Capalungan v Lee, 2019 WL 3072139 (S.D. Ohio, 2019)[Australia] [Habitual Residence] [Petition denied]

In Capalungan v Lee, 2019 WL 3072139 (S.D. Ohio, 2019) on April 26, 2019, the United States Magistrate Judge issued a Report and Recommendation recommending that Petitioner’s Petition for the Return of Child to Australia be denied. The matter was before the Court on Petitioner’s Objections to the Report and Recommendation. The Court considered the matter de novo and denied the petition for return. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

Petitioner, Goldi Y. Capalungan, and Respondent, Emmanuel R. Lee, were the biological parents of EZL who was born on August 31, 2012 in the Philippines. At that time, Respondent was living in the United States. Respondent had limited contact with EZL in the years immediately following EZL’s birth. The parties were never married and did not have any custody agreement. In January 2016, Petitioner and EZL moved to Australia. Respondent had no contact with EZL when he lived in Australia. In January 2017, Petitioner obtained new employment in Australia and she would have to participate in an extended training program. The parties agreed that EZL could visit Respondent in the United States during Petitioner’s training period. The parties expected the training to last about six months, the same length of time as EZL’s tourist visa. Petitioner and EZL traveled to the United States in late February 2017. Petitioner stayed with Respondent for approximately two weeks, but then returned to Australia for her training. After Petitioner’s departure in March 2017, EZL adjusted well to life in the United States by spending time with family, attending church and school. Shortly after Petitioner returned to Australia, her relationship with Respondent began to deteriorate. Petitioner testified that the parties’ original plan was for EZL to stay in the United States while she completed her training in Australia. Petitioner further testified that the agreement changed in that EZL would be returned after Petitioner’s training was complete and after EZL was granted permanent residency in the United States, which she believed would be completed before she was done with her six-month training. Although Respondent conceded that “initially” EZL “was to be returned to Australia” in August 2017, at another point; he insisted that the agreement had always been that EZL would reside in the United States until he received citizenship here. Despite EZL obtaining his United States citizenship, Respondent never returned him to Australia as agreed. 

To enroll EZL in school, the parties executed a Shared Parenting Plan that provided that both parties were “residential parents and legal custodians” of EZL and that Respondent was “designated the residential parent” of EZL “for school purposes.” In December 2017, Petitioner traveled to the United States to take EZL back to Australia. Respondent refused to give her EZL’s passport, and she was unable to bring EZL home with her. Before Petitioner returned to Australia, Respondent agreed to return EZL when his U.S. passport was issued. On January 8, 2018, shortly after Petitioner returned to Australia, EZL received his permanent resident card. Towards the end of January, Respondent informed Petitioner that he would not return EZL to Australia when EZL’s passport was issued. Petitioner contacted the State Department’s Office of Children’s Issues to enroll in the Children’s Passport Issuance Alert Program (“CPIAP”) and put a hold on EZL’s United States passport. In response, Respondent burned EZL’s expired Filipino passport and sent Petitioner photos of the burnt passport. Petitioner subsequently withdrew EZL from CPIAP, which allowed his application for a passport to be processed.  

EZL’s United States passport was issued on February 16, 2018. Respondent repeatedly refused to return EZL to Australia. Although Respondent had previously represented that the parties’ Shared Parenting Plan would only be used to enroll EZL in school, to justify his refusal to return EZL, he insisted that it gave him custody of EZL and therefore he was under no obligation to return EZL to Petitioner as the parties had agreed. On July 13, 2018, the United States government issued EZL’s certificate of citizenship, which indicated that EZL became a citizen of the United States on January 6, 2018. Respondent did not return EZL to Australia.  
Petitioner filed the Petition before the Court on October 23, 2018. 


