In Carnelli v Pas, 2011 WL 1983360 (D.N.J.) Not for Publication, a Petition was filed by Mirna Judith Rodriguez Carnelli ("Petitioner") for the return of her minor child. The District Court denied the Petition based on the "wishes of the child" exception.
Petitioner and Respondent, both natives of Uruguay, were married on May 3, 1988 in Uruguay. In June 1988, Respondent emigrated to the United States, and his wife and young daughter, Virginia, followed in 1990. The family settled in Kearny, New Jersey. On September 20, 1996, Daniel was born in Belleville, New Jersey. The family resided together in Kearny until 2002, when Petitioner and Respondent separated. At that point, Petitioner and her children continued to live in Kearny, New Jersey, while Respondent resided in a separate home in the neighboring town of Harrison. When Petitioner lost her job at a bank in 2004, she was unable to find new employment, a circumstance she attributed to her immigration status. Through personal connections, she was offered a job in Mallorca, Spain. Her emigration to Spain required her to depart from her native Uruguay, where she was a citizen and could obtain the necessary travel authorization. Prior to departing for Uruguay in or about January 2005, she and Respondent reached an agreement regarding the minor children: Virginia would live in the United States in Respondent's care and Daniel would
remain with his mother. Petitioner and Respondent jointly obtained a United States passport for Daniel's international travel to Uruguay, and then to Spain.
While in Uruguay, Petitioner sought to dissolve her marriage with Respondent. Although Respondent also contends that he did not consent to the divorce, he admitted that he signed the divorce documents. The Uruguayan court entered a Divorce Decree terminating the marriage of the parties on or about September 28, 2005. It included a custody agreement, whereby Respondent would continue to exercise custody over Virginia and Petitioner would exercise custody over Daniel.
Petitioner and Daniel moved to Spain, where they remained until January 2009. At that time, a loss of employment prompted Petitioner to relocate. She was offered a job in London, and so in or about January 2009, Petitioner, Daniel, and Petitioner's second husband, whom she married on September 23, 2008, moved to the United Kingdom. Per a signed authorization transmitted from the Uruguayan Consulate in
New York to the Uruguayan Consulate in Palma de Mallorca, Respondent consented to Daniel's residence in Spain and the United Kingdom in the custody of Petitioner. In or about July 2009, Daniel traveled from the United Kingdom to the United States to spend the summer with his father, as he had done every year since leaving the United States in 2005. While Daniel was visiting Respondent, Petitioner's husband returned to
his native Argentina upon the death of his mother, and Petitioner soon relocated there to help her husband care for his ailing father. Petitioner informed Respondent of her situation and asked that he keep Daniel in his care until she was able to sort out her residency, which was necessary for Daniel to obtain his own Argentine residency. She admited that she agreed to his enrollment in school in New Jersey, given the uncertainty regarding how long it would take for her residency to be approved but stressed that she made it clear to Respondent that Daniel should be returned to her once she obtained residency. When the residency was approved on October 15, 2009, Petitioner asked for Daniel to return but Respondent refused. Petitioner claimed that at that point, she began to encounter consistent difficulty in establishing contact with Respondent and ultimately was unable to establish contact at all. Daniel remained in the physical custody of his father since July 2009 to the present. Petitioner filed the Petition in this Court on June 16, 2010. At that time, Daniel was 13 years old. He was currently 14.
The Court found that Petitioner met her burden of proving that Daniel was wrongfully retained. The retention occurred in or about October 2009, when, according to Petitioner's testimony, she asked that Daniel be returned to her and Respondent failed to comply with her wishes. Petitioner conceded that the United Kingdom was the child's place of habitual residence. Petitioner's request for Daniel's return showed her exercise of her custody rights. Having found a wrongful retention, the Court noted that this case presented a slightly unusual situation with regard to the interplay between Article 3, which sets forth the standard for wrongful removal or retention, and Article 12, which directs the return of the child forthwith if that standard is met. The country in which Daniel was habitually resident immediately before his wrongful detention--which Petitioner conceded was the United Kingdom–was not the country to which Petitioner sought he be returned. Petitioner relocated to Argentina after Daniel traveled to the United States. Nor was Argentina a place Daniel ever called home, such that his return to his mother would effect the Convention's goal of having custody disputes resolved in the home country, as opposed to the place where the child has been wrongfully removed or retained. Petitioner argued that the discrepancy between the country of habitual residence, as defined by the Convention, and the country to which she sought Daniel's return should not foreclose the relief she sought because Article 12 of the Convention was deliberately silent on the matter of where the return of a wrongfully removed or retained child should be ordered. Petitioner appeared to be correct. Article 12 simply provides that "the authority concerned shall order the return of the child forthwith," without specifying, as the preamble to the Convention contemplates, that the return be to the country of habitual residence. (see also Von Kennell Gaudin v.
Remis, 282 F.3d 1178, 1182 (9th Cir.2002) (noting that Convention does not make
clear to what country a child must be returned and pointing out difference between
Convention's preamble and its actual text). The Convention's official commentary, cited
by Petitioner in support of her argument, bears out the view that a court handling a
Convention claim may order the return of a child to the custodial parent even if the
parent is not in the place of the child's habitual residence. ( See Elisa Perez Vera, Explanatory Report P 110, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 459-60 (1982).
Though the Court agreed with Petitioner's argument that it was authorized under the Convention to return Daniel to his mother's custody in Argentina, the Court found that Respondent had proven, by the required preponderance of the evidence standard, that Article 13's "wishes of the child" defense applied. Article 13 provides that "[t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its [sic] views." Daniel unequivocally testified that he wished to remain in the United States with his father. There is no set age under the Convention at which a child is deemed to be sufficiently mature; rather, the Third Circuit guides that the district court hearing the matter must make this fact-intensive determination on a case-by-case basis. Tsai-Yi Yang, 499 F.3d at 279. Daniel, who is 14, expressed his wishes to stay with his father in a cogent and well-reasoned manner. He explained that he enjoyed meaningful and close relationships with many family members also living in or near his father's home in Kearny, New Jersey, including specifically his sister, Virginia, his cousin Michael and his Aunt Betsy. He also testified that he was happy with his schooling as a student in Kearny High School, where he enjoyed friendships and, as the records demonstrated, had achieved good grades. In contrast, he described an itinerant and somewhat lonely lifestyle with his mother. He also testified that while he spoke a little Spanish, he was not fluent in the language, which further provided a reasoned basis for his desire to remain with his father in the United States. Moreover, there was no indication that Daniel's wishes to remain with his father were somehow the product of undue influence by his father or some other family member or third-party. The Court also noted that his wishes did not appear to arise from a teenager's rebellious streak or some aversion to his mother. Daniel made it very clear that he loved both of his parents and wished to have a harmonious relationship with both of them. His preference to remain in the United States with his father would seem to stem, rather, from a desire for a more stable lifestyle than his mother was able to provide. Petitioner drew attention to the fact that during this period of time that Daniel had been living with his father, it has been very difficult for her to contact Daniel and that, moreover, the infrequent contact she did have with him (mostly over computer chats, as opposed to telephone) had been strained. She indicated her belief that this breakdown of communication with her son evidenced Respondent's efforts to alienate Daniel from Petitioner. The Court observed that communication between Petitioner and her son had been lacking. Daniel did display feelings of resentment toward his mother, but based on his testimony, the Court understood this tension to stem from Daniel's frustration with his mother's lack of candor with respect to her pursuit of this Petition and her role in the commencement of an ultimately unsubstantiated child welfare investigation by New Jersey's Division of Youth and Family Services. The Court listened attentively to Daniel's testimony, and it did not perceive the communication problems between Daniel and Petitioner to be indicative of any manipulation by Respondent of Daniel's thoughts and feelings but rather of the boy's difficult position in which he is caught in a tug-of-war between his adversarial parents. The Court weighed this unfortunate circumstance and concluded that it does not diminish the reasonableness of Daniel's wish to remain in the United States with his father. The Court found that Daniel presented as a thoughtful and intelligent young man, who, at the age of 14, demonstrated a degree of maturity at which it was appropriate for the Court to consider his views regarding whether to stay with his father or be returned to his mother. Accordingly, the Court denied the Petition under Article 13 of the Convention and the implementing statutory provision, 42 U.S.C. 11603(e)(2)(B).
Thursday, June 16, 2011
Monday, May 23, 2011
Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) [Ukrane] [Federal and State Judicial Remedies]
In Khalip v Khalip, 2011 WL 1882514 (E.D.Mich.) Petitioner Oleg Yuriyovich Khalip (Petitioner) sought the return of his two minor children, claiming that the children's mother, Respondent Alla Viktorivna Khalip, a/k/a Alla Viktorivna Galkin, (Respondent), wrongfully removed them from the Ukraine to Michigan. Petitioner was born in 1964 in the Ukraine and was a citizen and resident of the Ukraine since his birth. Respondent was born in 1977 in the Ukraine. She was a native and citizen of the Ukraine, where she resided until June 11, 2010. Petitioner and Respondent were married on January 25, 2002. Their two children were born in the Ukraine; IOK in 2002 and KOK in 2003. On November 20, 2009, Petitioner and Respondent divorced; a custody agreement was not reached during the divorce proceedings. On May 11, 2010, Petitioner signed a notarized application, which gave consent to Respondent to permanently move IOK and KOK to the United States. On June 1, 2010, Petitioner signed a notarized application revoking his consent because, according to Petitioner, Respondent breached an oral agreement related generally to the upbringing of the children and their permanent residence after the age of 16. According to Petitioner, he personally served the revocation application on Respondent on June 8, 2010. In support, he proffed three affidavits from witnesses who said that they overheard the conversation between Petitioner and Respondent. Respondent disputed that she was ever served with Respondent's revocation. On June 10, 2010, Respondent moved to Michigan with IOK and KOK, where they permanently resided since. According to Petitioner, Respondent picked up the children from school on June 10, 2010, and secretly took them to Michigan without Petitioner's knowledge. According to Respondent, Petitioner agreed to the move. Respondent asserted that upon their arrival in Michigan, she provided Petitioner with telephone and email contact information. She said that the children had regular contact with Petitioner via phone and video chat and that Petitioner visited them twice in Michigan within two months. Petitioner did not admit or deny the visits. On June 14, 2010, Respondent remarried to Leonardo Alex Galkin (Galkin). Respondent, Galkin, and the two children now lived together in Ann Arbor, Michigan.
The Court observed that under Ukrainian law, each spouse has equal rights and obligations in the marriage and family. Article 51, Ukraine Constitution. The Family Code of Ukraine establishes the equal rights and duties of the parents with regard to a child whether they were married or not. Article 141, Ukraine Family Code. Particularly, a divorce does not influence on the extent of the parental rights and duties. A child's residence under the age of ten shall be determined by the consent of his or her parents. Article 160, Ukraine Family Code. If a mother and a father who live separately have not come to agreement in the question where the minor children should live, their dispute may be resolved by a court. Article 161, Ukraine Family Code. Finally, if one of the parents or any other person willfully, without consent of another parent or another persons, with whom the minor child lived according to the law or by the court decision, change the place of his or her residence, also by means of abduction, a court, upon application of the interested person, has the right to deliver immediately the decision on depriving the child and his or her return to the last place of residence. Article 162, Ukraine Family Code.
On July 7, 2010, a Ukraine district court entered a decision in response to Petitioner's consent revocation application, which certified Petitioner's revocation and held that Respondent had illegally taken the children without Petitioner's consent. The Ukrainian appeals courts affirmed the lower court's decision, after which the Ukranian district court ordered immediate taking of the children. On February 2, 2011, Respondent appealed to the Highest Specialized Court of Ukraine. The high court accepted the appeal, effectively staying the lower court's rulings.
On September 3, 2010, Petitioner filed the petition. On March 9, 2011, the Court heard oral argument on the petition. On March 23, 2011, the Court interviewed the children in chambers. Each articulated the reasons that they do not want to return to the Ukraine: generally, because they recalled that the Ukraine was dirty and preferred the United States, which they said was cleaner and bigger. KOK stated that she did not want to be without her mother. Petitioner moved the Court to appoint an independent psychologist to interview the children, and the Court ordered a psychologist to "determine and report to the Court and both parties whether or not the children have attained an age and degree of maturity for the Court to take account of their views." If the answer to the first question was "yes," the psychologist was further ordered to "determine and report the children's views regarding returning to the Ukraine to live." The psychologist's report was filed with the Court, and both parties, on April 19, 2011. In response to the Court's first question, the psychologist stated: In my professional opinion, speaking as a psychologist, neither child (IOK or KOK) is at his or her present age and stage of cognitive and emotional development capable of conducting a mature (in the sense of: thoughtful, rational, and reasonably balanced and comprehensive) analysis of his or her own best interests with respect to the question of returning to live in the Ukraine with their father.
Respondent conceded that the Ukraine, where the children were born and had always lived, was the habitual residence of the children prior to their removal. To demonstrate that he was exercising valid custody rights at the time the children were removed to Michigan, Petitioner, inter alia, cited his consent revocation application and the decisions from the Ukraine district and appellate courts, which certified the revocation and ordered the children's return. Respondent said she did not wrongfully remove the children because Petitioner consented to the children's permanent change of residency, relying on the May 11, 2010, consent application. She asserted that she was not aware of Petitioner's June 1, 2010, revocation at the time that she moved with the children on June 10, 2010. Based on the evidence, particularly the consent revocation document, which was notarized before Respondent moved with the children, the court held that Petitioner submitted sufficient evidence to show that at the time the children were removed he was exercising his custody rights. Further, the surreptitious nature of Respondent's move with the children--without Petitioner present and executed in an unplanned manner by picking up the children from school without the Petitioner's knowledge or that of the children's caretaker--weighed in favor of Petitioner's assertion that Respondent moved without his consent. Finally, even if Respondent was not aware of the revocation, it did not take away from the fact that Petitioner exercised his rights by expressly revoking his consent in a notarized writing, which he then filed in the Ukranian courts for certification. This was not a case where Petitioner simply changed his mind. Thus, Petitioner established by a preponderance of the evidence that the children were wrongfully removed.
Respondent argued that Petitioner consented to the removal when he signed the consent application, and that he subsequently acquiesced in the removal of the children when he visited them in Michigan on two occasions. In response, Petitioner argued that he did not consent to the children's removal and again profferred the consent revocation document and the Ukranian district and appellate court decisions to support his assertion. On balance, the evidence weighed in Petitioner's favor. Particularly, the consent revocation document and the Ukranian district and appellate court decisions persuaded the Court that Petitioner was actively exercising his custodial rights before and after the children were removed. Also, the manner in which the children were removed supported the inference that Petitioner did not consent to the children's removal. Petitioner's visits to Michigan and communication over email and through video chat failed to demonstrate that he acquiesced in the removal. The Court also found that IOK and KOK had not reached the requisite level of maturity that a Court should consider their views. Accordingly, the Court found that the age and maturity defense did not apply.
The Petition was granted and it was ordered that the parties' children, IOK and KOK, be returned to the Ukraine, pursuant to the Convention and ICARA. However, in light of Respondent's May 13, 2011, supplemental filing, submitted on the eve of the Court's decision, the Court stayed the effectiveness of this decision for 30 days. The Court recognized that the July 7, 2010, decision from a district court in the Ukraine, which ordered the immediate return of the children appeared to have been effectively stayed by the Highest Specialized Court of Ukraine. In the Ukraine, "High Specialized Courts shall consider cassation complaints of respective court jurisdiction; analyze, study, and cumulate court practice; assist lower courts to ensure identical application of Constitutional norms and laws in court practice; perform other functions." Martindale-Hubbell Law Digest, Ukraine, 11 (2008). The Highest Specialized Court of Ukraine "ruled": (1) [t]o start cassation proceedings, concerning the claim of [Petitioner] towards [Respondent] ... concerning separation of the children, their return to the permanent place of residence to Ukraine and determination of the place of residence of the children with [Petitioner]"; (2) [t]o suspend execution of decision of Leninskiy district court of Zaporizhya city dated July 07, 2010 till termination of the cassation proceedings of the case"; (3) "[t]o demand the mentioned civil case from Leninskiy district court of Zaporizhya city"; and (4) "[t]o send the copies of the cassation appeal and the enclosed materials of the case to the persons who participate in the case[,] to explain their right to file an objection to cassation appeal till May 20, 2011."
