Miller v Miller, 2018 WL 4008779 (E.D. Tennessee, 2018) [Canada] [Habitual Residence] [Petition denied]

          In Miller v Miller, 2018 WL 4008779 (E.D. Tennessee, 2018) the district court denied the Petition of James Christopher for the return of their three children to Humboldt, Saskatchewan, Canada.

          Mr. Miller and Mrs. Miller have been married for nine years and were the biological parents of J.M.M. A.B.M., and C.J.M., who were born in 2007, 2010, and 2012, respectively. In 2013, Mr. Miller and Mrs. Miller mutually decided to move their family from Chattanooga to Humboldt, Saskatchewan, Canada, to pursue economic opportunities and to avoid creditors associated with a failed business venture that Mr. Miller had launched in Chattanooga. They also mutually envisioned the move as a “five-year plan,” which meant that after five years they planned to reevaluate their decision to relocate to Canada and determine whether they wanted to live there for a longer time.

          After the Millers completed the move in May 2013, they eventually settled into a rental house in Humboldt, where J.M.M. had his own bedroom and A.B.M. and C.J.M shared a bedroom. At the time, J.M.M. was six years old, A.B.M. was three years old, and C.J.M. was five and a half months old. The Millers began to build their life in Canada. As a family, they applied for permanent resident status. Mr. Miller obtained employment in the construction industry. Mrs. Miller also obtained employment, though she was principally the children’s caretaker. The two oldest children, J.M.M. and A.B.M., enrolled in school, while the youngest, C.J.M., remained with Mrs. Miller or under a babysitter’s supervision. Mr. Miller and Mrs. Miller also enrolled the children in Canadian healthcare plans. As for the children’s social lives and activities, the children made friends in their neighborhood and through participation in sports programs.  J.M.M. became well-known by neighbors and picked vegetables from their yards, and the children viewed a pair of local family friends, Michael and Sherry Kwasnica, as their surrogate grandparents and referred to them as “grandpa” and “grandma.” J.M.M. and A.B.M. played youth-league ice hockey, though C.J.M. was too young for it. The children also took part in numerous outdoor activities, including Ducks Unlimited,³ canoeing, camping, quidding, kayaking, and ice fishing.

          Mr. Miller sensed that Mrs. Miller was depressed and not coping well with being away from her family. Their marriage suffered, and Mr. Miller knew it was “on the rocks.” They had lengthy discussions about their marital problems, and at one point, in February 2017, Mrs. Miller told Mr. Miller that they were “headed for a divorce.”  In the throes of their capsizing marriage, Mrs. Miller was eager for her family’s company. According to Mr. Miller, she issued an ultimatum to him: she was going to leave Canada and return to Chattanooga with or without him. In response, Mr. Miller agreed that he, Mrs. Miller, and the children would leave Canada together as a family, hoping that the move would buoy their marriage. The family began preparing for the move. They rented two U-Haul trucks, which they fully loaded with their belongings—including all the children’s belongings—and they sold or gave away anything that did not fit into the trucks. They also packed the ATV and the canoe they used for quadding and canoeing, respectively. The Millers’ friends threw farewell parties for them. Their friends also helped them empty and clean their house. The Millers canceled their utilities. They returned the house keys to the owner. Mr. Miller quit his job.

          On September 19, 2017, the Millers left Canada for Chattanooga.  During the trip, Mrs. Miller asked Mr. Miller for all the passports, and he surrendered them to her.

