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Monday, August 27, 2012

Thomson v Gnirk, 2012 WL 3598854 (D.N.H.) [Canada] [Habitual Residence]

In Thomson v Gnirk, 2012 WL 3598854 (D.N.H.) petitioner, Jessica Lorraine Thompson, claimed that the respondent, Chad Paul Gnirk, wrongfully retained custody of their 3-year old daughter, J.G. in New Hampshire and sought J.G.'s return to Canada. At the trial Thompson participated via videoconference from the office of her counsel in British Columbia, while her American counsel was present in the courtroom to conduct her case. The District Court found that that J.G. was habitually resident in the United States as of August 25, 2012, when Gnirk's allegedly wrongful retention of custody of her began, so that Thompson's petition for relief under the Hague Convention had to be denied.

The District Court found that when the parties met, Gnirk was 34 years old and had been living with a friend and intermittently working at a restaurant. Gnirk was separated from, but still married to his wife, who lived, together with their daughter, in British Columbia. Gnirk was always a United States citizen and never had any permanent legal status in Canada. In June 2007, Gnirk moved to Washington State to work at a car dealership, and Thompson accompanied him. They initially lived together in a house that Gnirk rented, and then lived elsewhere in the area, including with one of Gnirk's friends. Gnirk and Thompson lived together in Washington State until June 2008. In the spring of 2008, while living with Gnirk in Washington State, Thompson discovered that she was pregnant. In June 2008, Thompson and Gnirk returned to British Columbia, where they initially lived in a structure outside the house of Thompson's sister and brother-in-law. After a brief time there, Thompson and Gnirk moved to a basement apartment they rented in Brentwood Bay, British Columbia. Gnirk worked sporadically in a restaurant during this time. Gnirk also explored the possibility of obtaining Canadian citizenship, which he discovered would prove difficult without a steady job. Thompson testified that, in late August 2008, she and Gnirk were engaged to be married. On January 18, 2009, J.G. was born at a hospital in Victoria, British Columbia. She was later issued a British Columbia birth certificate, a Canadian social insurance card, and, in April 2010, with Gnirk's consent, a Canadian passport. Eventually, Thompson and Gnirk decided that he should return to northern New England, where he had grown up, and where members of his family lived, to try to secure employment. In October 2009, Gnirk moved to Berwick, Maine, where he initially lived at the home of his brother and his family while looking for work. Shortly after the move, Gnirk accepted a job as the finance manager at a car dealership in Portland, Maine, but the job did not open up as anticipated, so the dealership allowed him to seek other employment. Gnirk worked for a few weeks in December 2009 as the sales manager at another car dealership, in Lebanon, New Hampshire, and then began working for the dealership in Portland that had initially hired him. In early December 2009, while Gnirk was working at the dealership in Lebanon, Thompson and J.G. traveled to the United States, where they began staying with Gnirk. Gnirk testified that, as he and Thompson had discussed prior to his own move to Maine, she and J.G. joined him there in December 2009 "to start a new life, get a home, settle down."

In late April or early May 2011, the parties' romantic relationship ended. Nevertheless, Thompson and Gnirk (and J.G.) continued living together in New Hampshire until May 26, 2011, when, with Gnirk's consent, Thompson and J.G. traveled to British Columbia. They initially stayed at Thompson's parents' house there. Thompson and Gnirk talked frequently by telephone. Thompson asked Gnirk to send her money, which he did. Roughly one month later, on June 26, 2011, Thompson and Gnirk met in Seattle, where Gnirk took J.G. back to New Hampshire with him. After returning to New Hampshire with J.G., Gnirk hired a babysitter to care for J.G. while he was at work. Thompson frequently communicated with Gnirk by phone or text to see how J.G. was doing, and spoke to J.G. by phone as well. On July 29, 2011, in what appeared to be one of a series of text messages between the parties around that time, Thompson wrote, "All I'm saying is I miss her and I don't think we can go three months. I'm dying here. I'm sure she misses me too" . This suggested that, contrary to Thompson's testimony, the parties had not already agreed that J.G. would stay with Gnirk for only two months.

The court found that Thompson, Gnirk, and J .G. had lived together in the United States (first in Maine, and then in New Hampshire) from early December 2009 to late May 2011, a period interrupted only by two visits that Thompson and J.G. made to Canada to see Thompson's family, and, finally, when Thompson, a Canadian citizen and J.G. returned to Canada following the breakup of the parties' romantic relationship. The circumstances of the cohabitation strongly suggested the parties' "shared intent or settled purpose" that J.G. reside in the United States and, therefore, that her habitual residence was in the United States as of the alleged wrongful retention. Nicolson v. Pappalardo, 605 F.3d 100, 103-04 (1st Cir.2010).


