In Leser v Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) Respondent Alena Berridge relocated to Denver, Colorado from the Czech Republic with her two children. Subsequently, Petitioner Max Joseph Leser, Respondent's ex-husband and father of the children, filed a petition in the United States District Court seeking return of the children to the Czech Republic pursuant to the Hague Convention and ICARA. The district court held a hearing on the petition, at which it addressed Respondent's motion to continue. Respondent filed the motion to continue in response to a summons for the children to attend a custody hearing in the Czech court on March 24, 2011. Respondent indicated that the Czech court at the March hearing intended to rule on Petitioner's and Respondent's cross motions for "custody rights," "contact rights," and "the right to determine residence ." The district court asked respondent: "[Y]our position with regard to this ICARA action is that it is the Czech court that should make this determination and [you are] willing to take the children back to [the Czech Republic] so that indeed that determination can be made. Is that correct?"Respondent answered affirmatively. Petitioner also agreed that the Czech court was the court where all custody issues should be heard, including whether Respondent had the right to relocate the children to the United States. The district court asked Respondent if she planned to attend the March hearing in the Czech Republic. Respondent stated she would attend if Homeland Security would allow her to leave the United States without adverse effect to her visa status. Before pronouncing its decision, the district court stated it did not believe the real issue before the court was whether Respondent had wrongfully removed her children to the United States. Rather, the district court believed the issues to be which court, the Czech court or United States court, should interpret the custody orders and determine whether Respondent violated those custody orders. Because both parents agreed the Czech court was the appropriate court to hear these issues, the district court, pursuant to the stipulation and without objection, ordered the children returned to the Czech Republic for the March 24, 2011 hearing. The district court made no finding as to wrongful removal as required by the Hague Convention. Rather than granting Respondent's motion to continue, however, the court asked the parties to submit a proposed order setting forth the court's ruling. Respondent agreed to prepare the order and stated she could submit it to Petitioner the next day. But because the parties could not agree to the wording of a proposed order, both Respondent and Petitioner filed separate proposed orders with the court. The court then drafted and entered an order granting the petition for return of the children based not on wrongful removal, but on the parties' stipulation that the children would be present for the hearing in the Czech Republic: “ The Respondent represents that the children will be present for the hearing.... Given the parties' stipulation, there was no disputed issue for this Court to determine. Accordingly, pursuant to the authority of the Court under 42 U.S.C.
11603(a), it is ordered that (1) The Petition (# 1) is granted. (2) Respondent Alena
Berridge f/k/a Alena Leserova shall return the minor children, [M.L. and O.L.], to the
jurisdiction of the Czech Republic within such time as is necessary to participate in the
Czech court's hearing on March 24, 2011. The children shall remain within the
jurisdiction of such court until directed or authorized otherwise by such court. The
return of the children shall be expeditiously reported to the appropriate Central
Authority.”
Respondent appealed. Once the children arrived in the Czech Republic, the Czech courts seized the children's passports and issued new custody orders. The Tenth Circuit dismissed the appeal as moot. On appeal, Respondent asserted the district court order was ultra vires because the district court lacked jurisdiction to grant the petition. Respondent contended ICARA authorizes United States district courts "to order the return of a child to the country of habitual residence upon a finding of wrongful removal." According to Respondent, "the [district] court lacked jurisdiction to order anything" without a finding of wrongful removal. Thus, Respondent argued the district court erred when it ordered the children to attend and participate in legal proceedings in the Czech Republic despite the fact she agreed to it. Although Respondent acknowledged the district court did not make an explicit finding of wrongful removal of the children, at oral argument Respondent asserted that in granting the petition, the district court implicitly found wrongful removal and that such a finding was clear error based on the existing Czech custody orders.
The Tenth Circuit observed that Article III of the Constitution limits a federal court's jurisdiction to "cases and controversies." Its duty is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions. It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. A case or controversy no longer exists when it is impossible to grant any effectual relief. In this appeal, Respondent requested that the court reverse the district court order and dismiss the petition for return of children, or in the alternative, remand to the district court to hold an evidentiary hearing on the issue of wrongful removal. In discussing mootness at oral argument, Respondent criticized the district court order for "granting" the petition for return of children without a finding of wrongful removal. In making that argument, Respondent attacked the merits of the district court order. The Court held that because it could not offer Respondent any relief, it could not decide whether the district court erred in ordering Respondent to return the children to the country of habitual residence without a finding of wrongful removal, where the parents stipulated that the children would return to the Czech Republic for the hearing. The district court's order, entitled "Order for Return of Children," clearly articulated the court's belief that no disputed issues existed because of the stipulation to return the children. After "granting" the petition, the court ordered Respondent to return the children to the Czech Republic to participate in the custody hearing. The order also stated the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court." Furthermore, the district court's language that the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court" was not contrary to the parties' stipulation. Respondent expressed concern that, without reversal of the district court order, she would be in violation of the district court order if she returned to the United States with the children. The Court believed Respondent misread the district court order. Because ICARA empowers United States courts "to determine only rights under the Convention and not the merits of any underlying child custody claims," the Czech court has jurisdiction to decide custody issues-including jurisdiction to restrict the children's travel by seizing their passports. If the Czech court determines to return the children's passports and Respondent returns to the United States with the children, it envisioned no scenario where she would be in violation of the district court order. And if the children subsequently returned to the United States, Petitioner may file a second petition for the return of children if he believes such removal to the United States to be wrongful without being subject to either issue preclusion or claim preclusion. Because it concluded that the district court made no finding as to wrongful removal and because it found no language in the district court order preventing the children from returning to
the United States upon return of their passports, any ruling on the merits "would have
no effect in the world we now inhabit but would serve only to satisfy the curiosity of the
litigants about a world that once was and is no more." Wyoming, 587 F.3d at 1253. Thus, given the unique circumstances of this case, it concluded that this action was moot. Accordingly, the appeal was dismissed as moot, the district court opinion was
vacated, and the action was remanded to the district court with instructions to
dismiss the petition for lack of subject matter jurisdiction.
Thursday, December 29, 2011
Rowe v Vargason, 2011 WL 6151523 (D.Minn.) [Australia] [Federal and State Judicial Remedies]
In Rowe v Vargason, 2011 WL 6151523 (D.Minn.) the Respondent moved for a stay pending appeal. The district court noted that it may stay enforcement of a judgment while an appeal is pending pursuant to Fed.R.Civ.P. 62(c) if the following factors support such a stay: "(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The party seeking such a stay has a difficult burden. Haimdas v.. Haimdas, 720 F.Supp.2d 183,210 (E.D.N.Y.2010) (citing United States v. Private Sanitation Indus. Ass'n, 44 F.3d 1082, 1084 (2d Cir.1994)). The most important factor is the likelihood of success on the merits. Brady v. National Football League, 640 F.3d 785, 789 (8th Cir.2011). The Court found that the proper standard is a strong showing of success on the merits or substantial case on the merits, as set forth in the Hilton decision. The court analyzed the factors and denied the motion.
It found, inter alia, that the Respondent had not made a substantial case on the merits and rejected her argument that a conflict of law exists as to whether evidence of abuse of the mother is sufficient to establish the Article 13(b) defense. The Court disagreed that a conflict of law exists in the circuit courts of appeal as to the relevance of evidence concerning abuse of the mother in determining whether a grave risk of harm exists as to the child. The cases cited by Respondent on this issue applied the same standard as the Eighth Circuit. See Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000); In re Adan, 437 F.3d 381 (3d Cir.2006); Simcox v. Simcox, 511 F.3d 594, 608-09 (6th Cir.2007); Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2005). The applicable standard in the Eighth Circuit, and in the cases cited above, is whether Respondent demonstrated, by clear and convincing evidence, that there exists a grave risk that the child would be exposed to harm if returned to Australia. Accordingly, the argument that a conflict of law existed had no merit.
It found, inter alia, that the Respondent had not made a substantial case on the merits and rejected her argument that a conflict of law exists as to whether evidence of abuse of the mother is sufficient to establish the Article 13(b) defense. The Court disagreed that a conflict of law exists in the circuit courts of appeal as to the relevance of evidence concerning abuse of the mother in determining whether a grave risk of harm exists as to the child. The cases cited by Respondent on this issue applied the same standard as the Eighth Circuit. See Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000); In re Adan, 437 F.3d 381 (3d Cir.2006); Simcox v. Simcox, 511 F.3d 594, 608-09 (6th Cir.2007); Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2005). The applicable standard in the Eighth Circuit, and in the cases cited above, is whether Respondent demonstrated, by clear and convincing evidence, that there exists a grave risk that the child would be exposed to harm if returned to Australia. Accordingly, the argument that a conflict of law existed had no merit.
Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) [France] [Habitual Residence]
In Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) Nicolas F. Brosselin filed a petition for the return of his child to France. The district court held a hearing and determined that the Hague Convention did not apply to the petition because the child’s habitual residence was Oak Harbor, Washington, not France and dismissed the petition for lack of jurisdiction. Petitioner Brosselin had requested the Court issue an order compelling the return of Petitioner's and Respondent Shannon Harless's son, LT, to France. The Court observed that the Ninth Circuit has counseled that the habitual residence of an infant is determined by examining the parents' mutual, settled intent to move to a new country for a sufficiently "appreciable period of time" for the infant to acclimatize to the new country of residence. “ Petitioner has the burden to prove habitual residence by a preponderance of the evidence.
The Court found that Petitioner Nicolas Brosselin was a citizen and resident of France. Respondent Shannon Harless was a citizen of the United States of America and a legal permanent resident of France. Harless and Brosselin met in 2007 in France and began living together in France in May 2008. Harless became pregnant in January 2009 with a child conceived with Brosselin in France. Harless resided in France with Brosselin until April 2009, when she moved to Oak Harbor, Washington, and began residing with her mother. Harless gave birth to LT in October 2009 in Oak Harbor, Washington. Brosselin was present at the birth. LT had both French and American citizenship. Brosselin returned to France after the birth and organized the purchase of a new home. Emails sent by Harless to Brosselin in November, 2009, showed the house was intended to be shared by Harless, Brosselin, and their son. In December, 2009, Harless and LT travelled to France and stayed with Brosselin until February 6, 2010. On February 6, 2010, Harless and LT travelled back to Oak Harbor, Washington, and returned to Harless's mother's home. Harless held a variety of jobs during her residence in Washington in 2010. In April, 2010, Harless informed Brosselin that she had become engaged to Troy Williams in Oak Harbor. Harless did not return to France. Although the parties disputed whether Harless intended to move back to France, it was clear the relationship between Harless and Brosselin became fractured by this point in 2010. Brosselin traveled to Oak Harbor, Washington to visit LT and Harless in June 2010 for ten days. Brosselin's parents also visited LT and Harless in August 2010. Brosselin made a second trip in October 2010, at which point he proposed marriage to Harless. During this trip Brosselin appeared to have prompted Harless to consider reconnecting with Brosselin in France, but only equivocally. In November, 2010, Harless suffered a severe injury from a horse and spent multiple days in the Harborview Hospital in Seattle. During her recuperation, she continued to reconnect with Brosselin. At some point in January 2011, Harless and Brosselin agreed that Harless and LT would travel to France. On February 2, 2011, Brosselin purchased a round-trip ticket for Harless and LT for travel from February 17, 2011 to May 10, 2011. Harless testified that she was traveling to France to see if she and Brosselin could get along. Brosselin testified that Harless was returning to stay in France permanently. Amy Gumbel, another friend of Harless, spoke to Harless prior to the February 17, 2011 departure, and Harless stated that she was leaving to go back to France for a little while. Harless told Gumbel it was not intended to be an indefinite stay. Harless wrote an email to Brosselin on February 12, 2011, explaining that she believed LT needed more stability than she could offer and that she was "scared and tired." She wrote that she was "ready to start again," but that she wanted Brosselin to "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In February 17, 2011, Harless traveled to France with LT with four suitcases. She brought clothing and some toys for LT, as well as her own clothes and her horse riding saddle. She did not ship any boxes or move any furniture. She left furniture, baby items, and clothing in her mother's home in Oak Harbor, although she did not possess much. Upon her return to France with LT, took up residence with Brosselin. Although LT had his own bedroom, Harless did not consistently share a room with Brosselin. On March 6, 2011, Brosselin left on a 3-week Army mission to Libya. During their son's absence, Brosselin's parents visited Harless and LT. In this same time frame, Harless wrote to Brosselin: "It's poop to yell all the time ... lets [sic] just talk about happy things and not get into it. I'll settle things down in my own mind and heart." At some point in March, 2011, Harless discovered that Brosselin had become romantically involved with another woman in Ireland, who had been identified as Pauline. Brosselin admited to having traveled to Ireland to be with Pauline for one weekend prior to Harless's arrival in February 2011. He denied any further contact at the hearing, but email records showed he had substantial correspondence with Pauline. Emails between Brosselin and Pauline from March 7, 2011 through March 13, 2011, reveal a significant romantic relationship had developed. On March 9, 2011, Brosselin wrote to Pauline: "I absolutely did not expect to see Shannon burst back into my life with LT under her arm, settle into the house for an undetermined period of time and start to blackmail me in order to be the only woman in my life." He wrote further, "I thought all was over, that I was going to be
able to make a new start at a nice quiet life with you at my side and afterward find a
way to get my son back." He concluded, "I deeply hope at the bottom of my heart
that things can be resolved and bring us [he and Pauline] back to each other." In a second email to Pauline, sent on March 9, 2011, Brosselin wrote "I don't really know what Shannon wants for the long term .. to stay in France, or make my life so impossible that I put her on the plane with a big maintenance allowance every month
and guarantee her that I won't try to take LT away from her.". Brosselin also discovered that Harless continued her romantic relationship with Williams. Brosselin included screen captures of one online sexual encounter between Harless and Williams. A postcard sent by Harless to Williams dated March 5, 2011 includes Harless's protestation of love for Williams and her desire to return to him. In or around March 18, 2011, Harless's friend Margaret Sara Celik visited Harless and LT in France. She testified that Harless was living out her suitcase and had not settled in the home.