Based on the above ruling, the nature of the future proceedings in the Ukraine courts was not altogether clear. As it related to the present petition, under Article 15 of the Convention: judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. The Court should also consider the "length of time it will take to obtain the required documentation." Hague International Child Abduction Convention; Text and Legal Analysis, Department of State, March 26, 1986, at 14-15. In the interest of comity, the Court gave considerable weight to the Ukraine court decisions in deciding whether the children were wrongfully removed and should therefore be returned to Petitioner; the Highest Specialized Court's decision is no different. On the other hand, the Court has an obligation under the Convention to make an expeditious decision. With these conflicting considerations in mind, effectiveness of this decision was stayed for 30 days to allow the parties the opportunity to further illuminate the status of the legal proceedings in the Ukraine, including the time it will take the courts in the Ukraine to resolve the pending proceedings.
The Court observed that under Ukrainian law, each spouse has equal rights and obligations in the marriage and family. Article 51, Ukraine Constitution. The Family Code of Ukraine establishes the equal rights and duties of the parents with regard to a child whether they were married or not. Article 141, Ukraine Family Code. Particularly, a divorce does not influence on the extent of the parental rights and duties. A child's residence under the age of ten shall be determined by the consent of his or her parents. Article 160, Ukraine Family Code. If a mother and a father who live separately have not come to agreement in the question where the minor children should live, their dispute may be resolved by a court. Article 161, Ukraine Family Code. Finally, if one of the parents or any other person willfully, without consent of another parent or another persons, with whom the minor child lived according to the law or by the court decision, change the place of his or her residence, also by means of abduction, a court, upon application of the interested person, has the right to deliver immediately the decision on depriving the child and his or her return to the last place of residence. Article 162, Ukraine Family Code.
On July 7, 2010, a Ukraine district court entered a decision in response to Petitioner's consent revocation application, which certified Petitioner's revocation and held that Respondent had illegally taken the children without Petitioner's consent. The Ukrainian appeals courts affirmed the lower court's decision, after which the Ukranian district court ordered immediate taking of the children. On February 2, 2011, Respondent appealed to the Highest Specialized Court of Ukraine. The high court accepted the appeal, effectively staying the lower court's rulings.
On September 3, 2010, Petitioner filed the petition. On March 9, 2011, the Court heard oral argument on the petition. On March 23, 2011, the Court interviewed the children in chambers. Each articulated the reasons that they do not want to return to the Ukraine: generally, because they recalled that the Ukraine was dirty and preferred the United States, which they said was cleaner and bigger. KOK stated that she did not want to be without her mother. Petitioner moved the Court to appoint an independent psychologist to interview the children, and the Court ordered a psychologist to "determine and report to the Court and both parties whether or not the children have attained an age and degree of maturity for the Court to take account of their views." If the answer to the first question was "yes," the psychologist was further ordered to "determine and report the children's views regarding returning to the Ukraine to live." The psychologist's report was filed with the Court, and both parties, on April 19, 2011. In response to the Court's first question, the psychologist stated: In my professional opinion, speaking as a psychologist, neither child (IOK or KOK) is at his or her present age and stage of cognitive and emotional development capable of conducting a mature (in the sense of: thoughtful, rational, and reasonably balanced and comprehensive) analysis of his or her own best interests with respect to the question of returning to live in the Ukraine with their father.
Respondent conceded that the Ukraine, where the children were born and had always lived, was the habitual residence of the children prior to their removal. To demonstrate that he was exercising valid custody rights at the time the children were removed to Michigan, Petitioner, inter alia, cited his consent revocation application and the decisions from the Ukraine district and appellate courts, which certified the revocation and ordered the children's return. Respondent said she did not wrongfully remove the children because Petitioner consented to the children's permanent change of residency, relying on the May 11, 2010, consent application. She asserted that she was not aware of Petitioner's June 1, 2010, revocation at the time that she moved with the children on June 10, 2010. Based on the evidence, particularly the consent revocation document, which was notarized before Respondent moved with the children, the court held that Petitioner submitted sufficient evidence to show that at the time the children were removed he was exercising his custody rights. Further, the surreptitious nature of Respondent's move with the children--without Petitioner present and executed in an unplanned manner by picking up the children from school without the Petitioner's knowledge or that of the children's caretaker--weighed in favor of Petitioner's assertion that Respondent moved without his consent. Finally, even if Respondent was not aware of the revocation, it did not take away from the fact that Petitioner exercised his rights by expressly revoking his consent in a notarized writing, which he then filed in the Ukranian courts for certification. This was not a case where Petitioner simply changed his mind. Thus, Petitioner established by a preponderance of the evidence that the children were wrongfully removed.
Respondent argued that Petitioner consented to the removal when he signed the consent application, and that he subsequently acquiesced in the removal of the children when he visited them in Michigan on two occasions. In response, Petitioner argued that he did not consent to the children's removal and again profferred the consent revocation document and the Ukranian district and appellate court decisions to support his assertion. On balance, the evidence weighed in Petitioner's favor. Particularly, the consent revocation document and the Ukranian district and appellate court decisions persuaded the Court that Petitioner was actively exercising his custodial rights before and after the children were removed. Also, the manner in which the children were removed supported the inference that Petitioner did not consent to the children's removal. Petitioner's visits to Michigan and communication over email and through video chat failed to demonstrate that he acquiesced in the removal. The Court also found that IOK and KOK had not reached the requisite level of maturity that a Court should consider their views. Accordingly, the Court found that the age and maturity defense did not apply.
The Petition was granted and it was ordered that the parties' children, IOK and KOK, be returned to the Ukraine, pursuant to the Convention and ICARA. However, in light of Respondent's May 13, 2011, supplemental filing, submitted on the eve of the Court's decision, the Court stayed the effectiveness of this decision for 30 days. The Court recognized that the July 7, 2010, decision from a district court in the Ukraine, which ordered the immediate return of the children appeared to have been effectively stayed by the Highest Specialized Court of Ukraine. In the Ukraine, "High Specialized Courts shall consider cassation complaints of respective court jurisdiction; analyze, study, and cumulate court practice; assist lower courts to ensure identical application of Constitutional norms and laws in court practice; perform other functions." Martindale-Hubbell Law Digest, Ukraine, 11 (2008). The Highest Specialized Court of Ukraine "ruled": (1) [t]o start cassation proceedings, concerning the claim of [Petitioner] towards [Respondent] ... concerning separation of the children, their return to the permanent place of residence to Ukraine and determination of the place of residence of the children with [Petitioner]"; (2) [t]o suspend execution of decision of Leninskiy district court of Zaporizhya city dated July 07, 2010 till termination of the cassation proceedings of the case"; (3) "[t]o demand the mentioned civil case from Leninskiy district court of Zaporizhya city"; and (4) "[t]o send the copies of the cassation appeal and the enclosed materials of the case to the persons who participate in the case[,] to explain their right to file an objection to cassation appeal till May 20, 2011."
Based on the above ruling, the nature of the future proceedings in the Ukraine courts was not altogether clear. As it related to the present petition, under Article 15 of the Convention: judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. The Court should also consider the "length of time it will take to obtain the required documentation." Hague International Child Abduction Convention; Text and Legal Analysis, Department of State, March 26, 1986, at 14-15. In the interest of comity, the Court gave considerable weight to the Ukraine court decisions in deciding whether the children were wrongfully removed and should therefore be returned to Petitioner; the Highest Specialized Court's decision is no different. On the other hand, the Court has an obligation under the Convention to make an expeditious decision. With these conflicting considerations in mind, effectiveness of this decision was stayed for 30 days to allow the parties the opportunity to further illuminate the status of the legal proceedings in the Ukraine, including the time it will take the courts in the Ukraine to resolve the pending proceedings.
Thursday, May 12, 2011
Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) [Israel] [Habitual Residence]
In Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) the Eight Circuit reiterated the rule it established in Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir.2010) and Silverman v. Silverman, 38 F.3d 886, 897 (8th Cir.2003) (en banc) that the factors relevant to the determination of habitual residence include "the settled purpose of the move from the new country from the child’s perspective....", rejecting the approach of the Ninth Circuit.
Michelle, a dual citizen of the United States and Israel, met Martin, on a visit to Israel in 2000. He was a dual citizen of Israel and Canada. Michelle moved from the United States to Israel with her two children. Martin and Michelle were married in a religious ceremony in Israel. Their son DJ was born in 2003. In 2005 Michelle was accepted in a doctoral program at Iowa State University, and Martin signed a document consenting to her traveling to Iowa with DJ "for as long as she is enrolled in her PhD studies." Martin characterizes the document as memorializing a mutual agreement that Michelle and DJ would return to Israel as soon as her studies ended. Michelle denied there was such an agreement, and only Martin signed it. The document did not specify what would happen after Michelle's studies ended. In August 2005 Michelle moved to Iowa with her older children and DJ, who was then two. Martin followed in October 2005, after closing his taxi business in Israel. Michelle filed for divorce in October 2007 although she did not serve Martin with any papers. Martin returned to Israel in February 2008. At that time he believed Michelle would soon follow him there with the children. Shortly after Martin left the United States, Michelle proceeded with the divorce and requested temporary custody of DJ. During divorce proceedings, Michelle revealed that she would return to Israel with DJ and her other children only if she could find work there in her field.
Martin brought an action in the district court for DJ's return to Israel under ICARA. The district found after trial that DJ habitually resided in the United States. It found DJ had "considerable connections with his current [Iowa] environment." At the time DJ was seven years old and had been living in Iowa since he was two. He had visited Israel once when he was three. DJ had finished one year of kindergarten in Iowa and had celebrated holidays with Michelle's family in Des Moines. In sum, the district court found that DJ had acclimated to Iowa. Regarding the intentions of DJ's parents, the district court found that the couple had intended to make Iowa DJ's habitual residence, at least during Michelle's studies, even though they planned to return to Israel eventually. Based on its findings it denied Martin's petition. The Eighth Circuit affirmed.
On appeal, Martin argued that the district court gave insufficient weight to the parties' intention to return to Israel after Michelle graduated. The Eight Circuit pointed out that in Barzilay, supra, it explained that "factors relevant to the determination of habitual residence [include] 'the settled purpose of the move from the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.' " Settled purpose "need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' " It concluded that from the perspective of the child, who had lived in Missouri for five years, the settled purpose of the family's move was to remain there permanently despite an agreement by the parents to move the whole family to Israel should either spouse return. Here, the district court found that from DJ's perspective, the settled purpose of his relocation to Iowa was to reside there habitually. In reaching this decision, the court relied on Barzilay and a Third Circuit case discussing the element of settled purpose, Whiting v. Krassner, 391 F.3d 540 (3rd Cir.2004). Whiting held that settled purpose does not require an intention to stay in a new location forever. Rather, one's "purpose while settled may be for a limited period," and education could prompt such a move.(quoting In re Bates, CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).
Martin argued that the district court gave too much weight to DJ's perspective in considering the move's "settled purpose" and too little to the Sterns' intent to return to Israel after Michelle finished her degree. He argued that the Court should focus on the parents' intention to return to Israel rather than on DJ's acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), a Ninth Circuit case that did not consider the settled purpose concept "very useful" which held, in contrast to its decisions in Barzilay and Silverman, that without "settled parental intent, courts should be slow to infer from [a child's] contacts that an earlier habitual residence has been abandoned." The Eighth Circuit rejected this approach, pointing out that the settled purpose of a child's move must be viewed from the child's perspective, and observing it had been rejected by the Sixth Circuit, which characterized it as having "made seemingly easy cases hard and reached results that are questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007). It held that the child's perspective should be paramount in construing this convention whose very purpose is to "protect children," and declined to adopt a framework that would contradict its own precedent and frustrate the Convention's goal of 'deter [ring] parents from crossing borders in search of a more sympathetic court.
The record here favored Iowa as DJ's habitual residence whether the Court emphasized DJ's perspective or that of his parents. The district court found that the parties' intent at the time of the move was to make Iowa DJ's habitual residence. It did not clearly err in doing so. The Court concluded that under the Hague Convention "the court must focus on the child, not the parents, and [must] examine past experience, not future intentions," Silverman, 338 F.3d at 898.
Michelle, a dual citizen of the United States and Israel, met Martin, on a visit to Israel in 2000. He was a dual citizen of Israel and Canada. Michelle moved from the United States to Israel with her two children. Martin and Michelle were married in a religious ceremony in Israel. Their son DJ was born in 2003. In 2005 Michelle was accepted in a doctoral program at Iowa State University, and Martin signed a document consenting to her traveling to Iowa with DJ "for as long as she is enrolled in her PhD studies." Martin characterizes the document as memorializing a mutual agreement that Michelle and DJ would return to Israel as soon as her studies ended. Michelle denied there was such an agreement, and only Martin signed it. The document did not specify what would happen after Michelle's studies ended. In August 2005 Michelle moved to Iowa with her older children and DJ, who was then two. Martin followed in October 2005, after closing his taxi business in Israel. Michelle filed for divorce in October 2007 although she did not serve Martin with any papers. Martin returned to Israel in February 2008. At that time he believed Michelle would soon follow him there with the children. Shortly after Martin left the United States, Michelle proceeded with the divorce and requested temporary custody of DJ. During divorce proceedings, Michelle revealed that she would return to Israel with DJ and her other children only if she could find work there in her field.
Martin brought an action in the district court for DJ's return to Israel under ICARA. The district found after trial that DJ habitually resided in the United States. It found DJ had "considerable connections with his current [Iowa] environment." At the time DJ was seven years old and had been living in Iowa since he was two. He had visited Israel once when he was three. DJ had finished one year of kindergarten in Iowa and had celebrated holidays with Michelle's family in Des Moines. In sum, the district court found that DJ had acclimated to Iowa. Regarding the intentions of DJ's parents, the district court found that the couple had intended to make Iowa DJ's habitual residence, at least during Michelle's studies, even though they planned to return to Israel eventually. Based on its findings it denied Martin's petition. The Eighth Circuit affirmed.
On appeal, Martin argued that the district court gave insufficient weight to the parties' intention to return to Israel after Michelle graduated. The Eight Circuit pointed out that in Barzilay, supra, it explained that "factors relevant to the determination of habitual residence [include] 'the settled purpose of the move from the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.' " Settled purpose "need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' " It concluded that from the perspective of the child, who had lived in Missouri for five years, the settled purpose of the family's move was to remain there permanently despite an agreement by the parents to move the whole family to Israel should either spouse return. Here, the district court found that from DJ's perspective, the settled purpose of his relocation to Iowa was to reside there habitually. In reaching this decision, the court relied on Barzilay and a Third Circuit case discussing the element of settled purpose, Whiting v. Krassner, 391 F.3d 540 (3rd Cir.2004). Whiting held that settled purpose does not require an intention to stay in a new location forever. Rather, one's "purpose while settled may be for a limited period," and education could prompt such a move.(quoting In re Bates, CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).
Martin argued that the district court gave too much weight to DJ's perspective in considering the move's "settled purpose" and too little to the Sterns' intent to return to Israel after Michelle finished her degree. He argued that the Court should focus on the parents' intention to return to Israel rather than on DJ's acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), a Ninth Circuit case that did not consider the settled purpose concept "very useful" which held, in contrast to its decisions in Barzilay and Silverman, that without "settled parental intent, courts should be slow to infer from [a child's] contacts that an earlier habitual residence has been abandoned." The Eighth Circuit rejected this approach, pointing out that the settled purpose of a child's move must be viewed from the child's perspective, and observing it had been rejected by the Sixth Circuit, which characterized it as having "made seemingly easy cases hard and reached results that are questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007). It held that the child's perspective should be paramount in construing this convention whose very purpose is to "protect children," and declined to adopt a framework that would contradict its own precedent and frustrate the Convention's goal of 'deter [ring] parents from crossing borders in search of a more sympathetic court.
The record here favored Iowa as DJ's habitual residence whether the Court emphasized DJ's perspective or that of his parents. The district court found that the parties' intent at the time of the move was to make Iowa DJ's habitual residence. It did not clearly err in doing so. The Court concluded that under the Hague Convention "the court must focus on the child, not the parents, and [must] examine past experience, not future intentions," Silverman, 338 F.3d at 898.
Saturday, April 30, 2011
Mc Curdy v Shreve-McCurdy, 2011 WL 1457158 (E.D.Mich.) [Canada] [Habitual Residence]
In Mc Curdy v Shreve-McCurdy, 2011 WL 1457158 (E.D.Mich.) the court granted Brian McCurdy’s petition against Respondent Princess Shreve McCurdy for immediate return of the couple's minor child, B.M., to Canada. Brian was 43 years old. Princess was also 43 years old. Brian and Princess had two children together, Brian McCurdy, Jr., who was 18 years old and resided with his mother in Southfield, Michigan; and B.M., who was born in 2004 and was six years old. Princess also had an adult daughter named Lutece Shreve. Brian resided at 450 Superior, LaSalle, Ontario Canada N9H 0A3 ("the 450 Superior Residence"), with his sister, Linda McCurdy, and her minor son, LM. Brian had dual citizenship in the United States and Canada. Princess resided in Southfield, Michigan, along with Brian McCurdy, Jr. Princess was a licenced registered nurse in both Canada and Michigan. BJM was born in Canada in 2004. Following her birth, Brian and Princess resided together with BJM in LaSalle, Ontario Canada for a short period of time. At that time, they resided at the 450 Superior Residence, with Brian's sister Linda. Brian, Princess and BJM later moved to Detroit, Michigan, where they resided with Princess's sister Laura Lee and her husband, until August of 2005.
