Tuesday, July 3, 2012
Reyes v Jeffcoat, 2012 WL 2428587 (D.S.C.) [Venezuela] [Habitual Residence] [Video Testimony]
In Reyes v Jeffcoat, 2012 WL 2428587 (D.S.C.) the Petitioner, Maritza Meszaros Reyes and the Respondent, Harry Lee Langford Jeffcoat were married and had three children, one of whom was over the age of 16. On January 21, 2012, Petitioner commenced a suit by filing a Verified Petition for Return of Child to Petitioner and for Issuance of a Show Cause Order. Petitioner and Respondent filed divorce proceedings in Venezuela and in the United States, respectively. Both proceedings were stayed while this court decided the issues. Over the course of the trial, the court heard testimony from live witnesses who came from both the United States and Venezuela, witnesses by video conference from Venezuela. The court took in camera testimony from all three children.
The Court found that Petitioner and Respondent were married in Venezuela in 1993. They had three children-an oldest son, born in 1994; a daughter, born in 1996; and a youngest son, born in 2000. All three children had dual citizenship. Petitioner was a citizen of Venezuela. Since 2003, she held a United States Permanent Resident Card (also known as a green card), which she used each time she entered the United States. Respondent was a citizen of the United States. Between 1992 and 2003, he
possessed a Venezuelan resident visa, allowing him to permanently reside in Venezuela. That visa expired in 2003. He had not been authorized to live or work in Venezuela since 2003. Each time Respondent entered Venezuela since 2003, he entered as a tourist and was prohibited from staying in Venezuela for longer than 90 consecutive days. The family resided in Venezuela from 1993 until 2001. The Respondent was employed in Venezuela from 1993 to 2000. The Petitioner remained continuously employed in Venezuela, except for a two-year period beginning in 2001 when the Respondent took a job in South Carolina and Petitioner took a "leave of absence" from her employment. In 2001, the family moved to South Carolina.
Between 2001 and 2011, all three children spent substantial amounts of time in
both the United States and Venezuela. They participated in various activities, including educational, religious, social, musical, and athletic endeavors while present in each country. Since 2006, the Petitioner owned a large apartment in Caracas, Venezuela, and, since 2008, the Petitioner and the Respondent jointly owned a large house in Lexington, South Carolina. Both properties were capable of being a home for the entire family. Between 2006 and 2008, the father and children resided in Lexington, South Carolina. During this time, the children attended school at Heritage Christian Academy in Lexington, South Carolina. The parties' daughter began attending Heritage in the 2005-2006 school year. Both the daughter and the youngest son attended Heritage for the full 2006-2007 and 2007-2008 school years. Beginning in September 2008 and continuing until September 2011, the father and the children frequently traveled between the United States and Venezuela. The father and children never spent more than 90 consecutive days in Venezuela. The only time that they spent more than 90 consecutive days in the United States was from June 9, 2011 until September 12, 2011, the time period immediately preceding the date on which the mother alleged that the wrongful retention began.
Since 2008, the children were home schooled through the South Carolina
Association of Independent Home Schools. Mostly, the children worked on their studies in Caracas, Venezuela; however, educational activities also took place while the children were present in Lexington, South Carolina. Between September 2008 and September 2011, the children regularly traveled between the United States and Venezuela, using their United States passports when entering and exiting Venezuela and the United States. When they entered Venezuela, the children entered as tourists.
In October 2009, the parties renewed the three children's United States passports. The renewal applications for the United States passports listed the Lexington, South Carolina address as the children's permanent address. In May 2011, the parties renewed the daughter's and the oldest son's Venezuelan passports. The renewal applications for the Venezuelan passports listed the Caracas, Venezuela address as the children's current residence. Since 2008, the children were covered by a United States based health insurance plan through the mother's employer. The children's primary pediatrician and dentist were located in South Carolina. The children had received pediatric and dental care in Venezuela. The children's only orthodontist and eye doctor were located in South Carolina. They never received orthodontic or ophthalmologic care in Venezuela. The children indicated that they considered themselves Americans and wished to remain in the United States.
The Court concluded that because only two of the parties' children were under the age of sixteen, it would only make a determination as to whether those two children were wrongfully retained by the Respondent on or about September 12, 2011. It observed that Federal courts have developed a two-part framework to assist in the habitual residence analysis." Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). Under the two-part framework, courts evaluate the following: (1) shared parental intent-whether the parents shared a settled intention to abandon the former country of residence; and (2) acclimatization-whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment. With regard to shared parental intent, federal courts have cautioned that " 'the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence.' "(quoting Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir.2005)). Federal courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence. The question of acclimatization " 'is not simply whether the child's life in the new country shows some minimal degree of settled purpose,' but whether the 'child's relative attachments to the countries have changed to the point where ordering the child's return would now be tantamount to taking the child out of the family and social environment in which its life has developed.' " (quoting Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). With regards to the acclimatization of the children, courts have considered the following: school environment; participation in social activities; the length of stay in the relative countries; and the child's age.
The Court found the facts of the case distinguishable from those of other cases were federal courts have explored the habitual residence of children under the Hague Convention. Because this family was a family of considerable means, many of the factors that federal courts consider in determining habitual residence (both those under shared intent and acclimatization) were unhelpful in the analysis of habitual residence in this case. It was clear from the facts presented that the parties' children had full and active lives in the United States and in Venezuela. The parties had very nice homes in both countries, and the facts show that the children spent considerable time in both places throughout their lives.
The following facts supported the mother's argument that as of September 12, 2011, the parties' children were habitually resident in Venezuela: the mother, the sole provider of the family since 2006, was employed as an attorney in Venezuela and is only licensed to practice in Venezuela; between September 2008 and September 2011, the children completed the majority of their homeschool activities while physically located in Venezuela; and * between September 2008 and September 2011, the children's time in the United States was during times traditionally considered holiday/vacation. The following facts supported the father's argument that as of September 12, 2011, the parties' children were habitually resident in the United States:
the children lived and attended school in South Carolina from 2006 to September 2008; the children participated in a South Carolina homeschool curriculum; the father was prohibited from remaining in Venezuela for more than 90 consecutive days; since 2008, the children always entered Venezuela as tourists using their United States passports; and the children's primary pediatrician and dentist were located in South Carolina, and the children's only eye doctor and orthodontist were located in South Carolina.
In balancing all of the facts, this court resolved the issue of habitual residence in favor of the father and found that since approximately 2006, the children's habitual residence had been the United States. Importantly, although the children stayed in Venezuela for an appreciable period of time from September 2008 to September 2011, they continued to travel in and out of Venezuela as tourists using their American passports. Also, their father, who administered their homeschool lessons, entered Venezuela as a tourist and was prohibited from staying in Venezuela for more than 90 days at a time. As such, neither the father nor the children were ever present in Venezuela for 90 consecutive days or more during the three-year period from September 2008 to September 2011. It may have been the mother's intent for her family to move to Venezuela in September 2008; however, the father did not share her intent, and the children's pattern of travel and their activities from September 2008 to September 2011 were not sufficient to establish Venezuela as their new habitual residence. Thus, from September 2008 to September 2011 the habitual residence of the children remained the United States.
Accordingly, the court found that Petitioner had not proven a prima facie case of wrongful retention and denied the petition.
Redmond v Redmond, 2012 WL 2368800 (N.D.Ill.) [Ireland] [Habitual Residence]
In Redmond v Redmond, 2012 WL 2368800 (N.D.Ill.) Derek Redmond filed a petition for the return of his son ("JMR") to Ireland. Ms. Redmond was born in the United States on December 24, 1977. Although a United States citizen, Ms. Redmond testified that she also held citizenship in Ireland, where her father was born. Mr. Redmond was born in Ireland on June 14, 1975. In 1996, at the age of nineteen, Ms. Redmond went to Ireland and attended college. Around this time, she began an intimate relationship with Mr. Redmond. Mr. Redmond and Ms. Redmond never married. Ms. Redmond received her Irish Associates Degree in 1998, and continued to live in Ireland until November 2007. In 2006, the parties, who were living together, conceived a child. They agreed that the child should be born in the United States. On March 28, 2007, JMR was born in Blue Island, Illinois. Mr. Redmond was present for JMR's birth and was listed as the father on JMR's United States birth certificate. On April 8, 2007 the parties returned with JMR to their common residence in Ireland. From his birth until November 2007, JMR lived with both of his parents in Ireland. During this time, Mr. and Ms. Redmond shared the intent that JMR be raised in Ireland. By November 10, 2007, however, the relationship soured and Ms. Redmond "changed her intent as to where she wanted to live and where JMR should be raised. Respondent informed Petitioner personally of her intent to return permanently to the United States on November 10, 2007.". Mr. Redmond has never changed his intent that JMR be raised in Ireland. On
November 10, 2007, Ms. Redmond took JMR to Illinois. Ms. Redmond returned to Ireland with JMR in February 2008 for a period of about two months.
On March 25, 2008, Mr. Redmond filed a petition in the Irish district court seeking legal guardianship and custody of JMR and the matter was set for hearing on April 17, 2008. At the time he filed the petition, Ms. Redmond and JMR were in Ireland. After learning that they were planning to leave Ireland, Mr. Redmond obtained an ex parte Order preventing them from doing so. Pursuant to that Order, the Irish National Police stopped Ms. Redmond and JMR from departing Ireland on April 8, 2008. Mr. and Ms. Redmond were represented by counsel throughout the Irish proceedings. On April 17, 2008, Ms. Redmond attended the hearing and moved to set aside the April 8 Order. Her motion was denied and she appealed. On April 22, 2008, the appellate court ruled in her favor, setting aside the April 8 Order. The Order noted that Ms. Redmond had agreed to return to Ireland for a future hearing. On April 23, 2008, Ms. Redmond left with JMR for Illinois. On June 25, 2008, the Irish district court ruled that it did not have jurisdiction over Mr. Redmond's application for guardianship and custody because JMR had been removed to the United States. Mr. Redmond appealed and a hearing was set for July 29, 2008. On July 23, 2008, Mr. Redmond obtained an ex parte Order requiring Ms. Redmond to appear with JMR at the July 29 hearing. At the hearing, neither Ms. Redmond nor JMR appeared. The Irish appellate court found that it had jurisdiction to consider Mr. Redmond's application for guardianship and custody. Ms. Redmond subsequently appealed to the Irish High Court. The High Court heard the matter on November 18, 2008, and issued judgment on November 26, 2008, ruling against Ms. Redmond. Ms. Redmond conceded in January 2009 that the Irish courts had jurisdiction to hear Mr. Redmond's custody application.
In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to permanently relocate with her to the United States. On February 10, 2011, the Irish court, after a hearing, denied Ms. Redmond's application to relocate JMR to the United States and granted Mr. Redmond guardianship and joint custody of JMR. The Order directed Ms. Redmond not to make any application to any court outside the State in respect of JMR; not to remove JMR to a third country"; and "to live within a reasonable distance of Ballymurphy bearing in mind the Court's order that JMR
should attend Ballymurphy National School. The court also directed the parties to "share access to JMR on a 50/50 basis.
In response to the February 10 Order, Ms. Redmond requested leave of court to return to the United States for a short period in order to settle her affairs. The Irish court granted her request on the condition that she promise to: (1) return to Ireland with JMR no later than March 30, 2011; (2) not to apply to another court for custody; (3) terminate her employment in Illinois; (4) move to County Carlow, Ireland, and live within a reasonable distance of Ballymurphy National School; (5) have JMR attend Ballymurphy National School; (6) share custody with Mr. Redmond on an every-other-day basis; and (7) purchase a plane ticket for JMR's return trip to Ireland within seven days of her return to the United States. Ms. Redmond conceded that she made each of these promises under oath, and that she never intended to keep any of them. Ms. Redmond ailed to comply with all of the above sworn promises. Ms. Redmond admitted this at the June 8, 2012 evidentiary hearing.
On February 15, 2011, Ms. Redmond returned with JMR to Illinois. On March 23, 2011, she retained Illinois counsel and filed a petition for award of sole custody in the Circuit Court of Cook County, Illinois. Ms. Redmond did not return with JMR to Ireland on March 30, 2011. On May 10, 2011, the Irish court issued an Order requiring Ms. Redmond to produce JMR on June 30, 2011. The Irish court further declared that the retention of JMR in the United States after March 30, 2011 was wrongful within the meaning of Article 3 of the Convention. When Ms. Redmond failed to personally appear on June 30, the Irish court issued an Order directing that Ms. Redmond be attached and brought before the court to answer for her failure to comply with the promises that she made in February 2011. On July 27, 2011, the Circuit Court of Cook County denied Ms. Redmond's petition for custody, finding that the Irish courts had jurisdiction over the underlying custody issues. At the June 8, 2012 evidentiary hearing, Ms. Redmond testified to learning, that morning, of an outstanding warrant for her arrest in Ireland based on her failure to comply with the custody order.
The District Court observed that the Hague Convention does not define the term habitual residence," but rather regards it as a question of fact. Koch v. Koch. 450 F.3d 703, 712 (7th Cir.2006). The determination of 'habitual residence' is to be based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them. Avila, 538 F.3d at 583. The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for 'the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time 'immediately before the removal or retention.'" Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir.2010). The Court found that the date of the alleged wrongful retention was March 30, 2011, the date upon which JMR's retention in Illinois first violated Irish law. The Court had to decide whether JMR was a habitual resident of Ireland immediately prior to March 30, 2011 and did not consider the events in JMR's life after March 30, 2011. In determining habitual residence, the Court first examines the shared intent of the parents. Koch, 450 F.3d at 715; see also Gitter v. Gitter, 396 F.3d 124, 133 (2d. Cir.2005) In nearly all of the cases that arise under the Convention ... the parents have come to disagree as to the place of the child's habitual residence. It then becomes the court's task to determine the intentions of the parents as of the last time that their intentions were shared.". This examination is especially relevant in cases involving young children such as JMR. See Koch, 450 F.3d at 713 ("In the case of young children, the court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence.").
The Court noted that Mr. and Ms. Redmond, unmarried, had an intimate relationship for over ten years and maintained a home in Ireland. Ms. Redmond was born in the United States, but at the time of her pregnancy with JMR, had lived in Ireland for a decade. While JMR was also born in the United States, Mr. and Ms. Redmond immediately returned with him to Ireland when he was only eleven-days-old. The parties lived together with JMR in Ireland until November 2007. The quick return with JMR to their home in Ireland after his birth evidences the parents' shared intent that JMR reside in Ireland. Therefore, at least initially, JMR's habitual residence was in Ireland. Since November 2007, the parties have not maintained a shared intent as to the location of JMR's habitual residence. The question before the Court, therefore, was whether JMR's habitual residence has changed from Ireland to Illinois. 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 one end 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 v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001). On the other end "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." "In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence." The present dispute fell much closer to the latter end.
Ms. Redmond's actions revealed that she was fully aware that JMR's status in Illinois has always been contingent on the Irish custody proceedings. Both Mr. and Ms. Redmond vigorously litigated their cases before the Irish courts. Ms. Redmond was represented throughout the Irish custody proceedings and fully participated in them, frequently traveling with JMR to Ireland for court dates. Ms. Redmond was well aware that Mr. Redmond was seeking guardianship and custody rights of JMR in Ireland. In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to relocate with her to the United States. Although she may have hoped to move permanently to Illinois, Ms. Redmond also recognized that Ireland would have the ultimate say. For his part, Mr. Redmond never wavered that Ireland is JMR's habitual residence, as he filed for custody and guardianship shortly after Ms. Redmond first left. These circumstances weighed against a finding that JMR's habitual residence changed from Ireland to Illinois. JMR's status in Illinois-as evidenced by the conduct of both parties-has always been "contingent" or "temporary," and has never been "settled." Ms. Redmond acknowledged so much when she met with the Irish community welfare officer on March 12, 2008, when she petitioned the Irish courts to allow JMR to relocate with her to the United States in January 2009, and when she promised the Irish court in February 2011 that she would return with JMR to Ireland by March 30, 2011.
The next question was whether acclimatization should suffice to establish a change in JMR's habitual residence. Courts will often consider a child's habitual residence to be "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder. 63 F.3d 217, 224 (3d. Cir.1995). Under this framework, if JMR had become "acclimatized to the new environment to such a degree," then he can become "a habitual resident of the new country despite the parents' shared intentions." Koch. 450 F.3d at 714. Ms. Redmond contended that JMR's life in Illinois from November 2007 through March 30, 2011, changed his habitual residence from Ireland to Illinois. Ms. Redmond testified that JMR had a pediatrician and dentist in Illinois and that she placed him in KinderCare from the age of two-and-a-half through three-and-a-half. She further testified that JMR went with her (or her parents) to St. Michael's church, had play dates with his friends, and frequently interacted with his large extended family in Illinois. Ms. Redmond noted that JMR spent approximately ten-and-a-half weeks in Ireland between November 2007 and February 2011, but that these returns were (with the exception of the first) all for court dates.