On April 1, 2011, Harless renewed her French business license and contacted the
Mayor of Bras sur Meuse, France, to set up a work opportunity. Harless also gave
some English teaching lessons. Harless also signed up for a one-year membership at a
horse riding facility. Harless also obtained medical insurance coverage with the aid of Brosselin in March. From March 1 through April 30, 2011, LT received in-home babysitting care and also spent time in daycare. After his return from his mission, on April 10, 2011, Brosselin called the police to intervene in a domestic dispute. He also called his parents for assistance. On May 2, 2011, Harless filed a complaint with the French police that she had been psychologically abused by Brosselin. On May 3, 2011, Harless took LT from France to Luxemburg and flew back to the United States on a new ticket purchased by her mother. Brosselin attempted to contact Harless and LT in the United States, but his phone calls and emails have been largely unanswered. Brosselin demanded the return of his child. Harless has not made LT available to his father on any consistent basis. Brosselin commenced this lawsuit on November 7, 2011.
In examining the testimony about the parties' mutual intent to move LT permanently to France, the Court found neither one to be particularly credible. Ultimately the parties' testimony showed that neither shared a mutual intent to have Harless and LT settle in France indefinitely, a fact that the other evidence in the record confirmed. The Court stated that it had to answer the question of whether LT's parents shared a settled intent to move LT to France, and that he stayed there for a sufficiently "appreciable period of time" for him to acclimatize to the new country of residence. See Holder, 392 F.3d at 1015. The Court examined the issue of settled intent before turning to the acclimatization of the child. It indicated that Petitioner must show first that he and Harless shared a settled intent to have LT abandon his residence in Oak Harbor, Washington. Holder, 392 F.3d at 1015. There is no rigid definition of "settled intent," although the Court is instructed to examine the mutual intent of the parents at the time of the translocation and shortly thereafter. Id. at 1017; Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir.2007). The parties and the Ninth Circuit agreed that when the child involved is a young infant, "we look to the subjective intent of the parents, not the children." Hodler, 392 F.3d at 1016. Where the "parents no longer agree on where the children's habitual residence has been fixed, we must look beyond the representations of the parties and consider 'all available evidence.' " (quoting Mozes v. Mozes, 329 F.3d 1067, 1076 (9th Cir.2004)). There are no bright line rules as to when habitual residence changes. Rather, a flexible application of the law to the unique facts of every case has created a continuum. On the one end of the spectrum are cases where "the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move." Mozes, 239 F.3d at 1076. This occurs where "both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country."The Court will usually find abandonment of the habitual residence in favor of the new country, even if one parent's reservations about the move stand in the way of settled intent. On the other end of the continuum "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." The present dispute before the Court fell somewhere in between these cases, though clearly closer to the latter.
The Court observed that the case was similar to Papakosmas, where the Court found a family's relocation from California to Greece did not result in the changed habitual residence of the two children in part because the parents did not appear to share a mutual intent to relocate permanently to Greece. 438 F.3d 617.The court found the four-month move was conditional where the evidence showed the husband was selling the couple's American property without his wife's knowledge, the parents lacked employment in Greece, the husband had an affair in Greece, and the couple continued to operate an American business.The case differs to the extent that both husband and wife moved together, but it shares common elements of deception between the parents as evidence lack of settled intent. It observed that a A Fourth Circuit case, Maxwell v. Maxwell, was hauntingly similar to the present case, and worth an in-depth examination. 588 F.3d 245 (4th Cir.2009). The district court and the Fourth Circuit in Maxwell agreed that Kristina and the children's move to Australia was conditional and experimental, and not a change in habitual residence. Id. at 251.The courts held that there was an absence in parental shared intent to move the children to Australia indefinitely particularly where the parties provided conflicting testimony. Looking beyond representations of the parties, the Fourth Circuit found a lack of settled intent in the absence of marital stability, the retention of ties to the United States, and the lack of stability in the home environment. The Court found these factors relevant to the present dispute and the decision in Maxwell instructive.
Brosselin was unable to show that he and Harless possessed a settled intent to
move to France indefinitely. It was clear that at some point in January 2011, Harless and Brosselin agreed that Harless would travel to France with LT. While Brosselin maintained that the stay was to be indefinite, the record appeared otherwise. Harless's intentions as to where to reside seemed in constant flux. Upon her return to Oak Harbor in 2010, she quickly became engaged to Williams and lived either with her mother or Williams. She appeared only to have reconnected with Brosselin in November 2010, at a time that she appeared to have still been engaged with Williams. Central to Harless's lack of settled intent is an email she wrote to Brosselin on February 12, 2011, five days before her departure. The email captures quite clearly the tentative intent of her trip: "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In addition to the unsettled nature of her relationship with Brosselin and Williams, and the ties she left in Washington, this email shows that Harless's return trip was more an experiment than a commitment to stay in France. Brosselin's testimony at the hearing that Harless was moving for an indefinite period is also undermined by emails he wrote to Pauline on March 9, 2011. He told Pauline that he "absolutely did not expect to see Shannon burst back into my life with LT under her arm, [and] settle into the house for an undetermined period of time...." He also wrote to Pauline that he did not "know what Shannon wants for the long term." The Court did not find credible Brosselin's testimony these emails were entirely false and only intended to protect Pauline's feelings. They were probative of the lack of certainty as to Harless's intent and reflect Brosselin's recognition of this fact. They also showed that Brosselin was still attempting to maintain his relationship with Pauline after Harless arrived in France despite the fact he testified that he was only in love with Harless at this time. Given the parties' disputed testimony, the Court, as in Maxwell, looked to other evidence that makes clear there was no shared intent. Most notably, the record showed that the relationship between Harless and Brosselin was not stable and that there was little stability in the home after Harless's arrival in February 2011. The Court did not find Brosselin's evidence of Harless's intent to remain in France convincing. Based on the record and testimony, the Court did not find a settled mutual intent to relocate to France and change LT's habitual residence. Whatever Brosselin might have wished, Harless lacked any firm commitment to live in France indefinitely. As Brosselin wrote in his emails, Harless changed her mind frequently. Neither Harless she nor Brosselin trusted each other as they both carried on relationships with other persons. Harless lived out of her suitcase, did not become settled, and the relationship was dysfunctional enough to require police intervention. It is difficult for the Court to imagine how a young child such as LT might be settled in such an environment where his parents' mood swings dominated the home environment. The Court thus concluded that LT's habitual residence has not changed from Washington to France because there was no mutual settled intent to move LT to France indefinitely. The Hague Convention did not therefore apply, and the Court dismissed the action.
The Court found that Petitioner Nicolas Brosselin was a citizen and resident of France. Respondent Shannon Harless was a citizen of the United States of America and a legal permanent resident of France. Harless and Brosselin met in 2007 in France and began living together in France in May 2008. Harless became pregnant in January 2009 with a child conceived with Brosselin in France. Harless resided in France with Brosselin until April 2009, when she moved to Oak Harbor, Washington, and began residing with her mother. Harless gave birth to LT in October 2009 in Oak Harbor, Washington. Brosselin was present at the birth. LT had both French and American citizenship. Brosselin returned to France after the birth and organized the purchase of a new home. Emails sent by Harless to Brosselin in November, 2009, showed the house was intended to be shared by Harless, Brosselin, and their son. In December, 2009, Harless and LT travelled to France and stayed with Brosselin until February 6, 2010. On February 6, 2010, Harless and LT travelled back to Oak Harbor, Washington, and returned to Harless's mother's home. Harless held a variety of jobs during her residence in Washington in 2010. In April, 2010, Harless informed Brosselin that she had become engaged to Troy Williams in Oak Harbor. Harless did not return to France. Although the parties disputed whether Harless intended to move back to France, it was clear the relationship between Harless and Brosselin became fractured by this point in 2010. Brosselin traveled to Oak Harbor, Washington to visit LT and Harless in June 2010 for ten days. Brosselin's parents also visited LT and Harless in August 2010. Brosselin made a second trip in October 2010, at which point he proposed marriage to Harless. During this trip Brosselin appeared to have prompted Harless to consider reconnecting with Brosselin in France, but only equivocally. In November, 2010, Harless suffered a severe injury from a horse and spent multiple days in the Harborview Hospital in Seattle. During her recuperation, she continued to reconnect with Brosselin. At some point in January 2011, Harless and Brosselin agreed that Harless and LT would travel to France. On February 2, 2011, Brosselin purchased a round-trip ticket for Harless and LT for travel from February 17, 2011 to May 10, 2011. Harless testified that she was traveling to France to see if she and Brosselin could get along. Brosselin testified that Harless was returning to stay in France permanently. Amy Gumbel, another friend of Harless, spoke to Harless prior to the February 17, 2011 departure, and Harless stated that she was leaving to go back to France for a little while. Harless told Gumbel it was not intended to be an indefinite stay. Harless wrote an email to Brosselin on February 12, 2011, explaining that she believed LT needed more stability than she could offer and that she was "scared and tired." She wrote that she was "ready to start again," but that she wanted Brosselin to "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In February 17, 2011, Harless traveled to France with LT with four suitcases. She brought clothing and some toys for LT, as well as her own clothes and her horse riding saddle. She did not ship any boxes or move any furniture. She left furniture, baby items, and clothing in her mother's home in Oak Harbor, although she did not possess much. Upon her return to France with LT, took up residence with Brosselin. Although LT had his own bedroom, Harless did not consistently share a room with Brosselin. On March 6, 2011, Brosselin left on a 3-week Army mission to Libya. During their son's absence, Brosselin's parents visited Harless and LT. In this same time frame, Harless wrote to Brosselin: "It's poop to yell all the time ... lets [sic] just talk about happy things and not get into it. I'll settle things down in my own mind and heart." At some point in March, 2011, Harless discovered that Brosselin had become romantically involved with another woman in Ireland, who had been identified as Pauline. Brosselin admited to having traveled to Ireland to be with Pauline for one weekend prior to Harless's arrival in February 2011. He denied any further contact at the hearing, but email records showed he had substantial correspondence with Pauline. Emails between Brosselin and Pauline from March 7, 2011 through March 13, 2011, reveal a significant romantic relationship had developed. On March 9, 2011, Brosselin wrote to Pauline: "I absolutely did not expect to see Shannon burst back into my life with LT under her arm, settle into the house for an undetermined period of time and start to blackmail me in order to be the only woman in my life." He wrote further, "I thought all was over, that I was going to be
able to make a new start at a nice quiet life with you at my side and afterward find a
way to get my son back." He concluded, "I deeply hope at the bottom of my heart
that things can be resolved and bring us [he and Pauline] back to each other." In a second email to Pauline, sent on March 9, 2011, Brosselin wrote "I don't really know what Shannon wants for the long term .. to stay in France, or make my life so impossible that I put her on the plane with a big maintenance allowance every month
and guarantee her that I won't try to take LT away from her.". Brosselin also discovered that Harless continued her romantic relationship with Williams. Brosselin included screen captures of one online sexual encounter between Harless and Williams. A postcard sent by Harless to Williams dated March 5, 2011 includes Harless's protestation of love for Williams and her desire to return to him. In or around March 18, 2011, Harless's friend Margaret Sara Celik visited Harless and LT in France. She testified that Harless was living out her suitcase and had not settled in the home.
On April 1, 2011, Harless renewed her French business license and contacted the
Mayor of Bras sur Meuse, France, to set up a work opportunity. Harless also gave
some English teaching lessons. Harless also signed up for a one-year membership at a
horse riding facility. Harless also obtained medical insurance coverage with the aid of Brosselin in March. From March 1 through April 30, 2011, LT received in-home babysitting care and also spent time in daycare. After his return from his mission, on April 10, 2011, Brosselin called the police to intervene in a domestic dispute. He also called his parents for assistance. On May 2, 2011, Harless filed a complaint with the French police that she had been psychologically abused by Brosselin. On May 3, 2011, Harless took LT from France to Luxemburg and flew back to the United States on a new ticket purchased by her mother. Brosselin attempted to contact Harless and LT in the United States, but his phone calls and emails have been largely unanswered. Brosselin demanded the return of his child. Harless has not made LT available to his father on any consistent basis. Brosselin commenced this lawsuit on November 7, 2011.
In examining the testimony about the parties' mutual intent to move LT permanently to France, the Court found neither one to be particularly credible. Ultimately the parties' testimony showed that neither shared a mutual intent to have Harless and LT settle in France indefinitely, a fact that the other evidence in the record confirmed. The Court stated that it had to answer the question of whether LT's parents shared a settled intent to move LT to France, and that he stayed there for a sufficiently "appreciable period of time" for him to acclimatize to the new country of residence. See Holder, 392 F.3d at 1015. The Court examined the issue of settled intent before turning to the acclimatization of the child. It indicated that Petitioner must show first that he and Harless shared a settled intent to have LT abandon his residence in Oak Harbor, Washington. Holder, 392 F.3d at 1015. There is no rigid definition of "settled intent," although the Court is instructed to examine the mutual intent of the parents at the time of the translocation and shortly thereafter. Id. at 1017; Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir.2007). The parties and the Ninth Circuit agreed that when the child involved is a young infant, "we look to the subjective intent of the parents, not the children." Hodler, 392 F.3d at 1016. Where the "parents no longer agree on where the children's habitual residence has been fixed, we must look beyond the representations of the parties and consider 'all available evidence.' " (quoting Mozes v. Mozes, 329 F.3d 1067, 1076 (9th Cir.2004)). There are no bright line rules as to when habitual residence changes. Rather, a flexible application of the law to the unique facts of every case has created a continuum. On the one end of the spectrum are cases where "the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move." Mozes, 239 F.3d at 1076. This occurs where "both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country."The Court will usually find abandonment of the habitual residence in favor of the new country, even if one parent's reservations about the move stand in the way of settled intent. On the other end of the continuum "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." The present dispute before the Court fell somewhere in between these cases, though clearly closer to the latter.
