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Thursday, December 19, 2019

Hart v Anderson, 2019 WL 6253248 (D. Maryland)[France] [Habitual residence] [Grave risk of Harm] [Petition granted]

In Hart v Anderson, 2019 WL 6253248 (D. Maryland) the Court granted the petition of Markku Toryalai Hart for the return of his children to France after his wife, respondent Sally Belco Anderson brought them to the United States without Hart’s consent. 

Hart, a dual citizen of the United States and United Kingdom, and Anderson, a U.S. citizen, first met in the spring of 2010 in Bamako, the capital of the African nation of Mali. They commenced a relationship that summer and began cohabitating in August of that year. Both parties had significant connections to Mali, When the parties met, Anderson had just moved to Mali from Virginia and begun teaching preschool at the American International School of Bamako. Hart was a self-employed consultant. Hart has served as a contractor for international organizations including the World Health Organization, UNICEF, and PATH, which have typically retained him for contracts that have lasted less than one year in nations including the Maldives. In the summer of 2011, Hart took Anderson for the first time to a house owned by his mother in Usinens, France.Hart and Anderson married in March 2012 and had their first child, A.M.A.H, the following month. Due to difficulty obtaining prenatal care in Mali, the parties decided that Anderson would travel to Indiana and stay with Hart’s mother to have the child. Hart arrived there after Anderson, who stayed with Hart’s mother from December 2011 through approximately April 2012. The family was unable to return to Mali immediately after A.M.A.H. was born because of a military coup, but returned to Bamako after approximately six months. Hart, Anderson, and A.M.A.H. visited the Usinens House again in the summer of 2013. In August 2013, Hart began a contract with UNICEF that required him to reside in Mali for three years on consecutive 11-month contracts with breaks of one to two months in between. In the same period, Anderson became pregnant with the couple’s second child, E.S.A.H., and proactively traveled to Virginia in January 2014 to stay with her parents to have the child, who was born in March 2014. Hart came to Virginia for two to three weeks around the birth, but returned to Mali soon after. Two months later, Anderson and the children returned to Mali and lived with Hart 

There was no serious dispute regarding Petitioner’s claim that he was exercising his custodial rights at the time the children were removed, and that the removal breached those custody rights. Hart has met his burden on those prongs by submitting an unrebutted affidavit of a French attorney that described relevant provisions of French law and the custody rights that they established for Hart. As for their exercise, the Fourth Circuit has adopted a test that directs courts to “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Bader, 484 F.3d at 671 (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir. 1996)). Given that Hart was cohabitating continuously with Anderson and the children, his exercise of custody rights under this test could not be disputed. 

The Court’s analysis focused on whether the children were habitually resident in France, at the time of removal. Federal courts have developed a two-part framework to assist in the habitual residence analysis. Under this framework, the first question is whether the parents shared a settled intention to abandon the former country of residence. The second question under this framework is whether there was ‘an actual change in geography’ coupled with the ‘passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment. In cases where there is a dispute regarding a child’s habitual residence, ‘the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence. Maxwell, 588 F.3d at 252 (alteration in original) (quoting Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir. 2005)). Courts must examine the “subjective intentions of parents to determine whether the parents shared an intent to adopt a new country of residence for their children.”  “Federal courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence.” 

The court found that the habitual residence of the children was France before Anderson removed them to the United States. Anderson contended that the Petition had to be denied because the children were habitual residents of either Mali or the Philippines at the time Anderson took them to the United States, or possibly had no habitual residence at that time. Significantly, the Court noted that Mali is not a party to the Hague Convention, and the Convention is not in force between the United States and the Philippines. Hart’s prima facie case therefore turned on whether he met his burden to show that France was the children’s habitual residence when they were taken to the United States on July 16, 2019.

As an initial matter, the Court was unpersuaded by Anderson’s alternative argument that the children had no habitual residence at the time of removal. It was quite clear that Hart and Anderson’s family can be fairly described as nomadic, but the case law that Anderson cited to claim that a child may have no habitual residence only describes children moved between countries shortly after their birth. See Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006); Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003); see also Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004). Anderson pointed to no authority, nor was the Court aware of any, that contemplates extending this concept beyond very young children in that specific situation. 

