Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) [Scotland] [Habitual Residence]

In Chafin v Chafin, --- F.3d ----, 2013 WL 6654389 (C.A.11 (Ala.)) Mr. Chaffin appealed the decision of the district court granting Lynne Chafin's (Ms. Chafin) petition for wrongful removal following remand from the United States Supreme Court. Chafin v. Chafin, --- U.S. ----, 133 S.Ct. 1017, 1028 (2013). The Supreme Court held that Mr. Chafin's appeal was not rendered moot because it was uncertain whether the determination of his daughter's habitual residence was correct.  The Court of Appeals affirmed finding that Mr. Chafin had not  demonstrated that the district court's findings of fact were clearly erroneous, and that it  correctly applied the law to the facts.

           Mr. Chafin, a United States citizen, married Ms. Chafin, a citizen of the United  Kingdom, in 2006. While Mr. Chafin was deployed to Afghanistan, Ms. Chafin took their  daughter, E.C., to Scotland. Later, Mr. Chafin was transferred to Alabama. It was around this time that the couple began to experience marital conflict. In February 2010,  after several years of living in Scotland, Ms. Chafin took E.C. to Alabama for what the district court concluded was "at most ... a trial period, which did not work out. Following
attempts at reconciliation, Mr. Chafin filed for divorce and custody in Alabama. The district court found that Mr. Chafin removed E.C.'s passport, wrongfully retaining E.C. in the United States and  effectively preventing Ms. Chafin from returning to Scotland.  In February 2011, following a charge for domestic violence which was subsequently dropped, Ms. Chafin was deported.  After a bench trial, the district court found that E.C.'s country of habitual residence was Scotland and that Mr. Chafin failed to establish by clear and convincing evidence that returning E.C. to Scotland would expose her to grave risk of harm.

The Court of Appeals observed that under the Convention and the ICARA, judicial determinations of ICARA petitions requesting the return of children who have been wrongfully taken or retained must be  done in an expeditious manner.  The Convention proposes a six-week timeframe from the initial filing of the petition to a decision regarding return. Art. 11. While other countries have enacted provisions containing mandatory timeframes for return proceedings and appeals, Congress did not provide such a timetable when enacting the ICARA. The  Supreme Court has recommended that "courts ... take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation." Chafin, 133 S.Ct. at 1027. It observed that this case had been ongoing for more than three and a half years.  E.C. was four years old when Ms. Chafin filed the petition; she was now at least six years old  and the question of her habitual residence still remained.
 
The Court noted that it employed  a mixed standard of review for determining habitual residence  under the Convention. It reviews the district court's findings of fact for  clear error and its legal determinations and application of the law to the facts de novo.  When analyzing the question of habitual residence, after an initial finding that parents lack a settled intent to abandon their child's prior  habitual residence for a new one, the burden is on the party asserting a change in habitual  residence increases.  In such cases, courts should be hesitant to find a change in habitual residence unless the facts point "unequivocally to a change," or the court can confidently conclude that the child's attachments have changed such that returning them to the original forum would be extremely disruptive.

   Mr. Chafin argued that the district court clearly erred in finding that he retained E.C.'s U.K. and U.S. passports because Ms. Chafin had E.C.'s U.S. passport and could have returned to Scotland with E.C. but chose not to leave; that the district judge erred by deciding to credit Ms. Chafin's testimony during the bench trial more heavily than Mr. Chafin's evidence that she intended to remain in Alabama permanently. In contrast, Ms. Chafin insisted that the  objective facts indicated that she came to Alabama on a tourist visa for a trial period to work on her strained marriage and was prevented from returning to Scotland with E.C. because Mr. Chafin hid E.C.'s passports.

   The Court indicated that its  analysis in the Ruiz case was instructive. There, it affirmed the district court's  initial finding that the parents lacked a shared intention to abandon their prior U.S. residence and make Mexico the habitual residence of their children.  Ruiz, 392 F.3d at 1254. In the absence of a settled intention to change residence, the court looked to the objective facts, finding that they pointed to a determination that the prior residence had not been abandoned and habitual residence in Mexico was not established. Despite several facts pointing toward the conclusion that Mexico was their new residence, including the family's length of stay, the construction of a new house, and Mr. Ruiz's employment, it concluded that the entirety of the evidence tended to show that  the move from the United States to Mexico was conditional.  In the present case, the district judge found that the testimony and evidence established that Ms. Chafin decided to return to Scotland with E.C. in early May 2010, and that but for Mr. Chafin serving her with a petition for divorce and an emergency  custody restraining order, she would have left the United States with her  daughter. Ms. Chafin testified that she and E.C. came to the United States in February, 2010 on a ninety-day visitor visa that is only issued with proof of a return ticket. The district court noted that this evidence was not contradicted. In an attempt to save their marriage, Mr. and Ms. Chafin took a trip together in April, 2010, which both agreed was unsuccessful. Ms. Chafin testified that, following that trip, she and Mr. Chafin agreed to work out a separation so that she and E.C. could return to Scotland.  However, before Ms. Chafin could return, Mr. Chafin served her with an emergency custody petition and removed E.C.'s passports from their location. The district court found credible Ms. Chafin's testimony that she could not leave the United States without E.C.'s U.K. passport. The district court found that E.C. was wrongfully retained in the United States as of May 15, 2010, when Mr. Chafin removed her passport from its location. Further, Ms. Chafin's testimony that she believed Mr. Chafin  would be transferred to Germany in September, 2010 indicated to the district court a  lack of intent to allow E.C. to remain in the United States permanently. Finally, the district court emphasized the fact that Ms. Chafin maintained her residence in Scotland and did not cancel E .C.'s planned enrollment in Scottish school when she came to Alabama in February, 2010.

       Here, as in Ruiz, the district court found that the parties did not have a settled intent to  change E.C.'s habitual residence from Scotland to Alabama.  It was not clearly erroneous.  If there is no settled intent on the part of the parents to abandon a child's prior habitual residence, "courts should be hesitant to find a change in habitual residence unless objective facts point unequivocally to a change or the court can 'say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount' to changing the child's family and social environment."(quoting  Mozes, 239 F.3d at 1081). Here, there were objective facts pointing to each country, and the de novo review confirmed that it was not unequivocally clear that E.C.'s habitual
residence in Scotland was abandoned for a new habitual residence in Alabama. Therefore, it affirmed the district court's decision to grant Ms. Chafin's petition.

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.