In re the Application of Stead v. Menduno, 2014 WL 7403282 (D. Colorado.) [New Zealand] [Grave Risk of Harm][Equitable Defenses] [Petition granted]

In re the Application of Stead v. Menduno, 2014 WL 7403282 (D. Colorado.) A.C.S. was born to petitioner, a New Zealand citizen, and respondent, a United States citizen, on October 21, 2011. Petitioner and respondent lived together during respondent’s pregnancy, but separated shortly after A.C.S.’s birth, after which time respondent served as A.C.S.’s primary caretaker. After petitioner and respondent separated in early 2012, petitioner provided approximately $200 per week in financial support for respondent and A.C.S. until approximately October 2012. After October 2012, petitioner ceased providing financial support and instead began caring for A.C.S. during much of the day so that respondent could work. In May 2013, respondent brought A.C.S. to the United States with petitioner’s consent so that A.C.S. could meet respondent’s family. Respondent bought a round-trip ticket with a return date of September 29, 2013. Before giving his consent to the overseas trip, petitioner demanded assurances that respondent would return to New Zealand with A.C.S. no later than September 2013. Respondent gave such assurances. Between May and September 2013, petitioner had no contact with A.C.S., though respondent remained in contact with petitioner’s family and provided periodic updates on their trip. On September 23, 2013, respondent informed petitioner’s mother that she and A.C.S. would not be returning to New Zealand as she originally promised. Subsequently, petitioner retained counsel in the United States and brought this action.

The Court found that A.C.S. habitually resided in New Zealand before respondent retained him in the United States and that respondent’s decision to remain in the United States violated petitioner’s custody rights under the laws of New Zealand. Petitioner was A.C.S.’s legal guardian under New Zealand law, both because he lived with respondent during the time between A.C.S.’s conception and his birth and because he was listed on A.C.S.’s birth certificate as the child’s father. One of a guardian’s custody rights under New Zealand law is the right to determine, “for or with the child, or helping the child to determine, questions about important matters affecting the child,” CCA § 16(1)(c), among them “changes to the child’s place of residence.”. Respondent’s unilateral decision to remain in the United States with A.C.S. notwithstanding the assurances she gave to petitioner that A.C.S. would return to New Zealand breached this right.  Respondent argued that petitioner abandoned his custody rights because he provided no financial support since at least November 2012 and because he did not contact A.C.S. after Respondent brought him to the United States. The Court finds that petitioner was exercising his custody rights at the time of the retention. Respondent  provided no evidence that petitioner forfeited his custodial rights under New Zealand law. With respect to petitioner’s actions after respondent and A.C.S. came to the United States, the Court found that petitioner’s failure to contact A.C.S. between May and September 2013 did not constitute the sort of “clear and unequivocal abandonment” required to find in respondent’s favor on this element of plaintiff’s prima facie case. Friedrich, 78 F.3d at 1066. Rather, petitioner exercised his rights of custody by receiving assurances from respondent that she and A.C.S. would return. After petitioner demanded and received such assurances, the Court could not find that petitioner’s failure to renew those assurances constituted a clear and unequivocal abandonment of his custody rights. The Court found that petitioner satisfied his prima facie case under the Convention.

The Court found that respondent had not met her burden of proving a grave risk to A.C.S. by clear and convincing evidence. Respondent testified at length as to A.C.S.’s temper, including multiple outbursts and bouts of extreme jealousy. However, respondent did not identify any instance where petitioner was physically or sexually abusive, either to her or A.C.S. The Court was unaware of any case where a court applied the grave risk exception solely based on testimony about petitioner’s general predisposition to anger.  

The Court also found that respondent could not meet her burden of establishing acquiescence by a preponderance of the evidence. After respondent informed petitioner’s mother that she intended to remain in the United States with A.C.S., petitioner filed an application with the New Zealand authorities to initiate proceedings under the Convention. The Court concluded that petitioner acted with reasonable diligence to secure A.C.S.’s return after discovering respondent’s intention to remain in the United States and cannot conclude that the five-week period between late September 2013, when petitioner learned through his mother that respondent intended to keep A.C.S. in the United States, and November 4, 2013, when he filed his application with the New Zealand Authorities, constituted acquiescence.

Respondent raised equitable defenses, including equitable estoppel, waiver, unclean hands, and “course of conduct.” The Court observed that the Third and Fourth Circuits have considered whether equitable defenses are permitted in a case brought under the Convention, and have both held that they are not. See Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010); see also Katona v. Kovacs, 148 F. App’x 158, 161 (4th Cir.2005).  The equitable doctrines invoked by respondent are not mentioned in the Convention and were therefore not properly brought as defenses to a petition for return of the child. 

At the hearing, petitioner indicated that they did not intend to seek attorneys’ fees, but did intend to seek costs, including the costs of travel, court filing fees, and deposition costs. Respondent argued that an award of any costs would be clearly inappropriate, both because respondent lacked any malicious intent in retaining A.C.S. in the United States and because any award of costs would put respondent in debt for the rest of her life. The Court found that an award of filing fees and deposition costs was inappropriate in this matter, given the petitioner’s pro bono representation and respondent’s relatively low salary, total savings of slightly over $2,000, the fact that respondent spent 80% of her income on housing, and the fact that most of her other expenses relate to providing for A.C.S. The Court did, however, find that an award of petitioner’s airfare to and from the hearing was appropriate.