International Child Abduction Remedies Act Reclassified

The International Child Abduction Remedies Act,  42 U.S.C §§11601 - 11611  was editorially reclassified as sections 9001-9011  of Title 22. It can now be found in  22 U.S.C. §§  9001-9011.

Seaman v. Peterson, 2014 WL 4377582, --- F.3d ---- (11th Cir., 2014) [Mexico] [Habitual Residence] [Petition granted]

In Seaman v. Peterson,  2014 WL 4377582, --- F.3d ---- (11th Cir., 2014) the Appellant, John Kennedy Peterson, removed his four children from Mexico to the United States. His wife, and mother of the children, Pandita Charm–Joy Seaman, sued in the district court invoking ICARA and demanding an order returning the children to Mexico.The district court granted that relief. Peterson appealed. The Eleventh Circuit affirmed. 

In February  2002.Peterson and Seaman married in Georgia. Peterson was a citizen of the United States and a disabled Army veteran suffering from PTSD (post traumatic stress disorder). Seaman was a Jamaican citizen holding a “green card” with permanent residence status in the United States. From July, 2002–May, 2006 Peterson and Seaman established their family home in the area of Warner Robins, Houston County, Georgia. During this period they had three children: T.L.P., C.D.P. and R.T.P. The elder child, T.L.P. (who was born in Mexico) was 8 years of age at the time the petition was filed in this case. C.D.P. was age 7, and R.T.P was age 5. In May  2006.Peterson and Seaman disposed of their belongings in Georgia, and moved with their three children to Mexico. They first lived for a brief time in Guadalajara, near Seaman's parents and extended family, and then moved to a more permanent location in nearby Chapala, State of Jalisco, Mexico, on the lake of the same name about twenty five miles south of Guadalajara. Soon after leaving the United States, Peterson and Seaman had a fourth child, S .A.D., who was born in Mexico and was 4 years of age at the time of Seaman's petition under ICARA. In July, 2010, after living there for more than four years, Peterson left Mexico and returned to the United States. Seaman and the four children remained at their home in Chapala. On September 27, 2010 both Peterson and Seaman appeared before the Mexican Municipal Court which issued a “written declaration” that allowed Peterson to spend October 2, 2010, with the children subject to a strict order that they be returned to Seaman's custody by 10:00 p.m. the same day. On October 2, 2010 Peterson took custody of the four children in Mexico and absconded with them to the United States. After a three day trip in Peterson's automobile, they arrived in the Warner Robins area, Houston County, Georgia. On November 30, 2010 Seaman filed this action under the Hague Convention and ICARA in the district court.  On January 14, 2011 the district court entered its Order granting Seaman's petition and directing that the four children be returned to Mexico. Peterson was directed to pay the necessary transportation expenses. On February 8, 2011Seaman and the children returned to Mexico. The Eleventh Circuit held that a mixed standard of review is appropriate for determining habitual residence. Accordingly, it accepts the district court's finding of historical facts unless clearly erroneous, but with regard to the ultimate issue of habitual residence, the appellate court will review de novo, considering legal concepts in the mix of facts and law and exercising judgment about the values that animate legal principles.

The Eleventh Circuit observed that following the teaching of this court's decision in Ruiz v. Tenorio, 392 F.3d at 1252–53, the district court first determined whether there was a settled intention on the part of Seaman and Peterson to abandon a prior habitual residence and take up a new one. Seaman testified that the move from Georgia to Mexico in May, 2006, was intended to be permanent. Peterson testified that it was intended as an extended vacation and visit with Seaman's parents. The district court, viewing the objective facts, credited Seaman's testimony and, implicitly if not explicitly, discredited Peterson. The court noted that the parties sold their possessions in Georgia and took up their own dwelling in Mexico rather than living with Seaman's parents or in temporary quarters such as a hotel; that they enrolled the children in Mexican schools when they reached the appropriate age; that they were absent from the United States from a residential standpoint for more than four years, returning to the United States only a few times for visits of limited duration; that they established legal, temporary residence in Mexico; and, according to Seaman, intended to become citizens there. The district court concluded on the basis of those findings that, insofar as the parents were concerned, they either traveled to Mexico intending to stay for a brief period and then changed their minds in favor of abandoning their Georgia residence, or they traveled to Mexico already intending to make their new home there. Either way, they came to share an intent that Mexico was, or had become, their habitual residence within the meaning of the Convention and ICARA. The district court then turned its attention, following the analytical regimen dictated by Ruiz, 392 F.3d at 1253, to the question whether there had been an actual change in geography and the passage of a sufficient length of time for the children to have become acclimatized in the new place of residence. As stated in Ruiz, the intention of the parents is a crucial factor, but “cannot alone transform the habitual residence.” The district court found this to be an easier call. The geographic movement of the children was beyond dispute. Further, the children were all acclimatized and settled in Mexico; they were all fluent in Spanish; they attended and were well adjusted in school in Mexico, the eldest for almost four years, while the youngest, though not yet in school, was almost four years of age at the time of abduction and had never been to the United States. The district court thus concluded that under both prongs of the analysis required by Ruiz, the habitual residence of the children at the time of their abduction on October 2, 2010, was in Mexico. The district court  found that Seaman did enjoy rights of custody under Mexican law and that she was actively exercising those rights at the time of the children's abduction. The Eleventh Circuit  found no error in fact or law with respect to either conclusion.

