Slight v. Noonkester, 2014 WL 282642 (D.Mont.)[Ireland] [Wrongful Retention] [Chasing order] [Well-Settled] [Petition Denied]

In Slight v. Noonkester, 2014 WL 282642 (D.Mont.) Petitioner David Slight ("David") filed Petition for Return of Child against Respondent Ingrid Noonkester
("Ingrid")  David is an Irish citizen who has resided in Dublin all of his life. Ingrid
 was a Lithuanian citizen who at some point moved to Dublin. In June 2004, David
 and Ingrid met and began a relationship. David and Ingrid lived together until their separation in January of 2010. In November of 2005, David and Ingrid's son, L.S., was born.  After their separation, David and Ingrid shared responsibilities as to L.S.'
 upbringing. Ingrid exercised custody the majority of the time. In May 2012, the parties arranged for Ingrid to leave L.S. in  David's custody on May 25, 2012. However, Ingrid never arrived at the designated  location with L.S. Instead, on May 25, 2012, Ingrid and L.S. boarded a plane and  flew to the United States, with their ultimate destination being Brady, Montana.  The purpose of traveling to Montana was to move in with Alan Noonkester  ("Alan"). Alan and Ingrid decided to live together after meeting on the
 internet. . Ingrid only decided to move L.S. out of Ireland after consulting materials
 provided by Treoir, which is an Irish organization that supplies information to  unmarried parents. The materials informed Ingrid that under Irish  law, the mother is the sole guardian of a child born unto unmarried parents.  Accordingly, unless the father petitions a court for joint guardianship, the  mother can remove the child from Ireland without the father's permission.  David had no knowledge of Ingrid's plans, nor did he ever consent to L.S.'  departure from Ireland. In addition, at no time prior to L.S.' departure did  David ever apply to an Irish court for guardianship, custody, or access.

At some point in 2012, David filed a  petition for L.S.' return with the Irish Government. David claimed that this  petition was denied due to the fact that David was not a guardian of L.S. at the  time of the abduction.  On June 5, 2012, David applied to the Dublin Metropolitan District Court  for both sole custody of L.S. and to be named his guardian. On September 11, 2012, the Dublin Court appointed David as both joint  custodian and joint guardian of L.S.  In the order appointing  David joint custodian, the Court stated that:  Provided that the party to whom custody/access of the said child(ren) is hereby given shall not remove the said child(ren) from the jurisdiction of this Court without having first obtained in writing of the other party or the leave of this Court or of any other Court of competent jurisdiction.  On April 15, 2013, David filed an application for access under the Hague  Convention with the Ireland Department of Justice and Equality.

After their arrival in the United States, Ingrid and L.S. moved to Brady,  Montana, to move in with Alan. Ingrid and Alan married in August of 2012.  While in Brady, L.S. attended school in the Dutton/Brady School District  from August 2012 until February 2013. After his arrival in Montana, L.S. developed a close relationship with Alan.  L.S. and Alan have good relationship, with the two participating in typical  father-son activities. L.S.  also developed close and meaningful  relationships with Alan's two children from a prior relationship. L.S. also has developed close ties with his step-grandparents. In February 2013, Alan, Ingrid, and L.S. moved to Worden, Montana, so that  Alan could take a job at the Signal Peak coal mine. In the fall of 2013, L.S.  enrolled at the Huntley Project Elementary School. L.S. had done well at school  and obtained good grades. Despite being in second grade, he read eighth grade-level chapter books.  After his move to Worden, L.S. developed more close ties to family members. Ingrid and L.S. did not face an immediate threat of deportation. Ingrid and  Alan visited the U.S. Citizenship and Immigration Services Field Office in
 Helena, where they receive assurances that Ingrid was in the country legally. She
 did face several restrictions, such as being unable to work and if she leaves
 the U.S., she will not be allowed to return. Therefore, Ingrid did not hold
 employment and was a homemaker. Ingrid was in the process of applying for status
 as a permanent resident for herself and L.S. 

  David filed the Petition and commenced the action on December 27,
 2013. Ingrid filed a Rule 12(b)(6) Motion to Dismiss, arguing that under Irish law, L.S.' removal could  not have been unlawful as David did not have any custodial rights. David  conceded that Ingrid did not wrongfully remove L.S. from Ireland, but responded  that Ingrid wrongfully retained L.S. after the Dublin Court named David as a  joint custodian and joint guardian. The Court found that David's claim failed because Ingrid had not retained L.S. in violation  of David's rights of custody.  David conceded that Ingrid did not wrongfully remove L.S. when she left  Ireland on May 25, 2012. When determining a party's custody rights in the  child's prior habitual residence, the Court must look to that country's law.  Hague Convention, Art. 14; see also Whallon v. Lynn, 230 F.3d 450, 456 (1st  Cir.2000). In Ireland, if a child is born to unmarried parents, only the mother  is the guardian of the child. Guardianship of Infants Act, 1964, Part II, s 6(4)  (Act No. 7/1964) (Ir.), available at http://
 www.irishstatutebook.ie/1964/en/act/pub/0007/index.html. The unmarried father
 may petition a court to be appointed guardian and secure custody rights.  Id.,
 Part II, s 11; see also Redmond v.. Redmond, 724 F.3d 729, 732 (7th Cir.2013).
 Accordingly, if an unmarried Irish father fails to apply for an order granting
 him custody prior to his child's departure from Ireland, than that removal is
 not unlawful. J. McB. v. L.E., [2010] IESC 48, P 32(Ir.). Since David did not
 apply to be named a guardian over L.S. prior to May 25, 2012, Ingrid's removal
 of L.S. was not wrongful.

