Selo v. Selo, 2013 WL 878959 (E.D.Mich.) [Switzerland] [Habitual Residence] [Petition Denied]

 In Selo v. Selo, 2013 WL 878959 (E.D.Mich.) Petitioner Jean-Loic Selo filed this action against Respondent Mother Dawn Michelle Levites Selo on September 25, 2012, seeking immediate return of the couple's minor child, J.P.S., to Switzerland.

The court found that Mr. Selo was a citizen of France. Mrs. Selo had dual citizenship and was a citizen of both the United States and France. Mr. Selo and Mrs. Selo were married in France on December 20, 1997. They had one minor child, JPS, who was born in France in 2001. JPS also had dual citizenship and was a citizen of both the United States and France. JPS was discovered to have a coarctation of the aorta at the age of two. Prior to 2007, the Selo family had lived together at different residences in both Switzerland and France. Mr. and Mrs. Selo both knew that Mrs. Selo was unhappy living in Europe because she felt isolated and because she missed her family members who were in the United States. On or about April 1, 2007, Mr. Selo, Mrs. Selo, and JPS moved from France to the martial residence in Switzerland. In 2008, JPS was enrolled in Conlara School's Home education program in Switzerland. During the time period from 2010 to 2011, Mrs. Selo was unhappy in the marriage. Mrs. Selo believed that Mr. Selo was emotionally abusive toward her and was controlling in the relationship. Mrs. Selo and JPS left Switzerland on February 13, 2011. At that time, JPS was habitually resident in Switzerland. The purpose of the trip was to visit Mrs. Selo's family. Mr. Selo took them to the airport. They took two suitcases and a backpack with them. Mrs. Selo and JPS had round-trip tickets for the flight. The trip was projected to last for about two months, or until April 29, 2011. Mr. Selo consented to the trip. After arriving in the United States, Mrs. Selo and JPS stayed at the home of her parents, David and Karen Levites, in Brighton, Michigan. When she arrived in the United States, Mrs. Selo was confused and unsure about her marriage. Mrs. Selo began receiving counseling. Soon after they arrived here, Mrs. Selo enrolled JPS in a home-schooling program through a local organization. Through that organization, JPS  participated in a home-school co-op program where he spent time attending classes at the organization and engaged with other children in the program. He also participated in a theater program. Although Mrs. Selo served as JPS's primary instructor, JPS also had a tutor in Michigan. JPS had been speaking English, and writing in English, since arriving in the United States. Mrs. Selo and JPS were scheduled to return to Switzerland on April 29, 2011. On April 12, 2011, Mrs. Selo postponed their return to Switzerland. Mr. Selo was disappointed that Mrs. Selo wanted to postpone their return, but agreed that she could do so. On June 28, 2011, Mrs. Selo confirmed with Mr. Selo that she had a return flight booked for herself and JPS with arrival in Switzerland to be on July 7, 2011. On July 5, 2011, Mrs. Selo informed Mr. Selo that she was delaying their July 7, 2011, return. Mrs. Selo told Mr. Selo that she and JPS would return and arrive in Switzerland on August 28, 2011. During the July 5, 2011, conversation, Mrs. Selo told her husband that she had started therapy in the United States. She stated that she needed to work on her self-esteem and also wanted to work on communication problems in the marriage. Mrs. Selo also suggested that Mr. Selo see a therapist in Switzerland.