Peterson made two claims in support of the grave risk of harm defense that he was required to establish by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A); Convention, Art. 13(b). Those claims were: (1) that Seaman's family belonged to a religious organization known as The Family International (“TFI”) which practices communal living that facilitates or even encourages sexual contact with children; and (2) that the children were malnourished and deprived of needed medical attention. With respect to TFI, the district court found that although some of Seaman's family members were part of that organization, Seaman herself disavowed her allegiance to TFI approximately 10 years ago, and there was no evidence that the Peterson children had ever been subjected to any improper contact or harmful influence of any kind. The district court determined that the medical evidence initially offered by a physician in Georgia concerning malnourishment of the children in general, and the lack of proper medical care of one of them in particular, had been manipulated by Peterson through inaccurate information he had communicated to the doctor. The court found that, in fact, there was no reliable evidence of neglect or abuse of any kind and that the children were well cared for. The district court therefore concluded that returning the children to Mexico would not “expose the child[ren] to physical or psychological harm or otherwise place [them] in an intolerable situation.” Convention, Art. 13. Upon review, the Eleventh Circuit found no error, much less clear error, in the district court's factual findings rejecting the defense of grave danger.

In rejecting Peterson’s claims of error by the district court in its findings of historical fact supporting its ultimate legal conclusion that the habitual residence of the Peterson children was in Mexico at the time of their abduction on October 2, 2010, the Court pointed out that the law is well settled that “[i]f the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”Anderson, 470 U.S. at 573–74, 105 S.Ct. 1504. It may reverse the district court only when “on the entire evidence” it is  “left with the definite and firm conviction that a mistake has been committed.”. After reviewing the lengthy record in its entirety, it was  left with no such conviction. Ample evidence supported the district court's reasoned findings, and therefore there was clear error. Upon de novo review of that legal conclusion in light of the record as a whole, it found that the district court got it right when it concluded that the habitual residence of the Peterson children was in Mexico when they were removed from Seaman's custody and brought to the United States.

Peterson challenged the district court's handling of the grave risk issue contending that the court: (1) effectively imposed upon Peterson, contrary to Baran v. Beaty, 526 F.3d 1340 (11th Cir.2008), the burden of proving that the Mexican courts are unable or unwilling to ameliorate a grave risk of harm; or (2) that the district court effectively deferred a decision on the grave risk defense to the courts of Mexico contrary to Danaipour v. McLarey, 286 F.3d 1 (1st Cir.2002). The Eleventh Circuit held that neither of those decisions were  of any help to Peterson because both were easily distinguishable. In Baran, the Court held  that once a responding parent proves, by clear and convincing evidence, that a child would face a grave risk if returned to his habitual residence, the responding parent does not have to prove, in addition, that the courts of the requesting state cannot be relied upon to shield the child from that risk. Here, the district court's concern that the children's exposure to the practices of TFI should be monitored by the court deciding custody issues—if such exposure occurs—was by no means an enlargement of Peterson's burden of proof nor was it inconsistent with the court's finding concerning the lack of a grave risk. Simply put, in this area of the law, there are grave risks established by clear and convincing evidence, and there are potential risks that are less than grave but bear watching. Recognizing that distinction is all that the district court did; and in so doing the court did not delegate its responsibility under the Convention or ICARA to the Mexican courts as in Danaipous v. McLarey, supra. The judgment of the district court was affirmed. 

