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Friday, September 16, 2016

Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016)[Germany] [Habitual Residence] [Petition denied]

In Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016) the district court denied the petition filed by Charles Blackledge on July 6, 2016, seeking the return of his minor child (“J.B.”) to Berlin, Germany.   The Petitioner was a citizen of the U.S. The Respondent was a citizen of Ukraine, where the couple were married in  2008, and J.B. was born there on June 26, 2008. The parties resided there until Petitioner obtained employment in Ireland in 2009. They thereafter resided in several European nations for varying periods of time. In June or July 2011, Petitioner began his current position in Germany. Around the same time, Respondent was accepted into graduate school at the University of Pittsburgh. The parties traveled together to Pittsburgh in August 2011, and established a residence for Respondent and J.B. Petitioner remained in Germany to continue his new job. Respondent and J.B. remained in Pittsburgh for two years while Respondent attended graduate school. Respondent and J.B. then returned to Germany in August 2013 to live with Petitioner. Respondent was able to continue her graduate studies remotely. J.B. was enrolled in a primary school , where the child completed kindergarten and first grade during the 2013 – 14 and 2014 – 15 academic years. After approximately two years in Germany, Respondent determined that she would need to return to Pittsburgh to complete her graduate degree. The parties agreed that J.B. would accompany Respondent back to Pittsburgh. Upon their return to Pittsburgh in August 2015, J.B. was enrolled in Colfax for the second grade. Respondent continued her graduate studies and Petitioner continued to work in Germany. Once back in Pittsburgh, the Respondent filed for divorce on April 7, 2016. Petitioner demanded the return of J.B. to Germany.

Petitioner claimed that he and Respondent had a verbal agreement by which J.B. was to accompany Respondent to Pittsburgh for one year while Respondent completed her graduate degree, and after which J.B. would return to Germany.
The Court found that J.B. was retained by Respondent beginning in August 2016. The Court observed that “Habitual residence” is the place in which a child “ ‘has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.’ ” Karpenko, 619 F.3d at 263. Habitual residence is a “concept that focuses on past experience, not future intentions.” Karkkainen, 445 F.3d at 294 (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)). To that end, the Court examines a child’s experiences in, and contacts with, his or her place of residence to determine whether he or she is “firmly rooted,” and not merely acculturated. A child’s academics, social engagement, participation in extracurricular activities, and routines are all central to finding acclimatization and a settled purpose. There “must be ‘a sufficient degree of continuity. The credible facts were strongly suggestive of a degree of continuity and settled purpose sufficient for the Court to find that J.B. , who was interviewed in camera, was acclimatized to Pittsburgh. J.B.’s record of academic achievement and engagement at Colfax, significant social contacts, wide ranging extracurricular activities, substantial familiarity with Pittsburgh, its institutions, and its culture, and unequivocally favorable opinion of all the above, demonstrated that J.B. had not only “formed meaningful connections with the people and places [he] encountered” in Pittsburgh, but that his life has attained “ ‘a sufficient degree of continuity to be properly described as settled. That notwithstanding, parental intent is still part of the Court’s inquiry. Evidence of shared intent by the parties – or a lack thereof – can trump evidence of acclimatization, particularly when the child is young. The shared intent of Petitioner and Respondent was far from clear.  The Court found that the beyond agreeing that J.B. would reside with Respondent when she traveled to Pittsburgh for school – as he had in the past – there was no credible evidence of an agreement for a specific duration. A ‘child can lose its habitual attachment to a place even without a parent’s consent’…when ‘the objective facts point unequivocally’ to the conclusion that a child’s relative attachments to two countries have changed.” The credible facts, as found by the Court, clearly indicated that attachments  shifted for J.B. In light of the lack of evidence of an agreement regarding a specific duration for J.B.’s stay in Pittsburgh, as well as the Court’s determination that Respondent exhibited a greater degree of credibility than Petitioner, and given the strong evidence of J.B.’s acclimatization, the Court found J.B.’s habitual residence to be Pittsburgh. Therefore,  Respondent’s retention was not wrongful..

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