The Court concluded that France was the children’s habitual residence when Anderson took them to the United States on July 16, 2019. The two-part habitual residence framework summarized by the Fourth Circuit in Maxwell produced the conclusion that the parties abandoned Mali for France in 2016 but did not abandon France for the Philippines in 2018. Hart and Anderson both testified that they jointly made the decision to leave Mali in January 2016 because of security concerns and the expiration of Hart’s employment contract. They considered a move to the United States but decided against it. They instead together chose to bring their children to the Usinens House in France where they could live rent-free and enroll the children at the local Ecole Primaire de Challonges. Crucially, the parties left no belongings in Mali, selling or giving away their furniture and their car and shipping the remaining items to the Usinens House. The parties both testified that while they discussed someday returning to Mali if it became more politically stable, they had no specific plans or intentions to return there when they departed. Plainly, Hart and Anderson “shared a settled intention to abandon” Mali when they left for France in 2016. Maxwell, 588 F.3d at 251.

The Court turned to whether France became and remained the habitual residence of the children, despite the time spent in the Philippines, and answered that question in the affirmative. First, the Court found sufficient evidence to establish that the parties intended France to be the children’s habitual residence.The seven factors identified by Maxwell for determining a shared, settled intent did not overwhelmingly indicate shared intent to remain in France, but this was an unusual case of a highly nomadic family that never set down roots deeply in any one place. 

Article 13(b) of the Hague Convention establishes an exception that Anderson asserted here. Under that exception, “the Court ‘is not bound to order the return of the child’ if the respondent can establish by clear and convincing evidence that ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.’ This defense, however, “is a narrow one,” Miller, 240 F.3d at 402, and is interpreted and applied in that manner “[t]o avoid circumventing the underlying purpose of the Hague Convention.” Luis Ischiu, 274 F. Supp. 3d at 350 (citing Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007)).

Importantly, the respondent ‘must show that the risk to the child is grave, not merely serious. The potential harm to the child must be severe, and the ‘[t]he levels of risk and danger required to trigger this exception has consistently been held to be very high.’” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) The risk must be more than the trauma associated with uprooting and moving the child back to the country of habitual residence. Luis Ischiu, 274 F. Supp. 3d at 350. The exception “typically applies to situations involving sexual abuse, significant physical and verbal abuse of the child, or domestic abuse of a spouse in the presence of the child.” Kovacic v. Harris, 328 F. Supp. 3d 508, 520 (D. Md. 2018) “It does not apply to allegations of ‘poor parenting’; it is not the court’s role to ‘determine whether one parent would be better than the other, or whether the environment offered by Respondent is superior to the environment offered by Petitioner.

Anderson asserted that returning the children to France would expose them to a grave risk of harm because Hart abused her in their presence. While the Court in no way condoned Petitioner’s behavior and treatment of Respondent, in light of the narrowness of the grave risk of harm exception, the clear and convincing evidentiary burden that Anderson must meet, and the relative lack of evidence that she put forth demonstrating abuse of the children or abuse of her in front of the children, the Court found that the exception does not apply. To begin, there wass no evidence and Anderson did not allege, that Hart ever subjected either of the children to abuse or violence of any kind. Almost, the children were only present for one of the physical altercations between Hart and Anderson – a January 2019 incident in the Philippines when Hart “dragged” Anderson out of bed – and it was uncontested that they were not awake until after the physical contact had ended. That rendered this case much more comparable to those in which a grave risk of harm was not found, despite evidence of a father’s physical abuse of his children’s mother. For example, in Souratgar v. Lee, the Second Circuit affirmed a district court’s finding that no grave risk of harm existed where the father repeatedly kicked, slapped, grabbed, and hit the mother, and engaged in shouting and offensive name-calling, but never in the child’s presence. 720 F.3d at 100, 104–05. Similarly, the Tenth Circuit in Gil-Leyva v. Leslie affirmed a finding that no grave risk existed where the father slapped and shoved the mother several times, once choked her with his hands, and threw things, but was never physical toward the children aside from a small number of spankings, and never abused the mother in front of the children except for occasionally slapping her with force on her buttocks. 780 F. App’x 580, 590– 91 (10th Cir. 2019). The court found that evidence was deeply concerning and would be relevant in custody proceedings in the courts of the children’s country of habitual residence but was insufficient to prove that a grave risk of harm would exist if the children were returned there. Likewise, here, Respondent did not establish by clear and convincing evidence that granting the Petition would expose the children to a grave risk of physical or psychological harm. Nor did Anderson’s testimony that Hart was a neglectful father who did not and cannot adequately care for the children. That is an inquiry properly reserved for custody courts. Alcala, 826 F.3d at 171. Based on the Court’s observations, Respondent’s concerns for her husband’s use or abuse of alcohol and the anger it appears to cause in him were well-founded. But, given the purposes of the Hague Convention, moving his children to another country was not an appropriate way to “get his attention,” which she acknowledged was her primary objective. Her words also undercut the notion that she genuinely perceived that the children would be subject to a grave risk of harm if returned to France.

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