Berezowsky v Ojeda, 2014 WL 4216286 (5th Cir, 2014) [Mexico] [Habitual Residence] [No Habitual Residence]

In Berezowsky v Ojeda, 2014 WL 4216286 (5th Cir, 2014) Michelle Gomez Berezowsky filed a petition under the Hague Convention, asserting that Pablo Angel Rendon Ojeda had wrongfully removed their child, PARB, from Mexico to Texas. The district court granted Berezowsky's petition and ordered that PARB be returned to Mexico. The Fifth Circuit held that Berezowsky failed to meet her burden of establishing that Mexico was PARB's place of habitual residence. It vacated the district court's order and remanded with instructions to dismiss. 

The Fifth Circuit noted that Berezowsky and Rendon were both Mexican nationals. In September 2008, Berezowsky learned that she was pregnant and she and Rendon became engaged. By March 2009, their relationship had deteriorated to the point that Berezowsky moved to her parents' home in Kingwood, Texas, and cut off communication with Rendon.   Berezowsky was living in the United States on a student visa.  She gave birth to PARB on May 31, 2009, in Kingwood, Texas. Approximately one month after PARB was born, Rendon learned his child's name, sex, and date of birth through a private investigator.

In February 2010, Rendon brought the parties custody dispute to the 410th District Court of Montgomery County, Texas, where Berezowsky and PARB were living at the time. The parents litigated PARB's custody in the Texas state court system for the next two years while PARB continued to live in Texas with his mother. More than a year later, Berezowsky and Rendon stipulated that Rendon was PARB's biological father. The 410th District Court of Texas entered an order awarding Rendon and Berezowsky joint parental rights, and giving Rendon the right to determine PARB's residence (Texas Order).  The Texas Order limited PARB's primary residence to three geographic areas in Mexico “until further order of the court of continuing jurisdiction or agreement of the parties.” It also required each parent to give notice to the other before traveling with PARB outside of Mexico. The Texas Order gave Berezowsky standard visitation rights and ordered her to pay child support. Pursuant to the Texas Court Order, Rendon drove across the border with PARB to Cuernavaca, Mexico, in October 2011. Berezowsky moved to Mexico City on October 18, 2011, and then moved to Cuernavaca two weeks later.  Berezowsky filed a suit to terminate Rendon's parental rights in Cuernavaca, in the State of Morelos (7th Mexican Court). On January 12, 2012, the 410th District Court of Texas found that Berezowsky was in violation of the possession and access, as well as the passport provisions of the Texas Order, and had wrongfully withheld PARB from Rendon for a period of time greater than one month (Second Texas Order). The 410th District Court of Texas noted that Berezowsky had “claimed to the courts of Morelos[, Mexico,] that the child was abducted from Texas by his father” and then concluded that Rendon was in compliance with the Texas Order, had not abducted PARB from the United States, and had a superior right to possess PARB.  The 410th District Court of Texas also issued a temporary restraining order, prohibiting Berezowsky from interfering with Rendon's right to possess PARB, or  hiding or secreting PARB. The 410th District Court of Texas suspended Berezowsky's rights to possession of, and access to, PARB pending a further order from that court.  On the same day, the 410th District Court of Texas also signed an order clarifying that Berezowsky and her parents were misrepresenting the Texas Order “to the courts of Morelos or the United Mexican States.  The 410th District Court of Texas explained that the Texas Order “is a valid, existing, final and enforceable order, and the matter of the primary custody of the child PARB is res judicata.”In addition, the 410th District Court of Texas clarified that unless and until an appellate court reversed the Texas Order, that it would remain both final and enforceable. Subsequently, the 410th District Court of Texas gave Rendon sole custody and the exclusive right to designate PARB's primary residence with no geographic restrictions. Berezowsky was appointed possessory conservator with only the right to receive information from Rendon regarding PARB's health, education, and welfare. Berezowsky was given supervised visits with PARB . Despite this order, Berezowsky continued to maintain possession of PARB in Mexico. In August 2012, she moved from Cuernavaca to Mexico City. 

  On September 18, 2012, the 11th Mexican Court recognized and enforced the Texas Orders and ordered Berezowsky to immediately surrender PARB to Rendon. On October 11, 2012, Rendon arrived at PARB's school with a group of men just as PARB was being released to go home. Rendon left with PARB.  On November 1, 2012, Rendon drove across the border and entered Texas with PARB. The 24th Mexican Court reaffirmed that Berezowsky had exclusive rights to, and custody of, PARB. 

On November 30, 2012, Berezowsky filed a petition in the United States District Court for the Southern District of Texas (Southern District Court) under the Hague Convention. In January 2013, the Southern District Court issued an order holding that PARB had been wrongfully removed from Mexico and ordered his immediate return. The order awarded attorney's fees and costs to Berezowsky. The Fifth Circuit reversed, holding that because Berezowsky filed this action under the Hague Convention, she had to  demonstrate by a preponderance of the evidence that Mexico was PARB's habitual residence in order to establish her claim that PARB was wrongfully removed, and failed to do so. 

