Judge v Williams, 2011 WL 3100346 (E.D.N.C.) [Ireland] [Rights of Custody]

In Judge v Williams, 2011 WL 3100346 (E.D.N.C.) Petitioner Brian Anthony Judge filed a Verified Petition Under Hague Convention seeking the return of his minor child, E.L.W.J. ( "Child") to the Republic of Ireland. In an order filed on July 20, 2011, the court found, pursuant to 42 U.S.C. 11604 and North Carolina General Statute s 50A-31, that E.L.W.J. was imminently likely to be removed from the state by her mother, Respondent Rebecca Lynn Williams, if not taken into immediate custody pending the court's ultimate disposition of the Hague Petition. Accordingly, the court ordered that a warrant be issued directing the United States Marshal to take physical custody of E.L.W.J. and deliver her to the court for a hearing on the Hague Petition set for July 21,2011, at 4 p.m. The court ordered that the Marshal could, if necessary, deliver E.L.W.J. into the custody of Petitioner pending the hearing.

The matter came on for hearing on July 21, 2011. Petitioner was present with his attorney, Jennifer Lyday, and E.L.W.J. Respondent was present, without an attorney. The undersigned asked Respondent if she was prepared to go forward without an attorney, and Respondent answered yes. Both Petitioner and Respondent testified, and introduced evidence. Based on the testimony and evidence at the hearing and the Verified Hague Petition and Verified Application, the found that E.L.W.J. was born in the Republic of Ireland on May 4, 2007. Petitioner was E.L .W.J.'s father, and Respondent was E.L.W.J.'s mother. Petitioner and Respondent have never married. On January 26, 2010, Petitioner and Respondent executed a statutory guardianship declaration which granted Petitioner joint guardianship of E.L.W.J. under Irish Law pursuant to Section 4(2) of the Children Act of 1997. From E.L.W.J.'s birth until July 2009, Petitioner lived with the Child and raised the Child with Respondent. Both Petitioner and Respondent lived with the Child again from January 2010 until June 2010. From July 2009 to January 2010 and again from June 2010 until the events giving rise to the filing of the Hague Petition, Petitioner spent time with the Child every Wednesday and Saturday. The Child spent the night with Petitioner every other Saturday. E.L.W.J. lived in Ireland from her birth until March 2011. She was enrolled in a Montessori classes for the school term of September 2010-June 2010. In January 2011, Respondent told Petitioner that she would like to visit the United States to see her sister, and that she would like to take E.L.W.J. with her. Petitioner refused to sign a passport application for E.L.W.J. Petitioner averred that Respondent nevertheless obtained a United States passport for E.L.W.J. without his knowledge or consent. On the passport application, Respondent stated she would be using the passport to travel to the United States for six weeks. The passport was issued on March 3, 2011. On Wednesday, March 16, 2011, Petitioner spent time with E.L.W .J. during his regularly-scheduled access time. Respondent told him at the conclusion of the access time that she was planning on taking a trip over the upcoming weekend so Petitioner would not have his regularly-scheduled Saturday access time. On March 19, 2011, Petitioner sent Respondent a text message asking to speak with E.L.W.J. Respondent replied that Petitioner would be able to speak with E.L.W.J. on Monday. On March 22, 2011, Respondent emailed Petitioner telling him she was "gone for good." She told Petitioner it was in the best interest for her, E.L.W.J., and her older child to be away from Petitioner. She warned Petitioner not to come looking for her because he would never find her. Petitioner reported Respondent's taking of E.L.W.J. to the local police. He filed an application with the Irish Central Authority, the office designated by Ireland to administer its responsibilities under the Hague Convention. Petitioner thereafter filed for sole custody of E.L.W.J. He testified that the Irish District Court for the Dublin Metropolitan District served Respondent in the United States with notice of the hearing on the application. Respondent did not attend the hearing. The Irish District Court granted Petitioner sole interim custody of E.L.W.J. and scheduled another hearing on September 29, 2011. Respondent testified she did not feel E.L.W.J. was safe in Petitioner's custody. She testified that in the past Petitioner allowed E.L.W.J. to insert an object in her nostrils, necessitating a visit to the emergency room, and blamed the incident on E.L.W.J.'s older half-sister. She also testified that Petitioner had, on one occasion, locked E.L.W.J. and her half-sister in a sitting room for hours. In June 2010, he took painkillers that did not belong to him and was impaired. She also testified that E.L.W.J.'s half-sister was a witness to Petitioner physically assaulting Respondent on one occasion, and that Petitioner broke Respondent's arm while on a vacation in Spain. Respondent also testified that Petitioner spoke to E.L.W.J.'s half-sister about topics which were inappropriate. She introduced into evidence email correspondence between herself and Petitioner, wherein each accused the other of drug use and inappropriate behavior. Respondent testified that Petitioner had not, however, ever harmed E.L.W.J. Respondent also testified that separating E.L.W.J. from her half-sister would result in psychological harm to both children.

