Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) [Germany][Petition granted] [Habitual residence] [Agreement for future Habitual residence ]

 Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) [Germany][Petition granted] [Habitual residence]

 

In Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) Asli Baz, a citizen of Germany, filed suit seeking to compel Anthony Patterson, a citizen of the United States, to return their six-year-old son, A.P., from Illinois to Germany. The district court found that A.P.’s habitual residence at the time he was retained was in Germany, where he had lived with Baz for over a year, and that the retention in Illinois violated Baz’s rights of custody under German law. It thus granted Baz’s petition and ordered the child’s return. The Seventh Circuit affirmed. It concluded that the district court properly exercised the jurisdiction granted to it by ICARA and that the record supported its decision.

 

In 2013, Baz was living in the United Kingdom and Patterson resided in Florida. Two years later, Baz moved to Chicago on a student visa to pursue a doctoral degree in clinical psychology. Patterson accompanied her, they moved into a house together, and their son, A.P., was born in May 2017. Although Baz and Patterson ended their relationship shortly after A.P.’s birth, they continued to occupy the same house, on different floors, pursuant to an order from the Circuit Court of Cook County, Illinois (“Illinois state court”). On August 5, 2019, Baz sought and received the court’s permission to relocate with A.P. to Wisconsin for her pre-doctoral internship. In September 2020, Baz again requested permission to relocate with A.P., this time to Minnesota so that she could complete a mandatory pre-doctoral fellowship in forensic psychology. The Illinois state court granted this request, and Baz completed her fellowship in March 2021.

In May 2022, Baz sought permission from the Illinois state court to relocate with A.P. to Germany. The Illinois state court held a trial and, on May 9, 2022, granted her petition. The court then instructed Baz and Patterson to draft an agreement detailing how they would divide their parenting time and decision-making responsibilities after Baz relocated. The Illinois state court memorialized the parental agreement on May 23, 2022, in a document entitled “Allocation Judgment: Allocation of Parenting Responsibilities and Parenting Plan” (“Illinois Allocation Judgment”). The Illinois Allocation Judgment was signed by Baz, Patterson, and the presiding judge, but not by the guardian ad litem. It provided that A.P. would move with Baz to Germany, where he would attend school, with each parent paying half of his tuition. The agreement also stated that A.P. would continue with his primary health-care provider in the United States, but that Baz would be responsible for securing medical, health, and hospitalization insurance for him in Germany, at least through the first month following his eighteenth birthday. The Illinois Allocation Judgment provided that Patterson would have parenting time during the summer and other school breaks. He also was allowed to have daily video calls with A.P. and to visit him in Germany. The parents agreed that each of them would maintain possession of A.P.’s U.S. passport during his or her respective parenting time, and that they would exchange the passport whenever A.P. was dropped off or picked up. The parties were allowed to modify this parenting schedule by written agreement. The Illinois Allocation Judgment also purported to determine A.P.’s habitual residence for purposes of the Convention. The habitual-residence provision of the Illinois Allocation Judgment states that “[t]he ‘Habitual Residence’ of the minor child is the United States of America, specifically the County of Cook, State of Illinois, United States of America.” Another provision provides that neither Baz nor Patterson had “consented, or acquiesced to the permanent removal of the child to or retention in any country other than the United States of America.” The agreement also includes a jurisdictional provision, which states that “[s]o long as at least one parent resides in the State of Illinois, the Circuit Court of the State of Illinois shall retain exclusive and continuing jurisdiction over this cause to enforce or modify the terms and provisions of this Allocation Judgment.” On May 13, 2022, with the permission of the Illinois state court, she and A.P. relocated to Germany. A.P. at the time was about five years old. Shortly after they arrived, Baz acquired a German passport for A.P., who, had dual U.S. and German citizenship. Baz testified that she applied for the passport because under German law A.P. could not attend school or enroll in the national health-care system without identification. After Baz and A.P. relocated to Germany, A.P. enrolled in school as planned.

Baz and Patterson subsequently negotiated an agreement and memorialized it in a “German Consent Order” dated May 31, 2023. It reaffirmed that joint parental care and custody of A.P. would remain in place, and that the Illinois Allocation Judgment would continue to apply to the extent that additional specifications had not been adopted. The parents further agreed that A.P. was living in Germany with Baz, but that Patterson was authorized and required to have parenting time or contact with A.P. from June 19, 2023, through July 31, 2023, pursuant to the Illinois Allocation Judgment. Once A.P. was back in Germany, Patterson would be allowed to see him at discrete times in August 2023 and to attend the child’s first-day-of-school ceremony on August 8, 2023. Patterson would keep A.P.’s U.S. passport going forward, and Baz would keep his German passport. Through the German Consent Order, Baz and Patterson also agreed that they would not continue to pursue custody-related matters pertaining to A.P. in either the United States or Germany. Patterson “commit[ted] himself to submit the [German Consent Order] to the [Illinois state] court in Chicago by” June 2, 2023. He also agreed “to request that the American court suspend the proceedings in view of the fact that the German attorneys want to come up with an out-of-court solution.” Patterson notified the Illinois state court of the agreement on June 1, 2023, but he did not furnish the court a complete copy of the German Consent Order. Immediately after informing the Illinois state court about the German Consent Order, Patterson told the guardian ad litem that he had agreed to that order under duress.