After Gnirk notified Thompson that he would not be sending J.G. back to Canada, on August 25, 2011, she filed, through counsel, an ex parte application with the Supreme Court of British Columbia seeking an award of interim custody over J.G. On August 25, 2011, the British Columbia court issued an order awarding Thompson interim sole custody of J.G. and directing Gnirk to return her to Thompson's care. Gnirk learned of the order after Thompson faxed it to the Gorham New Hampshire Police Department and an officer brought a copy of it to Gnirk's. On August 26, 2011, Gnirk filed an ex parte motion with the Berlin Family Division of the First Circuit Court of New Hampshire, seeking to be temporarily awarded sole decision-making and residential responsibility over J.G. The court granted that relief the same day. On August 29, 2011, Thompson filed an application with the British Columbia authorities for relief under the Hague Convention. In the Berlin Family Division, she later filed a "Petition to Register a Foreign Judgment," namely, the ex parte order awarding her interim sole custody of J.G. The Family Division held a hearing on Gnirk's and Thompson's petitions in November 2011. Following the hearing, which both parties attended with counsel, the Family Division left its order granting temporary custody to Gnirk in place, dismissed Thompson's petition to register the British Columbia court's contrary order, and directed her to file a petition requesting Hague Convention relief with the Family Division if she wished to pursue it. In February 2011, the Family Division held another hearing, for the purposes of considering whether it had jurisdiction to determine custody of J.G. and, if so, what further custody orders should issue. Thompson attended the hearing with counsel, but only to contest the Family Division's jurisdiction; she refused to participate as to custody matters. On March 23, 2012, the Family Division ruled that it had jurisdiction to determine J.G.'s custody, and approved Gnirk's proposed temporary parenting plan. The British Columbia court later held a series of hearings on Thompson's petition in April and May 2012. Gnirk did not appear at any of them. On May 10, 2012, the British Columbia court awarded Thompson permanent sole custody and permanent sole guardianship of J.G. Thompson commenced this District Court action on June 12, 2012.

The District Court observed that courts "[m]ost commonly" conclude "that the family as a unit has manifested a settled purpose to change habitual residence ... when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country." Mozes v. Mozes, 239 F.3d 1067, 1076-77 (9th Cir.2001). The circumstances outlined strongly suggested, if not outright compel-that conclusion here. Indeed, Thompson and Gnirk " did what parents intent on making a new home for themselves and their child do," including finding stable employment and housing in the place where they moved. Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995); see also Koch v. Koch, 450 F.3d 703, 714 (7th Cir.2006) (upholding finding that children's habitual residence was Germany where "the entire family moved to Germany because that is where [the father] found work. They took all of their possessions except for a few large items and established a life in Germany
where [the father] worked and [the mother] cared for the children").

In addition to this strong circumstantial evidence that the parties intended for J.G. to reside in the United States, there was also direct evidence to that effect. Gnirk testified that he and Thompson had discussed in advance that, after he moved to Maine, she and J.G. would join him there "to start a new life, get a home, settle down."The court credited this testimony not only because it made sense in light of the parties' situation in Canada prior to the move and their actions in the United States afterwards, but also because Thompson had not come forward with any plausible theory of what else the parties could possibly have been planning. She claimed that the parties intended that she and J.G. remain in Canada and occasionally visit Gnirk in the United States until he could return to Canada, but it was not clear how that would have been possible in light of Gnirk's lack of job prospects or legal immigration status in Canada. Moreover, there was no credible evidence that the parties did anything to put such a plan into effect at any point after moving to the United States. To the contrary, nearly everything they did manifested their shared intentions that J.G. reside, together with her parents, in the United States.

The Court observed that perhaps Thompson never stopped subjectively thinking of British Columbia as her "home," or even her daughter's "home." Thompson grew up there, her parents, sister, and extended family lived there, and J.G. was born there. Perhaps she even subjectively thought of the time she and J.G. spent with Gnirk in the United States as "visits." Everything but Thompson's trial testimony suggested that she did not in fact see things that way, at least contemporaneously, but, as she acknowledged, her subjective feelings as to where J.G. was living carry little if any weight in the habitual residence analysis in any event.

The Court noted that the Court of Appeals has squarely rejected the notion that, "if [one parent] were credited with a fixed subjective intent to take her daughter permanently to [one country], then all other circumstances would be irrelevant" in deciding habitual residence, because " '[s]tanding alone, of course, [one parent's] intent that the child should one day live in [that country] cannot support a finding of habitual residence.' " Nicolson, 605 F.3d at 105 (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1253 n.4 (11th Cir.2004)). Instead, whether the parents have arrived at a settled intent as to the child's habitual residence "should be guided by an objective observer standard."

Based on the facts and circumstances any objective observer would have to conclude that, in early December 2009, Thompson and J.G. had moved to the United States to live with Gnirk, and continued living there with him until late May 2011, a situation that clearly reflected the parties' settled intent that J.G. reside in the United States with her family as a unit.

