In Miller v Miller, 2018 WL 4008779 (E.D.
Tennessee, 2018) the
district court denied the Petition of James Christopher for the return of their
three children to Humboldt, Saskatchewan, Canada.
Mr. Miller and Mrs. Miller have been
married for nine years and were the biological parents of J.M.M. A.B.M., and
C.J.M., who were born in 2007, 2010, and 2012, respectively. In 2013, Mr.
Miller and Mrs. Miller mutually decided to move their family from Chattanooga
to Humboldt, Saskatchewan, Canada, to pursue economic opportunities and to
avoid creditors associated with a failed business venture that Mr. Miller had
launched in Chattanooga. They also mutually envisioned the move as a “five-year
plan,” which meant that after five years they planned to reevaluate their
decision to relocate to Canada and determine whether they wanted to live there
for a longer time.
After the Millers completed the move
in May 2013, they eventually settled into a rental house in Humboldt, where
J.M.M. had his own bedroom and A.B.M. and C.J.M shared a bedroom. At the time,
J.M.M. was six years old, A.B.M. was three years old, and C.J.M. was five and a
half months old. The Millers began to build their life in Canada. As a family,
they applied for permanent resident status. Mr. Miller obtained employment in
the construction industry. Mrs. Miller also obtained employment, though she was
principally the children’s caretaker. The two oldest children, J.M.M. and
A.B.M., enrolled in school, while the youngest, C.J.M., remained with Mrs.
Miller or under a babysitter’s supervision. Mr. Miller and Mrs. Miller also
enrolled the children in Canadian healthcare plans. As for the children’s
social lives and activities, the children made friends in their neighborhood
and through participation in sports programs.
J.M.M. became well-known by neighbors and picked vegetables from their
yards, and the children viewed a pair of local family friends, Michael and
Sherry Kwasnica, as their surrogate grandparents and referred to them as
“grandpa” and “grandma.” J.M.M. and A.B.M. played youth-league ice hockey,
though C.J.M. was too young for it. The children also took part in numerous
outdoor activities, including Ducks Unlimited,3 canoeing, camping, quidding,
kayaking, and ice fishing.
Mr. Miller
sensed that Mrs. Miller was depressed and not coping well with being away from
her family. Their marriage suffered, and Mr. Miller knew it was “on the rocks.”
They had lengthy discussions about their marital problems, and at one point, in
February 2017, Mrs. Miller told Mr. Miller that they were “headed for a
divorce.” In the throes of their
capsizing marriage, Mrs. Miller was eager for her family’s company. According
to Mr. Miller, she issued an ultimatum to him: she was going to leave Canada and
return to Chattanooga with or without him. In response, Mr. Miller agreed that
he, Mrs. Miller, and the children would leave Canada together as a family,
hoping that the move would buoy their marriage. The family began preparing for
the move. They rented two U-Haul trucks, which they fully loaded with their
belongings—including all the children’s belongings—and they sold or gave away
anything that did not fit into the trucks. They also packed the ATV and the
canoe they used for quadding and canoeing, respectively. The Millers’ friends
threw farewell parties for them. Their friends also helped them empty and clean
their house. The Millers canceled their utilities. They returned the house keys
to the owner. Mr. Miller quit his job.
On September 19, 2017, the Millers
left Canada for Chattanooga.
During the trip, Mrs. Miller asked Mr.
Miller for all the passports, and he surrendered them to her.
The children arrived there with their parents on September 21 or
22. he family unloaded the children’s and Mrs. Miller’s belongings into Mrs.
Miller’s mother’s basement, which became the children’s new living space, but
the family’s belongings were so numerous that they had to unload some of them
into local storage units. Mr. Miller did not cohabitate with Mrs. Miller in the
basement; they had agreed to maintain separate residences once they arrived in Chattanooga.