The District Court observed that there was no objection regarding the Magistrate Judge’s findings that Respondent refused to return EZL to Australia based on the agreement of the parties. Nor was there any objection to the finding that the alleged wrongful retention began in late December 2017. The date of the wrongful retention is important because it “is used to fix the time period available for assessing what country is properly the child’s habitual residence.” McKie v. Jude, No. CIV.A. 10-103-DLB, 2011 WL 53058, at *6 (E.D. Ky. Jan. 7, 2011); see also Panteleris v. Panteleris, 601 F. App’x 345, 349 (6th Cir. 2015) The Magistrate Judge then determined based on the fact that EZL was five years old in December 2017, that the Sixth Circuit instructs courts to apply the acclimatization standard. Petitioner objected to this decision and argued that the Magistrate Judge should have applied the shared parenting intent standard to determine EZL’s habitual residence at the time of the wrongful removal.

The district court noted that the Sixth Circuit in Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017), offers two approaches to identify a child’s habitual residence. The primary approach looks to the place in which the child has become “acclimatized.” The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to “shared parental intent.” Id. at 689; see also Robert v. Tesson, 507 F.3d 981, 992 n.4 (6th Cir. 2007).

Petitioner asserted in her objections that the acclimatization standard should not be the only standard applied, rather the Court should also apply the shared parental intent standard. In Ahmed, the Sixth Circuit emphasized the importance of applying the shared parental intent of the parties in cases involving young children who lack the cognizance to acclimate to any residence. The Court stated that “[t]his is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case.” Ahmed, 867 F.3d at 690. The Court was sympathetic to Petitioner in that the record showed that the intent of the parties was to return EZL to Australia. However, the Court agreed with the analysis set forth in detail in the Report and Recommendation that courts in the Sixth Circuit generally apply the shared parental intent standard to children who are two years old or younger at the time of the wrongful retention. 

The record was replete with instances in which Respondent was evasive and misleading.2 By February 2018, Respondent no longer hiding the fact that he had no intention of returning EZL to Australia stated, “[y]ou should have realized [sic] [EZL] is here and I have the edge...” The Magistrate Judge aptly acknowledged the consequences of Respondent’s behavior: “[b]y refusing to return EZL to Australia consistent with the parties’ agreement, Respondent manufactured a favorable status quo that he would undoubtedly rely on in any future custody proceedings between the parties. But that status quo was contrary to the parties’ shared intent, which the acclimatization standard does not permit courts to consider in resolving the habitual residence question in cases like the one before the Court here.”  The Court found that the Sixth Circuit law instructs this Court to apply the acclimatization standard and therefore the Court agreed with the Magistrate Judge’s conclusion that the acclimatization standard had to be applied in this case.

Petitioner objected to the Magistrate Judge’s recommendation that EZL’s habitual residence had changed from Australia to the United States. Petitioner’s primary argument was that Respondent failed to comply with the parties’ agreement to return EZL to Australia. The evidence supported Petitioner’s contention that EZL’s stay was only intended to be temporary in nature and the parties agreed he would be returned to Australia. However, the appropriate question as set forth in the Report and Recommendation was “whether in late December 2017, EZL had been physically present in the United States for an amount of time sufficient for acclimatization and whether the United States had a degree of settled purpose from his perspective.” In the ten months that EZL had been in the United States, he attended school, church, played on a basketball team, and participated in activities with family and friends. The court pointed out that ten months is a considerable amount of time to form bonds with family and friends considering he was only five years old. Relying on the testimony and Sixth Circuit precedent, the Magistrate Judge correctly determined that the United States was EZL’s habitual residence in late-December 2017. (citing Jenkins, 569 F.3d at 556-57 (holding that a six-month stay in a new country sufficed to create a new habitual residence, in light of continued schooling and other regular activities in the new country); Robert, 507 F.3d at 997 (holding that a ten-month stay in one country with sustained schooling and family excursions sufficed to create a new habitual residence, but that a three-week stay in another country did not)). Accordingly, the Court agreed with the findings set forth in the Magistrate Judge’s Report and Recommendation that Petitioner had not met her burden to demonstrate by a preponderance of the evidence that Australia was EZL’s habitual residence in late December 2017.