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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.

Font Paulus ex rel. P.F.V. v. Vittini Cordero, 2012 WL 2524772 (M.D.Pa.) [Dominican Republic] [Well Settled in New Environment] [Wishes of the Child]

      In Font Paulus ex rel. P.F.V. v. Vittini Cordero, 2012 WL 2524772 (M.D.Pa.) Alberto Eugenio Font filed a Verified Petition for Return in which he alleged that  P.F.V.'s mother, Respondent Ana Virginia Vittini Cordero, wrongfully retained P.F.V. in the United States without his permission. He sought the return of his child P.F.V. to the Dominican Republic where the Petitioner and his daughter were citizens.

       The Court observed that it must first determine when an alleged wrongful removal or retention occurred so that it could establish the relevant date of the child's habitual residence. ( Karkkainen, 445 F.3d at 290). Wrongful removal refers to the
noncustodial parent's physical taking of the child out of the country. Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir.2005). Thus, a noncustodial parent may remove a child from the country with permission, but then wrongfully retain the child outside the country. The assertion in this matter was not that P.F.V. was wrongfully removed to the United States, but that she was unlawfully retained here by her mother.

       The Court observed that in determining the date of a wrongful retention, the Third Circuit Court of Appeals  held that it "does not begin until the noncustodial parent...clearly communicates her desire to regain custody and asserts her parental right to have [her child] live with her." Karkkainen, 445 F.3d at 290.  Here, it appeared that the wrongful retention occurred on July 8, 2010. Mr. Font Paulus signed an agreement limiting the period in which his former spouse could keep his daughter outside of her home country. That agreement specifically stated that she would be "returning to [Santo Domingo] on July 8, 2010." Therefore, the wrongful retention occurred when Ms. Vittini Cordero did not return P.F.V. to the Dominican Republic on that date: July 8, 2010.

      It was necessary to determine "the State in which the child was habitually resident immediately before the removal or retention. "Convention Art. 3a. The Court noted that the  Third Circuit Court of Appeals has defined a child's habitual residence as "the place where he or she has been physically present for an amount of time sufficient or acclimatization and which has a 'degree of settled purpose' from the child's perspective." Baxter, 423 F.3d at 368. The inquiry focuses on the child and "consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." "When a child is too young to have an intent regarding her habitual residence, the touchstone inquiry is 'shared parental intent.' "  In re Application of Adan, 437 F.3d 381, 392 (3d Cir.2006) The focus is the "degree of settled purpose."  It is not necessary that the person intends to stay in a place indefinitely. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.  Where the parents have stipulated to the child's residence in a written agreement, their shared intent need not be inferred from their actions.     Mr. Font Paulus  successfully demonstrated that P.F.V.'s habitual residence at the time of the wrongful retention was in the Dominican Republic. P.F.V. was born in the Dominican Republic and there was no evidence presented that,  prior to her departure in June of 2010,  she had ever been to another country. She had lived in the Dominican Republic for ten years, meaning she was acclimatized and settled there. While there was evidence presented indicating that P.F.V.'s parents perhaps did not envision P.F.V. remaining forever in the Dominican Republic, including Mr. Font Paulus's consent to P.F.V. obtaining United States citizenship, this was immaterial to the termination. Mr. Font Paulus testified credibly that he believed permanent residency status would be used for P.F.V. to travel to the United States for vacations only, and that P.F.V. would ultimately decide her residence upon turning eighteen. Moreover, as to the particular trip at issue, the power of attorney / authorization to travel explicitly provided for P.F.V.'s return to the Dominican Republic after just one month. Mr. Font Paulus testified that he had rejected attempts at longer periods and that it was his expectation and intention that P.F.V. would return to her school in the Dominican Republic in the fall. Together, this indicated that P .F.V. was a habitual resident of the Dominican Republic at the time she was retained in the United States.