While these facts, coupled with the passage of nearly three-and-a-half years of very early childhood, suggested that JMR was happy and well-adjusted to his life in Illinois, such a finding was not dispositive of habitual residence in this case. The Ninth Circuit has cautioned that despite the superficial appeal of focusing primarily on the child's contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Ms. Redmond unilaterally removed JMR from his original habitual residence in Ireland. Shortly thereafter, Mr. Redmond initiated custody proceedings to get JMR back. Indeed, what makes this case unique is Mr. Redmond's vigorous (and thus far successful) pursuit of his custody rights for nearly the entire duration of JMR's life in Illinois. As properly recognized by the Irish courts as well as the Circuit Court of Cook County, this is an Irish custody dispute, the merits of which have been, and should continue to be, adjudicated in Ireland. Ms. Redmond's flight to Illinois-which was only permitted in the first place because she promised under oath to return to Ireland-is
precisely the conduct that the Convention is designed to prevent.
The Court found that JMR's habitual residence was and still is in Ireland.
The Irish courts granted Mr. Redmond joint custody rights on February 10, 2011. While Ms. Redmond was granted leave to settle her affairs in the United States, she was ordered to return to Ireland with JMR by March 30, 2011, in order to share custody of JMR with Mr. Redmond "on a 50/50 basis." While ostensibly settling her affairs, she filed suit in the Circuit Court of Cook County. Ms. Redmond never returned to Ireland with JMR, and thereby breached Mr. Redmond's custody rights under Irish law.
Once a petitioner has established that he or she has custody rights under the laws of the country of habitual residence, courts 'liberally' find the exercise of those custody rights." Mr. Redmond exercised or attempted to exercise his custody rights since March 25, 2008, the date he initiated the Irish custody case. Mr. Redmond continued to actively pursue those rights through the instant petition under the Convention. Through his past and continued legal efforts, Mr. Redmond has established that he would have exercised his custody rights but for JMR's retention in Illinois. Mr. Redmond established, by a preponderance of the evidence, that as of March 30, 2011, JMR was wrongfully retained in Illinois, in violation of the Convention.
Mr. Redmond's petition for the return of JMR to Ireland was granted.
November 10, 2007, Ms. Redmond took JMR to Illinois. Ms. Redmond returned to Ireland with JMR in February 2008 for a period of about two months.
On March 25, 2008, Mr. Redmond filed a petition in the Irish district court seeking legal guardianship and custody of JMR and the matter was set for hearing on April 17, 2008. At the time he filed the petition, Ms. Redmond and JMR were in Ireland. After learning that they were planning to leave Ireland, Mr. Redmond obtained an ex parte Order preventing them from doing so. Pursuant to that Order, the Irish National Police stopped Ms. Redmond and JMR from departing Ireland on April 8, 2008. Mr. and Ms. Redmond were represented by counsel throughout the Irish proceedings. On April 17, 2008, Ms. Redmond attended the hearing and moved to set aside the April 8 Order. Her motion was denied and she appealed. On April 22, 2008, the appellate court ruled in her favor, setting aside the April 8 Order. The Order noted that Ms. Redmond had agreed to return to Ireland for a future hearing. On April 23, 2008, Ms. Redmond left with JMR for Illinois. On June 25, 2008, the Irish district court ruled that it did not have jurisdiction over Mr. Redmond's application for guardianship and custody because JMR had been removed to the United States. Mr. Redmond appealed and a hearing was set for July 29, 2008. On July 23, 2008, Mr. Redmond obtained an ex parte Order requiring Ms. Redmond to appear with JMR at the July 29 hearing. At the hearing, neither Ms. Redmond nor JMR appeared. The Irish appellate court found that it had jurisdiction to consider Mr. Redmond's application for guardianship and custody. Ms. Redmond subsequently appealed to the Irish High Court. The High Court heard the matter on November 18, 2008, and issued judgment on November 26, 2008, ruling against Ms. Redmond. Ms. Redmond conceded in January 2009 that the Irish courts had jurisdiction to hear Mr. Redmond's custody application.
In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to permanently relocate with her to the United States. On February 10, 2011, the Irish court, after a hearing, denied Ms. Redmond's application to relocate JMR to the United States and granted Mr. Redmond guardianship and joint custody of JMR. The Order directed Ms. Redmond not to make any application to any court outside the State in respect of JMR; not to remove JMR to a third country"; and "to live within a reasonable distance of Ballymurphy bearing in mind the Court's order that JMR
should attend Ballymurphy National School. The court also directed the parties to "share access to JMR on a 50/50 basis.
In response to the February 10 Order, Ms. Redmond requested leave of court to return to the United States for a short period in order to settle her affairs. The Irish court granted her request on the condition that she promise to: (1) return to Ireland with JMR no later than March 30, 2011; (2) not to apply to another court for custody; (3) terminate her employment in Illinois; (4) move to County Carlow, Ireland, and live within a reasonable distance of Ballymurphy National School; (5) have JMR attend Ballymurphy National School; (6) share custody with Mr. Redmond on an every-other-day basis; and (7) purchase a plane ticket for JMR's return trip to Ireland within seven days of her return to the United States. Ms. Redmond conceded that she made each of these promises under oath, and that she never intended to keep any of them. Ms. Redmond ailed to comply with all of the above sworn promises. Ms. Redmond admitted this at the June 8, 2012 evidentiary hearing.
On February 15, 2011, Ms. Redmond returned with JMR to Illinois. On March 23, 2011, she retained Illinois counsel and filed a petition for award of sole custody in the Circuit Court of Cook County, Illinois. Ms. Redmond did not return with JMR to Ireland on March 30, 2011. On May 10, 2011, the Irish court issued an Order requiring Ms. Redmond to produce JMR on June 30, 2011. The Irish court further declared that the retention of JMR in the United States after March 30, 2011 was wrongful within the meaning of Article 3 of the Convention. When Ms. Redmond failed to personally appear on June 30, the Irish court issued an Order directing that Ms. Redmond be attached and brought before the court to answer for her failure to comply with the promises that she made in February 2011. On July 27, 2011, the Circuit Court of Cook County denied Ms. Redmond's petition for custody, finding that the Irish courts had jurisdiction over the underlying custody issues. At the June 8, 2012 evidentiary hearing, Ms. Redmond testified to learning, that morning, of an outstanding warrant for her arrest in Ireland based on her failure to comply with the custody order.
The District Court observed that the Hague Convention does not define the term habitual residence," but rather regards it as a question of fact. Koch v. Koch. 450 F.3d 703, 712 (7th Cir.2006). The determination of 'habitual residence' is to be based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them. Avila, 538 F.3d at 583. The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for 'the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time 'immediately before the removal or retention.'" Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir.2010). The Court found that the date of the alleged wrongful retention was March 30, 2011, the date upon which JMR's retention in Illinois first violated Irish law. The Court had to decide whether JMR was a habitual resident of Ireland immediately prior to March 30, 2011 and did not consider the events in JMR's life after March 30, 2011. In determining habitual residence, the Court first examines the shared intent of the parents. Koch, 450 F.3d at 715; see also Gitter v. Gitter, 396 F.3d 124, 133 (2d. Cir.2005) In nearly all of the cases that arise under the Convention ... the parents have come to disagree as to the place of the child's habitual residence. It then becomes the court's task to determine the intentions of the parents as of the last time that their intentions were shared.". This examination is especially relevant in cases involving young children such as JMR. See Koch, 450 F.3d at 713 ("In the case of young children, the court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence.").
The Court noted that Mr. and Ms. Redmond, unmarried, had an intimate relationship for over ten years and maintained a home in Ireland. Ms. Redmond was born in the United States, but at the time of her pregnancy with JMR, had lived in Ireland for a decade. While JMR was also born in the United States, Mr. and Ms. Redmond immediately returned with him to Ireland when he was only eleven-days-old. The parties lived together with JMR in Ireland until November 2007. The quick return with JMR to their home in Ireland after his birth evidences the parents' shared intent that JMR reside in Ireland. Therefore, at least initially, JMR's habitual residence was in Ireland. Since November 2007, the parties have not maintained a shared intent as to the location of JMR's habitual residence. The question before the Court, therefore, was whether JMR's habitual residence has changed from Ireland to Illinois. 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 one end 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 v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001). On the other end "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." "In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence." The present dispute fell much closer to the latter end.
Ms. Redmond's actions revealed that she was fully aware that JMR's status in Illinois has always been contingent on the Irish custody proceedings. Both Mr. and Ms. Redmond vigorously litigated their cases before the Irish courts. Ms. Redmond was represented throughout the Irish custody proceedings and fully participated in them, frequently traveling with JMR to Ireland for court dates. Ms. Redmond was well aware that Mr. Redmond was seeking guardianship and custody rights of JMR in Ireland. In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to relocate with her to the United States. Although she may have hoped to move permanently to Illinois, Ms. Redmond also recognized that Ireland would have the ultimate say. For his part, Mr. Redmond never wavered that Ireland is JMR's habitual residence, as he filed for custody and guardianship shortly after Ms. Redmond first left. These circumstances weighed against a finding that JMR's habitual residence changed from Ireland to Illinois. JMR's status in Illinois-as evidenced by the conduct of both parties-has always been "contingent" or "temporary," and has never been "settled." Ms. Redmond acknowledged so much when she met with the Irish community welfare officer on March 12, 2008, when she petitioned the Irish courts to allow JMR to relocate with her to the United States in January 2009, and when she promised the Irish court in February 2011 that she would return with JMR to Ireland by March 30, 2011.
The next question was whether acclimatization should suffice to establish a change in JMR's habitual residence. Courts will often consider a child's habitual residence to be "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder. 63 F.3d 217, 224 (3d. Cir.1995). Under this framework, if JMR had become "acclimatized to the new environment to such a degree," then he can become "a habitual resident of the new country despite the parents' shared intentions." Koch. 450 F.3d at 714. Ms. Redmond contended that JMR's life in Illinois from November 2007 through March 30, 2011, changed his habitual residence from Ireland to Illinois. Ms. Redmond testified that JMR had a pediatrician and dentist in Illinois and that she placed him in KinderCare from the age of two-and-a-half through three-and-a-half. She further testified that JMR went with her (or her parents) to St. Michael's church, had play dates with his friends, and frequently interacted with his large extended family in Illinois. Ms. Redmond noted that JMR spent approximately ten-and-a-half weeks in Ireland between November 2007 and February 2011, but that these returns were (with the exception of the first) all for court dates.
While these facts, coupled with the passage of nearly three-and-a-half years of very early childhood, suggested that JMR was happy and well-adjusted to his life in Illinois, such a finding was not dispositive of habitual residence in this case. The Ninth Circuit has cautioned that despite the superficial appeal of focusing primarily on the child's contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Ms. Redmond unilaterally removed JMR from his original habitual residence in Ireland. Shortly thereafter, Mr. Redmond initiated custody proceedings to get JMR back. Indeed, what makes this case unique is Mr. Redmond's vigorous (and thus far successful) pursuit of his custody rights for nearly the entire duration of JMR's life in Illinois. As properly recognized by the Irish courts as well as the Circuit Court of Cook County, this is an Irish custody dispute, the merits of which have been, and should continue to be, adjudicated in Ireland. Ms. Redmond's flight to Illinois-which was only permitted in the first place because she promised under oath to return to Ireland-is
precisely the conduct that the Convention is designed to prevent.
The Court found that JMR's habitual residence was and still is in Ireland.
The Irish courts granted Mr. Redmond joint custody rights on February 10, 2011. While Ms. Redmond was granted leave to settle her affairs in the United States, she was ordered to return to Ireland with JMR by March 30, 2011, in order to share custody of JMR with Mr. Redmond "on a 50/50 basis." While ostensibly settling her affairs, she filed suit in the Circuit Court of Cook County. Ms. Redmond never returned to Ireland with JMR, and thereby breached Mr. Redmond's custody rights under Irish law.
Once a petitioner has established that he or she has custody rights under the laws of the country of habitual residence, courts 'liberally' find the exercise of those custody rights." Mr. Redmond exercised or attempted to exercise his custody rights since March 25, 2008, the date he initiated the Irish custody case. Mr. Redmond continued to actively pursue those rights through the instant petition under the Convention. Through his past and continued legal efforts, Mr. Redmond has established that he would have exercised his custody rights but for JMR's retention in Illinois. Mr. Redmond established, by a preponderance of the evidence, that as of March 30, 2011, JMR was wrongfully retained in Illinois, in violation of the Convention.
Mr. Redmond's petition for the return of JMR to Ireland was granted.
Monday, June 18, 2012
Acosta v Acosta, 2012 WL 2178982 (D.Minn.) [Peru] [Grave Risk of Harm]
In Acosta v Acosta, 2012 WL 2178982 (D.Minn.) Ricardo Acosta ("Ricardo") petitioned for the return of his two minor children M.A.A. and E.T.A. to Peru. Ricardo appeared telephonically from Peru. Ricardo was a citizen and resident of Peru. Anne Acosta the Respondent was citizen of the United States. She resided in Minnesota. Stephen and Susan Campbell were Anne's parents, and the grandparents of M.A.A. and E.T.A. Ricardo and Anne were the parents of two children: M.A.A., born February 6, 2003, and E.T.A., born August 23, 2007. On November 26, 2002, Ricardo and Anne were married in Ramsey County, Minnesota. From November 2002 to July 2006, Anne and Ricardo lived together in the United States in the states of Minnesota and Wisconsin. M.A.A. was born in the United States on February 6, 2003. In July 2006, Anne, Ricardo, and M.A.A. moved to Lima, Peru. On August 23, 2007, E.T.A. was born in Lima, Peru, and resided there with her family. While in Peru, Anne worked as a teacher at el Colegio de Franklin Delano Roosevelt (the "Roosevelt School"). Ricardo was briefly employed there as well, but more recently worked at the Lima airport.
Anne testified that Ricardo was verbally abusive towards her throughout their marriage. She testified that on at least one occasion Ricardo called her a "hippo" in the presence of M.A.A. and a "bitch" in the presence of E.T.A. Anne also testified that, prior to February 2011, Ricardo experienced several outbursts of violence which involved or were witnessed by his children. Specifically, she testified that Ricardo pushed M.A.A. down onto a bed for insubordination. She further testified that in about 2008 or 2009, Ricardo was driving the family car when he was cut off by a taxi. She testified that Ricardo: used the family car to force the taxi to a stop alongside the road's median, exited the car and assaulted the taxi driver, and broke the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel, all observed by M.A.A. and E.T .A., who were passengers in the family car.
In November 2010, Anne told Ricardo she was going to Minnesota for the holidays with M.A.A. and E.T.A. In prior years, Ricardo, Anne, and the children had all visited the United States together for the Christmas-New Year's holiday season. Stephen Campbell offered to purchase Ricardo an air ticket to visit the United States again that year, but Ricardo refused despite Stephen Campbell's urging. Anne had purchased airline tickets paid for by her father for her and the children to leave Peru for the United States on December 23, 2010 and return on February 16, 2011. After Anne, M.A.A., and E.T.A. left for Minnesota, Ricardo could not reach them by telephone over the holiday period. Anne, Susan Campbell, and Stephen Campbell would not return Ricardo's calls, would offer excuses why the children could not talk, or would not answer the phone.
Sometime in early February 2011, Anne informed Ricardo that she would seek a divorce and that M.A.A. and E.T.A. would not return to Peru on February 16, 2011 as planned. Anne made plans to return to Peru from February 11, 2011 to February 16, 2011 to retrieve her and her children's possessions. On February 11, 2011, Anne, accompanied by her brother Jeffrey Campbell, arrived in Lima. Concerned for their safety, Anne and Jeffrey Campbell asked several people to go with them to the apartment she previously shared with Ricardo. Elizabeth Norton LeBoo, Anne's colleague at the Roosevelt School, and Jacob Johansen, an acquaintance of Anne from a prior master's degree program that was also employed by the Roosevelt School, volunteered to assist. On February 13, 2011, accompanied by Jeffrey Campbell, Leboo, and Johansen, Anne returned to the Acosta apartment. While at the apartment, Anne telephoned Ricardo to tell him she was removing clothing and toys. They each testified Ricardo returned to the apartment, crashing his car into a pole outside. Ricardo then broke a window on the taxi they had taken to the apartment and which was awaiting their return. Jeffrey Campbell and Johansen held the door of the apartment shut as Ricardo tried to enter the apartment. Ricardo kicked the door to pieces and forced his way into the home. Ricardo began throwing items at Anne. Ricardo then grabbed a knife and chased the men while the women hid in a backroom. Ricardo chased Johansen outside where Ricardo cut Johansen's leg with the knife. Ricardo returned to the apartment and eventually forced his way into the backroom where he first battered LeBoo and then Anne. Police arrived and, after passively watching the events for some time, restrained Ricardo.
