In La Salle v. Adams, 2019 WL 6135127 (D. Arizona, 2019) the district court granted the petition of Kimberly Colin La Salle (“Mother”) against Dominick Johnathan Adams (“Father”) for the return of their two minor children, E.N.A. and M.E.Y.A. to Canada.
In April 2011, Mother and Father were married in Alberta, Canada. Mother was a citizen of Canada; Father was a citizen of the United States who had status to live and work in Canada because Mother sponsored his application for a visa. In August 2012, E.N.A., a boy was born in Canada. In January 2014, the couple’s second child, a girl named M.E.Y.A., was born in Canada. Mother, Father, and the Children lived together in Canada until around March 2017, when Mother and Father’s marriage began to deteriorate. The deterioration was caused by several factors, including Father’s failure to provide consistent financial support and Mother’s romantic relationship with another man, Howard LaSalle (“LaSalle”), whom she eventually married. In early 2017, as the marriage was falling apart, Mother withdrew her sponsorship for Father’s visa. Mother credibly testified during the evidentiary hearing that she did so out of necessity—Canadian law requires the sponsor to be the spouse or significant other of the visa applicant (and the relationship was heading toward a divorce) and Canadian law also obligates the sponsor to provide financial support to the visa applicant (which Mother could not afford to do). As a result, in July 2017, Father received formal notification from the Canadian government that he would be losing his immigration status in Canada. In 2017, Mother and LaSalle had a child together (who will be referred to by his first initial, “X”)
Although Mother and Father stopped living together in 2017, they did not finalize their divorce until October 2018. The divorce decree, which was issued by a Canadian court on October 2, 2018, specifically provides that Mother and Father “have joint custody of the children of the marriage.” The divorce decree provides that Father is responsible for providing the Children’s “primary residence” and “day to day care and control” but clarified that Mother was entitled to “access with the children every other weekend commencing September 1, 2017 and continuing thereafter until further Order of the Court,” with Mother “responsible for picking the children up at the commencement of her access and dropping the children off at the end of her access at [Father’s] residence.” Additionally, the divorce decree provided that Mother and Father must “equally share all school vacations and holidays” and that each parent must “have direct or indirect access to education, counselling, therapy, daycare services, and any other information regarding the welfare of the children.” Finally, the divorce decree provided that each parent may “travel with the children within Canada and outside of Canada without the written consent of the other party provided the person travelling with the children provides the non-travelling party with a travel itinerary and contact information.”
In late February 2019, Father moved to Arizona and took the Children with him. At the time of the move, the Children were enrolled in school in Canada. After arriving in Arizona, Father and the Children began living with Father’s parents (the Children’s grandparents).
Father initially lied to Mother about the nature of the trip to Arizona, falsely characterizing it as a “vacation.” On March 10, 2019, Mother emailed Father to complain that he’d violated the terms of the divorce decree by failing to identify where the Children were located. The next day, Father responded by providing an address in Sun City, Arizona. Around this time, Mother visited the home where Father had been living in Canada. Upon arrival, Mother realized Father hadn’t simply taken the Children on a temporary vacation—the house was empty, the refrigerator was cleaned out, and it was clear “[t]he kids have obviously been moved.” In early April 2019, Mother contacted law enforcement officials in Arizona for assistance. Mother also sent another email to Father asking him to immediately “provide...a return date of when the children will be brought back [to Canada].” In response, Father vaguely stated that he would be “heading back” at some point after his father’s surgery in June 2019. This, too, was a false statement. Father never returned to Canada, prompting Mother to initiate this proceeding in August 2019.
The Court noted that first question to be addressed in an ICARA proceeding is “[w]hen did the removal or retention at issue take place?” Mozes, 239 F.3d at 1070. The evidence introduced during the evidentiary hearing established that the challenged removal occurred in late February 2019, when Father took the Children to Arizona. To the extent the initial removal wasn’t wrongful (because Father was allowed, under the divorce decree, to take the Children on short international vacations without Mother’s permission), his retention of the Children in Arizona because wrongful in March 2019, once Mother began missing the every-other-weekend visits to which she was entitled under the divorce decree.