In August of 2005, the couple and BJM moved to Flatrock, Michigan. Brian and Princess were married on April 20, 2006. As of 2007, however, the couple's relationship was deteriorating. In July or August of 2007, the couple separated and Brian returned to LaSalle, Ontario Canada. Brian and Princess agreed that BJM would reside with Brian at the 450 Superior Residence and attend school in LaSalle the following year. At this time, Brian was still in the process of obtaining his masters degree at Michigan State University. In the fall of 2008, Brian had an internship position that required him to temporarily reside in California. In the fall of that same year, Princess's mother was diagnosed with terminal cancer. After the diagnosis, Princess cared for her ill mother and, as a result, was unable to care for BJM on a full-time basis. At that time, Brian, Princess, and Linda agreed that BJM would reside at the 450 Superior Residence in LaSalle and attend school in LaSalle. On October of 2008, Brian, Princess, and Linda executed a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of BJM and that BJM "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." That agreement further provided that Linda "shall have the authority to make inquiries and decisions concerning the health, education and welfare of the child. Specifically, the Aunt shall have the authority to enroll the child in school in LaSalle." The parties entered in to that written agreement so that Linda would be able to enroll BJM in school in LaSalle. Linda was able to enroll BJM in school in LaSalle. On November 3, 2008, BJM was registered in junior kindergarten at Sandwich West Public School in LaSalle, Ontario Canada. B.M. attended the remainder of that school year at Sandwich West Public School, while residing at the 450 Superior Residence. Princess's mother passed away in December of 2008. Once the school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan.
In September of 2009, B.M. returned to LaSalle. From September 8, 2009 to June 30, 2010, B.M. was registered in senior kindergarten at Sandwich West Public School in Canada. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Towards the end of the 2009-2010 school year, Princess told Brian that she wanted B.M. to come live with her in Michigan and the couple argued about her request. Brian expressed that he wanted B.M. to remain with him during the school years, at least until the couple's older son graduated from high school. Brian wanted his son to be able to get through his senior year of high school without having to baby-sit and care for his sister while his mother was working. Although Brian understood that Princess wanted B.M. to come to Michigan to attend first grade at Laurus Academy, Brian did not agree or consent to that. In June, 2010, B.M. came to Michigan to stay with her mother. When B.M. left Canada for the summer, she did not take her personal belongings with her to Michigan. Her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Before leaving to visit her mother for the summer, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. In August of 2010, Princess called Brian and asked for B.M.'s vaccination records. Brian believed that Princess wanted those records so that she could enroll B.M. in first grade in Michigan and he did not give her the records. In August of 2010, Brian consulted a lawyer to advise him about his custody rights. B.M. returned to the 450 Superior Residence on September 3, 2010. From September 3, 2010 to September 7, 2010, B.M. was in Canada with Brian. On September 7, 2010, B.M. was registered in grade 1 at Sandwich West Public School in Canada. On September 7, 2010, Brian took B.M. to school for her first day of first grade at Sandwich West Public School. Later that evening, however, Princess came to the 450 Superior Residence and took B.M. back to Michigan without Brian's consent. On September 8, 2010, Princess registered B.M. in grade 1 at Laurus Academy in Southfield, Michigan. B.M. began attending Laurus Academy on September 8, 2010.
After Princess took B.M. to the United States on September 7, 2010, Brian sought legal advice on how to obtain a custody determination through the appropriate legal channels. On November 11, 2010, Princess brought B.M. back to Canada so that B.M. could receive medical treatment. Because the child was ill and could not return to school, and Princess was working full-time, Princess returned B.M. to the 450 Superior Residence and asked that Brian care for B.M. Princess asked that Brian return B.M. to her in Michigan on November 14, 2010, but Brian did not do so. On November 18, 2010, Brian filed an Application for Custody in the Ontario Court of Justice. As of November 21, 2010, B.M. was still in Canada with Brian, residing at the 450 Superior Residence. Princess and Brian McCurdy Jr. went to the 450 Superior Residence on November 21, 2010. At that time, Brian stated that he would not let Princess take B.M. to Michigan. Both Brian and Princess were upset and argued with each other. Linda, who was an attorney in Canada, was also present at the home and served Princess with legal documents from the custody action in the Ontario Court of Justice. Princess then left the house and returned to the United States without B.M. Princess read the documents that she was served with on November 21, 2010, and understood that Brian had initiated custody proceedings in Canada. On November 22, 2010, Brian re-enrolled B.M. at Sandwich West Public School, so that she could go back to school there. On November 24, 2010, Brian picked B.M. up from school and dropped her off at his sister's house, Cheryl McCurdy-Ducre, to play with B.M.'s cousins. On November 24, 2010, Princess traveled to LaSalle in order to get B.M. and bring her to the United States. Princess drove to Canada with her adult daughter, Lutece Shreve, her sister, Laura Lee, and a friend, Tammy Biddles. The group knew that B.M. was at Brian's sister's house and drove to the house. Because Princess knew that they would not let her in the house if she came to the door, Princess told her daughter Lutece to go in the house and get B.M. Lutece left the house with B.M., and brought B.M. to the car where Princess and the others were waiting. Neither Princess nor Lutece told Brian or his family members that they were taking B.M. from the house or that they were taking B.M. to the United States. Upon learning that Princess had taken B.M., Brian immediately contacted border control, to try to prevent Princess from taking B.M. across the United States-Canadian border. Brian also went to the LaSalle police station on November 24, 2010 and told the LaSalle police that B.M. had been removed from Canada by Princess without his consent. After returning to the United States with B.M. on November 24, 2010, Princess then stayed at a friend's house for a period of approximately two weeks and did not inform Brian where they were. From November 24, 2010 B.M. remained in Michigan with Princess and was attending Laurus Academy. On December 1, 2010, Princess initiated divorce and custody proceedings in the United States. Although she was aware that Brian had initiated custody proceedings in Canada in November, Princess signed an Affidavit stating that she had "no information" regarding other custody proceedings concerning B.M. On December 8, 2010, Brian filed a Hague application in Canada. On March 11, 2011, Brian initiated this action.
The District Court observed that it was undisputed that Brian had custody rights and that Brian was exercising his custody rights. Thus, the Court had to determine whether Canada was B.M.'s habitual residence immediately prior to the removal. Brian alleged that B.M. was wrongfully removed from Canada on September 7, 2010, and that she had been wrongfully retained by Princess in the United States since that time. Thus, the Court had to determine B.M.'s habitual residence immediately prior to her removal on September 7, 2010. It found that Brian had established by a preponderance of the evidence that Canada was B.M.'s habitual residence immediately prior to her removal on September 7, 2010. B.M. was born in Canada. In the fall of 2008, Brian, Princess, and Linda all verbally agreed that B.M. would reside at the 450 Superior Residence in LaSalle during the school year and attend school there. In addition, in October of 2008, Brian, Princess, and Linda formalized that agreement by executing a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of B.M. and that B.M. "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." B.M. was enrolled in junior kindergarten at Sandwich West Public School in LaSalle on November 3, 2008, and attended the remainder of the 2008-2009 school year there, while residing at the 450 Superior Residence. Once the 2008-2009 school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan. That same plan was followed for the 2009-2010 school year. In September of 2009, B.M. returned to LaSalle to live with Brian and attend school at Sandwich West Public School. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Thus, for B.M.'s first two years of school, she attended school in Canada while residing with her father at the 450 Superior Residence during the school years and spent only the summer months visiting her mother in the United States. Respondent had stipulated that Canada was B.M.'s habitual residence as of June, 2010. After the end of her senior kindergarten school year, in June, 2010, B.M. came to Michigan to stay with her mother for the summer--as she had done the two previous years. When B.M. left Canada for the summer, she did not take her personal belongings with her. That is, her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Moreover, while living in Canada, B.M. participated in extracurricular activities such as cheerleading. Before leaving to visit her mother for the summer in June, 2010, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. Based on the evidence presented, the Court found that Canada was B.M.'s habitual residence prior to her removal on September 7, 2010, and that the removal was wrongful under the Hague Convention. (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). The Court found that Princess had not presented any evidence to establish that Brian consented by virtue of an action or statement with requisite formality, such as testimony in a judicial proceeding. To the contrary, Brian initiated legal proceedings in both Canada and the United States in order to retain custody of B.M. Moreover, although the couple had previously executed a written agreement that B.M. would attend school in Canada while residing at the 450 Superior Residence, there was no evidence to establish that the couple executed any subsequent written agreements regarding any changes in custody, schools, or B.M.'s primary residence. There was no evidence to establish that Brian signed any written renunciation of rights to custody. Nor was there any evidence that Brian consented or had a "consistent attitude of acquiescence over a significant period of time."
Brian did not consent or acquiesce to the removal and retention of B.M. In Respondent's Answer she asserted as an affirmative defense, that "[e]quitable estoppel bars the Father from relief in this cause of action." The Court noted that the case law in the Sixth Circuit reflects that if a Petitioner establishes that removal or retention was wrongful, "the child must be returned unless" the defendant
can establish one of the narrow defenses that are expressly provided for in the Hague Convention. Friedrich, 78 F.3d at 1067. "Equitable estoppel" is simply not one of the narrow defenses set forth in the Hague Convention. Respondent had not supplied the Court with any legal authority to show that the Court had the authority to decline to order the child returned based on a theory of equitable estoppel. Accordingly, the Court rejected this proffered defense as a matter of law.
In August of 2005, the couple and BJM moved to Flatrock, Michigan. Brian and Princess were married on April 20, 2006. As of 2007, however, the couple's relationship was deteriorating. In July or August of 2007, the couple separated and Brian returned to LaSalle, Ontario Canada. Brian and Princess agreed that BJM would reside with Brian at the 450 Superior Residence and attend school in LaSalle the following year. At this time, Brian was still in the process of obtaining his masters degree at Michigan State University. In the fall of 2008, Brian had an internship position that required him to temporarily reside in California. In the fall of that same year, Princess's mother was diagnosed with terminal cancer. After the diagnosis, Princess cared for her ill mother and, as a result, was unable to care for BJM on a full-time basis. At that time, Brian, Princess, and Linda agreed that BJM would reside at the 450 Superior Residence in LaSalle and attend school in LaSalle. On October of 2008, Brian, Princess, and Linda executed a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of BJM and that BJM "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." That agreement further provided that Linda "shall have the authority to make inquiries and decisions concerning the health, education and welfare of the child. Specifically, the Aunt shall have the authority to enroll the child in school in LaSalle." The parties entered in to that written agreement so that Linda would be able to enroll BJM in school in LaSalle. Linda was able to enroll BJM in school in LaSalle. On November 3, 2008, BJM was registered in junior kindergarten at Sandwich West Public School in LaSalle, Ontario Canada. B.M. attended the remainder of that school year at Sandwich West Public School, while residing at the 450 Superior Residence. Princess's mother passed away in December of 2008. Once the school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan.
In September of 2009, B.M. returned to LaSalle. From September 8, 2009 to June 30, 2010, B.M. was registered in senior kindergarten at Sandwich West Public School in Canada. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Towards the end of the 2009-2010 school year, Princess told Brian that she wanted B.M. to come live with her in Michigan and the couple argued about her request. Brian expressed that he wanted B.M. to remain with him during the school years, at least until the couple's older son graduated from high school. Brian wanted his son to be able to get through his senior year of high school without having to baby-sit and care for his sister while his mother was working. Although Brian understood that Princess wanted B.M. to come to Michigan to attend first grade at Laurus Academy, Brian did not agree or consent to that. In June, 2010, B.M. came to Michigan to stay with her mother. When B.M. left Canada for the summer, she did not take her personal belongings with her to Michigan. Her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Before leaving to visit her mother for the summer, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. In August of 2010, Princess called Brian and asked for B.M.'s vaccination records. Brian believed that Princess wanted those records so that she could enroll B.M. in first grade in Michigan and he did not give her the records. In August of 2010, Brian consulted a lawyer to advise him about his custody rights. B.M. returned to the 450 Superior Residence on September 3, 2010. From September 3, 2010 to September 7, 2010, B.M. was in Canada with Brian. On September 7, 2010, B.M. was registered in grade 1 at Sandwich West Public School in Canada. On September 7, 2010, Brian took B.M. to school for her first day of first grade at Sandwich West Public School. Later that evening, however, Princess came to the 450 Superior Residence and took B.M. back to Michigan without Brian's consent. On September 8, 2010, Princess registered B.M. in grade 1 at Laurus Academy in Southfield, Michigan. B.M. began attending Laurus Academy on September 8, 2010.
After Princess took B.M. to the United States on September 7, 2010, Brian sought legal advice on how to obtain a custody determination through the appropriate legal channels. On November 11, 2010, Princess brought B.M. back to Canada so that B.M. could receive medical treatment. Because the child was ill and could not return to school, and Princess was working full-time, Princess returned B.M. to the 450 Superior Residence and asked that Brian care for B.M. Princess asked that Brian return B.M. to her in Michigan on November 14, 2010, but Brian did not do so. On November 18, 2010, Brian filed an Application for Custody in the Ontario Court of Justice. As of November 21, 2010, B.M. was still in Canada with Brian, residing at the 450 Superior Residence. Princess and Brian McCurdy Jr. went to the 450 Superior Residence on November 21, 2010. At that time, Brian stated that he would not let Princess take B.M. to Michigan. Both Brian and Princess were upset and argued with each other. Linda, who was an attorney in Canada, was also present at the home and served Princess with legal documents from the custody action in the Ontario Court of Justice. Princess then left the house and returned to the United States without B.M. Princess read the documents that she was served with on November 21, 2010, and understood that Brian had initiated custody proceedings in Canada. On November 22, 2010, Brian re-enrolled B.M. at Sandwich West Public School, so that she could go back to school there. On November 24, 2010, Brian picked B.M. up from school and dropped her off at his sister's house, Cheryl McCurdy-Ducre, to play with B.M.'s cousins. On November 24, 2010, Princess traveled to LaSalle in order to get B.M. and bring her to the United States. Princess drove to Canada with her adult daughter, Lutece Shreve, her sister, Laura Lee, and a friend, Tammy Biddles. The group knew that B.M. was at Brian's sister's house and drove to the house. Because Princess knew that they would not let her in the house if she came to the door, Princess told her daughter Lutece to go in the house and get B.M. Lutece left the house with B.M., and brought B.M. to the car where Princess and the others were waiting. Neither Princess nor Lutece told Brian or his family members that they were taking B.M. from the house or that they were taking B.M. to the United States. Upon learning that Princess had taken B.M., Brian immediately contacted border control, to try to prevent Princess from taking B.M. across the United States-Canadian border. Brian also went to the LaSalle police station on November 24, 2010 and told the LaSalle police that B.M. had been removed from Canada by Princess without his consent. After returning to the United States with B.M. on November 24, 2010, Princess then stayed at a friend's house for a period of approximately two weeks and did not inform Brian where they were. From November 24, 2010 B.M. remained in Michigan with Princess and was attending Laurus Academy. On December 1, 2010, Princess initiated divorce and custody proceedings in the United States. Although she was aware that Brian had initiated custody proceedings in Canada in November, Princess signed an Affidavit stating that she had "no information" regarding other custody proceedings concerning B.M. On December 8, 2010, Brian filed a Hague application in Canada. On March 11, 2011, Brian initiated this action.