Ricardo's version of the events was entirely different. He testified that it was Anne and her friends that broke doors in his house and "provoked" him. Ricardo testified that Anne attacked him and then Jeffrey Campbell pushed him down and kicked him. Ricardo testified that he did not hurt or attack Anne or LeBoo. He also testified that they took $15,000.00 from the apartment. The court found that Ricardo's version of the events of February 13, 2011 was not credible. His story was inconsistent and evolved as questioning proceeded. The Court found that the testimony of LeBoo was highly credible and the testimony of Jeffrey Campbell was also highly credible. He testified that after Ricardo arrived at the apartment, Ricardo grabbed a knife from the kitchen counter and chased Johansen outside the apartment. Jeffrey Campbell then went to look for Anne and LeBoo. While looking for Anne and LeBoo, Jeffrey Campbell was corned in a hallway by Ricardo, holding out a knife. Jeffrey Campbell testified that Ricardo looked like "an enraged doppelganger" of his former self. Cornered in the
hallway, with Ricardo waving a large kitchen knife, Jeffrey Campbell begged Ricardo to spare his life. Ultimately, Ricardo did. As a result of the incident, Anne sustained injuries, including cuts to her hand requiring stitches and bruises. In the midst of the melee at the apartment, Ricardo called Susan Campbell's cell phone. In a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister.
After leaving the apartment, Ricardo went to the police station while Anne, Jeffrey Campbell, Johansen, and LeBoo went to the hospital and U.S. Embassy before arriving at the police station. At the police station, Ricardo was accompanied by several of his relatives. LeBoo and Jeffrey Campbell testified that the police did not appear to take their version of the events seriously. Jeffrey Campbell testified that the Lima police would not allow Anne and her supporters to leave the station because of concerns about their identification cards. Jeffrey Campbell testified they were eventually released
when he offered cash to an officer as advised by his Peruvian attorney. Afterwards, a police report was issued that stated Ricardo had seen Anne and "her lover" embracing.
After the incident, Ricardo called Rachel Metcalf Harrington, the principal at the Roosevelt School, and threatened to come to the Roosevelt School and kill Anne with a knife. Harrington, testifying telephonically from Peru, stated Ricardo had appeared in television interviews near school property where he has blamed school officials for his problems with obtaining custody of his children. Harrington and the school staff assess the threat posed by Ricardo as serious and have implemented an emergency protocol should he violate the ban on his presence on school property.
In the weeks after Anne's return from Peru, Ricardo made numerous calls to Stephen Campbell and Susan Campbell. He left threatening voicemails. In one voicemail he states, "I'll kill your kids, because she's [Anne is] taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away." He also spoke over the phone to both Stephen Campbell and Susan Campbell. In one live conversation with Susan Campbell, Ricardo threatened to kill M.A.A., E.T.A., and then himself.
On February 16, 2011, Anne met with officers from the Ramsey County Sheriff's Department, and a warrant was issued for Ricardo's arrest on February 18, 2011. On March 2, 2011, Ricardo initiated an action for custody of M.A.A. and E.T.A. before a Peruvian court in Lima. On March 10, 2011, Anne filed a Petition for Dissolution of Marriage, in which she sought custody of M.A.A. and E.T.A., in Minnesota state court in Ramsey County. On November 3, 2011, that Petition was dismissed for lack of jurisdiction. In May 2011, Ricardo traveled to Miami, Florida. Upon arrival, Ricardo was arrested. Id. He was eventually extradited to Minnesota. On September 1, 2011, Ricardo pled guilty in Ramsey County, Minnesota to making terroristic threats in violation of Minn .Stat. s 609.713. After his guilty plea, Ricardo returned to Peru to serve his probation. Visitation with M.A.A. and E.T.A. was arranged by use of the video-conferencing software Skype. The Skype visitation, however, stopped after one visit. Ricardo testified that he stopped the visitation because he preferred to explain what was occurring between him and Anne to his children in person.
While living in Peru, M.A.A. was enrolled in school at the Roosevelt School. Teachers at the Roosevelt School noted M.A.A. had behavioral problems. Harrington testified that M .A.A. told teachers he wanted to kill himself and he was referred to therapy. M.A.A. stopped therapy after two or three sessions because Ricardo felt the family could not afford it and because Ricardo felt, based on his own experiences, that therapy was ineffective. Harrington testified that in her nineteen years of experience as an educator, the severity of M.A.A.'s behavior problems stood out as one of the three most exceptional cases out of the thousands of students she has observed. Stephen Campbell testified that after M.A.A. arrived in the United States in December 2010, Stephen Campbell noticed M.A.A. would have violent outbursts, wet his bed at night, and said he wished he were dead. Stephen Campbell further testified that M.A.A. was now in therapy and his demeanor has improved and bed-wetting abated.
Dr. Jeffrey Edleson testified as an expert witness on behalf of Respondents. Dr. Edleson held a Ph.D. from the University of Wisconsin-Madison School of Social Work, and was a tenured professor at the University of Minnesota-Twin Cities School of Social Work. He testified that Ricardo's history of violence in the presence of others, escalation of violence, threats of suicide, and estrangement from his children were factors indicating a high risk of harm to M.A.A. and E.T.A were they to return to Peru. Dr. Edleson further testified that M.A.A.'s antisocial behavior was consistent with
exposure to domestic violence. RTX052-009 (noting a child's exposure to domestic violence correlates with antisocial behavior, anxiety, depression, and temperament problems). Dr. Edleson testified he believed M.A.A. to be exhibiting signs of depression.
At the close of the evidentiary hearing the court determined that the children were wrongfully retained in the United States, as contemplated by the Hague Convention, and that no other affirmative defenses applied. The sole issue before the Court was whether the affirmative defense in Article 13(b) of the Hague Convention applied. The Court observed that under Article 13(b), the Court is not bound to order the return of either M.A.A. or E.T.A. if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." . A "grave risk" of physical or psychological harm requires an assessment of whether the child will face "immediate and substantial risk of an intolerable situation" if returned to his or her country of habitual residence. Nunez-Escudero, 58 F.3d at 377.To prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to each child, not solely to a parent or some other third party. Hague Convention art. 13(b); see also Nunez-Escudero, 58 F.3d at 378 ("[Respondent] must present clear and convincing evidence that the return of the child to [his country of habitual residence] would subject him to a grave risk of harm...."); Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir.2010) ("The relevant inquiry is not whether there would be a grave risk of harm to [the child's mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.") However, where spousal abuse evinces a propensity towards violence and is accompanied by other risk factors specific to the child, a grave risk of harm to a child may be found. Baran v. Beaty, 526 F .3d 1340, 1346 (11th Cir.2008) (upholding finding of grave risk to child where Petitioner physically and verbally abused Respondent in addition to threatening to harm child, berating Respondent for hours in presence of child on one occasion, and handling child irresponsibly while drunk); Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing trial court's finding of no grave risk where evidence showed Petitioner had a propensity for violence based on history of spousal abuse and Petitioner beat and insulted Respondent in presence of children); Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir.2000) (finding grave risk where Petitioner had a history of disobeying court orders, had an "uncontrollably violent temper," had battered his other children, fought people younger than he, and based on the recognition of social science literature and law that spousal abuse is linked to physical and psychological injury to children). In determining whether a grave risk of harm to a child exists, courts may consider the environment to which the child would be returning. Nunez-Escudero, 58 F.3d at 377. In so doing, a court may consider both the resources in the country for dealing with domestic violence and the people awaiting the child. There is no requirement under the Hague Convention that a child actually have been previously harmed physically or psychologically; rather, the relevant inquiry is whether returning the child to the country of his habitual residence would present a grave risk of such harm or otherwise place him in an intolerable situation. Baran, 526 F.3d at 1346.
The district court found that grave risk of harm was proven by clear and convincing evidence and denied his petition. Ricardo had an explosive temper and propensity to maintain a state of violent rage. The breaking of a taxi windshield and assault incident in 2008 or 2009 and the February 13, 2011 apartment melee demonstrated that Ricardo, once enraged, will engage in acts of violence that are severe and not limited to his spouse. The severity of Ricardo's temper was underlined by his beating and threats to Anne but even more remarkably by his use of a weapon on Johansen, a man he had never previously met and did not believe to be his wife's lover; his beating of his wife's colleague LeBoo; and his highly specific threats towards Anne, her family members, and his own children. Ricardo's violent outbursts were not only severe, but they were of a lasting duration. After leaving the police station on February 13, 2011, he or someone acting at his direction attempted to gain access to LeBoo's residence. He also called the Roosevelt School and made highly specific threats. For weeks after the February 13, 2011 incident, he continued to make threatening phone calls to Stephen and Susan Campbell.. The circumstances to which M.A.A. and E.T.A. would return in Peru posed a grave risk of physical harm to them. What appeared to incite Ricardo's violence was the prospect of losing custody of his children. The evidence showed Ricardo did not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne. Dr. Edelson identified five high risk factors for future severe child abuse, including homicide. All were present in this case including threats by Ricardo to kill himself and his children. The Court was concerned about the police response were Anne, M.A.A., or E.T.A. to be in future physical danger from Ricardo. In light of the local police officers' slow response on February 13, 2011, the requirement to be paid cash prior to allowing the release of Anne and her friends from the police station where they had gone to report a crime, the filing of a false police report, and Ricardo's apparent influence over certain officers, the risk of harm to Anne, M.A.A., E.T.A. was exacerbated. The court found that a grave risk of physical harm to M.A.A. and E.T.A. existed should they be returned to Peru, and a grave risk of psychological harm was also present for M.A.A. and E.T.A. M.A.A. exhibited some behavior indicative of psychological harm.
Anne testified that Ricardo was verbally abusive towards her throughout their marriage. She testified that on at least one occasion Ricardo called her a "hippo" in the presence of M.A.A. and a "bitch" in the presence of E.T.A. Anne also testified that, prior to February 2011, Ricardo experienced several outbursts of violence which involved or were witnessed by his children. Specifically, she testified that Ricardo pushed M.A.A. down onto a bed for insubordination. She further testified that in about 2008 or 2009, Ricardo was driving the family car when he was cut off by a taxi. She testified that Ricardo: used the family car to force the taxi to a stop alongside the road's median, exited the car and assaulted the taxi driver, and broke the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel, all observed by M.A.A. and E.T .A., who were passengers in the family car.
In November 2010, Anne told Ricardo she was going to Minnesota for the holidays with M.A.A. and E.T.A. In prior years, Ricardo, Anne, and the children had all visited the United States together for the Christmas-New Year's holiday season. Stephen Campbell offered to purchase Ricardo an air ticket to visit the United States again that year, but Ricardo refused despite Stephen Campbell's urging. Anne had purchased airline tickets paid for by her father for her and the children to leave Peru for the United States on December 23, 2010 and return on February 16, 2011. After Anne, M.A.A., and E.T.A. left for Minnesota, Ricardo could not reach them by telephone over the holiday period. Anne, Susan Campbell, and Stephen Campbell would not return Ricardo's calls, would offer excuses why the children could not talk, or would not answer the phone.
Sometime in early February 2011, Anne informed Ricardo that she would seek a divorce and that M.A.A. and E.T.A. would not return to Peru on February 16, 2011 as planned. Anne made plans to return to Peru from February 11, 2011 to February 16, 2011 to retrieve her and her children's possessions. On February 11, 2011, Anne, accompanied by her brother Jeffrey Campbell, arrived in Lima. Concerned for their safety, Anne and Jeffrey Campbell asked several people to go with them to the apartment she previously shared with Ricardo. Elizabeth Norton LeBoo, Anne's colleague at the Roosevelt School, and Jacob Johansen, an acquaintance of Anne from a prior master's degree program that was also employed by the Roosevelt School, volunteered to assist. On February 13, 2011, accompanied by Jeffrey Campbell, Leboo, and Johansen, Anne returned to the Acosta apartment. While at the apartment, Anne telephoned Ricardo to tell him she was removing clothing and toys. They each testified Ricardo returned to the apartment, crashing his car into a pole outside. Ricardo then broke a window on the taxi they had taken to the apartment and which was awaiting their return. Jeffrey Campbell and Johansen held the door of the apartment shut as Ricardo tried to enter the apartment. Ricardo kicked the door to pieces and forced his way into the home. Ricardo began throwing items at Anne. Ricardo then grabbed a knife and chased the men while the women hid in a backroom. Ricardo chased Johansen outside where Ricardo cut Johansen's leg with the knife. Ricardo returned to the apartment and eventually forced his way into the backroom where he first battered LeBoo and then Anne. Police arrived and, after passively watching the events for some time, restrained Ricardo.
Ricardo's version of the events was entirely different. He testified that it was Anne and her friends that broke doors in his house and "provoked" him. Ricardo testified that Anne attacked him and then Jeffrey Campbell pushed him down and kicked him. Ricardo testified that he did not hurt or attack Anne or LeBoo. He also testified that they took $15,000.00 from the apartment. The court found that Ricardo's version of the events of February 13, 2011 was not credible. His story was inconsistent and evolved as questioning proceeded. The Court found that the testimony of LeBoo was highly credible and the testimony of Jeffrey Campbell was also highly credible. He testified that after Ricardo arrived at the apartment, Ricardo grabbed a knife from the kitchen counter and chased Johansen outside the apartment. Jeffrey Campbell then went to look for Anne and LeBoo. While looking for Anne and LeBoo, Jeffrey Campbell was corned in a hallway by Ricardo, holding out a knife. Jeffrey Campbell testified that Ricardo looked like "an enraged doppelganger" of his former self. Cornered in the
hallway, with Ricardo waving a large kitchen knife, Jeffrey Campbell begged Ricardo to spare his life. Ultimately, Ricardo did. As a result of the incident, Anne sustained injuries, including cuts to her hand requiring stitches and bruises. In the midst of the melee at the apartment, Ricardo called Susan Campbell's cell phone. In a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister.
After leaving the apartment, Ricardo went to the police station while Anne, Jeffrey Campbell, Johansen, and LeBoo went to the hospital and U.S. Embassy before arriving at the police station. At the police station, Ricardo was accompanied by several of his relatives. LeBoo and Jeffrey Campbell testified that the police did not appear to take their version of the events seriously. Jeffrey Campbell testified that the Lima police would not allow Anne and her supporters to leave the station because of concerns about their identification cards. Jeffrey Campbell testified they were eventually released
when he offered cash to an officer as advised by his Peruvian attorney. Afterwards, a police report was issued that stated Ricardo had seen Anne and "her lover" embracing.
After the incident, Ricardo called Rachel Metcalf Harrington, the principal at the Roosevelt School, and threatened to come to the Roosevelt School and kill Anne with a knife. Harrington, testifying telephonically from Peru, stated Ricardo had appeared in television interviews near school property where he has blamed school officials for his problems with obtaining custody of his children. Harrington and the school staff assess the threat posed by Ricardo as serious and have implemented an emergency protocol should he violate the ban on his presence on school property.
In the weeks after Anne's return from Peru, Ricardo made numerous calls to Stephen Campbell and Susan Campbell. He left threatening voicemails. In one voicemail he states, "I'll kill your kids, because she's [Anne is] taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away." He also spoke over the phone to both Stephen Campbell and Susan Campbell. In one live conversation with Susan Campbell, Ricardo threatened to kill M.A.A., E.T.A., and then himself.
On February 16, 2011, Anne met with officers from the Ramsey County Sheriff's Department, and a warrant was issued for Ricardo's arrest on February 18, 2011. On March 2, 2011, Ricardo initiated an action for custody of M.A.A. and E.T.A. before a Peruvian court in Lima. On March 10, 2011, Anne filed a Petition for Dissolution of Marriage, in which she sought custody of M.A.A. and E.T.A., in Minnesota state court in Ramsey County. On November 3, 2011, that Petition was dismissed for lack of jurisdiction. In May 2011, Ricardo traveled to Miami, Florida. Upon arrival, Ricardo was arrested. Id. He was eventually extradited to Minnesota. On September 1, 2011, Ricardo pled guilty in Ramsey County, Minnesota to making terroristic threats in violation of Minn .Stat. s 609.713. After his guilty plea, Ricardo returned to Peru to serve his probation. Visitation with M.A.A. and E.T.A. was arranged by use of the video-conferencing software Skype. The Skype visitation, however, stopped after one visit. Ricardo testified that he stopped the visitation because he preferred to explain what was occurring between him and Anne to his children in person.
While living in Peru, M.A.A. was enrolled in school at the Roosevelt School. Teachers at the Roosevelt School noted M.A.A. had behavioral problems. Harrington testified that M .A.A. told teachers he wanted to kill himself and he was referred to therapy. M.A.A. stopped therapy after two or three sessions because Ricardo felt the family could not afford it and because Ricardo felt, based on his own experiences, that therapy was ineffective. Harrington testified that in her nineteen years of experience as an educator, the severity of M.A.A.'s behavior problems stood out as one of the three most exceptional cases out of the thousands of students she has observed. Stephen Campbell testified that after M.A.A. arrived in the United States in December 2010, Stephen Campbell noticed M.A.A. would have violent outbursts, wet his bed at night, and said he wished he were dead. Stephen Campbell further testified that M.A.A. was now in therapy and his demeanor has improved and bed-wetting abated.
