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Tuesday, October 23, 2012

Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) [Sweden] [Habitual Residence]

In Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) Petitioner Niklas Jensie ("Niklas"), a native and citizen of Sweden, met Respondent Marlena Jensie ("Marlena"), a native and citizen of the United States, in 1998. Marlena moved to Sweden in 2001, and the couple established a residence in Goteborg, Sweden, where Niklas's family lived. Niklas worked as a computer technician and Marlena, after attending Swedish educational courses, became employed as a preschool teacher. The couple married in 2003 while on a visit to Marlena's home state of Utah.

The couple's daughter, L.N.J. was born on January 2, 2009, in Goteborg , and she had dual Swedish and American citizenship. Soon after their daughter's birth, Niklas and Marlena travelled to the United States for approximately four weeks to visit Marlena's family so that they could meet L.N.J. In 2010, Marlena became a Swedish citizen. The couple began raising L.N.J. in Goteborg. In 2010, after Marlena returned to work from maternity leave, L.N.J. began attending a Swedish preschool. L.N.J. also spent time with Niklas's family and engaged in typical childhood activities. Each parent spoke to L.N.J. in their native tongue, but L.N .J. understood Swedish. In the summer of 2011, Niklas and Marlena again travelled with L.N .J. to the United States for vacation for approximately four to five weeks, visiting Marlena's family in several states. Other than these vacations, L.N.J. resided in Goteborg with her parents and attended preschool.

In late 2011, Niklas told Marlena that he wanted to separate. Marlena was upset by this news. The suggestion was made that Marlena travel to the United States to visit with her family and "clear her head." Tickets were purchased for Marlena and L.N.J. to travel to the United States on December 13, 2011, with a booked return for February 5, 2012. Marlena and L.N.J. did not return to Sweden as scheduled and Niklas had not consented to the trip extending past February 5, 2012. When Marlena did not return on February 5, Niklas called her and learned that she was still in the United States. Niklas immediately sought legal advice and contacted the Swedish government for assistance. He also began pleading with Marlena to return to Sweden. Marlena eventually agreed to return to Sweden with L.N.J. on April 5, 2012, using new tickets purchased by Niklas. The return date was not chosen with any intent that Marlena and Lily would actually return to the United States at that time. When Marlena and L.N.J. returned to Sweden in April, Niklas moved out of the apartment they had been sharing and moved in with his sister. During the next few months, Niklas and Marlena shared custody of L.N.J. and began meeting with Swedish social services to mediate their divorce and custody issues. Niklas testified, and Marlena did not dispute, that the mediator cautioned her about the seriousness of her prior refusal to return L.N.J. to Sweden in February.

Marlena testified that she believed that Niklas knew that it was her intention to return to the United States with L.N.J. once they had the custody issues worked out, and that the two had discussed various possible arrangements along those lines. Niklas, however, testified that he never consented for Marlena to take L.N.J. back to the United States to live and that, in fact, he was seeking an equal parenting schedule of every other week with custody of their daughter.

On June 7, 2012, Marlena sent Niklas an email stating, inter alia,:"Please don't turn in the divorce papers just for the sake of getting moving on things. Can we stop fighting? " Niklas nonetheless filed for divorce in early June. The parties had a mediation scheduled for June 25, 2012. The mediation was rescheduled for July 5, 2012. Marlena did not appear for the mediation on July 5. Alarmed, Niklas went to the apartment but Marlena and L.N.J. were not there. L.N.J.'s clothes and toys appeared undisturbed, however, and the apartment appeared normal. Niklas then discovered that Marlena's and L.N.J.'s passports were not in their normal place. . Niklas's eventurally concluded that Marlena had taken L.N.J. to Taylor Mill, Kentucky, where her father now resided. The next day, July 6, 2012, Niklas contacted the Swedish Central Authority and filed an Application for Assistance Under the Hague Convention on Child Abduction requesting L.N.J.'s return to Sweden. Niklas filed his petition on October 5, 2012.. On October 10, 2012, the Goteborg District Court entered an order granting Niklas full custody of L.N.J.

The district court granted the Petition. It observed that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions." Friedrich, 983 F.2d at 1401. "A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to removal. The court must look back in time, not forward." Friedrich, 983 F.2d at 1401. Here, the evidence showed that L.N.J. was born in Sweden on January 2, 2009, and, but for family vacations, lived there until December 2011, engaging in normal family activities and attending preschool. Sweden was where she had been "present long enough to allow acclimatization" and where there was "a degree of settled purpose from the child's perspective." In December 2011, L.N.J. traveled to the United States with her mother, with the understanding that they would return in February 2012. The Court concluded that this trip of several months did not alter L.N.J.'s customary residence in Sweden. (Citing Blanc v. Morgan, 721 F.Supp.2d 749, 760 9W.D.Tenn.2010) (holding that fact that mother took child on extended trips to United States did not alter child's habitual residence of France). That Marlena overstayed the February 2012 return by two months was also immaterial because time spent by a child in another country after any wrongful removal or retention does not factor into the "habitual residence". The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. The same was true with respect to the approximately three and a half months that L.N.J. spent in the United States since her removal from Sweden in July. Moreover, although Marlena insisted that she always intended to return to the United States to live with L.N.J., such parental future intentions generally do not factor into the Sixth Circuit's child-centric analysis. Therefore, the Court concluded that L.N.J.'s habitual residence prior to July 2012 was Sweden.

The Court noted that under Swedish law, married parents have joint custody by operation of law. (Citing Fridlund v. Spychaj-Fridlund, 654 F.Supp.2d 634, 637-38 (E.D.Ky.2009)). Here, at the time of L.N.J.'s removal from Sweden in July 2012, there had been no judicial or administrative decision or agreement that altered Niklas's parental rights, and Marlena admitted this during the evidentiary hearing. Based upon the facts, the Court also concluded that Niklas was exercising his custodial rights when L.N.J. was taken from Sweden. Thus, to defeat a showing that removal was wrongful, Marlena has to prove by a preponderance of the evidence that Niklas consented to the removal. The Court had already found as a fact that Niklas did not consent to L.N.J.'s removal to the United States in July 2012, regardless of what the parties' prior discussions were regarding possible solutions to the custody dilemma. A parent's deliberately secretive actions is "extremely strong evidence" that the other parent would not have consented to removal. Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007) Marlena admitted that Niklas did not know she was leaving with L.N.J. when she did, and the surrounding circumstances indicated that she knew that Niklas would not have consented to L.N.J.'s removal to the United States. It was clear that when Niklas responded to Marlena's text message of July 2 confirming that he was seeking a 50/50 shared parenting arrangement, Marlena panicked. Under questioning by the Court, she admitted as much, conceding that she was afraid what a Swedish court might do with respect to custody. As soon as Niklas learned of her departure with L.N.J., he immediately took steps to secure his daughter's return. The Court had no doubt that Niklas did not consent to L.N.J.'s removal from Sweden.