The second question to be addressed in an ICARA proceeding is “[i]mmediately prior to the removal or retention, in which state was the child habitually resident?” Mozes, 239 F.3d at 1070. Here, Canada was the Children’s country of habitual residence in February/March 2019.
The Children were born in Canada, lived their entire lives in Canada, attended school in Canada, had a Canadian mother, and had Canadian citizenship. The evidence presented during the evidentiary hearing suggests the Children spent every moment of their lives in Canada until they were taken to Arizona. This should end the inquiry. In re A.L.C., 607 Fed. App’x 658, 662 (9th Cir. 2015) (“The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided....[W]e recognize the obvious truth that ‘habitual residence cannot be acquired without physical presence.’ ”). Although neither parent specifically addressed the concept of residential intent when testifying during the evidentiary hearing, there was strong circumstantial evidence that Mother and Father had a shared, settled intent to reside permanently in Canada. Holder, 392 F.3d at 1017 (parental intent may be expressed not only through “the representations of the parties” but also through “all available evidence”). Indeed, Mother was a Canadian citizen who appears to have lived in Canada for all of her adult life and Father lived in Canada from at least 2011 through February 2019, leaving only after he lost his immigration status and was unable to identify an alternative means to secure legal status. To the extent the concept of acclimatization was even applicable here, it did not change the analysis. See generally Murphy, 764 F.3d at 1152-53 (noting that “courts should be slow to infer [acclimatization], both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention”) During their brief time in Arizona, the Children have barely even attended school and they retain deep familial ties to Canada.
The third question to be addressed in an ICARA proceeding is “[d]id the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?” Mozes, 239 F.3d at 1070. Here, the answer was yes. First, Mother possessed rights of custody to the Children under the law of Canada. Indeed, the divorce decree expressly states that Mother and Father share “joint custody of the children of the marriage.” Father breached Mother’s custodial rights when he relocated the Children to Arizona in February 2019.
In his answer, and to some extent during the evidentiary hearing, Father argued that his decision to take the Children to Arizona wasn’t wrongful because Mother caused him to lose his immigration status in Canada (by withdrawing her support for his visa application) and thus left him with no choice but to take the Children. This argument lacked merit for three reasons. First, Father had not cited any authority suggesting that “unclean hands” is available in an ICARA proceeding and some courts have concluded it is categorically unavailable. Second, as a factual matter, Mother didn’t engage in wrongful conduct by withdrawing her support for Father’s visa application. Third, and most important, this argument overlooked that Father became aware by no later than July 2017 that he was in danger of losing his immigration status in Canada, yet he still agreed to enter into a divorce decree in October 2018 that awarded joint custody to Mother. Father was fully aware at the time he executed the divorce decree that he might have to leave Canada in the future.
The fourth question to be addressed in an ICARA proceeding is “[w]as the petitioner exercising those rights [of custody] at the time of the removal or retention?” Mozes, 239 F.3d at 1070. Here, the answer was yes. See, e.g., Asvesta v. Petroutsas, 580 F.3d 1000, 1018 (9th Cir. 2009); Walker v. Walker, 701 F.3d 1110, 1121 (7th Cir. 2012). Thus, petitioner established a prima facie case.
The Court observed that the Ninth Circuit has emphasized that the grave-risk exception must be “drawn very narrowly” and “is not license for a court in the abducted-to country to speculate on where the child would be happiest.” Gaudin v. Remis, 415 F.3d 1028, 1035-36 (9th Cir. 2005) . “Rather, the question is whether the child would suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” Thus, “even a living situation capable of causing grave psychological harm over the full course of a child’s development is not necessarily likely to do so in the period necessary to obtain a custody determination.”
