In Diagne v DeMartino, 2018
WL 4385659 (E.D. Michigan, 2018) the Father sought the return of his two
children, six-year-old N.M.D. and seven-month-old I.N.D., to Canada. The court
granted the petition with regard to NMD and denied it with regard to I.N.D.’s
return to Canada.
The parties were married on February
27, 2010 in Quebec, Canada. They had two sons born during the marriage. The Father
was a Canadian citizen. The Father sponsored the Mother, a United States
citizen, to become a Canadian permanent resident after the marriage. The
parties established their family life together and set up their first home in
Canada. The parties’ first son, N.M.D.,
was born in Quebec on May 29, 2012. In
December 2014, the parties leased a home in London, Ontario, Canada jointly. In
July 2016, the parties purchased a home in London, Ontario. N.M.D. attended day
care in London, Ontario and junior kindergarten at École Frère André in London
in the 2016-2017 school year. The Mother and Father enrolled N.M.D. at the same
school for the 2017-2018 school year for kindergarten. He was also enrolled for
the 2018-2019 school year. N.M.D.’s family doctors were all in London,
Ontario. In March 2017, the Mother became pregnant with I.N.D., the parties’
second child. The new baby was due to be
born in December 2017. In August 2017, when the Mother was approximately five
months pregnant, the parties traveled to Rhode Island for their family vacation.
On August 16th, the Mother discovered e-mails between the Father and one of his
female co-workers, suggesting the Father was having an affair with his
co-worker. The Mother confronted the Father about the e-mails and his
involvement with the coworker. The Father left the vacation on August 16, 2017 after
giving the Mother N.M.D.’s passport so he could return to Canada. The Mother
and N.M.D. did not return to Canada at the end of the Rhode Island vacation. After
spending ten days in Texas, the Mother and N.M.D. arrived in Michigan on August
29 or 30, 2017 and stayed in a home owned by the Mother’s sister and
brother-in-law. The Father continued to
drive back and forth between Canada and Michigan. Before
one of the Father’s visits to Michigan, the Mother requested that the Father
bring N.M.D.’s birth certificate and immunization records so that the Mother
could enroll N.M.D. in school in Michigan. Although the Father had not agreed
that N.M.D. could live in Michigan, he accepted that the child could not miss
school pending the return of N.M.D. to Canada. On September 9, 2017, the Father
brought papers to enroll N.M.D. in school in the United States. On September 13, 2017, with the Father’s
knowledge, the Mother went to the parties’ home in Canada and retrieved her
personal belongings. The Father helped the Mother pack and load her car with
furnishings and items personal to her and N.M.D. By September 15, 2017 the
parties had agreed to split their belongings from their mutual home; the Father
agreed to bring the Mother’s and N.M.D.’s belongings to her in the United
States. On September 14, 2017, the Mother’s attorney sent the Father a proposed
Interim Separation Agreement (the “Interim Agreement”). The father never signed
the agreement. The Mother gave birth to I.N.D. in Michigan on December 11,
2017. The Mother’s mother stayed with the Mother and I.N.D. at the hospital.
The next day, the Father picked up the Mother and I.N.D. from the hospital and
drove them to the house where the Mother was staying in Michigan. The Father returned to Canada while the Mother’s
mother stayed with the Mother and children at the house in Michigan. On March
31, 2018, the Mother filed a Complaint for Divorce against the Father in the
Family Division for the 44th Judicial Circuit of the State of
Michigan. The Father was served with divorce papers on April 26, 2018. On June 5, 2018, the Father submitted a
Verified Petition for Return of Children seeking the return of both children to
Canada.
The district court observed that Courts
use two distinct standards to determine the habitual residence of a child under
the Hague Convention: “acclimatization” and “shared parental intent.” Ahmed,
867 F.3d at 687-90; Robert,
507 F.3d at 994. In Ahmed, the Sixth Circuit formally
adopted the settled mutual intent approach for Convention cases involving
infants and young children who lack the cognizance to acclimate to any residence.