Dr. Jeffrey Edleson testified as an expert witness on behalf of Respondents. Dr. Edleson held a Ph.D. from the University of Wisconsin-Madison School of Social Work, and was a tenured professor at the University of Minnesota-Twin Cities School of Social Work. He testified that Ricardo's history of violence in the presence of others, escalation of violence, threats of suicide, and estrangement from his children were factors indicating a high risk of harm to M.A.A. and E.T.A were they to return to Peru. Dr. Edleson further testified that M.A.A.'s antisocial behavior was consistent with
exposure to domestic violence. RTX052-009 (noting a child's exposure to domestic violence correlates with antisocial behavior, anxiety, depression, and temperament problems). Dr. Edleson testified he believed M.A.A. to be exhibiting signs of depression.
At the close of the evidentiary hearing the court determined that the children were wrongfully retained in the United States, as contemplated by the Hague Convention, and that no other affirmative defenses applied. The sole issue before the Court was whether the affirmative defense in Article 13(b) of the Hague Convention applied. The Court observed that under Article 13(b), the Court is not bound to order the return of either M.A.A. or E.T.A. if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." . A "grave risk" of physical or psychological harm requires an assessment of whether the child will face "immediate and substantial risk of an intolerable situation" if returned to his or her country of habitual residence. Nunez-Escudero, 58 F.3d at 377.To prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to each child, not solely to a parent or some other third party. Hague Convention art. 13(b); see also Nunez-Escudero, 58 F.3d at 378 ("[Respondent] must present clear and convincing evidence that the return of the child to [his country of habitual residence] would subject him to a grave risk of harm...."); Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir.2010) ("The relevant inquiry is not whether there would be a grave risk of harm to [the child's mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.") However, where spousal abuse evinces a propensity towards violence and is accompanied by other risk factors specific to the child, a grave risk of harm to a child may be found. Baran v. Beaty, 526 F .3d 1340, 1346 (11th Cir.2008) (upholding finding of grave risk to child where Petitioner physically and verbally abused Respondent in addition to threatening to harm child, berating Respondent for hours in presence of child on one occasion, and handling child irresponsibly while drunk); Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing trial court's finding of no grave risk where evidence showed Petitioner had a propensity for violence based on history of spousal abuse and Petitioner beat and insulted Respondent in presence of children); Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir.2000) (finding grave risk where Petitioner had a history of disobeying court orders, had an "uncontrollably violent temper," had battered his other children, fought people younger than he, and based on the recognition of social science literature and law that spousal abuse is linked to physical and psychological injury to children). In determining whether a grave risk of harm to a child exists, courts may consider the environment to which the child would be returning. Nunez-Escudero, 58 F.3d at 377. In so doing, a court may consider both the resources in the country for dealing with domestic violence and the people awaiting the child. There is no requirement under the Hague Convention that a child actually have been previously harmed physically or psychologically; rather, the relevant inquiry is whether returning the child to the country of his habitual residence would present a grave risk of such harm or otherwise place him in an intolerable situation. Baran, 526 F.3d at 1346.
The district court found that grave risk of harm was proven by clear and convincing evidence and denied his petition. Ricardo had an explosive temper and propensity to maintain a state of violent rage. The breaking of a taxi windshield and assault incident in 2008 or 2009 and the February 13, 2011 apartment melee demonstrated that Ricardo, once enraged, will engage in acts of violence that are severe and not limited to his spouse. The severity of Ricardo's temper was underlined by his beating and threats to Anne but even more remarkably by his use of a weapon on Johansen, a man he had never previously met and did not believe to be his wife's lover; his beating of his wife's colleague LeBoo; and his highly specific threats towards Anne, her family members, and his own children. Ricardo's violent outbursts were not only severe, but they were of a lasting duration. After leaving the police station on February 13, 2011, he or someone acting at his direction attempted to gain access to LeBoo's residence. He also called the Roosevelt School and made highly specific threats. For weeks after the February 13, 2011 incident, he continued to make threatening phone calls to Stephen and Susan Campbell.. The circumstances to which M.A.A. and E.T.A. would return in Peru posed a grave risk of physical harm to them. What appeared to incite Ricardo's violence was the prospect of losing custody of his children. The evidence showed Ricardo did not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne. Dr. Edelson identified five high risk factors for future severe child abuse, including homicide. All were present in this case including threats by Ricardo to kill himself and his children. The Court was concerned about the police response were Anne, M.A.A., or E.T.A. to be in future physical danger from Ricardo. In light of the local police officers' slow response on February 13, 2011, the requirement to be paid cash prior to allowing the release of Anne and her friends from the police station where they had gone to report a crime, the filing of a false police report, and Ricardo's apparent influence over certain officers, the risk of harm to Anne, M.A.A., E.T.A. was exacerbated. The court found that a grave risk of physical harm to M.A.A. and E.T.A. existed should they be returned to Peru, and a grave risk of psychological harm was also present for M.A.A. and E.T.A. M.A.A. exhibited some behavior indicative of psychological harm.
Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) [Turkey] [Well-Settled] [Rights of access]
In Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) Nurettin Ozaltin filed a Petition on March 30,2012 for the return of his two minor children, S.E.O. and Y.O., to Turkey, and the enforcement of court-ordered visitation so long as the children remain in the United States. On April 2, 2012, the Court issued an order, directing Respondent Zeynep Tekiner Ozaltin to show cause as to why the Petition should not be granted. On April 30, 2012, and May 1, 2012, the parties appeared before the Court for an evidentiary hearing.
Both Petitioner and Respondent were dual citizens of Turkey and the United States. They were married on March 24, 2001, and had two daughters, S.E.O. (aged 8) and Y.O. (aged 6). Both children were born in New York and were also dual citizens of Turkey and the United States. Until December 22, 2010, the parties and the Children resided primarily in Turkey, first in Ankara and then in Istanbul. The Children regularly attended school in Turkey.
Respondent alleged that, on December 21, 2010, she and Petitioner had an argument about his drinking problem. During the argument, Petitioner told Respondent to take the Children and get out of the house. He warned her that, if she did not do so, he would fire the staff, close the house and cut her off financially. In her testimony at the hearing, Respondent further alleged that Petitioner shoved
her and threatened to kill her. The next day, December 22, 2010, Respondent decided to take the Children to New York for the holidays, and purchased round trip tickets for a flight out of Turkey. Respondent alleged that she called Petitioner from the Frankfurt airport during a layover to inform him that she was taking the Children to New York, and that Petitioner responded with words to the effect of "fine, stay there." Petitioner denied that the December 21, 2010, encounter and December 22, 2010, conversation ever took place. Since December 22, 2010, Respondent and the Children had been living in New York City.
On January 7, 2011, Petitioner filed an application, pursuant to the Hague Convention, with the Turkish Ministry of Justice, seeking the return of the Children from the United States to Turkey. On January 11, 2011, Respondent, acting through her Turkish attorney, applied for an order of protection against Petitioner. The 2d Uskudar Family Court issued an ex parte order of protection, directing Petitioner to refrain from using violence or threatening language against Respondent, from damaging the personal belongings of other family members, and from disturbing either Respondent or the Children by communication. On February 9, 2011, Respondent commenced a divorce action against Petitioner in the 3d Uskudar Family Court. Petitioner filed a cross-complaint for divorce. The divorce proceedings were currently pending.
On March 22, 2011, the Turkish Court ordered Petitioner to pay Respondent temporary alimony, of 4000 TL for the Respondent, and 3000 TL for each of the children. On May 13, 2011, Petitioner requested that the Turkish Court grant him provisional custody of the Children. The court rejected this request, but issued an order granting Petitioner overnight visitation with the Children, in the United States. Petitioner exercised his visitation rights several times between May 13, 2011, and August 2011, traveling to the United States to see the Children. On July 28, 2011, the Turkish Court issued an order granting Petitioner a two-week visitation period with the Children. On August 12, 2011, the Turkish Court issued an additional order, allowing Petitioner to take the Children outside the United States during the two weeks of visitation, and directing Respondent to give Petitioner the Children's passports. In a September 14, 2011, order, the Turkish Court specifically found that Petitioner "behaved contrary to good will and intentions by not delivering the children [to Respondent] on the appointed date, and that the children needs [sic] the care and compassion of their mothers [sic]." Petitioner ultimately turned the Children over to Respondent's representative on September 18, 2011, but the Children and Respondent remained in Turkey until November 4, 2011. On March 30, 2012, the Turkish Court again denied Petitioner's request for provisional custody of the Children, but reaffirmed the previously established visitation arrangements.
Throughout their lives, the Children had regularly traveled to and spent extended periods of time in New York. The Children were currently enrolled in school in New York and were also involved in various extracurricular activities. They had a close network of friends and family in New York, including Respondent's mother and sisters. Petitioner presently seeks the following permanent relief: 1) An order, pursuant to Article 12 of the Convention, directing the return of the Children to Turkey; 2) an order, pursuant to Article 21 of the Convention, enforcing, so long as the Children remain in the United States, Petitioner's rights of access to the Children (as granted by the Turkish Court); and 3) an order, pursuant to Article 26 of the Convention, directing Respondent to pay the costs incurred by Petitioner in connection with this action.
The Court found that, until December 22, 2010, Turkey was the Children's habitual residence. While the children traveled regularly to the United States, their primary residence was in Turkey, they attended school in Turkey, and their physicians, caretakers, and several extended family members were located in Turkey, The Court further finds that, despite a heavy business travel schedule, Petitioner was exercising custody rights at the time of the alleged wrongful retention.
The first issue was whether Respondent's removal of the children on December 22, 2010, and subsequent retention of them in the United States was wrongful. All of the proffered evidence indicated that Petitioner at no time consented to relocation of the Children's residence to New York. Petitioner has contacted the Turkish Ministry of Justice, sought custody of the Children in Turkish courts, and pursued his petition in the Court. Even if Petitioner approved the continuation of the Children's travel to New York, which was already in progress at the time Respondent allegedly placed the call from the Frankfurt airport, it was clear from the record that Petitioner neither consented or acquiesced in Respondent's subsequent retention of the Children in New York since that time.
Respondent's next argument was that her retention of the Children in New York was not wrongful because she had provisional custody of the Children, and so her retention did not violate Petitioner's custody rights. Respondent bases this reasoning on two premises-first, that Turkish law does not recognize the concept of joint custody and only awards one parent custody of a child upon separation; and second, that the Turkish Court had entered several orders denying Petitioner provisional custody. Thus, Respondent argued, the court orders denying Petitioner's requests for provisional
custody effectively granted Respondent provisional custody.
The Court observed that Turkish Civil Code Article 336 provides that: As long as the mother and the father are married, the custody of children is shared equally between the mother and the father. If they separate or divorce, the judge may decide to give the custody of the children to one of the spouses. In the event of the death of one of the spouses, custody belongs to the surviving spouse. Both Petitioner and Respondent proffered testimony by Turkish legal experts as to the parties' respective custody rights. Respondent's expert witness testified that, once parties separate, a Turkish court must grant provisional custody of the children to one parent or the other. He testified in a conclusory fashion that the various orders issued by the Turkish Court award Respondent provisional custody of the Children and that, by granting Petitioner visitation rights in the United States, the Turkish Court implicitly acknowledged that the Children need not be returned to Turkey. In contrast, Petitioner's expert testified that, during the pendency of divorce proceedings, Turkish courts will typically order children to live with one spouse, but that such an order is not tantamount to a grant of provisional custody, and does nothing to alter the custodial rights of the non-resident spouse. He testified that the orders issued by the Turkish Court to date provided only that the Children would live with Respondent during the divorce proceedings and should not be read to "constitute or 'imply' a termination or suspension of [Petitioner's] custodial rights." He further testified that the Turkish Court lacked the power to order Respondent to return to the United States with the Children, because of the pending Hague Convention petition. Petitioner's Turkish divorce lawyer, corroborated this point, testifying that, at the parties' first appearance in the divorce proceeding, she had advised the Turkish Court that Petitioner had filed a Hague Convention application with the Turkish Ministry of Justice and that the Turkish Court had instructed her to continue with that application process. The Ministry, which is Turkey's designated Central Authority for purposes of the Hague Convention, indicated that Petitioner and Respondent had joint custody of the Children: on April 5, 2012, Judge Seval Arslan of the Ministry wrote to the Department of State, the United States' designated Central Authority, and stated that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use [sic] to exercise those rights. In this context under Articles 3 and 12 of the Hague Convention, the [ mother] is in breach of rights of the [sic] custody under the law of Turkey in which the children were habitually resident before the removal,"
Based on the plain language of the Turkish Civil Code's joint custody provision and the evidence concerning the parties' relevant actions and interactions, the Court concluded that Petitioner had met his burden of showing that Respondent's retention of the Children in the United States is wrongful under the Convention.
As more than one year elapsed since Respondent originally removed the children from Turkey in December 2010 the Court was not obliged to order the Children's return to Turkey if Respondent could show that the Children are so well settled in New York that, "at least inferentially, return would be disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). The affirmative defense that a child is well settled in its new environment is meant to be narrow. See Lozano, 809 F.Supp.2d at 218. Furthermore, "even where the respondent meets his or her burden to show that [the] exception applies, the court may nevertheless exercise discretion to order
repatriation."Id. (internal quotations omitted); see also Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention").
The Court observed that some of the factors courts consider in determining whether a child is well settled include: 1) the age of the child; 2) the stability of the child's residence in the new environment; 3) whether the child attends school or day care consistently; 4) whether the child attends church (or another religious institution) regularly; 5) the stability of the mother's employment; and 6) whether the child has friends and relatives in the new area. Lozano, 809 F.Supp.2d at 230-31.
S.E.O. and Y.O. were ages eight and six, respectively, and spent the majority of their lives in Turkey. While Respondent argued that the Children were familiar with New York, their residence in New York was not continuous since the December 2010 removal from Turkey, as the Children spent approximately eight months in New York (December 22, 2010 to August 18, 2011), and then spent two and a half months in Turkey (August 18, 2011 to November 4, 2011), before returning to the United States for another five months (November 4, 2011 to March 30, 2010) before this action was
commenced. The children regularly traveled between Turkey and New York throughout their lives, and were accustomed to spending several months in both countries. The Children attended school consistently in New York, but they also attended school consistently in Turkey and, if returned to Turkey, would re-enroll in their former school. Similarly, while the Children had numerous friends and family in New York, the same was true of their relationships in Turkey. Given the financial resources available to both parties, the stability of Respondent's employment in New York was irrelevant. Considering all these factors, the Court found that Respondent failed to demonstrate by a preponderance of the evidence that the children were so well-settled in New York that returning them to Turkey would be "disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d at 152.
The Court granted th ePetition insofar as it sought the return of the Children to Turkey.
Respondent contended that the Court lacked jurisdiction to enforce Petitioner's rights of access, relying on Article 21 of the Convention, which states that "[a]n application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child." Respondent cited two cases, Wiezel v. Wiezel-Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it "had jurisdiction over an Article 12 claim by a petitioning parent who claimed to have custody rights but is seeking as, a remedy, only visitation and other access rights." 388 F.Supp.2d at 211. The court concluded that it lacked such jurisdiction, and that "the Convention sets forth separate procedures by which signatory nations may enforce access rights of petitioning parents, and those procedures do not involve the federal courts. Similarly, in Bromley, the court concluded that "the plain language of
[Article 21] of the Convention does not provide federal courts with jurisdiction over access rights." 30 F.Supp.2d at 860. In neither case, however, was the petitioning parent alleging wrongful removal of a child under Article 12 and seeking, as ancillary relief, rights of access as ordered by a court in the country of habitual residence. Furthermore, ICARA specifically authorizes a parent to "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child [by] commencing a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action." 42 U.S.C.A. 11603(b). Given the language of the statute, the Court found that it had jurisdiction to enforce Petitioner's rights of access to the Children, and ordered Respondent to comply with the visitation rights set forth by the Turkish Court's May 13, 2011, Order, so long as the Children remained in the United States.
Both Petitioner and Respondent were dual citizens of Turkey and the United States. They were married on March 24, 2001, and had two daughters, S.E.O. (aged 8) and Y.O. (aged 6). Both children were born in New York and were also dual citizens of Turkey and the United States. Until December 22, 2010, the parties and the Children resided primarily in Turkey, first in Ankara and then in Istanbul. The Children regularly attended school in Turkey.
Respondent alleged that, on December 21, 2010, she and Petitioner had an argument about his drinking problem. During the argument, Petitioner told Respondent to take the Children and get out of the house. He warned her that, if she did not do so, he would fire the staff, close the house and cut her off financially. In her testimony at the hearing, Respondent further alleged that Petitioner shoved
her and threatened to kill her. The next day, December 22, 2010, Respondent decided to take the Children to New York for the holidays, and purchased round trip tickets for a flight out of Turkey. Respondent alleged that she called Petitioner from the Frankfurt airport during a layover to inform him that she was taking the Children to New York, and that Petitioner responded with words to the effect of "fine, stay there." Petitioner denied that the December 21, 2010, encounter and December 22, 2010, conversation ever took place. Since December 22, 2010, Respondent and the Children had been living in New York City.
