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Tuesday, November 20, 2012

Walker v Walker, 2012 WL 5668330 (C.A.7 (Ill.) [Australia] [Habitual Residence] [Consent]

In Walker v Walker, 2012 WL 5668330 (C.A.7 (Ill.) Iain Walker, a citizen of Australia, filed suit to compel his wife, Norene, a citizen of the United States, to return the couple's three children to Australia. Iain and Norene were married in Chicago in 1993. They lived in Seattle, Washington, until 1998 when they moved to Perth, in Western Australia. The couple's eldest child was born in the United States in 1997, but lived in this country only one year; the two younger children were born in Australia in 1999 and 2001.

Although Norene testified that she and Iain initially intended to stay in Australia for only five years, they ended up spending 12 years there. Over this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children.

In June 2010, the Walkers traveled to the United States. When they left Australia,
both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year. According to Iain, the plan was for Norene and the children to live with Norene's parents in Chicago while the family demolished its existing house in Perth and built a new one. According to Norene, the trip was intended as an extended prelude to a permanent move to the United States; she testified that Iain promised to look for a job in Chicago and that they looked at real estate in San Francisco and Seattle. Although both recalled that Norene and the children had concrete plans to return to Australia by June 2011 at the latest, Norene labeled this most likely a temporary visit and Iain understood it to be a permanent return. After spending several weeks with Norene and the children in the United States, Iain returned to Australia in late July 2010. In November, Norene filed for divorce in Cook County, Illinois. As of that time, she said, she had not made up her mind whether she (and presumably the children) would remain in the United States permanently or return to Australia.

Upon receiving Norene's petition for divorce, Iain's lawyer in Australia sent a letter to Norene's attorney offering to settle the divorce out of court. The letter also dealt with the division of property. Notably, the letter explicitly referred to the Hague Convention. On Iain's behalf, the lawyer asserted that "[t]he parties' habitual residence is quite clearly Australia," and that Iain "would clearly be entitled to bring an Application under the Hague Convention to have the children returned to Australia."In closing, the letter stated "this offer is open for a period of 7 days ... and if not accepted [Iain] will then proceed to exercise his full rights pursuant to the Hague Convention, and do all that is required to ensure that proceedings are transferred" to the Family Court of the State of Western Australia. The January 21 letter marked a turning point for Norene. She regarded it as giving her permission to stay in the United States and indicating that Iain "didn't want the kids." She testified that shortly after receiving the letter, she made up her mind not to return to Australia. The negotiations ended without a resolution in mid-February. Iain immediately filed a request for the return of the children with the Australian Central Authority charged with administering the Convention. In May, Iain filed a petition for return in the district court for the Northern District of Illinois. Following a two-day evidentiary hearing, the district court denied the petition.

The Seventh Circuit rejected Noreens argument that the case was mooted by an Illinois state-court judgment awarding sole custody of the children to Norene.
According to Norene, the Illinois judgment conclusively resolved the parties'
custody dispute in her favor and precluded the court from ruling that the Hague
Convention required the custody determination to occur in the courts of Australia.
It observed that Article 17 of the Hague Convention expressly states that "[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention." This treaty provision qualifies the finality of any state-court custody judgment and thus ensures that there is still a live controversy before the federal court.

It distinguished Navani v. Shahani, 496 F.3d 1121 (10th Cir.2007) which did not address this question. The issue of habitual residence, and thus the question of which country's courts had the power finally to determine custody under the Convention, was not before the court in Navani. Here, Iain and Norene disputed habitual residence. Until that question is resolved, it could not say which country's courts had the power to resolve the issue of custody. As Article 17 of the Convention implies, this antecedent question must be answered before the court knows what weight to give to the judgment of the Illinois court. Accepting Norene's position that an abducting parent may render a petition for return moot by racing to a courthouse in her chosen country to obtain a custody judgment would turn the Convention on its head. To consider this case moot would encourage the very sort of jurisdictional gerrymandering the Convention was designed to prevent.

The Court of Appeals also held that the district court's decision to admit the January 21 letter into evidence over Iain's objection that the letter was an offer of settlement and thus inadmissible under Federal Rule of Evidence 408 was error. Iain challenged the district court's findings that he (1) failed to establish that the  children were habitually resident in Australia; (2) failed to establish that he was exercising his custody rights; and (3) consented to the children remaining permanently in the United States.

The district court identified May 4, 2011, the day Iain filed his petition for return in the district court, as the date the retention began. It considered that to be the date when
Iain first "unequivocally signaled h[is] opposition to [the children's] presence in the
United States."Although Iain had expressed his intent to file a petition for return of the  children in the January 21 letter (and again in a follow-up letter on February 16), the district court declined to view these statements as "unequivocal[ ] signal[s]" of opposition because, in the court's view, "it was apparent that Petitioner was referring to the Convention as a bargaining chip." Nothing but speculation supported the
district court's "bargaining chip" idea. The January 21 letter unequivocally said that "[t]he parties' habitual residence is quite clearly Australia."It goes on to point out that the "clearly appropriate forum" for the parties' divorce proceedings is Australia and that it is "an abuse of process to unilaterally decide to remain in the United States."It then repeats that "Western Australia is the habitual residence of the children."Finally, the letter announces Iain's intent to file a petition under the Hague Convention, a step that he confirmed in his February 16 letter. Under the circumstances, it was hard to see how much more "unequivocal" one could be. For purposes of analysis, the court assumed that the retention began on January 21, or, at the latest, several weeks thereafter.