The Court observed that the case was similar to Papakosmas, where the Court found a family's relocation from California to Greece did not result in the changed habitual residence of the two children in part because the parents did not appear to share a mutual intent to relocate permanently to Greece. 438 F.3d 617.The court found the four-month move was conditional where the evidence showed the husband was selling the couple's American property without his wife's knowledge, the parents lacked employment in Greece, the husband had an affair in Greece, and the couple continued to operate an American business.The case differs to the extent that both husband and wife moved together, but it shares common elements of deception between the parents as evidence lack of settled intent. It observed that a A Fourth Circuit case, Maxwell v. Maxwell, was hauntingly similar to the present case, and worth an in-depth examination. 588 F.3d 245 (4th Cir.2009). The district court and the Fourth Circuit in Maxwell agreed that Kristina and the children's move to Australia was conditional and experimental, and not a change in habitual residence. Id. at 251.The courts held that there was an absence in parental shared intent to move the children to Australia indefinitely particularly where the parties provided conflicting testimony. Looking beyond representations of the parties, the Fourth Circuit found a lack of settled intent in the absence of marital stability, the retention of ties to the United States, and the lack of stability in the home environment. The Court found these factors relevant to the present dispute and the decision in Maxwell instructive.
Brosselin was unable to show that he and Harless possessed a settled intent to
move to France indefinitely. It was clear that at some point in January 2011, Harless and Brosselin agreed that Harless would travel to France with LT. While Brosselin maintained that the stay was to be indefinite, the record appeared otherwise. Harless's intentions as to where to reside seemed in constant flux. Upon her return to Oak Harbor in 2010, she quickly became engaged to Williams and lived either with her mother or Williams. She appeared only to have reconnected with Brosselin in November 2010, at a time that she appeared to have still been engaged with Williams. Central to Harless's lack of settled intent is an email she wrote to Brosselin on February 12, 2011, five days before her departure. The email captures quite clearly the tentative intent of her trip: "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In addition to the unsettled nature of her relationship with Brosselin and Williams, and the ties she left in Washington, this email shows that Harless's return trip was more an experiment than a commitment to stay in France. Brosselin's testimony at the hearing that Harless was moving for an indefinite period is also undermined by emails he wrote to Pauline on March 9, 2011. He told Pauline that he "absolutely did not expect to see Shannon burst back into my life with LT under her arm, [and] settle into the house for an undetermined period of time...." He also wrote to Pauline that he did not "know what Shannon wants for the long term." The Court did not find credible Brosselin's testimony these emails were entirely false and only intended to protect Pauline's feelings. They were probative of the lack of certainty as to Harless's intent and reflect Brosselin's recognition of this fact. They also showed that Brosselin was still attempting to maintain his relationship with Pauline after Harless arrived in France despite the fact he testified that he was only in love with Harless at this time. Given the parties' disputed testimony, the Court, as in Maxwell, looked to other evidence that makes clear there was no shared intent. Most notably, the record showed that the relationship between Harless and Brosselin was not stable and that there was little stability in the home after Harless's arrival in February 2011. The Court did not find Brosselin's evidence of Harless's intent to remain in France convincing. Based on the record and testimony, the Court did not find a settled mutual intent to relocate to France and change LT's habitual residence. Whatever Brosselin might have wished, Harless lacked any firm commitment to live in France indefinitely. As Brosselin wrote in his emails, Harless changed her mind frequently. Neither Harless she nor Brosselin trusted each other as they both carried on relationships with other persons. Harless lived out of her suitcase, did not become settled, and the relationship was dysfunctional enough to require police intervention. It is difficult for the Court to imagine how a young child such as LT might be settled in such an environment where his parents' mood swings dominated the home environment. The Court thus concluded that LT's habitual residence has not changed from Washington to France because there was no mutual settled intent to move LT to France indefinitely. The Hague Convention did not therefore apply, and the Court dismissed the action.
Walker v Walker, 2011 WL 5008533 (N.D.Ill.) [Australia] [Habitual Residence] [Abandonment and Consent]
In Walker v Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the return of his children to Australia who he claimed were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children. At the evidentiary hearing the Petitioner testified, and Respondent moved for a directed verdict. The court found based on its observations in court of Petitioner's testimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. The Court found that Respondent's testimony was entirely credible.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States.
The Respondent decided to permanently remain in the United States with the
Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children.
Petitioner did not visit the Children after he left the United States in July 2010 and
before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of
the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a
parent could establish a habitual residence of a child by the "wrongful removal and
sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States.
The Respondent decided to permanently remain in the United States with the
Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children.
Petitioner did not visit the Children after he left the United States in July 2010 and
before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of
the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a
parent could establish a habitual residence of a child by the "wrongful removal and
sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.
Friday, November 18, 2011
Tucker v Ellenby, 2011 WL 5361154 (S.D.Fla.) [Belize] [Yunger and Colorado River Abstention]
In Tucker v Ellenby, 2011 WL 5361154 (S.D.Fla.) Petitioner claimed that Respondent wrongfully removed their two-year old son, Mateo Robinson Tucker, from his habitual residence of Belize and was wrongfully retaining the child in the United States, without his consent and in violation of his custody rights over the child. Prior to the filing of the Petition, on March 29, 2011, Respondent filed a petition for dissolution of marriage in the Circuit Court of the 11th Judicial Circuit in Miami-Dade County, Florida, seeking in part sole parental custody of the child. The case was pending until very recently. Parental time-sharing was ordered but final determinations on dissolution and custody have not yet been made. It was undisputed that Petitioner did not ask the state court to order that the child be returned to Belize based on allegations of wrongful removal and retention pursuant to the Hague Convention and ICARA or on any other basis.
Respondent argued that the District Court should abstain from deciding the Petition and allow the issues raised therein to be decided in the state custody proceeding pursuant to the Younger and Colorado River abstention doctrines. The District Court rejected her argument. It observed that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.2003) (citing Colorado River, 424 U.S. at 817)). "Virtually" is not "absolutely," however, and in exceptional cases federal courts may and should withhold equitablerelief to avoid interference in state proceedings. "The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). This doctrine is an exception to the general rule of nonabstention and derives from "the vital consideration of comity between the state and national governments." 31 Foster Children, 329 F.3d at 1274 (internal citation omitted). Under Younger, abstention is warranted when (1) there is an ongoing state judicial proceeding with which the federal proceeding would interfere; (2) the state court proceeding implicates important state court interests; and (3) the state court proceeding provides the petitioner with an adequate opportunity to raise his claims. Yang v. Tsui, 416 F.3d 199, 202 (3d Cir.2005).
The District Court concluded that Respondent failed to demonstrate that its adjudication of the Hague Convention claim would interfere with the ongoing state custody proceeding, an essential showing under the first Younger factor. In deciding this issue, it looked to the relief requested and the effect it would have on the state proceeding. The adjudication of the issues raised in the Petition--whether the child's removal from Belize and his retention in this country were wrongful and, if so, whether he should be returned to Belize--would not affect the custody determination that would be made in state court pursuant to state family law. In Yang, because the Hague Convention had not been raised in the state custody proceeding, the court concluded that the federal court's adjudication of a Hague Convention petition would not interfere with the state action. As in Yang, in this case the Hague Convention was not raised in the state proceeding. Because there was no Hague Convention claim pending in the state proceeding, the adjudication of the Petition would not interfere with the state proceeding. If a custody proceeding does not have a Hague Convention claim before it, an adjudication of such a claim by the federal court would not constitute interference." The second Younger factor, whether the state proceeding implicates important state court interests, likewise did not support abstention. It could not be disputed that the
State of Florida has a strong interest in domestic relations and custody matters, but
they are not issues in the case. The Petition sought the return of the child "under the
Hague Convention and ICARA, which is a federal statutory matter." If a federal court abstained from adjudicating a Hague Convention petition simply because child custody was being disputed in state court, the Hague Convention and ICARA would be rendered meaningless. Finally, Respondent failed to establish the third Younger factor for abstention. Although the state court has jurisdiction to entertain a Hague Convention petition, Petitioner did not raise such a claim in the state proceeding. He chose instead to file the Petition in federal court. It was unlikely, therefore, that Petitioner would have an adequate opportunity to raise his Hague Convention claims in the state forum. Because Respondent failed to meet the Younger requirements for abstention, the court denied her motion on that ground.
Respondent also asked the Court to abstain from adjudicating the merits of the Petition under the Colorado River abstention doctrine. This doctrine allows abstention by a federal court in favor of a parallel state proceeding based on "considerations of '(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' " Colorado River, 424 U.S. at 817. Abstention from federal jurisdiction is the exception, however, not the rule. Lops, 140 F.3d at 942. When a parallel state court proceeding exists, the Supreme Court has outlined six factors to consider in determining whether to abstain and dismiss a federal action: (1) whether one of the courts has assumed jurisdiction over any property in issue; (2) the inconvenience of the federal forum; (3) the potential for piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal or state law will be applied; and (6) the adequacy of each forum to protect the parties' rights. No one factor is per se determinative; how each factor is weighed depends on the facts of each case. When on balance the factors weigh against abstention, the federal court should
proceed notwithstanding the existence of the a parallel state proceeding. The Court first had to determine whether the concurrent state and federal cases were in fact
parallel proceedings. The cases need not involve identical parties, issues, and requests
for relief. Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1329-30
(11th Cir.2004). Rather, they must "involve substantially the same parties and
substantially the same issues." If the cases are not parallel, the Colorado
River doctrine does not apply. The Court found that this threshold test had not been met. Arguably the parties were not substantially the same. Petitioner was asserting a wrongful retention claim against the Ellenbys in federal court whereas neither of the Ellenbys was a party to the divorce and custody proceeding in state court. Although the relief requested in federal court was the return of the child to Belize, which based on the facts of the case was directed more toward Respondent than her parents who allegedly were assisting in the wrongful retention of the child, the Ellenbys were nevertheless subject to this Court's jurisdiction, once properly invoked, under the Hague Convention. More significant to the determination was the fact that the issues were not substantially similar. The subject matter of the two cases was decidedly different. The Court could not decide issues of custody, only which jurisdiction should properly determine custody. And the state court cannot decide whether the child should be returned to Belize. The fact that the same evidence could be used in both proceedings does not mean the issues are necessarily substantially similar. Even assuming the existence of a parallel state proceeding, the Court found abstention under Colorado River inappropriate. It considered all of the factors and found that they strongly militated against abstention under the Colorado River doctrine. Accordingly, Respondent's motion was denied on this basis.
Respondent argued that the District Court should abstain from deciding the Petition and allow the issues raised therein to be decided in the state custody proceeding pursuant to the Younger and Colorado River abstention doctrines. The District Court rejected her argument. It observed that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.2003) (citing Colorado River, 424 U.S. at 817)). "Virtually" is not "absolutely," however, and in exceptional cases federal courts may and should withhold equitablerelief to avoid interference in state proceedings. "The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). This doctrine is an exception to the general rule of nonabstention and derives from "the vital consideration of comity between the state and national governments." 31 Foster Children, 329 F.3d at 1274 (internal citation omitted). Under Younger, abstention is warranted when (1) there is an ongoing state judicial proceeding with which the federal proceeding would interfere; (2) the state court proceeding implicates important state court interests; and (3) the state court proceeding provides the petitioner with an adequate opportunity to raise his claims. Yang v. Tsui, 416 F.3d 199, 202 (3d Cir.2005).
The District Court concluded that Respondent failed to demonstrate that its adjudication of the Hague Convention claim would interfere with the ongoing state custody proceeding, an essential showing under the first Younger factor. In deciding this issue, it looked to the relief requested and the effect it would have on the state proceeding. The adjudication of the issues raised in the Petition--whether the child's removal from Belize and his retention in this country were wrongful and, if so, whether he should be returned to Belize--would not affect the custody determination that would be made in state court pursuant to state family law. In Yang, because the Hague Convention had not been raised in the state custody proceeding, the court concluded that the federal court's adjudication of a Hague Convention petition would not interfere with the state action. As in Yang, in this case the Hague Convention was not raised in the state proceeding. Because there was no Hague Convention claim pending in the state proceeding, the adjudication of the Petition would not interfere with the state proceeding. If a custody proceeding does not have a Hague Convention claim before it, an adjudication of such a claim by the federal court would not constitute interference." The second Younger factor, whether the state proceeding implicates important state court interests, likewise did not support abstention. It could not be disputed that the
State of Florida has a strong interest in domestic relations and custody matters, but
they are not issues in the case. The Petition sought the return of the child "under the
Hague Convention and ICARA, which is a federal statutory matter." If a federal court abstained from adjudicating a Hague Convention petition simply because child custody was being disputed in state court, the Hague Convention and ICARA would be rendered meaningless. Finally, Respondent failed to establish the third Younger factor for abstention. Although the state court has jurisdiction to entertain a Hague Convention petition, Petitioner did not raise such a claim in the state proceeding. He chose instead to file the Petition in federal court. It was unlikely, therefore, that Petitioner would have an adequate opportunity to raise his Hague Convention claims in the state forum. Because Respondent failed to meet the Younger requirements for abstention, the court denied her motion on that ground.
