In Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) Petitioner
Gallardo was a citizen of the Republic of Mexico and Respondent Orozco was a
citizen of the United States. Petitioner and Respondent were the parents of G.G.
who was born in Denton, Texas, in May of 2005. G.G. was currently 8 years old.
Petitioner and Respondent were married in Las Vegas, New Mexico, on December 18,
2006.
In 2007, Petitioner and Respondent relocated with G.G. from Los Alamos,
New Mexico, to Puerto Penasco, Sonora, Mexico. Petitioner and Respondent had a
shared intent to move G.G. from the United States to Puerto Penasco, Sonora,
Mexico. Since 2007 when the entire family relocated to Puerto Penasco, Sonora,
Mexico, from Los Alamos, New Mexico, until on or about July 26, 2012, G.G.
continuously lived with Petitioner in Puerto Penasco, Sonora, Mexico..
Respondent lived with Petitioner and G.G. in Puerto Penasco, Sonora, Mexico, for
approximately two years, until he moved to Midland, Texas. In 2008 Petitioner
and Respondent attempted to reunite and relocate to the United States.
Petitioner tried to return to the United States illegally and was arrested on
December 29, 2008, while attempting to cross the Rio Grande near the port of
entry at El Paso, Texas. Respondent was in the United States awaiting
Petitioner's crossing. Petitioner served approximately twenty-one (21) days for
her illegal re-entry after prior removal stemming from this arrest. Upon release
from custody in January 2009, Petitioner was deported to Ciudad Juarez,
Chihuahua, Mexico, where Respondent picked her up and returned her to Puerto
Penasco, Sonora, Mexico. After Respondent drove Petitioner to Puerto Penasco,
Sonora, Mexico, Respondent lived with Petitioner and G.G. for approximately
seven months before
moving permanently to Midland, Texas. G.G. remained in Puerto Penasco,
Sonora, Mexico, with Petitioner. Petitioner and Respondent had a shared intent
that G.G. remain with Petitioner in Puerto Penasco, Sonora, Mexico. Thereafter,
Respondent's mother, who resided in Puerto Penasco, Sonora, Mexico, would bring
G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on
vacation from school. Petitioner consented to these trips. Each visit would last
approximately one-to-two months. At the end of each scheduled visit G.G. would
be returned to Puerto Penasco, Sonora, Mexico.. G.G. has attended school in
Puerto Penasco, Sonora, Mexico, since the 2009-2010 school year. G.G. was
enrolled in school in Puerto Penasco, Sonora, Mexico, for the 2012-2013 school
year.
Petitioner asserted that on or about July 25, 2012, Respondent came to
Puerto Penasco, Sonora, Mexico, to have a few days of visitation with G.G. at
his parents' home in Puerto Penasco. Petitioner asserted that she agreed to
allow Respondent to have overnight visitation with G.G. at his parents' home and
that Respondent was scheduled to return G.G. after a few days. Petitioner
further asserted that instead of returning G.G. to Petitioner as scheduled,
Respondent removed G.G. to the United States without her permission. In
contrast, Respondent asserted that prior to arriving at Puerto Penasco, Sonora,
Mexico, in late July 2012, Respondent arranged with Petitioner to take G.G. to
Midland, Texas, for approximately a month to 45 days. It was Respondent's
position that Petitioner agreed and consented to the visitation. Respondent
asserts that before he took G.G. to Midland, Texas, the parties discussed the
possibility of G.G. staying in the United States to attend school. Respondent
asserts that Petitioner agreed to think about it, but did not agree at that time
to allow G.G. to stay and attend school in Midland, Texas. Respondent asserted
that Petitioner gave Respondent G.G.'s birth certificate. Respondent asserted
that he agreed to return G.G. if Petitioner wanted G.G. returned and not
enrolled in school in Midland, Texas. Respondent further asserted that after G.G.
was in Midland, Texas, the parties continued to have discussions about enrolling
G.G. in school. On July 31, 2012, Petitioner sent and Respondent received a text
message informing Respondent that G.G.'s school in Puerto Penasco, Sonora,
Mexico, started on August 20, 2012, and that G.G. needed to be back by that day.
On August 22, 2012, Petitioner sent and Respondent received a text message
demanding that Respondent return G.G. to her in Puerto Penasco, Sonora, Mexico.
After Respondent received the text message from Petitioner demanding G.G.'s
return, Respondent told Petitioner that he was going to enroll G.G. in school in
Midland, Texas. Petitioner objected to Respondent enrolling G.G. in school in
Midland, Texas. G.G. started school in Midland, Texas, on August 27, 2012.
The court observed the Fifth Circuit adopted its framework for making
country of habitual residence determinations. Larbie v. Larbie, 690 F.3d 295,
310 (5th Cir.2012). The inquiry balances the interests of the child with the
intentions of the parents. Larbie, 690 F.3d at 310. A court's "inquiry into a
child's habitual residence is not formulaic; rather it is a fact-intensive
determination that necessarily varies with the circumstances of each case." When
determining a child's country of habitual residence, analysis focuses on the
"parents' shared intent or settled purpose regarding their child's residence."
The inquiry balances the interest of the child with the parents intentions, but
gives greater weight to the parents' subjective intentions when the child is
relatively young and incapable of deciding residency.
The court found that the facts indicated that both parents shared the
intent that Puerto Penasco, Sonora, Mexico, was their child's residence prior to
Respondent's taking of G.G. to Midland, Texas, with or without Petitioner's
consent, in late July of 2012. Petitioner established that in 2007, Respondent
and Petitioner, together, moved their child G.G. to Puerto Penasco, Sonora,
Mexico, from Los Alamos, New Mexico. After relocating to Puerto Penasco, Sonora,
Mexico, Respondent lived in Mexico with Petitioner and G.G. for approximately
two years. The parents' mutual decision to move their child to Mexico from the
United States and relocate to Puerto Penasco, Sonora, Mexico, provided strong
evidence of shared parental intent in 2007 to make the Republic of Mexico their
child's country of habitual residence. Additionally, Respondent moved
permanently to Midland, Texas, in 2009, leaving G.G. with Petitioner in Puerto
Penasco, Sonora, Mexico. Even though no formal custody agreements existed, the
parties arranged visitation. Respondent's mother who resided in Puerto Penasco,
Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during
the summer while G.G. was on vacation from school. Petitioner allowed G.G. to go
on these trips to visit Respondent and each visit would last approximately one
to two months. At the end of each scheduled visit G.G. would be returned to
Puerto Penasco, Sonora, Mexico. The parents' decision for G.G. to remain in
Puerto Penasco, Sonora, Mexico, with summer visitation in the United States,
also provided strong evidence of shared parental intent that the Republic Mexico
was G.G.'s country of habitual residence.
The question remained whether G.G.'s habitual residence was abandoned,
thus changing from Puerto Penasco, Sonora, Mexico, to the United States. The
threshold test for determining whether the parties intended for G.G. to "
'abandon the [habitual residence] left behind' " was whether both parties shared
that intention. Larbie, 690 F.3d at 310-11. "[I]n the absence of settled
parental intent, courts should be slow to infer from such contacts that an
earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. Without
shared parental intent the " 'prior habitual residence should be deemed
supplanted only where the objective facts point unequivocally to this
conclusion.' " Larbie, 690 F.3d at 311. In cases such as this in which the
parties no longer agree where the child's habitual residence is fixed and "the
representations of the parties cannot be accepted at face value ... courts must
determine from all available evidence whether the parent petitioning for return
of a child has already agreed to the child's taking up habitual residence where
it is." Mozes, 239 F.3d at 1076.
After an exhaustive review of all available evidence the Court determined
that Petitioner never agreed to G.G. taking up habitual residence in the United
States and never consented to G.G. being enrolled in school in the United
States. There was, therefore, no shared parental intent to shift G.G.'s habitual
residence from Mexico to the United States. The evidence pointed toward
Respondent's retention and subsequent enrollment of G.G. in school in the United
States as Respondent's unilateral action.
Petitioner satisfied the threshold requirement for cases arising under the
Convention by establishing that the child's country of habitual residence prior
to removal or retention was the Republic of Mexico. Petitioner proved by a
preponderance of the evidence that Respondent removed or retained G.G. in the
United States, "somewhere other than the child's habitual residence." The State
of Sonora, Mexico, in accordance with the Sonora Civil Code adheres to the legal
doctrine of patria potestad. See Son. Civ.Code, tit. 8, ch. 1, art. 578 et seq.;
"Pursuant to that doctrine both parents have joint custody rights." The Court
found that Petitioner had rights of custody conveyed by patria potestad under
the laws of the State of Sonora, Mexico. Petitioner proven by a preponderance of
the evidence that Respondent removed or retained G.G. in breach of Petitioner's
rights of
custody under the laws of the child's habitual residence-the Republic of
Mexico and that such at the time of removal or retention she was actually
exercising her rights of custody or would have been exercising those rights but
for the removal or retention. Larbie v. Larbie, 690 F.3d 295, 307 (5th
Cir.2012); Convention art. 3(b).).
Respondent Orozco pleaded the grave risk affirmative defense. Respondent
elicited testimony from Petitioner admitting that she worked late hours at a
casino. In addition, Respondent questioned whether Petitioner works, or had
worked in the past, as a prostitute. Petitioner denied the allegations of
prostitution and no other evidence of such activities was placed before the
Court. Respondent's argument that return of G.G. to the child's country of
habitual residence, the Republic of Mexico, would pose a grave risk of harm to
G.G. because of Petitioner's work at a casino and unsupported allegations of
prostitution fell extremely short of reaching the high threshold necessary to
establish the grave risk of harm affirmative defense.
Respondent pleaded, and argued at trial, that Petitioner consented or
subsequently acquiesced to Respondent removing G.G. from Puerto Penasco, Sonora,
Mexico, to Midland, Texas. When examining a consent defense, a court considers
what the petitioner actually agreed to when allowing the child to travel outside
of its country of residence and the scope of the petitioner's consent. Larbie,
690 F.3d at 309. In contrast, the "acquiescence [defense] addresses whether the
petitioner subsequently agreed to or accepted the removal or retention." When
examining an acquiescence defense, "'each of the words and actions of a parent
during the separation are not to be scrutinized for a possible waiver of custody
rights.' " Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007). The defense of
acquiescence has been held to require "an act or statement with the requisite
formality, such as testimony in a judicial proceeding; a convincing written
renunciation of rights; or a consistent attitude
of acquiescence over a significant period of time." Friedrich, 78 F.3d at
1070. Respondent's affirmative defense of consent failed on his own testimony.
Respondent's argument that Petitioner acquiesced to the removal or retention of
G.G. in the United States also fell short. There was no evidence before the
Court that Petitioner subsequently acquiesced to G.G.'s removal or retention in
the United States.
Respondent asserted that G.G. objected to being returned, and should not
be returned to Petitioner in Puerto Penasco, Sonora, Mexico. The court
undersigned met in camera with G.G., who had recently turned 8 years old. The
Fifth Circuit has previously held that a 13 year-old child did not meet the
degree of maturity required to object and determine where he/she wanted to live.
In the Courts opinion GG was not of sufficient age and maturity for the Court to
take into account her objection to being returned to Mexico.
The Court granted the petition.
Thursday, August 15, 2013
Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) [Poland] [Grave Risk of Harm] [Petition Granted]
In Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) Petitioner filed a motion for an order to return his minor son to Poland after Respondent removed him and brought him to Massachusetts. Petitioner and Respondent were the biological parents of A.M., who was born on April 2, 2007. Although Petitioner and Respondent were never married, they resided in the same home in Poland, in the later stages of Respondent's pregnancy and until August 2, 2007, when Respondent left with A.M. and moved in with her aunt in the same town. Respondent testified that before she "escaped" from the residence (Petitioner's parents' house), Petitioner held her captive in the basement where she was only able to eat the eggs and jam stored there. She also testified that during these several months Petitioner verbally and physically abused her and sexually abused the infant A.M.
