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Monday, June 18, 2012

Lyon v Lyon, 2012 WL 1970363 (D.Kan.) [England] [Consent and Acquiescence]

In Lyon v Lyon, 2012 WL 1970363 (D.Kan.) petitioner Kevin Lyon filed a Verified Petition for Return of Child to England and Issuance of Show Cause Order seeking the return of his three-year-old son, F.M.S.L., to England under the Hague Convention. Mr. Lyon contended the respondent, Lisa Moreland, Lyon, the child's mother, unlawfully removed F.M.S.L. from England to Kansas in August 2011. Ms. Moreland-Lyon contended she did not wrongfully remove the child under the Act, that Kansas was the child's habitual residence, and that the Kansas state court had jurisdiction to determine the child's custody. She also argued that the well-settled exception applies, or that Mr. Lyon consented and acquiesced in F.M.S.L.'s removal. The court granted Mr. Lyon's motion and ordered that F.M.S.L. be returned to England.
Mr. Lyon and Ms. Moreland-Lyon met each other while she was on vacation in England in 1995. He was a citizen of the United Kingdom, and she was a citizen of the United States. By the end of 1997 or early 1998, Ms. Moreland-Lyon moved into Mr. Lyon's home in Prestwich, Manchester, England. After dating for four years, the couple married on October 28, 1999. For the next ten or eleven years, the couple lived in Prestwich. But it was normal for Ms. Moreland-Lyon to visit her mother in Kansas annually. While in England, Ms. Moreland-Lyon upgraded her academic qualifications in a school in the United Kingdom and obtained residency.

In March 2009, she gave birth to F.M. S.L. in Manchester. She stayed in the
United States for some of the pregnancy but traveled back to England in January 2009, in part to take advantage of England's universal healthcare system and so that F.M.S.L. would be eligible to receive "child benefit," which is provided to all children born in  England. Half of this child benefit was deposited regularly into Ms. Moreland-Lyon's English bank account for F.M. S.L.'s benefit. Mr. Lyon has also deposited money in this bank account for F.M.S.L. for the last three years. Since birth, F.M.S.L. has lived in both the United States and England at various times. In the fall of 2009, Ms. Moreland-Lyon traveled with F.M.S.L. to the United States to attend the Renaissance Festival as she had done in the past. During their time in Kansas, they stayed with Ms. Moreland-Lyon's mother and stepfather in Overland Park, Kansas. Mr. Lyon visited for about a week in October. Ms. Moreland-Lyon and F.M.S.L. returned to England in early December. The couple spent Christmas in Manchester. From December 2009 to August 2010, Mr. Lyon, Ms. Moreland-Lyon, and F.M.S .L. lived in England in the couple's home and did typical family things. In early May 2010, the couple was outbid on a home they were looking at in Prestwich, which upset Ms. Moreland-Lyon. She was eager to move out of their home in Prestwich to this larger home nearby.

Ms. Moreland-Lyon and F.M.S.L. traveled back to Kansas for the Renaissance Festival in August 2010. The plan was for Ms. Moreland-Lyon to remain in Kansas for the duration of the festival and to return to England by October 28. She did not return by that date and decided to remain in Kansas longer. Ms. Moreland-Lyon's mother persuaded her to return to England with F.M. S.L. on May 11, 2011.

Ms. Moreland-Lyon visited the United States for the 2011 Renaissance Festival. She and her husband’s agreement provided that Ms. Moreland-Lyon would leave for the United States on August 4, 2011, and return to England on December 11, and that Ms. Moreland-Lyon and F.M. S.L. would return to the United States on February 1, 2012, and stay through August 14. Ms. Moreland-Lyon testified that she signed the  agreement under duress because it was the only way she would get F.M.S.L.'s United  States passport returned to her. On August 4, Ms. Moreland-Lyon and the child flew to  Kansas. Mr. Lyon drove them to the airport and paid for the tickets. Mr. Lyon traveled
to Kansas in October. During the visit he met with Barbara Lyons, Director of the  Johnson County Montessori Preschool and Day Care. The child was currently enrolled  and attending the preschool. On December 9, Ms. Moreland-Lyon informed Mr. Lyon that she was not going to return to England on December 11 unless she had assurances from him that he would abide by the terms of the parties mediated agreement. Mr. Lyon provided several written assurances that he would abide by the agreement, yet Ms. Moreland-Lyon has refused to return to England with F.M.S.L.