After that conversation, Mr. Selo found a therapist, that Mrs. Selo approved of, and began therapy in Switzerland. On August 26, 2011, Mrs. Selo told Mr. Selo that she and JPS would not return on August 28, 2011. On that date, Mr. and Mrs. Selo had a long conversation via skype. Mrs. Selo told Mr. Selo that she and JPS would not be returning on August 28, 2011, as planned, and she did not know when they would return. She told Mr. Selo that her therapists had helped her realize that this was not a good time for her to return to Switzerland. Mrs. Selo stated that she wished to remain in the United States and continue counseling. She told Mr. Selo that she thought it would be best if Mr. Selo remained in Switzerland and continued receiving counseling there Mr. Selo responded that he too wanted to work on making the marriage work. He told Mrs. Selo that he would continue therapy in Switzerland and would keep her informed about his progress. On August 27, 2011, Mr. and Mrs. Selo agreed that Mrs. Selo and JPS would remain in the United States for an undefined period of time, while the couple lived apart and separately received counseling. In November of 2011, Mr. and Mrs. Selo and JPS went to Las Vegas, Nevada, along with Mrs. Selo's parents. Mrs. Selo, JPS, and Mrs. Selo's parents stayed together in one hotel while Mr. Selo stayed at another hotel. Mr. and Mrs. Selo continued seeing their respective therapists and discussing the state of their marriage. In December of 2011, Mr. Selo came to the United States to visit JPS for approximately a week. By April of 2012, Mrs. Selo had decided that she wanted to proceed from a separation to a divorce. Mrs. Selo signed a Complaint for Divorce, and collateral documents required for a divorce in Livingston County, Michigan on April 24, 2012; these were filed with the court on April 25, 2012. Mr. Selo, however, was not aware of the filing at that time. Mr. and Mrs. Selo continued seeing their respective therapists and discussing the state of their marriage. Between December of 2011, and August of 2012, JPS did not see Mr. Selo in person. During that time period, Mr. Selo communicated with JPS via text, telephone, and skype. The next time that Mr. Selo came to the United States was on August 14, 2012. Mr. Selo had spoken with JPS via skype the day prior, August 13, 2012, and Mr. Selo thought that JPS seemed upset during the call. Mr. Selo then booked a flight to the United States. Mr. Selo arrived at Mrs. Selo's parents house in Brighton, Michigan on August 14, 2012. Mr. Selo did not advise Mrs. Selo that he was coming.

On August 15, 2012, Mr. Levites handed Mr. Selo an envelope containing divorce papers. On August 15, 2012, Mr. Selo was served with process in the Livingston County divorce and custody action by Mrs. Selo's father at the Levites' home in Brighton, Michigan. Mr. Selo was very upset. He believed that he and his wife were still working on saving their marriage. Mr. Selo went back to his hotel and contacted Mrs. Selo via e-mail and telephone. Mr. Selo communicated that he no longer agreed to JPS remaining in the United States. On August 15, 2012, Mrs. Selo filed a motion in the Livingston County divorce case requesting full legal and physical custody of JPS with Mr. Selo to have parenting time only in Michigan. Mr. Selo returned to Switzerland. Mr. Selo initiated this action on September 25, 2012, by filing his Petition for Return of Child. JPS had now been in the United States for more than two years.

As of August 14, 2012, JPS had been living in the United States continuously for more than eighteen months. He had not traveled back to Switzerland at any point. JPS became very close with his maternal grandparents, David and Karen Levites, since coming to live with them in February of 2011.