Within months of leaving the residence, Respondent sought child support through the Polish court and began receiving approximately $100 per month. In or around February of 2008, however, a custody dispute arose. Petitioner filed an action to regulate his contact with A.M., while Respondent, represented by counsel, countersued to terminate Petitioners parental rights. In August of 2008, the Polish court received a psychological report from the Diagnostic and Consultation Family Center, which had conducted evaluations of Petitioner and Respondent at the court's request. he report indicated that, while Respondent was socially and emotionally immature, suffered from extreme helplessness, and made decisions regarding A.M. based on her emotions rather than his developmental needs, she fulfilled her duties as a mother and had a great bond with As to Petitioner, the report stated that he could control his behavior but that he did not perceive, understand, or take responsibility for his own mistakes; the report also indicated that Petitioner had a high self-evaluation. The report concluded that, because of Respondents "low level of social and emotional maturity" and her resulting inability to "fully understand the minors needs," Petitioners contact with A.M. was "indispensable." However, considering Petitioners own "low level of social maturity" and "susceptibility to taking psychoactive substances," the report recommended that Petitioners visits with A.M. be facilitated in a controlled environment accompanied by the presence of a supervising court monitor. On February 19, 2009, after Respondent withdrew her request to terminate Petitioner's parental rights, the Polish court granted Petitioner supervised visitation with A.M. at specified dates and times. Following that order, the parties continued their ongoing legal battle over their respective rights. Petitioner continued to seek the enforcement of the order regulating his contact with A.M., while Respondent continued her efforts to limit Petitioner's parental authority.
In July of 2009, Respondent, after claiming that her intention was to bring A.M. to the United States for a short holiday visit, received permission from the Polish court to obtain a passport for him. In March of 2010, after learning that Respondent applied for a permanent immigrant visa for A.M. as a child of a United States citizen—Respondent had become a United States citizen when, as a thirteen-year-old and living here, her father became a citizen—Petitioner sought to reverse the court's decision. On March 15, 2010, the Polish court—concerned that there was a "high probability" that A.M. would stay in the United States permanently without Petitioner's consent—issued an order prohibiting Respondent from taking A.M. outside Poland until at least the completion of the court proceedings. Despite that order, Respondent left with A.M. and brought him to the United States on April 4, 2010. On March 23, 2011, Petitioner initiated the present action seeking A.M.'s return to Poland.
Respondent, appealed the Polish court order prohibiting her from leaving Poland and traveling with A.M. to the United States. On June 16, 2011, the Court of Appeals in Poland denied Respondents appeal, citing Petitioners interest in maintaining ties with his son; the court found that both parents "are entitled to parental authority over [A.M.] and each of them is obliged and also entitled to exercising the same."
There was no question but that (1) A.M. was a habitual resident of Poland at the time of his removal, (2) Petitioner had "rights of custody" at the time, and (3) was actually exercising those rights.
Respondent claimed that there would be a grave risk of physical and psychological harm to A.M. were he to be returned to Poland. The court observed that a "grave risk" means a "more than serious" risk; Respondent claimed that Petitioner "sexualized" A.M. from the time of his birth in April of 2007 until she moved out of Petitioners home in August of that year. Respondent submitted photographs Petitioner allegedly took of A.M.'s genitals when he was only several months old as well as a brief video (taken by Respondent) showing Petitioner, wearing one of Respondents dresses, gently swinging A.M. in his arms. Respondent also testified that Petitioner would suck on A.M.'s penis when he cried in order to calm him, claiming this to be a Native American practice. She testified as well that Petitioner, when they resided together, often was under the influence of drugs when he cared for A.M. and, as a result, posed a risk to his safety. The court pointed out that the First Circuit has held that sexual abuse by a parent is an example of an Article 13(b) defense justifying non-return. Danaipour, 286 F.3d at 16. Drug use, under certain circumstances, also may qualify as grave-risk conduct. The evidence proffered by Respondent with regard to Petitioner's drug use includes her own testimony and the psychological report provided to the Polish court. The report indicated that Petitioner had a "susceptibility to taking psychoactive substances," smoked marijuana occasionally, but had ceased doing so in August of 2007 when asked by Respondent. The court credited that evidence accordingly. Respondent's allegations of sexual abuse, on the other hand, were far less persuasive. There was no mention of such abuse in the psychological report issued to the Polish court. Granted, Respondent testified that she was reluctant to bring this to the attention of the psychologist, but nonetheless the fact remains that no such information is contained in the report. Second, certain of Petitioner's photographs of A.M. while an infant, although questionable, do not amount, in the court's opinion, to sexual "abuse." Third, the allegations of Petitioner's engaging in what he described as a "Native American" practice, if practice it be, are disturbing but nonetheless vague and uncorroborated; had Respondent been as concerned about this at the time as she is presently, it was curious that she did not insist on sharing that information with the investigating psychologist. Most importantly, Respondent did not testify to or set forth any probative evidence to support her contention that, were A.M. to return to Poland, he would "certainly be at risk for more of the same type of abuse."
Respondent argued the court should consider the "well-settled" doctrine in the context of her grave risk argument. In support, Respondent cited Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001), which held that a court may consider evidence that the child is "so deeply rooted in the United States" that there would be a grave risk of psychological harm if the child were to be returned to the home country. The First Circuit, however, in a ruling which is binding on the court, had chosen to "disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States." Walsh, 221 F.3d at 222 n. 14. "That," the First Circuit stated, "is an inevitable consequence of removal."
Respondent's one remaining justification to remain in the United States was her concern that the Polish court system is ill-prepared to protect A.M. In support, Respondent cited a report prepared by the United States Department of State that discusses Poland's problems with domestic violence against women and low conviction rates in cases involving incidents of child abuse. This was evidence of the weakest sort. The court was not convinced that the report sufficiently demonstrated that the Polish court system was incapable of enforcing its visitation orders or of protecting A.M. from abuse during the pendency of the parties' dispute.
Respondent asserted that Petitioner "acquiesced" to A.M.'s living in the United States by his complete lack of communication or even an attempt to communicate with [Respondent], the child, or any member of [Respondents] extended family here in the United States. Respondent claimed that even though Petitioner had her relatives contact information in the United States and her own email addresses, he made no effort to contact them. Respondent's argument was not persuasive. Even if her assertions were true, a lack of communication, by itself, is not sufficient to establish that it was Petitioners subjective intent to acquiesce to A.M.'s living in the United States. Even if credited, Petitioners lack of communication was at best an ambiguous indication of his intention to allow A.M. to permanently reside in the United States.
Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) United Kingdom] [Age & Maturity] [Guardian] [Visitation] [Petition Granted]
In Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) Petitioner Amor Paulina Hirst filed a Petition for Return the parties' two minor children to the United Kingdom. The court sua sponte issued an Order Appointing a Guardian Ad Litem to conduct an independent, balanced and impartial investigation for the court into the facts relevant to the Return petition and the defenses raised by Respondent. The lay Guardian Ad Litem conducted in-person interviews with the children individually, Respondent and his wife, as well as Skype interviews with Petitioner and her husband. The GAL also contacted friends of the parties and several of the children's teachers in Manchester, England. Upon the completion of her investigation, the GAL issued a report containing a summary of her investigation, which essentially provided the court with a timeline of the relevant events and previewed the arguments that the parties eventually made at trial. The GAL acknowledged that she could provide no expert opinion as to the maturity of the children, but asserted that the children's desire to remain with their father was strong. The GAL provided a copy of the report to the court and the parties on April 22, 2013. The court entered the report into evidence at trial as its own exhibit. The court also interviewed the children on the record in camera outside the presence of the parties and their counsel.
Petitioner and Respondent were married on May 17, 1996, in South Africa. They had two male children-M.S.T., born in 2002, and A.D.T., born in 2003-both born in Johannesburg, South Africa. At the time of the trial, M.S.T. was ten (10) years old and A.D.T. was nine (9) years old. The children were citizens of South Africa by virtue of their birth in South Africa and held South African passports. The children also held Belgian passports by virtue of their father's Belgian citizenship. Their Belgian passports afforded the children European Union citizenship, which thereby allowed them to live in the United Kingdom with no additional visa or immigration requirements.
The parties and the children lived together as a family in South Africa until the parties separated in May 2007. The parties were divorced on July 25, 2008. At the time of the divorce, the parties entered into a Parenting Plan and Settlement Agreement which was adopted by a South African High Court. The South African Order resolved all issues of custody of M.S.T. and A.D.T., giving the parties joint parental responsibility for the children. It further provided that the children should reside with their mother and should have extensive contact with their father. Following the separation, Respondent left Johannesburg and took a job in Ballito, South Africa, roughly 380 miles from Johannesburg. Several months following the divorce, the parties mutually agreed that the children would live with their father in Ballito. The children lived with their father from on or around September 2008 to on or around February 2011. When Respondent decided to relocate to Greer, South Carolina, in or around February of 2011, he and Petitioner agreed that she would resume custody of the children until Respondent was established and could arrange for the children to join him in the United States. These plans changed on or around June 2011 due to Respondent's inability to raise the funds necessary to arrange for the children's visas and their travel to the United States. Petitioner retained physical custody of the children since March 2011.
On or around October 15, 2011, Petitioner married Jamie Hirst , a citizen of the United Kingdom. On November 5, 2011, the children relocated from South Africa to Manchester, England in the United Kingdom and moved into Jamie's two-bedroom flat. Respondent arranged for the children to receive their Belgian passports, which enabled the children to enter and live in the United Kingdom. Respondent also provided Petitioner with his written consent for the children to travel from South Africa to the United Kingdom. Upon arrival, Petitioner enrolled the children in Norden Community Primary School. The children attended the Norden School since their arrival in November 2011 and up until December 2012 when they left for their Christmas vacation with Respondent in the United States. Both Petitioner and the children registered for medical care through the United Kingdom's National Health Service. On December 23, 2012, the children travelled from the United Kingdom to the United States to visit Respondent at his new home in Greer, South Carolina. This was the children's first visit to the United States. The parties and the children all agreed that the trip was intended to be a three-week visit, not a permanent relocation. The parties agreed that the children would return on January 7, 2013, which was the first day school resumed after the Christmas holiday. On January 2, 2013, Respondent informed Petitioner by Skype that he would not be returning the children to the United Kingdom as previously agreed and would instead have the children live permanently with him in Greer, South Carolina.
In or around March 2013, Petitioner filed a Verified Petition for Return with the court. Petitioner and Jamie came to the United States for the Show Cause hearing on March 29, 2013. At the end of the hearing, Petitioner requested visitation with the children while in the United States which the court granted. The children initially refused to leave the courthouse with Petitioner and Jamie. The Court interviewed A.D.T. and M.S.T. separately in camera in the presence of the court reporter, a law clerk, and a courtroom deputy.
Respondent conceded that Plaintiff met her prima facie case for a wrongful return. As to habitual residence, Respondent did not establish that there was a shared intent by both parents for the children to abandon the United Kingdom and move to the United States in December 2012. Notwithstanding evidence of a prior shared intent in 2011 for the children to come live with Respondent in the United States, all of the parties understood the December 2012 trip to be a temporary visit with a definitive return date. Additionally, the court found that the children's fourmonth stay in the United States was not sufficient to establish that they were acclimatized to their new environment such that returning them at this point "would now be tantamount to taking the child out of the family and social environment in which its life has developed. Therefore, the court found that the children were habitually resident in the United Kingdom. Respondent further stipulated at trial that Petitioner had rights of custody of the children under the Hague Convention and under the relevant law of the United Kingdom, and that Petitioner was exercising that custody at the time of the children's wrongful retention. Petitioner was also exercising her custody rights at the time Respondent retained the children in the United States. Petitioner met her burden of proving by a preponderance of evidence that Respondent's retention of the children in the United States was wrongful within the meaning of the Hague Convention.