On January 7, 2011, Petitioner filed an application, pursuant to the Hague Convention, with the Turkish Ministry of Justice, seeking the return of the Children from the United States to Turkey. On January 11, 2011, Respondent, acting through her Turkish attorney, applied for an order of protection against Petitioner. The 2d Uskudar Family Court issued an ex parte order of protection, directing Petitioner to refrain from using violence or threatening language against Respondent, from damaging the personal belongings of other family members, and from disturbing either Respondent or the Children by communication. On February 9, 2011, Respondent commenced a divorce action against Petitioner in the 3d Uskudar Family Court. Petitioner filed a cross-complaint for divorce. The divorce proceedings were currently pending.
On March 22, 2011, the Turkish Court ordered Petitioner to pay Respondent temporary alimony, of 4000 TL for the Respondent, and 3000 TL for each of the children. On May 13, 2011, Petitioner requested that the Turkish Court grant him provisional custody of the Children. The court rejected this request, but issued an order granting Petitioner overnight visitation with the Children, in the United States. Petitioner exercised his visitation rights several times between May 13, 2011, and August 2011, traveling to the United States to see the Children. On July 28, 2011, the Turkish Court issued an order granting Petitioner a two-week visitation period with the Children. On August 12, 2011, the Turkish Court issued an additional order, allowing Petitioner to take the Children outside the United States during the two weeks of visitation, and directing Respondent to give Petitioner the Children's passports. In a September 14, 2011, order, the Turkish Court specifically found that Petitioner "behaved contrary to good will and intentions by not delivering the children [to Respondent] on the appointed date, and that the children needs [sic] the care and compassion of their mothers [sic]." Petitioner ultimately turned the Children over to Respondent's representative on September 18, 2011, but the Children and Respondent remained in Turkey until November 4, 2011. On March 30, 2012, the Turkish Court again denied Petitioner's request for provisional custody of the Children, but reaffirmed the previously established visitation arrangements.
Throughout their lives, the Children had regularly traveled to and spent extended periods of time in New York. The Children were currently enrolled in school in New York and were also involved in various extracurricular activities. They had a close network of friends and family in New York, including Respondent's mother and sisters. Petitioner presently seeks the following permanent relief: 1) An order, pursuant to Article 12 of the Convention, directing the return of the Children to Turkey; 2) an order, pursuant to Article 21 of the Convention, enforcing, so long as the Children remain in the United States, Petitioner's rights of access to the Children (as granted by the Turkish Court); and 3) an order, pursuant to Article 26 of the Convention, directing Respondent to pay the costs incurred by Petitioner in connection with this action.
The Court found that, until December 22, 2010, Turkey was the Children's habitual residence. While the children traveled regularly to the United States, their primary residence was in Turkey, they attended school in Turkey, and their physicians, caretakers, and several extended family members were located in Turkey, The Court further finds that, despite a heavy business travel schedule, Petitioner was exercising custody rights at the time of the alleged wrongful retention.
The first issue was whether Respondent's removal of the children on December 22, 2010, and subsequent retention of them in the United States was wrongful. All of the proffered evidence indicated that Petitioner at no time consented to relocation of the Children's residence to New York. Petitioner has contacted the Turkish Ministry of Justice, sought custody of the Children in Turkish courts, and pursued his petition in the Court. Even if Petitioner approved the continuation of the Children's travel to New York, which was already in progress at the time Respondent allegedly placed the call from the Frankfurt airport, it was clear from the record that Petitioner neither consented or acquiesced in Respondent's subsequent retention of the Children in New York since that time.
Respondent's next argument was that her retention of the Children in New York was not wrongful because she had provisional custody of the Children, and so her retention did not violate Petitioner's custody rights. Respondent bases this reasoning on two premises-first, that Turkish law does not recognize the concept of joint custody and only awards one parent custody of a child upon separation; and second, that the Turkish Court had entered several orders denying Petitioner provisional custody. Thus, Respondent argued, the court orders denying Petitioner's requests for provisional
custody effectively granted Respondent provisional custody.
The Court observed that Turkish Civil Code Article 336 provides that: As long as the mother and the father are married, the custody of children is shared equally between the mother and the father. If they separate or divorce, the judge may decide to give the custody of the children to one of the spouses. In the event of the death of one of the spouses, custody belongs to the surviving spouse. Both Petitioner and Respondent proffered testimony by Turkish legal experts as to the parties' respective custody rights. Respondent's expert witness testified that, once parties separate, a Turkish court must grant provisional custody of the children to one parent or the other. He testified in a conclusory fashion that the various orders issued by the Turkish Court award Respondent provisional custody of the Children and that, by granting Petitioner visitation rights in the United States, the Turkish Court implicitly acknowledged that the Children need not be returned to Turkey. In contrast, Petitioner's expert testified that, during the pendency of divorce proceedings, Turkish courts will typically order children to live with one spouse, but that such an order is not tantamount to a grant of provisional custody, and does nothing to alter the custodial rights of the non-resident spouse. He testified that the orders issued by the Turkish Court to date provided only that the Children would live with Respondent during the divorce proceedings and should not be read to "constitute or 'imply' a termination or suspension of [Petitioner's] custodial rights." He further testified that the Turkish Court lacked the power to order Respondent to return to the United States with the Children, because of the pending Hague Convention petition. Petitioner's Turkish divorce lawyer, corroborated this point, testifying that, at the parties' first appearance in the divorce proceeding, she had advised the Turkish Court that Petitioner had filed a Hague Convention application with the Turkish Ministry of Justice and that the Turkish Court had instructed her to continue with that application process. The Ministry, which is Turkey's designated Central Authority for purposes of the Hague Convention, indicated that Petitioner and Respondent had joint custody of the Children: on April 5, 2012, Judge Seval Arslan of the Ministry wrote to the Department of State, the United States' designated Central Authority, and stated that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use [sic] to exercise those rights. In this context under Articles 3 and 12 of the Hague Convention, the [ mother] is in breach of rights of the [sic] custody under the law of Turkey in which the children were habitually resident before the removal,"
Based on the plain language of the Turkish Civil Code's joint custody provision and the evidence concerning the parties' relevant actions and interactions, the Court concluded that Petitioner had met his burden of showing that Respondent's retention of the Children in the United States is wrongful under the Convention.
As more than one year elapsed since Respondent originally removed the children from Turkey in December 2010 the Court was not obliged to order the Children's return to Turkey if Respondent could show that the Children are so well settled in New York that, "at least inferentially, return would be disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). The affirmative defense that a child is well settled in its new environment is meant to be narrow. See Lozano, 809 F.Supp.2d at 218. Furthermore, "even where the respondent meets his or her burden to show that [the] exception applies, the court may nevertheless exercise discretion to order
repatriation."Id. (internal quotations omitted); see also Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention").
The Court observed that some of the factors courts consider in determining whether a child is well settled include: 1) the age of the child; 2) the stability of the child's residence in the new environment; 3) whether the child attends school or day care consistently; 4) whether the child attends church (or another religious institution) regularly; 5) the stability of the mother's employment; and 6) whether the child has friends and relatives in the new area. Lozano, 809 F.Supp.2d at 230-31.
S.E.O. and Y.O. were ages eight and six, respectively, and spent the majority of their lives in Turkey. While Respondent argued that the Children were familiar with New York, their residence in New York was not continuous since the December 2010 removal from Turkey, as the Children spent approximately eight months in New York (December 22, 2010 to August 18, 2011), and then spent two and a half months in Turkey (August 18, 2011 to November 4, 2011), before returning to the United States for another five months (November 4, 2011 to March 30, 2010) before this action was
commenced. The children regularly traveled between Turkey and New York throughout their lives, and were accustomed to spending several months in both countries. The Children attended school consistently in New York, but they also attended school consistently in Turkey and, if returned to Turkey, would re-enroll in their former school. Similarly, while the Children had numerous friends and family in New York, the same was true of their relationships in Turkey. Given the financial resources available to both parties, the stability of Respondent's employment in New York was irrelevant. Considering all these factors, the Court found that Respondent failed to demonstrate by a preponderance of the evidence that the children were so well-settled in New York that returning them to Turkey would be "disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d at 152.
The Court granted th ePetition insofar as it sought the return of the Children to Turkey.
Respondent contended that the Court lacked jurisdiction to enforce Petitioner's rights of access, relying on Article 21 of the Convention, which states that "[a]n application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child." Respondent cited two cases, Wiezel v. Wiezel-Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it "had jurisdiction over an Article 12 claim by a petitioning parent who claimed to have custody rights but is seeking as, a remedy, only visitation and other access rights." 388 F.Supp.2d at 211. The court concluded that it lacked such jurisdiction, and that "the Convention sets forth separate procedures by which signatory nations may enforce access rights of petitioning parents, and those procedures do not involve the federal courts. Similarly, in Bromley, the court concluded that "the plain language of
[Article 21] of the Convention does not provide federal courts with jurisdiction over access rights." 30 F.Supp.2d at 860. In neither case, however, was the petitioning parent alleging wrongful removal of a child under Article 12 and seeking, as ancillary relief, rights of access as ordered by a court in the country of habitual residence. Furthermore, ICARA specifically authorizes a parent to "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child [by] commencing a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action." 42 U.S.C.A. 11603(b). Given the language of the statute, the Court found that it had jurisdiction to enforce Petitioner's rights of access to the Children, and ordered Respondent to comply with the visitation rights set forth by the Turkish Court's May 13, 2011, Order, so long as the Children remained in the United States.
Lyon v Lyon, 2012 WL 1970363 (D.Kan.) [England] [Consent and Acquiescence]
In Lyon v Lyon, 2012 WL 1970363 (D.Kan.) petitioner Kevin Lyon filed a Verified Petition for Return of Child to England and Issuance of Show Cause Order seeking the return of his three-year-old son, F.M.S.L., to England under the Hague Convention. Mr. Lyon contended the respondent, Lisa Moreland, Lyon, the child's mother, unlawfully removed F.M.S.L. from England to Kansas in August 2011. Ms. Moreland-Lyon contended she did not wrongfully remove the child under the Act, that Kansas was the child's habitual residence, and that the Kansas state court had jurisdiction to determine the child's custody. She also argued that the well-settled exception applies, or that Mr. Lyon consented and acquiesced in F.M.S.L.'s removal. The court granted Mr. Lyon's motion and ordered that F.M.S.L. be returned to England.
Mr. Lyon and Ms. Moreland-Lyon met each other while she was on vacation in England in 1995. He was a citizen of the United Kingdom, and she was a citizen of the United States. By the end of 1997 or early 1998, Ms. Moreland-Lyon moved into Mr. Lyon's home in Prestwich, Manchester, England. After dating for four years, the couple married on October 28, 1999. For the next ten or eleven years, the couple lived in Prestwich. But it was normal for Ms. Moreland-Lyon to visit her mother in Kansas annually. While in England, Ms. Moreland-Lyon upgraded her academic qualifications in a school in the United Kingdom and obtained residency.
In March 2009, she gave birth to F.M. S.L. in Manchester. She stayed in the
United States for some of the pregnancy but traveled back to England in January 2009, in part to take advantage of England's universal healthcare system and so that F.M.S.L. would be eligible to receive "child benefit," which is provided to all children born in England. Half of this child benefit was deposited regularly into Ms. Moreland-Lyon's English bank account for F.M. S.L.'s benefit. Mr. Lyon has also deposited money in this bank account for F.M.S.L. for the last three years. Since birth, F.M.S.L. has lived in both the United States and England at various times. In the fall of 2009, Ms. Moreland-Lyon traveled with F.M.S.L. to the United States to attend the Renaissance Festival as she had done in the past. During their time in Kansas, they stayed with Ms. Moreland-Lyon's mother and stepfather in Overland Park, Kansas. Mr. Lyon visited for about a week in October. Ms. Moreland-Lyon and F.M.S.L. returned to England in early December. The couple spent Christmas in Manchester. From December 2009 to August 2010, Mr. Lyon, Ms. Moreland-Lyon, and F.M.S .L. lived in England in the couple's home and did typical family things. In early May 2010, the couple was outbid on a home they were looking at in Prestwich, which upset Ms. Moreland-Lyon. She was eager to move out of their home in Prestwich to this larger home nearby.
Ms. Moreland-Lyon and F.M.S.L. traveled back to Kansas for the Renaissance Festival in August 2010. The plan was for Ms. Moreland-Lyon to remain in Kansas for the duration of the festival and to return to England by October 28. She did not return by that date and decided to remain in Kansas longer. Ms. Moreland-Lyon's mother persuaded her to return to England with F.M. S.L. on May 11, 2011.
Ms. Moreland-Lyon visited the United States for the 2011 Renaissance Festival. She and her husband’s agreement provided that Ms. Moreland-Lyon would leave for the United States on August 4, 2011, and return to England on December 11, and that Ms. Moreland-Lyon and F.M. S.L. would return to the United States on February 1, 2012, and stay through August 14. Ms. Moreland-Lyon testified that she signed the agreement under duress because it was the only way she would get F.M.S.L.'s United States passport returned to her. On August 4, Ms. Moreland-Lyon and the child flew to Kansas. Mr. Lyon drove them to the airport and paid for the tickets. Mr. Lyon traveled
to Kansas in October. During the visit he met with Barbara Lyons, Director of the Johnson County Montessori Preschool and Day Care. The child was currently enrolled and attending the preschool. On December 9, Ms. Moreland-Lyon informed Mr. Lyon that she was not going to return to England on December 11 unless she had assurances from him that he would abide by the terms of the parties mediated agreement. Mr. Lyon provided several written assurances that he would abide by the agreement, yet Ms. Moreland-Lyon has refused to return to England with F.M.S.L.
The child was presently located in the District of Kansas, living with Ms. Moreland-Lyon in Overland Park. As in England, F.M. S.L. had a pediatrician and dentist in Kansas, and was flourishing in his environment. In December 2011, Ms. Moreland-Lyon initiated divorce proceedings against Mr.
Lyon in Kansas state court. The court entered Ex Parte Temporary Orders providing for rights of custody and access to Mr. Lyon and ordered the parties to participate in mediation to come up with a permanent parenting plan. A Decree of Divorce was entered in the case on April 16, 2012. The court found that Ms. Moreland-Lyon and the child "have been actual residents of the State of Kansas since August 3, 2010."The court stayed ruling on the custody of the child pending the outcome of the present Petition for Return of Child.
Mr. Lyon filed a Petition on March 23, 2012. The Court found that his habitual residence was England. F.M. S.L. had traveled back and forth from England to Kansas several times. Since birth he lived in England for approximately 16 months and Kansas for 14 months, not including the last 10 months since he was removed from England. The total number of months F.M.S.L. spent in each country was not determinative of the habitual residence issue. As such, the court had to look to the parents' conduct, intentions, and any agreements they may have made regarding the child's living arrangements before and after removal. It was clear from the testimony that England was the couple's home throughout their marriage. Ms. Moreland-Lyon lived in England throughout the marriage except during her trips to the United States to work at the Renaissance Festival and to substitute teach. But those trips were relatively short in duration. Mr. Lyon continued to live and work in England full-time and only traveled to the United States for brief vacations. Additionally, F.M.S.L. was born in England. He lived in England for the first five months of his life, and returned to the United States only for the Renaissance Festival in 2009, 2010, and 2011. During those three years the plan was that Ms. Moreland-Lyon would reside in the United States with F.M.S.L. during the Renaissance Festival as she had done in the past before he was born. Each year, Ms. Moreland- Lyon unilaterally extended those stays in the United States without Mr. Lyon's consent.
Ms. Moreland-Lyon's changed intentions were the sole reason F.M.S.L. was away from England for long periods of time, and this court found that her unilateral actions did not change F.M.S.L.'s habitual residence. See Mozes, 239 F.3d at 1077. Therefore, England was F.M.S.L.'s habitual residence.
It was undisputed (1) that the parties were married when Ms. Moreland-Lyon removed F.M.S.L. from England, (2) that Mr. Lyon is F.M.S.L.'s father, (3) that the parties divorced on April 16, 2012, (4) that no court has ordered custody in this matter, and (5) that the parties had an informal agreement regarding visitation. Mr. Lyon has rights of custody under English law under the Children Act 1989 and the Child Abduction Act 1984. Both acts provide that couples married at the time of a child's birth have joint parental responsibility for the child. Ms. Moreland-Lyon did not contest that her removal breached these custody rights. Therefore, Mr. Lyon had custody rights to F.M. S.L., and Ms. Moreland-Lyon's removal of the child to the United States violated those rights. It was also uncontested that Mr. Lyon was exercising his custody rights.
