Wednesday, March 21, 2018
Sundberg v Bailey, 2017 WL 6757218 (W.D. North Carolina, 2017)[Sweden] [Habitual residence] [Petition granted]
` 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.