The district court found no proof that the children had been exposed to any sexual abuse. Respondent's claim that Petitioner repeatedly forced the children to watch video footage in an effort to frighten them or psychologically torture them was not credible. Respondent's allegations that Petitioner regularly told lies about the father clearly would not rise to the level of psychological torture such that the grave risk exception would be applicable. Many of the Respondent and the children's claims were, at most, allegations of poor parenting, including Petitioner's alleged drinking and smoking, her alleged use of foul language toward the children, and her alleged tendency to sleep late, which left the children to prepare their breakfast and ready themselves for school on their own. Other allegations were those that could be made by many ten and eleven year old boys in similar situations, such as the allegations that Petitioner's imposed punishment for small offenses was excessive, that they had no privacy, that their parents fight too much, and that one parent speaks ill of an ex-spouse. Respondent's complaints that Petitioner lets the children walk to school on a busy road and let them go out at night by themselves did not establish that the children were or will be in actual danger in Manchester. Finally, even if these allegations of mistreatment, either individually or collectively, caused the court to be as concerned as Respondent apparently was, the alleged mistreatment would still not meet the standard as outlined in the Fourth's Circuit decision in Miller, since a court in the United Kingdom can be trusted to adequately respond to these issues and provide protection for the children. See Miller, 240 F.3d at 402.
Respondent did not prove by a preponderance of the evidence that the children were of an age and maturity such that their wishes should be taken into account in determining the issue of return. Both M.S.T. and A.D.T. were polite, smart boys. Notwithstanding the impact on the children of the instant custody matter, neither boy seemed to be especially sophisticated or to have reached a maturity beyond their years. The burden of demonstrating maturity lies with the party asserting the defense. Respondent provided no expert evidence or expert testimony regarding the children's maturity level. Even if the court were to find the children sufficiently mature, other factors would weigh against declining to issue a return. First, the children expressed a preference to remain in Greenville rather than a strong objection to returning to Manchester. The children's objections to Manchester mostly involved an aversion
to the rainy climate and a lack of places to play. However, both children mentioned that they enjoyed playing sports at their school and the overwhelming evidence suggested that the children were involved in at least three sports teams or clubs. Surely, then, the children had adequate places to play and were not completely deterred from doing so by the climate in Manchester. Additionally, both children stated that they had friends in Manchester and both stated that they liked their teachers at school. Both children also commented on the fact that the people of Greenville were on the whole very friendly as compared to the people of Manchester. The children's preference for the temperate climate and southern hospitality of Greenville, as well as their affinity for their father's yard, was not sufficient to invoke Article 13's narrow exception. Furthermore, the children's preference for Greenville over Manchester could not be "born of rational comparison" between life in the United States and life in the United Kingdom. See Castillo, 597 F.Supp.2d at 441. While the children had been in the United States, the children had not been in school and from their in camera testimony, they had clearly been having fun playing with their father, watching crime dramas on television, and exploring the city's attractions and restaurants. Even if the children were mature enough to make a decision about where they wished to grow up, neither child offered well-considered reasons why staying in Greenville would be preferable or beneficial that were not related to their leisure and pleasure. In addition to their stated desire to remain in Greenville, the children also expressed a desire to stay with their father. It was clear to thecourt that the children had been influenced by their parents' bitter and contentious relationship. At present, the children sided with their father and believed that their mother lied when she told them that Respondent left the family and South Africa for another woman. Both children mentioned this alleged lie during their in camera testimony, leaving little doubt that this perceived breach of trust was at the heart of the children's animosity toward their mother. The fact that they had been physically separated from their mother for the last four months while the instant custody battle ensued, during which time Petitioner sought to insulate the children from the stress of the proceedings by not discussing the issue with them, surely exacerbated the children's confusion about the situation and negative feelings toward their mother. Statements from those involved with the children's life in Manchester stood in stark contrast to the picture painted by Respondent and reported by the children about the children's home life in the United Kingdom. Such contradictions provided further circumstantial evidence that the children's objections to the return had been influenced by either their parents or the events surrounding the instant custody dispute, which therefore counseled against giving the children's objections determinative weight.
The court found that the instant dispute was a custody matter involving the children's preferences with regard to which parent they wanted to live with, not well reasoned particularized objections to their return to their place of habitual residence.
Headifen v. Harker 2013 WL 2538897 (W.D.Tex.) [New Zealand] [Habitual Residence] [Petition Denied]
In Headifen v. Harker 2013 WL 2538897 (W.D.Tex.) Headifen filed a petition for return of a minor to New Zealand. Headifen was a national and citizen of New Zealand, and a naturalized citizen of the United States. Headifen first came to the United States in 1984, and began an extended residence in this country beginning in 1985, initially on a student visa.He subsequently married an American citizen, and acquired United States citizenship thereby. Headifen and his first wife moved to Austin, Texas around 1991, and ultimately built a home, at 6201 Lost Horizon Drive. Harker was a national and citizen of South Africa, and a naturalized citizen of the United States. They were married on September 16, 2005, in Austin, Texas. Headifen then sponsored Harker's United States citizenship. A.H.H., was born to other parents in August 2008, in Austin. She was adopted by Headifen and Harker shortly thereafter.
The family moved to New Zealand on December 3, 2009. They lived there together until August 2012, when Headifen and Harker separated. Harker claimed the move was intended to be temporary, motivated in large part by Headifen's wish to be with his aging mother in her final days, having been out of the country when his father passed away. Harker claimed the family's time in New Zealand was expected to last no more than twelve to eighteen months, and they planned to return to Austin afterwards, to raise A.H.H. in America. The family resided with Headifen's sister for the first four months, then leased a house in the Auckland area under an annual lease. The couple encountered both financial and marital difficulties in New Zealand. Headifen never obtained, and apparently never meaningfully sought, any gainful employment in New Zealand, other than his essentially self-employed efforts to grow an internet business. Savings were exhausted after 2009 . At this time, Headifen professed the family was unable to move back to Texas because it was too expensive. After an abortive effort to start a clothing importer's business, Harker therefore sought and obtained employment in September 2010, landing a job with a New Zealand company.
Harker threatened to separate from Headifen sometime in 2011. Although matters apparently improved somewhat for awhile, the family finances continued to suffer. Headifen remained essentially unemployed. Headifen allegedly refused to pay any share of the couple's living expenses, thus frustrating Harker's efforts to save money for the return to the United States. With the couple's lease set to expire in mid-2012, Harker again sought to return to the United States. However, the couple instead separated in July or August 2012, with Headifen moving back in with his sister, while Harker leased a different house. The two agreed to have a "working separation," and Harker claimed Headifen still agreed all three would eventually return to Austin. After the separation in August 2012, the parents shared custody of A.H.H from August of 2012 until on or about April 2, 2013. Harker claimed she and Headifen still agreed to ultimately return A.H.H. to Austin, even after the two separated. She asserted Headifen simply asked if they could wait until the end of the New Zealand summer (which ended in March) to move back to Austin. According to Harker, this plan was abruptly rejected by Headifen when he announced, in a February 18, 2013 email, his new desire for A.H.H. to remain in New Zealand "for her schooling years." At this point, Harker had already given three-months resignation notice to her employer. She had also begun searching for work in the United States, including interviewing in November 2012 with Office Max in Chicago.
After the February 18 email, Harker determined to unilaterally return with A.H.H. to the United States. She accordingly, in secret, made travel plans for herself and the minor. She also arranged to have all their personal belongings shipped back to Austin. On April 2, 2013, Harker emptied joint bank accounts for some $8,000, without Headifen's knowledge or permission. As she was boarding the flight, Harker emailed Headifen, announcing what she had done. Upon arrival, Harker immediately filed a divorce and custody suit in the 261st District Court of Travis County. The state court apparently issued its standard, mandatory "Standing Order Regarding Children, Property and Conduct of the parties." Headifen's American counsel filed this case on April 24. Headifen sught an order returning A.H.H. to New Zealand, and access to her while she is still in the United States. In a series of orders, the Court previously set terms allowing Headifen temporary shared custody over A.H.H., and requiring counsel for each side to retain A.H.H.'s and their clients' passports and travel documents pending the outcome of this case.
There was no dispute Headifen had parental rights to A.H.H., nor was was there any dispute Headifen was exercising those rights as of April 2, 2013. Harker had not raised any defenses, and there was no question her removal of A.H.H. from New Zealand was "wrongful" under the Convention , if New Zealand was A.H.H.'s habitual residence. Resolution of Headifen's Petition turned on which country A.H.H. habitually resided. The Court observed that under the shared-intent approach, "courts should begin an analysis of a child's habitual residence by considering the relevant intentions [of the parents]." Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir.2005) "[W]e will presume that a child's habitual residence is consistent with the intentions of those entitled to fix the child's residence at the time those intentions were mutually shared." However, the inquiry does not end there, and an absence of shared intent to adopt a new habitual residence can be overcome where, "notwithstanding the intent of those entitled to fix the child's habitual residence, the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted." In noting this, the Second Circuit provided a fairly easy hypothetical example: a child who spent fifteen years living in another country might be a habitual resident of the country, regardless of any parental intent to maintain a habitual residence elsewhere. Gitter, 396 F.3d at 133. Mozes cautions courts should be " 'slow to infer' that the child's acclimatization trumps the parents' shared intent." The Second Circuit describes this situation as "relatively rare." Gitter, 396 F.3d at 134. The Fifth Circuit was in accord with the foregoing discussion from Mozes and Gitter. Larbie states: In such cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind."Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion."Notably, when "the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,] ... most courts will find no change in habitual residence."Mere retention in another country and "private reservations" or intentions that are made "manifest and definitive" only after the child has left its country of origin are generally insufficient to establish intent to change a child's habitual residence. 690 F.3d at 310-311
The Court found that Headifen failed to meet his burden as to habitual residence. Headifen and Harker gave conflicting testimony about the nature of their stay in New Zealand, with Headifen testifying it was intended to be of unlimited duration, and asserting there was no definite plan to ever return to Austin. Harker testified the plan was always for the family to return to Austin, and the sojourn in New Zealand was originally intended to last for only twelve to eighteen months. However, on cross-examination, Headifen admitted he agreed in July 2012 to return to the United States. The Court found Harker and her supporting witnesses to be more credible on this point. Headifen's testimony to the effect he and Harker never had any discussion about how long they would remain in New Zealand was simply not credible. It was belied by Headifen's admitted knowledge Harker never wanted to live there permanently. Although there was supporting testimony from Headifen's friends at the hearing, the Court found heir testimony means little, because social friends might well be unaware of a married couple's personal plans and conversations. Harker testified, in strong terms, she could never reside permanently in New Zealand, and professed grave reservations about moving there at all. This wasapparently based on her impression of New Zealand following a visit there sometime after the couple was married, but before the events at issue here. She explained she had only agreed to go in 2009 based on Headifen's promise the family would only remain in New Zealand for a year to eighteen months. It was confirmed by Headifen, who agreed during his own testimony Harker did not want to reside indefinitely in New Zealand. Headifen volunteered he had hoped Harker would in time change her mind about New Zealand, but this was apparently a private reservation. Such "private reservations" do not suffice to establish intent to change the minor's habitual residence. Larbie, 690 F.3d at 311 . Even though the exact length of the stay was left open to negotiation, the court was able to find nosettled mutual intent from which such abandonment of the United States could be be inferred." At no point prior to February 18, 2013, did either parent indicate a desire to abandon the previously agreed plan to return A.H.H. to Austin. On February 18, Headifen announced to Harker that he had changed his mind, and openly conceded: "Obviously this means a change in that we're staying in New Zealand and not moving to Austin. " Any doubt on this score was dispelled by the great weight of other evidence in this case, including (1) the arrangements for A.H.H.'s education, (2) the family's housing, (3) pervasive official and business ties with Austin which endured throughout the time in New Zealand, and (4) as late as October 4, 2012, Headifen indicated his continued assent to return to Texas. Based on all of the foregoing evidence, the Court found that Headifen and Harker never had a shared intention to make New Zealand A.H.H.'s habitual residence. Rather, the Court found they did have a shared intention, until February 18, 2013, to maintain Austin as A.H.H.'s habitual residence.