The parties never sought legal immigration status in the United States for either her or for J.G., both of whom were Canadian citizens. While some courts have treated this fact as tending to negate any shared intent for the child to reside in the country in question, see, e.g., Ruiz, 392 F.3d at 1256, none appears to have relied exclusively on the child's (let alone a parent's) lack of legal status in a country to reject it as the child's habitual residence, and that fact certainly could not bear such significance here. To the contrary, it was reasonable to infer that the parties never sought lawful permanent residency or citizenship in the United States for Thompson or J.G. because they were preoccupied with the day-to-day issues that preoccupy many young working families, such as employment, housing, and financial stability, and not because they never intended that J.G. should habitually reside in the United States.

Thompson also argued that, prior to the move to the United States in December 2009, J.G.'s habitual residence was Canada, so that the court can find that her habitual residence later became the United States only if the "objective facts point unequivocally to a new habitual residence." As support for this view of the law, Thompson relied on a statement from the Eleventh Circuit's decision in Ruiz, with which she claims the First Circuit has said, in Nicolson, it is "in accord." There were several problems with this argument.

First, Nicolson does not say that it is "in accord" with this aspect (or claimed aspect) of Ruiz. Instead, Nicolson states that "Ruiz accords with our own view that the law is less rigid than [the respondent in that case] assume[d] and that tests of habitual residence must be applied to the circumstances of the case." 605 F.3d at 105. It is difficult to read this statement as an endorsement of the very sort of rigid test that the court understood Thompson to propose, i.e., so long as a child was habitually resident in some other country at some prior point-irrespective, it would appear, of how long ago that was at the time of the alleged abduction or retention-a new habitual residence can be shown only by "unequivocal" evidence. Second, Ruiz did not stand for that proposition anyway. Ruiz says "that  when there is no shared settled intent on the part of the parents to abandon the child's prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence." 392 F.3d at 1254 (discussing Mozes, 239 F.3d at 1081). The court found that the parties had the "shared settled intent" to abandon J.G.'s habitual residence in Canada and move her habitual residence to the United States, even assuming, without deciding, that the parties had previously formed a shared settled intent that J.G. reside in Canada, a point on which there was conflicting trial testimony and circumstantial evidence that is ambiguous at best. Ruiz, then, does not support Thompson's view that J.G.'s habitual residence was Canada, rather than the United States, at the time of Gnirk's alleged wrongful retention of her on August 25, 2011.

Prior to that point, of course, J.G. had briefly traveled to Canada with Thompson, following the dissolution of the parties' romantic and cohabitative relationship in late May 2011. But "the mere fact that conflict has developed between the parents does not ipso facto disestablish a child's habitual residence, once it has come into existence." Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir.2003). To show that Canada became J.G.'s new habitual residence following the parties' breakup in May 2011, Thompson would have to show by a preponderance of the either a "shared settled intent on the part of the parents to abandon the child's prior habitual residence" or that the "objective facts point unequivocally to a new habitual residence." Ruiz, 392 F.3d at 1254.


The court could not find, by a preponderance of the evidence, that, following the end of the parties' romantic relationship in May 2011, they ever shared any "settled intent" that J.G. reside in Canada going forward. The court found that the parties had not decided where J.G. would live in the future, either before Thompson and J.G. traveled to Canada on May 26, 2011, or before Thompson transferred J.G. to Gnirk on June 26, 2011.Nor could the court that J.G.'s habitual residence became Canada as of May 26, 2011. J.G. had spent only about a month there before returning to New Hampshire in late June 2011.

Deciding a child's habitual residence under the Hague Convention is usually a "task to determine the intentions of the parties as of the last time their intentions were shared." Gitter, 396 F.3d at 134. The parties did not share an intent to transfer J.G.'s habitual residence to Canada at any point after they had settled on an intent that she habitually reside in the United States. It followed that the last time the parties shared an intent that J.G. habitually reside in any country, it was the United States.

The Court found that, as of Gnirk's allegedly wrongful retention of J.G. on August 25, 2011, J.G. was habitually resident in the United States. It followed that Thompson has not carried her burden of proof for relief under Article 3 of the Hague Convention. In reaching this conclusion, the court repeatedly found that Thompson's testimony was not credible, both as to larger matters such as whether she was simply "visiting" the United States and as to more minute details. The court stressed that it did not view Thompson as an inherently untrustworthy person, or as a witness bent on misleading the trier of fact. Instead, the court suspected that Thompson, like many parties who testify on their own behalf-particularly those who bear the burden of proof-was struggling to square prior events, including her own behavior, with the necessary showing (in this case, that she and Gnirk never shared an intent for J.G. to reside anywhere but Canada).

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