The Fifth Circuit observed that courts use varying approaches to determine a child's habitual residence, each placing different emphasis on the weight given to the parents' intentions.”Larbie, 690 F.3d at 310. Like the majority of circuits, it had “adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence.” This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents' intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. In such cases, the threshold test is whether both parents intended for the child to abandon the [habitual residence] left behind. Absent shared intent, prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion. It affirms the district court's determination that the parents shared an intent to make a particular country their child's habitual residence unless it is implausible in light of the record as a whole. See Larbie, 690 F.3d at 306. It noted that at least one court has found that it is possible for a young child to have no habitual residence when there is no evidence of a shared intention for the child to be settled in any particular location. See Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir.2003).  The mere fact that the parents have consented for the child to move to a new country does not prove that they share the necessary intent to make that new location the child's habitual residence. 

The Fifth Circuit found that Rendon and Berezowsky's relationship ended before PARB's birth, and the record did not indicate that the two parents had ever shared any plans regarding his upbringing or future.  The district court concluded that Rendon and Berezowsky intended to make Mexico PARB's habitual residence. The district court devoted only one paragraph to the habitual residence analysis, and made the following statements in support of its conclusion that Mexico was PARB's habitual residence:





“Although [PARB] was born in the United States, the facts established that the parents intended to make Mexico [PARB's] habitual residence. Specifically, [Berezowsky] and [Rendon] are both Mexican nationals, they met while residing in Mexico, they are not citizens of the United States, do not own real property in the country, and do not have immigration status that allows them to permanently reside here. Moreover, [Rendon] moved [PARB] to Mexico pursuant to a Texas court order that designated Mexico as [PARB's] place of residence. In the Texas [O]rder, both parents listed Mexico as their place of residence. [Rendon] admitted, and the evidence establishes, that he represented to the Mexican courts that his residence was Mexico. In other words, the evidence establishes that neither parent has meaningful or deep-rooted ties to the United States. Moreover, [PARB] resided in Mexico for approximately thirteen months and was attending school there before [Rendon] removed him to the United States. Therefore, based on these undisputed facts, the Court concludes that Mexico was [PARB's] habitual residence.”






Only the first line of this paragraph references parental intent. The Fifth Circuit found that in reaching this conclusion, it appeared that the district court misunderstood what is required to form a shared parental intent for purposes of the habitual residence determination. A shared parental intent requires that the parents actually share or jointly develop the intention. In other words, the parents must reach some sort of meeting of the minds regarding their child's habitual residence, so that they are making the decision together. Here, the district court did not find that the parents reached an agreement to make Mexico PARB's habitual residence. Instead, the district court focused on the fact that “neither parent has meaningful or deep-rooted ties to the United States.”In doing so, the district court ignored the primary consideration in the habitual residence determination: shared parental intent. Even accepting all of the facts cited by the district court as true, those facts could not  support a finding of shared parental intent as understood for purposes of the Hague Convention. In the district court's brief analysis, the court never found that Rendon and Berezowsky reached an agreement or meeting of the minds regarding PARB's future. Likewise, the district court did not make a finding that Berezowsky and Rendon intended to abandon Texas as PARB's habitual residence. Nor did the record support a determination that the parents formed a shared intent to make Mexico PARB's habitual residence. Berezowsky did not even argue that she and Rendon reached an agreement on this issue. Instead, she tried to establish that both she and Rendon separately formed the intent to change PARB's habitual residence, and then argued that this could serve as the basis for a shared parental intent. The Court disagreed and held that Berezowsky failed to meet her burden to establish that she and Rendon shared an intent to change PARB's habitual residence. 