Having weighed the threshold question of parental intent, the Court considered whether " 'objective facts ... unequivocally' " indicated Headifen and Harker's shared intent to keep the United States as A.H.H.'s habitual residence was nevertheless supplanted by the practical effects of A.H.H.'s time in New Zealand. Larbie, 690 F.3d at 311. The Court found no such unequivocal indication was present here. Headifen and Harker gave conflicting testimony as to what A.H.H.'s life in New Zealand was like. Headifen briefly testified A.H.H. was fully involved with his family and relatives in New Zealand, including aunts and uncles, and a nephew who is the same age. Harker testified Headifen's family wanted little to do with her or A.H.H., refused to spend time with A.H.H., and expected Harker to simultaneously care for her daughter and take over numerous other household responsibilities, while Headifen was constantly out sailing or engaged in other leisure pursuits without Harker or A.H.H. Headifen offered no other evidence to establish A.H .H.'s acclimatization to New Zealand. For some nine months, after Harker obtained employment, A.H.H.'s care was primarily handled by a French au pair, who apparently cared for A.H.H. at the family's leased home. This was not indicative of integration into the New Zealand setting. Although A.H.H. was enrolled in a preschool afterwards, and presumably adapted to this setting in a normal way, the Court was not persuaded this was unequivocal evidence.
Because there was no shared parental intent to make New Zealand the habitual residence, and because there were no unequivocal facts demonstrating A.H.H. nevertheless became acclimated to New Zealand, the Court concluded Austin, not New Zealand, remained A.H.H.'s habitual residence. As such, Headifen has failed to establish a necessary element for relief under ICARA, and his Petition was denied.
Aranda v Serna, 2013 WL 665064 (M.D.Tenn.) [Mexico] [Well Settled ][Age and Maturity] [Petition Denied]
In Aranda v Serna, 2013 WL 665064 (M.D.Tenn.) Petitioner Nora Lizeth Saavedra
Aranda filed a Petition against Respondent Rosendo Elizondo Serna for the return
of the parties' two children to her in Mexico. The parties were married in
Mexico on August 5, 1999. They moved from Mexico to Franklin, Tennessee, on
December 31, 1999. They had two minor children together, J.E. and A.E. J.E. was
born December 6, 2000, while A.E. was born January 31, 2002. Both children were
born in Franklin, Tennessee, and both were U.S. citizens. In May 2003, Ms.
Saavedra and the children moved from Franklin, Tennessee to Mexico. Mr. Elizondo
remained living in Franklin. The parties were divorced in Mexico on or about
January 31, 2007. The parties stipulated to the Mexican Divorce Decree, which
gave Petitioner complete physical custody of the minor children, and gave
Respondent weekend visitation as long as he resided in Mexico.The Decree
provides that the children were to live with Ms. Saavedra in Nuevo Leon, Mexico.
Itrequired Mr. Elizondo to return the children to Ms. Saavedra in Neuvo Leon at
the conclusion of each of his visits, and provided that Mr. Elizondo was
entitled to have the children visit him for a month during summer vacation,
after which he was to return them to Ms. Saavedra in Neuvo Leon. On May 21,
2010, Ms. Saavedra signed a document permitting Ms. Anna Maria Garcia to travel
with the children to their father's house in the United States for their
month-long summer vacation. Ms. Saavedra was exercising rights of custody under
the parties' Divorce Decree at the time they came to the United States to visit
Mr. Elizondo in May 2010. At the time, the children's country of habitual
residence was Mexico. Under the Divorce Decree, Mr. Elizondo had the right to
have the children visit for "a month long summer vacation." Thus, the children
should have been returned to Ms. Saavedra in June 2010. The parties apparently
agreed at some point that the children would be returned by the end of the
summer of 2010. That did not occur, apparently in part because they had started
school in Franklin and had begun studying English, and in part because A.E. had
begun exhibiting unusual behavior. Petitioner consented only to the children's
visiting with Mr. Elizondo until the end of July 2010. The parties, subsequently
agreed that the children would reside with Mr. Elizondo until December 2010. In
December 2010, Ms. Saavedra asked Mr. Elizondo to send the children back.. Mr.
Elizondo, however, told her that he would not be returning the minor children to
Mexico. The Petition was filed March 29, 2012.
The Magistrate found that while A.E. and J.E. were visiting Respondent during the summer of 2010, Respondent learned that A.E. had been sexually abused in Mexico. Respondent told Petitioner that he was going to keep the children "here longer in order to do studies on [A.E.] because we wanted to know why she was banging her head against the wall and why she was biting the carpet." In 2009, A.E. was abducted or kidnapped by a man named Marcelino. At the time, A.E. was in the custody of her mother in Mexico. Marcelino was criminally charged, and A.E. testified against him. He was given probation for the abduction and attempted rape of A.E. Petitioner, however, did not admit that A.E. was sexually assaulted; Petitioner thought only that A.E. was the victim of an attempted sexual assault. The record was unclear as to whether Petitioner informed Respondent of the incident, and if so, when she informed him and what she told him about it. Both children testified at the trial. They were sworn appropriately, and both testified through an interpreter. They testified in chambers by agreement of the parties, with only the attorneys, the interpreter, the Court, and a Court Reporter, present. No objections were raised to the competency of either child to testify.
At the time of the trial, A.E. was 10 years old. A.E. was in the 4th Grade at Johnson Elementary School in Franklin. She testified with regard to the sexual assault.;" A. When my mom and I were in Mexico and I was playing with my little girlfriend, and then a man came over. He called me over, and then he threw money on the ground. And then I thought it was for me so I went toward it. And then the man just started grabbing me. And so, you know, my girlfriend was there with me, and-and then so she went with her mother. But then that man grabbed me by the eyes, and I couldn't see anything, then-so we went over to his house, and then he took out the keys, and then he pulled down my pants. And he also pulled down my under pants. Q. Did anything else happen? A. I don't remember."
At the time of the trial, A.E. was seeing Claudia Avioa-Lopez, a Counselor and Clinical Social Worker, once a week. She was also taking medication to "keep [her] calm." J. E., who was 11 years old (almost 12) at the time of the trial also testified. She was in the 6th Grade at Freedom Intermediate School. She had been there two years. J.E. helped A.E. get up in the morning and helps ger her ready for school. .Angelina cooked breakfast and her father took her to school every morning He also picked her up every afternoon. She said that neither Respondent nor his attorney told her what to say while testifying. She stated that she would rather stay with her father than go to Mexico with her mother, because "[i]t's better here." She testified. At the time of the trial, J.E. was seeing a therapist. Mr. Elizondo refused to send his children back to Mexico because of "the problem" that his daughter had. If nothing had happened to his daughter, he would have sent the children back. Respondent also presented the testimony of five witnesses, four of whom were teachers of the children in Franklin, who all testified that J.E. was severely disturbed. Ms. Williams had never encountered a student as disturbed as A.E. .J. E., however, was sweet and shy, diligent in her work and a well rounded individual who was good with other children and adults. Claudia Avioa Lopez, a "Master's Clinical Social Worker," testified at the trial. According to Ms. Lopez, A.E. had evidence of trauma and was having hallucinations, would scream and cry, saying things like "he's there, he's going to get me, he's there." .A.E. "would get upset a lot because she remembered and she reported that she had been sexually abused, and she would talk about it and start crying." Ms. Lopez had been seeing A.E. for over 2 years, and A.E. had made significant process. She had about 86 sessions with A.E..
The court found that Petitioner established a prima facie case for the return of the children. It observed that Article 12 generally provides that where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful retention, the authority concerned shall order the return of the child forthwith. Importantly, Article 12 also provides: The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Respondent's first argument was that the affirmative defense set forth in Article 12 (one year/now settled) has been shown by a preponderance of the evidence. By her own testimony, Ms. Saavedra knew in December 2010 that Mr. Elizondo would not return the children to Mexico. The Petition in this case was not filed until March 19, 2012, more than a year later. Petitioner admitted she "has not met the strict requirements of the one-year rule...." but argued that she was "not sitting on her rights" and that the one year period was subject to equitable tolling.
While the Sixth Circuit has not spoken to whether the one year period was subject to equitable tolling, the Court adopted the reasoning set forth in Lozano v. Alverez, 697 F.3d 41 (2nd Cir.2012) which set forth three reasons why equitable tolling is not applicable. The Sixth Circuit had not adopted a test for whether children are "now settled" for Article 12 purposes. Thus, the Court looked to the factors set forth in the frequently cited case of In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). In Koc, the Court listed the following factors for consideration: (1) The age of the child; (2) The stability of the child's residence in the new environment; (3) Whether the child attends church regularly; (4) The stability of the [Respondent's] employment; and (5) Whether the child has friends and relatives in the area.
The court found that A.E. and J.E. had made numerous friends in Franklin, had strong bonds with their teachers, and had made significant progress in their educations. Both spoke English and both attend church every Sunday with their father. They have lived in the same residence for more than two years. Mr. Elizondo worked two jobs for 5 years and his employment was stable. He was a model employee according to his boss. Petitioner argued that the children were not settled in part because of Mr. Elizondo's immigration status. The Lozano Court, considering whether the child in that case was settled, discussed the fact that neither the mother nor the child were legally residing in the United States. With respect to the final factor, Judge Karas rejected Lozano's argument that the child could not be settled (as a matter of law) so long as she lacked lawful immigration status. Instead, he stressed that "there is nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent is likely to upset the stability of the child's life here in New York." The Court agrees with this reasoning and, therefore, discounted the immigration status of Mr. Elizondo. The Court concluded by a preponderance of the evidence that Petitioner delayed more than one year since the wrongful retention and that both children were now settled in their new environment. The children's return to Mexico would be disruptive with likely harmful effects. Respondent, therefore, prevailed upon this affirmative defense.
Respondent had also raised the "mature child's objection" set forth in Article 13. Petitioner admitted that, even when J.E. was living with her, she was more mature than most girls her age. Mr. Elizondo agreed with this assessment. J. E.'s maturity was further shown by her concern for A. E., and her "taking care" of A.E. J.E. was 11 years old, almost 12, at the time of the trial. The Court had the opportunity to observe J.E. closely while she was testifying, and concluded that she has attained an age and degree of maturity at which it is appropriate to take account of her views. With regard A. E., who was 10 years old at the time of the trial, the Court had the opportunity to observe her closely during her testimony. She calmly explained the incident that had occurred in Mexico. She has made significant progress in her behavior and in her school subjects since she came to Franklin in 2010.
Additionally, as Ms. Lopez testified, at approximately the end of 2011, A.E. approached her stating that she wanted to tell her father the story of what had had happened to her. This very significant fact evinced A. E.'s maturity. Her maturity was further shown by her work on Ms. Surbaugh's "summer notebook" project. The Court concluded, by a preponderance of the evidence, that both children were of an appropriate age and degree of maturity that their views should be considered. Both children testified that they would rather stay in the United States with their father than go back to Mexico with their mother. Both children also testified that their father had not told them how they should testify. Thus, Respondent had proven the "mature child's objection." The Court directed that the Petition be dismissed.
The Magistrate found that while A.E. and J.E. were visiting Respondent during the summer of 2010, Respondent learned that A.E. had been sexually abused in Mexico. Respondent told Petitioner that he was going to keep the children "here longer in order to do studies on [A.E.] because we wanted to know why she was banging her head against the wall and why she was biting the carpet." In 2009, A.E. was abducted or kidnapped by a man named Marcelino. At the time, A.E. was in the custody of her mother in Mexico. Marcelino was criminally charged, and A.E. testified against him. He was given probation for the abduction and attempted rape of A.E. Petitioner, however, did not admit that A.E. was sexually assaulted; Petitioner thought only that A.E. was the victim of an attempted sexual assault. The record was unclear as to whether Petitioner informed Respondent of the incident, and if so, when she informed him and what she told him about it. Both children testified at the trial. They were sworn appropriately, and both testified through an interpreter. They testified in chambers by agreement of the parties, with only the attorneys, the interpreter, the Court, and a Court Reporter, present. No objections were raised to the competency of either child to testify.