The children arrived there with their parents on September 21 or 22. he family unloaded the children’s and Mrs. Miller’s belongings into Mrs. Miller’s mother’s basement, which became the children’s new living space, but the family’s belongings were so numerous that they had to unload some of them into local storage units. Mr. Miller did not cohabitate with Mrs. Miller in the basement; they had agreed to maintain separate residences once they arrived in Chattanooga. Mr. Miller moved in temporarily with Mr. Castle, who opened his home to him, while Mrs. Miller stayed at her mother’s house with the children.  Later in September, Mr. Miller enrolled J.M.M. and A.B.M. in school. Despite living apart from the children, Mr. Miller continued to see them at least two weeknights and most weekends. In November, Mrs. Miller told him that she wanted a divorce. Within days of receiving this news, he returned to Canada and looked into resuming his old job and the availability of the family’s old house. Afterwards, he called Mrs. Miller, and he informed her that he “wanted to go back” to Canada and “wanted the boys to come back with [him].” According to Mr. Miller, Mrs. Miller expressed her desire for the children to remain in Chattanooga. While still in Canada, Mr. Miller did “homework” on the Hague Convention, and he pursued additional legal advice specifically relating to “how ... it work[s].” He returned to Chattanooga without contacting the Saskatchewan Central Authority and requesting the children’s return to Canada under the Hague Convention.

          On March 27, 2018, Mrs. Miller filed for divorce. On the same day, Mr. Miller contacted the Saskatchewan Central Authority and applied for the children’s return to Canada. After making the trip back from Florida a few days later, Mr. Miller arrived at Mrs. Miller’s mother’s house to drop off the children. He fled from the house—with the children—after learning that a process server was waiting there to serve him. Mrs. Miller testified that Mr. Miller refused to return the children to her until she instructed the process server to leave. Finally, during the course of all these events—which occurred roughly between September 2017 and March 2018—the bulk of the evidence indicated that the children had made friends in Chattanooga. Mr. Miller resided in Canada, in the same house that he once lived in with his family.

          The district court found that Mr. Miller indisputably agreed to leave Canada and return to Chattanooga with his family, out of concern for Mrs. Millers’ mental health and out of hope to boost their marriage. The Millers’ departure from Canada had every semblance of permanency. They packed all their belongings—so many that they actually had to unload some of them into storage facilities, and they sold or gave away the belongings that they were unable to pack. They canceled the utilities. They returned the keys. Mr. Miller resigned from his job. The Millers’ friends threw farewell parties for them, with going-away gifts. Other than claiming that one of these parties was actually a birthday party and not a farewell party, Mr. Miller opposed none of these facts.          

          The district court observed that the record suggested that Mr. Miller initiated this case with the intent to forum shop—to postpone or circumvent custody-related proceedings in Tennessee and arrange for them to occur, if at all, in only one possible location, Canada.         From this evidence, the Court had a hardened conviction that Mr. Miller invoked the Hague Convention to duck the proceedings in Hamilton County Circuit Court and place Mrs. Miller in the difficult position of having to pursue those proceedings in his preferred forum, Canada. The evidence supporting the Court’s conviction of forum shopping was by itself a basis for denial of his Petition. See Jenkins, 569 F.3d at 557–58 .

          The court indicated that to establish wrongful retention under the Hague Convention, Mr. Miller must prove first by a preponderance of the evidence that Canada was the children’s country of habitual residence. Friedrich, 983 F.2d at 1400; Guevara, 180 F. Supp. 3d at 525; Hague Convention, art. 3; see generally Text and Analysis, 51 Fed. Reg. at 10504 If he succeeds in establishing that Canada is the children’s country of habitual residence, he must then prove by a preponderance of the evidence that (1) Mrs. Miller, by retaining the children in Chattanooga, breached his custody rights under Canadian law and (2) at the time of their retention, he was actually exercising those rights, or would have exercised them if not for their retention. Friedrich, 983 F.2d at 1400; Guevara, 180 F. Supp. 3d at 525; Hague Convention, art. 3.  The Sixth Circuit identified five lodestars to guide itself—and district courts in future cases—to a proper determination of a child’s habitual residence: First, habitual residence should not be determined through the “technical” rules governing legal residence or common law domicile. Instead, courts should look closely at “[t]he facts and circumstances of each case.” Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s “past experience.” “Any future plans” that the parents may have “are irrelevant to our inquiry.” Fourth, “[a] person can have only one habitual residence.” Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only “a change in geography and the passage of time” may combine to establish a new habitual residence. Robert, 507 F.3d at 989 (quoting Friedrich, 983 F.2d at 1401–02).

