Saturday, December 24, 2016
Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) [Hungary] [Consent and Aquiesence] [Age of Maturity Defense] [Petition granted]
In Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) the district court granted the Petition of Simona Oana Olson for an Order directing that the parties’ minor children, L.S.O. and S.M.O., be returned to Hungary. Petitioner and Respondent married in 1996 in Bucharest, Romania. The parties moved to Visalia, California, approximately a month-and-a-half later to be close to Respondent’s parents. In September 1999, while living in Dallas, Texas, they had twin boys.Approximately five years later in 2004, the family moved to Budapest, Hungary. According to Petitioner, they moved to Hungary for three reasons: Petitioner wanted to attend dental school, Respondent wanted to get his master’s degree, and they wanted to be closer to Petitioner’s family in Bucharest, Romania. The parties purchased a home in approximately 2005, which located in Budapest, Hungary. They resided in Budapest, Hungary, as a family, until 2008, when Respondent took employment in Bucharest, Romania, some eleven to twelve hours drive away from their home. During that time, the couple lived in two different apartments, Respondent lived with Petitioner’s sister and her family in Romania, while Petitioner and the children remained at the family home in Hungary. The parties had plans for moving at the conclusion of Petitioner’s education in Hungary, so they would be in the same country as a family. With these plans in mind, the parties entered into a Residential Lease Agreement with David Barnie and Alexis Barnie for a term of one year in June 2012. As planned on July 30, 2012, the children traveled from Hungary to the United States in the care of a paternal aunt and arrived in the United States on July 31, 2012. Once in the United States, the children engaged in a summer vacation with their paternal grandparents. On August 12, 2012, while the children were enjoying their summer vacation, Petitioner and Respondent moved much of their belongings to Bucharest, Romania. Petitioner had graduated from dental school approximately a month prior to their relocation. Once in Romania, Petitioner applied for her Romanian dental license, and she was waiting on her license. Respondent left Budapest, Hungary, as planned, to retrieve the children, on a round-trip plane ticket on September 10, 2012. On September 20, 2012, neither the children nor Respondent returned to Hungary. Between September 17 and 18, 2012, Petitioner sent multiple Facebook messages and tried to call Respondent numerous times during the night. On September 17, 2012, Respondent advised Petitioner that he was extending the children’s stay in America until he and she could reach an agreement on how to proceed with the marriage and divorce. On September 24, 2012, Respondent obtained an Ex Parte Order of Custody from the Sumner County, Tennessee, Circuit Court. Respondent responded to the United States Central Authority refusing a voluntary return on October 22, 2012. On February 14, 2013, Petitioner’s Verified Petition requesting the return of the children was filed with the Court.
The district court found that although the the children were United States citizens, were already fluent in English, and were temporarily enrolled in a Tennessee public school, these facts, were not sufficient to outweigh the volumes of evidence suggesting the children would have perceived, and in fact did perceive, their stay in the United States to be merely a temporary vacation. The evidence about the children’s lives in Hungary and their own statements indicated that immediately prior to their retention in the United States, Hungary was their habitual residence. The district court found that the petitioner made out a prima facie case and that the respondent did not establish consent or acquiescence. Petitioner’s agreement to allow the children to travel to the United States for a vacation did not constitute consent to their relocation here, and the actions she took to secure their return under the Hague Convention overwhelmingly supported the finding that she did not consent to their permanent residence in the United States. Moreover, Respondent has failed to prove that Petitioner acquiesced in his retention of the children in the United States. Although Respondent argued that Petitioner agreed to an extension of the vacation, this delay did not indicate her acquiescence to the children’s retention in the United States. Petitioner never said nor did anything which would constitute acquiescence. Rather, after learning of Respondent’s intentions, and before she even knew Respondent had begun divorce proceedings, Petitioner’s Hungarian Application for Return had been filed with the Hungarian Central Authority. Further, her attempt to negotiate a Tennessee parenting plan with Respondent did not constitute acquiescence.
Based upon the consideration of the children’s testimony, the Court concluded both children reached the age and maturity level at which their objections, if any, should be taken into account. The court found that the children were impressive, well-mannered, and articulate thirteen-year-old boys. Given the choice, both children would prefer to remain in the United States. Although the children displayed a preference (and particularly S.M.O., a strong preference) for remaining in the United States, neither boy expressed an objection to his return. The court concluded that absent such objection the maturity exception defense was not established by Respondent.