The District Court granted the petition. It noted that "Habitual residence" is not defined by the Hague Convention. Miller, 240 F.3d at 400. The Fourth Circuit has concluded, however, that "there is no real distinction between ordinary residence and habitual residence." A court must make a fact-specific inquiry on a case-by-case basis to determine a child's customary residence prior to the removal or retention. In undertaking this inquiry, the court uses a two-part framework. Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). The court first examines whether the parents shared a settled intention to abandon the former country of residence. The court then examines the extent of the child's acclimatization to the new country of residence. Under the framework set forth in Maxwell, E.L.W.J.'s habitual residence was the Republic of Ireland. First, there was no shared parental intent to abandon the Republic of Ireland as E.L.W.J .'s habitual residence. Second, there was no indication that the short four months E.L.W.J. has spent in the United States rendered her so acclimatized to her life in this country that the court "can say with confidence that [E.L.W.J.'s] relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family life and social environment in which [her] life has developed." Petitioner had "custody rights" as to E.L.W.J. as they are defined under the Hague Convention and Irish law. The Hague Convention defines "rights of custody" as including "rights relating to the care of the person of the child, and in particular, the right to determine the child's residence." Convention, art. 5. The Eleventh Circuit, in examining Irish law, has observed that "guardianship" under Irish law " 'concerns matters of overriding seminal importance to a child's upbringing' " and " 'the duty to ensure that a child is properly cared for and that decisions relating to the child are made with his or her best interests at heart.' " Hanley v. Roy, 485 F.3d 641, 646 (11th Cir.2007). The Eleventh Circuit concluded that guardianship rights under Irish law "necessarily involve 'the care of the person of the child' within the meaning of the [Hague] Convention." The district court similarly concluded that joint guardianship under Irish law is a right of custody within the meaning of the Hague Convention. Additionally, it was undisputable that Petitioner had "custody rights" as to E.L.W.J. after June 29, 2011, when the Irish District Court awarded him interim sole custody of the child. Respondent's removal of E.L.W.J. from Ireland was in breach of Petitioner's custody rights. Petitioner's custody rights--by virtue of his joint guardianship of E.L.W.J.--included the right to make decisions of overriding seminal importance to E.L.W.J.'s upbringing. The nation where E.L.W.J. is reared is a matter of overriding seminal importance to E.L.W.J.'s upbringing, and Petitioner had the

right to take part in that decision. Moreover, Respondent's retention of E.L.W.J.

in the United States after the Irish District Court awarded Petitioner interim

sole custody of the child was in breach of Petitioner's custody rights. Petitioner was exercising his custody rights at the time of the E.L.W.J.'s removal from Ireland and retention in the United States. Courts "will 'liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.' " Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007)(quoting Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir.1996) ("Friedrich II "). The Fourth Circuit has explained that under this approach: " '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." Here, Petitioner had been active part in E.L.W.J.'s life from her birth until she was removed from Ireland.

The court found that Petitioner established, by preponderance of the evidence, a prima facie case under the Hague Convention. It next found that the Respondent had not met her burden in establishing the "grave risk of harm" affirmative defense. Petitioner had never harmed E.L.W.J. nor was there any suggestion that he would harm her. Nor was there evidence of a sustained pattern of physical abuse and/or propensity for violent abuse. Moreover, there was no evidence that E.L.W J.'s separation from her half-sister would result in the type of severe psychological harm envisioned by the affirmative defense. See Freier v. Freier, 969 F.Supp. 436, 443 (E.D.Mich.1996)(finding that a child's separation from her mother and two half-siblings did not establish the "grave risk" defense because "this sort of adjustment problem common in the relocation of most children is not enough"). Finally, Respondent had not shown, by clear and convincing evidence, that returning E.L.J.W. to Ireland would subject her to an intolerable situation.