The Ahmed court went on to hold that, “what matters is where the
[parents] intended the children to live.” But courts are generally in agreement that
infants cannot acquire a habitual residence separate and apart from their
parents. “Where a matrimonial home exists, i.e., where both parents share a
settled intent to reside, determining the habitual residence of an infant
presents no particular problem[.] [I]t simply calls for application of the
analysis under the Convention with which courts [are] familiar.” Delvoye v. Lee,
329 F.3d 330, 333 (3d Cir. 2003). However, where the
parents’ relationship has broken down – as is the case here – the character of
the problem changes. The mere fact that conflict has developed does not
automatically disestablish a child’s habitual residence once it has come into
existence. Id. “But where the conflict is contemporaneous with the birth
of the child, no habitual residence may ever come into existence.” Id. Importantly,
the court in Delvoye found that “ ‘Where a child is born while
his...mother is temporarily present in a country other than that of her
habitual residence[,]...the child will normally have no habitual residence
until living in a country on a footing of some stability.’ ” Delvoye,
329 F.3d at 334.
The Mother
conceded, and the Court found that the Father proved a prima facie case for the
return of N.M.D. to Canada based on the Mother’s wrongful retention of N.M.D.
on August 21, 2017. The Mother failed to establish defenses to return, either
acquiescence or consent. The Court found that N.M.D. had to be returned to
Canada.
The district court noted that in the case of IND, the Father
alleged that I.N.D. was wrongfully retained in the United States from Canada
beginning immediately before I.N.D.’s birth on December 11, 2017. The Mother argued
only that the Father failed to meet his burden of proof with respect to
habitual residence. The Court applied the shared parental intent standard set
forth in Ahmed and agreed with her. The same evidence the Court relied
upon to conclude there was no consistent attitude of acquiescence over a
significant period of time was used by the Court to conclude that the Mother
and Father’s mutual intent for where I.N.D. would live was absent from the time
the Mother remained in the United States on August 20, 2017 until I.N.D. was
born on December 11, 2017. The parties’ intent before August 20, when the
Mother was just five months pregnant, was insufficient to make I.N.D. a
habitual resident of Canada. I.N.D. had only lived in the United States, and
there was no evidence that he had even been to Canada to visit. The court pointed out that the Ninth Circuit
addressed a similar issue in In re A.L.C.,
607 Fed. Appx. 658 (9th Cir. 2015). Declining to return a newborn child under the
Hague Convention, the Court held that “[w]hen a child is born under a cloud of
disagreement between parents over the child’s habitual residence, and a child
remains of a tender age in which contacts outside the immediate home cannot
practically develop into deep-rooted ties, a child remains without a
habitual residence because ‘if an attachment to a State does not exist, it
should hardly be invented.” Id.
at 662 (quoting Holder v. Holder,
392 F.3d 1009, 1020-21 (9th Cir. 2004)) The Court
agreed with the Ninth Circuit’s reasoning finding that I.N.D. had no habitual
residence immediately before his birth and retention in the United States. Therefore,
the father failed to establish I.N.D.’s habitual residence was Canada
immediately before the alleged wrongful retention, and did not prove his prima facie case for the return
of I.N.D. to Canada.
The district court noted that under Article 18 of the
Convention, if a petitioner establishes his or her prima facie case, and the
respondent subsequently establishes one of the exceptions to return, the court
may still exercise its plenary power “to order the return of [a] child at any
time.” Convention Art. 18; Friedrich II,
78 F.3d at 1067. See also Lozano v. Montoya
Alvarez, 134 S.Ct 1224, 1237-38 (2014) (Alito, J.
concurring). The Father did not prove
his prima facie case. Because the Father
failed to demonstrate that Canada was I.N.D.’s habitual residence, the Court did
not have the discretion to “return” I.N.D. to Canada. I.N.D. had never lived in
Canada; thus, the relief the Father requested essentially was that the Court
order I.N.D.’s removal to Canada. Giving a court discretion to order the
removal of a child to a country that is not, nor ever has been, his or her
habitual residence is not contemplated by the Convention and would not serve
the purposes of the Convention. Accordingly, the Court would not order I.N.D.’s
return to Canada.
