In Foster v Foster, 2019 WL 6895442 (W.D. Wisconsin, 2019), the district court denied the petition of James M. Foster, which sought an order that would require his wife, Ericka K. Foster, to return their three children to him in Guatemala.
James Foster and Ericka Foster were both raised in Wisconsin, but met at a Christian camp in Colorado in 2001. They were married in Dodgeville, Wisconsin on May 31, 2002. At the time, Ericka was 23 and James was 24. James and Ericka had three children: “Steven” was born in Colorado on November 18, 2008, “Holly” and “Natalie” were born in Idaho on July 27, 2012, on June 2, 2015, respectively. At the time of the hearing, the children were 11, 7 and 4 years old, respectively.
During their marriage, James and Ericka made their living as owners and operators of a real estate development company, Narrow Gate Properties LLC, at times living in homes they built for up to two years before flipping them. As a result, they moved twenty-two times during their marriage, mostly between the states of Idaho and Colorado, but also traveling for months at a time to fourteen different countries. To the extent the Fosters’ marriage had a locus, it was in Idaho. They first resided there in 2003 or 2004 until roughly 2008, before moving back to Colorado for a couple of years. The Fosters returned to reside in Idaho again from roughly 2011 until October 2016. In 2014, the parties traveled to Europe for several months. Before departing, they sold the home they were living in at that time in Idaho, stored their belongings in Idaho, with a plan to return at some point to use them, but did not have a concrete plan as to where they would live after this trip. In October of 2016 the Fosters packed most of their belongings and stored them in a trailer. The Fosters then traveled as a family to Guatemala in the fall of 2016. After their visit to Guatemala, the family traveled to Mexico for two to three additional weeks. The family traveled on to Belize for the holidays. On January 6, 2017, the family then returned to San Pedro La Laguna, renting a two-bedroom apartment on a month-to-month basis. The parties departed Guatemala in April 2017 and returned again to Wisconsin, where both sets of grandparents still resided. Beginning in early April 2017, the family lived in a two-bedroom RV parked in the driveway of James’ mother’s house in Wisconsin. James eventually returned to Guatemala alone in June 2017, with a plan to secure a more comfortable, larger place for the family to live in San Pedro La Laguna. Once there, James sent Ericka information about living options, including photographs and location details. While Ericka testified that she received this information in Wisconsin, she was not being asked for her input. James then rented a 2000 square foot house located on the lake for twelve months, which he claims Ericka approved. James maintains that Ericka and he had jointly agreed to return to Guatemala. Ericka’s testimony and contemporaneous text messages, however, painted a very different picture, indicating that Ericka did not want to live in Guatemala, but was given a stark choice by James to remain married and return to Guatemala or remain in Wisconsin with the children and without James. Left with no other option as she saw it, Ericka testified that she and the children boarded the plane in August 2017 to return to Guatemala with the hope that James would grow bored with Guatemala and they would return to the United States, true to a pattern that had continued throughout their marriage. On August 10, 2017, Ericka and the children arrived in Guatemala to begin living in the rental home with James in San Pedro La Laguna. In October 2017, the Fosters purchased approximately one acre of undeveloped land. This land was located directly across the street from their rental house. James testified that the purchase was also a mutual decision and that the parties intended to build a main house on the property in which the family would live, while building other “tiny houses” to be available for rent. Ericka again testified that James made this decision without input from her. In August 2018, even before the lease had ended, the family moved from their rental house across the street into the adjoining houses. During their approximately eighteen months of living in San Pedro La Laguna from August 2017 until February 2019, the Fosters were required to leave and re-enter Guatemala every 90 days, having never become legal residents that would have allowed them to stay in the country more permanently. Throughout this period, James and Ericka also maintained their drivers licenses in the United States, while neither had a license to drive in Guatemala. They also continued to file joint income tax returns in the United States, while neither James nor Ericka filed tax returns in Guatemala, nor did they apply for a work permit in Guatemala. Finally, the parties did not receive mail in Guatemala. Instead, since 2016, their mailing address for both personal and business purposes was the home of James’ mother in Hartford, Wisconsin.
