In Walker v Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the return of his children to Australia who he claimed were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children. At the evidentiary hearing the Petitioner testified, and Respondent moved for a directed verdict. The court found based on its observations in court of Petitioner's testimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. The Court found that Respondent's testimony was entirely credible.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States.
The Respondent decided to permanently remain in the United States with the
Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children.
Petitioner did not visit the Children after he left the United States in July 2010 and
before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of
the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a
parent could establish a habitual residence of a child by the "wrongful removal and
sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.
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