Respondent also asked the Court to abstain from adjudicating the merits of the Petition under the Colorado River abstention doctrine. This doctrine allows abstention by a federal court in favor of a parallel state proceeding based on "considerations of '(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' " Colorado River, 424 U.S. at 817. Abstention from federal jurisdiction is the exception, however, not the rule. Lops, 140 F.3d at 942. When a parallel state court proceeding exists, the Supreme Court has outlined six factors to consider in determining whether to abstain and dismiss a federal action: (1) whether one of the courts has assumed jurisdiction over any property in issue; (2) the inconvenience of the federal forum; (3) the potential for piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal or state law will be applied; and (6) the adequacy of each forum to protect the parties' rights. No one factor is per se determinative; how each factor is weighed depends on the facts of each case. When on balance the factors weigh against abstention, the federal court should
proceed notwithstanding the existence of the a parallel state proceeding. The Court first had to determine whether the concurrent state and federal cases were in fact
parallel proceedings. The cases need not involve identical parties, issues, and requests
for relief. Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1329-30
(11th Cir.2004). Rather, they must "involve substantially the same parties and
substantially the same issues." If the cases are not parallel, the Colorado
River doctrine does not apply. The Court found that this threshold test had not been met. Arguably the parties were not substantially the same. Petitioner was asserting a wrongful retention claim against the Ellenbys in federal court whereas neither of the Ellenbys was a party to the divorce and custody proceeding in state court. Although the relief requested in federal court was the return of the child to Belize, which based on the facts of the case was directed more toward Respondent than her parents who allegedly were assisting in the wrongful retention of the child, the Ellenbys were nevertheless subject to this Court's jurisdiction, once properly invoked, under the Hague Convention. More significant to the determination was the fact that the issues were not substantially similar. The subject matter of the two cases was decidedly different. The Court could not decide issues of custody, only which jurisdiction should properly determine custody. And the state court cannot decide whether the child should be returned to Belize. The fact that the same evidence could be used in both proceedings does not mean the issues are necessarily substantially similar. Even assuming the existence of a parallel state proceeding, the Court found abstention under Colorado River inappropriate. It considered all of the factors and found that they strongly militated against abstention under the Colorado River doctrine. Accordingly, Respondent's motion was denied on this basis.
Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) [Denmark] [Habitual Residence] [Wishes of the Child defense]
In Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) the District Court granted the father’s petition under the Hague Convention for the return of his eight-year-old daughter to Denmark, which it found was the father's residence, the daughter's habitual residence, and the situs of the marriage, the divorce, and the creation and enforcement of the custody rights at issue.
Eight-year-old D.S.D. lived in Denmark since infancy. Her parents, Peter Dalsgaard and Denise Montoya, were divorcing, in Denmark. The parents shared joint custody of D.S.D., and under Danish law parents with joint custody must each consent to a child's remaining abroad. A March, 2011, agreement signed by both parents allowed D.S.D. to visit Montoya, who moved to the United States after the separation, from June 25, 2011, until August 1, 2011. On August 1st Dalsgaard flew to Tampa, Florida, to accompany his daughter during her return to Denmark in
accord both with the agreement and with Danish law. D.S.D. refused to return with her father; the preponderant evidence suggests Montoya and her family assented to, and perhaps fueled and encouraged, D.S.D.'s resistence. Dalsgaard returned to Denmark and gained full temporary custody of D.S.D. from the pertinent Danish authority. On September 28, 2011, Dalsgaard petitioned the District Court for D.S.D's return to Denmark under the Hague Convention on the Civil Aspects of International Child Abduction. After a hearing the court orally ordered D.S.D. returned to Dalsgaard and to Denmark on Tuesday, October 25, 2011.
Montoya exerted no effort arguing that D.S.D.'s "habitual residence" is the United States. Nor could Montoya argue with any success that no retention occurred. "[T]he term 'retention' is meant to cover the circumstances where a child has been prevented from returning to h[er] usual family and social environment." Pielage, 516 F.3d at 1288. A "retention" began when without Dalsgaard's consent Montoya kept D.S.D. in the United States and away from "her usual family and social environment" after August 1st. Montoya protested that no "intentional" or "overt" retention occurred because she merely acquiesced to D.S.D.'s desire to remain. Although whether the retention is intentional is not controlling under the Convention, Montoya signed an agreement under which her eight-year-old was due back in Denmark on August 1st. The record was devoid of evidence that Montoya insisted or even urged D.S.D. to return to Denmark--certainly nothing suggests that Montoya attempted to enforce the agreement with the persistence, authority, and persuasion typifying the responsible parent of an eight-yearold. The Convention grants Montoya no presumption of neutral (let alone pristine) motivation. The retention that began August 2nd was "wrongful" under the Convention. A retention is not "wrongful" because of an abductor's intentions; a retention is "wrongful" because of a violation of a custody right in the child's habitual residence. D.S.D.'s habitual residence is Denmark, and the question is whether Montoya retained D .S.D. in contravention of Danish law. Under Chapter 1, Section 3 of the Danish Act on Parental Responsibility: (1) If the parents have joint custody, they must agree on significant decisions regarding the child. The parent with whom the child lives can make decisions about general day-to-day matters relating to the child, including where in Denmark the child will have his or her habitual place of residence. (2) If the parents have joint custody but disagree about the custody, they both have to give their consent for the child to leave the country.... They also have
to give their consent if the child's stay abroad ... is extended beyond the agreed, presumed, or specified duration, unless an agreement has been made according to section 17(1)....Under Chapter 3, Section 17, "(1) If the parents have joint custody and disagree about which parent the child should live with, the court will decide the matter.... (2) The court can change an agreement or a decision about a child's place of residence." A letter from the Department of Family Affairs to the State Department confirmed that under Danish law "[b]oth parents must [ ] consent if a child's stay in a foreign country is extended beyond what is decided or agreed." see Familiestyrelsen, Legislation and Rules,
http://www.familiestyrelsen.dk/en/englishversion/legislationandrules/ (last visited Oct. 22, 2011); Hague Convention, Art. 14 (permitting direct judicial notice of the law of the habitual residence).
Dalsgaard and Montoya's March, 2011, agreement declared joint custody and
provided that D.S.D. will visit the United States for "specified duration[s]." Unless a Danish court orders otherwise, Danish law required that Dalsgaard consent before D.S.D. remained outside Denmark for longer than the "agreed, presumed, [ ] specified duration."
The Court found that Montoya's retention of D.S.D. violated Danish law. A Danish state administration granted Dalsgaard temporary full custody, which further proved that Montoya retained D.S.D. in violation of the law of D.S.D.'s habitual residence. Also, Dalsgaard applied for temporary full custody on August 2nd, the day that Montoya's wrongful retention of D.S.D. began. Not that Montoya challenged the point, but the order confirmed that Dalsgaard unquestionably exercised his custody rights when the wrongful retention began.
Montoya claimed that Dalsgaard consented to the retention and that D.S.D. "objects to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of [her] views." Montoya's argument that Dalsgaard consented to the retention required no attention because the only evidence of consent under the Hague Convention was the evidence that fails to show consent under Danish law, namely, the "re-assessment" provision of the March, 2011, agreement. The one difference is the burden of proof; under Article 13 of the Hague Convention and ICARA, Montoya had to demonstrate consent by a preponderance of the evidence. No evidence showed that Dalsgaard consented under Danish law to D.S.D.'s move to
the United States. That left D.S.D.'s state of mind and "degree of maturity." The burden was again Montoya's by a preponderance of the evidence, though even if D.S.D. was mature and objected to return, application of the exception was not mandatory. The Court indicated that before the evidentiary hearing, an hour and twenty minute in camera interview of D.S.D. transpired; no lawyers and no parents. Although a vibrant, cheerful, and delightful guest in chambers, D.S .D. when questioned had little to say about her parents' dispute. D.S.D. expressed in head nods and one-word sentences a preference to remain in the United States. Her reticent and laconic responses (she had plenty to say about other matters) left the depth and sophistication of her conviction, and the maturity behind her conviction, highly doubtful. Contributing to this doubt, Montoya conceded that D.S.D. was "in a lot of turmoil right now" and "has to digest a lot of things." Montoya admitted also that D.S.D.'s desire to
remain in the United States wavered. Dalsgaard asserted that D.S.D.'s preference to remain in the United States was the product of Montoya and her family's influence. Montoya denied that D.S.D. experienced untoward manipulation. Based on her testimony, however, Montoya conspicuously failed to explain to D.S.D. that D.S.D. was supposed to return to Dalsgaard on August 1st. The evidence suggested that Montoya allowed a belief to fester in D.S.D. that returning to Denmark betrayed Montoya. The point was, even if Montoya inflicted no "undue" influence, D.S.D. behaved as if she believes she must elect between her parents, and her unenviable position obviously agonized her. Head nods and monosyllables in favor of the status quo--an eight-year-old's best effort at a balance of terror–was the closest D.S.D. can get to appearing to favor neither parent. The sentiments of a perspicacious district judge addressing a Hague Convention petition for a ten-year-old boy resonate. D.S.D. was not afraid of the girlfriend, who in fact treated D.S.D. well by D.S.D.'s own account.
The Court concluded that D.S.D.'s distressing story fully justified an order to return.
Eight-year-old D.S.D. lived in Denmark since infancy. Her parents, Peter Dalsgaard and Denise Montoya, were divorcing, in Denmark. The parents shared joint custody of D.S.D., and under Danish law parents with joint custody must each consent to a child's remaining abroad. A March, 2011, agreement signed by both parents allowed D.S.D. to visit Montoya, who moved to the United States after the separation, from June 25, 2011, until August 1, 2011. On August 1st Dalsgaard flew to Tampa, Florida, to accompany his daughter during her return to Denmark in
accord both with the agreement and with Danish law. D.S.D. refused to return with her father; the preponderant evidence suggests Montoya and her family assented to, and perhaps fueled and encouraged, D.S.D.'s resistence. Dalsgaard returned to Denmark and gained full temporary custody of D.S.D. from the pertinent Danish authority. On September 28, 2011, Dalsgaard petitioned the District Court for D.S.D's return to Denmark under the Hague Convention on the Civil Aspects of International Child Abduction. After a hearing the court orally ordered D.S.D. returned to Dalsgaard and to Denmark on Tuesday, October 25, 2011.
Montoya exerted no effort arguing that D.S.D.'s "habitual residence" is the United States. Nor could Montoya argue with any success that no retention occurred. "[T]he term 'retention' is meant to cover the circumstances where a child has been prevented from returning to h[er] usual family and social environment." Pielage, 516 F.3d at 1288. A "retention" began when without Dalsgaard's consent Montoya kept D.S.D. in the United States and away from "her usual family and social environment" after August 1st. Montoya protested that no "intentional" or "overt" retention occurred because she merely acquiesced to D.S.D.'s desire to remain. Although whether the retention is intentional is not controlling under the Convention, Montoya signed an agreement under which her eight-year-old was due back in Denmark on August 1st. The record was devoid of evidence that Montoya insisted or even urged D.S.D. to return to Denmark--certainly nothing suggests that Montoya attempted to enforce the agreement with the persistence, authority, and persuasion typifying the responsible parent of an eight-yearold. The Convention grants Montoya no presumption of neutral (let alone pristine) motivation. The retention that began August 2nd was "wrongful" under the Convention. A retention is not "wrongful" because of an abductor's intentions; a retention is "wrongful" because of a violation of a custody right in the child's habitual residence. D.S.D.'s habitual residence is Denmark, and the question is whether Montoya retained D .S.D. in contravention of Danish law. Under Chapter 1, Section 3 of the Danish Act on Parental Responsibility: (1) If the parents have joint custody, they must agree on significant decisions regarding the child. The parent with whom the child lives can make decisions about general day-to-day matters relating to the child, including where in Denmark the child will have his or her habitual place of residence. (2) If the parents have joint custody but disagree about the custody, they both have to give their consent for the child to leave the country.... They also have
to give their consent if the child's stay abroad ... is extended beyond the agreed, presumed, or specified duration, unless an agreement has been made according to section 17(1)....Under Chapter 3, Section 17, "(1) If the parents have joint custody and disagree about which parent the child should live with, the court will decide the matter.... (2) The court can change an agreement or a decision about a child's place of residence." A letter from the Department of Family Affairs to the State Department confirmed that under Danish law "[b]oth parents must [ ] consent if a child's stay in a foreign country is extended beyond what is decided or agreed." see Familiestyrelsen, Legislation and Rules,
http://www.familiestyrelsen.dk/en/englishversion/legislationandrules/ (last visited Oct. 22, 2011); Hague Convention, Art. 14 (permitting direct judicial notice of the law of the habitual residence).
Dalsgaard and Montoya's March, 2011, agreement declared joint custody and
provided that D.S.D. will visit the United States for "specified duration[s]." Unless a Danish court orders otherwise, Danish law required that Dalsgaard consent before D.S.D. remained outside Denmark for longer than the "agreed, presumed, [ ] specified duration."
The Court found that Montoya's retention of D.S.D. violated Danish law. A Danish state administration granted Dalsgaard temporary full custody, which further proved that Montoya retained D.S.D. in violation of the law of D.S.D.'s habitual residence. Also, Dalsgaard applied for temporary full custody on August 2nd, the day that Montoya's wrongful retention of D.S.D. began. Not that Montoya challenged the point, but the order confirmed that Dalsgaard unquestionably exercised his custody rights when the wrongful retention began.
Montoya claimed that Dalsgaard consented to the retention and that D.S.D. "objects to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of [her] views." Montoya's argument that Dalsgaard consented to the retention required no attention because the only evidence of consent under the Hague Convention was the evidence that fails to show consent under Danish law, namely, the "re-assessment" provision of the March, 2011, agreement. The one difference is the burden of proof; under Article 13 of the Hague Convention and ICARA, Montoya had to demonstrate consent by a preponderance of the evidence. No evidence showed that Dalsgaard consented under Danish law to D.S.D.'s move to
the United States. That left D.S.D.'s state of mind and "degree of maturity." The burden was again Montoya's by a preponderance of the evidence, though even if D.S.D. was mature and objected to return, application of the exception was not mandatory. The Court indicated that before the evidentiary hearing, an hour and twenty minute in camera interview of D.S.D. transpired; no lawyers and no parents. Although a vibrant, cheerful, and delightful guest in chambers, D.S .D. when questioned had little to say about her parents' dispute. D.S.D. expressed in head nods and one-word sentences a preference to remain in the United States. Her reticent and laconic responses (she had plenty to say about other matters) left the depth and sophistication of her conviction, and the maturity behind her conviction, highly doubtful. Contributing to this doubt, Montoya conceded that D.S.D. was "in a lot of turmoil right now" and "has to digest a lot of things." Montoya admitted also that D.S.D.'s desire to
remain in the United States wavered. Dalsgaard asserted that D.S.D.'s preference to remain in the United States was the product of Montoya and her family's influence. Montoya denied that D.S.D. experienced untoward manipulation. Based on her testimony, however, Montoya conspicuously failed to explain to D.S.D. that D.S.D. was supposed to return to Dalsgaard on August 1st. The evidence suggested that Montoya allowed a belief to fester in D.S.D. that returning to Denmark betrayed Montoya. The point was, even if Montoya inflicted no "undue" influence, D.S.D. behaved as if she believes she must elect between her parents, and her unenviable position obviously agonized her. Head nods and monosyllables in favor of the status quo--an eight-year-old's best effort at a balance of terror–was the closest D.S.D. can get to appearing to favor neither parent. The sentiments of a perspicacious district judge addressing a Hague Convention petition for a ten-year-old boy resonate. D.S.D. was not afraid of the girlfriend, who in fact treated D.S.D. well by D.S.D.'s own account.