David relied on a wrongful retention theory. David argued that while
 Ingrid's removal of L.S. was not wrongful, the September 11, 2012 Dublin Court
 orders appointing him joint guardian made Ingrid's retention of L.S. in the U.S.
 wrongful and in violation of Irish law. The Court rejected David's  argument.
This was not a typical wrongful retention claim. When a party applies for custody after the other parent leaves the country, the subsequent order is referred to as a "chasing order." Courts typically do  not give deference to chasing orders. See Feder v. Evans-Feder, 63 F.3d 217, 231  n.3 (3d Cir.1995) (where neither the trial or appellate court considered an  order granting custody that the father obtained from an Australian court after  the mother and child had left for the U.S.). "[C]ourts have repeatedly assumed  rights of custody for purposes of Article 3 of the Convention means rights of  custody at the time of removal." White v. White, 718 F.3d 300, 307 (4th  Cir.2013).
The Court observed that there is nothing in the Convention requiring the recognition of an ex post    facto custody order of foreign jurisdictions. In Redmond, a factually similar case dealing with unmarried parents in  Ireland, the Seventh Circuit did not give weight to an Irish court's order  granting the father joint guardianship after the mother and child had moved to  the U.S. 724 F.3d at 742. The Court specifically rejected the father's  contention that the mother wrongfully retained the child in the U.S. after the  father obtained the Irish court order naming him guardian over the child.  The Court noted that the "Hague Convention is an anti-abduction treaty; it is not a treaty on the recognition and enforcement of [foreign] decisions on custody." Id. Enforcing chasing orders is beyond  the Hague Convention's concept of wrongful retention. Id. at 740. Applying those principles here, the district court held that the Dublin Court's issuance of its Sept. 11,  2012 orders did not render Ingrid's retention of L.S. wrongful. When Ingrid and L.S. left the U.S. on May 25, 2012, she did  not violate David's custody rights, as none existed. When David subsequently  applied for and received guardianship over L.S., this did not mean that Ingrid's  retention breached David's rights of custody. Such chasing orders do not create  a wrongful retention under Art. 3 of the Convention. This is because the Court  must look to the custody rights existing at the time of removal.  White, 718  F.3d at 307. Since David did not have any custody rights when Ingrid left  Ireland, her retention of L.S. in the U.S. is not wrongful.

However, the court found that Respondent established the  "settled" defense, and denied the petition. If more than a year has elapsed from the  date of the wrongful removal or retention, the Court must order the return of  the child "unless it is demonstrated that the child is now settled in its new environment." Hague Convention, Art. 12.  David did not file the Petition until December 27, 2013. He argued that the filing of  the Petition should be equitably tolled based on the fact  that he sought the return of L.S. through the Ireland Department of Justice and  Equality and the U.S. Department of State, but he got hung up on bureaucratic  delays.  Equitable tolling stays the running of Art. 12's one year timeline for the  "settled" defense. Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.2004). It  applies when "circumstances suggest that the abducting parent took steps to  conceal the whereabouts of the child from the parent seeking return and such  concealment delayed the filing of the petition for return. Duarte v. Bardales,  526 F.3d 563, 570 (9th Cir.2008). Only the Fifth, Seventh, and Ninth Circuits  allow equitable tolling in Hague Convention cases. Lozano v. Alvarez, 697 F.3d  41, 55 (2d Cir.2012). The Court refused to expand equitable tolling beyond  active concealment as the Ninth Circuit has refused to do so. Equitable tolling only applies "where two  related conditions are met: (1) the abducting parent concealed the child and (2)  that concealment caused the petitioning parent's filing delay. " Id. Equitable  tolling does not apply if the petitioner knew of the child's location. Id . at  1015.  David knew of L.S.' location in late July 2012 and had regular contact with L.S.  Since Ingrid did not take steps to actively conceal L.S.' location after David  learned of his address in Montana, equitable tolling did not apply.

The Court indicated that to determine whether a child is "settled," the following factors must be  considered:   (1) the child's age; (2) the stability and duration of the child's residence in    the new environment; (3) whether the child attends school or day care    consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school    activities, such as team sports, youth groups, or school clubs; and (6) the    respondent's employment and financial stability. B. Del C.S.B., 559 F.3d at 1009. In addition, the child's immigration status may  only be relevant "if there is an immediate, concrete threat of deportation."  In addition, this Court may also consider the child's wishes if he has  "attained an age and degree of maturity at which it is appropriate to take  account of its views." Hague Convention, Art. 13. In applying the factors, the  Court concluded that L.S. was settled in  Montana. Additionally, L.S.  obtained the level of maturity where the Court could consider his viewpoints. L.S. told the Court that he wanted to stay in  Montana. L.S. would like to maintain a relationship with David, but he did  not  want to be returned to Ireland. L.S. has expressed a desire to someday visit  David in Ireland.