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Monday, December 23, 2013

Weintraub v Waite, 2013 WL 6622899 (W.D.Wash.) [Sweden] [Federal & State Judicial Remedies] [Summary judgment]

          In Weintraub v Waite, 2013 WL 6622899 (W.D.Wash.) Petitioner moved for    Summary judgment . The district court observed that the moving party is entitled to judgment as a matter of law when  the nonmoving party fails to make a sufficient showing on an essential element of a  claim in the case on which the nonmoving party has the burden of proof.  Celotex Corp.  v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present  specific, significant probative evidence, not simply "some metaphysical doubt."). See alsoFed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986);  T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir.1987).

     The record showed that the children of the parties were retained in the United States after a vacation trip from Sweden on August 3, 2013, when their return to Sweden was planned.    It appeared clear from the record that immediately prior to the retention of the children in the United States, the children were habitual residents of Sweden, where their family home had been established with their mother and father. The retention of the children in the United States breached the rights of custody of the petitioner under the law of Sweden.    The petitioner was exercising parental rights at the time of the retention of the children in the United States. There was no material issue of fact as to whether he was exercising parental rights in Sweden and during their visit to the United States prior to August 3, 2013. The Court found that the children were wrongfully retained in the United States. However, a material issue of fact remained as to whether there was a grave risk that the childrens' return that would  expose them to the physical or psychological harm, or otherwise place the child in an intolerable situation, under the Hague Convention Article 13(b), if  ordered returned to Sweden. The court held that the question of whether respondent's proof reached the clear and convincing standard could best be resolved at hearing.   Another question remained as to whether the children would be at grave risk if they returned to Sweden in the company of their mother. The court set the matter down for a hearing limited to the issue of whether the return of the children to Sweden would present such a grave risk to them. To the foregoing extent, the petitioner's Motion for Summary Judgment was granted in part and denied in part.

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