Mr. Selo alleged that Mrs. Selo wrongfully retained JPS in the United States although his habitual residence is in Switzerland. Here, it was undisputed that Mr. Selo had rights of custody and was exercising those rights prior to the alleged retention. The court found that there was there was no retention of JPS in the United States by Mrs. Selo until August 15, 2012 when Mr. Selo clearly communicated to Mrs. Selo that he no longer consented to JPS remaining in the United States and took actions to regain custody and have JPS returned to Switzerland. Thus, because August 14, 2012, was the last date upon which JPS was present in the United States with Mr. Selo's permission, the retention began on August 15, 2012. The Court observed that Frederich I "provides five principles" regarding habitual residence which must guide "more complicated decisions." Robert, 507 F.3d at 989 (6th Cir.2007)."First, habitual residence should not be determined though the 'technical' rules governing legal residence or common law domicile. Instead, courts should look closely at '[t]he facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child's experience in determining habitual residence." "Third, this inquiry should focus exclusively on the child's 'past experience.' 'Any future plans' that the parents may have 'are irrelevant to our inquiry.' "Fourth, a person can have only one habitual residence.' " Fifth and finally, a child's habitual residence is not determined by the nationality of the child's primary care-giver. Only 'a change in geography and the passage of time' may combine to establish a new habitual residence." . In Robert, however, the Sixth Circuit concluded that Mozes wasincompatible with the standards set forth in Friedrich I and it clearly rejected the standards set forth in Mozes. Robert, 507 F.3d at 989-992. Although the Robert court concluded that Mozes was inconsistent with Friedrich I, it determined that "not all post-Friedrich I developments should be rejected by the Sixth Circuit." Id. at 992.After reviewing some post-Friedrich I cases, the Robert court ultimately set forth the proper standard, given the developments which it accepted: [W]e hold that child's habitual residence is the nation where, at the time of their removal [or retention], the child had been present long enough to allow acclimatization, and where this presence has a 'degree of settled purpose from the child's perspective.'Feder, 63 F.3d at 224. Such a holding is not only consistent with the collective wisdom of many of our sister Circuits, but it is also consistent with Friedrich I's holding that a habitual residence inquiry must 'focus on the child, not the parents, and examine past experience, not future intentions." 983 F.2d at 1401. Robert, 507 F.3d at 993. There are several factual circumstances which a court should consider in determining whether or not a child's stay in a new country meets the tests of "acclimatization," and "settled purpose." Academic activities are among the most central in a child's life and are therefore highly suggestive of acclimatization. Id. Other factors to be considered include participation in sports programs and excursions and meaningful connections with the people and places in the child's new country. The Court held that it was bound to follow Sixth Circuit authority and that authority maked clear that the Court cannot look to the subjective intentions of the parents in determining the child's habitual residence. Robert, 507 F.3d at 989-92.

It was undisputed that JPS's habitual residence was Switzerland in February of 2011. The Court found that his habitual residence had altered to the United States by August of 2012. A child's habitual residence may be altered "only by a change in geography and the passage of time." Friedrich I, 983 F.2d at 1402. And the change in geography must have occurred before the questionable removal or retention. Here, the change in geography occurred prior to any wrongful retention by Mrs. Selo. The change in geography occurred on February 13, 2011, when Mrs. Selo and JPS came to the United States, with Mr. Selo's consent. And both parents later agreed that JPS could remain in the United States with Mrs. Selo for an undetermined period of time, while Mr. and Mrs. Selo lived apart and separately received counseling. It was not until August 15, 2012, that Mrs. Selo's retention of JPS in the United States was without Mr. Selo's consent. But by that time, JPS had been living continuously in the United States for more than eighteen months. This rather extensive passage of time, when viewed from the child's perspective, altered JPS's habitual residence.

The Sixth Circuit considers a child's habitual residence to be "the nation where, at the time of [a wrongful retention], the child has been present long enough to allow acclimatization, and there this presence has a degree of settled purpose from the child's perspective." Robert, 507 F.3d at 993. Academic activities were among the most central in a child's daily life and consideration of this factor here weighed in favor of the United States being JPS' habitual residence as of August 14, 2012. By August of 2012, JPS had participated in a home-schooling program through a local organization in Michigan for nearly eighteen months. JPS had also established meaningful relationships with his relatives in the United States that weighed in favor of the United States as his habitual residence. JPS ha become very close with his maternal grandparents, David and Karen Levites, since coming to live with them in February of 2011. JPS had also been spending time with Mrs. Selo's sister Kim (his aunt) on a regular basis. JPS also had friends in the neighborhood and through school and extracurricular activities. JPS's best friend is a boy named Joe who lives very close to the Levites residence in Brighton. JPS now had a cardiologist in Michigan who he has seen multiple times and with whom he now has an established patient relationship. JPS had his own bedroom at the Levites residence in Brighton, Michigan and it was a typical bedroom of a child his age. JPS has gone on various outings and excursions while in the United States. This United States-centered experience contrasted dramatically with JPS's lack of contact with Switzerland during this time period. After arriving in the United States on February 13, 2011, JPS never returned to Switzerland. In sum, over a period of more than eighteen months, JPS became more and more socialized in the United States, such that his habitual residence as of August of 2012 was the United States. Accordingly, after applying the standards set forth by the Sixth Circuit, the Court found, by a preponderance of the evidence, that by August of 2012, JPS was a habitual resident of the United States, and denied the petition.