The District Court observed that it was undisputed that Brian had custody rights and that Brian was exercising his custody rights. Thus, the Court had to determine whether Canada was B.M.'s habitual residence immediately prior to the removal. Brian alleged that B.M. was wrongfully removed from Canada on September 7, 2010, and that she had been wrongfully retained by Princess in the United States since that time. Thus, the Court had to determine B.M.'s habitual residence immediately prior to her removal on September 7, 2010. It found that Brian had established by a preponderance of the evidence that Canada was B.M.'s habitual residence immediately prior to her removal on September 7, 2010. B.M. was born in Canada. In the fall of 2008, Brian, Princess, and Linda all verbally agreed that B.M. would reside at the 450 Superior Residence in LaSalle during the school year and attend school there. In addition, in October of 2008, Brian, Princess, and Linda formalized that agreement by executing a written "Parenting Agreement" wherein they all agreed that Brian, Princess, and Linda would have joint custody of B.M. and that B.M. "shall have her primary residence in the home of the Aunt at 450 Superior Street LaSalle, Ontario." B.M. was enrolled in junior kindergarten at Sandwich West Public School in LaSalle on November 3, 2008, and attended the remainder of the 2008-2009 school year there, while residing at the 450 Superior Residence. Once the 2008-2009 school year ended, B.M. spent the summer months (mid-June 2009 through the end of August, 2009), with Princess in Michigan. That same plan was followed for the 2009-2010 school year. In September of 2009, B.M. returned to LaSalle to live with Brian and attend school at Sandwich West Public School. B.M. attended the entire school year at Sandwich West Public School, while residing with Brian and Linda at the 450 Superior Residence. Thus, for B.M.'s first two years of school, she attended school in Canada while residing with her father at the 450 Superior Residence during the school years and spent only the summer months visiting her mother in the United States. Respondent had stipulated that Canada was B.M.'s habitual residence as of June, 2010. After the end of her senior kindergarten school year, in June, 2010, B.M. came to Michigan to stay with her mother for the summer--as she had done the two previous years. When B.M. left Canada for the summer, she did not take her personal belongings with her. That is, her toys and the majority of her clothes remained in her bedroom at the 450 Superior Residence. Moreover, while living in Canada, B.M. participated in extracurricular activities such as cheerleading. Before leaving to visit her mother for the summer in June, 2010, B.M. participated in tryouts in order to be on the cheerleading squad again for the 2010-2011 school year and ordered a uniform. Based on the evidence presented, the Court found that Canada was B.M.'s habitual residence prior to her removal on September 7, 2010, and that the removal was wrongful under the Hague Convention. (citing Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993). The Court found that Princess had not presented any evidence to establish that Brian consented by virtue of an action or statement with requisite formality, such as testimony in a judicial proceeding. To the contrary, Brian initiated legal proceedings in both Canada and the United States in order to retain custody of B.M. Moreover, although the couple had previously executed a written agreement that B.M. would attend school in Canada while residing at the 450 Superior Residence, there was no evidence to establish that the couple executed any subsequent written agreements regarding any changes in custody, schools, or B.M.'s primary residence. There was no evidence to establish that Brian signed any written renunciation of rights to custody. Nor was there any evidence that Brian consented or had a "consistent attitude of acquiescence over a significant period of time."
Brian did not consent or acquiesce to the removal and retention of B.M. In Respondent's Answer she asserted as an affirmative defense, that "[e]quitable estoppel bars the Father from relief in this cause of action." The Court noted that the case law in the Sixth Circuit reflects that if a Petitioner establishes that removal or retention was wrongful, "the child must be returned unless" the defendant
can establish one of the narrow defenses that are expressly provided for in the Hague Convention. Friedrich, 78 F.3d at 1067. "Equitable estoppel" is simply not one of the narrow defenses set forth in the Hague Convention. Respondent had not supplied the Court with any legal authority to show that the Court had the authority to decline to order the child returned based on a theory of equitable estoppel. Accordingly, the Court rejected this proffered defense as a matter of law.
Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) [Germany] [Full Faith and Credit] [Well-Settled in New Enviorment]
In Muhlemkamp v Blizzard, 521 F Supp 2d 1140 (E.D. Washington) on July 17, 2007, Mr. Muhlenkamp filed his petition for return. Also in the spring of 2007, Mr. Muhlenkamp began legal proceedings in Germany to regain custody of E.M. Apparently, without any notice to Ms. Blizzard or opportunity to defend herself. The Bayreuth Local Court entered a judgment finding Ms. Blizzard "wrongfully removed" E.M. from Germany to the United States based on a "plausible" showing of facts by Mr. Muhlenkamp. E.M. was born to Mr. Muhlenkamp and Ms. Blizzard on April 29, 2004, in Duisburg, Germany. Shortly thereafter, the parties obtained a U.S. birth certificate, a U.S. passport, and a U.S. social security number, all for E.M. The parties repeatedly discussed an eventual relocation to the United States. Mr. Muhlenkamp and Ms. Blizzard married on June 8, 2005, in Duisburg. Mr. Muhlenkamp was a musician and a citizen of Germany. Ms. Blizzard was an academic professor, a born citizen of the United States, and later became a resident of Germany, where she was a resident until June 2006. Mr. Muhlenkamp, Ms. Blizzard, and E.M. moved to Bayreuth, Germany, in August or September of 2005. At some point Ms. Blizzard's mother became ill. In order to receive care, Ms. Blizzard's mother moved from Germany to Mesa, Arizona, in January 2006. On February 22, 2006, Ms. Blizzard drafted a permission letter allowing her to travel with E.M. to Mesa, Arizona, from February 25, 2006, to March 20, 2006, which Mr. Muhlenkamp signed and was notarized. During this period, Ms. Blizzard and E.M. visited Ms. Blizzard's mother, who was in declining health, in Arizona at the address contained in the consent letter. In the spring of 2006 Ms. Blizzard was also focused on finding a career position outside of Germany. Her two-year term as a professor at a university in Bayreuth was to expire soon and, under local German law, Ms. Blizzard could not continue employment in the Bayreuth area. Ms. Blizzard explored new positions in a number of countries, including the United States. In late April and early May of 2006, Ms. Blizzard went alone to Spokane, Washington, for a job interview at Spokane Falls Community College. Upon arriving at the train station in Frankfurt, Germany, on May 1, 2006, for her final train leg to Beyreuth, Ms. Blizzard called Mr. Muhlenkamp to inform him she had arrived a day early. During this phone call, Mr. Muhlenkamp told Ms. Blizzard that he wished to separate from her. When Ms. Blizzard returned from the Spokane Falls interview, Mr. Muhlenkamp moved out of their shared apartment into his own apartment. He expressed no desire to visit Ms. Blizzard or to provide care for E.M. between May 1 and June 12, 2006. E.M. remained in the care of Ms. Blizzard and continued full-time daycare until June 12, 2006. On or about May 23, 2006, Ms. Blizzard informed Mr. Muhlenkamp that Spokane Falls Community College had offered her a job which he understood she would accept. Mr. Muhlenkamp then signed a letter terminating the lease on the marital apartment. On May 5, 2006, Ms. Blizzard drafted a permission letter to allow her "to travel internationally and remain abroad indefinitely with [E.M.]," which Mr. Muhlenkamp signed and was notarized. On June 7, 2006, at Mr. Muhlenkamp's request, Mr. Muhlenkamp and Ms. Blizzard met with Hubert Wattenbach, a social worker employed by the city of Bayreuth. Mr. Wattenbach testified that Mr. Muhlenkamp was concerned whether E.M. would be returned to him if Ms. Blizzard died while living with E.M. in the United States. Therefore, as of June 7, 2006, Mr. Muhlenkamp understood E.M. was to relocate to the United States because her mother, Ms. Blizzard, had employment in the United States. On June 12, 2006, Ms. Blizzard left with E.M. for the United States without any prior notice to Mr. Muhlenkamp. After arriving in the United States, Ms. Blizzard had her belongings shipped to her. When Ms. Blizzard and E.M. arrived in Phoenix, Arizona, Ms. Blizzard attempted to call Mr. Muhlenkamp several times in order to tell him their whereabouts, finally connecting with him on June 14, 2006, after 25 phone calls. During the phone call, Ms. Blizzard impressed upon Mr. Muhlenkamp that she would return to Germany within two weeks. In an email sent to Ms. Blizzard on June 16, 2006, Mr. Muhlenkamp expressed displeasure that Ms. Blizzard had taken E.M. to the United States without his knowledge. Mr. Muhlenkamp felt he had lost two weeks of time with E.M. prior to her final departure for the United States with Ms. Blizzard and pleaded with Ms. Blizzard, "please promise me that you will not just leave [E.M.] in America." On June 22, 2006, Mr. Muhlenkamp sent another email to
Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with
E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court found that Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany under German law. At some point in August or September of 2006, Ms. Blizzard moved to Spokane, Washington, with E.M., where they resided since.
The District Court observed that in determining the appropriate location of a child under the Hague Convention, the threshold issue is whether the removal or retention of the child was wrongful. Here, the Bayreuth Local Court may have superseded the District Court in its determination that Ms. Blizzard wrongfully removed E.M. Thus, the Court was confronted with the question of whether the Court must respect the Bayreuth Local Court's decision and enter an order compelling the return of E.M. It noted thta United States courts are to give full faith and credit "to the judgment of any other ... court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." 42 U.S.C. 11603(g). The Bayreuth Local Court entered an order and "Certificate of Wrongfulness" declaring the removal of E.M. was "wrongful" within the meaning of the Hague Convention. Article 15 of the Hague Convention allows: The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Hague Conv. art. 15. Here, the question of the wrongfulness of E.M.'s detention had already been decided by the Bayreuth Local Court. Ahough the typical procedure under Article 15 would be for the District Court to request a determination of wrongfulness by a German court, because the Bayreuth Local Court had already made a determination, the Court had to determine whether to give the decision full faith and credit under ICARA, 42 U.S.C. 11603(g). The Court found that several concerns arose from the Bayreuth Local Court's decision. First, Ms. Blizzard never received notice of this proceeding , nor did the Bayreuth Local Court or Mr. Muhlenkamp ever attempt to notify Ms. Blizzard of the custody proceeding and Hague Convention issue. Second, the Bayreuth Local Court's requisite level of burden of proof was below the standard mandated by ICARA and the Hague Convention. That court simply stated that Mr. Muhlenkamp had "shown plausibly by submission of an affidavit dated October 18, 2006, and the notarized revocation of travel permission dated August 14, 2006[sic] that he has joint right of custody of [E.M.]," and therefore the court made a finding of "wrongfulness" pursuant to the Hague Convention. However, the requisite burden of proof is more than "plausible"; a petitioner must "establish by a preponderance of the evidence" the child was wrongfully removed. 42 U.S.C. 11603(e)(1)(a). Because no notice was made to Ms. Blizzard of the proceeding and the Bayreuth Local Court applied a burden of proof substantially less then the requisite burden, the District Court did not give full faith and credit to the Bayreuth Local Court decision.
The Court found that Removal of E.M. from Germany occurred on June 12, 2006. Retention, if wrongful, occurred after the two-week window Mr. Muhlenkamp believed Ms. Blizzard would be in the United States. Thus, retention occurred on June 26, 2006. In determining the location of Habitual Residence the Court observed that although E.M. possessed a U.S. social security card, U.S. birth certificate, and U.S. passport prior to the removal, E.M. was born and lived in Germany her entire life. Therefore, at the time of removal, the Court concluded E.M.'s habitual residence was in Germany, though it is certain that the parties agreed that Ms. Blizzard was relocating to the United States with E.M. to begin her job in Spokane, Washington.
The Court noted that under the Hague Convention, rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Conv. art. 5. German law gives both parents equal custody of a child.(citing Burgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, ss 1621 P 1, 1627;) "The violation of a single custody right suffices to make removal of a child wrongful." Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir.2004) "Rights of access do not constitute rights within the meaning of the Hague Convention...." Croll v. Croll, 229 F.3d 133, 135 (2d Cir.2000). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Conv. art. 5(b). This case presented the question of whether Mr. Muhlenkamp retained merely a right of access, rather than rights of custody, when he agreed to let Ms. Blizzard take E.M. to the United States. On May 5, 2006, Mr. Muhlenkamp signed a general letter written by Ms. Blizzard giving his "express permission for Allison Blizzard to travel internationally and remain abroad indefinitely with [E.M.]." Mr. Muhlenkamp and Ms. Blizzard disagreed as to what "indefinitely" meant. From the facts, the court determined that Mr. Muhlenkamp retained the right to determine custody rights, including parental-decision making roles and the right of visitation, in Germany. For this reason, the Court concluded Mr. Muhlenkamp possessed rights of custody at the time of removal. Mr. Muhlenkamp did not know of Ms. Blizzard's intention on June 12, 2006, the time of removal, and therefore did not exercise his custodial right at the time of removal. However, when Mr. Muhlenkamp became aware of Ms. Blizzard's intent, he exercised his rights and did not acquiesce to the retention of E.M. in the United States. Therefore, the Court concluded wrongful retention occurred on June 26, 2006.
Mr. Muhlenkamp filed his petition on July 17, 2007. Wrongful retention began on June 26, 2006. The Court concluded the filing occurred outside the one-year limitation. It observed that the Ninth Circuit has stated: The question whether a child is in some sense "settled" in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life there. Further, attempting to make the standard more rigorous might actually make matters worse, as it could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit-such as having the child profess allegiance to the new sovereign. Mozes, 239 F.3d at 1079. The Ninth Circuit provides a dim light as to what factors are pertinent: "[S]ome courts regard the question whether a child is doing well
in school, has friends, and so on, as more straightforward and objective...." Here, E.M. was performing at two to three age levels above her own. E.M. also was well-liked and had a strong core of friends. Ms. Blizzard routinely took E.M. to community cultural events. E.M. had many relatives in the Northwest and in Arizona, where they often spent holidays. Thus, the Court found E.M. had settled. Because E.M. had settled, the one-year limitation exception applied. Therefore, even though the Court found Ms. Blizzard wrongfully retained E.M. outside of Germany, the Court concluded E.M. shall remain with Ms. Blizzard in the United States.
The District Court observed that while the ICARA allows a court to impose provisional remedies "to protect the well-being of the child involved or to prevent the child's further removal or concealment," IRACA only establishes the authority prior to "final disposition of the petition." 42 U.S.C. 11604 Thus, the Court did not enter a temporary order on custody.
Ms. Blizzard, demanding Ms. Blizzard inform him of when she would be returning with
E.M. so that he may "make use of the time I have left with [E.M.] in Germany." In this email, Mr. Muhlenkamp expressed his belief that a continued stay beyond two weeks was "not legal." Based on the clear and unambiguous understanding by Mr. Muhlenkamp that Ms. Blizzard would be returning with E.M. to Germany to finalize agreement on future visitation with E.M. and on other parental rights and responsibilities, the Court found that Mr. Muhlenkamp intended, and never waived the right, to determine such custody rights of E.M. in Germany under German law. At some point in August or September of 2006, Ms. Blizzard moved to Spokane, Washington, with E.M., where they resided since.
The District Court observed that in determining the appropriate location of a child under the Hague Convention, the threshold issue is whether the removal or retention of the child was wrongful. Here, the Bayreuth Local Court may have superseded the District Court in its determination that Ms. Blizzard wrongfully removed E.M. Thus, the Court was confronted with the question of whether the Court must respect the Bayreuth Local Court's decision and enter an order compelling the return of E.M. It noted thta United States courts are to give full faith and credit "to the judgment of any other ... court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." 42 U.S.C. 11603(g). The Bayreuth Local Court entered an order and "Certificate of Wrongfulness" declaring the removal of E.M. was "wrongful" within the meaning of the Hague Convention. Article 15 of the Hague Convention allows: The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Hague Conv. art. 15. Here, the question of the wrongfulness of E.M.'s detention had already been decided by the Bayreuth Local Court. Ahough the typical procedure under Article 15 would be for the District Court to request a determination of wrongfulness by a German court, because the Bayreuth Local Court had already made a determination, the Court had to determine whether to give the decision full faith and credit under ICARA, 42 U.S.C. 11603(g). The Court found that several concerns arose from the Bayreuth Local Court's decision. First, Ms. Blizzard never received notice of this proceeding , nor did the Bayreuth Local Court or Mr. Muhlenkamp ever attempt to notify Ms. Blizzard of the custody proceeding and Hague Convention issue. Second, the Bayreuth Local Court's requisite level of burden of proof was below the standard mandated by ICARA and the Hague Convention. That court simply stated that Mr. Muhlenkamp had "shown plausibly by submission of an affidavit dated October 18, 2006, and the notarized revocation of travel permission dated August 14, 2006[sic] that he has joint right of custody of [E.M.]," and therefore the court made a finding of "wrongfulness" pursuant to the Hague Convention. However, the requisite burden of proof is more than "plausible"; a petitioner must "establish by a preponderance of the evidence" the child was wrongfully removed. 42 U.S.C. 11603(e)(1)(a). Because no notice was made to Ms. Blizzard of the proceeding and the Bayreuth Local Court applied a burden of proof substantially less then the requisite burden, the District Court did not give full faith and credit to the Bayreuth Local Court decision.