When Baz learned that Patterson was acting contrary to the German Consent Order, she expected that he would also refuse to return A.P. to Germany by July 31, 2023, when his summer parenting time was up. Motivated by this concern, Baz did not make plans for A.P. to return to the United States on June 19, 2023. This conflicted with the German Consent Order. On June 27, 2023, the Illinois state court found that Baz had not turned A.P. over to Patterson on June 1, 2023, as the Illinois Allocation Judgment had required. It ordered Baz immediately to turn over A.P. to Patterson, and authorized Patterson to travel to Germany to retrieve the child. On July 3, 2023, Patterson arrived in Germany, went to A.P.’s school, and removed the child from his kindergarten class to bring him to the United States. Sometime around July 7, 2023, Patterson filed an “Emergency Ex Parte Petition for Temporary Restraining Order and Preliminary Injunction” with the Illinois state court. He requested that Baz be ordered to return A.P. to Chicago (though A.P. was in Chicago by that time) and sought sole custody. On July 10, 2023, Patterson secured a favorable ruling on his motion. The order stated that, until further order from the court, Baz was “restrained from having physical contact with” A.P. and that Patterson was “granted exclusive parenting time and decision making for the minor child[.]” It further ordered Baz to “deposit any and all foreign identification, passport(s) (including, but not limited to any German passport), or travel document(s)” for A.P. with the court by July 25, 2023.

 On July 18, 2023, about a week after the temporary restraining order was entered, Baz filed a Hague Convention Application for Return with the Central Authorities for the United States and Germany, seeking A.P.’s return to Germany. See 22 U.S.C. § 9003. On August 1, 2023, Baz filed her Verified Petition for Return of Child to Germany in the Northern District of Illinois. The district court held a two-day evidentiary hearing. On December 13, 2023, the court granted Baz’s petition. It issued an order the following day requiring that A.P. be returned to Germany.

The Ninth Circuit held that Patterson could not rely on the Illinois Allocation Judgment to oust federal jurisdiction over a case brought under the Convention. Congress, enacted ICARA so that a parent of a wrongfully retained or removed child could petition courts in the United States for the return of the child to the child’s habitual residence. Faced with such a petition, the court’s job is to consult the governing law and decide where the child habitually resides. If that residence is not in the forum state, then the court dismisses as instructed by ICARA and the Convention so that the proper court can decide the delicate issues of residence and custody that these cases present. Those are preliminary procedural decisions, not jurisdictional rulings. As applied here, there was no subject-matter jurisdiction bar preventing Baz from filing her petition for a return order in the federal court, notwithstanding the language in the Illinois Allocation Judgment purporting to give “exclusive and continuing jurisdiction” over the case to the Circuit Court of the State of Illinois. Upon Patterson’s motion, the federal court simply had to decide what weight to give that choice-of-forum (or law) provision under the Convention.

 The Ninth Circuit held that Baz had shown by a preponderance of the evidence that A.P. was wrongfully retained away from his habitual residence. See 22 U.S.C. § 9003(e)(1).

A. Time of Retention: The district court identified July 7, 2023, as the date of A.P.’s retention.  The record amply supported the district court’s finding.

B. Habitual Residence Prior to Retention: The Ninth Circuit pointed out that determining where a child was at home at the time of retention is a “fact-driven inquiry,” “not a categorical one.” The inquiry “must be ‘sensitive to the unique circumstances of the case and informed by common sense.’. Among the factors to consider are “facts indicating acclimatization,” which “will be highly relevant,” and “the intentions and circumstances of caregiving parents.” But “[n]o single fact ... is dispositive across all cases,” and so courts must consider “the totality of the circumstances specific to the case” to determine a child’s habitual residence. Monasky announced the standard that an appellate court must apply when reviewing a district court’s habitual-residence determination. The Court concluded that the inquiry presents a mixed question of law and fact because a district court must first “correctly identif[y] the governing totality-of-the-circumstances standard.”  Once a district court has identified the appropriate standard, “what remains for the court to do in applying that standard ... is to answer a factual question: Was the child at home in the particular country at issue?” Thus, so long as a district court applies the correct legal standard, its habitual-residence determination “should be judged on appeal by a clear-error review standard deferential to the factfinding court.”

