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Thursday, July 12, 2012

Luedtke v Luedtke Thomsen, 2012 WL 2562405 (S.D.Ind.) [Switzerland] [Habitual Residence]

      In Luedtke v Luedtke Thomsen,  2012 WL 2562405 (S.D.Ind.) Petitioner Nathan Luedtke's filed a Petition for Return of his two children to Switzerland.  Nathan Luedtke and Respondent Heidi Luedtke-Thomsen were married in 2006. Nathan, who was born in Naperville, Illinois, met Heidi, who was born in California, in California, and the couple lived together there while Nathan was a graduate student at the University of California, San Diego. The couple then moved to New Haven, Connecticut, where Nathan completed a two year post-doctoral fellowship. For the past six years the couple lived in Switzerland, where Nathan worked as a professor of organic chemistry at the University of Zurich. Heidi was the primary caretaker of the couple's two children-a four-and-a-half year-old girl and a fifteen month-old boy-both of whom were born in Switzerland.

         On March 26, 2012, Nathan arrived at the couple's apartment to find his wife
and children absent without any indication of their whereabouts. He soon discovered that the family's legal documents, including passports and birth certificates, were missing, as were the children's toys. Nathan discovered email messages containing receipts for airline tickets to San Francisco, where Heidi's brother lived. Nathan contacted Heidi's brother in San Francisco and asked him to meet her at the airport and help her care for the children.

Nathan was eventually able to make contact by email with Heidi, although she was unwilling to talk to him on the phone. During these conversations, Nathan learned that Heidi was concerned that he had developed a brain tumor and Heidi feared that violence would befall the children and herself at Nathan's hands. However, Nathan never threatened Heidi or the children, nor had there ever been any domestic violence in the family. Nathan's general practitioner never recommended that he be psychologically evaluated, nor had Nathan ever experienced an episode that he would characterize as "manic," "bipolar," or "clinically depressed."

        On April 7, Nathan arrived at Heidi's mother's house in the United States while Heidi was en route to her mother's house. Nathan then met with Heidi on April 9 and asked her to return the children to Switzerland, but Heidi indicated that she was not willing to do so. During the conversation, Nathan observed that Heidi, who appeared to have lost about twenty pounds, looked off into the distance and would then return to the conversation with "new ideas."    Nathan and Heidi met with a doctor at the University of California-Irvine on April 11. The doctor suggested that Heidi may be suffering from an unknown psychological problem and recommended that Heidi be admitted for a 72-hour inpatient evaluation. Following an incident outside the doctor's office, Nathan returned to Heidi's mother's home and, with Heidi's mother's approval, took the children to his brother's home in Carmel, Indiana, where the children still were.  The children  communicated daily with their mother by video chat, and Nathan  received approximately ten text messages and five emails per day from Heidi.

          After relocating the children to Indiana, Nathan traveled to Switzerland, where
he filed for legal separation and also filed a Hague petition with the Central Authority. While in Switzerland, Nathan underwent an MRI according to his agreement with Heidi that they both would seek medical evaluation. The MRI results were normal. Nathan has since returned to the United States, where he rented an apartment for himself and his two children while waiting for this matter to be resolved.

         The District Court observed that a petitioner seeking return of children must show by a preponderance of the evidence that (1) a child under sixteen years of age was (2) wrongfully removed (3) from his or her habitual residence. There can be no dispute as to the first element of Nathan's case: the Luedtke children are well under the age of sixteen. Because whether the removal is wrongful depends on the habitual residence of the child, the Court turns to analysis of that element next. It noted that   Courts should interpret "habitual residence" according to the "ordinary and natural meaning of the two words it contains, as a question of fact to be decided by reference to all the circumstances of any particular case." Koch, 450 F.3d at 712 (describing the habitual residence test articulated in Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001), and adopting its approach). With respect to young children, the intent of the child's parents rather than the intent of the child is most useful in determining the child's habitual residence. Koch, 450 F.3d at 713. In determining the parents' intent, the court considers whether the parents' primary "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 doing so, the court may consider actions as
well as declarations.

         Here, the evidence clearly established that the Luedtkes intended to abandon
the United States and make Switzerland their habitual residence. As a preliminary
point, the record revealed that the Luedtke family had lived in Switzerland for the
past six years. While sheer length of stay is not dispositive, other evidence indicated that the Luedtkes had abandoned residence in the United States and established residence in Switzerland. Nathan was recently awarded tenure status as a professor of organic chemistry at the University of Zurich. Because Heidi did not testify at the hearing, it was more difficult to discern her intent. However, the Court found that her decision to seek a larger flat, which required committing to a one-year lease, to accommodate the Luedtkes' growing family spoke to her intent to make her home in Switzerland. For these reasons, the Court concluded that the Luedtkes abandoned any residence they had in the United States and, at the time Heidi brought the children to the United States, their habitual residence was Switzerland.

          The District Court found that  the removal of the children from Switzerland was wrongful. Pursuant to Article 297, paragraph 1 of the Swiss Civil Code, parents exercise custody jointly during marriage. Furthermore, pursuant to paragraph two of the same Article, if the parents cease living together or they are separated, the court may award
parental custody to one spouse. There was no evidence to suggest that, at the time
Heidi removed the children from Switzerland, any court order existed as to custody
of the Luedtke children. For this reason, the Court concluded that Nathan and Heidi had joint parental custody under Swiss law at the time the children were removed. Thus, when Heidi took the children to another country, she effectively precluded Nathan from caring for the children or having any say in where the children would reside. The removal of the children from Switzerland  breached Nathan's custody rights and constitutes wrongful removal. The Court had little trouble concluding that Nathan was actually exercising his custody rights, given his testimony that he participated in caring for the children on evenings and weekends.

       Heidi argued that the children should not be returned to Switzerland because
doing so posed a grave risk of psychological harm to the children.    While Heidi argued that Nathan posed a risk of harm to the children, she offered little evidence supporting her allegations. The only evidence Heidi pointed was the fact that the Swiss Court where the petition for separation was pending  requested psychological evaluations of both parents. But this "evidence" shed little light, if any, on whether Nathan posed a risk of grave harm to the children; especially given that, in the meantime, the Swiss Court has ordered that custody remains with both parties. As such, Heidi fell far short of stablishing a risk of harm by clear and convincing evidence.  Nathan Luedtke's Petition for Return of Children was granted.

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