Panteleris v Panteleris, 2014 WL 3053211 (N.D.Ohio) [Australia] [Habitual Residence] [Rights of Custody] [Petition granted]

In Panteleris v Panteleris, 2014 WL 3053211 (N.D.Ohio) the district court granted the petition of Anthimos Panteleris for return of  the children of Anthimos and Aalison Panteleris to Australia.    Petitioner Anthimos, was a citizen and resident of Australia. In 2005, while in the United States, Anthimos met and married Respondent Aalison, a United States citizen. Their first child B.P., was born in the United States in November 2006. In March 2007 the family moved to Australia.Their second child, H.P., was born in Australia in November 2008. Their third child, Z.P., was born in Australia in December 2011. All three children were citizens of the United States and Australia.
 The Panteleris family lived in Australia for five years.  In March 2012 the Panteleris family traveled to the United States. At that time, the children were ages five, three, and four months. During the Panteleris family's time in Australia, Aalison was the primarily breadwinner and Anthimos was the primary caregiver of the children.  In March 2012, the Panteleris family arrived in Hawaii, where they remained for approximately four weeks.In April 2012, the Panteleris family came to Salem, Ohio, Aalison's hometown. The couple entered into a 12-month lease on an apartment in the Northern District of Ohio. Anthimos described the Panteleris family's trip to the United States as "an extended, yearlong holiday in the United States, [with he and Aalison] agreeing that the entire family would stay for 6 months, and that, if necessary, Anthimos would then return to Australia to supplement the family's income while the rest of the family remained in the United States for an additional 6 months." At the Hearing, Anthimos testified that the reason for the trip was to allow Aalison to spend time with her family. He explained that, apart from a month-long visit to Ohio in 2008 after the death of her father, Aalison had not seen her family since she moved to Australia. Aalison, for her part, testified that the Panteleris family left Australia with the intention of moving to the United States.

In Ohio, as in Australia, Aalison worked and Anthimos stayed home and cared for the children. Aalison separated from her job in November 2012. Faced with depleted resources, Anthimos returned to Australia to obtain work because he was unable to work in the United States. Anthimos asserted that the couple agreed that, at the end of the year-long holiday in Ohio, Aalison and the children would return to Australia. 
On December 2, 2012, Anthimos began working after arriving in Australia but was
laid off shortly thereafter.  He stated that he and Aalison agreed the family would delay the return to Australia until he secured new employment.  Anthimos began working again in May 2013, at which time he stated that he "contacted [Aalison] to let her know about the job and that he was ready, willing, and able to move the entire family back to their home in Australia." He asserted that Aalison responded that she and the children would not be returning, and that she had met someone else. 

On February 28, 2014, Anthimos filed a verified complaint and petition.The district court pointed out that Anthimos stated that he was exercising custody rights under Australian law. Section 111B(4)(a) of the Australian Family Law Act provides in relevant part that "[f]or the purposes of the [ Hague] Convention, each of the parents of a child should be regarded as having rights of custody in respect of the child...." Anthimos submited that he acquired parental responsibility for each of his children by operation of law pursuant to Sections 61 C (each of the parents of a child who is not eighteen has parental responsibility for the child); 69P (presumption of husband's parentage of wife's child when a child is born to a woman while she is married); and 69R (presumption of parentage to a person named as a parent in the child's birth certificate) of the Family Law Act. He further asserted that "[a]t the time of the Children's wrongful retention," he "was exercising his custody rights and maintaining his relationship with all three of the Children within the meaning of Articles Three and Five of the Hague Convention."     The Court found that Anthimos had established by a preponderance of the evidence that he had custody rights at the time of the alleged wrongful retention, in May 2013. Moreover, Anthimos had shown by a preponderance of the evidence that he was exercising those rights at the time of the wrongful retention. Anthimos regularly communicated with his children prior to May 2013. They spoke on the telephone and they used Skype on a regular basis. The Court found that Anthimos had shown, by a preponderance of the evidence, that he had custody rights and was validly exercising those rights at the time of the alleged wrongful retention.

The Court observed that  Anthimos also had the burden of proving by a preponderance of the evidence that Aalison retained the children away from their habitual residence. See  Friedrich I, 983 F.2d at 1400. When analyzing this, courts look to the time just prior to the alleged wrongful retention, in this case, May 2013. In Friedrich I, the Sixth Circuit set out five principles a Court considers in determining the
habitual residence:  First, habitual residence should not be determined through the "technical" rules  governing legal residence or common law domicile. Instead, courts should look  closely at the 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. 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, 507 F.3d at 989 (citing Friedrich I ) the Sixth Circuit borrowed from the Third Circuit's decision in Feder to build upon the rule established in Friedrich I, to hold that "a child's habitual residence is the nation where [ ] the child has been present long enough to allow acclimatization, and where this presence has a 'degree of settled purpose from the child's perspective.'"Id. (citing  Feder, 63 F.3d at 224 ). The Robert Court explicitly rejected the Ninth Circuit's standard established in  Mozes v. Mozes, 239 F.3d 1067 (2001) that considers the subjective intent of the parents.  Robert, 507 F.3d at 990-992.   In Jenkins, the Sixth Circuit described several factors it adopted from the Third Circuit's opinion in  Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir.2006) to consider when determining a child's habitual residence: [T]he Third Circuit held that academic activities are among the most central ...  in a child's life and therefore highly suggestive of acclimatization. The court  also noted that social engagements, participation in sports programs and  excursions, and meaningful connections with the people and places in the child's  [ ] country all point to the child being acclimatized. Additionally, the court  held that the fact that [the child] brought more personal belongings with her  than usual, in anticipation that she would remain [in the United States] was  evidence of a settled purpose to reside in the United States.    Jenkins, 569 F.3d at 556 (quoting  Robert, 507 F.3d at 996).

