` In Sundberg v Bailey, 2017 WL 6757218
(W.D. North Carolina, 2017) the Court granted the Petition of Karl Henrik
Sundberg for return of their child to Sweden. Petitioner commenced the action
on November 1, 2017, against the Respondent Lisa Michelle Bailey (“Respondent”)
claiming that the Respondent had wrongfully retained the parties’ four-year-old
daughter, L.P.B.S. (“Child”), in the United States and seeking the Child’s
return to Sweden
The Petitioner was a citizen and resident of Sweden. He had the
ability to travel to the United States for short periods as a tourist. The
Respondent was a citizen and resident of the United States. Immediately prior
to coming to the United States in September 2016, the Respondent had resided in
Sweden for four years with legal immigration status. The Petitioner and the
Respondent were married on June 29, 2013, in Sweden. The Child was born to the
Petitioner and Respondent in 2013, in Uppsala, Sweden. The Child was a citizen
of both Sweden and the United States. The Petitioner and the Respondent were
divorced on August 13, 2015, in Uppsala, Sweden. Following their divorce, the
Petitioner and the Respondent exercised joint custodial rights over the Child,
pursuant to Swedish law. The Child resided exclusively in Sweden for the first
three years of her life and made occasional visits to see family in the United
States. She was able to speak both Swedish and English. In the summer of 2016, the Respondent asked
the Petitioner for his permission to take the Child for an extended period to
the United States. The parties discussed the possibility of all three (the
Petitioner, the Respondent, and the Child) moving to the United States, if the
Petitioner could obtain legal immigrant status through a work visa or some
other means but no such legal status was then pursued. As a product of these
discussions, on August 14, 2016, the parties signed an agreement, drafted by
the Respondent, which provides, in pertinent part, as follows: The purpose of
this letter is to state a mutual agreement between Lisa Michelle Bailey and
Karl Henrik Sundberg. Lisa and Karl have shared custody of their daughter,
[Child]. Lisa and Karl agree to the following: 1. Lisa will leave Sweden and
the European Union, with [Child], to spend several months in USA, where
Lisa and [Child] are both citizens. Lisa and [Child] will depart from Sweden on
20 Sept. 2016, and their destination is Asheville, North Carolina, USA. 2. In
May 2017, Lisa and Karl will determine a future agreement about Lisa and
[Child’s] residence and a plan for continuing shared custody of [Child].
Six days later, on August 20, 2016, the Petitioner and the
Respondent executed a Tenancy Agreement, under which terms the Respondent
agreed to rent two rooms from the Petitioner in his home, for a term beginning
on September 30, 2016 and ending on September 30, 2017. The Petitioner
testified that the parties entered into this agreement so that the Respondent
would have a place to live with the Child upon her anticipated return to
Sweden. The parties concede that the Respondent did not pay any rent called for
under this agreement. The Respondent testified that she executed the Tenancy
Agreement simply so that she could apply for a housing allowance from the
Swedish government to subsidize her rent, but that she never received this
subsidy.
The Respondent and the Child came to the United States on
September 20, 2016, using one-way airline tickets. The Respondent rented a room
in a house in West Asheville for herself and the Child, and the Respondent soon
found employment. The parties continued to discuss the possibility of the
Petitioner seeking employment in the United States and relocating there, but no
affirmative steps were taken by either party to obtain a green card or work
visa for the Petitioner.
After the Respondent
brought the Child to the United States, the Petitioner maintained regular
contact with the Child via Skype. The Petitioner traveled to the United States
in December 2016 and visited with the Child and the Respondent for approximately
one month. The Child was excited about returning to Sweden in the summer. The
Petitioner’s sister also visited the Child while she was in the United States,
and it was the sister’s understanding that the parties intended for the Child
to return to Sweden at the beginning of the summer.
In an e-mail communication with the Petitioner in March 2017, the
Respondent advised the Petitioner that she did not intend to return the Child
to Sweden. In April 2017, the Respondent commenced a child custody suit in
Buncombe County, North Carolina. The Petitioner did not participate in these
proceedings. When the Petitioner was not able to secure the return of the Child
through administrative means, he commenced the present action on November 1,
2017. [Doc. 1].