At the time of the trial, A.E. was 10 years old. A.E. was in the 4th Grade at Johnson Elementary School in Franklin. She testified with regard to the sexual assault.;" A. When my mom and I were in Mexico and I was playing with my little girlfriend, and then a man came over. He called me over, and then he threw money on the ground. And then I thought it was for me so I went toward it. And then the man just started grabbing me. And so, you know, my girlfriend was there with me, and-and then so she went with her mother. But then that man grabbed me by the eyes, and I couldn't see anything, then-so we went over to his house, and then he took out the keys, and then he pulled down my pants. And he also pulled down my under pants. Q. Did anything else happen? A. I don't remember."
At the time of the trial, A.E. was seeing Claudia Avioa-Lopez, a Counselor and Clinical Social Worker, once a week. She was also taking medication to "keep [her] calm." J. E., who was 11 years old (almost 12) at the time of the trial also testified. She was in the 6th Grade at Freedom Intermediate School. She had been there two years. J.E. helped A.E. get up in the morning and helps ger her ready for school. .Angelina cooked breakfast and her father took her to school every morning He also picked her up every afternoon. She said that neither Respondent nor his attorney told her what to say while testifying. She stated that she would rather stay with her father than go to Mexico with her mother, because "[i]t's better here." She testified. At the time of the trial, J.E. was seeing a therapist. Mr. Elizondo refused to send his children back to Mexico because of "the problem" that his daughter had. If nothing had happened to his daughter, he would have sent the children back. Respondent also presented the testimony of five witnesses, four of whom were teachers of the children in Franklin, who all testified that J.E. was severely disturbed. Ms. Williams had never encountered a student as disturbed as A.E. .J. E., however, was sweet and shy, diligent in her work and a well rounded individual who was good with other children and adults. Claudia Avioa Lopez, a "Master's Clinical Social Worker," testified at the trial. According to Ms. Lopez, A.E. had evidence of trauma and was having hallucinations, would scream and cry, saying things like "he's there, he's going to get me, he's there." .A.E. "would get upset a lot because she remembered and she reported that she had been sexually abused, and she would talk about it and start crying." Ms. Lopez had been seeing A.E. for over 2 years, and A.E. had made significant process. She had about 86 sessions with A.E..
The court found that Petitioner established a prima facie case for the return of the children. It observed that Article 12 generally provides that where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful retention, the authority concerned shall order the return of the child forthwith. Importantly, Article 12 also provides: The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Respondent's first argument was that the affirmative defense set forth in Article 12 (one year/now settled) has been shown by a preponderance of the evidence. By her own testimony, Ms. Saavedra knew in December 2010 that Mr. Elizondo would not return the children to Mexico. The Petition in this case was not filed until March 19, 2012, more than a year later. Petitioner admitted she "has not met the strict requirements of the one-year rule...." but argued that she was "not sitting on her rights" and that the one year period was subject to equitable tolling.
While the Sixth Circuit has not spoken to whether the one year period was subject to equitable tolling, the Court adopted the reasoning set forth in Lozano v. Alverez, 697 F.3d 41 (2nd Cir.2012) which set forth three reasons why equitable tolling is not applicable. The Sixth Circuit had not adopted a test for whether children are "now settled" for Article 12 purposes. Thus, the Court looked to the factors set forth in the frequently cited case of In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). In Koc, the Court listed the following factors for consideration: (1) The age of the child; (2) The stability of the child's residence in the new environment; (3) Whether the child attends church regularly; (4) The stability of the [Respondent's] employment; and (5) Whether the child has friends and relatives in the area.
The court found that A.E. and J.E. had made numerous friends in Franklin, had strong bonds with their teachers, and had made significant progress in their educations. Both spoke English and both attend church every Sunday with their father. They have lived in the same residence for more than two years. Mr. Elizondo worked two jobs for 5 years and his employment was stable. He was a model employee according to his boss. Petitioner argued that the children were not settled in part because of Mr. Elizondo's immigration status. The Lozano Court, considering whether the child in that case was settled, discussed the fact that neither the mother nor the child were legally residing in the United States. With respect to the final factor, Judge Karas rejected Lozano's argument that the child could not be settled (as a matter of law) so long as she lacked lawful immigration status. Instead, he stressed that "there is nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent is likely to upset the stability of the child's life here in New York." The Court agrees with this reasoning and, therefore, discounted the immigration status of Mr. Elizondo. The Court concluded by a preponderance of the evidence that Petitioner delayed more than one year since the wrongful retention and that both children were now settled in their new environment. The children's return to Mexico would be disruptive with likely harmful effects. Respondent, therefore, prevailed upon this affirmative defense.
Respondent had also raised the "mature child's objection" set forth in Article 13. Petitioner admitted that, even when J.E. was living with her, she was more mature than most girls her age. Mr. Elizondo agreed with this assessment. J. E.'s maturity was further shown by her concern for A. E., and her "taking care" of A.E. J.E. was 11 years old, almost 12, at the time of the trial. The Court had the opportunity to observe J.E. closely while she was testifying, and concluded that she has attained an age and degree of maturity at which it is appropriate to take account of her views. With regard A. E., who was 10 years old at the time of the trial, the Court had the opportunity to observe her closely during her testimony. She calmly explained the incident that had occurred in Mexico. She has made significant progress in her behavior and in her school subjects since she came to Franklin in 2010.
Additionally, as Ms. Lopez testified, at approximately the end of 2011, A.E. approached her stating that she wanted to tell her father the story of what had had happened to her. This very significant fact evinced A. E.'s maturity. Her maturity was further shown by her work on Ms. Surbaugh's "summer notebook" project. The Court concluded, by a preponderance of the evidence, that both children were of an appropriate age and degree of maturity that their views should be considered. Both children testified that they would rather stay in the United States with their father than go back to Mexico with their mother. Both children also testified that their father had not told them how they should testify. Thus, Respondent had proven the "mature child's objection." The Court directed that the Petition be dismissed.
Selo v. Selo, 2013 WL 878959 (E.D.Mich.) [Switzerland] [Habitual Residence] [Petition Denied]
In Selo v. Selo, 2013 WL 878959 (E.D.Mich.) Petitioner Jean-Loic Selo filed this action against Respondent Mother Dawn Michelle Levites Selo on September 25, 2012, seeking immediate return of the couple's minor child, J.P.S., to Switzerland.
The court found that Mr. Selo was a citizen of France. Mrs. Selo had dual citizenship and was a citizen of both the United States and France. Mr. Selo and Mrs. Selo were married in France on December 20, 1997. They had one minor child, JPS, who was born in France in 2001. JPS also had dual citizenship and was a citizen of both the United States and France. JPS was discovered to have a coarctation of the aorta at the age of two. Prior to 2007, the Selo family had lived together at different residences in both Switzerland and France. Mr. and Mrs. Selo both knew that Mrs. Selo was unhappy living in Europe because she felt isolated and because she missed her family members who were in the United States. On or about April 1, 2007, Mr. Selo, Mrs. Selo, and JPS moved from France to the martial residence in Switzerland. In 2008, JPS was enrolled in Conlara School's Home education program in Switzerland. During the time period from 2010 to 2011, Mrs. Selo was unhappy in the marriage. Mrs. Selo believed that Mr. Selo was emotionally abusive toward her and was controlling in the relationship. Mrs. Selo and JPS left Switzerland on February 13, 2011. At that time, JPS was habitually resident in Switzerland. The purpose of the trip was to visit Mrs. Selo's family. Mr. Selo took them to the airport. They took two suitcases and a backpack with them. Mrs. Selo and JPS had round-trip tickets for the flight. The trip was projected to last for about two months, or until April 29, 2011. Mr. Selo consented to the trip. After arriving in the United States, Mrs. Selo and JPS stayed at the home of her parents, David and Karen Levites, in Brighton, Michigan. When she arrived in the United States, Mrs. Selo was confused and unsure about her marriage. Mrs. Selo began receiving counseling. Soon after they arrived here, Mrs. Selo enrolled JPS in a home-schooling program through a local organization. Through that organization, JPS participated in a home-school co-op program where he spent time attending classes at the organization and engaged with other children in the program. He also participated in a theater program. Although Mrs. Selo served as JPS's primary instructor, JPS also had a tutor in Michigan. JPS had been speaking English, and writing in English, since arriving in the United States. Mrs. Selo and JPS were scheduled to return to Switzerland on April 29, 2011. On April 12, 2011, Mrs. Selo postponed their return to Switzerland. Mr. Selo was disappointed that Mrs. Selo wanted to postpone their return, but agreed that she could do so. On June 28, 2011, Mrs. Selo confirmed with Mr. Selo that she had a return flight booked for herself and JPS with arrival in Switzerland to be on July 7, 2011. On July 5, 2011, Mrs. Selo informed Mr. Selo that she was delaying their July 7, 2011, return. Mrs. Selo told Mr. Selo that she and JPS would return and arrive in Switzerland on August 28, 2011. During the July 5, 2011, conversation, Mrs. Selo told her husband that she had started therapy in the United States. She stated that she needed to work on her self-esteem and also wanted to work on communication problems in the marriage. Mrs. Selo also suggested that Mr. Selo see a therapist in Switzerland.
After that conversation, Mr. Selo found a therapist, that Mrs. Selo approved of, and began therapy in Switzerland. On August 26, 2011, Mrs. Selo told Mr. Selo that she and JPS would not return on August 28, 2011. On that date, Mr. and Mrs. Selo had a long conversation via skype. Mrs. Selo told Mr. Selo that she and JPS would not be returning on August 28, 2011, as planned, and she did not know when they would return. She told Mr. Selo that her therapists had helped her realize that this was not a good time for her to return to Switzerland. Mrs. Selo stated that she wished to remain in the United States and continue counseling. She told Mr. Selo that she thought it would be best if Mr. Selo remained in Switzerland and continued receiving counseling there Mr. Selo responded that he too wanted to work on making the marriage work. He told Mrs. Selo that he would continue therapy in Switzerland and would keep her informed about his progress. On August 27, 2011, Mr. and Mrs. Selo agreed that Mrs. Selo and JPS would remain in the United States for an undefined period of time, while the couple lived apart and separately received counseling. In November of 2011, Mr. and Mrs. Selo and JPS went to Las Vegas, Nevada, along with Mrs. Selo's parents. Mrs. Selo, JPS, and Mrs. Selo's parents stayed together in one hotel while Mr. Selo stayed at another hotel. Mr. and Mrs. Selo continued seeing their respective therapists and discussing the state of their marriage. In December of 2011, Mr. Selo came to the United States to visit JPS for approximately a week. By April of 2012, Mrs. Selo had decided that she wanted to proceed from a separation to a divorce. Mrs. Selo signed a Complaint for Divorce, and collateral documents required for a divorce in Livingston County, Michigan on April 24, 2012; these were filed with the court on April 25, 2012. Mr. Selo, however, was not aware of the filing at that time. Mr. and Mrs. Selo continued seeing their respective therapists and discussing the state of their marriage. Between December of 2011, and August of 2012, JPS did not see Mr. Selo in person. During that time period, Mr. Selo communicated with JPS via text, telephone, and skype. The next time that Mr. Selo came to the United States was on August 14, 2012. Mr. Selo had spoken with JPS via skype the day prior, August 13, 2012, and Mr. Selo thought that JPS seemed upset during the call. Mr. Selo then booked a flight to the United States. Mr. Selo arrived at Mrs. Selo's parents house in Brighton, Michigan on August 14, 2012. Mr. Selo did not advise Mrs. Selo that he was coming.
On August 15, 2012, Mr. Levites handed Mr. Selo an envelope containing divorce papers. On August 15, 2012, Mr. Selo was served with process in the Livingston County divorce and custody action by Mrs. Selo's father at the Levites' home in Brighton, Michigan. Mr. Selo was very upset. He believed that he and his wife were still working on saving their marriage. Mr. Selo went back to his hotel and contacted Mrs. Selo via e-mail and telephone. Mr. Selo communicated that he no longer agreed to JPS remaining in the United States. On August 15, 2012, Mrs. Selo filed a motion in the Livingston County divorce case requesting full legal and physical custody of JPS with Mr. Selo to have parenting time only in Michigan. Mr. Selo returned to Switzerland. Mr. Selo initiated this action on September 25, 2012, by filing his Petition for Return of Child. JPS had now been in the United States for more than two years.