During the evidentiary hearing, Father elicited testimony concerning an array of incidents that were apparently offered to show that returning the Children to the care of Mother and LaSalle in Canada would expose them to a “grave risk” of harm. (1) On one occasion in 2017, Mother went to the residence she had previously shared with Father to see the Children. Father was not present at the residence but his mother (the Children’s grandmother), Donna Adams, was there. When Mother arrived, the door was locked. Mother tried to force her way into the residence, became angry when she couldn’t enter, and eventually retrieved a baseball bat from her car and began banging on the door. The Children became anxious and frightened during this episode and Ms. Adams eventually called Mother’s mother, Laurel Berg, to come to the residence and help settle things down. (2) In or around July 2018, E.N.A. broke his arm while in Mother’s custody. The injury was accidental and likely occurred when E.N.A. slipped while getting off a bus. (3) At some point in 2017 or 2018, after Mother had separated from Father and started living with LaSalle, Father passed by LaSalle’s home. When LaSalle saw Father, LaSalle became angry and had to be held back by Mother. (4) Mother did not have consistent access to a car after separating from Father. As a result, she was sometimes required to transport the Children via public transportation— specifically, the bus. This sometimes caused the Children to have to wait, outside, at the bus stop during very cold Canadian winters. The Children were not always properly clothed to protect themselves from the cold.(5) Sometimes, after the Children were returned to Father’s care after spending time with Mother, they reported they were hungry.(6) Following the separation of Mother and Father, the Children were often sad about Mother’s absence and became more emotionally attached to Father.
The Court held that the Father had not come close to establishing the Children would be exposed to a grave risk of physical or psychological harm if returned to Canada. For example, although Mother’s new husband, LaSalle, experienced anger-management issues in the past, the evidence presented during the hearing demonstrates LaSalle had taken steps to address the problem. Moreover, there was no evidence that LaSalle had ever resorted to physical violence against Mother, X, or any other child. Finally, it was telling that LaSalle had custody of his child from a previous relationship—an arrangement CFSA officials would presumably not allow if LaSalle were a danger to children.
There was some suggestion by Father that the Children would be exposed to illicit drug use if returned to the care of Mother and LaSalle. But Mother testified without contradiction (and with some corroboration) that she had never used drugs and the only evidence concerning LaSalle related to historic marijuana use that was apparently legal under Canadian law. As for the incident in July 2018 in which E.N.A. broke his arm, this had zero evidentiary value. Young children often suffer accidental injuries. As for the incident in 2017 when Mother became angry and waved around a baseball bat, although this incident was not particularly flattering, it was understandable that a mother might become upset if she perceived that her mother-in-law was using a locked door to keep her from visiting her children. Additionally, there was no evidence that Mother hit anybody with the bat, let alone displayed a deep-seated propensity for violence that would somehow expose the Children to a grave risk of harm if returned to her care. As for the evidence that the Children sometimes had to wait in the cold for the bus and/or returned from visits with Mother with empty stomachs, this fell far short of the sort of “serious abuse” that must be present to satisfy the grave-risk exception.
Finally, as for the evidence suggesting that the Children became emotionally attached to Father following the divorce (and had grown further attached to him since the relocation to Arizona), this also failed to establish a grave risk of harm. See, e.g., Cuellar, 596 F.3d at 511; See generally Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996) (“[A] grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”).
Mother asked the Court to require Father “to pay [Mother’s] necessary expenses including courts costs, reasonable attorneys’ fees, care expenses, and any transportation costs incurred for the children’s return. The Court granted Mother’s request in part. Although Father did not, in his answer, articulate a compelling reason why a cost award would be “clearly inappropriate,” the evidence presented during the hearing showed that Father had little in the way of financial resources. Accordingly, the Court ordered Father to pay the transportation costs associated with returning the Children to Canada, as well as Mother’s airfare for traveling to and from the evidentiary hearing, but would not require him to pay any other costs. In re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Colo. 2014)