Recent Hague Convention District Court Cases - Castang v Jeong-Eun Kim, 2023 WL 1927027 (N.D. Georgia, 2023)

 

[France][Habitual residence] [Wrongful removal][Petition granted]

     In Castang v Jeong-Eun Kim, 2023 WL 1927027 (N.D. Georgia, 2023) the Court concluded that Plaintiff had shown that the Child was wrongfully removed from the Child’s habitual residence in France in violation of Plaintiff's custodial rights. The Plaintiff’s petition was  granted and the Child was ordered to be returned to France 

 

Plaintiff filed this case against Defendant on December 30, 2022. Plaintiff was the Child’s father and Defendant was the Child’s mother. In 2014, Plaintiff and Defendant met in Atlanta, Georgia, and began a romantic relationship. In 2017, Defendant became pregnant with the Child. In March 2018, the Parties decided to relocate to France, where Plaintiff was from and where his family resided. The Child was born in France in July 2018. The Child was a dual French and American citizen by virtue of parentage and bilingual, speaking both French and English. From the Child’s birth, both Parties and the Child resided in France, traveling only occasionally to the United States to visit Defendant’s family. The Child was now four-years-old.

 

Following the Child’s birth, Plaintiff and Defendant’s relationship began to deteriorate and eventually the Parties ended their romantic relationship. Defendant, however, continued to reside in France, as did the Child. On September 9, 2021, the French court entered the first custody order. This custody order granted joint parental authority to Plaintiff and Defendant. The defendant maintained primary custody of the Child, and Plaintiff had extensive visitation rights. The order required the Parties jointly to make major decisions such as “schooling and career guidance, religion, health, [and] authorization to practice dangerous sports.” The September 9, 2021, Order anticipated a possibility that Defendant and the Child would move to the United States. Following the further breakdown of the relationship (including physical⁴ and verbal threats by Defendant against Plaintiff and his family to remove the Child from France and sever Plaintiff’s relationship with the Child), Plaintiff initiated a second custody proceeding. The French court thereafter issued a second custody order on May 17, 2022, which maintained the first order’s determinations on joint parental authority and Defendant’s primary custody rights. The second order, also critically imposed a “ban on the [C] child leaving French territory without the authorization of both parents.”

 

In addition to the second order’s exit ban, Plaintiff also obtained a temporary (15-day) travel ban on May 6, 2022, and a permanent travel ban from the Montpellier Court of Law on May 31, 2022. The permanent ban further specified parental authorization required a “declaration [be] made in a police station... at least five days before the departure.” Despite these bans, Defendant once attempted to leave France with the Child and was stopped at the border. In early June 2022, Defendant successfully removed the Child from France and came to the United States. Defendant circumvented the travel ban by first driving to Spain and then flying from Spain to the United States. Plaintiff discovered that Defendant and the Child were missing when he went to Defendant’s residence to pick up the Child and only found Defendant’s dog and Defendant’s left-behind belongings.

 

Defendant claimed and submitted evidence that Plaintiff knew and gave consent (in email and over the phone) for her departure with the Child to the United States. Plaintiff does not dispute that he offered to pay for the plane tickets and to domesticate the French custody orders in the United States but contends that Defendant mocked and rejected these offers. When Defendant did depart from France, however, Plaintiff sent an email message stating, I guess you are on the move again. It was bound to happen, wasn’t it;-)? The only thing I hope you grasped if that you need to leave from a non [F]rench airport, otherwise you are going to get blocked again... ps: I still think it’s a terrible idea but ok. Defendant responded, “[Y]ou really thought I was stupid enough to try and leave from a French airport huh. you’re stupid for underestimating me. Spain is only a three hour car trip Igor. I would have taken the train but Border Police as well. The world doesn’t revolve around France....” While Plaintiff acknowledged that this email message could be construed as giving consent for the Child to be removed from France, he maintains the message was sent out of distress and was not serious, but misplaced sarcasm.

 

In the United States, Defendant and the Child initially stayed with Defendant’s father. Defendant’s father, however—who Defendant testifies suffers from mental health problems—eventually kicked Defendant and the Child out of his house. Defendant then turned to Plaintiff for financial assistance in the United States. Even with financial assistance from Plaintiff, Defendant struggled to find living arrangements, though there is some evidence she was eventually able to find an apartment. In the interim, Defendant and the Child lived in several Airbnb’s, all paid for by Plaintiff. Defendant did not secure employment while she was in the United States. She did indicate however that she had found a Montessori school for the Child.

 

Plaintiff traveled to the United States on July 19, 2022, where he found Defendant and reconnected with the Child. In early August 2022, however, Plaintiff took the Child back to France. Again, the Parties dispute if Defendant consented to Plaintiff taking the Child. Defendant maintains she was opposed to moving back to France with the Child, whereas Plaintiff submitted an email message from Defendant that stated, “I am not completely against France” and that she was “ok” with Plaintiff purchasing her and the Child a house in France. 

 

In August 2022, Defendant rejoined Plaintiff and the Child in France. Defendant stayed in Paris and traveled to South Korea to visit her grandmother, so the Child primarily remained in Plaintiff’s care. Defendant however contends that Plaintiff withheld the Child from her between August 2022 and November 2022. While in France from August 2022 and November 2022, Plaintiff and the Child lived with Plaintiff’s mother in a guest house. During this time, the Child was enrolled in a French school— to which Defendant had given written consent though Defendant maintains that her consent was given under duress. Plaintiff also initiated a third child custody proceeding in France in August 2022, which is still pending, again seeking full custody of the Child. On November 14, 2022, following an assembly for the Child, the Parties and the Child went to a cafe. While Plaintiff paid, Defendant took the Child, unbeknownst to Plaintiff, back to her residence (an Airbnb), and left again with the Child for the United States. This time, however, Defendant was not in communication with Plaintiff, and he did not know the Child’s whereabouts until December 2022. Once Plaintiff discovered the Child was in the United States, he initiated this ICARA suit for the return of the Child.