In an effort to defeat the 410th District Court of Texas's contrary determination, Berezowsky conceded that Texas was originally PARB's habitual residence, but argued that Mexico has supplanted Texas as PARB's current habitual residence. Berezowsky asserted that the Texas Order, which limited PARB's primary residence to one of three areas in Mexico, established Mexico as PARB's new place of habitual residence. The Fifth Circuit rejected her argument finding that Berezowsky mistakenly conflated that idea of a primary residence with a habitual residence.  Berezowsky offered no support for the proposition that the two terms are interchangeable. The Texas Family Code does not define “primary residence” and the court was not aware of any cases that interpret it in a way that would suggest that the term means “habitual residence” under the Hague Convention. As a result, the fact that the Texas Order designated Mexico as PARB's primary residence was insufficient to prove that Mexico also became his habitual residence. Moreover, Berezowsky had not demonstrated that the Texas Order evinced the necessary shared parental intent to establish a habitual residence under the Hague Convention. The mere fact that the Texas Order designated Mexico as PARB's primary residence was insufficient to demonstrate a shared parental intent for Mexico to become his habitual residence. Even assuming arguendo that the separate, uncoordinated intentions of two parents could form the necessary shared intent to change a child's habitual residence, Berezowsky did not meet her burden in proving that each of the parents here had such an intent. Berezowsky did not demonstrate that she intended to make Mexico PARB's habitual residence. Although she now asserted that she intended to abandon Texas, where there is a dispute regarding a child's habitual residence, ‘the representations of the parties cannot be accepted at face value, and courts must determine habitual residence from all available evidence. It  examined the evidence presented by Berezowsky, and concluded that she had not demonstrated that she had such an intent.Likewise, Rendon's decision to remain in Mexico during the ensuing months while he battled with Berezowsky over PARB's custody did not indicate a shared intent to raise PARB there. And the Texas Order designating Mexico as PARB's primary residence did  not establish Rendon's settled intent to raise PARB in Mexico. This was especially true in light of the fact that Rendon requested and received a revised order lifting this geographic restriction just four months after receiving the Texas Order. By that time, Rendon was no longer in possession of PARB, and was not in a position to determine where PARB would live. Just weeks after Rendon regained possession of his son, he moved back to Texas. These were not the actions of a man with a settled intention for his son to habitually reside in Mexico. 
The Fifth Circuit pointed out that the District Court made much of the fact that both Berezowsky and Rendon were Mexican nationals, with no immigration status that allowed them to permanently reside in the United States. While these facts might indicate that Texas was not PARB's habitual residence, they do not prove that the parents established Mexico as the child's habitual residence. Given the constant cross-border battle over his custody, it was possible that PARB had no habitual residence. See Delvoye, 329 F.3d at 334. While it is true that both parents listed locations in Mexico as their residences on the Texas Order, the record also showed that neither parent was living in Mexico at the time that they made these representations to the 410th District Court of Texas. It did  not appear that the decision for PARB to reside in either Texas or Mexico was connected to a shared intention to settle their son in that place; rather, the geographic decisions seemed wholly dependent on where the parents happened to be fighting their court battles at the time, and where each parent thought they could gain an advantage. Given the constant disagreement and multiple cross-border moves in the span of a few years, Berezowsky did not meet her burden in proving that she and Rendon shared an intent or settled purpose regarding their child's habitual residence. It did not  appear that Berezowsky and Rendon had shared any intention or settled purpose regarding their child since his birth. The district court's determination of habitual residence in this case appeared to have relied upon an understanding of that term that gave insufficient weight to the importance of shared parental intent under the Convention.”Mozes, 239 F.3d at 1084 .11 

Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.) [Northern Ireland] [Habitual Residence][Consent] [Wishes of Child] [Petition denied]

    In Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.) the district court denied the Petition of Paula Mary for the return of her ten year-old child, Gregory Patrick Bowen ("Patrick"), to Northern Ireland.

Ms. Bowen, the Petitioner, was Caucasian and a citizen of Northern Ireland, and the Respondent, Mr. Bowen, was an African-American citizen of the United States. Mr. Bowen was unemployed and resided in Pittsburgh, Pennsylvania, where he received Supplemental Security Income  and Patrick's welfare checks. Ms. Bowen lived off welfare and her savings in Northern Ireland. The litigants met in Pittsburgh while Ms. Bowen was working at a Pittsburgh hotel on a visa exchange program. The Bowens married on July 30, 2002, and shortly thereafter moved to Tennessee, where Patrick was born on April 10, 2003. The Bowens moved to Florida, where Mr. Bowen served jail time for cocaine possession. In November of 2005, Ms. Bowen, pregnant with the parties' next child, Chloe, moved back to Northern Ireland, taking Patrick with her. Chloe was then born.   Mr. Bowen traveled to Northern Ireland and they reconciled on September 3, 2007, Ms. Bowen gave birth to their third child, Paul. Ms. Bowen testified that Mr. Bowen was abusive towards her, and that during one episode, Mr. Bowen shouted at her and grabbed her arm, such that she left Mr. Bowen, out of fear, to stay at a women's shelter for about a month. Mr. Bowen testified that he never hit or threatened to hit Ms. Bowen, and that he witnessed approximately seven (7) occurrences when Ms. Bowen hit Patrick on the head.