          In Robert v. Tesson, the Sixth Circuit revisited the issue of habitual residence in a more complex context, addressing how to determine habitual residence “when a child has alternated residences between two or more nations.” 507 F.3d at 992. Concerned with the need for emotional and social stability in a child’s life, the Sixth Circuit adopted an “acclimatization standard.” Under this now well-known standard, “a child’s habitual residence is the nation where, at the time of their removal, the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’” Id. (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) ). The Sixth Circuit has not fitted the terms “acclimatization” or “settled purpose” with a tailored definition because every inquiry into habitual residence is a pliant, fact-specific analysis. See id. at 990 (stating that an analysis of a child’s habitual residence is not a formulaic one and requires courts to “look closely at ‘[t]he facts and circumstances of each case’ ” ; Friedrich, 983 F.2d at 1402 (“Every family dispute has its own unique set of facts.”).

           Under this fact-specific inquiry, various aspects of a child’s life may be pertinent to reaching a decision as to whether a child has become acclimated to and settled in a particular country. They include the child’s academic activities, social engagements, participation in sports programs and excursions, any personal belongings in the child’s possession when the child alternated residences, the child’s own stated desire, and any other relevant circumstances or meaningful connections with people or places. Robert, 507 F.3d at 996; see Jenkins, 569 F.3d at 556 (“[A]ll [of these things] point to the child being acclimatized.” But all of these aspects surrounding a child’s life in a new country, depending on the time of their occurrence, are not necessarily proper for consideration in an analysis under the acclimatization standard.

          A lynchpin of any inquiry under this standard is a determination of the time of the wrongful removal—or in this case, the time of the wrongful retention—because it lays the parameters for the Court’s analysis. See Robert, 507 F.3d at 993 (“[A] child’s habitual residence is the country where, at the time of their removal, the child has been present long enough to allow acclimatization[.]”; see also Panteleris v. Panteleris, 601 Fed.Appx. 345, 349 (6th Cir. 2015) (“[O]ur court’s precedent instructs courts to look back in time from the period of wrongful retention, not forward.”); Friedrich, 983 F.2d at 1401 (“[T]he court must focus on the child, not the parents, and examine past experience, not future intentions.”). In other words, the date of the children’s retention in Chattanooga operates as an expiration point, which means that the Court, when determining the children’s habitual residence, has to limit its review to the social and familial aspects of the children’s lives that developed before that point and not beyond it.

          Mr. Miller contended that Mrs. Miller began wrongfully retaining the children in Chattanooga on November 17, 2017, because on this date he expressed a desire to have the children return to Canada with him and Mrs. Miller expressed her desire for them to remain in Chattanooga with her. All the evidence led the Court to only one possible conclusion: the first time that Mr. Miller expressed anything weightier than tacit grumblings about the children’s presence in Chattanooga was when he pursued their return to Canada on March 27, 2018, by filing his application with the Saskatchewan Central Authority. And on this date—the same date when Mrs. Miller filed for divorce—Mrs. Miller had also announced her unequivocal intention to retain the children in Chattanooga through state custody proceedings.

          Having determined the date of the children’s retention, the Court—when it looked backward from that date—had no doubt that the children were present in Chattanooga long enough to become acclimated and settled. With the exception of C.J.M., who was too young, they were enrolled in Chattanooga’s school system, and J.M.M. became a member of the Science Olympiad Club and attended a playground-renovation project meeting. See Ahmed, 867 F.3d at 687 (“ ‘[A]cademic activities’ are ‘highly suggestive of acclimatization[.]’ ” They were doing well in school and showed no behavioral problems. See Jenkins, 569 F.3d at 556 (holding that a child was acclimated to his new country partly because he “was attending preschool ... and was, by all first-person accounts, doing well in that environment”).  They also had family in the area and interacted with them.

          The district court found that Mr. Miller failed to establish by a preponderance of the evidence that Canada was the children’s habitual residence at the time of their retention in Chattanooga—whether the Court views the date of retention as March 27, 2018, or November 17, 2017. Their retention in Chattanooga was therefore not “wrongful” as the Hague Convention defines the term.