 

 

The Court observed that it became evident during the Parties’ presentation of the evidence that the habitual residence determination was  the essence of this case. The Court determined that if it finds the habitual residence of the Child is France, then Plaintiff has met his burden on the custodial elements — that is, he had rights of custody under French law and was exercising those rights at the time of the wrongful removal. In making this determination, the Court relied on the two French custody orders granting the Parties joint parental authority and requiring major decisions regarding the Child to be made jointly. The Court further found that s the custody orders’ visitation schedule—which allows Plaintiff extensive visitation: overnight weekly, many weekends, and holidays—is convincing evidence of Plaintiff’s custodial rights over the Child. The mutual consent required to remove the Child from France in the exit ban alone has been determined by the Supreme Court to constitute rights of custody. Abbott v. Abbott, 560 U.S. 1, 15, (2010) (“[T]he joint right to determine [a] child’s country of residence ... is a right of custody under the Convention.”). Thereby, these French legal arrangements are sufficient for the Court to determine that Plaintiff had rights of custody over the Child under French law. Moreover, the Parties agreed that Plaintiff exercised and was exercising his rights under the custody orders when the Child was removed from France—both in June 2022 and November 2022. Many witnesses testified to Plaintiff’s closeness and responsibility with the Child. Thus, if France is determined to be the habitual residence of the Child, then the Court must conclude that Plaintiff has met his burden of proving his custody rights and his exercise thereof of the Child. The Supreme Court’s 2020 decision in Monasky v. Taglieri, 140 S. Ct. 719 (2020), adopted a totality of the circumstances standard for habitual residence and gave further guidance for determining whether the totality of the circumstances had been proven. Generally, Monasky declares the habitual residence inquiry is to be “fact-sensitive,” and not “categorical.” Accordingly, “courts must be ‘sensitive to the unique circumstances of the case and informed by common sense.’ Indeed, “[n]o single fact... is dispositive across all cases.” Id.; see also id. at 728 (“The bottom line: There are no categorical requirements for establishing a child’s habitual residence ....”). The Supreme Court’s discussion emphasized particularly the age of the child and the ability of the child to “acclimate” to a particular place.. Thus, for younger children, “the intentions and circumstances of caregiving parents are relevant considerations.”  One such circumstance may appear when “an infant lived in a country only because a caregiving parent had been coerced into remaining there.” The Supreme Court specifically rejected an “actual agreement” requirement to determine habitual residence when the child is an infant “But a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ” the facts that the Majority articulated as potentially relevant are “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.”

 

The Court determined that it would be error to determine habitual residence in reference to a person (i.e., parent) instead of a country. Initially, the Court finds no support in Monasky (or other cases) suggesting a Child’s habitual residence could be determined in reference to a parent, not a country. Furthermore, the term itself—habitual residence—mostly obviously refers to a physical location, not the care of or ties to another person. Cf. Residence, Black’s Law Dictionary (11th Ed. 2019) (defining “residence” as “[t]he place where one actually lives” or “bodily presence plus an intention to make the place one’s home” or “[a] house or other fixed abode”).

 

Defendant stipulated that the Child’s habitual residence was France prior to the June 2022 removal of the Child to the United States. Thus, there are two relevant time periods for the Court to consider in its habitual residence determination: (1) habitual residence following Defendant’s June 2022 removal of the Child to the United States, and (2) habitual residence following Plaintiff’s August 2022 removal of the Child to France.

The first determination the Court must make is whether Plaintiff proved by a preponderance of the evidence that the Child’s habitual residence remained in France despite the Child residing in the United States from June 2022 until August 2022. The Court concluded that Plaintiff has met his burden. First, it is not insignificant that the Child resided in France for most of the Child’s life. The French custody orders also support that the Child’s habitual residence remained France even after Defendant removed the Child to the United States. The operative second custody order specifically disallows the Child’s removal from France without authorization from both parents., Defendant’s removal of the Child from France violate the French court’s exit ban, as it was not mutually made between the Parties.⁶ Thus, while the Eleventh Circuit’s old settled-intent test no longer is outcome determinative in determining habitual residence, the Court found that as a factor in the totality of the circumstances inquiry—and an enormously persuasive one here—both Parties did not intend for the Child to be moved to the United States. This finding, especially in conjunction with the French order requiring consent for the Child to travel, weighs heavily in favor of finding the Child’s habitual residence remained in France.  Other factors likewise contribute to the Court’s conclusion. First, Defendant came to the United States with the Child and did not establish any roots or community ties.  Finally, the Court considers the dynamics of the Parties’ relationship in its June 2022 habitual residence determination. Both Parties admit that they had created a “toxic” and “roller coaster” of a relational environment. Defendant remained in France for four years, mostly willingly and certainly without overt coercion to stay.

 

In sum, the aforementioned factors weighed in favor of finding that the habitual residence of the Child remained in France even following Defendant’s June 2022 removal of the Child to the United States. Thus, the Court concludes, as of June 2022, the habitual residence of the Child continued to be in France.

 

The Court next addressed whether any actions by the Parties during the time period between August 2022 and November 2022 ought to change the habitual residence of the Child being in France. The Court found none. To the contrary, during this period there was more evidence that the Child’s habitual residence was France. Accordingly, at the time of Defendant’s November 2022 removal of the Child, the Child’s habitual residence was France.  Plaintiff’s petition was granted.