         Around the summer of 2011, the parties reconciled. Ms. Bowen testified that while the family was together in Northern Ireland, Patrick did not experience any incidents of racism at school. Ms. Bowen also testified that Mr. Bowen exaggerated his experience with racism in Northern Ireland, and explained that she and he conspired with a mutual friend to set up an April 14, 2012 firebombing of Ms. Bowen's vehicle. After she and he
executed this plan, Mr. Bowen claimed that the firebombing was a racist attack,
when instead it was a ploy to get the insurance proceeds from Ms. Bowen's
destroyed car.  

In May of 2012, Ms. Bowen received inheritance money from her mother. Ms. Bowen used this money to buy five (5) one-way plane tickets for her, Mr. Bowen, and their three children, so that the Bowen family could relocate to the United States. Ms. Bowen had a ten-year ban on her visa to enter the United States, which she claimed was due to her overstaying her visa during her previous visit to this country.  Mr. Bowen and Patrick ultimately relocated to the United States. However, Ms. Bowen testified that due to difficulties in her marriage and her visa complications, she ultimately "decided" not to relocate to the United States. Ms. Bowen contended that she never contemplated that Patrick and Mr. Bowen would move to the United States permanently and without her and the remainder of the family. Ms. Bowen expanded upon this premise in her testimony, stating that she wanted Mr. Bowen to stay in Northern Ireland until her visa situation was resolved but Mr. Bowen disagreed, and she did not protest because she was afraid of him.   Mr. Bowen testified that on the day that the Bowens were all supposed to leave Northern Ireland, their travel agent informed them that Ms. Bowen's visa problems persisted. Mr. Bowen contended that he and Ms. Bowen agreed that he and Patrick would depart as scheduled for the United States, where Mr. Bowen would work to resolve Ms. Bowen's visa issues so that the family could reunite. Mr. Bowen also stated that he could not stay in Northern Ireland because his legal immigration status there had expired, and he could not obtain his necessary disability benefits.

    On July 20, 2012, Mr. Bowen and Patrick left Northern Ireland for the United
States, where they moved in with Clara Jones, Mr. Bowen's ex-sister-in-law, and
her husband Ricky Jones, in Pittsburgh, Pennsylvania. After arriving in Pittsburgh, Mr. Bowen swiftly made inquiries about legal representation to resolve Ms. Bowen's visa issue. He paid $500.00 to Attorney Mark A. Goldstein and signed a July 24, 2012 representation agreement with Goldstein and Associates for immigration legal services.   In November of 2012, Ms. Bowen wrote a letter to Mr. Bowen asking that he "do the right thing" and return Patrick to Northern Ireland. However, from the time of Mr. Bowen and Patrick's arrival in Pittsburgh until Mr. Bowen was served with Ms. Bowen's Verified Petition, Mr. Bowen spoke on a weekly basis with Ms. Bowen, and Mr. Bowen testified that he was under the impression that Ms. Bowen and their other children still planned to move to the United States after Ms. Bowen's visa issues were straightened out.

    Mr. Bowen testified that in late May of 2013, he learned that Child Protective
Services in Northern Ireland had allegedly removed the parties' two other children
from Ms. Bowen's care and custody as a result of their youngest child's claims
that Ms. Bowen pushed him down a flight of stairs.

On May 24, 2013, Ms. Bowen filed a Verified Petition seeking the return of Patrick to Northern Ireland, Patrick's alleged habitual residence, pursuant to the Hague Convention. The Court appointed Patricia L. Dodge, an attorney, as Guardian ad Litem for Patrick, to represent his interests as a citizen of the United States in this action.  On December 12, 2013, Ms. Dodge ("GL" ) filed reports as Guardian ad Litem, in which she set forth her assessment of Patrick and Patrick's interests.  During they hearing, Ms. Bowen testified from Northern Ireland via video conference, and Mr. Bowen testified before the Court.