The Court found that Removal of E.M. from Germany occurred on June 12, 2006. Retention, if wrongful, occurred after the two-week window Mr. Muhlenkamp believed Ms. Blizzard would be in the United States. Thus, retention occurred on June 26, 2006. In determining the location of Habitual Residence the Court observed that although E.M. possessed a U.S. social security card, U.S. birth certificate, and U.S. passport prior to the removal, E.M. was born and lived in Germany her entire life. Therefore, at the time of removal, the Court concluded E.M.'s habitual residence was in Germany, though it is certain that the parties agreed that Ms. Blizzard was relocating to the United States with E.M. to begin her job in Spokane, Washington.
The Court noted that under the Hague Convention, rights of custody "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Conv. art. 5. German law gives both parents equal custody of a child.(citing Burgerliches Gesetzbuch [BGB] [Civil Code] Aug. 18, 1896, ss 1621 P 1, 1627;) "The violation of a single custody right suffices to make removal of a child wrongful." Furnes v. Reeves, 362 F.3d 702, 714-15 (11th Cir.2004) "Rights of access do not constitute rights within the meaning of the Hague Convention...." Croll v. Croll, 229 F.3d 133, 135 (2d Cir.2000). Rights of access "include the right to take a child for a limited period of time to a place other than the child's habitual residence." Hague Conv. art. 5(b). This case presented the question of whether Mr. Muhlenkamp retained merely a right of access, rather than rights of custody, when he agreed to let Ms. Blizzard take E.M. to the United States. On May 5, 2006, Mr. Muhlenkamp signed a general letter written by Ms. Blizzard giving his "express permission for Allison Blizzard to travel internationally and remain abroad indefinitely with [E.M.]." Mr. Muhlenkamp and Ms. Blizzard disagreed as to what "indefinitely" meant. From the facts, the court determined that Mr. Muhlenkamp retained the right to determine custody rights, including parental-decision making roles and the right of visitation, in Germany. For this reason, the Court concluded Mr. Muhlenkamp possessed rights of custody at the time of removal. Mr. Muhlenkamp did not know of Ms. Blizzard's intention on June 12, 2006, the time of removal, and therefore did not exercise his custodial right at the time of removal. However, when Mr. Muhlenkamp became aware of Ms. Blizzard's intent, he exercised his rights and did not acquiesce to the retention of E.M. in the United States. Therefore, the Court concluded wrongful retention occurred on June 26, 2006.
Mr. Muhlenkamp filed his petition on July 17, 2007. Wrongful retention began on June 26, 2006. The Court concluded the filing occurred outside the one-year limitation. It observed that the Ninth Circuit has stated: The question whether a child is in some sense "settled" in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life there. Further, attempting to make the standard more rigorous might actually make matters worse, as it could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit-such as having the child profess allegiance to the new sovereign. Mozes, 239 F.3d at 1079. The Ninth Circuit provides a dim light as to what factors are pertinent: "[S]ome courts regard the question whether a child is doing well
in school, has friends, and so on, as more straightforward and objective...." Here, E.M. was performing at two to three age levels above her own. E.M. also was well-liked and had a strong core of friends. Ms. Blizzard routinely took E.M. to community cultural events. E.M. had many relatives in the Northwest and in Arizona, where they often spent holidays. Thus, the Court found E.M. had settled. Because E.M. had settled, the one-year limitation exception applied. Therefore, even though the Court found Ms. Blizzard wrongfully retained E.M. outside of Germany, the Court concluded E.M. shall remain with Ms. Blizzard in the United States.
The District Court observed that while the ICARA allows a court to impose provisional remedies "to protect the well-being of the child involved or to prevent the child's further removal or concealment," IRACA only establishes the authority prior to "final disposition of the petition." 42 U.S.C. 11604 Thus, the Court did not enter a temporary order on custody.
Tuesday, April 19, 2011
New Hague Convention Cases Added to Our Library of Cases
Habrzyk v Habrzyk, --- F.Supp.2d ----, 2011 WL 1331674 (N.D.Ill.) [Poland] [Well-Settled] [Grave Risk of Harm]
Charalambous v Charalambous, --- F.3d ----, 2010 WL 4963063 (1st Cir.(Me.)) [Cyprus] [Grave Risk of Harm]
Charalambous v Charalambous, 744 F.Supp.2d 375 (D. Maine 2010) [Cyprus] [Federal and State Judicial Remedies] [Stay]
Charalambous v Charalambous, 744 F.Supp.2d 379 (D. Maine 2010) [Cyprus] [Federal and State Judicial Remedies] [Stay] [Temporary Custody]
Nelson v Petterle, 2011 WL 1048107 (E.D.Cal.) [Iceland] [Habitual Residence]
Roche v Hartz, 2011 WL 841556 (N.D.Ohio) [Australia] [One Year Statute of Limitations]
Boehm v Boehm, 2011 WL 863066 (M.D.Fla.) [Austria] [Comity]
Broda v Abarca, 2011 WL 900983 (D.Colo.) [Mexico] [Comity]
Barr v Barr, 2011 WL 797664 (S.D.Tex.) [United Kingdom] [Habitual Residence]
Lakeman v Weed, 2011 WL 824588 (D.Minn.) [Canada] [Attorneys Fees]
De Vasconcelos v De Paula Batista, 2011 WL 806096 (E.D.Tex.) [Brazil] [Rights of Custody] [well settled] [age and maturity]
Seaman v Patterson, --- F.Supp.2d ----, 2011 WL 124223 (M.D.Ga.) [Mexico][Habitual Residence] [Rights of Custody - patria potestas]
Johnson v Johnson, 2011 WL 569876 (S.D.N.Y.) [Italy] [Habitual Residence]
Charalambous v Charalambous, --- F.3d ----, 2010 WL 4963063 (1st Cir.(Me.)) [Cyprus] [Grave Risk of Harm]
Charalambous v Charalambous, 744 F.Supp.2d 375 (D. Maine 2010) [Cyprus] [Federal and State Judicial Remedies] [Stay]
Charalambous v Charalambous, 744 F.Supp.2d 379 (D. Maine 2010) [Cyprus] [Federal and State Judicial Remedies] [Stay] [Temporary Custody]
Nelson v Petterle, 2011 WL 1048107 (E.D.Cal.) [Iceland] [Habitual Residence]
Roche v Hartz, 2011 WL 841556 (N.D.Ohio) [Australia] [One Year Statute of Limitations]
Boehm v Boehm, 2011 WL 863066 (M.D.Fla.) [Austria] [Comity]
Broda v Abarca, 2011 WL 900983 (D.Colo.) [Mexico] [Comity]
Barr v Barr, 2011 WL 797664 (S.D.Tex.) [United Kingdom] [Habitual Residence]
Lakeman v Weed, 2011 WL 824588 (D.Minn.) [Canada] [Attorneys Fees]
De Vasconcelos v De Paula Batista, 2011 WL 806096 (E.D.Tex.) [Brazil] [Rights of Custody] [well settled] [age and maturity]
Seaman v Patterson, --- F.Supp.2d ----, 2011 WL 124223 (M.D.Ga.) [Mexico][Habitual Residence] [Rights of Custody - patria potestas]
Johnson v Johnson, 2011 WL 569876 (S.D.N.Y.) [Italy] [Habitual Residence]
Wednesday, April 13, 2011
Library of Federal and New York Cases - Hague Convention
All Reported Federal and New York Cases involvng the Hague Convention on the Civil Aspects of Intenatonal Child Abduction arranged by subject and country.
All Reported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically.
All Unreported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically, with subject and country.
All Reported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically.
All Unreported Federal and New York Cases involving the Hague Convention on the Civil Aspects of Internation Child Abduction arranged alphabetically, with subject and country.
Tuesday, April 12, 2011
A Child is Missing : Dealing With International Child Abduction - An Introduction to The Hague Child Abduction Convention
The Hague Convention on the Civil Aspects of International Child Abduction aims to protect children from being wrongfully removal or retained in a country other than their own and to establish procedures to ensure their prompt return to their country of habitual residence. Although a comprehensive analysis is beyond the scope of this introduction, it does offer the reader a broad overview of the subject to help legal practitioners and parents alike understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.
The Hague Convention (the Convention), ratified by Congress in 1988, was implemented by the International Child Abduction Remedies Act (ICARA) which established the basic procedure for exercising judicial remedies.(ICARA, Pub.L. No. 100-300, 102 Stat. 445 (1988); codified as amended at 42 USC ss11601-11610; See 42 U.S.C. s 11601 (b) for the congressional intent. Regulations are found at 22 CFR Part 94; s53 Fed Reg 23608 (June 23, 1988).) ICARA, whose provisions are in addition to those of the Convention, establishes procedures for the implementation of the treaty in the U.S. and empowers courts in the U.S. to determine only rights under the Convention and not the merits of any underlying custody dispute.
ICARA created a Central Authority to discharge the duties imposed upon the U.S. by the Convention and grants concurrent jurisdiction to federal and state courts to enforce the Convention. 23 C.F.R. s94:2; See 42 U.S.C.A. s11606. (The Office of Citizens Consular Services in the Bureau of Consular Affairs is designated as the U.S. Central Authority. Its address is CA/OCS/CCS, Room 4817, U.S. Department of State, Washington, DC 20520; phone: 202-736-7000, FAX: 202-647-2835.) Regulations, which can be found at 22 C.F.R. Part 94; 53 Fed. Reg. 23608 (June 23, 1988), have been adopted governing the procedures of the Central Authority.
See http://travel.state.gov/abduction/abduction_580.html
For a list of current signatory partners with the United States see
http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html
Article 7 of the Convention requires that Central Authorities around the world cooperate with each other and promote cooperation among the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of the Convention.
Not A Custody Case
A proceeding under the Hague Convention and ICARA is not a custody proceeding; it is a proceeding to compel the return of the child to his country of habitual residence so that the courts of that country can determine questions relating to custody of that child.
Article 3 of the Hague Convention provides that, in order to prevail on a claim, a petitioner must show: 1) That the child was habitually resident in one nation and has been removed to or retained in a different country; 2) That the removal or retention was in breach of the petitioner's custody rights under the law of the country of habitual residence; and 3) That the petitioner was exercising those rights at the time of the removal or retention. The petitioner must establish these requirements by a preponderance of the evidence. 42 U.S.C. s 11603(e)(1)(A).
Once wrongful removal is shown, return of the child is "required" unless the respondent establishes one of four defenses: 1) The proceeding was commenced in the responding state more than one year after the wrongful removal or retention, and "the child is now settled in its new environment" (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm "or otherwise place the child in an intolerable situation" (Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and/or 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
Habitual Residence
Article 35 of the Convention states that a petitioner cannot invoke the protection of the Hague Convention unless the child to whom the petition relates is "habitually resident" in a State signatory to the Convention and has been removed to or retained in a different signatory State. Once this is established, the petitioner must then show that the removal or retention was "wrongful." (Note: Article 4 of the Convention limits its application only to children less than 16 years old who have been "habitually residing" in a contracting state immediately before the breach of custody or access rights, and ceases to apply on the day when the child attains the age of 16.)
This article might at first seem clear enough, but because interpretation of the term "habitual residence" was left to the courts and not defined by the Convention, there has been a constant flow of litigation over its definition. A number of U.S. Circuit Courts have held that it should not be confused with domicile. See, e.g., Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Mozes v. Mozes, 239 F.3d 1067 (9th Cir., 2001). Several foreign courts have even held that the subject children in cases brought before them did not have a habitual residence. W and B v. H (2002) 1 FLR 1008 (United Kingdom -- Family Division -- 2002); see also Robertson v. Robertson (1997) 1998 SLT 468, 1997 GWD 21-1000, Inner House of the Court of Session (Second Division) (Scotland); Dickson v. Dickson 1990 SCLR 692, 1990, Inner House of the Court of Session (Scotland).
A look at the developing case law in the U.S. is necessary because the Circuits have not agreed on a test for defining a child's "habitual residence."
In Friedrich v. Friedrich, 983 F.2d 1396, 1401-1402 (6th Cir. 1993), the Sixth Circuit opined that the British courts had provided the most complete analysis of "habitual residence," in absence of guidance in the Convention. The Friedrich court was referring to In Re Bates, High Court of Justice, Family Division, Royal Courts of London, No. CA.122/89, in which Great Britain's High Court of Justice concluded that there is no real distinction between "ordinary residence" and "habitual residence." That court offered a word of caution with regard to decisions as to habitual residence: "It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common-law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions." Of course, this offers the attorney representing a party to a Hague Convention proceeding little guidance.
The Sixth Circuit in Friedrich agreed with the Bates court that habitual residence must not be confused with domicile. It concluded that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions. On its face, habitual residence pertains to customary residence prior to the removal, so the court must look back in time, not forward. The child's habitual residence can be "altered" only by a change in geography and the passage of time, not by changes in parental affection and responsibility. The change in geography must occur before the questionable removal. Friedrich has been followed by the Fourth (see Miller v. Miller, 240 F.3d 392, (4th Cir.,2001)) and Eighth Circuits; (Rydder v. Rydder, 49 F.3d 369 (8th Cir.,1995)).
In Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir. 1995), the Third Circuit took note of the Friedrich and Bates decisions, pointing out that in Friedrich the court focused on the child, "look[ing] back in time, not forward." It also considered and found In re Bates instructive for the principle that there must be "a degree of settled purpose." The purpose may be one or there may be several and might include education, business or profession, employment, health, family or merely love of the place. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as "settled." The Third Circuit established the rule in Feder that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. See also Delvoye v. Lee, 329 F.3d 330 (3d Cir.2003), cert. denied, 124 S. Ct. 436 (U.S. 2003); Whiting v Krassner, 391 F3d 540 (3rd Cir, 2004); Application of Adan, 437 F.3d 381 (3rd Cir. 2006).
In Mozes v Mozes, 239 F.3d 1067 (9th Cir., 2001), the Ninth Circuit engaged in a detailed analysis of the problem. It held that the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. One need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad that was originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one's actions; indeed, one's actions may belie any declaration that no abandonment was intended. If you've lived continuously in the same place for several years on end, for example, the court would be hard-pressed to conclude that you had not abandoned any prior habitual residence. On the other hand, one may effectively abandon a prior habitual residence without intending to occupy the next one for more than a limited period. Whether there is a settled intention to abandon a prior habitual residence is a question of fact.
In those cases where it is necessary to decide whether an absence is intended to be temporary only, the Mozes court found that the intention that has to be taken into account is that of the person or persons entitled to fix the place of the child's residence -- in most cases, the parents or parent with custody. Although the Hague Convention is interested in the habitual residence of only the child, the Ninth Circuit recognized in Mozes that it would seem illogical to focus on the child's intentions, as, "[c]hildren... normally lack the material and psychological wherewithal to decide where they will reside." When the persons entitled to fix the child's residence no longer agree on where it has been fixed, the representations of the parties cannot be accepted at face value, and 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. The Seventh and Eleventh Circuits have adopted the reasoning of the Ninth Circuit in Mozes v. Mozes. See Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir, 2004); Koch v. Koch, 450 F.3d 703 (7th Cir.,2006).
Despite a willingness to determine "habitual residence" by the parents' intent, the Second Circuit took the inquiry a step further to find that evidence of acclimatization may suffice to establish a child's habitual residence, despite uncertain or contrary parental intent; If the child's life has become so firmly embedded in the new country as to make the child habitually resident there, that finding will trump even lingering parental intentions to the contrary. Gitter v. Gitter, 396 F.3d 124 (2d Cir., 2005). The Gitter court held that in determining a child's habitual residence, a court should first inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, however, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' last shared intent.
In sum, Friedrich and Feder, and the circuits that follow them, engage primarily in a fact-based analysis, focusing on the customary residence of the child prior to his removal. In these circuits, the court's analysis focuses on the child. The Eighth Circuit followed this reasoning in Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003), in which it held that habitual residence is to be determined by focusing on the settled purpose from the child's perspective immediately before the removal or retention, although parental intent is also taken into account.
In contrast, the Second and Ninth Circuits, and the circuits that follow them, do not equate habitual residence with customary residence. Instead, they focus on the importance of intentions (normally the shared intentions of the parents or others entitled to fix the child's residence) in determining a child's habitual residence. When the persons entitled to fix the child's residence no longer agree on where it has been fixed, 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.
While the decision to alter a child's habitual residence depends on the settled intention of the parents, it requires an actual change in geography, and requires the passage of an appreciable period of time, one that is sufficient for acclimatization. The Second Circuit takes this further by holding that courts should inquire into the shared intent of those entitled to fix the child's residence at the latest time that their intent was shared, but although this should normally control, courts should also inquire as to whether the the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.
The next issue to cover, once habitual residence of the child has been established, is whether or not the petitioning party has a right to custody of the child in question.
