Monday, September 17, 2018
Crossan v Clohessy, 2018 WL 3614635 (W.D. Louisiana, 2018)[Ireland] [Rights of Custody] [Petition granted]
In Crossan v Clohessy, 2018 WL 3614635 (W.D. Louisiana, 2018) Keith Crossan, a citizen of Ireland, sought return of his minor child M.T.C.C. to Ireland after the child’s mother, Louise Clohessy, removed M.T.C.C. to the United States without Mr. Crossan’s knowledge or consent.
The district court observed that under the Convention, wrongful removal occurs when (1) a parent takes or retains the child outside of his country of habitual residence, (2) the removal/retention breaches the custody rights of the non-removing parent under the laws of that country, and (3) the non-removing parent was exercising or attempting to exercise his custody rights at the time of the removal or retention, or would have exercised those rights but for the wrongful removal or retention. Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir. 2004); Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). It is the petitioner’s burden to establish these factors by a preponderance of the evidence. Larbie, 690 F.3d at 307; 22 U.S.C. § 9003(e)(1).
The district court found that under Irish law, unmarried fathers such as Mr. Crossan are not considered custodians of right but may attain that status under the “cohabitating provisions” of The Guardianship of Infants Act of 1964, as amended by The Children and Family Relationships Act of 2015. Under the Guardianship of Infants Act, as amended, an unmarried father obtains rights of guardianship if he was a cohabitant with the mother for at least twelve consecutive months, three of which occur “at any time after the birth of the child ... during which both the father and mother have lived with the child.” Guardianship of Infants Act, as amended, § 6B (3). This amendment is effective prospectively from January 18, 2016. For purposes of the Convention as well and assuming that the non-removing parent has custody rights, that parent must also have been exercising or attempting to exercise his guardianship rights by keeping regular contact with the child at the time of removal.
The parties agreed that M.T.C.C. was removed from Ireland, his habitual residence, on August 28, 2017, by his mother, Louise Clohessy and without the permission of his father, Keith Crossan. The district court found that that Mr. Crossan had established by a preponderance of the evidence that the cohabitating relationship between these individuals existed from September of 2015 until Ms. Clohessy removed her belongings and those of the minor child from the home in Carrick-on-Shannon in June of 2017. The period of time in which Mr. Crossan was renovating the home in Carrick-on-Shannon and Ms. Clohessy was recuperating from childbirth at her parents’ home did not represent a break in their consecutive cohabitation. Nor was the period of cohabitation interrupted by any of Ms. Clohessy’s visits to her parents’ home from November 2016 to June 2017, during which period witness testimony and documentary evidence reflect that she considered and held Carrick-on-Shannon out as her family residence with M.T.C.C. and Mr. Crossan. The fact of the parties’ ongoing co-habitating relationship throughout this time was amply supported by Facebook messages between Mr. Crossan and Ms. Clohessy referring to their shared home and status as a family, as cited in the court’s bench ruling; the fact that M.T.C.C.’s birth certificate, completed in December 2016, lists Carrick-on-Shannon as the current residence for both parents; the fact that Ms. Clohessy received correspondence from the Department of Social Welfare Services at the address in Carrick-on-Shannon as late as February 2018; the fact that M.T.C.C. received his immunizations, through May 2017, in Carrick-on-Shannon and had a prescription filled there in February 2017; and the fact that the house at Carrick-on-Shannon was fully furnished for an infant, to the point where multiple witnesses testified that Ms. Clohessy required a truck to move out their belongings in June 2017. Additionally, neighbors of Ms. Clohessy and Mr. Crossan in Carrick-on-Shannon testified that they interacted with the family during this period and that Ms. Clohessy acted as if Carrick-on-Shannon was her residence. On the other hand, Ms. Clohessy relied largely on her own account and that of her parents to establish that she and M.T.C.C. were actually residing in County Limerick during this period. For reasons more fully explained in our bench ruling, we determined that the Clohessys’ accounts were contradicted by the documentary evidence and tainted by the negative feelings they expressed toward Mr. Crossan.
The parties did not appear to dispute that Mr. Crossan was exercising his rights as a father, and we likewise find that he did so through his contact with his child from birth through August 28, 2017, when Ms. Clohessy prevented any further contact by removing the child from the country without Mr. Crossan’s knowledge or consent and concealing his whereabouts.
The court found that Mr. Crossan had shown, by a preponderance of the evidence, that at the time of M.T.C.C.’s removal from Ireland that he (Mr. Crossan) had and was exercising rights of guardianship over M.T.C.C. under the cohabitating provisions of The Guardianship of Infants Act of 1964, as amended by the Children and Family Relationships Act of 2015, (1) because he had cohabitated with Louise Clohessy for at least twelve consecutive months from January 18, 2016 (when the cohabitation provisions of The Guardianship of Infants Act became effective), onward, and for at least three consecutive months within that period with both Ms. Clohessy and their child, M.T.C.C., and (2) because he was attempting to exercise his guardianship rights under Irish law by keeping regular contact with the child at the time of removal.
Therefore Ms. Clohessy’s removal of M.T.C.C. from Ireland to the United States violated the Hague Convention and ICARA, under which Mr. Crossan instituted proceedings in this court, and Mr. Crossan’s petition for return of the child had to be granted