Carnelli v Pas, 2011 WL 1983360 (D.N.J.) [United Kingdom] [Return to Different Country than Habitual Residence] [Wishes of Child]

In Carnelli v Pas,  2011 WL 1983360 (D.N.J.) Not for Publication, a  Petition was filed by Mirna Judith Rodriguez Carnelli ("Petitioner") for the return of her minor child. The District Court denied the Petition based on the "wishes of the child" exception.
 Petitioner and Respondent, both natives of Uruguay, were married on May 3, 1988 in  Uruguay. In June 1988, Respondent emigrated to the United States, and his wife and  young daughter, Virginia, followed in 1990. The family settled in Kearny, New  Jersey. On September 20, 1996, Daniel was born in Belleville, New Jersey. The family  resided together in Kearny until 2002, when Petitioner and Respondent separated. At  that point, Petitioner and her children continued to live in Kearny, New Jersey, while Respondent resided in a separate home in the neighboring town of Harrison. When Petitioner lost her job at a bank in 2004, she was unable to find new  employment, a circumstance she attributed to her immigration status. Through personal  connections, she was offered a job in Mallorca, Spain. Her emigration to  Spain required her to depart from her native Uruguay, where she was a citizen and  could obtain the necessary travel authorization. Prior to departing for Uruguay in or  about January 2005, she and Respondent reached an agreement regarding the minor  children: Virginia would live in the United States in Respondent's care and Daniel would
remain with his mother. Petitioner and Respondent jointly obtained a United States passport for Daniel's international travel to Uruguay, and then to Spain.
 While in Uruguay, Petitioner sought to dissolve her marriage with Respondent. Although Respondent also contends that he did not consent to the divorce, he admitted  that he signed the divorce documents. The Uruguayan court entered a Divorce  Decree terminating the marriage of the parties on or about September 28, 2005. It  included a custody agreement, whereby Respondent would continue to exercise custody over Virginia and Petitioner would exercise custody over Daniel.
Petitioner and Daniel moved to Spain, where they remained until January 2009. At that time, a loss of employment prompted Petitioner to relocate. She was offered a job in London,  and so in or about January 2009, Petitioner, Daniel, and Petitioner's second husband, whom she married on September 23, 2008, moved to the United Kingdom. Per a signed authorization transmitted from the Uruguayan Consulate in
New York to the Uruguayan Consulate in Palma de Mallorca, Respondent consented to Daniel's residence in Spain and the United Kingdom in the custody of Petitioner. In or about July 2009, Daniel traveled from the United Kingdom to the United States to  spend the summer with his father, as he had done every year since leaving the United  States in 2005. While Daniel was visiting Respondent, Petitioner's husband returned to
his native Argentina upon the death of his mother, and Petitioner soon relocated there to help her husband care for his ailing father. Petitioner informed Respondent of her  situation and asked that he keep Daniel in his care until she was able to sort out her  residency, which was necessary for Daniel to obtain his own Argentine residency. She  admited that she agreed to his enrollment in school in New Jersey, given the uncertainty regarding how long it would take for her residency to be approved but stressed that she made it clear to Respondent that Daniel should be returned to her once she obtained residency. When the residency was approved on October 15, 2009, Petitioner asked for Daniel to return but Respondent refused. Petitioner claimed that at that point, she began to encounter consistent difficulty in establishing contact with Respondent and ultimately was unable to establish contact at all.  Daniel  remained in the physical custody of his father since July 2009 to the present. Petitioner filed the Petition in this Court on June 16, 2010.  At that time, Daniel was 13 years old. He was currently 14.
  The Court found that Petitioner met her burden of proving that Daniel was wrongfully retained. The retention occurred in or about October 2009, when, according to Petitioner's testimony,  she asked that Daniel be returned to her and Respondent failed to comply with her  wishes. Petitioner conceded that the United Kingdom was the child's place of habitual residence. Petitioner's request for Daniel's return showed her exercise of her custody rights.   Having found a wrongful retention, the Court noted  that this case presented a slightly unusual situation with regard to the interplay between Article 3, which sets forth the standard for wrongful removal or retention, and Article 12, which directs the return  of the child forthwith if that standard is met. The country in which Daniel was habitually resident immediately before his wrongful detention--which Petitioner conceded was the United Kingdom–was not the country to which Petitioner sought he be returned. Petitioner relocated to Argentina after Daniel traveled to the United States. Nor was Argentina a place Daniel ever called home, such that his return to his mother would effect the Convention's goal of having custody disputes resolved in the home country, as opposed to the place where the child has been wrongfully removed or retained. Petitioner argued that the discrepancy between the country of habitual residence, as defined by the Convention, and the country to which she sought Daniel's return should not foreclose the relief she sought because Article 12 of the Convention was deliberately silent on the matter of where the return of a wrongfully removed or retained  child should be ordered. Petitioner appeared to be correct. Article 12 simply provides that "the authority concerned shall order the return of the child forthwith," without specifying, as the preamble to the Convention contemplates, that the return be to the country of habitual residence. (see also Von Kennell Gaudin v.