   
The district court found that on July 20, 2012, Mr. Bowen took Patrick with him when he relocated to Pittsburgh from Northern Ireland. Therefore, the alleged wrongful removal took place on July 20, 2012.  The court noted that a child's habitual residence is "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder, 63 F.3d at 224. This analysis "considers a child's experiences in and contacts with her surroundings, focusing on whether she developed a certain routine and acquired a sense of environmental normalcy by forming meaningful connections with the people and places she encountered in a country prior to the retention date." Karkkainen, 445 F.3d at 292. Determining a child's habitual residence is a fact-intensive analysis, and "necessarily varies with the circumstances of each case." In re Application of Adan, 437 F.3d 381, 392 (3d Cir.2006). In reaching a habitual residency determination, a court must also consider the "parents' present, shared intentions regarding their child's presence in a particular location." Tsui, 499 F.3d at 272 (citing  Baxter, 423 F.3d at 369)  "Feder requires that we give independent weight to [the] parents' shared intent.  We have held that, in cases involving very young children, the shared intent of  the parents in determining the residence of their children is of paramount  importance and acclimatization is secondary.... Thus, shared parental intent  that a very young child will reside in a new country, even for a limited period  of time, is sufficient to establish the child's habitual residence in that  country. We give somewhat less weight to shared parental intent in cases  involving older children ... who have reached an age where they are capable of  becoming "firmly rooted" in a new country. In such cases, our attention  generally turns first to the child's perspective, not the parents' intent. But  shared parental intent remains relevant to habitual residence in all cases under  the Hague Convention.... When the parents share an intent as to the child's  habitual residence, it must be given some weight. Were a court to exclude shared  parental intent entirely from the habitual residence inquiry, and instead focus solely on a child's contacts and experiences, it would fail to consider whether  a parent is acting unilaterally to alter what was jointly intended or agreed upon. Karkkainen, 445 F.3d at 296.

 Up until Mr. Bowen relocated with Patrick to the United States on July 20, 2012
when Patrick was nine years old, Patrick had lived in Northern Ireland since 2005,
when Ms. Bowen and Patrick moved there from Florida. Patrick had formed meaningful relationships with his mother's Northern Ireland family, was enrolled in school in Northern Ireland, and participated in activities at the Bosco Youth Club in Newry. Until his departure for the United States in 2012, Patrick had lived in Northern
Ireland for the majority of his life, and, from Mr. Bowen's 2006 arrival there, Patrick and his parents had a marked degree of settled purpose in Northern Ireland. While parents' shared intent is not dispositive in wrongful removal or retention cases involving older children, Mr. and Ms. Bowen had a shared intent, up until Patrick finished out the school year at St. Patrick's Primary School in Newry, and left for the United States with Mr. Bowen, that Patrick would reside in Northern Ireland. It followed  that Northern Ireland was Patrick's habitual residence immediately prior to his July 20, 2012 departure for the United States.   Mr. Bowen did not dispute that Ms. Bowen had rights of joint custody under Northern Ireland law.  Mr. Bowen relocated with Patrick to the United States and Ms. Bowen alleged that Mr. Bowen was keeping Patrick in the United States in a unilateral attempt to establish a new residence for Patrick. Mr. Bowen acted in violation of Ms. Bowen's rights of custody under Northern Ireland law. The court also found that Ms. Bowen was exercising her custody rights at the time of Patrick's alleged removal.  The Court found that Ms. Bowen had proven by a preponderance of the evidence that Patrick was wrongfully removed within the meaning of the Hague Convention.

      In her Verified Petition, Ms. Bowen conceded that "[i]t was the intention of
the Petitioner and the Respondent, along with their three (3) children (including
Patrick) to relocate to the United States, and one-way plane tickets were purchased for all five (5) family members."  However, Ms. Bowen claimed that because her visa problem was not solved by the parties' July 20, 2012 anticipated departure date, and because of "difficulties in the marriage," "[Ms. Bowen] ultimately decided not to relocate to the United States." The record reflected that Ms. Bowen and Mr. Bowen did, as Mr. Bowen represented, come to an agreement that Mr. Bowen would go ahead and relocate to the United States with Patrick on July 20, 2012, work to resolve Ms. Bowen's visa issues, and that Ms. Bowen would bring the remainder of the family to the United States when that resolution was reached. Consistent with this plan of action was a  July 24, 2012 Representation Agreement that Mr. Bowen entered into with a Pittsburgh attorney four (4) days after Mr. Bowen's arrival in the United States.  As for Ms. Bowen, instead of altogether cancelling her plan to join Mr. Bowen and Patrick in the United States, Ms. Bowen testified that she postponed the departure date of her one-way plane ticket to September 2012, and did the same for her other children, Chloe and Paul. While these tickets eventually went unused due to the continuing ban on Ms. Bowen's travel to this country, Ms. Bowen's choice to postpone her one-way departure to the United States rather than outright cancel her family's relocation plans strongly demonstrated the reality that the Bowens had come to an agreement that their family would permanently relocate to the United States, with Ms. Bowen's visa ban only temporarily putting a wrench in the family's relocation plans until Mr. Bowen could resolve that visa problem, state-side. Ms. Bowen chose to reschedule all of their one-way tickets for two months later. The Court found that Ms. Bowen consented to Patrick's departure with Mr. Bowen, and the scope of this consent was that Patrick would depart for the United States with his father, as part of the Bowens' ultimate plan to relocate to and unify their family in the United States.