On February 12, 2019, Ericka and the kids departed Guatemala and flew to Wisconsin. Almost two months later, on April 5, 2019, James filed a divorce action in Idaho. This filing appeared to be the first time James asked for the children’s return to Guatemala. On August 12, 2019, Ericka filed a formal petition for divorce, also in Dane County, Wisconsin. The Dane County Family Court Commissioner found that the parties could not stipulate to jurisdiction in Wisconsin, concluding that Guatemala was the “home state” of the children and rejecting Ericka’s argument that their living in Guatemala was a “temporary absence.” On James’ motion, the Dane County Circuit Court ultimately stayed the divorce action before it pending this court’s determination of James’ by then pending Hague Convention petition.
The parties both called expert witnesses to offer testimony about Guatemala’s safety and, in particular, the safety of women and children. The district court noted that the Convention does not define the term “habitual residency,” but case law in this country and others discourage reliance on traditional notions of residency or domicile unique to an individual country’s laws to avoid a lack of uniformity in enforcement of the Convention. The Seventh Circuit has outlined an approach for making this determination relying in substantial part on a case from the Ninth Circuit, which other Circuits have also followed. See Koch v. Koch, 450 F.3d 703 (2006) (citing Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)). Generally speaking, that determination turns on the parties’ intent:” [T]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. Of course, one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one’s actions; indeed, one’s actions may belie any declaration that no abandonment was intended. If you’ve lived continuously in the same place for several years on end, for example, we would be hard-pressed to conclude that you had not abandoned any prior habitual residence. On the other hand, one may effectively abandon a prior habitual residence without intending to occupy the next one for more than a limited period.” For young children, like Steven, Holly, and Natalie, the Seventh Circuit instructs that the proper focus is on the intent of the parents, rather than on the children’s acclimatization. Koch, 450 F.3d at 713. Moreover, the court’s focus should be on the period of time when the parents last shared an intent. Id. at 712, 715; see also Neergaard-Colon v. Neergaard, 752 F.3d 526 (1st Cir. 2014) Finally, as the parent petitioning for relief under the Hague Convention, James carried the burden to prove this shared intent by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1)(A). In inquiring into the parents’ shared intent, “the representations of the parties likely cannot be accepted at face value,” Koch, 450 F.3d at 713, but rather will require an examination of “all available evidence.”. In other words, the court “should look at actions as well as declarations.”
Here, the Fosters initially traveled to Guatemala in the fall of 2016 and again in early 2017, to explore it as a possible place to live, while also traveling in Mexico and Belize. At that point, James and Ericka had no shared intent to reside in Guatemala “habitually.” The preponderance of the evidence suggested that this was still true when James returned to Guatemala alone in June 2017, despite his plan to find a larger and more comfortable place for the family to live. Indeed, James and Ericka agree, that he left the family in Wisconsin without agreement from Ericka that she and the children would join him. Ericka ultimately did board a plane with her children to Guatemala in early August 2017 of her own volition and without physical force, but the court credited her testimony, that she agreed to return to Guatemala under an ultimatum from James: remain married and live in Guatemala or separate and stay in Wisconsin with the children. At that point, Ericka had plainly no wish to live in Guatemala for any extended period of time; instead, her decision to return to Guatemala was the result of her attempt to save the marriage and her not unreasonable belief that James would want to move again in time, or at least give in to wanderlust, as he had throughout their almost seventeen year marriage. As Ericka credibly testified, she simply hoped to wait out James’ then fascination with Guatemala. Further, implicit in her decision, was the thought that if, for the first time, James were to put down real roots in a foreign country, Ericka would have to decide whether or not that was tolerable for her and their children. Whatever James’ hopes or intent may actually have been, therefore, the parties had not formed a shared intent to reside habitually in Guatemala at the time Ericka returned with their children in August of 2017.