The Court concluded that D.S.D.'s distressing story fully justified an order to return.
Walker v Walker, 2011 WL 5008533 (N.D.Ill.) [Australia] [Habitual Residence] [Abandonment and Consent]
In Walker v Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the return of his children to Australia who he claimed were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children. At the evidentiary hearing the Petitioner testified, and Respondent moved for a directed verdict. The court found based on its observations in court of Petitioner's testimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. The Court found that Respondent's testimony was entirely credible.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States. The Respondent decided to permanently remain in the United States with the Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children. Petitioner did not visit the Children after he left the United States in July 2010 and before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a parent could establish a habitual residence of a child by the "wrongful removal and sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States. The Respondent decided to permanently remain in the United States with the Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children. Petitioner did not visit the Children after he left the United States in July 2010 and before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a parent could establish a habitual residence of a child by the "wrongful removal and sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.
Thursday, October 13, 2011
Rowe v Vargason, 2011 WL 4529341 (D. Minn.) [Australia] [Grave Risk of Harm] [Well Settled in New Environment] [Conditional order]
In Rowe v Vargason, 2011 WL 4529341 (D. Minn.) Petitioner, Kim William Rowe, filed a Petition for Return of Child to Australia on July 20, 2011. Petitioner and Respondent, Tammie Joan Vargason, were both citizens of Australia.
The parties met in Australia in 2005, when Respondent was 17 years old and the Petitioner was 30 years old. TJR was born in November 2006. In early 2007, they moved to Brisbane to allow Petitioner to find work different work. Petitioner found work but testified he was fired after a couple of weeks because Respondent was needy and would constantly call him at work and demand that he come home. Respondent testified that Petitioner was fired from his job because he repeatedly failed to go to work. When TJR was approximately three or four months old, Respondent began to engage in prostitution. Petitioner testified that it was Respondent's idea to become a prostitute, and that she placed an ad in the paper, announcing her services. Petitioner claimed that he did not want Respondent to engage in this activity, but that Respondent insisted. To ensure her safety, Petitioner testified that he went to "appointments" with Respondent, and waited for Respondent in the car with TJR. Respondent testified that Petitioner forced her into prostitution, that he placed the ads, collected the money and made all appointments. Respondent further testified that after just a few weeks, she arranged to move back into her mother's home so she would not have to prostitute herself anymore.
The parties returned to Dalby, where the parties were able to get their own apartment, next to Respondent's mother. A police report from October 2007 provided that there was a domestic disturbance involving the parties, and that Respondent told the police that Petitioner was domineering and controlling, and that he previously forced her into prostitution. Respondent also told the police that Petitioner would take Respondent's money, and would control what money she would receive. By May 2008, their relationship had completely deteriorated. On May 13, 2008, Petitioner came home to find that Respondent was talking with another man, her now husband, over the internet. An argument ensued, resulting in Petitioner being stabbed with a knife by Respondent. Petitioner claimed that they were arguing, and that Petitioner blocked the door to prevent Respondent from leaving with TJR. Petitioner claimed that Respondent then retrieved the kitchen knife to get Petitioner away from the door, and that during a struggle, Petitioner was stabbed. Respondent claimed that Petitioner got the knife from the kitchen and was threatening to kill her, but that she was able to get the knife away from Petitioner, and that Petitioner was stabbed during a struggle.
An Intervention Order was entered that prohibited contact. At that time, Petitioner agreed that Respondent would have custody of TJR, and that Respondent and TJR would live with Respondent's mother, as long as her mother did not drink any alcohol, as there were concerns the mother was an alcoholic. Because Respondent's mother began to drink, Respondent and TJR moved to Darwin, Australia, to live with Respondent's father. She did not notify Petitioner of this move.
Petitioner was able to locate Respondent, and the two began talking with each
other, despite the Intervention Order that prohibited such contact. Respondent
eventually moved to Morewell, Australia, after her current husband, Andrew Vargason
moved to Australia to be with Respondent. During this time, Petitioner did have not any
contact with TJR. Approximately one year later, Petitioner moved to Perth,
because he had lost his job and was unable to find another. Petitioner testified that he was also depressed, as he learned that Andrew Vargason, Respondent's husband, wanted to be TJR's father, and that he did not want Petitioner to have any contact with TJR. Petitioner testified that during this time period, he tried to commit suicide.
Petitioner testified that he tried to get the Intervention Order modified, but was
unsuccessful. Respondent testified that she received a call from Petitioner's mother, Christine Rowe, on December 19, 2009, during which Respondent was told that Petitioner was doing drugs and was planning on kidnaping TJR. In an application for an Intervention Order, Respondent made the following allegations: 1) that Petitioner's mother called and told her that Petitioner and his new girlfriend were planning on kidnaping TJR and that Petitioner was doing drugs; 2) "[Petitioner] found out I was talking to someone (my new husband) on the internet he yelled and choked me then pulled out a kitchen knife threatening to kill me while he was yelling at me I struggled to get the knife off him, he then lunged at me, it cut him (a small cut) I threw the knife, picked up my baby and ran to my mother's house down the street where I had the police called"; 3) Petitioner had raped her three times in 2006-07 in the State of Queensland; 4) Petitioner had been with girls under the age of 15 and that he is a pedophile; 5) Petitioner had forcibly shaken their son; 6) Petitioner was caught masturbating, while their son lay next to him on the bed.
The hearing on Respondent's application was held on January 8, 2010. Petitioner did not attend the hearing, although he did receive notice. An Intervention Order was entered on that date, prohibiting all contact between Petitioner and Respondent and TJR through January 7, 2012. The Order noted that Petitioner did not agree to the Order being made. After the January 2010 Intervention Order was entered, Petitioner filed a passport alert with the Australian passport authority. Shortly thereafter, Respondent filed an application for a passport for TJR. Around this time, Respondent had given birth to a daughter, and in her passport application indicated that she and her husband wanted to travel to Minnesota to visit her husband's grandmother. Respondent noted in the application that she planned on being in the United States for three months. Notwithstanding the alert filed by Petitioner, Respondent was able to obtain a passport for TJR without Petitioner's consent, under the "special circumstances" exception due to the allegations of abuse and the Intervention Order.
Respondent, with her husband and both children, left Australia on July 19, 2010.
After learning that Respondent and TJR were in the United States, and that
Respondent did not plan to return to Australia, Petitioner instituted proceedings for the
return of TJR with the Central Authority in Australia, which lead to the Petition being
filed electronically on July 19, 2011 and entered into the court docketing system on July
20, 2011.
Petitioner asserted that at the time of removal, he had rights of custody to TJR and was exercising or attempting to exercise those rights, citing to the Australia Family Law Act 1975 (Commonwealth) ss 60CA, 60CC and the Family Court Act of 1997 (State of Western Australia) 66A, 70A and 66C. Petitioner also submitted an affidavit of applicable law in accordance with the Hague Convention, executed by a lawyer of the Australian Capital Territory Supreme Court, which stated that section 69 of the Family Court Act 1997(WA) and 111B(4)(a) of the Family Law Act of 1975 is that "both parents of a child retain joint parental responsibility under Australian law and 'rights of custody' for purposes of the Convention for their child until their child reaches the age of 18 years, unless parental responsibility has expressly been taken away by an order of the court."
The Court reviewed the Intervention Order dated January 8, 2010, and
found that the Order in no way addressed parental responsibility or rights of custody. It was temporary in nature, and it responded only to specific threats alleged by the
Respondent, that were unchallenged by Petitioner at the time of issuance. Accordingly,
the Court found that the Intervention Order did not terminate Petitioner's rights of
custody to TJR.
The Court declined to find that in issuing a passport to TJR, the Australian
passport authority made a de facto determination as to Petitioner's parental rights for
purposes of a claim under the Hague Convention. There was nothing in the record
to support Respondent's assertions that the passport authority made any de facto
custody determinations for purposes of a claim under the Hague Convention.
Respondent argued that even if Petitioner did have rights of custody under the
Convention that were breached, Petitioner did not plead that he was exercising those
rights at the time and had not plead that he had or sought regular contact with TJR.
The Court observed that in determining whether a petitioner is exercising rights of custody for purposes of a claim under the Hague Convention, other courts have interpreted "exercise" very broadly. Respondent admitted that Petitioner provided support for TJR on at least one occasion. Petitioner testified that he provided regular support payments, and had made sporadic attempts to contact Respondent over the last two years. Petitioner filed a passport alert, to prevent the Respondent from obtaining a passport for TJR without his consent. While these attempts did not establish regular contact with TJR, they demonstrated that Petitioner did not clearly and unequivocally abandon his custody rights to TJR. The Court found that for purposes of Petitioner's claim under the Hague Convention, Petitioner had custody rights that he was attempting to exercise at the time, Respondent removed TJR from Australia, and that such removal was in breach of Petitioner's rights. Accordingly, the Petitioner established a prima facie claim for return of TJR to Australia.
Respondent argued that there was a grave risk that TJR's return to Australia would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Respondent claimed that Petitioner physically and psychologically abused her when they were together. Respondent testified that early in their relationship, Petitioner raped her on three occasions; once when she was three months pregnant with TJR. Respondent further alleged that Petitioner was very controlling; that he would isolate her from family and friends, and that he would control the money she received from the government, and that he forced her into prostitution. Respondent also testified that Petitioner abused her emotionally by telling her she was fat or that she looked too old. Respondent also claimed that Petitioner choked her and threatened to kill her with a knife. Respondent further alleged that on three occasions, she witnessed Petitioner shake TJR. Respondent further testified that Petitioner had inappropriate contact with minor girls on numerous occasions, and that she believed Petitioner sought out 11 year old prostitutes when he told Respondent he was going out to get food for TJR.
In support of her claim that TJR would face a grave risk of harm if returned to
Australia, Respondent presented expert testimony from Dr. Jeffrey Edleson and also offered an expert opinion from Dr. David Matthews. In response to questions from the Court, both Dr. Edleson and Dr. Matthews conceded that they did not have complete information before them concerning the abuse inflicted by Respondent's current husband on both Respondent and TJR. Respondent did not dispute that she suffered serious abuse at the hands of her husband, and evidence had been submitted showing that she had a protection order against him. Respondent testified to the fact that her husband had physically abused her, and that for a time, she and TJR could no longer live in the home she shared with her husband and her in-laws. Because neither expert had complete information before them concerning the abuse by Respondent's husband, Respondent's new relationship, and TJR's current living arrangements, the Court found their expert opinions unreliable.
Respondent's sister-in-law, Ashlee Fairbanks-Vargason, testified that she witnessed Respondent's husband's abuse towards Respondent and her children. She said she witnessed both TJR and his younger sister being injured by Andrew Vargason and that on occasion, Respondent would vent her frustration on TJR. One evening, Andrew Vargason had hit TJR with a belt, and later in the evening, Ms. Fairbanks-Vargason observed bloody welts on TJR's buttocks. She also recounted conversations she had with Respondent concerning Respondent's relationship with Petitioner. Respondent told her that the parties argued a lot, and were not good together, but that Respondent was not scared of Petitioner however, was afraid of her husband, Andrew. Ms. Fairbanks-Vargason also testified that Respondent had told her that she lied about some documents in order to get a passport for TJR, and that she indicated that the allegations of prostitution was one of the false documents, as was the contention that Andrew's grandmother was dying. Ms. Fairbanks-Vargason testified that Respondent had, before this Petition was filed, told her that she considered trying to work out an agreement with Petitioner to allow them to share custody of TJR and Respondent talked about sending TJR to Australia full- time. She was also aware that the parties spoke frequently on the telephone. Ms. Fairbanks-Vargason also testified that Respondent had been involved with another man, Jonathan Jackson, since March or April, 2011. Ms. Fairbanks-Vargason testified that in May 2011, Andrew's mother asked both Respondent and her son to leave her home. Respondent and TJR left the Vargason home, without her young daughter, and went to Jackson's home on a reservation near Detroit Lakes. Respondent had called her and asked her to pick up TJR, because she did not believe TJR was safe there, and that child protection had been there. TJR was retrieved from the Jackson home, but Respondent remained there with Mr. Jackson, instead of leaving with TJR. Respondent also told her that Mr. Jackson was very controlling and that he had pushed her and has gotten physical during arguments.
The District Court observed that in determining whether the Article 13(b) exception applies, the Court must also take into consideration "the people and circumstances awaiting that child in the country of [the child's] habitual residence." Nunez-Escudero 58 F.3d at 378. Petitioner informed the Court that he currently lived in Perth, Australia, in a home with his fiancee and their child, and that TJR would have his own room in this house. The evidence shows, however, that TJR had never visited Perth, and had not met any of Petitioner's family or his fiancee.
The Court noted that Respondent told her sister-in-law that she was not scared of Petitioner, and that she considered sending TJR to Australia during summers, or during the school year, or even full-time. The fact that Respondent did not fear Petitioner was further supported by the fact that, despite Intervention Orders prohibiting contact, the parties frequently contacted each other, and Respondent never reported such contact to the police.