Anthimos argued that "[b]efore the events that gave rise to the Petition occurred, Petitioner, Respondent, and their Children lived together in Australia for five years. The oldest of the children was enrolled in kindergarten in Australia, and all three Children actively participated in various activities offered by Australian life. “ Anthimos testified that the two older children went to parks daily, participated in play groups, visited the aquarium and the zoo, the botanical gardens, and various state and national parks. He submitted photographs of B.P. and H.P. playing at parks and playing with goats the Panteleris family had for a time.    The eldest child, B.P., was enrolled in "kindergarten," which, in Australia, appears to be similar to nursery school in the United States. He was also part of two play groups, one for over a year. Anthimos would take the second child, H.P., to B.P.'s school for parent volunteer days. H.P. had moderate to severe autism. He was diagnosed in Australia, and had been seeing doctors there for referrals to specialists, although he had not yet commenced treatment there. The youngest child, Z.P., was four months old when the family left Australia, and was present during the family activities or otherwise placed with family or friends.

  Anthimos testified that he has five brothers and sisters living in the Melbourne or Sydney area. He further testified that, when he was in the United States, the children communicated with family members via Skype on a weekly basis. When the Panteleris family was living in Australia, they lived for a year with Anthimos's grandmother, in her home, and spent time interacting with family and friends. He submitted photographs of B.P. and H.P. interacting with friends in Australia.   Aalison presented testimony that Anthimos's family in Australia was not close, and that the children did not see them much. She agreed, however, that the children saw family members. She also agreed that the children had experiences in Australia and that B.P. has memories of Australia. In support of her assertion that the children's habitual residence was in Ohio, Aalison referred to the boys' schooling and H.P.'s therapy-she did not delineate, however, between the time period before the alleged wrongful retention, in May 2013, and the time period after the alleged wrongful retention until the present.

The Court held that it could not accept evidence of schooling and therapy that occurred after May 2013 to establish habitual residence. See  Friedrich I, 983 F.2d at 1401 (stating "habitual residence pertains to customary residence prior to removal. The
court must look back in time, not forward."). The record established that in May
2013 the children had been living in Ohio for approximately thirteen months.
Aalison and Anthimos testified that, during the relevant time period in Ohio, B.P.
was enrolled in kindergarten and H.P. was enrolled in pre-school, and underwent
therapy that the school provided. There was testimony that the children had a
relationship with Aalison's sister and mother, whom both lived nearby. The Court found by  a preponderance of the evidence that, from the perspective the children, the
habitual residence of the children was in Australia. and that Aalison wrongfully retained the children in the United States.

   Anthimos testified that Aalison advised she would not return the children in May 2013. He filed the petition less than one year later, on February 28, 2014.  Aalison contended that Anthimos knew that she was not returning to Australia with the children when he left the United States in December 2012. In May 2013 Aalison advised the children would not be returning to Australia.  Aalison alternatively argues that she told Anthimos that their marriage was over "at the end of" February or March, 2013, and that he knew at that time that the children were not coming back to Australia. Telling Anthimos the marriage was over, however, did not necessarily constitute a refusal to return the children. Aalison could not establish by a preponderance of the evidence that the petition was untimely. The Court found that the date of the wrongful retention was May 2013, and the petition was timely because it was filed February 28, 2014, less than one year from the date of wrongful retention. Because the Court found that the petition was timely, evidence from the last two years suggesting that the children were well settled in the United States was inapplicable.

Aalison submitted that Anthimos consented or acquiesced to the children living in the United States. Anthimos consented to the children living in the United States from the time of the Panteleris family's arrival in early 2012 until May 2013. Consenting to a year-long visit, however, does not equal consenting or acquiescing to the children living in the United States permanently. The record supported Anthimos's testimony that shortly after he was told, in May 2013, that the children would not be returning to Australia, he began proceedings with International Social Services in Australia to seek a return of the children.

    Aalison argued that Anthimos consented to the children living in the United
States permanently when the family arrived in early 2012. The Court found that Aalison had not shown by a preponderance of the evidence that Anthimos consented or acquiesced in the retention of the children in Ohio.

Aalison argued that there was a grave risk that returning the children would
expose them to physical or psychological harm. See Hague Convention, Article 13b.
In support, Aalison presented testimony by a neighbor, Josiah Deeter. Deeter
testified that when Anthimos was alone with the children during the day, H.P., who
was described by more than one witness as a "runner," would bolt out of the house.
Deeter testified that she had seen H.P. run out into the street, and that she had
found him playing inside of the cars belonging to her and her husband that were
parked in her driveway. Aalison's sister, Aarika Denton, testified that she once
saw Anthimos pull H.P. by the hair to "pull him back" on one occasion when H.P.
was walking by, a prelude to his bolting outside. She testified that H.P. "cried
out in pain" but that there was no bleeding. She also testified that she would
sometimes go to the house and find the children "running everywhere" and that Z.P.
needed her diaper changed. Denton testified that she did not think Anthimos was
able to give the children the amount of attention they needed. The Court found that there  was no testimony demonstrating a grave risk to the children and that Aalison had not shown, by clear and convincing evidence, that there was a grave risk of harm to the children if they are returned to Anthimos in Australia.