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Monday, November 4, 2019

Adkins v Adkins, 2019 WL 4933571 (N.D. California, 2019) [Switzerland] [Habitual residence] [Wrongful retention] [Petition granted]

In Adkins v Adkins, 2019 WL 4933571 (N.D. California, 2019) the district court granted the petition filed by Petitioner Artemiz Adkins for the return of her daughter A.F.A. to Switzerland.

Petitioner and Respondent married in 2005, and lived together in Scottsdale, Arizona. In 2014, while they were living in Arizona, their daughter, A.F.A., was born. In 2016, Petitioner and Respondent decided to move to Switzerland. They had been discussing the move for several years, following a joint trip to Switzerland in 2012. Petitioner and Respondent researched their move extensively, including quality of life, education, healthcare, and pensions in Switzerland.  

The family then prepared for the move: Petitioner, who had owned a clinical dental practice in Arizona, sold the practice in January 2017.The entire family then took a trip to Zurich, from March to June 2017, to explore possible employment opportunities. Petitioner signed a contract accepting full-time employment in July 2017. Petitioner was set to begin work in November 2017. Upon the family’s return to Arizona, they lived in temporary housing and Petitioner sought temporary work as she was the primary breadwinner at the time. But Petitioner canceled her professional liability insurance in July 2017. The family also either sold or packed most of their belongings. In late October 2017, Petitioner, Respondent, and A.F.A. moved to Switzerland. Through Petitioner’s position with the Straumann Group, the parties and A.F.A. obtained Swiss “B permits,” which allowed them to reside in Switzerland. The permits may be renewed annually. After five years, permit holders may apply for permanent residency. During the parties’ first three months in Switzerland, they lived in temporary corporate housing through the Straumann Group, but they signed a lease on a home in Basel, Switzerland on January 27, 2018. The lease has no fixed term; neither Petitioner nor Respondent has cancelled the lease; and it remains in effect. 

From November 2017 to December 2018, A.F.A. lived in Switzerland continuously with Petitioner and Respondent. She attended daycare in Basel, Switzerland, beginning in January 2018. She had a network of friends from daycare and through Petitioner’s colleagues, who have children of similar ages. Petitioner and Respondent also anticipated sending A.F.A. to a German-speaking kindergarten in Basel beginning in 2019. Thus, in June 2018, Petitioner and Respondent filled out a language competency questionnaire. The Basel Department of Education directed the parties to confirm A.F.A.’s attendance at a German-speaking institution from August 2018 to June 2019 in preparation for kindergarten.  During the evidentiary hearing, Respondent raised for the first time that he and his family only moved to Switzerland on a trial or other temporary basis, and that the move was conditioned on him finding employment once there. The Court did not find Respondent’s testimony on this issue credible. Rather, he acknowledged that the family moved to Switzerland in 2017, and he moved back to the United States only after it was clear that he and Petitioner would not reconcile. cf. Mozes, 239 F.3d at 1076 (acknowledging circumstances where “the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move”). The Court found that the parties intended to move to Switzerland permanently.

In December 2018, before A.F.A. began kindergarten, Petitioner and Respondent separated. Petitioner and Respondent discussed how they would manage sharing time with Petitioner and Respondent determined that A.F.A. would reside in Switzerland with Petitioner, where A.F.A. would go to school as planned. Respondent, on the other hand, intended to return to California, where he grew up and where his family still lived, to live and find work. 

Respondent left Switzerland voluntarily on January 31, 2019. To make the transition easier on A.F.A., Petitioner and Respondent shared time roughly equally with their daughter before she was scheduled to begin school, with A.F.A. traveling back and forth from Switzerland to the United States. Respondent acknowledged this arrangement was only temporary: once A.F.A. began school in Switzerland, she would not be able to travel as readily. As late as August 2019, Petitioner believed her agreement with Respondent remained intact, and Respondent would return A.F.A. to begin school in Switzerland by August 12. At that time, A.F.A. had been visiting Respondent since July 2019 in the United States. On August 2, 2019, Petitioner asked when Respondent would bring A.F.A. back to Switzerland for kindergarten, and he gave no indication that he disagreed with A.F.A. beginning school on August 12. He reassured Petitioner, explaining “I’m working on everything honey.”  Only later did Respondent explain to Petitioner that he had changed his mind about where A.F.A. should live and go to school. Respondent retained an attorney who helped him (1) file for dissolution of marriage in California on August 1, 2019; and (2) explain to Petitioner via email dated August 5, 2019, that Respondent would not return A.F.A. to Switzerland unless Petitioner agreed not to put her in any formal schooling there. A.F.A. remained with Respondent in California from early July 2019. Petitioner, in turn, filed petitions with a Swiss court, on August 13 and 16, 2019, seeking various relief prior to filing this petition pursuant to the Hague Convention. 