        The third inquiry considered whether there had been a breach of the Petitioner's rights of custody.   The testimony presented at the hearing established that Ms. Vittini Cordero left P.F.V. with Mr. Font Paulus from 2003 until December of 2009. During this period, on June 6, 2005, the two parties signed a divorce agreement stating "that they have agreed by means of the present act to transfer the mother Ana Virginia the watch and tutelage of the girl [P.F.V.]."  Conversely, in a May 11, 2009 agreement, the parties acknowledged that the Father had exercised de facto custody of P.F.V. for the preceding seven years.   From the testimony before the Court, it appeared that the de facto custody arrangement would have continued except that Ms. Vittini Cordero took possession of the child in December of 2009 and would not return her to Mr. Font Paulus. This caused Mr. Font Paulus to file a petition for custody on April 5, 2010, which was denied on October 13, 2010 as it was "physically impossible" for that court to secure the girl's testimony.

       This general arrangement was in accordance with the Court of Appeals for Children and Adolescents of the National District of the Dominican Republic which determined that, when affirming the denial of Ms. Vittini Cordero's request for unilateral authorization to take P.F.V. out of the Dominican Republic, while the divorce settlement agreement gave Ms. Vittini Cordero custody of her daughter, that Mr. Font Paulus had been exercising de facto custody.  Like the lower court, the appellate court held that "it is not appropriate to grant permission to depart until the custody of the minor and the place where she is to reside (abroad or in the Dominican Republic) is definitively decided upon."

             However, by the time of that decision, June 28, 2010, P.F.V. was already in the
United States with her mother by operation of the power of attorney / authorization to travel. This authorization was necessary as the Court for Children and Adolescent of the National District of the Dominican Republic denied Ms. Vittini Cordero's petition requesting authorization for P.F.V. to travel. This would have been necessary as the
Dominican Code for the Protection of Children and Adolescents, Act No. I4-94,
Article 116 provides that "No child or adolescent may travel outside the country
unless accompanied by a parent or guardian."Pertinent to this matter, Article 117
elaborates on this by establishing that a court is responsible for granting such
permission "in the event of disagreement about it between their parents or legal

      This restriction conferred a ne exeat right on the Petitioner over his child. Such is "[a]n equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction . And, such a right will be found where a parent has a right to consent before the other parent removes the child from the jurisdiction. The Supreme Court has held that ne exeat rights are sufficient to support right of custody under the convention.    In this case, having failed to secure a proper court order, Ms. Vittini Cordero's authority to take P.F.V. outside of the country was predicated on the power of attorney, which expired on July 8, 2010. Therefore, it was unnecessary to analyze the complexities of the de facto custody arrangement between the parties as it was clear that as of July 8, 2010, Ms. Vittini Cordero was retaining P.F.V. in the United States in violation of Mr. Font Paulus's ne exeat rights. Such a right triggered "the Convention's protection of a parent's custodial"right to determine the child's place of residence."

         The Respondent presented evidence that from the end of December 2009 to the
departure on June 8, 2010, some six months, P.F.V. lived with her at the home of
Respondent's mother. Moreover, the evidence was that Petitioner was not permitted
to see P.F.V. and saw her only when he went to her school. Respondent contended
that during this period she was exercising custody rights conferred by the divorce
settlement. Without analyzing whether these rights were abandoned by Respondent's
absence for two years, it sufficed to say that this six-month period did not
overcome the ne exeat rights of Petitioner, assuming arguendo he did not have de
facto custody during this period. Therefore, Mr. Font Paulus was exercising his custody rights at the time of the wrongful retention and he  established a wrongful

        The Court noted that the well-settled exception only applies where the proceedings have been commenced after the period of one year from the date of the wrongful retention. The wrongful detention in this case began on July 8, 2010. As these proceedings were initiated on May 24, 2012, they were commenced more than one year from the date of the wrongful retention.    In determining whether a child is so well-settled, Courts review a list of factors. Within this Circuit, district courts had considered:  (1) the age of the child; (2) the stability of the child's new residence; (3)  whether the child attends school or daycare consistently; (4) whether the child  attends church regularly; (5) the stability of the [parent's] employment or
 other means of support; (6) whether the child has friends and relatives in the  area; ... (7) to what extent the child has maintained ties to the country of  habitual residence ... [8] the level of parental involvement in the child's  life[;][9] active measures to conceal [the] child's whereabouts (and the  possibility of criminal prosecution related thereto) [;] and [10] the  immigration status of the child and respondent.