Mr. Miller moved in temporarily with Mr. Castle, who opened his home to him,
while Mrs. Miller stayed at her mother’s house with the children. Later in September, Mr. Miller enrolled J.M.M.
and A.B.M. in school. Despite living apart from the children, Mr. Miller
continued to see them at least two weeknights and most weekends. In November,
Mrs. Miller told him that she wanted a divorce. Within days of receiving this
news, he returned to Canada and looked into resuming his old job and the
availability of the family’s old house. Afterwards, he called Mrs. Miller, and
he informed her that he “wanted to go back” to Canada and “wanted the boys to
come back with [him].” According to Mr. Miller, Mrs. Miller expressed her
desire for the children to remain in Chattanooga. While
still in Canada, Mr. Miller did “homework” on the Hague Convention, and he
pursued additional legal advice specifically relating to “how ... it work[s].” He
returned to Chattanooga without contacting the Saskatchewan Central Authority
and requesting the children’s return to Canada under the Hague Convention.
On March 27, 2018, Mrs. Miller filed
for divorce. On the same day, Mr. Miller contacted the Saskatchewan Central
Authority and applied for the children’s return to Canada. After making the
trip back from Florida a few days later, Mr. Miller arrived at Mrs. Miller’s
mother’s house to drop off the children. He fled from the house—with the
children—after learning that a process server was waiting there to serve him.
Mrs. Miller testified that Mr. Miller refused to return the children to her
until she instructed the process server to leave. Finally, during the course of
all these events—which occurred roughly between September 2017 and March
2018—the bulk of the evidence indicated that the children had made friends in
Chattanooga. Mr. Miller resided in Canada, in the same house that he once lived
in with his family.
The district court found that Mr.
Miller indisputably agreed to leave Canada and return to Chattanooga with his
family, out of concern for Mrs. Millers’ mental health and out of hope to boost
their marriage. The Millers’ departure from Canada had every semblance of
permanency. They packed all their belongings—so many that they actually had to
unload some of them into storage facilities, and they sold or gave away the
belongings that they were unable to pack. They canceled the utilities. They
returned the keys. Mr. Miller resigned from his job. The Millers’ friends threw
farewell parties for them, with going-away gifts. Other than claiming that one
of these parties was actually a birthday party and not a farewell party, Mr.
Miller opposed none of these facts.
The district court observed that the record
suggested that Mr. Miller initiated this case with the intent to forum shop—to
postpone or circumvent custody-related proceedings in Tennessee and arrange for
them to occur, if at all, in only one possible location, Canada. From this evidence, the Court had a
hardened conviction that Mr. Miller invoked the Hague Convention to duck the
proceedings in Hamilton County Circuit Court and place Mrs. Miller in the
difficult position of having to pursue those proceedings in his preferred
forum, Canada. The evidence supporting the Court’s conviction of forum shopping
was by itself a basis for denial of his Petition. See Jenkins,
569 F.3d at 557–58 .
The court indicated that to establish wrongful retention
under the Hague Convention, Mr. Miller must prove first by a preponderance of
the evidence that Canada was the children’s country of habitual residence. Friedrich,
983 F.2d at 1400; Guevara,
180 F. Supp. 3d at 525; Hague Convention, art. 3; see
generally Text and Analysis,
51 Fed. Reg. at 10504 If he succeeds in establishing
that Canada is the children’s country of habitual residence, he must then prove
by a preponderance of the evidence that (1) Mrs. Miller, by retaining the
children in Chattanooga, breached his custody rights under Canadian law and (2)
at the time of their retention, he was actually exercising those rights, or
would have exercised them if not for their retention. Friedrich,
983 F.2d at 1400; Guevara,
180 F. Supp. 3d at 525; Hague Convention, art. 3. The Sixth Circuit identified five lodestars to
guide itself—and district courts in future cases—to a proper determination of a
child’s habitual residence: First, habitual residence should not be determined
through the “technical” rules governing legal residence or common law domicile.
Instead, courts should look closely at “[t]he facts and circumstances of each case.”
Second, because the Hague Convention is concerned with the habitual residence
of the child, the court should consider only the child’s experience in
determining habitual residence. Third, this inquiry should focus exclusively on
the child’s “past experience.” “Any future plans” that the parents may have
“are irrelevant to our inquiry.” Fourth, “[a] person can have only one habitual
residence.” Finally, a child’s habitual residence is not determined by the
nationality of the child’s primary care-giver. Only “a change in geography and
the passage of time” may combine to establish a new habitual residence. Robert,
507 F.3d at 989 (quoting Friedrich,
983 F.2d at 1401–02).
In Robert v. Tesson, the Sixth
Circuit revisited the issue of habitual residence in a more complex context,
addressing how to determine habitual residence “when a child has alternated
residences between two or more nations.” 507 F.3d at 992. Concerned
with the need for emotional and social stability in a child’s life, the Sixth
Circuit adopted an “acclimatization standard.” Under this now well-known
standard, “a child’s habitual residence is the nation where, at the time of
their removal, the child has been present long enough to allow acclimatization,
and where this presence has a ‘degree of settled purpose from the child’s
perspective.’” Id. (quoting Feder v.
Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) ). The
Sixth Circuit has not fitted the terms “acclimatization” or “settled purpose”
with a tailored definition because every inquiry into habitual residence is a
pliant, fact-specific analysis. See id.
at 990 (stating that an analysis of a child’s habitual residence is not
a formulaic one and requires courts to “look closely at ‘[t]he facts and
circumstances of each case’ ” ; Friedrich,
983 F.2d at 1402 (“Every family dispute has its own unique set
of facts.”).
Under this fact-specific
inquiry, various aspects of a child’s life may be pertinent to reaching a
decision as to whether a child has become acclimated to and settled in a
particular country. They include the child’s academic activities, social
engagements, participation in sports programs and excursions, any personal
belongings in the child’s possession when the child alternated residences, the
child’s own stated desire, and any other relevant circumstances or meaningful
connections with people or places. Robert,
507 F.3d at 996; see Jenkins,
569 F.3d at 556 (“[A]ll [of these things] point to the child
being acclimatized.” But all of these aspects surrounding a child’s life in a
new country, depending on the time of their occurrence, are not necessarily
proper for consideration in an analysis under the acclimatization standard.
A lynchpin of any inquiry under this
standard is a determination of the time of the wrongful removal—or in this
case, the time of the wrongful retention—because it lays the parameters for the
Court’s analysis. See Robert,
507 F.3d at 993 (“[A] child’s habitual residence is the
country where, at the time of their removal, the child has been present
long enough to allow acclimatization[.]”; see also Panteleris v.
Panteleris, 601 Fed.Appx. 345, 349 (6th Cir. 2015) (“[O]ur
court’s precedent instructs courts to look back in time from the period of
wrongful retention, not forward.”); Friedrich,
983 F.2d at 1401 (“[T]he court must focus on the child, not the
parents, and examine past experience, not future intentions.”). In other words,
the date of the children’s retention in Chattanooga operates as an expiration
point, which means that the Court, when determining the children’s habitual
residence, has to limit its review to the social and familial aspects of the
children’s lives that developed before that point and not beyond it.
Mr. Miller contended that Mrs. Miller
began wrongfully retaining the children in Chattanooga on November 17, 2017,
because on this date he expressed a desire to have the children return to
Canada with him and Mrs. Miller expressed her desire for them to remain in
Chattanooga with her. All the evidence led the Court to only one possible
conclusion: the first time that Mr. Miller expressed anything weightier than
tacit grumblings about the children’s presence in Chattanooga was when he
pursued their return to Canada on March 27, 2018, by filing his application
with the Saskatchewan Central Authority. And on this date—the same date when
Mrs. Miller filed for divorce—Mrs. Miller had also announced her unequivocal
intention to retain the children in Chattanooga through state custody
proceedings.
Having determined the date of the
children’s retention, the Court—when it looked backward from that date—had no
doubt that the children were present in Chattanooga long enough to become
acclimated and settled. With the exception of C.J.M., who was too young, they were
enrolled in Chattanooga’s school system, and J.M.M. became a member of the
Science Olympiad Club and attended a playground-renovation project meeting. See
Ahmed,
867 F.3d at 687 (“ ‘[A]cademic activities’ are ‘highly
suggestive of acclimatization[.]’ ” They were doing well in school and showed
no behavioral problems. See Jenkins,
569 F.3d at 556 (holding that a child was acclimated to his
new country partly because he “was attending preschool ... and was, by all
first-person accounts, doing well in that environment”). They also
had family in the area and interacted with them.
The district court found that Mr.
Miller failed to establish by a preponderance of the evidence that Canada was
the children’s habitual residence at the time of their retention in
Chattanooga—whether the Court views the date of retention as March 27, 2018, or
November 17, 2017. Their retention in Chattanooga was therefore not “wrongful”
as the Hague Convention defines the term.