Remis, 282 F.3d 1178, 1182 (9th Cir.2002) (noting that Convention does not make
clear to what country a child must be returned and pointing out difference between
Convention's preamble and its actual text). The Convention's official commentary, cited
by Petitioner in support of her argument, bears out the view that a court handling a
Convention claim may order the return of a child to the custodial parent even if the
parent is not in the place of the child's habitual residence. ( See Elisa Perez Vera, Explanatory Report P 110, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 459-60 (1982).
        Though the Court agreed with Petitioner's argument that it was authorized under the Convention to return Daniel to his mother's custody in Argentina, the Court found that Respondent had proven, by the required preponderance of the evidence standard, that Article 13's "wishes of the child" defense applied.  Article 13 provides that "[t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has  attained an age and degree of maturity at which it is appropriate to take account of its  [sic] views." Daniel unequivocally testified that he wished to remain in the United States with his father. There is no set age under the Convention at which a child is deemed to  be sufficiently mature; rather, the Third Circuit guides that the district court hearing the matter must make this fact-intensive determination on a case-by-case basis. Tsai-Yi Yang, 499 F.3d at 279. Daniel, who is 14, expressed his wishes to stay with his father in a cogent and well-reasoned manner. He explained that he enjoyed meaningful and close relationships with many family members also living in or near his father's home in Kearny, New Jersey, including specifically his sister, Virginia, his cousin Michael and his Aunt Betsy. He also testified that he was happy with his schooling as a  student in Kearny High School, where he enjoyed friendships and, as the records demonstrated, had achieved good grades. In contrast, he described an itinerant and somewhat lonely lifestyle with his mother. He also testified that while he spoke a little Spanish, he was not fluent in the language, which further provided a reasoned basis for his desire to remain with his father in the United States. Moreover, there was no indication that Daniel's wishes to remain with his father were somehow the product of undue  influence by his father or some other family member or third-party. The Court also noted that his wishes did not appear to arise from a teenager's rebellious streak or  some aversion to his mother. Daniel made it very clear that he loved both of his parents and wished to have a harmonious relationship with both of them. His preference to remain in the United  States with his father would seem to stem, rather, from a desire for a more stable  lifestyle than his mother was able to provide.  Petitioner drew attention to the fact that during this period of time that Daniel had been living with his father, it has been very difficult for her to contact Daniel and that,  moreover, the infrequent contact she did have with him (mostly over computer chats, as opposed to telephone) had been strained. She indicated her belief that this breakdown of communication with her son evidenced Respondent's efforts to alienate  Daniel from Petitioner. The Court  observed that communication between Petitioner  and her son had been lacking. Daniel did display feelings of resentment toward  his mother, but based on his testimony, the Court understood this tension to stem  from Daniel's frustration with his mother's lack of candor with respect to her pursuit of this Petition and her role in the commencement of an ultimately unsubstantiated child welfare investigation by New Jersey's Division of Youth and Family Services. The Court listened attentively to Daniel's testimony, and it did not perceive the communication problems between Daniel and Petitioner to be indicative of any manipulation by  Respondent of Daniel's thoughts and feelings but rather of the boy's difficult position in which he is caught in a tug-of-war between his adversarial parents. The Court weighed this unfortunate circumstance and concluded that it does not diminish the  reasonableness of Daniel's wish to remain in the United States with his father.  The Court found that Daniel presented as a thoughtful and intelligent young man, who, at the age of 14,  demonstrated a degree of maturity at which it was appropriate for the Court to consider his views regarding whether to stay with his father or be returned to his mother. Accordingly, the Court  denied the Petition under Article 13 of the Convention and the  implementing statutory provision, 42 U.S.C. 11603(e)(2)(B).