The court also had to consider the possibility that even though a mutual intent to abandon a residency and take up another had not be formed “at the moment of departure; it could [have] coalesce[d] during the course of a stay abroad originally intended to be temporary.” Koch, 450 F.3d at 713 (quoting Mozes, 239 F.3d at 1075-76). Accordingly, the court turned to the two other, generally recognized categories: the extent to which the family abandoned their lives in the prior country and established lives in the new country. Here, the Fosters sold the Idaho house they were living in and mutually considered home even before their initial visit to Guatemala in October 2016. Normally, this action would weigh in favor of finding an intent to abandon the prior residence. However, given the parties’ history of frequent sales of homes and numerous moves, coupled with James’ testimony that they sold the house in Sandpoint, Idaho, not because they had a shared plan to reside anywhere else in particular, and at that time certainly not because of a specific shared intent to move to Guatemala, but simply because they had received a price that was too good to pass up, which renders the weight of this home sale relatively insignificant here. Instead, as in the past, the sale of their home provided the family another opportunity for further travel and exploration, not a shared intent to abandon Idaho, particularly if Ericka’s intent is considered, which it must be. As for the extent to which the parties moved their personal belongings to the new country. The evidence reflected that the Fosters merely brought suitcases containing toys, clothing and school books, but did not move furniture, automobiles, or other valuable, personal belongings. In fact, while they sold some of their belongings, James and Ericka packed up their family heirlooms, including furniture Ericka’s father had made for them, and other valuables, including $30,000 in gold, and stored them in Wisconsin at James’ mother’s home. In addition, throughout their time in Guatemala, the Fosters maintained and used bank accounts in the United States. The parties also forwarded their mail within the United States throughout their joint time in Guatemala. See Ruiz, 392 F.3d at 1254 (relying on fact that the mother “had her American mail forwarded to an American address and not to Mexico” to support a finding that she did not intend to reside in Mexico). Finally, the parties continued to pay taxes in the United States and maintained their Idaho drivers’ licenses. These actions all weigh in favor of finding a lack of shared intent to abandon the United States for Guatemala.
While the court noted above that the legal definition of “residency” is not determinative of the “habitual residency” question under the Hague Convention, courts commonly consider the legal residency status of the parties in the new country. Here, only James ever secured residency status, and even then, only a week before the trial in this court. Nor was there any evidence that the Fosters even considered taking steps to secure a longer-term permit to stay in or become residents of Guatemala during the entire time the family lived there from roughly August 2017 to February 2019, despite all of them having to leave Guatemala every 90 days or travel to Guatemala City and pay $25 to secure an extension. This failure also reflected the status of tourists on an extended visit, rather than of a family intending to stake roots in a new country.
While Ericka’s interests may not have been given equal weight in their marriage, the court found that she was nevertheless steadfast in opposing any kind of longer-term move to Guatemala. Accordingly, the court had little trouble finding Ericka’s wholly credible testimony that she returned to Guatemala in an attempt to save her marriage, knowing James’ pattern of losing interest and moving on -- when coupled with the overall lack of objective evidence demonstrating an intent to abandon the United States for Guatemala -- was sufficient to conclude that James and Ericka had formed no shared intent for the family’s habitual residence to be Guatemala at any time before or during their stay in Guatemala, including specifically right before Ericka removed the children from Guatemala to Wisconsin in February 2019. The last time James and Ericka had a shared intent for a habitual residence within the meaning of the Hague Convention was when they lived as a family in their last home in Idaho.
The Ninth Circuit in Mozes explained that even in the absence of a shared intent, “a child can lose [his or her] habitual attachment to a place.” The court in Mozes cautioned, however, that courts “should be slow to infer in the absence of shared parental intent that children have changed their habitual residence through acclimatization.” Here, in light of the children’s extremely limited knowledge of both the dominant language of the Guatemalan people and Spanish, almost no involvement in schooling or other meaningful social activities, and frequent return trips back to Wisconsin during a relatively short stay overall of roughly seventeen weeks, the objective evidence did not support a finding that their habitual residency transferred to Guatemala, particularly in the absence of a shared intent on the part of their parents to abandon the United States for Guatemala. For all of these reasons, the court concluded that James Foster failed to meet his burden of demonstrating by the preponderance of the evidence that the children were habitually residing in Guatemala.