Although there was evidence that while they were together, the parties had a contentious relationship, and that Petitioner physically and emotionally abused Respondent, the Court stated that the Article 13(b) exception applies only where the evidence is clear and convincing that the child is subject to a grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation, if returned to Australia. On the record before the Court, the evidence did not meet this threshold.
The Court observed that Article 12 of the Hague Convention provides that where the petition is filed more than one year after the alleged wrongful removal of the child, return is not warranted if it is demonstrated, by a preponderance of the evidence, that the child is now settled in his new environment. In this case, the Respondent left Australia on July 19, 2010. Counsel for Petitioner submitted the Petition, Exhibits and IFP Application to the Clerks Office on the evening of July 19, 2011, but the case was not opened until July 20, 2011, pursuant to the Electronic Case Filing Procedures for the District Court, Section II(A)(2)(d). Assuming, without deciding, that the action was filed more than a year after the wrongful removal and the well-settled exception applied, the Court found that at this time, Respondent failed to establish that TJR was well-settled in Minnesota. TJR was almost five years old, and he left Australia at age three. Respondent admitted that her husband was physically abusive towards her, and there was testimony that her husband physically abused TJR as well. Respondent was now separated from her husband, but was involved with another man, who, as told to Respondent's sister-in-law, was controlling and physical during arguments.
Respondent testified that she had since moved into a safe, undisclosed location, had separated from her husband, and had enrolled TJR in school and was trying to obtain employment. This evidence, was not enough to show that at this time, TJR was
well-settled, given the uncertainties that existed due to Respondent's pending divorce,
potential custody issues concerning Respondent's young daughter, and Respondent's
unemployed status.
The Court observed that despite the fact that the parties had been apart since May 2008, and Intervention Orders have been entered, neither party commenced family court proceedings in Australia to make the appropriate custody determinations concerning TJR. The Court believed that such proceedings must be commenced in Australia, prior to TJR's return, to ensure that the Australian court system will be able to assert jurisdiction over the parties and TJR, and to enter the appropriate orders providing for a swift resolution of custody issues and to see to TJR's well-being. The Court granted the Petition, contingent upon Petitioner providing proof to the Court, within thirty days of the date of its Order, that he had commenced child custody proceedings in Australia.
The parties met in Australia in 2005, when Respondent was 17 years old and the Petitioner was 30 years old. TJR was born in November 2006. In early 2007, they moved to Brisbane to allow Petitioner to find work different work. Petitioner found work but testified he was fired after a couple of weeks because Respondent was needy and would constantly call him at work and demand that he come home. Respondent testified that Petitioner was fired from his job because he repeatedly failed to go to work. When TJR was approximately three or four months old, Respondent began to engage in prostitution. Petitioner testified that it was Respondent's idea to become a prostitute, and that she placed an ad in the paper, announcing her services. Petitioner claimed that he did not want Respondent to engage in this activity, but that Respondent insisted. To ensure her safety, Petitioner testified that he went to "appointments" with Respondent, and waited for Respondent in the car with TJR. Respondent testified that Petitioner forced her into prostitution, that he placed the ads, collected the money and made all appointments. Respondent further testified that after just a few weeks, she arranged to move back into her mother's home so she would not have to prostitute herself anymore.
The parties returned to Dalby, where the parties were able to get their own apartment, next to Respondent's mother. A police report from October 2007 provided that there was a domestic disturbance involving the parties, and that Respondent told the police that Petitioner was domineering and controlling, and that he previously forced her into prostitution. Respondent also told the police that Petitioner would take Respondent's money, and would control what money she would receive. By May 2008, their relationship had completely deteriorated. On May 13, 2008, Petitioner came home to find that Respondent was talking with another man, her now husband, over the internet. An argument ensued, resulting in Petitioner being stabbed with a knife by Respondent. Petitioner claimed that they were arguing, and that Petitioner blocked the door to prevent Respondent from leaving with TJR. Petitioner claimed that Respondent then retrieved the kitchen knife to get Petitioner away from the door, and that during a struggle, Petitioner was stabbed. Respondent claimed that Petitioner got the knife from the kitchen and was threatening to kill her, but that she was able to get the knife away from Petitioner, and that Petitioner was stabbed during a struggle.
An Intervention Order was entered that prohibited contact. At that time, Petitioner agreed that Respondent would have custody of TJR, and that Respondent and TJR would live with Respondent's mother, as long as her mother did not drink any alcohol, as there were concerns the mother was an alcoholic. Because Respondent's mother began to drink, Respondent and TJR moved to Darwin, Australia, to live with Respondent's father. She did not notify Petitioner of this move.
Petitioner was able to locate Respondent, and the two began talking with each
other, despite the Intervention Order that prohibited such contact. Respondent
eventually moved to Morewell, Australia, after her current husband, Andrew Vargason
moved to Australia to be with Respondent. During this time, Petitioner did have not any
contact with TJR. Approximately one year later, Petitioner moved to Perth,
because he had lost his job and was unable to find another. Petitioner testified that he was also depressed, as he learned that Andrew Vargason, Respondent's husband, wanted to be TJR's father, and that he did not want Petitioner to have any contact with TJR. Petitioner testified that during this time period, he tried to commit suicide.
Petitioner testified that he tried to get the Intervention Order modified, but was
unsuccessful. Respondent testified that she received a call from Petitioner's mother, Christine Rowe, on December 19, 2009, during which Respondent was told that Petitioner was doing drugs and was planning on kidnaping TJR. In an application for an Intervention Order, Respondent made the following allegations: 1) that Petitioner's mother called and told her that Petitioner and his new girlfriend were planning on kidnaping TJR and that Petitioner was doing drugs; 2) "[Petitioner] found out I was talking to someone (my new husband) on the internet he yelled and choked me then pulled out a kitchen knife threatening to kill me while he was yelling at me I struggled to get the knife off him, he then lunged at me, it cut him (a small cut) I threw the knife, picked up my baby and ran to my mother's house down the street where I had the police called"; 3) Petitioner had raped her three times in 2006-07 in the State of Queensland; 4) Petitioner had been with girls under the age of 15 and that he is a pedophile; 5) Petitioner had forcibly shaken their son; 6) Petitioner was caught masturbating, while their son lay next to him on the bed.
The hearing on Respondent's application was held on January 8, 2010. Petitioner did not attend the hearing, although he did receive notice. An Intervention Order was entered on that date, prohibiting all contact between Petitioner and Respondent and TJR through January 7, 2012. The Order noted that Petitioner did not agree to the Order being made. After the January 2010 Intervention Order was entered, Petitioner filed a passport alert with the Australian passport authority. Shortly thereafter, Respondent filed an application for a passport for TJR. Around this time, Respondent had given birth to a daughter, and in her passport application indicated that she and her husband wanted to travel to Minnesota to visit her husband's grandmother. Respondent noted in the application that she planned on being in the United States for three months. Notwithstanding the alert filed by Petitioner, Respondent was able to obtain a passport for TJR without Petitioner's consent, under the "special circumstances" exception due to the allegations of abuse and the Intervention Order.
Respondent, with her husband and both children, left Australia on July 19, 2010.
After learning that Respondent and TJR were in the United States, and that
Respondent did not plan to return to Australia, Petitioner instituted proceedings for the
return of TJR with the Central Authority in Australia, which lead to the Petition being
filed electronically on July 19, 2011 and entered into the court docketing system on July
20, 2011.
Petitioner asserted that at the time of removal, he had rights of custody to TJR and was exercising or attempting to exercise those rights, citing to the Australia Family Law Act 1975 (Commonwealth) ss 60CA, 60CC and the Family Court Act of 1997 (State of Western Australia) 66A, 70A and 66C. Petitioner also submitted an affidavit of applicable law in accordance with the Hague Convention, executed by a lawyer of the Australian Capital Territory Supreme Court, which stated that section 69 of the Family Court Act 1997(WA) and 111B(4)(a) of the Family Law Act of 1975 is that "both parents of a child retain joint parental responsibility under Australian law and 'rights of custody' for purposes of the Convention for their child until their child reaches the age of 18 years, unless parental responsibility has expressly been taken away by an order of the court."
The Court reviewed the Intervention Order dated January 8, 2010, and
found that the Order in no way addressed parental responsibility or rights of custody. It was temporary in nature, and it responded only to specific threats alleged by the
Respondent, that were unchallenged by Petitioner at the time of issuance. Accordingly,
the Court found that the Intervention Order did not terminate Petitioner's rights of
custody to TJR.
The Court declined to find that in issuing a passport to TJR, the Australian
passport authority made a de facto determination as to Petitioner's parental rights for
purposes of a claim under the Hague Convention. There was nothing in the record
to support Respondent's assertions that the passport authority made any de facto
custody determinations for purposes of a claim under the Hague Convention.
Respondent argued that even if Petitioner did have rights of custody under the
Convention that were breached, Petitioner did not plead that he was exercising those
rights at the time and had not plead that he had or sought regular contact with TJR.
The Court observed that in determining whether a petitioner is exercising rights of custody for purposes of a claim under the Hague Convention, other courts have interpreted "exercise" very broadly. Respondent admitted that Petitioner provided support for TJR on at least one occasion. Petitioner testified that he provided regular support payments, and had made sporadic attempts to contact Respondent over the last two years. Petitioner filed a passport alert, to prevent the Respondent from obtaining a passport for TJR without his consent. While these attempts did not establish regular contact with TJR, they demonstrated that Petitioner did not clearly and unequivocally abandon his custody rights to TJR. The Court found that for purposes of Petitioner's claim under the Hague Convention, Petitioner had custody rights that he was attempting to exercise at the time, Respondent removed TJR from Australia, and that such removal was in breach of Petitioner's rights. Accordingly, the Petitioner established a prima facie claim for return of TJR to Australia.
Respondent argued that there was a grave risk that TJR's return to Australia would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Respondent claimed that Petitioner physically and psychologically abused her when they were together. Respondent testified that early in their relationship, Petitioner raped her on three occasions; once when she was three months pregnant with TJR. Respondent further alleged that Petitioner was very controlling; that he would isolate her from family and friends, and that he would control the money she received from the government, and that he forced her into prostitution. Respondent also testified that Petitioner abused her emotionally by telling her she was fat or that she looked too old. Respondent also claimed that Petitioner choked her and threatened to kill her with a knife. Respondent further alleged that on three occasions, she witnessed Petitioner shake TJR. Respondent further testified that Petitioner had inappropriate contact with minor girls on numerous occasions, and that she believed Petitioner sought out 11 year old prostitutes when he told Respondent he was going out to get food for TJR.
In support of her claim that TJR would face a grave risk of harm if returned to
Australia, Respondent presented expert testimony from Dr. Jeffrey Edleson and also offered an expert opinion from Dr. David Matthews. In response to questions from the Court, both Dr. Edleson and Dr. Matthews conceded that they did not have complete information before them concerning the abuse inflicted by Respondent's current husband on both Respondent and TJR. Respondent did not dispute that she suffered serious abuse at the hands of her husband, and evidence had been submitted showing that she had a protection order against him. Respondent testified to the fact that her husband had physically abused her, and that for a time, she and TJR could no longer live in the home she shared with her husband and her in-laws. Because neither expert had complete information before them concerning the abuse by Respondent's husband, Respondent's new relationship, and TJR's current living arrangements, the Court found their expert opinions unreliable.
Respondent's sister-in-law, Ashlee Fairbanks-Vargason, testified that she witnessed Respondent's husband's abuse towards Respondent and her children. She said she witnessed both TJR and his younger sister being injured by Andrew Vargason and that on occasion, Respondent would vent her frustration on TJR. One evening, Andrew Vargason had hit TJR with a belt, and later in the evening, Ms. Fairbanks-Vargason observed bloody welts on TJR's buttocks. She also recounted conversations she had with Respondent concerning Respondent's relationship with Petitioner. Respondent told her that the parties argued a lot, and were not good together, but that Respondent was not scared of Petitioner however, was afraid of her husband, Andrew. Ms. Fairbanks-Vargason also testified that Respondent had told her that she lied about some documents in order to get a passport for TJR, and that she indicated that the allegations of prostitution was one of the false documents, as was the contention that Andrew's grandmother was dying. Ms. Fairbanks-Vargason testified that Respondent had, before this Petition was filed, told her that she considered trying to work out an agreement with Petitioner to allow them to share custody of TJR and Respondent talked about sending TJR to Australia full- time. She was also aware that the parties spoke frequently on the telephone. Ms. Fairbanks-Vargason also testified that Respondent had been involved with another man, Jonathan Jackson, since March or April, 2011. Ms. Fairbanks-Vargason testified that in May 2011, Andrew's mother asked both Respondent and her son to leave her home. Respondent and TJR left the Vargason home, without her young daughter, and went to Jackson's home on a reservation near Detroit Lakes. Respondent had called her and asked her to pick up TJR, because she did not believe TJR was safe there, and that child protection had been there. TJR was retrieved from the Jackson home, but Respondent remained there with Mr. Jackson, instead of leaving with TJR. Respondent also told her that Mr. Jackson was very controlling and that he had pushed her and has gotten physical during arguments.
The District Court observed that in determining whether the Article 13(b) exception applies, the Court must also take into consideration "the people and circumstances awaiting that child in the country of [the child's] habitual residence." Nunez-Escudero 58 F.3d at 378. Petitioner informed the Court that he currently lived in Perth, Australia, in a home with his fiancee and their child, and that TJR would have his own room in this house. The evidence shows, however, that TJR had never visited Perth, and had not met any of Petitioner's family or his fiancee.
The Court noted that Respondent told her sister-in-law that she was not scared of Petitioner, and that she considered sending TJR to Australia during summers, or during the school year, or even full-time. The fact that Respondent did not fear Petitioner was further supported by the fact that, despite Intervention Orders prohibiting contact, the parties frequently contacted each other, and Respondent never reported such contact to the police.