      The court noted that the most important factor in the analysis will usually be "the length and stability of the child's residence in the new environment." In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir.2009).   Most pertinent to the instant case, however, was the recognition in element nine (9) above that concealment is a relevant factor in the analysis. Though the Third Circuit has not addressed the issue, the Ninth and Eleventh Circuits have applied the doctrine of equitable tolling to the Convention. See  Duarte v. Bardales, 526 F.3d 563, 569 (9th Cir.2008);  Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.2004) . Under this rule, "equitable principles may be applied to toll the one-year period when circumstances suggest that the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return." Duarte, 526 F.3d at 570. The Eleventh Circuit noted that federal limitations periods are customarily subject to equitable tolling, Furnes, 362 F.3d at 423, and the Ninth Circuit reasoned that "awarding an abducting parent an affirmative defense if that parent hides the child from the parent seeking return would not only encourage child abductions, but also encourage hiding the child from the parent seeking return."The U.S. State Department similarly stated in its public notice on the Convention that "[i]f the alleged wrongdoer concealed the child's whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.”

        The Court held that based on the credible testimony of Mr. Font Paulus, equitable tolling was properly applied to this matter.  Mr. Font Paulus testified that after July 8, 2010, he had contact with his daughter once on August 1, 2010 when she called him and did not leave a telephone number or the address at which she was staying. Following that date, Mr. Font Paulus was unable to ascertain her whereabouts until December of 2011 when he developed a belief that P .F.V. could be in Pennsylvania based on a birthday phone call received by Mr. Font Paulus's mother on December 31, 2010. Conversely, Ms. Vittini Cordero testified that she informed her ex-husband as to their move to Pennsylvania and that Facebook  somehow provided the specific addresses, but this testimony was confusing, uncorroborated, and lacking in credibility. The Court declined to credit P.F.V.'s specific statements that she had kept her father updated on the addresses since it did not  find it particularly credible due to the child's lack of maturity and her mother's influence. Instead, it found that even through the exercise of appropriate diligence that Mr. Font Paulus could not determine the location of his daughter from July 8, 2010 until December 31, 2010. Therefore, the one-year period for the application of the well-settled defense was tolled until December 31, 2010, and since the application was filed on May 24, 2012, this defense could not apply on its face.

           However, the court held that even if the period were not tolled, the defense would be inapplicable since the facts did  not suggest a stable residence in the United States. While there was very little evidence proffered at the hearing suggesting that P.F.V. was well-settled in the United States, there was significant testimony that her stay here had actually been rather chaotic. There was no affirmative evidence suggesting stability in the child's new residence, any consistency in the child's religious activities, whether the mother was employed or providing support, or whether there were any useful support structures which could assist the child and her mother within the United States. Instead, the testimony reflected a series of moves within New York City and within Pennsylvania, a disastrous fire which apparently destroyed all of P.F.V.'s possessions and killed her neighbors, and a subsequent period in which Ms. Vittini Cordero was so pressed to secure housing that she was unable to even contact friends or family members. The only fact which suggested that P.F.V. was well-settled was her uncorroborated statement that she had attended Trinity Academy since 2010. Even taken as true, this singular fact did not render her well-settled within the Untied States.    Therefore, since the exception did not apply based on tolling, and since there were inadequate facts to support its application, it was  not be applied to this case.

         The Court found that the “wishes of the child” defense failed for the same reason, that any attachment P.F.V. has developed to the United States had largely been the product of the time she was wrongfully retained here and was not derived from the period in which Mr. Font Paulus permitted her to be here on vacation.  P.F.V. did not express any strong attachment to the United States. Although P.F.V. testified that she did prefer life in the United States, this preference was largely based on that she had more friends and things here, and that she was getting better grades in her classes. This could hardly be characterized as a strong attachment. Even more fundamentally, the Convention looks to whether the child objects to being returned, and P.F.V. candidly explained that she would not object returning to the Dominican Republic where she also liked school and had friends. Therefore, since the child did not object to returning, this exception was denied.