In Eidem v Eidem, 2019 WL 1894376 (S.D.N.Y., 2019) the district court granted the petition of Per Magne Eidem (“Petitioner”) for an order directing the return of his two sons to Norway. Petitioner was a Norwegian citizen who was born and raised in Norway. Respondent, a dual citizen of the United States and Norway, was born in Brooklyn, New York, but moved to Norway with her mother in 1993 at the age of eight. The parties married on June 9, 2008.and lived together in Norway from 2005 until 2013.The parties had their first child, T.E., on August 25, 2008. Shortly after his birth, T.E. was diagnosed with Hirschsprung’s disease, a condition wherein nerves are missing from parts of the intestine, and he underwent a “pull-through” surgery at a hospital in Trondheim to remove part of his colon. The Trondheim hospital, located four hours by car from Elnesvågen, was one of two hospitals in Norway capable of performing a pull-through surgery. The parties had their second child, N.E., on December 8, 2010. From a young age, N.E. had difficulties with verbal skills. On June 24, 2013, Respondent filed for separation, and the parties were legally divorced in 2014. Following their divorce, the parties entered into a visitation agreement providing for joint custody over the children. The agreement explained that the children’s “permanent place of abode” would be with Respondent, but that Petitioner would have custody over the children every other Wednesday and Thursday, every other weekend from Friday to Monday, and every other year for several holidays.
During the summer of 2016, Petitioner signed a letter of parental consent allowing Respondent to travel to the United States with the children for a one-year period. The parties agreed that Respondent would return the children to Norway before the beginning of the Norwegian school term in August of 2017. As of January of 2017, Petitioner began coordinating the children’s return to Norway with Respondent. By April of 2017 Respondent had decided that she was going to stay in New York with the children. Nevertheless, she lied to Petitioner and told him that she had purchased airline tickets for the children to return to Norway on August 8, 2017. As a result, on August 8, 2017, Petitioner went with his father to the Molde Airport to meet the children. After the flight landed and Petitioner realized that the children were not actually on board, he reached out to Respondent, who admitted that she had lied about purchasing airline tickets and explained that she was going to keep the children in the United States. Respondent then cut off all contact between Petitioner and the children. Although Petitioner tried calling at least a dozen times, Respondent never answered. Petitioner initiated this action on July 6, 2018. At a pre-trial conference Respondent explained that she currently did not intend to return to Norway with the children if the Court ordered their return to Norway.
The district court noted that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child’s habitual residence pursuant to the Hague Convention: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter.
The court found that the last shared intent of the parties was clearly for the children to be habitual residents of Norway. Respondent admitted that, when the parties agreed that Respondent would take the children to the United States in August of 2016, their shared intent was for the children to live in the United States for one year only, and to return to Norway – where they had lived the entirety of their lives to that point – before the beginning of the Norwegian school year in August 2017. The court found that the children had not so acclimatized to the United States that they had acquired a new habitual residence. A court can conclude that a “child’s habitual residence has shifted to his or her new location” only under the “relatively rare circumstances in which a child’s degree of acclimatization is so complete that serious harm can be expected to result from compelling his or her return to the family’s intended residence.” Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) The Court concluded that Petitioner made out a prima facie case of wrongful removal and retention of the children under ICARA.
Respondent argued that the children would be exposed to grave risk of harm if they were returned to Norway because Petitioner allegedly abused her in front of the children throughout their marriage. Respondent detailed one incident in which, after Petitioner “refused to help” with the children, Respondent threatened to throw Petitioner’s computer out the window and Petitioner “struck [her] across the face with his hand, knocking [her] to the ground” in front of the children, who were four and two years old at the time. Petitioner denied abusing Respondent. Regardless of whose version of the altercation was closer to the truth, the parties were now divorced and would not be residing together under any circumstances. Thus, the likelihood of future physical alterations between them was remote. Furthermore, there was simply no evidence to suggest that Petitioner had ever abused the children, or that he would ever do so. The Court found no basis to conclude that the children would be placed in grave danger if they were returned to Petitioner’s custody.
Finally, Respondent argued that the children will be exposed to grave risk if they were taken away from the network of doctors overseeing their care in the United States. Although the Court acknowledged that an abrupt termination of the children’s current mental health treatment could pose some danger to their well-being, the Court concluded that such danger would be sufficiently mitigated if the children were moved after the conclusion of the school year.