Although there was evidence that while they were together, the parties had a contentious relationship, and that Petitioner physically and emotionally abused Respondent, the Court stated that the Article 13(b) exception applies only where the evidence is clear and convincing that the child is subject to a grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation, if returned to Australia. On the record before the Court, the evidence did not meet this threshold.
The Court observed that Article 12 of the Hague Convention provides that where the petition is filed more than one year after the alleged wrongful removal of the child, return is not warranted if it is demonstrated, by a preponderance of the evidence, that the child is now settled in his new environment. In this case, the Respondent left Australia on July 19, 2010. Counsel for Petitioner submitted the Petition, Exhibits and IFP Application to the Clerks Office on the evening of July 19, 2011, but the case was not opened until July 20, 2011, pursuant to the Electronic Case Filing Procedures for the District Court, Section II(A)(2)(d). Assuming, without deciding, that the action was filed more than a year after the wrongful removal and the well-settled exception applied, the Court found that at this time, Respondent failed to establish that TJR was well-settled in Minnesota. TJR was almost five years old, and he left Australia at age three. Respondent admitted that her husband was physically abusive towards her, and there was testimony that her husband physically abused TJR as well. Respondent was now separated from her husband, but was involved with another man, who, as told to Respondent's sister-in-law, was controlling and physical during arguments.
Respondent testified that she had since moved into a safe, undisclosed location, had separated from her husband, and had enrolled TJR in school and was trying to obtain employment. This evidence, was not enough to show that at this time, TJR was
well-settled, given the uncertainties that existed due to Respondent's pending divorce,
potential custody issues concerning Respondent's young daughter, and Respondent's
unemployed status.
The Court observed that despite the fact that the parties had been apart since May 2008, and Intervention Orders have been entered, neither party commenced family court proceedings in Australia to make the appropriate custody determinations concerning TJR. The Court believed that such proceedings must be commenced in Australia, prior to TJR's return, to ensure that the Australian court system will be able to assert jurisdiction over the parties and TJR, and to enter the appropriate orders providing for a swift resolution of custody issues and to see to TJR's well-being. The Court granted the Petition, contingent upon Petitioner providing proof to the Court, within thirty days of the date of its Order, that he had commenced child custody proceedings in Australia.
Thursday, September 29, 2011
Lockhart v Smith, 2011 WL 4402361 (D.Me.) [Canada] [Wishes of the Child]
In Lockhart v Smith, 2011 WL 4402361 (D.Me.) the District Court granted Kimberly Ann Lockhart’s second Petition for Return of her child. In 2006, the Court held an evidentiary hearing on her first Petition for Return and it incorporated by reference the factual findings from its earlier opinion, Lockhart v. Smith, 2006 WL 3091295 (D.Me. Oct. 20, 2006). Petitioner was a citizen of Canada and resided in Nova Scotia, Canada. She was the mother of S.P.S. and G.T.S. Respondent Philip Gavin Smith ("Smith") was a citizen of the United States and resided in Maine. He was their father. S.P.S. was the eleven year old daughter of Lockhart and Smith. G.T.S. was their twelve year old son. They each had dual citizenship in the United States and Canada.
Petitioner and Respondent stipulated that Petitioner was the custodian of the Children; that Canada was their habitual residence; that Petitioner was exercising or attempting to exercise her custodial rights at the time she filed her Petition; and that Petitioner made a prima facie case against Respondent for wrongful retention under the Hague Convention. In addition the Respondent waived all other defenses under the Hague Convention and stipulated that his sole defense in this action was the "child's wishes" defense under Article 13 of the Hague Convention.
The District Court indicated that it had interviewed the Children in camera. When it interviewed S.P.S. in camera, it found her to be delightful and mature. She expressed that she was happy to return home to Canada, that she missed her friends in Canada, and that she was ready to return to school in Canada. S.P.S. expressed no negative views about returning to Canada and she did not object to returning to Canada. When it interviewed G.T.S. in camera, it found him to be delightful and mature as well. He also expressed that he was happy to return home to Canada, that he missed his friend in Canada, and that he was ready to return to school in Canada. G.T.S. expressed no negative views about returning to Canada and he did not object to returning to Canada.
The District Court found that Petitioner had made a prima facie case against Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "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 views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expressed no negative views about returning to Canada and he did not object to returning to Canada.
The District Court found that Petitioner had made a prima facie case against Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "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 views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expe views about returning to Canada, and he expressed that he would be happy to return to Canada. The Court found that Respondent has failed to establish that the Children objected to being returned to Canada, and granted the Petition.
Petitioner and Respondent stipulated that Petitioner was the custodian of the Children; that Canada was their habitual residence; that Petitioner was exercising or attempting to exercise her custodial rights at the time she filed her Petition; and that Petitioner made a prima facie case against Respondent for wrongful retention under the Hague Convention. In addition the Respondent waived all other defenses under the Hague Convention and stipulated that his sole defense in this action was the "child's wishes" defense under Article 13 of the Hague Convention.
The District Court indicated that it had interviewed the Children in camera. When it interviewed S.P.S. in camera, it found her to be delightful and mature. She expressed that she was happy to return home to Canada, that she missed her friends in Canada, and that she was ready to return to school in Canada. S.P.S. expressed no negative views about returning to Canada and she did not object to returning to Canada. When it interviewed G.T.S. in camera, it found him to be delightful and mature as well. He also expressed that he was happy to return home to Canada, that he missed his friend in Canada, and that he was ready to return to school in Canada. G.T.S. expressed no negative views about returning to Canada and he did not object to returning to Canada.
The District Court found that Petitioner had made a prima facie case against Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "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 views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expressed no negative views about returning to Canada and he did not object to returning to Canada.
The District Court found that Petitioner had made a prima facie case against Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "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 views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expe views about returning to Canada, and he expressed that he would be happy to return to Canada. The Court found that Respondent has failed to establish that the Children objected to being returned to Canada, and granted the Petition.
Sunday, September 11, 2011
Norinder v Fuentes, --- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) [Sweden] [Discovery] [Habitual Residence] [Attorneys Fees]
In Norinder v Fuentes, --- F.3d ----, 2011 WL 3966153 (7th Cir.(Ill.)) Petitioner, Magnus Norinder, filed suit against his wife, Sharon Fuentes, seeking the return of their son, JRN, to Sweden. Norinder was from Sweden and Fuentes was from the United States. Norinder asserted that Sweden was his habitual residence, and that Fuentes abducted JRN to the United States in violation of the Convention. The district court agreed and ordered JRN returned to Sweden, where Norinder was living and where Fuentes and JRN lived until recently. The Seventh Circuit affirmed.
Norinder and Fuentes, who were both physicians, met on the Internet in 2006. Norinder, a citizen of Sweden, lived in Bors, Sweden at the time; and Fuentes, who was a citizen of the United States, lived in Texas. In February 2007, Fuentes visited Sweden and the couple got engaged; in April, she returned and they conceived a child; in August they were married in Sweden. After the wedding, Fuentes returned to Houston, Texas, to complete a fellowship in pathology. Norinder was chief physician of a hospital in Bors at the time. He took paternity leave in January 2008 to join Fuentes in Houston. JRN was born there the next month. In July, the whole family moved to Sweden. On March 17, 2010, under the guise of a two-week vacation to Texas, Fuentes traveled to the United States with JRN. On April 7, 2010--the day she was scheduled to return to Sweden--Fuentes sent Norinder a text message saying that she was keeping their son and planned to remain in the United States. Norinder hired a lawyer. Eventually, he found them in southern Illinois, and on May 26, 2010, his lawyer there filed the petition for return of the child.
Fuentes's first argument on appeal was that the district court improperly cut off her pretrial discovery, thereby seriously undermining her ability to show that Norinder posed a grave risk of harm to JRN. In her view the district court erred by refusing to apply the Federal Rules of Civil Procedure to the proceedings. The Court of Appeals observed that the district court was properly trying to move this case along on an expedited basis. Norinder's petition was filed on May 26, 2010, and on June 4 the district court set June 22 as the date for the start of a bench trial. On June 8, Fuentes hired a lawyer. A few days later, on June 15, Norinder filed a discovery plan that recommended completing discovery by June 18. On June 16, Fuentes's lawyer filed his first appearance in the case. On June 21, the day before trial was set to begin, Fuentes filed a response to Norinder's petition and in it requested additional discovery for the first time. She said that the court's current schedule would interfere with her effort to gather evidence needed for trial, and her lawyer submitted an affidavit outlining what she was requesting: medical records relating to Norinder's alleged alcohol and drug use; documents that might reveal past domestic violence; Norinder's prescription drug records; and all documentation kept by his employer. On June 22, at the first of five hearings held by the district court over a month-long period, Fuentes requested a continuance, urging again that she needed the additional discovery to proceed with the case. The district judge denied the request and went ahead with the hearing. Later that day, the court said: And let's see, now I would like for Dr. Norinder, as soon as we finish today, to execute a waiver or a release for, if the Respondent wishes to have it, for your medical records since January 2008 [the month before JRN's birth], and employment records, any prescription records, any alcohol or drug abuse treatment records, and any legal records relative to any domestic abuse, or any crimes for that matter, and any report of investigations at the hospital in Sweden. And I know those won't be here tomorrow, but I suspect they can be obtained expeditiously. The hearing resumed on three additional days in June. On June 30, the district court determined that JRN's habitual residence was Sweden and that Norinder had demonstrated that his rights of custody under Swedish law had been violated when Fuentes abducted JRN to the United States. The court limited the remaining proceedings, which were to take place at the end of July, to the question whether JRN would be exposed to a grave risk of harm if he was returned. All of Fuentes's reasons for seeking more time for discovery before trial related to the grave-risk-of-harm defense--that is, to the part of the case that the court had not yet resolved. On July 14, Norinder produced the medical and employment records that the district court had ordered on the first day of trial; he did not
produce any documents relating to past prescription drug use. On July 22, the district court held the final day of hearings to consider whether Norinder posed a threat to JRN. The court concluded that he did not, and on July 23, it issued an order requiring the return of JRN to Sweden.
Fuentes took the position that the court's denial of her request for pretrial discovery was an error of law because, she said, the court failed to apply the Federal Rules of Civil Procedure to the case. The Seventh Circuit held that there was no question that the Federal Rules of Civil Procedure apply to cases brought under the Act and the Convention in federal court.. But there was nothing in the district court's opinion that suggested that it was acting outside of the framework established by the Rules. Fuentes made a discovery request on June 21 and the next day asked for more time to pursue that discovery. Such requests occur routinely. As in any case, the question was whether the district court's decision to deny additional discovery was an abuse of discretion. It held that the district court's management was eminently reasonable. A party who seeks additional discovery must let the district court know in a timely fashion. Fuentes's lawyer was aware that a trial date of June 22 had been set at the moment he was hired on June 8 (or he should have made himself aware of that fact); the lawyer had Norinder's expedited discovery plan in hand on June 15, and so he knew that it proposed a completion date for discovery of June 18. It would have been easy to ask the judge for more than three days. Yet Fuentes said nothing about a need for additional discovery until the day before trial and did not request a continuance until the morning it was to start. The district court was under no obligation to push back the proceedings when Fuentes had missed multiple opportunities to tell the court that she needed more time. Despite the late notice, the district court actually accommodated Fuentes's request for additional information. It quoted above the court's order during the first hearing telling Norinder to produce precisely the documents that Fuentes contended she needed before trial could begin. The court recognized that those documents could not be retrieved right away, and so it took the additional step of first resolving all of the issues in the dispute that were unrelated to the document production it had ordered. The question of grave risk of harm was put off until a week after Norinder produced the requested records. There was no evidence in the record that Fuentes ever objected to the document production order; nor did she suggest after Norinder had furnished the additional documentation that she needed anything more.
The denial of a continuance was the correct course here because of the time-sensitive nature of the case, filed as it was under an international convention designed to protect children unlawfully abducted to foreign countries. Courts have leeway to limit discovery in many circumstances where the additional discovery would undermine the litigation. The Convention and its implementing Act were full of the language of urgency and in no uncertain terms contemplate expedited procedures to guarantee that children are returned quickly to the correct jurisdiction. The adjudication of a petition for return of a child is much like a district court's exercise of equitable power in the context of a preliminary injunction or a temporary restraining order. In both circumstances, discovery often must proceed quickly, the district court must apprise itself of the relevant facts, and a decision must be rendered on an expedited basis. The Court concluded that an expedited schedule is appropriate when a court is considering a petition for relief under the Convention. Nothing about the district court's schedule in this case was at all objectionable, particularly in light of the lack of complaint about the materials actually produced.
The Circuit Court noted that the first step for a court considering a petition is to determine the child's habitual residence. The forum-shopping concern, means that habitual residence must be "based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them." In Koch v. Koch, 450 F.3d 703 (7th Cir.2006), it discussed how habitual residence should be determined, and adopted a version of the analysis set out by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The question was whether a prior place of residence (the United States) was effectively abandoned and a new residence established (Sweden) "by the shared actions and intent of the parents coupled with the passage of time." This case was not a close one. Although JRN was born in Houston, Texas, the family moved to Sweden five months after the child's birth and lived there until the trip Fuentes took that triggered this lawsuit. Fuentes said that the 2008 move to Sweden was supposed to be a temporary relocation and that she never would have gone if she thought it was a permanent move. As a result, she continued, she never shared the intent to abandon the United States as her and JRN's habitual residence. The district court was unconvinced: [T]he uncontroverted evidence is that [Fuentes] had at least 80% of her personal items shipped to Sweden in July 2008, including two automobiles. She applied for and received permanent residency status in Sweden as of the end of 2009. She was engaged in negotiations for a position at a hospital in another city [in Sweden] and she and Norinder had looked for homes in that city. She took Swedish lessons right up to the time she left for the United States. Notably, she did not retain a residence in the United State[s]. She did not have a house, nor was there any evidence introduced of a driver's license, or taxes paid in the United States. This was enough to convince the district court that Fuentes shared the intent to reside in Sweden with Norinder and JRN and was enough to convince the Seventh Circuit as well.