The Court observed that the Ninth Circuit has created a four-step inquiry to determine whether a wrongful removal or retention has occurred: “(1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?” Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).

There was no dispute that Respondent retained A.F.A. during her visit to the United States in August 2019. The critical question in this action was A.F.A.’s habitual residence as of August 2019. See Asvesta v. Petroutsas, 580 F.3d 1000, 1017 (9th Cir. 2009) (identifying “habitual residence” as “perhaps the most important inquiry under the Convention”). Petitioner contended that A.F.A.’s habitual residence was Switzerland. Respondent, on the other hand, suggested that A.F.A.’s habitual residence was the United States because he had no settled intent with Petitioner to change A.F.A.’s residence to Switzerland when they moved there in 2017. Having examined the facts for evidence of shared settled intent on the part of A.F.A.’s parents regarding her residence, the Court found that January 2019 was the last time that Petitioner and Respondent had a shared, settled intent regarding A.F.A.’s habitual residence. At that time, although separated, Petitioner and Respondent intended that A.F.A. would reside in Switzerland and attend school there.

To the extent that Respondent attempted to argue, in the alternative, that A.F.A. had somehow acclimatized to the United States such that its washer current—or second—habitual residence, the Court was not persuaded. Acclimatization occurs only in a limited set of circumstances. First, “[w]hen a child has no clearly established habitual residence elsewhere, it may become habitually resident even in a place where it was intended to live only for a limited time.” Mozes, 239 F.3d at 1082. Second, a child’s residence may change by the passage of time “if the child’s prior habitual residence has been effectively abandoned by the shared intent of the parents.”  In the absence of either of these circumstances, however, “a prior habitual residence should be deemed supplanted only where “the objective facts point unequivocally” to this conclusion.” To satisfy this test, the Court must be able to “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child ‘out of the family and social environment in which its life has developed. Respondent testified that he believed A.F.A. was “thriving” in the United States, learning to swim and to ride a bike, for example. See Tr. at 95:9–97:14. Respondent also emphasized that she is close to Respondent’s family, who live in California. Id. at 112:13–113:2. However, even accepting this as true, the Court cannot find that the months A.F.A. has spent in the United States and these positive experiences render her life “so firmly embedded in the [United States] as to make [her] habitually resident” there. Mozes, 239 F.3d at 1078. The Court was also cognizant of the inherent risk in inferring that a child’s habitual residence has changed based on acclimatizing to the country in which she is being retained. 

Respondent did not appear to contest that, if Switzerland was A.F.A.’s habitual residence, then he has wrongly retained her under the Hague Convention. Nor could he. At the time Respondent retained A.F.A. in the United States, he and Petitioner were still (and remain) legally married. Respondent proffered no basis for the Court to find that Petitioner and Respondent did not have joint custody of A.F.A. when he retained her in the United States. And the Ninth Circuit has held that Petitioner’s burden in proving that she was exercising parental rights is “minimal.” Asvesta, 580 F.3d at 1018. As the Court of Appeals noted, “requiring a petitioning party to meet a high bar in demonstrating the actual exercise of custody rights contradict[s] the Convention’s objective to reserve custody determinations for the country of habitual residence.” Id. The Ninth Circuit has explained: [I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. Once it determines that the parent exercised custody rights in any manner, the Court should stop – completely avoiding the question whether the parent exercised the custody rights well or badly. There was no basis for the Court to conclude that Petitioner did not exercise her custody rights. 

Having found that A.F.A.’s habitual residence is Switzerland, the Court concluded that Respondent’s retention of A.F.A. in the United States is wrongful, and the Court granted the Petition.

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