The parties stipulated that at all times relevant to those
proceedings, the Petitioner had rights of joint custody and was exercising
those rights. The parties disagree, however, as to the issue of “habitual
residence.” The Petitioner contends that the Child’s country of habitual
residence was Sweden, and that the Respondent wrongfully retained the Child
when she refused to return her to Sweden in accordance with the parties’
written agreement. The Respondent, on the other hand, contends that with their
relocation in September 2016, to which the Petitioner consented, the Child’s
country of habitual residence became the United States and thus no wrongful
removal or retention ever occurred.
The district court found that as of the summer of 2016, the Child’s
country of habitual residence was Sweden – the country in which she was born
and the only country in which she had ever resided. While the parties agreed
that the Child could come with the Respondent to the United States for a
limited period of time, the parties did not share any settled intent to abandon
Sweden as the Child’s country of habitual residence. The parties’ written
agreement, which was drafted and signed by the Respondent, explicitly stated
that the Respondent and the Child would reside in the United States for a
period of “several months” beginning in September 2016 and that the parties
would make future arrangements regarding custody in May 2017. Consistent with
that agreement, the Child remained enrolled in the Swedish healthcare system,
and the Respondent continued to receive child welfare benefits from the Swedish
government for the benefit of the Child. While the Child’s return date was not
fixed with certainty (as evidenced by the lack of a return plane ticket), it
was clear that the parties anticipated the Respondent and the Child returning
to Sweden no later than May 2017 (and possibly earlier, if the Respondent could
not find employment). The Petitioner testified that, on his part, this
expectation never changed, but that the Respondent’s intent changed in early
2017. The Respondent’s unilateral change of heart, however, does not alter the
child’s habitual residence of Sweden. “[W]here the child’s initial
translocation from an established habitual residence was clearly intended to be
of a specific, delimited period ... courts have generally refused to find that
the changed intentions of one parent led to an alteration in the child’s
habitual residence.” Maxwell, 588 F.3d at 251 (quoting Mozes, 239 F3d at 1077) (internal quotation marks
omitted).
Other evidence of the parties’ intent indicated that the move was
not intended to be permanent. The Court concluded that the Respondent’s move to
the United States with the Child was intended to be of a limited duration and
that the parties did not have a shared, settled intent to abandon Sweden as the
Child’s country of habitual residence.
Having determined that the parents lacked a shared, settled intent
to change the Child’s country of habitual residence, the Court considered the
extent of the Child’s acclimatization to the United States. “To infer
abandonment of a habitual residence by acclimatization, the objective facts
must point unequivocally to the child’s ordinary or habitual residence
being in the new country.” Murphy v.
Sloan, 764 F.3d 1144, 1152 (9th
Cir. 2014), cert. denied, 135 S. Ct. 1183 (2015) (quoting Mozes, 239 F. 3d at 1081) (emphasis in original;
internal quotation marks and other alterations omitted). While the Court should
consider the extent of the child’s contacts in the new country, “in the absence
of settled parental intent, courts should be slow to infer from such contacts
that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079.
The Court found that while the Child was well-adjusted in the
United States, she spent the first three years of her life in Sweden. She
maintained significant contacts with Sweden, in that she was in regular contact
with her father, as well as her Swedish aunt and cousins. She remained enrolled
in preschool in Sweden and continues to be a patient in the Swedish healthcare
system. The Child was only four years old, and therefore was not of an age
where is she strongly attached to any particular school or social environment. Karkkainen
v. Kovalchuk, 445 F.3d 280, 296 (3d
Cir. 2006) (noting that the issue of acclimatization is “secondary” in a
case involving a very young child “because the child lacks the ability to truly
acclimatize to a new environment”).1
The Court concluded that the Child had not acclimatized to living
in the United States to such an extent and in such a manner that it could be
said that her country of habitual residence had been abandoned. The Child’s
habitual residence was, and continued to be, the country of Sweden. Therefore,
the Court concluded that the Petitioner established by a preponderance of the
evidence that when the Respondent failed to return the Child to Sweden as
agreed by the end of May 2017 that the Child was retained from her country of
habitual residence in violation of the Petitioner’s custody rights in violation
of the Hague Convention and ICARA.
The
Respondent raised the defenses of consent and acquiescence. For the reasons
stated by the Court in finding that the parties lacked a shared settled intent
to abandon Sweden as the Child’s country of habitual residence, the Court found
that the defense of consent was not applicable to this case. Petitioner consistently intended for the
Child to return to Sweden no later than May 2017; at no time did he consent to
a permanent relocation or even a stay of an indefinite nature. The respondent
did not present any evidence to demonstrate that the Petitioner acquiesced to
the Respondent’s decision not to return to Sweden.
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