The Court of Appeals observed that to prevail on his petition, Iain was required to show that Australia was the children's habitual residence at the time of their retention in the United States. It explained in detail how to determine a child's habitual residence in Koch v. Koch, 450 F.3d 703 (7th Cir.2006). In a case of wrongful detention the court determines a child's habitual residence by asking whether a prior place of residence ... was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time. Because the parents often dispute their intentions, "the court should look at actions as well as declarations" in determining whether the parents "shared an intent to abandon a prior habitual residence."

The district court found that the children's habitual residence became the United States by January 21, 2011, at the latest. This conclusion was premised on the
following findings: that Iain consented to the children's living in the United States in
the January 21 letter; that five months passed between the letter and the filing of
the petition for return in district court; and that Iain and Norene looked for houses in
the United States. The first finding fundamentally misreads the January
21 letter. The problem with the second finding was that Iain took prompt steps to secure the children's return by filing a request for return with the Australian Central Authority in mid-February 2011, as soon as it became apparent that a negotiated settlement was not forthcoming. The Court could not find enough in the record to support the conclusion that Iain and Norene arrived in the United States with the shared intention of abandoning Australia and establishing a new habitual residence here.

Assuming that the children's habitual residence was Australia, Iain must still show he
was "actually exercis[ing]" his custody rights at the time of the retention. Art. 3. The
standard for finding that a parent was exercising his custody rights is a liberal one, and  courts will generally find exercise whenever "a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007) Indeed, "a person cannot fail to 'exercise' [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066. Although it acknowledged the liberal nature of the standard, the district court  nevertheless found that Iain had "abandoned" his children. In support of this rather
extreme conclusion, the court noted that Iain did not return to the United States after
July 2010, that he ceased supporting Norene financially after January 21, 2011, and
that his January 21 letter was mainly concerned with "the negotiation of support
payments and property settlement." All of those things may be true, but they did not add up to "unequivocal abandonment" of the children (as opposed, perhaps, to Norene). The district court overlooked Norene's undisputed testimony that Iain keeps "regular contact" with the children by speaking to them weekly over Skype. Just as the January 21 letter did not show that Iain consented to the children's remaining in the United States, it similarly did not show that Iain was interested exclusively in reaching a settlement regarding marital property. A letter that requests custody for the children's entire summer vacation plus Christmas and asks for multiple visitation opportunities at other times of the year can hardly be characterized as indifferent to custody issues.

lain's lack of financial support after January 21, 2011, was not enough for a finding of abandonment. Because non-exercise is evaluated at the time of the retention, which must have occurred on January 21 or shortly thereafter, lain's failure to provide support after the retention was irrelevant to whether he was exercising his custody rights when the wrongful retention began. See, e.g., Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir.2005) The cases that address some version of this issue have found that a parent does not fail to exercise his custody rights merely by failing to provide financial support for some period prior to the removal or retention. The Court could not find on the current record that Iain's failure to provide financial assistance while Convention proceedings are pending amounted to a failure to exercise his custody rights.

Even if Iain had established a case for return under the Convention, he could
have waived that right if he consented to, or acquiesced in, the children's remaining in the United States with their mother. Art. 13. Consent and acquiescence are analytically distinct defenses to return under the Convention. Baxter, 423 F .3d at 371. The consent exception applies when a petitioning parent, either expressly or through his conduct, agrees to a removal or retention before it takes place. A parent's consent need not be formal, but "it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. Acquiescence is implicated if a petitioning parent agrees to or accepts a removal or retention after the fact. Baxter, 423 F.3d at 371. Unlike consent, acquiescence must be formal, and might include "testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." One way or another, the "exceptions [must] be drawn very narrowly lest their application undermine the express purposes of the Convention. The Article 13 exceptions are  permissive: a court may order return even if it finds that the parent opposing the petition has established that one of the exceptions applies.

The district court found that Norene had established consent. The bases for this
conclusion were the January 21 letter, which the district court characterized as indicating Iain's "unconditional consent" to the children remaining in the United States, Iain's failure to visit the United States after July 2010, and his failure to provide financial support. The January 21 letter could not be read as an expression of consent, let alone unconditional consent, to anything. The letter was an opening offer, a single stage in a negotiation; it conceded nothing and in any event was rendered null by the parties' failure to come to an agreement. Apart from the letter, the district court's remaining justifications were either clearly erroneous or irrelevant.

Having concluded that the district court's decision the Court remanded for further fact finding setting forth the questions the district court must resolve taking evidence as necessary.

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