A parent need not have a custody order to invoke the Convention, but to apply for the return of a child, a parent must be actually exercising "rights of custody" under the law of the country where the child was "habitually residing" at the time of the abduction or wrongful retention. The rights of custody may arise, according to Article 3 of the Convention, by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Although the Hague Convention defines "rights of custody," there has been substantial litigation as to whether a party has a right of custody or merely a right of access. This is a key distinction. "Access rights," which are synonymous with "visitation rights," are protected by the Convention but to a lesser extent than custody rights. The remedies for breach-of-access rights are enunciated in Article 21 and do not include the return remedy provided by Article 12. Article 5(b) defines "access rights" as including "the right to take a child for a limited period of time to a place other than the child's habitual residence." A parent who takes a child from the country of its habitual residence to another country that is a party to the Convention for a summer visit pursuant to either an agreement between the parents or a court order is exercising his or her access rights.
"Custody rights" are defined in Article 5(a) as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Such custody rights are determined by law of child's habitual residence. In addition to including the right to determine the child's residence, the term "custody rights" covers a collection of rights that take on more specific meaning by reference to the law of the country in which the child was habitually resident immediately before the removal or retention. Nothing in the Convention limits this "law" to the internal law of the State of the child's habitual residence. Consequently, it could include the laws of another State if the choice of law rules in the State of habitual residence so indicate. According to Article 3, custody rights may arise: 1) by operation of law; 2) by reason of a judicial or administrative decision; or 3) by reason of an agreement having legal effect under the law of that State.
Ne Exeat Rights and Patria Potestas
The Circuits disagree as to when a parent has a "right of custody" rather than a 'right of access," and there has been much litigation in the district courts regarding the significance of ne exeat rights and patria potestas.
"Ne exeat" has been defined as an equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction. A ne exeat is therefore often issued to prohibit a person from removing a child or property from the jurisdiction -- and sometimes from leaving the jurisdiction.
In Abbott v Abbott, --- S.Ct. ----, 2010 WL 1946730 the U.S. Supreme Court, in an opinion by Justice Kennedy, held that father's ne exeat right granted by Chilean law was a "right of custody," under the Hague Convention, abrogating Croll v. Croll, 229 F.3d 133, Fawcett v. McRoberts, 326 F.3d 491, and Gonzalez v. Gutierrez, 311 F.3d 942.
Timothy Abbott and Jacquelyn Abbott married in England in 1992. He was a British citizen, and she was a citizen of the United States. Their son A.J. A. was born in 1995. The Abbotts moved to La Serena, Chile, in 2002. There was marital discord, and the parents separated in March 2003. The Chilean courts granted the mother daily care and control of the child, while awarding the father "direct and regular" visitation rights, including visitation every other weekend and for the whole month of February each year. Chilean law conferred upon Mr. Abbott what is commonly known as a ne exeat right: a right to consent before Ms. Abbott could take A.J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), (granting a ne exeat right to any parent with visitation rights). Justice Kennedy noted that in effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott obtained a British passport for A.J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a "ne exeat of the minor" order from the Chilean family court, prohibiting the boy from being taken out of Chile. In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In May 2006, Mr. Abbott filed an action in the United States District Court seeking an order requiring his son's return to Chile pursuant to the Convention and enforcement provisions of the ICARA.
In July 2007, after holding a bench trial during which only Mr. Abbott testified, the District Court denied relief. The court held that the father's ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. (495 F.Supp.2d 635, 640.)
The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under theConvention because his ne exeat right was only "a veto right over his son's departure from Chile.". The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary definitions of "custody" and noting that ne exeat rights cannot be " 'actually exercised' " within the meaning of the Convention, Croll held that ne exeat rights are not rights of custody. A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it "provides a parent with decision making authority regarding a child's international relocation." The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, 326 F.3d 491, 500 (C.A.4 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 949 (C.A.9 2002). The Court of Appeals for the Eleventh Circuit followed the reasoning of the Croll dissent. Furnes v. Reeves, 362 F.3d 702, 720, n. 15 (2004). Certiorari was granted to resolve the conflict. 557 U.S. ----, 129 S.Ct. 2859, 174 L.Ed.2d 575 (2009).
Justice Kennedy noted that the provisions of the Convention of most relevance at the outset of the discussion are as follows:
"Article 3: The removal or the retention of the child is to be considered wrongful where--"a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and "b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
* * *
"Article 5: For the purposes of this Convention-- "a 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; "b 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
He also noted that the Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must "order the return of the child forthwith," unless certain exceptions apply. A removal is "wrongful" where the child was removed in violation of "rights of custody." The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5(a). A return remedy does not alter the pre--abduction allocation of custody rights but leaves custodial decisions to the
courts of the country of habitual residence. Art. 19. The Convention also recognizes "rights of access," but offers no return remedy for a breach of those rights. Arts. 5(b), 21.
The parties agreed that the Convention applied to this dispute. A.J. A. was under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question was whether A.J. A. was "wrongfully removed" from Chile, in other words, whether he was removed in violation of a right of custody.
The Court's inquiry was shaped by the text of the Convention; the views of the United States Department of State; decisions addressing the meaning of "rights of custody" in courts of other contracting states; and the purposes of the Convention, which were all discussed in the opinion. After considering these sources, the Court determined that Mr. Abbott's ne exeat right is a right of custody under the Convention.
The Court consulted Chilean law to determine the content of Mr. Abbott's right, while following the Convention's text and structure to decide whether the right at issue is a "righ[t] of custody." Chilean law granted Mr. Abbott a joint right to decide his child's country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), provides that "[o]nce the court has decreed" that one of the parents has visitation rights, that parent's "authorization ... shall also be required" before the child may be taken out of the country, subject to court override only where authorization "cannot be granted or is denied without good reason." Mr. Abbott had "direct and regular" visitation rights and it followed from Chilean law, that he had a shared right to determine his son's country of residence under this provision.
To support the conclusion that Mr. Abbott's right under Chilean law gave him a joint right to decide his son's country of residence, it was notable that a Chilean agency had explained that Minors Law 16,618 is a "right to authorize the minors' exit" from Chile and that this provision means that neither parent can "unilaterally" "establish the [child's] place of residence." (Citing Letter from Paula Strap Camus, Director General, Corporation of Judicial Assistance of the Region Metropolitana, to National Center for Missing and Exploited Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v. Arribada Beaumont, No. 08-775, pp. 35a-37a, cert. pending.)
Justice Kennedy stated that the Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a); and Mr. Abbott's joint right to determine his son's country of residence was best classified as a joint right of custody, as the Convention defines that term. The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5(a), . Mr. Abbott's ne exeat right gave him both the joint "right to determine the child's place of residence" and joint "rights relating to the care of the person of the child." Mr. Abbott's joint right to decide A.J. A.'s country of residence allowed him to "determine the child's place of residence." The Convention's protection of a parent's custodial "right to determine the child's place of residence" includes a ne exeat right. Mr. Abbott's joint right to determine A.J. A.'s country of residence also gives him "rights relating to the care of the person of the child." The Court of Appeals described Mr. Abbott's right to take part in making this decision as a mere "veto," 542 F.3d, at 1087; but even by that truncated description, the father had an essential role in deciding the boy's country of residence. For example, Mr. Abbott could condition his consent to a change in country on A.J. A.'s moving to a city outside Chile where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued contact with the boy.
Justice Kennedy indicated that it was "is beside the point" whether a ne exeat right does not fit within traditional notions of physical custody The Convention defines "rights of custody," and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition. The Court of Appeals' conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. Any suggestion that a ne exeat right is a "righ[t] of access" is illogical and atextual.
Ms. Abbott contended that the Chilean court's ne exeat order contained no parental consent provision and so awarded the father no rights, custodial or otherwise). Justice Kennedy responded that even a ne exeat order issued to protect a court's jurisdiction pending issuance of further decrees is consistent with allowing a parent to object to the child's removal from the country. The Court did not decide the status of ne exeat orders lacking parental consent provisions, however; for here the father relied on his rights under Minors Law 16,618. Mr. Abbott's rights derived not from the order but from Minors Law 16,618. That law requires the father's consent before the mother can remove the boy from Chile, subject only to the equitable power family courts retain to override any joint custodial arrangements in times of disagreement. Minors Law 16,618; The consent provision in Minors Law 16,618 confers upon the father the joint right to determine his child's country of residence. This is a right of custody under the Convention.
Justice Kennedy noted that the "Perez-Vera Report", was cited by the parties and by Courts of Appeals that have considered this issue. (See 1980 Conference de La Haye de droit international prive, Enl & egrave; vement d'enfants, E. Perez-Vera, Explanatory Report (Perez-Vera Report or Report), in 3 Actes et Documents de la Quatorzi & egrave;me session, pp. 425- 473 (1982). Justice Kennedy stated that the Court need not decide whether this Report should be given greater weight than a scholarly commentary. He pointed out that the Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10503-10506 (1986) identifying the Report as the "official history" of the Convention and "a source of background on the meaning of the provisions of the Convention", indicates that the Report had not been approved by the Conference, and it is possible that, despite the Rapporter's [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective".
Justice Kennedy pointed out that while a parent possessing a ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies. One exception states return of the child is not required when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Art. 13(b). If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at grave risk, the court could consider whether this is sufficient to show that the child too would suffer "psychological harm" or be placed "in an intolerable situation." The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient "age and degree of maturity at which it is appropriate to take account of its views." Art. 13(b). The proper interpretation and application of these and other exceptions are not before the Court. It stated that these matters may be addressed on remand. The judgment of the Court of Appeals was reversed, and the case was remanded for further proceedings consistent with the opinion. Chief Judge Roberts and Justices Scalia, Ginsburg, Alito, and Sotomayor joined. Justice Stevens, with whom Justice Thomas and Justice Breyer joined, dissented in a separate opinion.
"Patria potestas" has been explained as follows: "The authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated. 42 Black's Law Dictionary (8th Edition 2004).
In Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000), the First Circuit held that a father had "rights of custody" under Mexican law, which was the law of the child's habitual residence at time of her removal, as the doctrine of patria potestas gave the father custodial rights greater than mere visitation rights, notwithstanding the Mexican court's rejection of the father's petition to terminate the mother's parental rights. The court held that the Affidavit of a Mexican attorney indicating that both parents exercise patria potestas rights under Mexican law and stating that both parents must consent to the removal of the child under Mexican law was an acceptable form of proof in determining issues of foreign law, and was permitted under the Hague Convention.
In Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007), the Hanleys were the Irish maternal grandparents of Roy's children. Their daughter, Margaret, married Roy, a United States citizen, in England in 1986, and the two resided in England together. In 1997, shortly after the couple's separation and the birth of their third child, Margaret was diagnosed with cancer and wanted to return to Ireland.
The Hanleys bought Margaret and the children a house in Ireland, and Roy eventually rejoined the family there. In March 2000, Margaret executed a will designating the Hanleys as trustees of her estate and testamentary guardians of the children. After she died, Roy and the children continued to live with the Hanleys until July 29, 2005, when Roy suddenly moved the children from Ireland to Florida without the Hanleys' knowledge or consent, leaving only a note behind. The Eleventh Circuit held that the substantive rights the Hanleys enjoyed as testamentary guardians under Irish law were sufficient to create "rights of custody" under the Convention.
Exercising Rights of Custody
The Circuits appear to be in agreement as to when a parent is "exercising' rights of custody.
In Friedrich v. Friedrich (II), 78 F3d 1060 (6th Cir. 1996), the Sixth Circuit held that a person having 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. Once a court determines that the parent exercised custody rights in any manner, the court should stop it's inquiry into the exercise of custody rights, completely avoiding whether the parent exercised those rights well or badly. The rule enunciated by the Sixth Circuit in Friedrich was adopted in by the Second Circuit in Croll.
In Sealed Appellant v Sealed, 394 F3d 338 (5th Cir. 2005), the Fifth Circuit adopted the reasoning from Friedrich II and held that in the absence of a ruling from a court in the child's country of habitual residence, when a parent has custody rights under the laws of that country, even occasional contact with the child constitutes "exercise" of those rights. To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child.
Similarly, in Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007), the Fourth Circuit held that it will liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. See also Baxter v. Baxter, 423 F3d 363 (3d Cir. 2005). The Bader court pointed out in a footnote that this approach will not apply when the country of habitual residence, by law, expressly defines the exercise of custody rights for purposes of the Hague Convention. Similarly, when a competent judicial tribunal in the country of habitual residence has made a determination as to whether a parent was exercising his custody rights, that determination will normally be conclusive.
Defenses
The Hague Convention establishes four defenses to the return of a child who has been wrongly taken from its habitual residence: 1) The proceeding is commenced in the responding state more than one year after the wrongful removal or retention, and "the child is now settled in its new environment" (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm "or otherwise place the child in an intolerable situation"(Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
A respondent who opposes the return of the child has the burden of establishing by clear and convincing evidence that one of the exceptions set forth in articles 13b or 20 of the Convention applies, and, by a preponderance of the evidence, that any other exception set forth in article 12 or 13 of the Convention applies. 42 U.S.C. 11603(e). Importantly, a finding that one or more of the exceptions provided by Articles 13 and 20 are applicable does not make refusal of a return order mandatory. The courts retain the discretion to order the child returned even if they consider that one or more of the exceptions applies (Article 18).
Article 12: One-Year Limitations Defense
Where a child has been "wrongfully removed" or "wrongfully retained" in terms of Article 3 of the Convention, and, at the date of commencement of the judicial proceedings in the contracting state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned must order the return of the child. Even where the proceedings have been commenced after the expiration of the period of one year, the return of the child must be ordered, unless it is demonstrated that the child is now settled in its new environment.
The International Child Abduction Remedies Act defines the term "commencement of proceedings" as the commencement of a civil action by the filing of a petition in any court which has jurisdiction and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 42 U.S.C.A. s11602(f)(3). However, it does not define when a removal or retention becomes unlawful, and that is a question of fact for the court to determine.
The doctrine of equitable tolling has been applied to this defense even though it is not mentioned in the Hague Convention or ICA. In Furnes v. Reeves, 362 F.3d 702 (11th Cir., 2004) the Eleventh Circuit rejected an assertion that plaintiff's petition was not timely filed because it was filed more than a year following the child's removal from Norway. The district court had concluded that the limitation period was equitably tolled until the plaintiff located the child, and determined that the petition was filed within one year of such location.
Article 20: Human Rights Defense
The return obligation of Article 12 is limited by Article 20, which states:
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."
The language of Article 20 has no known precedent in other international agreements to serve as a guide in its interpretation. This exception, like the others, was intended to be restrictively interpreted and applied, and is not to be used, for example, as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.
Article 13(a): The Consent or Acquiescence Defense
Under Article 13(a), the judicial authority may deny an application for the return of a child if the person having the care of the child was not actually exercising the custody rights at the time of the removal or retention, or had consented to or acquiesced in the removal or retention. This exception derives from Article 3(b), which makes the Convention applicable to the breach of custody rights that were actually exercised at the time of the removal or retention, or which would have been exercised but for the removal or retention.
The person opposing return has the burden of proving that custody rights were not actually exercised at the time of the removal or retention, or that the applicant had consented to or acquiesced in the removal or retention. The applicant seeking return need only allege that he or she was actually exercising custody rights conferred by the law of the country in which the child was habitually resident immediately before the removal or retention. The statement would normally include a recitation of the circumstances under which physical custody had been exercised, i.e., whether by the holder of these rights, or by a third person on behalf of the actual holder of the custody rights. The applicant should append copies of any relevant legal documents or court orders to the return application. Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494-01, 1986 WL 133056 (F.R.).
The consent and acquiescence inquiries are similar in their focus on the petitioner's subjective intent. 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. Acquiescence inquiry turns on the subjective intent of the parent who is claimed to have acquiesced.Wanninger v. Wanninger, 850 F.Supp. 78 (D. Mass, 1994). The defense of consent need not be expressed with the same degree of formality as acquiescence in order to prove the defense under article 13(a). See, e.g., In re Kim, 404 F. Supp. 2d 495 (SDNY 2005) (to establish consent defense, party must establish by a preponderance of the evidence that other parent had the subjective intent to permit removal of the child for an indefinite or permanent time period). The Third Circuit explained this difference between acquiescence and consent in Baxter v. Baxter, 423 F3d 363 (3d Cir. 2005), where it held that Article 13(a) does not provide that if a parent consents to removal of the child for a period, under certain conditions or circumstances, retention of the child beyond those conditions or circumstances is necessarily permissible. Often, the petitioner grants some measure of consent, such as permission to travel, in an informal manner before the parties become involved in a custody dispute. The fact that a petitioner initially allows children to travel, and knows their location and how to contact them, does not necessarily constitute consent to removal or retention under the Convention.