As of August 14, 2012, JPS had been living in the United States continuously for more than eighteen months. He had not traveled back to Switzerland at any point. JPS became very close with his maternal grandparents, David and Karen Levites, since coming to live with them in February of 2011.
Mr. Selo alleged that Mrs. Selo wrongfully retained JPS in the United States although his habitual residence is in Switzerland. Here, it was undisputed that Mr. Selo had rights of custody and was exercising those rights prior to the alleged retention. The court found that there was there was no retention of JPS in the United States by Mrs. Selo until August 15, 2012 when Mr. Selo clearly communicated to Mrs. Selo that he no longer consented to JPS remaining in the United States and took actions to regain custody and have JPS returned to Switzerland. Thus, because August 14, 2012, was the last date upon which JPS was present in the United States with Mr. Selo's permission, the retention began on August 15, 2012. The Court observed that Frederich I "provides five principles" regarding habitual residence which must guide "more complicated decisions." Robert, 507 F.3d at 989 (6th Cir.2007)."First, habitual residence should not be determined though the 'technical' rules governing legal residence or common law domicile. Instead, courts should look closely at '[t]he facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child's experience in determining habitual residence." "Third, this inquiry should focus exclusively on the child's 'past experience.' 'Any future plans' that the parents may have 'are irrelevant to our inquiry.' "Fourth, a person can have only one habitual residence.' " Fifth and finally, a child's habitual residence is not determined by the nationality of the child's primary care-giver. Only 'a change in geography and the passage of time' may combine to establish a new habitual residence." . In Robert, however, the Sixth Circuit concluded that Mozes wasincompatible with the standards set forth in Friedrich I and it clearly rejected the standards set forth in Mozes. Robert, 507 F.3d at 989-992. Although the Robert court concluded that Mozes was inconsistent with Friedrich I, it determined that "not all post-Friedrich I developments should be rejected by the Sixth Circuit." Id. at 992.After reviewing some post-Friedrich I cases, the Robert court ultimately set forth the proper standard, given the developments which it accepted: [W]e hold that child's habitual residence is the nation where, at the time of their removal [or retention], the child had been present long enough to allow acclimatization, and where this presence has a 'degree of settled purpose from the child's perspective.'Feder, 63 F.3d at 224. Such a holding is not only consistent with the collective wisdom of many of our sister Circuits, but it is also consistent with Friedrich I's holding that a habitual residence inquiry must 'focus on the child, not the parents, and examine past experience, not future intentions." 983 F.2d at 1401. Robert, 507 F.3d at 993. There are several factual circumstances which a court should consider in determining whether or not a child's stay in a new country meets the tests of "acclimatization," and "settled purpose." Academic activities are among the most central in a child's life and are therefore highly suggestive of acclimatization. Id. Other factors to be considered include participation in sports programs and excursions and meaningful connections with the people and places in the child's new country. The Court held that it was bound to follow Sixth Circuit authority and that authority maked clear that the Court cannot look to the subjective intentions of the parents in determining the child's habitual residence. Robert, 507 F.3d at 989-92.
It was undisputed that JPS's habitual residence was Switzerland in February of 2011. The Court found that his habitual residence had altered to the United States by August of 2012. A child's habitual residence may be altered "only by a change in geography and the passage of time." Friedrich I, 983 F.2d at 1402. And the change in geography must have occurred before the questionable removal or retention. Here, the change in geography occurred prior to any wrongful retention by Mrs. Selo. The change in geography occurred on February 13, 2011, when Mrs. Selo and JPS came to the United States, with Mr. Selo's consent. And both parents later agreed that JPS could remain in the United States with Mrs. Selo for an undetermined period of time, while Mr. and Mrs. Selo lived apart and separately received counseling. It was not until August 15, 2012, that Mrs. Selo's retention of JPS in the United States was without Mr. Selo's consent. But by that time, JPS had been living continuously in the United States for more than eighteen months. This rather extensive passage of time, when viewed from the child's perspective, altered JPS's habitual residence.
The Sixth Circuit considers a child's habitual residence to be "the nation where, at the time of [a wrongful retention], the child has been present long enough to allow acclimatization, and there this presence has a degree of settled purpose from the child's perspective." Robert, 507 F.3d at 993. Academic activities were among the most central in a child's daily life and consideration of this factor here weighed in favor of the United States being JPS' habitual residence as of August 14, 2012. By August of 2012, JPS had participated in a home-schooling program through a local organization in Michigan for nearly eighteen months. JPS had also established meaningful relationships with his relatives in the United States that weighed in favor of the United States as his habitual residence. JPS ha become very close with his maternal grandparents, David and Karen Levites, since coming to live with them in February of 2011. JPS had also been spending time with Mrs. Selo's sister Kim (his aunt) on a regular basis. JPS also had friends in the neighborhood and through school and extracurricular activities. JPS's best friend is a boy named Joe who lives very close to the Levites residence in Brighton. JPS now had a cardiologist in Michigan who he has seen multiple times and with whom he now has an established patient relationship. JPS had his own bedroom at the Levites residence in Brighton, Michigan and it was a typical bedroom of a child his age. JPS has gone on various outings and excursions while in the United States. This United States-centered experience contrasted dramatically with JPS's lack of contact with Switzerland during this time period. After arriving in the United States on February 13, 2011, JPS never returned to Switzerland. In sum, over a period of more than eighteen months, JPS became more and more socialized in the United States, such that his habitual residence as of August of 2012 was the United States. Accordingly, after applying the standards set forth by the Sixth Circuit, the Court found, by a preponderance of the evidence, that by August of 2012, JPS was a habitual resident of the United States, and denied the petition.
Burch v Burch, 2013 WL 1909472 (S.D.Ind.) [Finland] [Habitual Residence] [Rights of Custody] [Petition Granted]
In Burch v Burch, 2013 WL 1909472 (S.D.Ind.) Petitioner Merita Vilen-Burch filed a complaint and and Petition for Return of the Children to Finland on February 6, 2013. The Court observed at the outset that the Federal Rules of Evidence apply during petition hearings, "with the exception that authentication of documents is not required."Luedtke, 2012 U.S. Dist. LEXIS 90584 at *2. See also 42 U.S.C. s 11605; Fed.R.Evid. 1101(b). The Court gave Ms. Vilen-Burch's Petition expedited treatment, as required by the Hague Convention. 19 I.L.M. 1501 ("[t]he judicial or administrative authority of contracting states shall act expeditiously in proceedings for the return of the children").
Ms. Vilen-Burch, who was represented by counsel, and Mr. Burch, pro se, were the parents of a thirteen-year-old daughter ("H") and an eleven-year-old son ("S"). Ms. Vilen-Burch and Mr. Burch were married on June 18, 1999 in Cozumel, Mexico. At the time of their marriage, Ms. Vilen-Burch lived in Finland and Mr. Burch lived in the United States. Mr. Burch moved to Finland in February 2000, and they lived in Finland-where both H and S were born-until 2003 when they moved to Texas. They lived in Texas until 2006, and then moved back to Finland where Ms. Vilen-Burch and Mr. Burch physically separated in 2008. Upon their separation, H and S remained in Ms. Vilen-Burch's physical custody. Mr. Burch stayed in Finland for approximately six months, and then moved to Venice, Florida where he lived until 2010. In 2010, he moved to Connersville, Indiana where he currently lived. H and S visited their paternal grandparents, Jerry and Sue Burch, in the United States from June 27, 2008 to August 4, 2008. Both Ms. Vilen-Burch and Mr. Burch signed a Contract stating "[o]ur common children [H and S], who permanently live and reside in Finland, may go and visit their grandparents in USA between 27 of June, 2008 and August 4th, 2008. Children have to be absolutely returned back to Finland." Mr. Burch did not accompany H and S on their visit. In the summer of 2009, H and S visited Mr. Burch, who had moved to the United States in late 2008, in the United States from May 31 through July 8. Ms. Vilen-Burch and Mr. Burch's father, also named Jerry Burch, signed a Contract which provided "[H and S,] the children of Merita Vilen-Burch and Jerry Burch II, who permanently live and reside in Finland, may go and visit their father and grandparents in USA between 31st of May and 8 of July, 2009. Children have to be absolutely returned back to Finland." The Contract was signed by Mr. Burch's father rather than Mr. Burch because Mr. Burch's passport had been revoked for nonpayment of child support for different children from a previous relationship, so Mr. Burch's father was required to transport the children back to Finland.
On June 23, 2009, the Helsinki, Finland District Court issued a Judgment of Divorce for Mr. Burch and Ms. Vilen-Burch. The Judgment of Divorce did not address custody arrangements for H and S, but merely stated that "Judgment of divorce between the spouses is pronounced." H and S again visited Mr. Burch during the summer of 2011 in Connersville, Indiana, where he was living. The visit was scheduled to take place from May 28 through August 10, but Ms. Vilen-Burch and Mr. Burch agreed to extend the childrens' stay through the 2011-2012 academic year so that H and S could attend school in Connersville, Indiana. In May 2012, Ms. Vilen-Burch began discussing summer plans for H and S with Mr. Burch, including when the children would return to Finland. When Mr. Burch hung up on her during a telephone call regarding scheduling the childrens' return, Ms. Vilen-Burch realized that the situation was serious and that Mr. Burch did not intend to return them to Finland. Mr. Burch did not, in fact, return the children to Finland in June 2012 as he and Ms. Vilen-Burch had agreed. A Request for Return was filed with the United States Department of State on Ms. Vilen-Burch's behalf on June 18, 2012. Ms. Vilen-Burch also notified school officials in Connersville, Indiana that she did not consent to the childrens' continued enrollment and attendance at the Connersville schools and that Mr. Burch was not allowed to sign any forms on her behalf. In August 2012, when Mr. Burch became aware that Ms. Vilen-Burch had contacted the State Department and initiated proceedings to have the children returned to Finland, however, H and S began to exhibit disinterest in communicating with her. Testimony at the hearing indicated that, since August 2012, Ms. Vilen-Burch offered the possibility of Mr. Burch returning the children to Finland and Ms. Vilen-Burch and Mr. Burch entering into a formal custody agreement in the United States. However, no such agreement was ever reached.
The district court found that H and S habitually resided in Finland when they came to visit Mr. Burch in the summer of 2011. This case was one of wrongful retention, not wrongful removal. Mr. Burch conceded that Indiana was not H and S's habitual residence. His main argument regarding habitual residence, which he attempted to present at the hearing and appeared to present in his filings, is that he and Ms. Vilen-Burch were somehow duped into moving to Finland in the first place because the company that offered Ms. VilenBurch employment, Arctic Image Ltd. ("AI" )-which was the ultimate reason for their move-was allegedly being defrauded by its Chief Executive Officer. The Court found the motivation behind the company's offer of employment to Ms. Vilen-Burch, and the fact that the employment ended up lasting only a short time, to be wholly irrelevant to the fact that Mr. Burch and Ms. Vilen-Burch jointly agreed to move to Finland, and H and S remained residents of Finland up to their summer 2011 visit to the United States. Moreover, the evidence here established that Ms. Vilen-Burch and Mr. Burch only intended that H and S stay in the United States for the 2011-2012 academic year. Ms. Vilen-Burch advised the school that H and S attended in Finland that they would be taking a year abroad to attend school in the United States, and Mr. Burch commented in an email message that he had his work "cut out" for him for the "next 12 months" when the two reached an agreement regarding the 2011-2012 academic year. Mr. Burch presented no evidence showing that either he Ms. Vilen-Burch intended for H and S to stay any longer at that time. The Court concluded that Finland was H's and S's habitual residence when they travelled to the United States in 2011 to visit Mr. Burch.
