Thursday, January 17, 2019
Malmgren v Malmgren, --- Fed.Appx. ----, 2019 WL 211324 (Mem) (4th Cir., 2019)[Sweden] [Well settled defense] [Petition granted]
In Malmgren v Malmgren, --- Fed.Appx. ----, 2019 WL 211324 (Mem) (4th Cir., 2019) Dick Goran Malmgren (“father”) filed a petition against Lisha Chevonne Malmgren (mother”). for the return of his daughter to Sweden. The district court determined that the child had been wrongfully removed from Sweden, her country of habitual residence, but because she was well settled in the United States, the court denied the petition and did not order that the child be returned to Sweden. The Fourth Circuit vacated the judgment and and directed the district court on remand to expeditiously grant the petition for return.
The Court pointed out that it reviews the district court’s factual findings for clear error and reviews de novo the court’s conclusions regarding principles of domestic, foreign, and international law. Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). It noted that Article 12 of the Convention directs that when a child has been wrongfully removed or retained, the Contracting State shall order the prompt return of a child to his or her country of habitual residence if less than a year has elapsed between the wrongful removal or retention and the commencement of the proceeding, unless one of the enumerated exceptions applies. Convention, art. 12. If the petition is not filed within one year of the child’s removal, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” For a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016). The “well-settled” defense, however, is not applicable if the petition was filed within one year after the wrongful removal or detention. Article 12 states “[t]he general rule that when a court receives a petition for return within one year after the child’s wrongful removal, the court shall order the return of the child forthwith.” Lozano v. Alvarez, 572 U.S. 1, 5 (2014); see also Miller, 240 F.3d at 402 n.14 (finding that “the ‘well-settled’ defense [ ] has no application” because “the petition was filed within a year of the wrongful removal”).
Tthe district court found that the father established that the child was wrongfully removed from her habitual place of residence in violation of his custody rights. Nevertheless, the court allowed the mother to establish that the child is now well settled in the United States, reasoning that it could consider this defense because the father unreasonably delayed in filing the petition for return even though it was filed within the one-year period. Finding that it had equitable discretion to consider the mother’s “well-settled” defense even when the petition was filed within one year of the wrongful removal, the court determined that the mother established this defense and thereby denied the father’s petition.
The Eleventh Circuit held that the district court’s finding that it could consider the “well-settled” defense even if the petition was filed within the one-year timeframe is not supported by the Convention or case law analyzing the relevant articles. See Convention, art. 12; Lozano, 572 U.S. at 5. It is mandatory under Article 12 that if the court determines that the petition for return is filed within one year of removal, with exceptions that are not relevant here, the child must be returned to her country of habitual residence. Miller, 240 F.3d at 402 n.14. Accordingly, it vacated the district court’s order denying the petition for return and directed the district court on remand to expeditiously grant the petition for return and order the prompt return of the child to Sweden, her country of habitual residence.