Article 13(b): The 'Grave Risk of Harm' Defense
In accordance with Article 13(b), a child will not be ordered returned where there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. This provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests.
The person opposing the child's return must show that the risk to the child is grave, not merely serious. The definition of an "intolerable situation" was also not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition.
This is another area that has been the subject of extensive litigation under the Hague Convention, as courts have struggled to define situations that constitute a "grave risk of harm. In Friedrich v. Friedrich, 78 F3d 1060 (6th Cir. 1996), the Sixth Circuit stated that it believed that a "grave risk of harm" for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute -- e.g., by returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.
In Blondin v. Dubois, 189 F3d 240 (2d Cir. 1999), the Second Circuit discussed and explained the factors which may be considered in the grave risk of harm defense. The District Court in that case had found that in the years that he lived with the respondent mother in France, petitioner Blondin repeatedly beat her and one of the couple's two children, forcing the mother to move with the children to shelters. After they reconciled and respondent and the children moved back into the petitioner's home, the beatings resumed. Thus, the respondent felt compelled to move with the children to the United States. Blondin petitioned for their return. The Second Circuit determined the evidence supported the District Court's factual determination that there was a grave risk of harm, but remanded the case for further consideration of a range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody determination by a French court with proper jurisdiction. It raised the question whether the District Court could have protected the children from the "grave risk" of harm that it found, while still honoring the important treaty commitment to allow custodial determinations to be made if at all possible by the court of the child's home country.
On remand, the District Court found that if the mother and children returned to France, they would be eligible for social services and free legal assistance. The petitioning father had also agreed to help them financially and to stay away from the mother and children until custody rights were adjudicated. However, the court also found that these arrangements would not mitigate the grave risk of psychological harm to the children that a return to France would entail. The court, which denied repatriation, based its determination on uncontested expert testimony that the children would suffer from post-traumatic stress disorder upon return to France and on the wishes of the child who had been physically abused by her father to remain in the United States. The decision was upheld on appeal.
In Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003), cert. denied, 124 S.Ct. 1062, (U.S. 2004), the district court found that even if the children's habitual residence was in Israel, they need not be returned to Israel because they would face a grave risk of physical harm there due to the belief that the general violent situation in Israel made it a zone of war, and thus dangerous to children.
The Eighth Circuit reversed, finding fatal the district court's failure to cite any evidence that the children were in any more specific danger living in Israel than they were in when their mother voluntarily moved them there in 1999.
In March v. Levine, 136 FSupp2d 831 (M.D. Tenn. 2000), aff'd, 249 F3d 462 (6th Cir. 2001), cert. denied, 534 US 1080 (2002), the Sixth Circuit held that in evaluating whether there is grave risk of harm to the child, the court is not to make a determination of the child's best interest. The maternal grandparents' allegation that the father had killed the mother was insufficient to establish a grave risk that return of the children to their father in Mexico would expose them to harm despite outstanding criminal complaints against the father in Mexico, absent evidence that the father had ever abused the children.
In Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), the husband, who had earlier absconded to his native Ireland after being charged with criminal offenses in the United States, petitioned for return of the children after they were taken to United States by his estranged wife. The District Court granted the petition. The First Circuit reversed, holding that the wife, who had wrongfully brought the children to United States from their habitual residence in Ireland, showed by clear and convincing evidence that the children faced a grave risk of exposure to physical or psychological harm if they were returned to her husband in Ireland.
The husband had a long history of spousal abuse, of fights with others, and had shown a chronic disobedience of court orders in both the United States and Ireland. Because there was every reason to believe that he would violate any Irish court order made to protect the children, return to Ireland was not required.
The case law reflects that even when confronted with a grave risk of physical harm, certain courts have allowed the return of a child to the country of habitual residence, provided sufficient protection was afforded. See cases cited in Walsh v Walsh, 221 F3d at 204, 221 (1st Cir. 2002). That protection may take the form of "undertakings," or enforceable conditions of return that may be ordered to mitigate the risk of harm occasioned by the child's repatriation. See Feder v. Evans-Feder, 63 F3d 217, 226 (3rd Cir.1995). The concept of "undertakings" is based neither in the Convention nor in the implementing legislation of any nation; rather it is a judicially created concept, developed in the context of British family law. See P.R. Beaumont & P.E. McEleavy, The Hague Convention on International Child Abduction 156-59 & n. 183 (1999).
Undertakings may include such conditions as, for example, ordering the child's return to his country of habitual residence, subject to placement of the child in the temporary custody of a third party (e.g., foster care) in that country until the home country's courts sort out permanent custody issues. However, courts are reluctant to order undertakings because such action may involve the court in adjudicating the merits of the underlying custody dispute. Undertakings are primarily to be used to return the parties to the status quo that existed before the unlawful taking or retention of the child took place, but return to the status quo when a child was previously in an abusive situation is, obviously, not desirable.
Article 13: The 'Wishes of the Child' Defense
Article 13 permits a court to refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
The application of this exception is not mandatory. This discretionary aspect of Article 13 is especially important because there is a real potential for the brainwashing of the child by the alleged abductor. A child's objection to being returned may be accorded little if any weight if the court believes that the child's preference is the product of the abductor parent's undue influence over the child.
When is a child sufficiently mature to offer a valid opinion as to his preferences? The numbers vary, and there is no cut-off. Rather, the totality of the circumstances should be taken into consideration. In Raijmakers-Eghaghe v. Haro, 131 F.Supp.2d 953 (E. D. Mich. 2001), the court held that it was not precluded, as a matter of law, from taking into account the views of an eight-year-old child under the maturity exception of the International Child Abduction Remedies Act, as the Convention contained no age limit for applying this exception. However, in Yang v. Tsui, 2006 WL 2466095 (W.D.Pa., 2006), the court found that although the unlawfully detained child wished to stay in the United States and not return to Canada, that desire was the product of the passage of time during the litigation, and giving in to that desire would eviscerate the purpose of the Convention.
When relying on this defense to the return of the child, courts are required by the final paragraph of Article 13 to take into account information relating to the child's social background provided by the Central Authority or other competent authority in the child's State of habitual residence. This provision has the dual purpose of ensuring that the court has a balanced record upon which to determine whether the child is to be returned, and preventing the abductor from obtaining an unfair advantage through his or her own forum selection and the resulting ready access to evidence of the child's living conditions in that forum. Hague International Child Abduction Convention; Text and, 51 Fed.Reg. 10, 494.
The Hague Convention (the Convention), ratified by Congress in 1988, was implemented by the International Child Abduction Remedies Act (ICARA) which established the basic procedure for exercising judicial remedies.(ICARA, Pub.L. No. 100-300, 102 Stat. 445 (1988); codified as amended at 42 USC ss11601-11610; See 42 U.S.C. s 11601 (b) for the congressional intent. Regulations are found at 22 CFR Part 94; s53 Fed Reg 23608 (June 23, 1988).) ICARA, whose provisions are in addition to those of the Convention, establishes procedures for the implementation of the treaty in the U.S. and empowers courts in the U.S. to determine only rights under the Convention and not the merits of any underlying custody dispute.
ICARA created a Central Authority to discharge the duties imposed upon the U.S. by the Convention and grants concurrent jurisdiction to federal and state courts to enforce the Convention. 23 C.F.R. s94:2; See 42 U.S.C.A. s11606. (The Office of Citizens Consular Services in the Bureau of Consular Affairs is designated as the U.S. Central Authority. Its address is CA/OCS/CCS, Room 4817, U.S. Department of State, Washington, DC 20520; phone: 202-736-7000, FAX: 202-647-2835.) Regulations, which can be found at 22 C.F.R. Part 94; 53 Fed. Reg. 23608 (June 23, 1988), have been adopted governing the procedures of the Central Authority.
See http://travel.state.gov/abduction/abduction_580.html
For a list of current signatory partners with the United States see
http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html
Article 7 of the Convention requires that Central Authorities around the world cooperate with each other and promote cooperation among the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of the Convention.
Not A Custody Case
A proceeding under the Hague Convention and ICARA is not a custody proceeding; it is a proceeding to compel the return of the child to his country of habitual residence so that the courts of that country can determine questions relating to custody of that child.
Article 3 of the Hague Convention provides that, in order to prevail on a claim, a petitioner must show: 1) That the child was habitually resident in one nation and has been removed to or retained in a different country; 2) That the removal or retention was in breach of the petitioner's custody rights under the law of the country of habitual residence; and 3) That the petitioner was exercising those rights at the time of the removal or retention. The petitioner must establish these requirements by a preponderance of the evidence. 42 U.S.C. s 11603(e)(1)(A).
Once wrongful removal is shown, return of the child is "required" unless the respondent establishes one of four defenses: 1) The proceeding was commenced in the responding state more than one year after the wrongful removal or retention, and "the child is now settled in its new environment" (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm "or otherwise place the child in an intolerable situation" (Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and/or 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
Habitual Residence
Article 35 of the Convention states that a petitioner cannot invoke the protection of the Hague Convention unless the child to whom the petition relates is "habitually resident" in a State signatory to the Convention and has been removed to or retained in a different signatory State. Once this is established, the petitioner must then show that the removal or retention was "wrongful." (Note: Article 4 of the Convention limits its application only to children less than 16 years old who have been "habitually residing" in a contracting state immediately before the breach of custody or access rights, and ceases to apply on the day when the child attains the age of 16.)
This article might at first seem clear enough, but because interpretation of the term "habitual residence" was left to the courts and not defined by the Convention, there has been a constant flow of litigation over its definition. A number of U.S. Circuit Courts have held that it should not be confused with domicile. See, e.g., Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Mozes v. Mozes, 239 F.3d 1067 (9th Cir., 2001). Several foreign courts have even held that the subject children in cases brought before them did not have a habitual residence. W and B v. H (2002) 1 FLR 1008 (United Kingdom -- Family Division -- 2002); see also Robertson v. Robertson (1997) 1998 SLT 468, 1997 GWD 21-1000, Inner House of the Court of Session (Second Division) (Scotland); Dickson v. Dickson 1990 SCLR 692, 1990, Inner House of the Court of Session (Scotland).
A look at the developing case law in the U.S. is necessary because the Circuits have not agreed on a test for defining a child's "habitual residence."
In Friedrich v. Friedrich, 983 F.2d 1396, 1401-1402 (6th Cir. 1993), the Sixth Circuit opined that the British courts had provided the most complete analysis of "habitual residence," in absence of guidance in the Convention. The Friedrich court was referring to In Re Bates, High Court of Justice, Family Division, Royal Courts of London, No. CA.122/89, in which Great Britain's High Court of Justice concluded that there is no real distinction between "ordinary residence" and "habitual residence." That court offered a word of caution with regard to decisions as to habitual residence: "It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common-law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions." Of course, this offers the attorney representing a party to a Hague Convention proceeding little guidance.
The Sixth Circuit in Friedrich agreed with the Bates court that habitual residence must not be confused with domicile. It concluded that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions. On its face, habitual residence pertains to customary residence prior to the removal, so the court must look back in time, not forward. The child's habitual residence can be "altered" only by a change in geography and the passage of time, not by changes in parental affection and responsibility. The change in geography must occur before the questionable removal. Friedrich has been followed by the Fourth (see Miller v. Miller, 240 F.3d 392, (4th Cir.,2001)) and Eighth Circuits; (Rydder v. Rydder, 49 F.3d 369 (8th Cir.,1995)).
In Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir. 1995), the Third Circuit took note of the Friedrich and Bates decisions, pointing out that in Friedrich the court focused on the child, "look[ing] back in time, not forward." It also considered and found In re Bates instructive for the principle that there must be "a degree of settled purpose." The purpose may be one or there may be several and might include education, business or profession, employment, health, family or merely love of the place. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as "settled." The Third Circuit established the rule in Feder that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. See also Delvoye v. Lee, 329 F.3d 330 (3d Cir.2003), cert. denied, 124 S. Ct. 436 (U.S. 2003); Whiting v Krassner, 391 F3d 540 (3rd Cir, 2004); Application of Adan, 437 F.3d 381 (3rd Cir. 2006).
In Mozes v Mozes, 239 F.3d 1067 (9th Cir., 2001), the Ninth Circuit engaged in a detailed analysis of the problem. It held that the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. One need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad that was originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one's actions; indeed, one's actions may belie any declaration that no abandonment was intended. If you've lived continuously in the same place for several years on end, for example, the court would be hard-pressed to conclude that you had not abandoned any prior habitual residence. On the other hand, one may effectively abandon a prior habitual residence without intending to occupy the next one for more than a limited period. Whether there is a settled intention to abandon a prior habitual residence is a question of fact.
In those cases where it is necessary to decide whether an absence is intended to be temporary only, the Mozes court found that the intention that has to be taken into account is that of the person or persons entitled to fix the place of the child's residence -- in most cases, the parents or parent with custody. Although the Hague Convention is interested in the habitual residence of only the child, the Ninth Circuit recognized in Mozes that it would seem illogical to focus on the child's intentions, as, "[c]hildren... normally lack the material and psychological wherewithal to decide where they will reside." When the persons entitled to fix the child's residence no longer agree on where it has been fixed, the representations of the parties cannot be accepted at face value, and 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. The Seventh and Eleventh Circuits have adopted the reasoning of the Ninth Circuit in Mozes v. Mozes. See Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir, 2004); Koch v. Koch, 450 F.3d 703 (7th Cir.,2006).
Despite a willingness to determine "habitual residence" by the parents' intent, the Second Circuit took the inquiry a step further to find that evidence of acclimatization may suffice to establish a child's habitual residence, despite uncertain or contrary parental intent; If the child's life has become so firmly embedded in the new country as to make the child habitually resident there, that finding will trump even lingering parental intentions to the contrary. Gitter v. Gitter, 396 F.3d 124 (2d Cir., 2005). The Gitter court held that in determining a child's habitual residence, a court should first inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, however, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' last shared intent.
In sum, Friedrich and Feder, and the circuits that follow them, engage primarily in a fact-based analysis, focusing on the customary residence of the child prior to his removal. In these circuits, the court's analysis focuses on the child. The Eighth Circuit followed this reasoning in Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003), in which it held that habitual residence is to be determined by focusing on the settled purpose from the child's perspective immediately before the removal or retention, although parental intent is also taken into account.
In contrast, the Second and Ninth Circuits, and the circuits that follow them, do not equate habitual residence with customary residence. Instead, they focus on the importance of intentions (normally the shared intentions of the parents or others entitled to fix the child's residence) in determining a child's habitual residence. When the persons entitled to fix the child's residence no longer agree on where it has been fixed, 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.
While the decision to alter a child's habitual residence depends on the settled intention of the parents, it requires an actual change in geography, and requires the passage of an appreciable period of time, one that is sufficient for acclimatization. The Second Circuit takes this further by holding that courts should inquire into the shared intent of those entitled to fix the child's residence at the latest time that their intent was shared, but although this should normally control, courts should also inquire as to whether the the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.
The next issue to cover, once habitual residence of the child has been established, is whether or not the petitioning party has a right to custody of the child in question.
A parent need not have a custody order to invoke the Convention, but to apply for the return of a child, a parent must be actually exercising "rights of custody" under the law of the country where the child was "habitually residing" at the time of the abduction or wrongful retention. The rights of custody may arise, according to Article 3 of the Convention, by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Although the Hague Convention defines "rights of custody," there has been substantial litigation as to whether a party has a right of custody or merely a right of access. This is a key distinction. "Access rights," which are synonymous with "visitation rights," are protected by the Convention but to a lesser extent than custody rights. The remedies for breach-of-access rights are enunciated in Article 21 and do not include the return remedy provided by Article 12. Article 5(b) defines "access rights" as including "the right to take a child for a limited period of time to a place other than the child's habitual residence." A parent who takes a child from the country of its habitual residence to another country that is a party to the Convention for a summer visit pursuant to either an agreement between the parents or a court order is exercising his or her access rights.
"Custody rights" are defined in Article 5(a) as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Such custody rights are determined by law of child's habitual residence. In addition to including the right to determine the child's residence, the term "custody rights" covers a collection of rights that take on more specific meaning by reference to the law of the country in which the child was habitually resident immediately before the removal or retention. Nothing in the Convention limits this "law" to the internal law of the State of the child's habitual residence. Consequently, it could include the laws of another State if the choice of law rules in the State of habitual residence so indicate. According to Article 3, custody rights may arise: 1) by operation of law; 2) by reason of a judicial or administrative decision; or 3) by reason of an agreement having legal effect under the law of that State.
Ne Exeat Rights and Patria Potestas
The Circuits disagree as to when a parent has a "right of custody" rather than a 'right of access," and there has been much litigation in the district courts regarding the significance of ne exeat rights and patria potestas.