The child was presently located in the District of Kansas, living with Ms. Moreland-Lyon in Overland Park. As in England, F.M. S.L. had a pediatrician and dentist in Kansas, and was flourishing in his environment.  In December 2011, Ms. Moreland-Lyon initiated divorce proceedings against Mr.
Lyon in Kansas state court. The court entered Ex Parte Temporary Orders providing for  rights of custody and access to Mr. Lyon and ordered the parties to participate in mediation to come up with a permanent parenting plan. A Decree of Divorce was entered in the case on April 16, 2012. The court found that Ms. Moreland-Lyon and the child "have been actual residents of the State of Kansas since August 3, 2010."The court stayed ruling on the custody of the child pending the outcome of the present Petition for Return of Child.

Mr. Lyon filed a Petition on March 23, 2012. The Court found that his habitual residence was England. F.M. S.L. had traveled back and forth from England to Kansas several times. Since birth he lived in England for approximately 16 months and Kansas for 14 months, not including the last 10 months since he was removed from England. The total number of months F.M.S.L. spent in each country was not determinative of  the habitual residence issue. As such, the court had to look to the parents' conduct, intentions, and any agreements they may have made regarding the child's living arrangements before and after removal. It was clear from the testimony that England was the couple's home throughout their marriage. Ms. Moreland-Lyon lived in England throughout the marriage except during her trips to the United States to work at the Renaissance Festival and to substitute teach. But those trips were relatively short in duration. Mr. Lyon continued to live and work in England full-time and only traveled to the United States for brief vacations. Additionally, F.M.S.L. was born in England. He lived in England for the first five months of his life, and returned to the United States only for the Renaissance Festival in 2009, 2010, and 2011. During those three years the plan was that Ms. Moreland-Lyon would reside in the United States with F.M.S.L. during the Renaissance Festival as she had done in the past before he was born. Each year, Ms. Moreland- Lyon unilaterally extended those stays in the United States without Mr. Lyon's consent.

Ms. Moreland-Lyon's changed intentions were the sole reason F.M.S.L. was away from England for long periods of time, and this court found that her unilateral actions did not change F.M.S.L.'s habitual residence. See Mozes, 239 F.3d at 1077. Therefore, England was F.M.S.L.'s habitual residence.

It was undisputed (1) that the parties were married when Ms. Moreland-Lyon removed F.M.S.L. from England, (2) that Mr. Lyon is F.M.S.L.'s father, (3) that the parties divorced on April 16, 2012, (4) that no court has ordered custody in this matter, and (5) that the parties had an informal agreement regarding visitation. Mr. Lyon has rights of custody under English law under the Children Act 1989 and the Child Abduction Act 1984. Both acts provide that couples married at the time of a child's birth have joint parental responsibility for the child. Ms. Moreland-Lyon did not contest that her removal breached these custody rights. Therefore, Mr. Lyon had custody rights to F.M. S.L., and Ms. Moreland-Lyon's removal of the child to the United States violated those rights. It was also uncontested that Mr. Lyon was exercising his custody rights.

The Court rejected Ms. Morlands "well-settled" defense finding that the child was here less than a year. Regardless, the court was not persuaded that F.M. S.L. was well settled in Kansas simply because he had a doctor, dentist, a preschool, and people looking after him in Kansas. The facts indicated F.M.S.L. had those things in England too. There was no dispute that F.M.S.L. was doing well in Kansas or that he was acclimated to living there. But he also had acclimated to life in England, and he was young enough that he could grow accustomed to nearly any location within a short period of time. "[I]n the abscence of settled parental intent, courts should be slow to infer from [the contacts noted above] that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. For these reasons, the court found that the well-settled exception did not apply.

The court observed that it was not required to return the child if it found that the  respondent established that the petitioner consented to or acquiesced in the removal. The consent defense requires that the respondent show that the petitioner consented to the removal before the removal. Acquiescence focuses on the petitioner's conduct after removal. Mrs. Moreland-Lyon argued that Mr. Lyon consented to the removal in August 2011 because he drove her and F.M.S.L. to the airport when they left England. These actions did not indicate that Mr. Lyon consented to F.M. S.L.'s permanent removal from England. Rather, Mr. Lyon did not really have a choice in the situation. Under the mediation agreement, Ms. Moreland-Lyon and F.M.S.L. were scheduled to leave for the United States. Mr. Lyon merely did what was in his nature-he drove his son and wife to the airport because he believed it was the right thing to do.

 Ms. Moreland-Lyon argued that Mr. Lyon acquiesced in the removal by meeting with the Montessori school in Johnson County. Yet this did not indicate Mr. Lyon's acquiescence to F.M.S.L. living permanently in Kansas. Mr. Lyon testified that he looked at the school and ultimately enrolled his son there so that he could benefit  from the opportunities the school provided. Enrollment in the school only showed that Mr. Lyon was trying to do the best for his son despite the couple's marital problems. Thus, the acquiescence argument failed.

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