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Wednesday, September 20, 2017

Crane v Merriman, 2017 WL 4079406 (W.D. Oklahoma, 2017[New Zealand] [Habitual Residence][Consent][Petition granted]

          In Crane v Merriman, 2017 WL 4079406 (W.D. Oklahoma, 2017) the district court granted the Petition by the father for the return of the children to New Zealand.

          The district court found that parties lived together in Auckland, New Zealand, in a domestic partnership which produced two children, A.E.C. who was born in August 2013, and R.F.A.C., who was born in September 2016. Both children were dual citizens of New Zealand and the United States. In April 2016, the parties decided to end their domestic partnership. Ultimately they agreed that Merriman would depart New Zealand with the children after Christmas 2016. Until her departure, Merriman had resided in New Zealand for about fifteen years. The children resided with both parents in New Zealand following their births. The oldest, A.E.C., was three years old when she left for the United States with Merriman; the youngest, R.F.A.C., was a little over two months old. Between April 2016 and December 2016, the parties agreed to, and executed, an agreement for property division and an agreement regarding the custody and care of the children. The Custody and Access Agreement executed in November of 2016 made clear that the parties would continue to be joint guardians of the children and share custody. The Custody Agreement provided that Merriman would “initially” have “primary care” of the children, subject to a specific plan for visitation by Crane during the period of 2017-2020 , as well as alternating residences over Christmas, with Christmas 2017 to be spent in New Zealand. The Custody Agreement stated that “no attempt will be made to overturn this agreement in the United States,” and provided that any review of the Agreement will be subject to “New Zealand law and jurisdiction.”  It included a provision reflecting Crane’s consent to the children relocating to the United States with Merriman, this provision appearing immediately after the provision stating that Merriman will “initially have primary care of the children ....”. It provided for visitation by Crane in New Zealand for two months in 2017, and that such visit to New Zealand will take place “as agreed in the period from the end of May to the end of August ... or as mutually agreed by both parties.” In mid-April 2017, Merriman asked Crane to agree to delay the planned visitation until July, to which he assented. The purpose of the delay was to accommodate Merriman’s job search in Oklahoma. On June 29, 2017, Merriman caused to be filed in the District Court of Oklahoma County a Petition for Paternity, Custody, Visitation and Child Support, seeking sole custody of the children. Merriman did not return with the children as previously agreed, and had Crane served with the Oklahoma state court Petition in early July 2017.

          The district court found that Merriman’s desire to obtain a court order in Oklahoma regarding custody of the children before returning them to New Zealand illuminated an underlying intent to avoid the parties’ New Zealand Custody Agreement, and was precisely the type of conduct the Hague Convention and ICARA seeks to prevent.

          The district court found that Crane established by a preponderance of the evidence that (1) the children habitually resided in New Zealand at the time of the retention. It noted that Courts in this circuit, adopting the approach implemented by the First, Fourth, and Fifth Circuits, have stated that “[i]n determining a child’s habitual residence, [the court] looks first to the shared intent or settled purpose of the persons entitled to determine the child’s permanent home; as a secondary factor, [it] may consider the child’s acclimatization to his or her current place of residence.” Mertens v. Kleinsorge-Mertens, 157 F. Supp. 3d 1092, 1103 (D.N.M. 2015). This approach is consistent with a prior unpublished decision from the Tenth Circuit, which states: “[a]lthough it is the child’s habitual residence that the court must determine, in the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the [retention] are important factors to be considered.” Kanth v. Kanth, No. 99-4246, 2000 WL 1644099, at *1 (10th Cir. Nov. 2, 2000) (unpublished).

          The Court found that, prior to their retention in the United States, the children habitually resided in Auckland, New Zealand. At birth, both children resided with the parties in New Zealand. A.E.C. resided with the parties for over three years in New Zealand; R.F.A.C. was a little more than two months old when he departed New Zealand with Merriman. Although the children had been in Oklahoma for nine months, had Merriman abided by the Custody Agreement, two out of the nine months would have been spent in New Zealand. Moreover, it was a stretch to contend, as Merriman did, that the Custody Agreement reflected a mutual intent to permanently relocate the children to Oklahoma, and thus establish Oklahoma as the place where they habitually reside as those terms are used in the Convention. A more consistent and sensical reading of the Custody Agreement was that it sought to preserve the children’s ties to New Zealand, in that it acknowledged the children’s strong ties to that country, and established a 50/50 residential regime as between Oklahoma and New Zealand for each child beginning at age six – two years from now for A.E.C. In any event, the Court found that, absent an expression of mutual intent to establish Oklahoma as their new permanent residence, presence here for nine months, under the circumstances of this case, was insufficient to support a finding that the children have acclimatized here and habitually reside in Oklahoma as opposed to New Zealand. Thus, the Court found that Crane has established the first element of his prima facie case by a preponderance of the evidence.

          The Court found that Crane established wrongful retention of the children in Oklahoma in violation of his custodial rights and that Crane was exercising his joint guardian at the time of the wrongful retention.  It rejected the defense advanced by Merriman that Crane consented to the relocation of the children in the Custody Agreement, and otherwise acquiesced in the relocation by agreeing to delay the visitation called for in the Agreement and assisting Defendant in the purchase of her home in Oklahoma. The evidence wass clear that Crane’s agreement to include relocation of the children to Oklahoma in the Custody Agreement was made in the context of the Agreement as a whole, which provided for extensive involvement and visitation by Crane until the children reach the age of six, and then required a 50/50 residential split between New Zealand and Oklahoma.