 

The Court noted that  the district court applied the totality-of-the-circumstances standard to determine where A.P. was at home on July 7, 2023. The Court rejected Pattersons argument, that the totality-of-the-circumstances standard did not apply. In his view, the habitual-residence clause of the Illinois Allocation Judgment, which stated that A.P.’s habitual residence for purposes of the Convention is Cook County, should have been conclusive upon the court. The Court found that a parental stipulation as to their child’s future habitual residence is simply a factor (albeit a powerful one) for the totality-of-the-circumstances test. Patterson’s theory suffers from two fatal flaws. First, it rests on the fallacy that Baz’s and Patterson’s stipulation can bind third parties (such as A.P.’s guardian ad litem, who was not a party to the Illinois Allocation Judgment) or the district court. Patterson cited no Convention case in which a court concluded that either it or a non-party was bound by a parental stipulation about the future habitual residence of a child, and neither are we aware of such a case. To the contrary, the courts that have confronted arguments of the kind that Patterson presses have found them unpersuasive. See, e.g., Karkkainen v. Kovalchuk, 445 F.3d 280, 292–93 (3d Cir. 2006) (concluding that a habitual-residence stipulation was no longer binding because the child’s circumstances had changed since the agreement was made).

 

The second flaw in Patterson’s theory was that it assumes that parental intent alone can dictate a child’s habitual residence. That assumption is mistaken. The Supreme Court adopted that view in Monasky, where it concluded that “[w]hat makes a child’s residence habitual is ... some degree of integration by the child in a social and family environment.” 589 U.S. at 77, 140 S.Ct. 719 (quotation omitted). Although Baz and Patterson attempted to tie the court’s hands in the Illinois Allocation Judgment with respect to the future habitual residence of their child, the district court correctly determined that the stipulation can be only one factor among others to consider when applying the totality-of-the-circumstances test. A parental stipulation as to their child’s future habitual residence will often be powerful evidence of “the intentions and circumstances of caregiving parents,” which are “relevant considerations.” Monasky, 589 U.S. at 78, 140 S.Ct. 719. In the end, a child’s habitual residence depends not on any one fact, but on the totality of the circumstances specific to the case.

 

The Court rejected Patterson’s argument that the district court erred by considering evidence of A.P.’s acclimatization in Germany. In his telling, facts about A.P.’s time in Germany are tainted as evidence of post-abduction acclimatization, because Baz wrongfully removed A.P. to Germany and retained him there. This argument was a non-starter. Patterson agreed to Baz’s relocation to Germany with A.P. when he entered into the Illinois Allocation Judgment and again when he signed the German Consent Order. He cannot now claim that an arrangement that he authorized constitutes a wrongful removal or retention of A.P. Patterson resists that conclusion by pointing to evidence in the record that Baz procured permission to return to Germany under false pretenses, namely, by disingenuously telling the Illinois state court that she would continue to pursue lawful immigration status in the United States when she had no actual intent to do so.. On the basis of the facts the district court found, it properly considered evidence of A.P.’s acclimatization. The district court nonetheless concluded that there was more evidence showing that A.P. had acclimated to social life in Germany. There was no clear error in the district court’s weighing of the evidence. The district court’s finding that A.P. was at home in Germany on July 7, 2023, was plausible, and so we must accept its determination.

C. Wrongful Nature of Retention: The district court properly concluded that Baz had rights of custody under German law. The German Consent Order specifically states that the joint parental care and custody required by the Illinois Allocation Judgment would remain in place. Dr. Andreas Hanke, an expert in German family law and procedure, testified that this settlement gave Baz joint custody rights under German law. Patterson did not dispute Dr. Hanke’s interpretation of German law, nor did he submit evidence showing that he was authorized to retain A.P. in the United States at the time of retention. The balance of the evidence thus shows that Patterson’s refusal to abide by the parental agreements, as evidenced by his efforts to seek sole custody and his claim to have agreed to the German Consent Order under duress, breached Baz’s rights of custody under German law.

D. Exercise of Rights of Custody: The Ninth Circuit explainted that the standard for finding that a parent was exercising his custody rights is a liberal one.” A person who has valid custody rights to a child under the law of the country of the child’s habitual residence “ ‘cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.’ ” (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)). Nothing in the record suggested that Baz abandoned, or sought to abandon, A.P. Quite the opposite, the evidence shows that Baz actively sought to maintain regular contact with A.P. and that she was able to do so. That was enough to establish that she was exercising her rights of custody at the time of the retention.