There was no formal agreement or court order regarding custody of H and S. Based on the Finland Act, the Court concluded that Mr. Burch and Ms. Vilen-Burch had joint custody of H and S when the children came to visit Mr. Burch in the United States in 2011. By retaining H and S in the United States past the agreed-upon school year, Mr. Burch "effectively precluded [Ms. Vilen-Burch] from caring for the children or having any say in where the children would reside."Luedtke, 2012 U.S. Dist. LEXIS 90584 at *13. Accordingly, Mr. Burch breached Ms. Vilen-Burch's custody rights and his retention of the children in the United States was wrongful.
The Court also determined that Ms. Vilen-Burch was exercising her custody rights before Mr. Burch wrongfully retained H and S in the United States, and that she established by a preponderance of the evidence that Mr. Burch wrongfully retained H and S in the United States. The Court questioned H and S separately, in camera. Given S's age, and his understandably emotional state while testifying, the Court found that S had not attained an age and degree of maturity to invoke the age and maturity exception. Moreover, he disclosed considerable influence by Mr. Burch, who had S promise the morning of the hearing that he would "never leave [Mr. Burch]'s side." Accordingly, the Court found it improper to consider his testimony in determining whether the exception applies. The Court further found that, while H appears to have the maturity of an average thirteen year-old, her expression of a generalized desire to remain in the United States, coupled with the Court's finding that she had been strongly influenced by Mr. Burch, led to the conclusion that the mature child exception did not apply here. H articulated a desire to remain in the United States because she was involved in various extracurricular activities, she believes she would do better in school here than she would in Finland, and she did not want to move again. These reasons were simply not sufficient to invoke the exception. The Court could not consider H's wishes to remain in the United States because she had been unduly influenced by Mr. Burch. H's testimony indicated that Mr. Burch has given her certain information regarding these proceedings that was false and/or meant to malign Ms. Vilen-Burch or cause H and S to mistrust her and it declined to apply this exception.
East Sussex Children Services v. Morris, --- F.Supp.2d ----, 2013 WL 243403 (N.D.W.Va.) [United Kingdom] [Rights of Custody] [Deposit Passport] [Petition Granted]
In East Sussex Children Services v. Morris, --- F.Supp.2d
----, 2013 WL 243403 (N.D.W.Va.) Petitioner East Sussex Children Services' a
Verified Petition For Return of Child to United Kingdom of S.A.M., born in 2000.
Respondent Carly Louise Morris was S.A.M.'s mother and a citizen of the United
Kingdom. Respondent Ralph Regis Morris was the Mother's husband, S.A.M's
step-father, and a citizen of the United States. Mother and Step-Father were
married on September 27, 2010 in Cecil County, Maryland. Petitioner, East Sussex
Children Services, was the social services division of the East Sussex County
Council. East Sussex supervised S.A.M. since February 21, 2010 because S .A.M.
was subject to a Child Protection Plan after East Sussex found neglect and risk
of emotional harm to S.A.M. and her half-brother, A. Since October 2010, there
had been ongoing proceedings regarding S.A.M.'s care, residence, and contact in
the Hastings County Court in England and in the High Court of Justice, Principal
Registry of the Family Division in England. Katie Smee-Giles, a senior
practitioner at East Sussex, supervised S.A.M.'s case since July 11, 2011.
In the proceedings involving S.A.M., Mother sought leave of court to remove S.A.M. permanently from the United Kingdom and to relocate S.A.M. to the United States to live with Step-Father. In December 2011, the Hastings County Court did not grant Mother permission to relocate with S.A.M., and the court ordered Mother to file a statement with the court "(a) setting out the status and chronology of any application for a visa for herself and S.A.M. to move to the USA, (b) her intention as to her domestic arrangement if and when she relocates, and (c) her proposal for the future contact of S.A.M. and herself with A. If and when she does settle in the USA.".
Mother and Step-Father were also ordered to cooperate in a background check to be conducted by Children and Families Across Borders, which included a background check in the United States of the Step-Father. On February 1, 2012, the Hastings County Court ordered Mother to file S.A.M.'s passport with the solicitors for the guardian or with the court office at Hastings County Court within 48 hours of being served with the order. On February 20, 2012, Mother filed S.A.M.'s passport with Mother's solicitor. Mother's solicitor undertook to the court "not to release the passport of [S.A.M.] nor to release the passport to any other party without the prior consent of the court." Thus, in order for Mother to have S.A.M.'s passport returned to her, she would need the consent of the court.
Mother alleged in her testimony that about a month later she was planning for holiday in the United States and she forgot that she had lodged S.A.M.'s passport with her solicitor. As a result, Mother alleged she filed for replacement passports for herself and S.A.M. on April 7, 2012. Mother told the passport agency that she needed a replacement passport for S.A.M. because she had put the passport in a safe place at home and could not locate it. Mother and Step-Father testified that Mother did not remember that S.A.M.'s passport was with Mother's solicitor until Mother spoke with Step-Father the evening after she applied for the replacement passports. At that time, Step-Father reminded Mother that S.A.M.'s passport was with Mother's solicitor.
On April 24, 2012, Mother received replacement passports for herself and S.A.M. from the United Kingdom's Passport Agency. Mother did not notify her solicitor or the court that she had applied for and received a replacement passport for S.A.M. On April 27, 2012, Mother also applied for and obtained a travel visa for the United States for herself and S.A.M.
On May 31, 2012, Ms. Smee-Giles met with Mother. Ms. Smee-Giles testified that at the meeting, Mother informed Ms. Smee-Giles that her Visa application had been delayed for some time. However, only one day after the meeting, on June 1, 2012, Mother removed S.A.M. from the United Kingdom to Canada. On June 4, 2012, Mother
and S.A.M. entered the United States via the Rainbow Bridge in Niagara Falls. Mother and S.A.M. met Step-Father at Niagara Falls. Mother testified that S.A.M. was so happy to be with Step-Father that she could not separate them. In the following days, Mother traveled with S.A.M. to Step-Father's home in Hedgesville, West Virginia. Since this time, S.A.M. has resided in Hedgesville, West Virginia with Mother and Step-Father. Until S.A.M .'s removal from the United Kingdom on June 1, 2012, S.A.M. has always lived there. She attended school in the United Kingdom, and she had friends and extended family there.
On June 11, 2012, Mother e-mailed Ms. Smee-Giles to inform her that a scheduled supervised visit between S.A.M. and her half-brother A. could not take place because S.A.M. had chicken pox. The Court found that Mother wrote the e-mail to deceive East Sussex as to her and S.A.M.'s whereabouts. Ms. Smee-Giles testified that Mother's e-mail was unusual as she had never received an e-mail from Mother, so, on June 12, 2012 she conducted an unannounced visit to the family home. When she arrived at the family home, it was clear that Mother and S.A.M. had left the address. Ms. Smee-Giles testified that the house was locked up and that there was a mattress sitting in the doorway. At that point, Ms. Smee-Giles notified S.A.M.'s guardian, and S.A.M.'s guardian called an emergency hearing in Hastings County Court. At the emergency hearing, the Hastings County Court entered an Interim Care Order placing the Child in the care of East Sussex County Council Social Services. The Order granted East Sussex Children Services and East Sussex County Council shared parental responsibility over S.A.M. under the Children Act of 1989. The Order also provided the following: WARNING: Where a Care Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or leave of court. However, the local authority, in whose care the child is, may remove the child from the United Kingdom for a period of less than 1 month. It may be a criminal offence under the Child Abduction Act 1984 to remove the child from the United Kingdom without the leave of the court.
On June 28, 2012, prior to discovering that Mother had removed S.A.M. from the United Kingdom, Justice Moylan of the High Court of Justice, Principal Registry of the Family Division, entered a Passport Order ordering the Mother to hand over to the Tipstaff all of S.A.M.'s and Mother's passports and any and all other travel documents, prohibiting Mother from obtaining or attempting to obtain replacement passports for
herself or S.A.M., and prohibiting Mother from removing S.A.M. from the United Kingdom. After learning of S.A.M.'s removal from the United Kingdom, East Sussex prepared and filed its Application for Return of the Child and submitted the Application to the Central Authority for England and Wales on July 5, 2012. The Application was transmitted to the United States Central Authority. On December 3, 2012, Petitioner filed its Verified Petition for the Return of the Child to the United Kingdom and Issuance of Show Cause Order.
On December 13, 2012, the Court conducted a hearing to show cause why the Petition should not be enforced. The Court ordered Mother to turn into the Clerk of Court her passport and S.A.M.'s passport on December 19, 2012, which was the day after the Respondents and S.A.M. were required to attend a previously scheduled immigration interview in Pittsburgh, Pennsylvania, regarding their application for United States citizenship. On December 19, Mother turned in her passport and S.A.M.'s passport to the Clerk of Court for safe-keeping until the case was resolved. On December 21, 2012, Mother and S.A.M. received their green cards. Mother was ordered to surrender S.A.M.'s green card to the clerk of the court for safe-keeping.
The district court found that Mother made a unilateral decision to remove S.A.M. from the United Kingdom. On the date of removal, Petitioner was unaware of Mother's intention to remove the child, and Petitioner had not acquiesced to S.A.M.'s removal., S.A.M. had lived in the United Kingdom her whole life. S .A.M. attended school in the United Kingdom, and she had extended family and friends there. Step-Father and Mother testified that on June 1, 2012, Mother's intention was merely to vacation in Canada and then in the United States at Niagara Falls. Step-Father admitted on cross-examination that, at the time S.A.M. entered the United States, her home was in the United Kingdom. Moreover, Mother could not create a new habitual residence by wrongfully removing S.A.M. Therefore, the Court found by a preponderance of the evidence that the United Kingdom was the habitual residence of S.A.M. immediately before her removal to the United States.
The Court found that East Sussex Children Services asserted the United Kingdom's court's custody rights under the Hague Convention prior to S.A.M.'s removal. On February 21, 2010, S.A.M. was under a Child Protection Plan, enacted due to the risk of emotional harm to S.A.M. According to Ms. Smee-Giles' testimony, she was required under United Kingdom law to see children on those plans at least every ten days in person. Therefore, East Sussex Children Services regularly supervised S.A.M.'s well-being. In addition, the Child Protection Plan at issue in this case required Mother to notify East Sussex of any intention to remove the child from the country, or even when moving addresses within the country. When Mother removed S.A.M. from the United Kingdom, the Child Protection Plan was still in place. Most importantly, on February 1, 2012, the Hastings County Court ordered Mother to "lodge the passport of [S.A.M.] ... with either Elaine Parkes & Co., as solicitors for the guardian, or with the court office at Hastings County Court." Mother lodged S.A.M.'s passport with her Solicitor, who took an oath to the court not to release S.A.M.'s passport "to any other party without the prior consent of the court." 5. Ms. Smee-Giles testified that the Court's order regarding S.A.M.'s passport was to ensure that should S.A.M. be removed from the country, the court would be made aware of that intention prior to her removal. Pursuant to Petitioner's Exhibit 4, Mother would need consent of the court to obtain S.A.M.'s passport in order to leave the country. Thus, if Mother desired to remove S.A.M. from the country, she must inform and receive permission from the English court. According to Petitioner's Exhibit 16, an Affidavit of English and Welsh Law admitted pursuant to Article 14 of the Hague Convention, the English Court exercised its rights of custody on February 20, 2012, when Mother's solicitor undertook to the court not to release S.A.M.'s passport to any other party without the prior consent of the court. The Court found that the February 1, 2012 and February 20, 2012 orders created a ne exeat right, and the United States Supreme Court has concluded that "ne exeat rights are rights of custody...." Abbott, 130 S.Ct. at 1993.
The Court found that the Hastings County Court's February 1, 2012 order was a ne exeat order that conferred custody rights upon the court. Petitioner, East Sussex Children Services, asserting the court's custody rights, could determine S.A.M.'s residence by requiring East Sussex Children Services' and the Hastings County Court's consent for S.A.M. to leave the United Kingdom. Petitioner and the United Kingdom's courts acquired custody rights through the court's ne exeat order. Although a ne exeat order does not fit within "traditional notions of physical custody," the Convention nevertheless established an increasingly broad definition of custody rights. Abbott, 130 S.Ct. at 1991. Therefore, construing the definition of custody rights broadly pursuant to the text and purpose of the Hague Convention, the Court found that Petitioner had custody rights over S.A.M. at the time of removal.