Fuentes based her assertion that Norinder posed a serious risk of harm to JRN on a handful of serious fights the couple had; an incident in which Fuentes contended that Norinder threw JRN on the ground during an argument; allegations that Norinder was addicted to prescription drugs and that he abused alcohol; and the testimony of two psychiatrists, Drs. Roth and Woodham, who appeared on Fuentes's behalf at trial. Norinder responded that he was a fit and loving parent; he disputed that he ever threw JRN or harmed the child in any way. Norinder presented testimony from his long-time psychiatrist, Dr. Vikander, about his history of drug and alcohol abuse. He asserted that Fuentes fell far short of showing the requisite grave risk of harm required by the Convention. The district court agreed with Norinder on every point. It found that Fuentes's testimony about Norinder's past behavior was not credible. The court also thought that Norinder's distant history of drug and alcohol abuse did not suggest that he would harm JRN. It was not persuaded by the testimony of Fuentes's expert witnesses. The past fights, the court said, were best viewed as "minor domestic squabbles" rather than anything detrimental to JRN. The district court concluded, "[T]here is no credible evidence that this return of the child to the custody of the Petitioner will, in any manner, present a grave risk of harm."
The Seventh Circuit found no fault in the lower court's factual findings. Concern with comity among nations argues for a narrow interpretation of the 'grave risk of harm' defense; but the safety of children is paramount. The risk of harm must truly be grave. The respondent must present clear and convincing evidence of this grave harm because any more lenient standard would create a situation where the exception would swallow the rule. Fuentes did not met this demanding standard.
Finally, Fuentes challenged the district court's award of fees and costs. She objected to particular line items that Norinder claimed in his motion for fees and costs; and, she said that her financial situation was so dire that she should not be required to pay fees or costs at all. The district court used the lodestar method to calculate attorney's fees and carefully evaluated all of the expenses that Norinder claimed. It reduced the total amount of time billed by Norinder's lawyer and paralegal by 20% and cut the fee charged by the lawyer down to $300 an hour and that charged by the paralegal to $125 an hour. In addition, the court excluded expert witness fees and expenses that were paid to Norinder's psychiatrist because there was not adequate
documentation to support the claimed expenses. Norinder's motion was thus granted in part and denied in part: Norinder asked for $170,000 and the court awarded $150,570. Fuentes said that it should reduce that award by "at least $75,000." Fuentes objects in particular to four line items. The short answer was that the district court evaluated these arguments and made adjustments where appropriate.
Fuentes argued that the fee award was so large that it would make it impossible for her to conduct divorce and custody proceedings in Sweden. At least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child. The district court recognized these cases but decided that, because Fuentes stood to make "in excess of $300,000 a year" following her fellowship, the award of $150,000 would not inflict that sort of harm. Fuentes told the Seventh Circuit that her monthly income was just $3,300, and was consumed almost entirely by expenses and debts. Fuentes herself has said that she would make $300,000 a year. Fuentes had not provided any sort of rebuttal to this claim in this court, and her silence suggested that the fee award was not a substantial problem. With nothing in the record causing it think that the award would have a detrimental impact on JRN, it concluded that the district court acted within its discretion when it awarded costs and fees to Norinder.
Norinder and Fuentes, who were both physicians, met on the Internet in 2006. Norinder, a citizen of Sweden, lived in Bors, Sweden at the time; and Fuentes, who was a citizen of the United States, lived in Texas. In February 2007, Fuentes visited Sweden and the couple got engaged; in April, she returned and they conceived a child; in August they were married in Sweden. After the wedding, Fuentes returned to Houston, Texas, to complete a fellowship in pathology. Norinder was chief physician of a hospital in Bors at the time. He took paternity leave in January 2008 to join Fuentes in Houston. JRN was born there the next month. In July, the whole family moved to Sweden. On March 17, 2010, under the guise of a two-week vacation to Texas, Fuentes traveled to the United States with JRN. On April 7, 2010--the day she was scheduled to return to Sweden--Fuentes sent Norinder a text message saying that she was keeping their son and planned to remain in the United States. Norinder hired a lawyer. Eventually, he found them in southern Illinois, and on May 26, 2010, his lawyer there filed the petition for return of the child.
Fuentes's first argument on appeal was that the district court improperly cut off her pretrial discovery, thereby seriously undermining her ability to show that Norinder posed a grave risk of harm to JRN. In her view the district court erred by refusing to apply the Federal Rules of Civil Procedure to the proceedings. The Court of Appeals observed that the district court was properly trying to move this case along on an expedited basis. Norinder's petition was filed on May 26, 2010, and on June 4 the district court set June 22 as the date for the start of a bench trial. On June 8, Fuentes hired a lawyer. A few days later, on June 15, Norinder filed a discovery plan that recommended completing discovery by June 18. On June 16, Fuentes's lawyer filed his first appearance in the case. On June 21, the day before trial was set to begin, Fuentes filed a response to Norinder's petition and in it requested additional discovery for the first time. She said that the court's current schedule would interfere with her effort to gather evidence needed for trial, and her lawyer submitted an affidavit outlining what she was requesting: medical records relating to Norinder's alleged alcohol and drug use; documents that might reveal past domestic violence; Norinder's prescription drug records; and all documentation kept by his employer. On June 22, at the first of five hearings held by the district court over a month-long period, Fuentes requested a continuance, urging again that she needed the additional discovery to proceed with the case. The district judge denied the request and went ahead with the hearing. Later that day, the court said: And let's see, now I would like for Dr. Norinder, as soon as we finish today, to execute a waiver or a release for, if the Respondent wishes to have it, for your medical records since January 2008 [the month before JRN's birth], and employment records, any prescription records, any alcohol or drug abuse treatment records, and any legal records relative to any domestic abuse, or any crimes for that matter, and any report of investigations at the hospital in Sweden. And I know those won't be here tomorrow, but I suspect they can be obtained expeditiously. The hearing resumed on three additional days in June. On June 30, the district court determined that JRN's habitual residence was Sweden and that Norinder had demonstrated that his rights of custody under Swedish law had been violated when Fuentes abducted JRN to the United States. The court limited the remaining proceedings, which were to take place at the end of July, to the question whether JRN would be exposed to a grave risk of harm if he was returned. All of Fuentes's reasons for seeking more time for discovery before trial related to the grave-risk-of-harm defense--that is, to the part of the case that the court had not yet resolved. On July 14, Norinder produced the medical and employment records that the district court had ordered on the first day of trial; he did not
produce any documents relating to past prescription drug use. On July 22, the district court held the final day of hearings to consider whether Norinder posed a threat to JRN. The court concluded that he did not, and on July 23, it issued an order requiring the return of JRN to Sweden.
Fuentes took the position that the court's denial of her request for pretrial discovery was an error of law because, she said, the court failed to apply the Federal Rules of Civil Procedure to the case. The Seventh Circuit held that there was no question that the Federal Rules of Civil Procedure apply to cases brought under the Act and the Convention in federal court.. But there was nothing in the district court's opinion that suggested that it was acting outside of the framework established by the Rules. Fuentes made a discovery request on June 21 and the next day asked for more time to pursue that discovery. Such requests occur routinely. As in any case, the question was whether the district court's decision to deny additional discovery was an abuse of discretion. It held that the district court's management was eminently reasonable. A party who seeks additional discovery must let the district court know in a timely fashion. Fuentes's lawyer was aware that a trial date of June 22 had been set at the moment he was hired on June 8 (or he should have made himself aware of that fact); the lawyer had Norinder's expedited discovery plan in hand on June 15, and so he knew that it proposed a completion date for discovery of June 18. It would have been easy to ask the judge for more than three days. Yet Fuentes said nothing about a need for additional discovery until the day before trial and did not request a continuance until the morning it was to start. The district court was under no obligation to push back the proceedings when Fuentes had missed multiple opportunities to tell the court that she needed more time. Despite the late notice, the district court actually accommodated Fuentes's request for additional information. It quoted above the court's order during the first hearing telling Norinder to produce precisely the documents that Fuentes contended she needed before trial could begin. The court recognized that those documents could not be retrieved right away, and so it took the additional step of first resolving all of the issues in the dispute that were unrelated to the document production it had ordered. The question of grave risk of harm was put off until a week after Norinder produced the requested records. There was no evidence in the record that Fuentes ever objected to the document production order; nor did she suggest after Norinder had furnished the additional documentation that she needed anything more.
The denial of a continuance was the correct course here because of the time-sensitive nature of the case, filed as it was under an international convention designed to protect children unlawfully abducted to foreign countries. Courts have leeway to limit discovery in many circumstances where the additional discovery would undermine the litigation. The Convention and its implementing Act were full of the language of urgency and in no uncertain terms contemplate expedited procedures to guarantee that children are returned quickly to the correct jurisdiction. The adjudication of a petition for return of a child is much like a district court's exercise of equitable power in the context of a preliminary injunction or a temporary restraining order. In both circumstances, discovery often must proceed quickly, the district court must apprise itself of the relevant facts, and a decision must be rendered on an expedited basis. The Court concluded that an expedited schedule is appropriate when a court is considering a petition for relief under the Convention. Nothing about the district court's schedule in this case was at all objectionable, particularly in light of the lack of complaint about the materials actually produced.
The Circuit Court noted that the first step for a court considering a petition is to determine the child's habitual residence. The forum-shopping concern, means that habitual residence must be "based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them." In Koch v. Koch, 450 F.3d 703 (7th Cir.2006), it discussed how habitual residence should be determined, and adopted a version of the analysis set out by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The question was whether a prior place of residence (the United States) was effectively abandoned and a new residence established (Sweden) "by the shared actions and intent of the parents coupled with the passage of time." This case was not a close one. Although JRN was born in Houston, Texas, the family moved to Sweden five months after the child's birth and lived there until the trip Fuentes took that triggered this lawsuit. Fuentes said that the 2008 move to Sweden was supposed to be a temporary relocation and that she never would have gone if she thought it was a permanent move. As a result, she continued, she never shared the intent to abandon the United States as her and JRN's habitual residence. The district court was unconvinced: [T]he uncontroverted evidence is that [Fuentes] had at least 80% of her personal items shipped to Sweden in July 2008, including two automobiles. She applied for and received permanent residency status in Sweden as of the end of 2009. She was engaged in negotiations for a position at a hospital in another city [in Sweden] and she and Norinder had looked for homes in that city. She took Swedish lessons right up to the time she left for the United States. Notably, she did not retain a residence in the United State[s]. She did not have a house, nor was there any evidence introduced of a driver's license, or taxes paid in the United States. This was enough to convince the district court that Fuentes shared the intent to reside in Sweden with Norinder and JRN and was enough to convince the Seventh Circuit as well.
Fuentes based her assertion that Norinder posed a serious risk of harm to JRN on a handful of serious fights the couple had; an incident in which Fuentes contended that Norinder threw JRN on the ground during an argument; allegations that Norinder was addicted to prescription drugs and that he abused alcohol; and the testimony of two psychiatrists, Drs. Roth and Woodham, who appeared on Fuentes's behalf at trial. Norinder responded that he was a fit and loving parent; he disputed that he ever threw JRN or harmed the child in any way. Norinder presented testimony from his long-time psychiatrist, Dr. Vikander, about his history of drug and alcohol abuse. He asserted that Fuentes fell far short of showing the requisite grave risk of harm required by the Convention. The district court agreed with Norinder on every point. It found that Fuentes's testimony about Norinder's past behavior was not credible. The court also thought that Norinder's distant history of drug and alcohol abuse did not suggest that he would harm JRN. It was not persuaded by the testimony of Fuentes's expert witnesses. The past fights, the court said, were best viewed as "minor domestic squabbles" rather than anything detrimental to JRN. The district court concluded, "[T]here is no credible evidence that this return of the child to the custody of the Petitioner will, in any manner, present a grave risk of harm."
The Seventh Circuit found no fault in the lower court's factual findings. Concern with comity among nations argues for a narrow interpretation of the 'grave risk of harm' defense; but the safety of children is paramount. The risk of harm must truly be grave. The respondent must present clear and convincing evidence of this grave harm because any more lenient standard would create a situation where the exception would swallow the rule. Fuentes did not met this demanding standard.
Finally, Fuentes challenged the district court's award of fees and costs. She objected to particular line items that Norinder claimed in his motion for fees and costs; and, she said that her financial situation was so dire that she should not be required to pay fees or costs at all. The district court used the lodestar method to calculate attorney's fees and carefully evaluated all of the expenses that Norinder claimed. It reduced the total amount of time billed by Norinder's lawyer and paralegal by 20% and cut the fee charged by the lawyer down to $300 an hour and that charged by the paralegal to $125 an hour. In addition, the court excluded expert witness fees and expenses that were paid to Norinder's psychiatrist because there was not adequate
documentation to support the claimed expenses. Norinder's motion was thus granted in part and denied in part: Norinder asked for $170,000 and the court awarded $150,570. Fuentes said that it should reduce that award by "at least $75,000." Fuentes objects in particular to four line items. The short answer was that the district court evaluated these arguments and made adjustments where appropriate.
Fuentes argued that the fee award was so large that it would make it impossible for her to conduct divorce and custody proceedings in Sweden. At least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child. The district court recognized these cases but decided that, because Fuentes stood to make "in excess of $300,000 a year" following her fellowship, the award of $150,000 would not inflict that sort of harm. Fuentes told the Seventh Circuit that her monthly income was just $3,300, and was consumed almost entirely by expenses and debts. Fuentes herself has said that she would make $300,000 a year. Fuentes had not provided any sort of rebuttal to this claim in this court, and her silence suggested that the fee award was not a substantial problem. With nothing in the record causing it think that the award would have a detrimental impact on JRN, it concluded that the district court acted within its discretion when it awarded costs and fees to Norinder.
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