In Sundberg v Bailey, 765
Fed.Appx. 910 (4th Cir. 2019) the district court granted the petition for return
of the child to Sweden. The Fourth Circuit affirmed in an unpublished opinion.
Lisa
Bailey and Karl Sundberg married in Sweden shortly after the birth of their
daughter in 2013. They divorced two years later but continued to share custody
of their daughter. After the divorce, Ms. Bailey had trouble finding a suitable
job and lived off child-support payments and Swedish-government aid. As a
result, she sought to move back to the United States with their daughter. Mr.
Sundberg opposed this move because he was unable to get a permanent U.S. visa
and did not want to be separated from his child. Despite his opposition, Mr.
Sundberg ultimately agreed to permit Ms. Bailey to take their daughter to
America on a temporary trial basis. They memorialized this agreement in
writing, providing that Ms. Bailey could take their child to the United States
for “several months” beginning in August 2016. The agreement also provided that in May 2017
they would “determine a future agreement about Lisa and [the child’s] residence
and a plan for continuing shared custody of [the child].” Based on this
agreement, Ms. Bailey and the child moved to Asheville, North Carolina. After
the move, Mr. Sundberg maintained a relationship with his daughter over Skype
and visited her in North Carolina for five weeks in December 2016. One month
after Mr. Sundberg’s visit, Ms. Bailey informed him that the temporary stay
would be permanent as she did not intend to move back to Sweden. In response,
Mr. Sundberg demanded that Ms. Bailey return to Sweden with their child. Ms.
Bailey refused. She instead went to a North Carolina state court and sought
emergency custody. To prevent this, Mr. Sundberg petitioned a federal district
court in North Carolina for the return of the child to Sweden so that Swedish
courts could conclusively determine custody.
The
district court agreed with Mr. Sundberg. Finding that the child’s habitual
residence remained in Sweden, the court ordered that she be returned there. The
Fourth Circuit reviewed the court’s habitual residence finding for clear error
and affirm. See Maxwell v. Maxwell, 588 F.3d 245, 250
(4th Cir. 2009).
The parties agreed that Mr. Sundberg had joint custodial rights
and that he had been exercising those rights. Ms. Bailey’s only claim is that
the child was not a habitual resident of Sweden at the time of retention in
2017. In this framework, the district court only had to determine whether this
child was habitually resident in Sweden or the United States. The Fourth Circuit
noted that from birth, the child’s “habitual residence” was Sweden. That habitual
residence can change under either of two circumstances. Gitter v. Gitter, 396 F.3d 124, 133
(2d Cir. 2005). First, habitual residence changes when parents
“[share] a settled intention to abandon the former country of residence.
Alternatively, it changes when there is a change in geography coupled with the
passage of time “sufficient for acclimatization by the [child] to the new
environment.” The first option, a shared settled intent, requires a mutual
agreement to move the child permanently to the new country. This settled intent
may not be shown by an agreement to move temporarily, conditionally, or on a
trial basis. The district court’s conclusion that these parents lacked a shared
settled intent for the child to move permanently to America was strongly
supported by their written agreement. The signed agreement allowed Ms. Bailey
to take the child to Asheville for “several months.” Under the agreement, the
parties would re-evaluate in May 2017 to determine “a future agreement” and
“plan” for the future. This agreement provided for a temporary move until the
parties discussed the future in May 2017. While the agreement did not expressly
state that Ms. Bailey and the child would return to Sweden, it is apparent from
the agreement that the move to Asheville was not meant to be permanent.
In
addition, other circumstances reinforced the district court’s finding. While
Ms. Bailey may live permanently in Sweden, Mr. Sundberg could not spend more
than three months in the United States. This made it unlikely that he would
allow the child’s permanent relocation. The district court’s conclusion that
the agreement was temporary also found support in a welfare application Ms.
Bailey submitted to the Swedish government. Before leaving Sweden, Ms. Bailey
applied for Swedish welfare payments for the child. In reviewing this evidence,
the district court reasonably relied on the application as reflecting the
parents’ joint intent for their daughter to return to Sweden. By contrast, Ms.
Bailey contended that the application merely ensured the continued payment of
Swedish welfare while the child lived in America. In other words, Ms. Bailey
asked the Court to find that she and Mr. Sundberg were trying to defraud the
Swedish government. We hesitate to rely on her claim that the parties acted
illegally. At a minimum, the district court did not err in interpreting the
arrangement as supporting the temporary nature of the move. The record as a
whole supported the district court’s conclusion that the parents planned to
discuss in May 2017 whether the move would be permanent—a discussion that never
took place, because it was short-circuited by Ms. Bailey’s unilateral decision
to keep their daughter in the United States. Thus, it discerned no clear error
in the district court’s finding that the parents lacked a shared settled intent
to abandon Sweden as the child’s habitual residence.*
Turning
to the second option for showing a change of habitual residence, did the child
acclimatize to the United States, the Court noted that a change in habitual
residence based on acclimatization requires finding that the child formed such
a strong attachment that ordering her return would “be tantamount to taking the
child out of the family and social environment in which its life has
developed.” Maxwell, 588 F.3d at
253–54 (citing Mozes, 239 F.3d at 1081).
When trying to establish acclimatization, it is not enough to show that the child’s
life has “some minimal degree of settled purpose” in a new location. Maxwell, 588 F.3d at 253.
Rather, “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, 826 F.3d at 170.
This child spent the first three years of her life living in Sweden, visiting
the United States for only one or two months a year. Her temporary move to
Ashville lasted only nine months before the agreement expired and retention
became wrongful. With family and friends in both countries, the child’s
familial and social ties do not point to one country over the other. Although
her inability to speak Swedish may point toward acclimatization, the district
court was correct that her young age made this factor much less meaningful. See
Ahmed v. Ahmed, 867 F.3d 682, 689
(6th Cir. 2017). The only other evidence that suggested
acclimatization was the time spent in an American school (around nine months).
Attending school for one school year did little to show that the child’s life
had sufficiently “developed” in her new surroundings to make it her home. Thus,
the district court did not clearly err in concluding that the child lacked the
high level of attachment to the United States required to find that she had
acclimatized.
The
district court’s order that Ms. Bailey pay Mr. Sundberg’s expenses totaling
$20,598.98. The Fourth Circuit pointed out that when a court orders the return
of a child, the court “shall order the respondent to pay necessary
expenses ... unless the respondent establishes that such order would be
clearly inappropriate.” 22 U.S.C. §
9007(b)(3) In determining whether the circumstances of a case
overcome the rebuttable presumption in favor of a fee award, the district court
has limited discretion. Rath v. Marcoski, 898 F.3d 1306,
1311 (11th Cir. 2018). An award of expenses may be “clearly
inappropriate,” if for example, the respondent acted in good faith or if the
award would impair the respondent’s ability to care for the child. Here, Ms.
Bailey could not overcome the presumption in favor of shifting expenses. She
failed to show that she acted in good faith or that any financial burden would
harm the child. The district court thus appropriately awarded expenses.
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