannon wants for the long term." The Court did not find credible Brosselin's testimony these emails were entirely false and only intended to protect Pauline's feelings. They were probative of the lack of certainty as to Harless's intent and reflect Brosselin's recognition of this fact. They also showed that Brosselin was still attempting to maintain his relationship with Pauline after Harless arrived in France despite the fact he testified that he was only in love with Harless at this time. Given the parties' disputed testimony, the Court, as in Maxwell, looked to other evidence that makes clear there was no shared intent. Most notably, the record showed that the relationship between Harless and Brosselin was not stable and that there was little stability in the home after Harless's arrival in February 2011. The Court did not find Brosselin's evidence of Harless's intent to remain in France convincing. Based on the record and testimony, the Court did not find a settled mutual intent to relocate to France and change LT's habitual residence. Whatever Brosselin might have wished, Harless lacked any firm commitment to live in France indefinitely. As Brosselin wrote in his emails, Harless changed her mind frequently. Neither Harless she nor Brosselin trusted each other as they both carried on relationships with other persons. Harless lived out of her suitcase, did not become settled, and the relationship was dysfunctional enough to require police intervention. It is difficult for the Court to imagine how a young child such as LT might be settled in such an environment where his parents' mood swings dominated the home environment. The Court thus concluded that LT's habitual residence has not changed from Washington to France because there was no mutual settled intent to move LT to France indefinitely. The Hague Convention did not therefore apply, and the Court dismissed the action.