In determining whether removal is wrongful, the Fourth Circuit Court of Appeals will liberally find "exercise" of a nonremoving parent's custodial rights, as required for removal to be wrongful under the Hague Convention whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. Bader, 484 F.3d at 671. Under this approach, a person [who] has valid custody rights to a child under the law of the country of the child's habitual residence ... cannot fail to "exercise" those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The Petitioner had custody rights under the February 2010 Child Protection Plan. Petitioner regularly monitored and supervised Mother and S.A.M. pursuant to the plan, and this included an in person visit with S.A.M. every ten days. Also, in February 2012, the Court instructed Mother to lodge S.A.M.'s passport with S.A.M.'s solicitor or the Court for safe-keeping. Although Mother ultimately turned S.A.M.'s passport into Mother's solicitor, the solicitor undertook not to release the passport to any other party. The Court's order exercised custody rights as it was designed to prevent Mother from unilaterally removing S.A.M. from the United Kingdom. Therefore, the Court found that Petitioner was exercising its custody rights at the time of S.A.M.'s removal.
Accordingly, the Court concluded that pursuant to the Hague Convention and ICARA, Petitioner had proven by a preponderance of the evidence that on June 1, 2012, Mother wrongfully removed S.A.M. from the United Kingdom-S.A.M.'s habitual residence at that time.
In the proceedings involving S.A.M., Mother sought leave of court to remove S.A.M. permanently from the United Kingdom and to relocate S.A.M. to the United States to live with Step-Father. In December 2011, the Hastings County Court did not grant Mother permission to relocate with S.A.M., and the court ordered Mother to file a statement with the court "(a) setting out the status and chronology of any application for a visa for herself and S.A.M. to move to the USA, (b) her intention as to her domestic arrangement if and when she relocates, and (c) her proposal for the future contact of S.A.M. and herself with A. If and when she does settle in the USA.".
Mother and Step-Father were also ordered to cooperate in a background check to be conducted by Children and Families Across Borders, which included a background check in the United States of the Step-Father. On February 1, 2012, the Hastings County Court ordered Mother to file S.A.M.'s passport with the solicitors for the guardian or with the court office at Hastings County Court within 48 hours of being served with the order. On February 20, 2012, Mother filed S.A.M.'s passport with Mother's solicitor. Mother's solicitor undertook to the court "not to release the passport of [S.A.M.] nor to release the passport to any other party without the prior consent of the court." Thus, in order for Mother to have S.A.M.'s passport returned to her, she would need the consent of the court.
Mother alleged in her testimony that about a month later she was planning for holiday in the United States and she forgot that she had lodged S.A.M.'s passport with her solicitor. As a result, Mother alleged she filed for replacement passports for herself and S.A.M. on April 7, 2012. Mother told the passport agency that she needed a replacement passport for S.A.M. because she had put the passport in a safe place at home and could not locate it. Mother and Step-Father testified that Mother did not remember that S.A.M.'s passport was with Mother's solicitor until Mother spoke with Step-Father the evening after she applied for the replacement passports. At that time, Step-Father reminded Mother that S.A.M.'s passport was with Mother's solicitor.
On April 24, 2012, Mother received replacement passports for herself and S.A.M. from the United Kingdom's Passport Agency. Mother did not notify her solicitor or the court that she had applied for and received a replacement passport for S.A.M. On April 27, 2012, Mother also applied for and obtained a travel visa for the United States for herself and S.A.M.
On May 31, 2012, Ms. Smee-Giles met with Mother. Ms. Smee-Giles testified that at the meeting, Mother informed Ms. Smee-Giles that her Visa application had been delayed for some time. However, only one day after the meeting, on June 1, 2012, Mother removed S.A.M. from the United Kingdom to Canada. On June 4, 2012, Mother
and S.A.M. entered the United States via the Rainbow Bridge in Niagara Falls. Mother and S.A.M. met Step-Father at Niagara Falls. Mother testified that S.A.M. was so happy to be with Step-Father that she could not separate them. In the following days, Mother traveled with S.A.M. to Step-Father's home in Hedgesville, West Virginia. Since this time, S.A.M. has resided in Hedgesville, West Virginia with Mother and Step-Father. Until S.A.M .'s removal from the United Kingdom on June 1, 2012, S.A.M. has always lived there. She attended school in the United Kingdom, and she had friends and extended family there.
On June 11, 2012, Mother e-mailed Ms. Smee-Giles to inform her that a scheduled supervised visit between S.A.M. and her half-brother A. could not take place because S.A.M. had chicken pox. The Court found that Mother wrote the e-mail to deceive East Sussex as to her and S.A.M.'s whereabouts. Ms. Smee-Giles testified that Mother's e-mail was unusual as she had never received an e-mail from Mother, so, on June 12, 2012 she conducted an unannounced visit to the family home. When she arrived at the family home, it was clear that Mother and S.A.M. had left the address. Ms. Smee-Giles testified that the house was locked up and that there was a mattress sitting in the doorway. At that point, Ms. Smee-Giles notified S.A.M.'s guardian, and S.A.M.'s guardian called an emergency hearing in Hastings County Court. At the emergency hearing, the Hastings County Court entered an Interim Care Order placing the Child in the care of East Sussex County Council Social Services. The Order granted East Sussex Children Services and East Sussex County Council shared parental responsibility over S.A.M. under the Children Act of 1989. The Order also provided the following: WARNING: Where a Care Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or leave of court. However, the local authority, in whose care the child is, may remove the child from the United Kingdom for a period of less than 1 month. It may be a criminal offence under the Child Abduction Act 1984 to remove the child from the United Kingdom without the leave of the court.
On June 28, 2012, prior to discovering that Mother had removed S.A.M. from the United Kingdom, Justice Moylan of the High Court of Justice, Principal Registry of the Family Division, entered a Passport Order ordering the Mother to hand over to the Tipstaff all of S.A.M.'s and Mother's passports and any and all other travel documents, prohibiting Mother from obtaining or attempting to obtain replacement passports for
herself or S.A.M., and prohibiting Mother from removing S.A.M. from the United Kingdom. After learning of S.A.M.'s removal from the United Kingdom, East Sussex prepared and filed its Application for Return of the Child and submitted the Application to the Central Authority for England and Wales on July 5, 2012. The Application was transmitted to the United States Central Authority. On December 3, 2012, Petitioner filed its Verified Petition for the Return of the Child to the United Kingdom and Issuance of Show Cause Order.
On December 13, 2012, the Court conducted a hearing to show cause why the Petition should not be enforced. The Court ordered Mother to turn into the Clerk of Court her passport and S.A.M.'s passport on December 19, 2012, which was the day after the Respondents and S.A.M. were required to attend a previously scheduled immigration interview in Pittsburgh, Pennsylvania, regarding their application for United States citizenship. On December 19, Mother turned in her passport and S.A.M.'s passport to the Clerk of Court for safe-keeping until the case was resolved. On December 21, 2012, Mother and S.A.M. received their green cards. Mother was ordered to surrender S.A.M.'s green card to the clerk of the court for safe-keeping.
The district court found that Mother made a unilateral decision to remove S.A.M. from the United Kingdom. On the date of removal, Petitioner was unaware of Mother's intention to remove the child, and Petitioner had not acquiesced to S.A.M.'s removal., S.A.M. had lived in the United Kingdom her whole life. S .A.M. attended school in the United Kingdom, and she had extended family and friends there. Step-Father and Mother testified that on June 1, 2012, Mother's intention was merely to vacation in Canada and then in the United States at Niagara Falls. Step-Father admitted on cross-examination that, at the time S.A.M. entered the United States, her home was in the United Kingdom. Moreover, Mother could not create a new habitual residence by wrongfully removing S.A.M. Therefore, the Court found by a preponderance of the evidence that the United Kingdom was the habitual residence of S.A.M. immediately before her removal to the United States.
The Court found that East Sussex Children Services asserted the United Kingdom's court's custody rights under the Hague Convention prior to S.A.M.'s removal. On February 21, 2010, S.A.M. was under a Child Protection Plan, enacted due to the risk of emotional harm to S.A.M. According to Ms. Smee-Giles' testimony, she was required under United Kingdom law to see children on those plans at least every ten days in person. Therefore, East Sussex Children Services regularly supervised S.A.M.'s well-being. In addition, the Child Protection Plan at issue in this case required Mother to notify East Sussex of any intention to remove the child from the country, or even when moving addresses within the country. When Mother removed S.A.M. from the United Kingdom, the Child Protection Plan was still in place. Most importantly, on February 1, 2012, the Hastings County Court ordered Mother to "lodge the passport of [S.A.M.] ... with either Elaine Parkes & Co., as solicitors for the guardian, or with the court office at Hastings County Court." Mother lodged S.A.M.'s passport with her Solicitor, who took an oath to the court not to release S.A.M.'s passport "to any other party without the prior consent of the court." 5. Ms. Smee-Giles testified that the Court's order regarding S.A.M.'s passport was to ensure that should S.A.M. be removed from the country, the court would be made aware of that intention prior to her removal. Pursuant to Petitioner's Exhibit 4, Mother would need consent of the court to obtain S.A.M.'s passport in order to leave the country. Thus, if Mother desired to remove S.A.M. from the country, she must inform and receive permission from the English court. According to Petitioner's Exhibit 16, an Affidavit of English and Welsh Law admitted pursuant to Article 14 of the Hague Convention, the English Court exercised its rights of custody on February 20, 2012, when Mother's solicitor undertook to the court not to release S.A.M.'s passport to any other party without the prior consent of the court. The Court found that the February 1, 2012 and February 20, 2012 orders created a ne exeat right, and the United States Supreme Court has concluded that "ne exeat rights are rights of custody...." Abbott, 130 S.Ct. at 1993.
The Court found that the Hastings County Court's February 1, 2012 order was a ne exeat order that conferred custody rights upon the court. Petitioner, East Sussex Children Services, asserting the court's custody rights, could determine S.A.M.'s residence by requiring East Sussex Children Services' and the Hastings County Court's consent for S.A.M. to leave the United Kingdom. Petitioner and the United Kingdom's courts acquired custody rights through the court's ne exeat order. Although a ne exeat order does not fit within "traditional notions of physical custody," the Convention nevertheless established an increasingly broad definition of custody rights. Abbott, 130 S.Ct. at 1991. Therefore, construing the definition of custody rights broadly pursuant to the text and purpose of the Hague Convention, the Court found that Petitioner had custody rights over S.A.M. at the time of removal.
In determining whether removal is wrongful, the Fourth Circuit Court of Appeals will liberally find "exercise" of a nonremoving parent's custodial rights, as required for removal to be wrongful under the Hague Convention whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. Bader, 484 F.3d at 671. Under this approach, a person [who] has valid custody rights to a child under the law of the country of the child's habitual residence ... cannot fail to "exercise" those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The Petitioner had custody rights under the February 2010 Child Protection Plan. Petitioner regularly monitored and supervised Mother and S.A.M. pursuant to the plan, and this included an in person visit with S.A.M. every ten days. Also, in February 2012, the Court instructed Mother to lodge S.A.M.'s passport with S.A.M.'s solicitor or the Court for safe-keeping. Although Mother ultimately turned S.A.M.'s passport into Mother's solicitor, the solicitor undertook not to release the passport to any other party. The Court's order exercised custody rights as it was designed to prevent Mother from unilaterally removing S.A.M. from the United Kingdom. Therefore, the Court found that Petitioner was exercising its custody rights at the time of S.A.M.'s removal.
Accordingly, the Court concluded that pursuant to the Hague Convention and ICARA, Petitioner had proven by a preponderance of the evidence that on June 1, 2012, Mother wrongfully removed S.A.M. from the United Kingdom-S.A.M.'s habitual residence at that time.
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