Haruno v Haruno, 2013 WL 5663070 (D.Nev.) [New Zealand] [Habitual Residence] [Consent]

In Haruno v Haruno, 2013 WL 5663070 (D.Nev.) Petitioner Toby Makoto Haruno ("Toby") sought to have his minor child, Jordan Haruno, returned to New Zealand from Las Vegas, Nevada. Toby and Jennifer were United States citizens and were married in the United States. They moved from Los Angeles, California to Wellington, New Zealand on approximately June 30, 2008. Although they had one-year visas, they renewed those visas each successive year. Toby was employed in New Zealand in the animation industry. Although over the years they discussed ultimately returning to the United States, they never took concrete steps to leave New Zealand. Jordan was born in Wellington, New Zealand on January 11, 2011. He was a United States citizen. Jordan lived his entire life in New Zealand, until December 8, 2012. On that date, Toby, Jennifer and Jordan took a long vacation trip to North America, having purchased round-trip tickets with a return flight to New Zealand from Vancouver on February 2, 2013. On February 1, 2013, Jennifer changed her flight arrangements so that, instead of returning to New Zealand, she and Jordan flew from Vancouver to Las Vegas, Nevada, where her parents lived. There was conflicting testimony about whether and to what extent Toby protested this change, but he did not prevent them from going to Las Vegas, and he helped them check in their luggage for the flight. Toby returned to New Zealand alone. After returning to New Zealand, Toby made repeated efforts to convince Jennifer to return to New Zealand. He continued to financially support Jennifer and Jordan in Las Vegas, and kept in regular contact with them via video and telephone connections. A few months later, Toby visited them in Las Vegas and discovered that Jennifer had contacted a lawyer in Las Vegas to obtain a divorce. Toby returned to New Zealand, contacted legal counsel, and initiated this proceeding. In the meantime, Jennifer filed a divorce proceeding in Las Vegas.

The district court granted the petition. It observed that a court determining whether a child was wrongfully removed must] answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the
petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mazes, 239 F.3d 1067, 1070 (9th Cir.2001). It appeared that the removal evolved over the period February through June of 2013. The parties left New Zealand on December 8, 2012, with return tickets for February 2, 2013. On February 1, 2013, Jennifer changed her and Jordan's tickets and instead flew to Las Vegas, where they have remained. The evidence was overwhelming that New Zealand was the child's habitual residence before he was retained in the United States. Under New Zealand law, as a married father living with the child's mother, Toby had joint guardianship and custody of the child prior to Jennifer's retaining him in the United States. Jennifer's retention of the child in the United States interfered with Toby's custodial rights. Jennifer claimed that Toby worked excessive hours at his job, did not regularly participate in activities with the child, and thus was not exercising his rights. The evidence presented at the hearing proved that Toby was exercising his parental rights. Even though Toby may have worked long hours, he still interacted with the child, went to play groups with him, was involved in his life, and contributed to his care and upbringing until Jennifer retained him in the United States. Based on the foregoing, Toby had proven a cause of action for the return of the child to New Zealand.

Jennifer attempted to defend against the child's return to New Zealand by alleging that (a) Toby consented to or acquiesced in the child's remaining in the United States, and (b) returning the child presents a grave risk to his physical and emotional health.

Jennifer contended that Toby consented to allowing her to take the child to the United States. She claimed he did not protest when she changed their flight from Vancouver to Las Vegas, and that he helped them check in their bags at the airport. Even if true, such actions did not constitute consent to allow the child to permanently remain in the United States. Toby's actions thereafter proved that he did not consent to the permanent relocation of the child. Toby remained in regular contact with Jennifer and the child (through both video and telephone), and continually tried to convince them to return to New Zealand. He purchased return flight tickets for them (which Jennifer  ultimately canceled after coincidentally becoming injured the day before the flight). He traveled to Las Vegas to convince them to return.

Jennifer contended that the child would face grave risk of physical and emotional injury if he is returned to New Zealand. In support of that allegation, she pointed out that Toby was arrested and charged with domestic violence against Jennifer over two years before the child was born. Those charges were later dropped after Jennifer hired a lawyer to help her recant her allegations. Even if the allegations were true, they did not constitute a grave threat to the child. The injury occurred to Jennifer, and there were no reports of violence in the years thereafter. While Jennifer accused Toby of having a bad temper and being prone to angry outbursts, the evidence indicated that at most only once was it directed towards the child. The only episode involving the child occurred when Toby allegedly shook him once after becoming frustrated at having difficulty putting on his diaper. While this is not to be condoned, it apparently was not a "grave" event, as a few hours later Jennifer left the child in Toby's care so she could go out and party with her friends. Moreover, a single episode such as this does not constitute a grave threat of future violence to the child.