Recent Hague Convention District Court Cases - Johnson v Johnson, 2023 WL 3981682 (D. Colorado, 2023)

 

[Bahamas] [Habitual residence] [Petition denied]

    In Johnson v Johnson, 2023 WL 3981682 (D. Colorado, 2023) the court denied the Petition of the Bahamian-citizen biological parents of S.J., a fifteen-year-old Bahamian citizen. Until she came to Colorado, S.J. lived her entire life in the Bahamas. Prior to S.J. moving to Colorado, Petitioners executed an Affidavit on July 14, 2021, that purported to grant Respondents “full custody care and control along with all necessary rights of guardianship” of S.J. for an indefinite duration.  The petitioners signed a revocation of the Affidavit on December 23, 2021. Petitioners acknowledged in the revocation that they had sent S.J. to reside in Colorado in August 2021. Petitioners agreed that S.J. could stay with Respondents in Colorado at least until she came home for a visit at Christmas in December 2021. The first time Petitioners alleged S.J. was wrongfully retained in the United States was December 18, 2021, which was prior to the date Petitioners executed the revocation of the Affidavit.  Both Petitioners acquiesced to S.J. staying in the United States with Respondents in May 2022, Petitioners did not request the return of S.J. until they filed this lawsuit. S.J. is presently fifteen years and six months of age. S.J. is academically and emotionally advanced for her age. S.J. clearly expressed that she does not want to return to the Bahamas and that she objects to being involuntarily returned. While S.J. lived in the Bahamas with Petitioners, her father, Duane Johnson sexually assaulted her on multiple occasions. Duane Johnson had not been charged with sexual assault in the Bahamas. According to S.J., due to his personal connections with individuals in various institutions in the Bahamas, such as the government, police, and the military, Duane Johnson is very likely unconcerned about any legal consequences as a result of his sexual abuse of S.J. because he knows no action will be taken against him. No legal protections have been implemented in the Bahamas to protect S.J. from Duane Johnson or prevent Duane Johnson from having access to her. The Court found there is a reasonable risk that Duane Johnson would sexually assault S.J. again if she is returned to the Bahamas.

 

    The Court addressed the question of S.J.’s habitual residence prior to the alleged wrongful retention. The term “habitual resident” is not defined in the Convention or ICARA. However, in Monasky v. Taglieri, 140 S. Ct. 719 (2020), the Supreme Court provided guidance for courts to determine a child’s habitual residence. A child “resides” where she lives. See Black’s Law Dictionary 1176 (5th ed. 1979). Her residence in a particular country can be deemed “habitual,” however, only when her residence there is more than transitory. “Habitual” implies “[c]ustomary, usual, of the nature of a habit.” The Supreme Court noted that the report “refers to a child’s habitual residence in fact-focused terms: ‘the family and social environment in which [the child’s] life has developed.’ ” Therefore, “what makes a child’s residence habitual is some degree of integration by the child in a social and family environment.” Supreme Court observed that “while Federal Courts of Appeals have diverged, if only in emphasis, in the standards they use to locate a child’s habitual residence ... they share a ‘common’ understanding: The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”.With respect to older children, the Supreme Court again acknowledged that locating a child’s home is a “fact-driven inquiry” and that “facts indicating acclimatization will be highly relevant.” Such facts courts have considered include a change in geography combined with the passage of an appreciable period of time, age of the child, immigration status of child and parent, academic activities, social engagements, participation in sports programs and excursions, meaningful connections with the people and places in the child’s new country, language proficiency, and location of personal belongings. “No single fact, however, is dispositive across all cases.”

 

    The Court found that Petitioners failed to satisfy the first element of their prima facie case that the Bahamas was S.J.’s habitual residence at the time of the alleged wrongful retention, which the Court has found to be December 18, 2021. The Court agreed with Respondents that since S.J. moved to Colorado in August 2021, her habitual residence had been and continues to be Colorado. After moving to Colorado, S.J. immediately began making a life for herself in Colorado and engaged in all of the normal activities of a child of her age including attending school, participating in extracurricular activities, receiving medical treatment, engaging socially with a friend group, making plans for her future, and otherwise engaging in the routines of daily life while living with Respondents in Colorado. With respect to the acclimatization factors the Supreme Court has opined should be considered in connection with a child’s habitual residence, the Court found that they strongly weighed in favor of the Court finding that Colorado was S.J.’s habitual residence. Specifically, as of the date of this Order, S.J. had been in Colorado for approximately a year and a half, which is an appreciable period of time; and even if the Court only considered the five months S.J. lived in Colorado until Petitioners deemed the retention wrongful, the Court still found that amount of time to be appreciable. She was nearly 16 and certainly old enough to express her opinion about where she wished to live, which she stated was Colorado. The Court found that Petitioners failed to establish the first element of their prima facie case.