The Court rejected Ms. Morlands "well-settled" defense finding that the child was here less than a year. Regardless, the court was not persuaded that F.M. S.L. was well settled in Kansas simply because he had a doctor, dentist, a preschool, and people looking after him in Kansas. The facts indicated F.M.S.L. had those things in England too. There was no dispute that F.M.S.L. was doing well in Kansas or that he was acclimated to living there. But he also had acclimated to life in England, and he was young enough that he could grow accustomed to nearly any location within a short period of time. "[I]n the abscence of settled parental intent, courts should be slow to infer from [the contacts noted above] that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. For these reasons, the court found that the well-settled exception did not apply.
The court observed that it was not required to return the child if it found that the respondent established that the petitioner consented to or acquiesced in the removal. The consent defense requires that the respondent show that the petitioner consented to the removal before the removal. Acquiescence focuses on the petitioner's conduct after removal. Mrs. Moreland-Lyon argued that Mr. Lyon consented to the removal in August 2011 because he drove her and F.M.S.L. to the airport when they left England. These actions did not indicate that Mr. Lyon consented to F.M. S.L.'s permanent removal from England. Rather, Mr. Lyon did not really have a choice in the situation. Under the mediation agreement, Ms. Moreland-Lyon and F.M.S.L. were scheduled to leave for the United States. Mr. Lyon merely did what was in his nature-he drove his son and wife to the airport because he believed it was the right thing to do.
Ms. Moreland-Lyon argued that Mr. Lyon acquiesced in the removal by meeting with the Montessori school in Johnson County. Yet this did not indicate Mr. Lyon's acquiescence to F.M.S.L. living permanently in Kansas. Mr. Lyon testified that he looked at the school and ultimately enrolled his son there so that he could benefit from the opportunities the school provided. Enrollment in the school only showed that Mr. Lyon was trying to do the best for his son despite the couple's marital problems. Thus, the acquiescence argument failed.
Mr. Lyon and Ms. Moreland-Lyon met each other while she was on vacation in England in 1995. He was a citizen of the United Kingdom, and she was a citizen of the United States. By the end of 1997 or early 1998, Ms. Moreland-Lyon moved into Mr. Lyon's home in Prestwich, Manchester, England. After dating for four years, the couple married on October 28, 1999. For the next ten or eleven years, the couple lived in Prestwich. But it was normal for Ms. Moreland-Lyon to visit her mother in Kansas annually. While in England, Ms. Moreland-Lyon upgraded her academic qualifications in a school in the United Kingdom and obtained residency.
In March 2009, she gave birth to F.M. S.L. in Manchester. She stayed in the
United States for some of the pregnancy but traveled back to England in January 2009, in part to take advantage of England's universal healthcare system and so that F.M.S.L. would be eligible to receive "child benefit," which is provided to all children born in England. Half of this child benefit was deposited regularly into Ms. Moreland-Lyon's English bank account for F.M. S.L.'s benefit. Mr. Lyon has also deposited money in this bank account for F.M.S.L. for the last three years. Since birth, F.M.S.L. has lived in both the United States and England at various times. In the fall of 2009, Ms. Moreland-Lyon traveled with F.M.S.L. to the United States to attend the Renaissance Festival as she had done in the past. During their time in Kansas, they stayed with Ms. Moreland-Lyon's mother and stepfather in Overland Park, Kansas. Mr. Lyon visited for about a week in October. Ms. Moreland-Lyon and F.M.S.L. returned to England in early December. The couple spent Christmas in Manchester. From December 2009 to August 2010, Mr. Lyon, Ms. Moreland-Lyon, and F.M.S .L. lived in England in the couple's home and did typical family things. In early May 2010, the couple was outbid on a home they were looking at in Prestwich, which upset Ms. Moreland-Lyon. She was eager to move out of their home in Prestwich to this larger home nearby.
Ms. Moreland-Lyon and F.M.S.L. traveled back to Kansas for the Renaissance Festival in August 2010. The plan was for Ms. Moreland-Lyon to remain in Kansas for the duration of the festival and to return to England by October 28. She did not return by that date and decided to remain in Kansas longer. Ms. Moreland-Lyon's mother persuaded her to return to England with F.M. S.L. on May 11, 2011.
Ms. Moreland-Lyon visited the United States for the 2011 Renaissance Festival. She and her husband’s agreement provided that Ms. Moreland-Lyon would leave for the United States on August 4, 2011, and return to England on December 11, and that Ms. Moreland-Lyon and F.M. S.L. would return to the United States on February 1, 2012, and stay through August 14. Ms. Moreland-Lyon testified that she signed the agreement under duress because it was the only way she would get F.M.S.L.'s United States passport returned to her. On August 4, Ms. Moreland-Lyon and the child flew to Kansas. Mr. Lyon drove them to the airport and paid for the tickets. Mr. Lyon traveled
to Kansas in October. During the visit he met with Barbara Lyons, Director of the Johnson County Montessori Preschool and Day Care. The child was currently enrolled and attending the preschool. On December 9, Ms. Moreland-Lyon informed Mr. Lyon that she was not going to return to England on December 11 unless she had assurances from him that he would abide by the terms of the parties mediated agreement. Mr. Lyon provided several written assurances that he would abide by the agreement, yet Ms. Moreland-Lyon has refused to return to England with F.M.S.L.
The child was presently located in the District of Kansas, living with Ms. Moreland-Lyon in Overland Park. As in England, F.M. S.L. had a pediatrician and dentist in Kansas, and was flourishing in his environment. In December 2011, Ms. Moreland-Lyon initiated divorce proceedings against Mr.
Lyon in Kansas state court. The court entered Ex Parte Temporary Orders providing for rights of custody and access to Mr. Lyon and ordered the parties to participate in mediation to come up with a permanent parenting plan. A Decree of Divorce was entered in the case on April 16, 2012. The court found that Ms. Moreland-Lyon and the child "have been actual residents of the State of Kansas since August 3, 2010."The court stayed ruling on the custody of the child pending the outcome of the present Petition for Return of Child.
Mr. Lyon filed a Petition on March 23, 2012. The Court found that his habitual residence was England. F.M. S.L. had traveled back and forth from England to Kansas several times. Since birth he lived in England for approximately 16 months and Kansas for 14 months, not including the last 10 months since he was removed from England. The total number of months F.M.S.L. spent in each country was not determinative of the habitual residence issue. As such, the court had to look to the parents' conduct, intentions, and any agreements they may have made regarding the child's living arrangements before and after removal. It was clear from the testimony that England was the couple's home throughout their marriage. Ms. Moreland-Lyon lived in England throughout the marriage except during her trips to the United States to work at the Renaissance Festival and to substitute teach. But those trips were relatively short in duration. Mr. Lyon continued to live and work in England full-time and only traveled to the United States for brief vacations. Additionally, F.M.S.L. was born in England. He lived in England for the first five months of his life, and returned to the United States only for the Renaissance Festival in 2009, 2010, and 2011. During those three years the plan was that Ms. Moreland-Lyon would reside in the United States with F.M.S.L. during the Renaissance Festival as she had done in the past before he was born. Each year, Ms. Moreland- Lyon unilaterally extended those stays in the United States without Mr. Lyon's consent.
Ms. Moreland-Lyon's changed intentions were the sole reason F.M.S.L. was away from England for long periods of time, and this court found that her unilateral actions did not change F.M.S.L.'s habitual residence. See Mozes, 239 F.3d at 1077. Therefore, England was F.M.S.L.'s habitual residence.
It was undisputed (1) that the parties were married when Ms. Moreland-Lyon removed F.M.S.L. from England, (2) that Mr. Lyon is F.M.S.L.'s father, (3) that the parties divorced on April 16, 2012, (4) that no court has ordered custody in this matter, and (5) that the parties had an informal agreement regarding visitation. Mr. Lyon has rights of custody under English law under the Children Act 1989 and the Child Abduction Act 1984. Both acts provide that couples married at the time of a child's birth have joint parental responsibility for the child. Ms. Moreland-Lyon did not contest that her removal breached these custody rights. Therefore, Mr. Lyon had custody rights to F.M. S.L., and Ms. Moreland-Lyon's removal of the child to the United States violated those rights. It was also uncontested that Mr. Lyon was exercising his custody rights.
The Court rejected Ms. Morlands "well-settled" defense finding that the child was here less than a year. Regardless, the court was not persuaded that F.M. S.L. was well settled in Kansas simply because he had a doctor, dentist, a preschool, and people looking after him in Kansas. The facts indicated F.M.S.L. had those things in England too. There was no dispute that F.M.S.L. was doing well in Kansas or that he was acclimated to living there. But he also had acclimated to life in England, and he was young enough that he could grow accustomed to nearly any location within a short period of time. "[I]n the abscence of settled parental intent, courts should be slow to infer from [the contacts noted above] that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. For these reasons, the court found that the well-settled exception did not apply.
The court observed that it was not required to return the child if it found that the respondent established that the petitioner consented to or acquiesced in the removal. The consent defense requires that the respondent show that the petitioner consented to the removal before the removal. Acquiescence focuses on the petitioner's conduct after removal. Mrs. Moreland-Lyon argued that Mr. Lyon consented to the removal in August 2011 because he drove her and F.M.S.L. to the airport when they left England. These actions did not indicate that Mr. Lyon consented to F.M. S.L.'s permanent removal from England. Rather, Mr. Lyon did not really have a choice in the situation. Under the mediation agreement, Ms. Moreland-Lyon and F.M.S.L. were scheduled to leave for the United States. Mr. Lyon merely did what was in his nature-he drove his son and wife to the airport because he believed it was the right thing to do.
Ms. Moreland-Lyon argued that Mr. Lyon acquiesced in the removal by meeting with the Montessori school in Johnson County. Yet this did not indicate Mr. Lyon's acquiescence to F.M.S.L. living permanently in Kansas. Mr. Lyon testified that he looked at the school and ultimately enrolled his son there so that he could benefit from the opportunities the school provided. Enrollment in the school only showed that Mr. Lyon was trying to do the best for his son despite the couple's marital problems. Thus, the acquiescence argument failed.
Uzoh v Uzoh, 2012 WL 1565345 (N.D.Ill.)) [England] [Grave Risk of Harm] [Unclean hands]
In Uzoh v Uzoh, 2012 WL 1565345 (N.D.Ill.)) petitioner Chizoba Christopher Uzoh was "the father," and respondent Chidinma Akachi Uzoh was "the mother of two young children who lived in the United States without the consent of their father, a Nigerian national who resided and practices medicine in England. The mother was a Nigerian national who resided with her husband in England until May 9, 2011. The mother overstayed her tourist visa to the United States; her visa expired on November 9, 2011 and she was subject to deportation. However, she filed an asylum claim after
deciding not to return to the family home in England. Her asylum request was initially denied on December 8, 2011, with the statement; Material inconsistency(ies) within your testimony. The mother's present legal residency was far from settled. This was apparently a preliminary rejection; the notice also stated: This is not a denial of your asylum application. A removal hearing was set on April 4, 2013.
On December 27, 2011, the court granted the father's request for a rule to show cause ordering the mother to appear before the court with the children. The mother and father are husband and wife. Both are Nigerian nationals. They were married in Nigeria in 2008, but their marital home was in Bristol, England, where the father practiced medicine with the National Health Service and the mother worked for a victims' rights organization.
Before the birth of their first child on August 31, 2009, the father arranged for the mother to fly from England to Denver, Colorado, where their daughter was born. The mother and infant stayed with the father's sister. On October 22, 2009, the mother returned to the family home in England with their daughter in accordance with the couple's plans. The agreed purpose for the trip was to provide the child with the benefits of United States citizenship. Family life resumed in England. In time, a second child was expected. The couple agreed to follow the same plan for the birth to take place in Denver in order to secure United States citizenship for the new baby. The father purchased round trip tickets, and again the father's sister was to host the wife and their children. The mother traveled from England to Denver on May 9, 2011, accompanied by their daughter. The couple's second child, a son, was born on June 25, 2011. The father expected his wife and children to return within several months of the baby's birth. There were cordial communications between the parents immediately after the baby's birth. The father repeatedly inquired as to when his family would return home. The couple's relationship turned sour on July 27, 2011, when the mother informed the father she was in no hurry to return to England with the children. The father responded with a series of emails, evidencing his anger and frustration. The early emails implored the mother to return with the children, and to at least "make sure you return my kids." At the same time, he threatened to cancel the credit card he had given her if she did not come home. Id. She did not respond. Three days later, he cancelled the credit card because, as he later told his father-in-law, she threatened him with not returning to the United Kingdom with their children.
On August 9, 2011, the mother abruptly left her sister-in-law's Denver home with the children. She did not inform the father or her sister-in-law where she was taking the children. The father's reaction to his wife's disappearance with the children was acute rage, evidenced by his abusive and threatening emails to both the mother and his father-in-law, who lives in Nigeria. It was evident from the emails that the father believed his father-in-law was financially and emotionally supporting the mother's desertion of the marriage and abduction of their children. The father-in-law was an obvious advocate for his daughter. At trial, the father admitted that he "hacked" into his father-in-law's email account, deleting some communications with the mother.
At trial, the father admitted he sent the threatening emails. He explained he was outraged and depressed by the unexpected loss of his family and especially by his wife's refusal to communicate with him. The court found that the father's emails were inexcusably demeaning and threatening. Albeit, aggravated circumstances were involved: the sudden loss of his children and his wife's refusal to even inform him where their children were located. Given this situation, the father's bad behavior in sending emails to the mother and his father-in-law did not support a reasonable inference the
father has a proclivity for violent or abusive behavior. The mother terminated all contact with the father on October 31, 2011. A preponderance of the credible evidence established the mother unilaterally denied the father's parental and custody rights under English law.
The mother attempted to justify her conduct by claiming the father physically and mentally abused her while she lived with him in England. She related three instances of physical abuse, claiming two happened while she was pregnant and one purportedly took place in the presence of their daughter, then less than two years old. The father denied her accusations. The court did not find credible or trustworthy the mother's testimony that she fled from England to the United States out of fear of her husband. The mother was a well-educated and well-spoken university graduate, and she worked as a banker in Nigeria before her marriage. During and after the claimed abuse, she was a divisional administrator for a charitable organization that assisted victims and witnesses of crime, including domestic violence, in England and Wales. She had regular and frequent contact with British law enforcement officers and social services agencies in the course of her work. Yet she never complained to a law enforcement officer or social services agency about mistreatment. This is astounding because she is a sophisticated person on abuse issues and victims' rights. She did not testify that she suffered any actual injury, nor did she seek medical treatment or counseling for the purported assaults. When the mother traveled to the United States with her young daughter, it was for the purpose of providing United States citizenship by giving birth in Denver. The agreed intent of the parents at the relevant time was that the mother would use the round trip tickets to return home as
soon as she and the new baby could do so. She traveled on a tourist visa that was to expire in November 2011. She did not resign from her job until January 2012. Her elusive conduct after her son was born is far more revealing than her trial testimony.
The mother's demeanor in relating the three purported instances of violence was akin to testimony by an aggrieved spouse in an acrimonious divorce proceeding. The same may be said of the trial testimony of her own father. Although he never witnessed the father inflicting harm on the mother, the father-in-law testified that she told him about the husband's alleged abuse. The court does not find the father-in-law's testimony probative or reliable, given the lack of foundation and personal knowledge, as well as his close relationship with the mother. There was no reliable evidence proffered that these attacks happened. More importantly, there was no evidence that the father posed
any threat whatsoever to the safety of his children.
The Court observed that Habitual residence may be established by the shared actions and intent of the parents, coupled with the passage of time. Koch v. Koch, 350 F.3d 703, 715 (7th Cir.2006). The mother and father lived together in England during most of their marriage. The family's home was in England. Both parents were legal English residents and were employed in England. The mother did not resign from her job in England until January 2012, more than six months after traveling to the United States. The mother had an English drivers license reflecting the address of the couple's Bristol home. Their daughter received medical care in Bristol. Pet. Ex. 11 (reflecting also the child's Bristol home address).
She was enrolled in a local nursery school. Overwhelming evidence established that the daughter, like her parents, habitually resided in the United Kingdom. The son was born in the United States. Due to his mother's unilateral decision to remain in the United States against the father's wishes, the son had not lived in England. Nonetheless, at the time of the son's birth, the established family home was in Bristol, England. The father consented to the son's birth in the United States with the joint understanding that his wife would return to England with their children within several months. He purchased round trip airline tickets. The parents' joint intent for the son to live with the family in England was established by a preponderance of the evidence. The mother testified that she traveled to the United States for the express purpose of obtaining United States citizenship for the baby. This reason may have been a ruse, or she may have changed her own intentions after the baby's birth. The mother's reluctance to return to England was not disclosed to the father until she was due to return, several months after the son was born. She did not deny that the family home was in England, and that she lived and worked in England during her marriage until May 11, 2011. The only reason the son has not actually resided in England was the mother's decision to retain the children in the United States.