 The court noted that Article 13(a) of the Hague Convention sets forth the defenses of consent and acquiescence, when it provides that even if the court finds that the child has been wrongfully removed or retained, the court is not required to order the return of the child if the respondent establishes that "the person ... having
the care of the person of the child ... had consented to or subsequently
acquiesced in the removal or retention." Hague Convention art. 13(a)."The consent defense involves the petitioner's conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention." Baxter, 423 F.3d at 371. The Court found that Ms.
Bowen's actions demonstrated not only her consent to Patrick's removal, but "a
consistent attitude of acquiescence over a significant period of time."

The Court concluded that there was insufficient record evidence for the Court to conclude that the return of the child to Northern Ireland would "put[ ] the child in imminent danger," nor did the record reveal any "serious abuse or neglect, or extraordinary emotional dependence, when the court in [Northern Ireland], for whatever reason, may be incapable or unwilling to give the child adequate protection."See  Baxter, 423 F.3d at 373.

The Court noted that the GL' s reports on Patrick shed light on Patrick's views on returning to Northern Ireland, and demonstrated that Patrick has attained a degree of maturity at which it was appropriate for this Court to take account of those views. Contrary to his father's testimony, Patrick explained that "he may have seen a little bit [of racism] himself at school but it did not appear to be a significant issue for him."  According to the GL, during her first two visits with Patrick, he actually believed his mother and siblings were coming to the United States in 2014, and "stated that he d[id] not want to live in Northern Ireland, although he would like to visit it again." After the December 2013 evidentiary hearing, the GL visited Patrick again.  Patrick was made aware that his mother and siblings would not be relocating to the United States. It was the GL' s conclusion after her third visit with Patrick that he was sad about this development, and sad about the separation of his family. Nevertheless, the GL stated that Patrick continued to express his desire to stay in the United States.  The GL concluded that Patrick, at 10, "appears to be a young boy of at least average intelligence and maturity," who "understands that his parents are not likely to reconcile and that his mother and siblings are not coming to the United States to live," and acknowledges that he is sad about the disunion of his family but "[r]egardless of these feelings, however, he remains certain that he wants to stay in the United States, a relatively mature stance for a 10-year-old who has not seen his mother or siblings for over a year."  The GL found that Patrick's reasons for not wanting to return to Northern Ireland were "fairly well-grounded in the world of a ten year-old, i.e., that he was born in the United States, that he would be sad if he had to return to Ireland, that he feels closer to his father than his mother and that the racial mix of the population is different in his present environment than it is in Ireland."  The GL concluded that it did not appear that any undue influence was imposed on Patrick in order to shape his desire to stay in this country, and importantly, Patrick has never wavered, either prior to or after learning that his mother was not moving to the United States, in his position from the outset of this litigation that he wants to remain in the United States.  Importantly, the GL noted that Patrick "appears to have considered the short and long term impact of leaving the country of his birth and living with his mother and not his father."

  The Court found that the GL' s conclusions about Patrick's degree of maturity
was consistent with the record as a whole. The district court noted that in its seminal decision on the "wishes of the child" defense, the Tsui court cautioned that a court should not find that such a defense has been established when "it was the passage of time during the years of wrongful retention and litigation of this case that created [the child]'s desire to remain in Pittsburgh," because if the court applied the defense in such a case, "it would encourage parents to wrongfully retain a child for as long as possible." Tsui, 499 F.3d at 280. However, here, the record was  devoid of any indication that the passage of time generated Patrick's desire to remain in the country of his birth, or that the passage of time was going to change or is going to change Patrick's desire to remain in the country of his birth. Patrick's wish to remain in the United States, coupled with Ms. Bowen's actions demonstrating her consent with Patrick's move to the United States with Mr. Bowen, and with Ms. Bowen's acquiescence, at least until her letter to Mr. Bowen in November of 2012, revealed that while Ms. Bowen had established her prima facie case of wrongful removal, Mr. Bowen has proven (when considered separately, and as to the last, in conjunction with one another) the affirmative defenses of consent, acquiescence, and the "wishes of the child," which counseled that the Court deny Ms. Bowen's Verified Petition.