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Thursday, June 13, 2019

Sundberg v Bailey, 765 Fed.Appx. 910 (4th Cir. 2019) [Sweden] [Habitual residence] [Necessary expenses] [Petition granted]

          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 The Fourth Circuit affirmed in an unpublished opinion.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.