Birth in the United States does not automatically render the son's habitual residence as the United States. Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (Infant born in the United States did not acquire a United States habitual residence when the mother's habitual residence was in Sweden). A preponderance of the evidence established that the shared actions and intent of the parents before the son's birth was that he would reside in the family home in England. This was sufficient to show that the son's habitual residence was in the United Kingdom. The mother's argument that her son's habitual residence is in the United States lacked merit, given that his residence in the county since birth was due to her wrongful retention.
The father's assertion of parental custody rights under English law was uncontested at trial. The mother and father had a joint parental responsibility for their minor children, including the joint right to custody. The evidence was uncontested that the father exercised his joint custody rights with respect to his daughter before she was wrongfully retained in the United States. The family lived together, he provided for his daughter, and the family engaged in regular outings. The father never had contact with his son, who is an infant and is thousands of miles away due to the mother's wrongful conduct. The father repeatedly sought the return of his children and vigorously continues to do so through legal processes. The mother frustrated the father's efforts to exercise his joint right to custody of his children. A preponderance of the evidence establishes that the father had taken every reasonable (and a few unreasonable) means to exercise his joint custody rights.
The mother claimed the children would be at a grave risk of harm because of the father's capacity for violence. The record did not support her argument. The three contested acts of domestic violence she relied on were not credible, much less clear and convincing. She did not claim she suffered any resulting injuries. She never sought law enforcement intervention or complained to a social services agency, despite her work with victims of domestic abuse. Her testimony was implausible, and her father's testimony was based on hearsay. In addition, the mother relied on the father's threatening language in emails after she abducted the children, as a predictor of his capacity for violence. The emails were evidence of bad judgment, a mean spirit, and anger control problems. But the emails must be considered in context. His wife had just abducted the children in a foreign country, for awhile he did not even know where she had taken them, his wife ignored his demand that she bring the children home, and his father -in-law appeared to be supporting her wrongful behavior. The threatening "get even" emails to his wife and father-in-law were not violent behavior, nor was his possibly illegal intrusion into his father-in-law's email account evidence of a grave risk of harm to the children. The father's anger was out of control and his brutish emails were inexcusable. However, this remote form of misbehavior was not clear and convincing evidence of a proclivity for actual violence. There was no evidence to suggest that he ever abused the children or that he presents a grave risk of harm to them.
The mother argued that the father's petition should be denied on account of unclean hands, ie., his bad conduct. She relied on evidence that the father intercepted her emails, which allowed him to know she had applied for asylum. The father then sent an email to her asylum attorney, threatening to expose (what he saw as) the fraudulent nature of his wife's asylum claim. The father sent a copy of this email to the Federal Bureau of Investigation. The mother testified that the father also accessed her checkbook in England and used her funds. She again cited his admitted intrusion into his father-in-law's email account. The Court noted that an action under the Hague Convention is purely jurisdictional, it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention. The Hague Convention does not recognize unclean hands as a defense. Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010).
The Court also rejected the mothers Article 20 defense. Article 20 provides that a court may refuse to grant a petition under the Hague Convention if the return of the child would violate the United States' principles of human rights and fundamental freedoms. The mother argued that Article 20 was applicable for two reasons: the risk of harm created by returning the children to their father, who she alleges is abusive; and the possibility that the mother returning to the United Kingdom with her children would threaten the mother's pending application for asylum in the United States. The court pointed out that Article 20 is rarely invoked. This defense has never been asserted successfully in a published opinion in the United States. Here, there was no evidence that the children's human rights and fundamental freedoms would be in jeopardy in England in any way.
Article 13 of the Hague Convention provides that an abducted child need not be returned if the complaining parent consented or subsequently acquiesced in the child's removal or retention in another country. The Court found that the father only consented to his daughter traveling to the United States to accompany his wife for the agreed purpose of giving birth to their second child.
He purchased round trip tickets. He demanded that the mother return the children to England when she first revealed she was "not in a hurry" to return. He forcefully and repeatedly reiterated his view that she did not have a right to retain the children in the United States. In asserting this defense, the mother relied on a single email, in which the father stated his exasperation over the situation to his father-in-law. He said he was finished with his wife, but his "children will remain his children" and his wife "can keep them for now." This email sharply contrasts the father's consistent objections to his family remaining in the United States. He had been steadfast in his attempts to ensure their return, as evidenced by his conduct and his credible testimony at trial. A preponderance of the evidence did not support the argument that the father either consented or acquiesced to the mother's wrongful retention of the children in the United States.
The mother raised the defense of abandonment. The court noted that the Hague Convention does not recognize abandonment as an affirmative defense to child abduction. Moreover, the record did not factually support a conclusion that the father ever abandoned his children. Quite to the contrary, the record suggested that the mother abandoned her husband, home and legal residence in England.
The petition was granted for the return to the United Kingdom of the parties' children, identified as "O.U." born in 2009 and "N.U ." born in 2011.
deciding not to return to the family home in England. Her asylum request was initially denied on December 8, 2011, with the statement; Material inconsistency(ies) within your testimony. The mother's present legal residency was far from settled. This was apparently a preliminary rejection; the notice also stated: This is not a denial of your asylum application. A removal hearing was set on April 4, 2013.
On December 27, 2011, the court granted the father's request for a rule to show cause ordering the mother to appear before the court with the children. The mother and father are husband and wife. Both are Nigerian nationals. They were married in Nigeria in 2008, but their marital home was in Bristol, England, where the father practiced medicine with the National Health Service and the mother worked for a victims' rights organization.
Before the birth of their first child on August 31, 2009, the father arranged for the mother to fly from England to Denver, Colorado, where their daughter was born. The mother and infant stayed with the father's sister. On October 22, 2009, the mother returned to the family home in England with their daughter in accordance with the couple's plans. The agreed purpose for the trip was to provide the child with the benefits of United States citizenship. Family life resumed in England. In time, a second child was expected. The couple agreed to follow the same plan for the birth to take place in Denver in order to secure United States citizenship for the new baby. The father purchased round trip tickets, and again the father's sister was to host the wife and their children. The mother traveled from England to Denver on May 9, 2011, accompanied by their daughter. The couple's second child, a son, was born on June 25, 2011. The father expected his wife and children to return within several months of the baby's birth. There were cordial communications between the parents immediately after the baby's birth. The father repeatedly inquired as to when his family would return home. The couple's relationship turned sour on July 27, 2011, when the mother informed the father she was in no hurry to return to England with the children. The father responded with a series of emails, evidencing his anger and frustration. The early emails implored the mother to return with the children, and to at least "make sure you return my kids." At the same time, he threatened to cancel the credit card he had given her if she did not come home. Id. She did not respond. Three days later, he cancelled the credit card because, as he later told his father-in-law, she threatened him with not returning to the United Kingdom with their children.
On August 9, 2011, the mother abruptly left her sister-in-law's Denver home with the children. She did not inform the father or her sister-in-law where she was taking the children. The father's reaction to his wife's disappearance with the children was acute rage, evidenced by his abusive and threatening emails to both the mother and his father-in-law, who lives in Nigeria. It was evident from the emails that the father believed his father-in-law was financially and emotionally supporting the mother's desertion of the marriage and abduction of their children. The father-in-law was an obvious advocate for his daughter. At trial, the father admitted that he "hacked" into his father-in-law's email account, deleting some communications with the mother.
At trial, the father admitted he sent the threatening emails. He explained he was outraged and depressed by the unexpected loss of his family and especially by his wife's refusal to communicate with him. The court found that the father's emails were inexcusably demeaning and threatening. Albeit, aggravated circumstances were involved: the sudden loss of his children and his wife's refusal to even inform him where their children were located. Given this situation, the father's bad behavior in sending emails to the mother and his father-in-law did not support a reasonable inference the
father has a proclivity for violent or abusive behavior. The mother terminated all contact with the father on October 31, 2011. A preponderance of the credible evidence established the mother unilaterally denied the father's parental and custody rights under English law.
The mother attempted to justify her conduct by claiming the father physically and mentally abused her while she lived with him in England. She related three instances of physical abuse, claiming two happened while she was pregnant and one purportedly took place in the presence of their daughter, then less than two years old. The father denied her accusations. The court did not find credible or trustworthy the mother's testimony that she fled from England to the United States out of fear of her husband. The mother was a well-educated and well-spoken university graduate, and she worked as a banker in Nigeria before her marriage. During and after the claimed abuse, she was a divisional administrator for a charitable organization that assisted victims and witnesses of crime, including domestic violence, in England and Wales. She had regular and frequent contact with British law enforcement officers and social services agencies in the course of her work. Yet she never complained to a law enforcement officer or social services agency about mistreatment. This is astounding because she is a sophisticated person on abuse issues and victims' rights. She did not testify that she suffered any actual injury, nor did she seek medical treatment or counseling for the purported assaults. When the mother traveled to the United States with her young daughter, it was for the purpose of providing United States citizenship by giving birth in Denver. The agreed intent of the parents at the relevant time was that the mother would use the round trip tickets to return home as
soon as she and the new baby could do so. She traveled on a tourist visa that was to expire in November 2011. She did not resign from her job until January 2012. Her elusive conduct after her son was born is far more revealing than her trial testimony.
The mother's demeanor in relating the three purported instances of violence was akin to testimony by an aggrieved spouse in an acrimonious divorce proceeding. The same may be said of the trial testimony of her own father. Although he never witnessed the father inflicting harm on the mother, the father-in-law testified that she told him about the husband's alleged abuse. The court does not find the father-in-law's testimony probative or reliable, given the lack of foundation and personal knowledge, as well as his close relationship with the mother. There was no reliable evidence proffered that these attacks happened. More importantly, there was no evidence that the father posed
any threat whatsoever to the safety of his children.
The Court observed that Habitual residence may be established by the shared actions and intent of the parents, coupled with the passage of time. Koch v. Koch, 350 F.3d 703, 715 (7th Cir.2006). The mother and father lived together in England during most of their marriage. The family's home was in England. Both parents were legal English residents and were employed in England. The mother did not resign from her job in England until January 2012, more than six months after traveling to the United States. The mother had an English drivers license reflecting the address of the couple's Bristol home. Their daughter received medical care in Bristol. Pet. Ex. 11 (reflecting also the child's Bristol home address).
She was enrolled in a local nursery school. Overwhelming evidence established that the daughter, like her parents, habitually resided in the United Kingdom. The son was born in the United States. Due to his mother's unilateral decision to remain in the United States against the father's wishes, the son had not lived in England. Nonetheless, at the time of the son's birth, the established family home was in Bristol, England. The father consented to the son's birth in the United States with the joint understanding that his wife would return to England with their children within several months. He purchased round trip airline tickets. The parents' joint intent for the son to live with the family in England was established by a preponderance of the evidence. The mother testified that she traveled to the United States for the express purpose of obtaining United States citizenship for the baby. This reason may have been a ruse, or she may have changed her own intentions after the baby's birth. The mother's reluctance to return to England was not disclosed to the father until she was due to return, several months after the son was born. She did not deny that the family home was in England, and that she lived and worked in England during her marriage until May 11, 2011. The only reason the son has not actually resided in England was the mother's decision to retain the children in the United States.
Birth in the United States does not automatically render the son's habitual residence as the United States. Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (Infant born in the United States did not acquire a United States habitual residence when the mother's habitual residence was in Sweden). A preponderance of the evidence established that the shared actions and intent of the parents before the son's birth was that he would reside in the family home in England. This was sufficient to show that the son's habitual residence was in the United Kingdom. The mother's argument that her son's habitual residence is in the United States lacked merit, given that his residence in the county since birth was due to her wrongful retention.
The father's assertion of parental custody rights under English law was uncontested at trial. The mother and father had a joint parental responsibility for their minor children, including the joint right to custody. The evidence was uncontested that the father exercised his joint custody rights with respect to his daughter before she was wrongfully retained in the United States. The family lived together, he provided for his daughter, and the family engaged in regular outings. The father never had contact with his son, who is an infant and is thousands of miles away due to the mother's wrongful conduct. The father repeatedly sought the return of his children and vigorously continues to do so through legal processes. The mother frustrated the father's efforts to exercise his joint right to custody of his children. A preponderance of the evidence establishes that the father had taken every reasonable (and a few unreasonable) means to exercise his joint custody rights.
The mother claimed the children would be at a grave risk of harm because of the father's capacity for violence. The record did not support her argument. The three contested acts of domestic violence she relied on were not credible, much less clear and convincing. She did not claim she suffered any resulting injuries. She never sought law enforcement intervention or complained to a social services agency, despite her work with victims of domestic abuse. Her testimony was implausible, and her father's testimony was based on hearsay. In addition, the mother relied on the father's threatening language in emails after she abducted the children, as a predictor of his capacity for violence. The emails were evidence of bad judgment, a mean spirit, and anger control problems. But the emails must be considered in context. His wife had just abducted the children in a foreign country, for awhile he did not even know where she had taken them, his wife ignored his demand that she bring the children home, and his father -in-law appeared to be supporting her wrongful behavior. The threatening "get even" emails to his wife and father-in-law were not violent behavior, nor was his possibly illegal intrusion into his father-in-law's email account evidence of a grave risk of harm to the children. The father's anger was out of control and his brutish emails were inexcusable. However, this remote form of misbehavior was not clear and convincing evidence of a proclivity for actual violence. There was no evidence to suggest that he ever abused the children or that he presents a grave risk of harm to them.
The mother argued that the father's petition should be denied on account of unclean hands, ie., his bad conduct. She relied on evidence that the father intercepted her emails, which allowed him to know she had applied for asylum. The father then sent an email to her asylum attorney, threatening to expose (what he saw as) the fraudulent nature of his wife's asylum claim. The father sent a copy of this email to the Federal Bureau of Investigation. The mother testified that the father also accessed her checkbook in England and used her funds. She again cited his admitted intrusion into his father-in-law's email account. The Court noted that an action under the Hague Convention is purely jurisdictional, it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention. The Hague Convention does not recognize unclean hands as a defense. Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010).
The Court also rejected the mothers Article 20 defense. Article 20 provides that a court may refuse to grant a petition under the Hague Convention if the return of the child would violate the United States' principles of human rights and fundamental freedoms. The mother argued that Article 20 was applicable for two reasons: the risk of harm created by returning the children to their father, who she alleges is abusive; and the possibility that the mother returning to the United Kingdom with her children would threaten the mother's pending application for asylum in the United States. The court pointed out that Article 20 is rarely invoked. This defense has never been asserted successfully in a published opinion in the United States. Here, there was no evidence that the children's human rights and fundamental freedoms would be in jeopardy in England in any way.
Article 13 of the Hague Convention provides that an abducted child need not be returned if the complaining parent consented or subsequently acquiesced in the child's removal or retention in another country. The Court found that the father only consented to his daughter traveling to the United States to accompany his wife for the agreed purpose of giving birth to their second child.
He purchased round trip tickets. He demanded that the mother return the children to England when she first revealed she was "not in a hurry" to return. He forcefully and repeatedly reiterated his view that she did not have a right to retain the children in the United States. In asserting this defense, the mother relied on a single email, in which the father stated his exasperation over the situation to his father-in-law. He said he was finished with his wife, but his "children will remain his children" and his wife "can keep them for now." This email sharply contrasts the father's consistent objections to his family remaining in the United States. He had been steadfast in his attempts to ensure their return, as evidenced by his conduct and his credible testimony at trial. A preponderance of the evidence did not support the argument that the father either consented or acquiesced to the mother's wrongful retention of the children in the United States.
The mother raised the defense of abandonment. The court noted that the Hague Convention does not recognize abandonment as an affirmative defense to child abduction. Moreover, the record did not factually support a conclusion that the father ever abandoned his children. Quite to the contrary, the record suggested that the mother abandoned her husband, home and legal residence in England.
The petition was granted for the return to the United Kingdom of the parties' children, identified as "O.U." born in 2009 and "N.U ." born in 2011.
Nixon v Nixon, --- F.Supp.2d ----, 2011 WL 7972481 (D.N.M.) [Australia] [Grave Risk of Harm]
In Nixon v Nixon, --- F.Supp.2d ----, 2011 WL 7972481 (D.N.M.) Petitioner Mark Nixon was Australian and Respondent Gail Nixon was from the United States. On or about November 24, 2007, Mr. and Mrs. Nixon were married in Aztec, New Mexico. ON December 25, 2007, Mr. and Mrs. Nixon left for Sydney, Australia, where they lived together ever since. On or about July 15, 2010, in Australia, their son, Aidin Casey Nixon, was born. Aidin did not leave Australia until on or about July 2, 2011, when Mr. and Mrs. Nixon and Aidin traveled to New Mexico to visit Mrs. Nixon's family, who lived in Aztec. The parties had planned that Mr. Nixon would return to Sydney on July
10, 2011 because of work obligations, and that Mrs. Nixon and Aidin would stay on until August 31, 2011 with Mrs. Nixon's parents. Mrs. Nixon had a return ticket booked for August 31, 2011. On August 16, 2011, however, Mrs. Nixon canceled her return flight. On or about August 29, 2011, Mrs. Nixon filed a divorce action in the Eleventh Judicial District Court of New Mexico. On or about August 31, 2011, Mrs. Nixon informed Mr. Nixon by telephone that she was not coming back to
Australia, and that she had filed a divorce action in order to simplify custody.
On September 29, 2011, Mrs. Nixon's counsel advised Mr. Nixon's counsel that she would return to Australia. On October 4, 2011, however, Mrs. Nixon's counsel advised Mr. Nixon's counsel that Mrs. Nixon had changed her mind and intended to remain in New Mexico. Mr. Nixon did not consent to Mrs. Nixon's retention of Aidin in the United States. On October 5, 2011, Mr. Nixon filed the Petition, seeking, inter alia, an order directing that federal marshals and/or other law enforcement personnel be ordered to assist in picking up Aidin and returning him to the custody of Mr. Nixon,
allowing the prompt return of Mr. Nixon and Aidin to Australia, directing that Aidin's travel documents be surrendered with him, and requiring Mrs. Nixon to pay Mr. Nixon's costs and attorney fees. The Court granted the petition.
Mrs. Nixon argued that the United States, rather than Australia, was Aidin's habitual residence, because she never intended to be domiciled in Australia, but rather always intended to move back to Aztec, and, at some point in the past, believed that Mr. Nixon agreed to move to the United States. According to Mrs. Nixon, because Aidin was so young, his habitual residence was connected to his mother, and because she intended to move home to Aztec, Aztec was Aidin's habitual residence. Neither the evidence nor the relevant case law supported Mrs. Nixon's position. It was undisputed that, since their marriage, Mr. and Mrs. Nixon lived continuously in Australia. Mrs. Nixon was a permanent resident of Australia. Aidin was born in Australia and never left Australia until this trip to New Mexico. Mr. Nixon testified that it was never his intent to move to the United States. Mrs. Nixon admitted in her testimony that although she wanted to move back to Aztec at some point in the near future, Mr. Nixon did not share the same intention, and told her in no uncertain terms that he did not wish to relocate there. Mrs. Nixon further admitted that she is presently in the United States for what she intended to be a two-month vacation, and it was not until she had been here for six weeks that she decided not to return to Australia. Mrs. Nixon actually had a ticket to return to Australia with Aidin on August 31, 2011.
Considering Aidin's past experiences and the parties' shared intentions, it was clear that Australia was the only place where Aidin had been physically present for an amount of time sufficient for acclimatization, and which had a "settled purpose" from his perspective. Mr. and Mrs. Nixon had no shared intention that Aidin reside in Aztec, New Mexico. Although the parties brought Aidin to the United States, the trip was intended by both of them to be of a specific period of two months. The fact that Mrs. Nixon unilaterally changed her intentions six weeks into the visit was insufficient to alter Aidin's habitual residence. Aidin was born in Australia and resided exclusively in Australia until Mrs. Nixon retained him in the United States. The Court found that Aidin was a habitual resident of Australia at the time of his retention in the United States.
Because Australia would apply its own laws in this case, Mr. Nixon's "custody rights were determined by Australia's Family Law Act 1975, of which [this Court] may take notice directly." Under Australia's Family Law Act 1975, "in the absence of any orders of court, each parent is a joint guardian and a joint custodian of the child, and guardianship and custody rights involve essentially the right to have and make decisions concerning daily care and control of the child."(Family Law Act 63(F)(1), 63E(1) and (2)). As there were no court orders to the contrary, Mr. Nixon had joint custody and control of Aidin. Accordingly, Mrs. Nixon's unilateral decision to retain Aidin in the United States was in breach of Mr. Nixon's custody rights under the laws of Australia, the state of Aidin's habitual residence.
The evidence demonstrated that, far from abandoning his child, Mr. Nixon lived with Mrs. Nixon and Aidin "as a family." When Aidin was born, Mr. Nixon took four weeks leave from work to care for him. Mrs. Nixon testified that when she was at work every Friday, Saturday and Sunday evening, Mr. Nixon watched Aidin and put him to bed. Mr. Nixon similarly testified that he helped Mrs. Nixon "as much as possible, in terms of raising Aidin," which involved "doing anything from looking after Aidin, ... taking him for walks, bathing him, putting him to bed, reading him stories, playing with him." Accordingly, the Court found that Mr. Nixon was exercising his custodial rights at the time of Mrs. Nixon's retention of Aidin in the United States.
The sole defense argued by Mrs. Nixon was that Aidin would be exposed to a grave risk of harm if returned to Australia. Mrs. Nixon alleged that Aidin would suffer grave harm if he were taken from his mother, as she is still nursing him. Mrs. Nixon alleged that Mr. Nixon was diagnosed with ALS and suffered from obsessive/compulsive disorder, both of which conditions called into question his ability to care for Aidin Finally, Mrs. Nixon alleged that Mr. Nixon informed her that upon her return to Australia, he would take sole custody of Aidin and that she could live "somewhere," perhaps with her brother who lives five hours away from the marital residence, which would be an intolerable situation for Aidin. Mrs. Nixon testified that several times, Mr. Nixon held Aidin and fallen over, and she was worried that he would again hold Aidin and fall. She also testified that Mr. Nixon was controlling and rigid, and disagreed with her as to issues such as Aidin's feeding and sleeping schedules. Additionally, Mrs. Nixon testified that when she asked Mr. Nixon what would happen if she returned to Australia, he "made it clear that [she] might be able to live with him, maybe not." She further testified that, when she asked him where she was supposed to live, he responded, "I don't know, but we'll figure it out," and indicated that he could take leave from work and have primary custody of Aidin for a period of time. Based on this conversation, Mrs. Nixon became afraid that Mr. Nixon expected her to "land in Australia, hand Aidin over, and be basically on the streets." Mrs. Nixon testified: [I]t's still very alarming to fly halfway across the world, get off a plane, and not know where you're going to live and how you're going to be supported, especially with an infant that I'm still breast feeding. That is unacceptable and intolerable for myself and for our son."
The Court observed that federal courts uniformly note that "[t]he bar for proving the 'grave risk' exception is set exceptionally high." Krefter v. Wills, 623 F.Supp.2d 125, 135 (D.Mass.2009). The Court found that Mrs. Nixon's allegations fell short of establishing a grave risk of harm if Aidin was returned to Australia. Mrs. Nixon intended to return to Australia along with Aidin. Accordingly, any danger that would result from Aidin's separation from his mother would not come to pass. Notably, an order that Aidin be returned to Australia is not the equivalent of an order that Mr. Nixon is entitled
to sole custody of Aidin. Mr. Nixon testified that it was not his intention to take sole custody of Aidin upon his return to Australia. He explained that he had the opportunity to take five months paid leave to care for Aidin, so long as "he is designated the primary caregiver," and that this is "an option for discussion with [Mrs. Nixon]." Further, Mrs. Nixon's concerns about Mr. Nixon's fitness as a parent were unsupported. Mr. Nixon testified that he had not been officially diagnosed with ALS, and Mrs. Nixon presented no evidence that any doctor has ever advised him that it is unsafe for him to care for Aidin. Mr. Nixon had been in counseling for years for his emotional issues, and he had never been advised by a counselor that his OCD interferes with his ability to care for Aidin. Until they left for the United States, Mrs. Nixon routinely entrusted Aidin to Mr. Nixon's care. Mrs. Nixon's testimony as to her experience of Mr. Nixon as controlling did not rise to the level required to establish that Aidin's return to Australia will expose him to a grave risk of harm. While her testimony demonstrated parenting and personality differences, such differences were not uncommon, and certainly did not demonstrate that Mr. Nixon posed a danger to his son. Finally, courts routinely have held that financial concerns are insufficient to establish an "intolerable situation." Krefter, 623 F.Supp.2d at 136-37; Wilchynski v. Wilchynski, No. 3:1-CV-63, 2010 WL 1068070, *9 (S.D. Miss. Mar. 18, 2010). Accordingly, Mrs. Nixon's fears about her ability to support herself and maintain a home where she could nurse and properly care for Aidin did not meet the standard necessary to show a risk of grave harm. Because Mrs. Nixon failed to establish a valid defense to her wrongful retention of Aidin in the United States, Aidin had to be returned to Australia.
The Court accepted Mr. Nixon's proposed undertakings, and ordered that Mrs. Nixon will continue to live in the marital residence, and Mr. Nixon will provide Mrs. Nixon with maintenance and support, until such time as the courts in Australia make other arrangements for the parties.
10, 2011 because of work obligations, and that Mrs. Nixon and Aidin would stay on until August 31, 2011 with Mrs. Nixon's parents. Mrs. Nixon had a return ticket booked for August 31, 2011. On August 16, 2011, however, Mrs. Nixon canceled her return flight. On or about August 29, 2011, Mrs. Nixon filed a divorce action in the Eleventh Judicial District Court of New Mexico. On or about August 31, 2011, Mrs. Nixon informed Mr. Nixon by telephone that she was not coming back to
Australia, and that she had filed a divorce action in order to simplify custody.
On September 29, 2011, Mrs. Nixon's counsel advised Mr. Nixon's counsel that she would return to Australia. On October 4, 2011, however, Mrs. Nixon's counsel advised Mr. Nixon's counsel that Mrs. Nixon had changed her mind and intended to remain in New Mexico. Mr. Nixon did not consent to Mrs. Nixon's retention of Aidin in the United States. On October 5, 2011, Mr. Nixon filed the Petition, seeking, inter alia, an order directing that federal marshals and/or other law enforcement personnel be ordered to assist in picking up Aidin and returning him to the custody of Mr. Nixon,
allowing the prompt return of Mr. Nixon and Aidin to Australia, directing that Aidin's travel documents be surrendered with him, and requiring Mrs. Nixon to pay Mr. Nixon's costs and attorney fees. The Court granted the petition.
Mrs. Nixon argued that the United States, rather than Australia, was Aidin's habitual residence, because she never intended to be domiciled in Australia, but rather always intended to move back to Aztec, and, at some point in the past, believed that Mr. Nixon agreed to move to the United States. According to Mrs. Nixon, because Aidin was so young, his habitual residence was connected to his mother, and because she intended to move home to Aztec, Aztec was Aidin's habitual residence. Neither the evidence nor the relevant case law supported Mrs. Nixon's position. It was undisputed that, since their marriage, Mr. and Mrs. Nixon lived continuously in Australia. Mrs. Nixon was a permanent resident of Australia. Aidin was born in Australia and never left Australia until this trip to New Mexico. Mr. Nixon testified that it was never his intent to move to the United States. Mrs. Nixon admitted in her testimony that although she wanted to move back to Aztec at some point in the near future, Mr. Nixon did not share the same intention, and told her in no uncertain terms that he did not wish to relocate there. Mrs. Nixon further admitted that she is presently in the United States for what she intended to be a two-month vacation, and it was not until she had been here for six weeks that she decided not to return to Australia. Mrs. Nixon actually had a ticket to return to Australia with Aidin on August 31, 2011.
Considering Aidin's past experiences and the parties' shared intentions, it was clear that Australia was the only place where Aidin had been physically present for an amount of time sufficient for acclimatization, and which had a "settled purpose" from his perspective. Mr. and Mrs. Nixon had no shared intention that Aidin reside in Aztec, New Mexico. Although the parties brought Aidin to the United States, the trip was intended by both of them to be of a specific period of two months. The fact that Mrs. Nixon unilaterally changed her intentions six weeks into the visit was insufficient to alter Aidin's habitual residence. Aidin was born in Australia and resided exclusively in Australia until Mrs. Nixon retained him in the United States. The Court found that Aidin was a habitual resident of Australia at the time of his retention in the United States.
Because Australia would apply its own laws in this case, Mr. Nixon's "custody rights were determined by Australia's Family Law Act 1975, of which [this Court] may take notice directly." Under Australia's Family Law Act 1975, "in the absence of any orders of court, each parent is a joint guardian and a joint custodian of the child, and guardianship and custody rights involve essentially the right to have and make decisions concerning daily care and control of the child."(Family Law Act 63(F)(1), 63E(1) and (2)). As there were no court orders to the contrary, Mr. Nixon had joint custody and control of Aidin. Accordingly, Mrs. Nixon's unilateral decision to retain Aidin in the United States was in breach of Mr. Nixon's custody rights under the laws of Australia, the state of Aidin's habitual residence.
The evidence demonstrated that, far from abandoning his child, Mr. Nixon lived with Mrs. Nixon and Aidin "as a family." When Aidin was born, Mr. Nixon took four weeks leave from work to care for him. Mrs. Nixon testified that when she was at work every Friday, Saturday and Sunday evening, Mr. Nixon watched Aidin and put him to bed. Mr. Nixon similarly testified that he helped Mrs. Nixon "as much as possible, in terms of raising Aidin," which involved "doing anything from looking after Aidin, ... taking him for walks, bathing him, putting him to bed, reading him stories, playing with him." Accordingly, the Court found that Mr. Nixon was exercising his custodial rights at the time of Mrs. Nixon's retention of Aidin in the United States.
The sole defense argued by Mrs. Nixon was that Aidin would be exposed to a grave risk of harm if returned to Australia. Mrs. Nixon alleged that Aidin would suffer grave harm if he were taken from his mother, as she is still nursing him. Mrs. Nixon alleged that Mr. Nixon was diagnosed with ALS and suffered from obsessive/compulsive disorder, both of which conditions called into question his ability to care for Aidin Finally, Mrs. Nixon alleged that Mr. Nixon informed her that upon her return to Australia, he would take sole custody of Aidin and that she could live "somewhere," perhaps with her brother who lives five hours away from the marital residence, which would be an intolerable situation for Aidin. Mrs. Nixon testified that several times, Mr. Nixon held Aidin and fallen over, and she was worried that he would again hold Aidin and fall. She also testified that Mr. Nixon was controlling and rigid, and disagreed with her as to issues such as Aidin's feeding and sleeping schedules. Additionally, Mrs. Nixon testified that when she asked Mr. Nixon what would happen if she returned to Australia, he "made it clear that [she] might be able to live with him, maybe not." She further testified that, when she asked him where she was supposed to live, he responded, "I don't know, but we'll figure it out," and indicated that he could take leave from work and have primary custody of Aidin for a period of time. Based on this conversation, Mrs. Nixon became afraid that Mr. Nixon expected her to "land in Australia, hand Aidin over, and be basically on the streets." Mrs. Nixon testified: [I]t's still very alarming to fly halfway across the world, get off a plane, and not know where you're going to live and how you're going to be supported, especially with an infant that I'm still breast feeding. That is unacceptable and intolerable for myself and for our son."
The Court observed that federal courts uniformly note that "[t]he bar for proving the 'grave risk' exception is set exceptionally high." Krefter v. Wills, 623 F.Supp.2d 125, 135 (D.Mass.2009). The Court found that Mrs. Nixon's allegations fell short of establishing a grave risk of harm if Aidin was returned to Australia. Mrs. Nixon intended to return to Australia along with Aidin. Accordingly, any danger that would result from Aidin's separation from his mother would not come to pass. Notably, an order that Aidin be returned to Australia is not the equivalent of an order that Mr. Nixon is entitled
to sole custody of Aidin. Mr. Nixon testified that it was not his intention to take sole custody of Aidin upon his return to Australia. He explained that he had the opportunity to take five months paid leave to care for Aidin, so long as "he is designated the primary caregiver," and that this is "an option for discussion with [Mrs. Nixon]." Further, Mrs. Nixon's concerns about Mr. Nixon's fitness as a parent were unsupported. Mr. Nixon testified that he had not been officially diagnosed with ALS, and Mrs. Nixon presented no evidence that any doctor has ever advised him that it is unsafe for him to care for Aidin. Mr. Nixon had been in counseling for years for his emotional issues, and he had never been advised by a counselor that his OCD interferes with his ability to care for Aidin. Until they left for the United States, Mrs. Nixon routinely entrusted Aidin to Mr. Nixon's care. Mrs. Nixon's testimony as to her experience of Mr. Nixon as controlling did not rise to the level required to establish that Aidin's return to Australia will expose him to a grave risk of harm. While her testimony demonstrated parenting and personality differences, such differences were not uncommon, and certainly did not demonstrate that Mr. Nixon posed a danger to his son. Finally, courts routinely have held that financial concerns are insufficient to establish an "intolerable situation." Krefter, 623 F.Supp.2d at 136-37; Wilchynski v. Wilchynski, No. 3:1-CV-63, 2010 WL 1068070, *9 (S.D. Miss. Mar. 18, 2010). Accordingly, Mrs. Nixon's fears about her ability to support herself and maintain a home where she could nurse and properly care for Aidin did not meet the standard necessary to show a risk of grave harm. Because Mrs. Nixon failed to establish a valid defense to her wrongful retention of Aidin in the United States, Aidin had to be returned to Australia.
The Court accepted Mr. Nixon's proposed undertakings, and ordered that Mrs. Nixon will continue to live in the marital residence, and Mr. Nixon will provide Mrs. Nixon with maintenance and support, until such time as the courts in Australia make other arrangements for the parties.
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