"Ne exeat" has been defined as an equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction. A ne exeat is therefore often issued to prohibit a person from removing a child or property from the jurisdiction -- and sometimes from leaving the jurisdiction.
In Abbott v Abbott, --- S.Ct. ----, 2010 WL 1946730 the U.S. Supreme Court, in an opinion by Justice Kennedy, held that father's ne exeat right granted by Chilean law was a "right of custody," under the Hague Convention, abrogating Croll v. Croll, 229 F.3d 133, Fawcett v. McRoberts, 326 F.3d 491, and Gonzalez v. Gutierrez, 311 F.3d 942.
Timothy Abbott and Jacquelyn Abbott married in England in 1992. He was a British citizen, and she was a citizen of the United States. Their son A.J. A. was born in 1995. The Abbotts moved to La Serena, Chile, in 2002. There was marital discord, and the parents separated in March 2003. The Chilean courts granted the mother daily care and control of the child, while awarding the father "direct and regular" visitation rights, including visitation every other weekend and for the whole month of February each year. Chilean law conferred upon Mr. Abbott what is commonly known as a ne exeat right: a right to consent before Ms. Abbott could take A.J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), (granting a ne exeat right to any parent with visitation rights). Justice Kennedy noted that in effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott obtained a British passport for A.J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a "ne exeat of the minor" order from the Chilean family court, prohibiting the boy from being taken out of Chile. In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In May 2006, Mr. Abbott filed an action in the United States District Court seeking an order requiring his son's return to Chile pursuant to the Convention and enforcement provisions of the ICARA.
In July 2007, after holding a bench trial during which only Mr. Abbott testified, the District Court denied relief. The court held that the father's ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. (495 F.Supp.2d 635, 640.)
The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under theConvention because his ne exeat right was only "a veto right over his son's departure from Chile.". The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary definitions of "custody" and noting that ne exeat rights cannot be " 'actually exercised' " within the meaning of the Convention, Croll held that ne exeat rights are not rights of custody. A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it "provides a parent with decision making authority regarding a child's international relocation." The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, 326 F.3d 491, 500 (C.A.4 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 949 (C.A.9 2002). The Court of Appeals for the Eleventh Circuit followed the reasoning of the Croll dissent. Furnes v. Reeves, 362 F.3d 702, 720, n. 15 (2004). Certiorari was granted to resolve the conflict. 557 U.S. ----, 129 S.Ct. 2859, 174 L.Ed.2d 575 (2009).
Justice Kennedy noted that the provisions of the Convention of most relevance at the outset of the discussion are as follows:
"Article 3: The removal or the retention of the child is to be considered wrongful where--"a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and "b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
* * *
"Article 5: For the purposes of this Convention-- "a 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; "b 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
He also noted that the Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must "order the return of the child forthwith," unless certain exceptions apply. A removal is "wrongful" where the child was removed in violation of "rights of custody." The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5(a). A return remedy does not alter the pre--abduction allocation of custody rights but leaves custodial decisions to the
courts of the country of habitual residence. Art. 19. The Convention also recognizes "rights of access," but offers no return remedy for a breach of those rights. Arts. 5(b), 21.
The parties agreed that the Convention applied to this dispute. A.J. A. was under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question was whether A.J. A. was "wrongfully removed" from Chile, in other words, whether he was removed in violation of a right of custody.
The Court's inquiry was shaped by the text of the Convention; the views of the United States Department of State; decisions addressing the meaning of "rights of custody" in courts of other contracting states; and the purposes of the Convention, which were all discussed in the opinion. After considering these sources, the Court determined that Mr. Abbott's ne exeat right is a right of custody under the Convention.
The Court consulted Chilean law to determine the content of Mr. Abbott's right, while following the Convention's text and structure to decide whether the right at issue is a "righ[t] of custody." Chilean law granted Mr. Abbott a joint right to decide his child's country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), provides that "[o]nce the court has decreed" that one of the parents has visitation rights, that parent's "authorization ... shall also be required" before the child may be taken out of the country, subject to court override only where authorization "cannot be granted or is denied without good reason." Mr. Abbott had "direct and regular" visitation rights and it followed from Chilean law, that he had a shared right to determine his son's country of residence under this provision.
To support the conclusion that Mr. Abbott's right under Chilean law gave him a joint right to decide his son's country of residence, it was notable that a Chilean agency had explained that Minors Law 16,618 is a "right to authorize the minors' exit" from Chile and that this provision means that neither parent can "unilaterally" "establish the [child's] place of residence." (Citing Letter from Paula Strap Camus, Director General, Corporation of Judicial Assistance of the Region Metropolitana, to National Center for Missing and Exploited Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v. Arribada Beaumont, No. 08-775, pp. 35a-37a, cert. pending.)
Justice Kennedy stated that the Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a); and Mr. Abbott's joint right to determine his son's country of residence was best classified as a joint right of custody, as the Convention defines that term. The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Art. 5(a), . Mr. Abbott's ne exeat right gave him both the joint "right to determine the child's place of residence" and joint "rights relating to the care of the person of the child." Mr. Abbott's joint right to decide A.J. A.'s country of residence allowed him to "determine the child's place of residence." The Convention's protection of a parent's custodial "right to determine the child's place of residence" includes a ne exeat right. Mr. Abbott's joint right to determine A.J. A.'s country of residence also gives him "rights relating to the care of the person of the child." The Court of Appeals described Mr. Abbott's right to take part in making this decision as a mere "veto," 542 F.3d, at 1087; but even by that truncated description, the father had an essential role in deciding the boy's country of residence. For example, Mr. Abbott could condition his consent to a change in country on A.J. A.'s moving to a city outside Chile where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued contact with the boy.
Justice Kennedy indicated that it was "is beside the point" whether a ne exeat right does not fit within traditional notions of physical custody The Convention defines "rights of custody," and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition. The Court of Appeals' conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. Any suggestion that a ne exeat right is a "righ[t] of access" is illogical and atextual.
Ms. Abbott contended that the Chilean court's ne exeat order contained no parental consent provision and so awarded the father no rights, custodial or otherwise). Justice Kennedy responded that even a ne exeat order issued to protect a court's jurisdiction pending issuance of further decrees is consistent with allowing a parent to object to the child's removal from the country. The Court did not decide the status of ne exeat orders lacking parental consent provisions, however; for here the father relied on his rights under Minors Law 16,618. Mr. Abbott's rights derived not from the order but from Minors Law 16,618. That law requires the father's consent before the mother can remove the boy from Chile, subject only to the equitable power family courts retain to override any joint custodial arrangements in times of disagreement. Minors Law 16,618; The consent provision in Minors Law 16,618 confers upon the father the joint right to determine his child's country of residence. This is a right of custody under the Convention.
Justice Kennedy noted that the "Perez-Vera Report", was cited by the parties and by Courts of Appeals that have considered this issue. (See 1980 Conference de La Haye de droit international prive, Enl & egrave; vement d'enfants, E. Perez-Vera, Explanatory Report (Perez-Vera Report or Report), in 3 Actes et Documents de la Quatorzi & egrave;me session, pp. 425- 473 (1982). Justice Kennedy stated that the Court need not decide whether this Report should be given greater weight than a scholarly commentary. He pointed out that the Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10503-10506 (1986) identifying the Report as the "official history" of the Convention and "a source of background on the meaning of the provisions of the Convention", indicates that the Report had not been approved by the Conference, and it is possible that, despite the Rapporter's [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective".
Justice Kennedy pointed out that while a parent possessing a ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies. One exception states return of the child is not required when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Art. 13(b). If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at grave risk, the court could consider whether this is sufficient to show that the child too would suffer "psychological harm" or be placed "in an intolerable situation." The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient "age and degree of maturity at which it is appropriate to take account of its views." Art. 13(b). The proper interpretation and application of these and other exceptions are not before the Court. It stated that these matters may be addressed on remand. The judgment of the Court of Appeals was reversed, and the case was remanded for further proceedings consistent with the opinion. Chief Judge Roberts and Justices Scalia, Ginsburg, Alito, and Sotomayor joined. Justice Stevens, with whom Justice Thomas and Justice Breyer joined, dissented in a separate opinion.
"Patria potestas" has been explained as follows: "The authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated. 42 Black's Law Dictionary (8th Edition 2004).
In Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000), the First Circuit held that a father had "rights of custody" under Mexican law, which was the law of the child's habitual residence at time of her removal, as the doctrine of patria potestas gave the father custodial rights greater than mere visitation rights, notwithstanding the Mexican court's rejection of the father's petition to terminate the mother's parental rights. The court held that the Affidavit of a Mexican attorney indicating that both parents exercise patria potestas rights under Mexican law and stating that both parents must consent to the removal of the child under Mexican law was an acceptable form of proof in determining issues of foreign law, and was permitted under the Hague Convention.
In Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007), the Hanleys were the Irish maternal grandparents of Roy's children. Their daughter, Margaret, married Roy, a United States citizen, in England in 1986, and the two resided in England together. In 1997, shortly after the couple's separation and the birth of their third child, Margaret was diagnosed with cancer and wanted to return to Ireland.
The Hanleys bought Margaret and the children a house in Ireland, and Roy eventually rejoined the family there. In March 2000, Margaret executed a will designating the Hanleys as trustees of her estate and testamentary guardians of the children. After she died, Roy and the children continued to live with the Hanleys until July 29, 2005, when Roy suddenly moved the children from Ireland to Florida without the Hanleys' knowledge or consent, leaving only a note behind. The Eleventh Circuit held that the substantive rights the Hanleys enjoyed as testamentary guardians under Irish law were sufficient to create "rights of custody" under the Convention.
Exercising Rights of Custody
The Circuits appear to be in agreement as to when a parent is "exercising' rights of custody.
In Friedrich v. Friedrich (II), 78 F3d 1060 (6th Cir. 1996), the Sixth Circuit held that a person having 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. Once a court determines that the parent exercised custody rights in any manner, the court should stop it's inquiry into the exercise of custody rights, completely avoiding whether the parent exercised those rights well or badly. The rule enunciated by the Sixth Circuit in Friedrich was adopted in by the Second Circuit in Croll.
In Sealed Appellant v Sealed, 394 F3d 338 (5th Cir. 2005), the Fifth Circuit adopted the reasoning from Friedrich II and held that in the absence of a ruling from a court in the child's country of habitual residence, when a parent has custody rights under the laws of that country, even occasional contact with the child constitutes "exercise" of those rights. To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child.
Similarly, in Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007), the Fourth Circuit held that it will liberally find "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. See also Baxter v. Baxter, 423 F3d 363 (3d Cir. 2005). The Bader court pointed out in a footnote that this approach will not apply when the country of habitual residence, by law, expressly defines the exercise of custody rights for purposes of the Hague Convention. Similarly, when a competent judicial tribunal in the country of habitual residence has made a determination as to whether a parent was exercising his custody rights, that determination will normally be conclusive.
Defenses
The Hague Convention establishes four defenses to the return of a child who has been wrongly taken from its habitual residence: 1) The proceeding is commenced in the responding state more than one year after the wrongful removal or retention, and "the child is now settled in its new environment" (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm "or otherwise place the child in an intolerable situation"(Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
A respondent who opposes the return of the child has the burden of establishing by clear and convincing evidence that one of the exceptions set forth in articles 13b or 20 of the Convention applies, and, by a preponderance of the evidence, that any other exception set forth in article 12 or 13 of the Convention applies. 42 U.S.C. 11603(e). Importantly, a finding that one or more of the exceptions provided by Articles 13 and 20 are applicable does not make refusal of a return order mandatory. The courts retain the discretion to order the child returned even if they consider that one or more of the exceptions applies (Article 18).
Article 12: One-Year Limitations Defense
Where a child has been "wrongfully removed" or "wrongfully retained" in terms of Article 3 of the Convention, and, at the date of commencement of the judicial proceedings in the contracting state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned must order the return of the child. Even where the proceedings have been commenced after the expiration of the period of one year, the return of the child must be ordered, unless it is demonstrated that the child is now settled in its new environment.
The International Child Abduction Remedies Act defines the term "commencement of proceedings" as the commencement of a civil action by the filing of a petition in any court which has jurisdiction and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 42 U.S.C.A. s11602(f)(3). However, it does not define when a removal or retention becomes unlawful, and that is a question of fact for the court to determine.
The doctrine of equitable tolling has been applied to this defense even though it is not mentioned in the Hague Convention or ICA. In Furnes v. Reeves, 362 F.3d 702 (11th Cir., 2004) the Eleventh Circuit rejected an assertion that plaintiff's petition was not timely filed because it was filed more than a year following the child's removal from Norway. The district court had concluded that the limitation period was equitably tolled until the plaintiff located the child, and determined that the petition was filed within one year of such location.
Article 20: Human Rights Defense
The return obligation of Article 12 is limited by Article 20, which states:
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."
The language of Article 20 has no known precedent in other international agreements to serve as a guide in its interpretation. This exception, like the others, was intended to be restrictively interpreted and applied, and is not to be used, for example, as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.
Article 13(a): The Consent or Acquiescence Defense
Under Article 13(a), the judicial authority may deny an application for the return of a child if the person having the care of the child was not actually exercising the custody rights at the time of the removal or retention, or had consented to or acquiesced in the removal or retention. This exception derives from Article 3(b), which makes the Convention applicable to the breach of custody rights that were actually exercised at the time of the removal or retention, or which would have been exercised but for the removal or retention.
The person opposing return has the burden of proving that custody rights were not actually exercised at the time of the removal or retention, or that the applicant had consented to or acquiesced in the removal or retention. The applicant seeking return need only allege that he or she was actually exercising custody rights conferred by the law of the country in which the child was habitually resident immediately before the removal or retention. The statement would normally include a recitation of the circumstances under which physical custody had been exercised, i.e., whether by the holder of these rights, or by a third person on behalf of the actual holder of the custody rights. The applicant should append copies of any relevant legal documents or court orders to the return application. Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494-01, 1986 WL 133056 (F.R.).
The consent and acquiescence inquiries are similar in their focus on the petitioner's subjective intent. 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. Acquiescence inquiry turns on the subjective intent of the parent who is claimed to have acquiesced.Wanninger v. Wanninger, 850 F.Supp. 78 (D. Mass, 1994). The defense of consent need not be expressed with the same degree of formality as acquiescence in order to prove the defense under article 13(a). See, e.g., In re Kim, 404 F. Supp. 2d 495 (SDNY 2005) (to establish consent defense, party must establish by a preponderance of the evidence that other parent had the subjective intent to permit removal of the child for an indefinite or permanent time period). The Third Circuit explained this difference between acquiescence and consent in Baxter v. Baxter, 423 F3d 363 (3d Cir. 2005), where it held that Article 13(a) does not provide that if a parent consents to removal of the child for a period, under certain conditions or circumstances, retention of the child beyond those conditions or circumstances is necessarily permissible. Often, the petitioner grants some measure of consent, such as permission to travel, in an informal manner before the parties become involved in a custody dispute. The fact that a petitioner initially allows children to travel, and knows their location and how to contact them, does not necessarily constitute consent to removal or retention under the Convention.
Article 13(b): The 'Grave Risk of Harm' Defense
In accordance with Article 13(b), a child will not be ordered returned where there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. This provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests.
The person opposing the child's return must show that the risk to the child is grave, not merely serious. The definition of an "intolerable situation" was also not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition.
This is another area that has been the subject of extensive litigation under the Hague Convention, as courts have struggled to define situations that constitute a "grave risk of harm. In Friedrich v. Friedrich, 78 F3d 1060 (6th Cir. 1996), the Sixth Circuit stated that it believed that a "grave risk of harm" for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute -- e.g., by returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.
In Blondin v. Dubois, 189 F3d 240 (2d Cir. 1999), the Second Circuit discussed and explained the factors which may be considered in the grave risk of harm defense. The District Court in that case had found that in the years that he lived with the respondent mother in France, petitioner Blondin repeatedly beat her and one of the couple's two children, forcing the mother to move with the children to shelters. After they reconciled and respondent and the children moved back into the petitioner's home, the beatings resumed. Thus, the respondent felt compelled to move with the children to the United States. Blondin petitioned for their return. The Second Circuit determined the evidence supported the District Court's factual determination that there was a grave risk of harm, but remanded the case for further consideration of a range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody determination by a French court with proper jurisdiction. It raised the question whether the District Court could have protected the children from the "grave risk" of harm that it found, while still honoring the important treaty commitment to allow custodial determinations to be made if at all possible by the court of the child's home country.
On remand, the District Court found that if the mother and children returned to France, they would be eligible for social services and free legal assistance. The petitioning father had also agreed to help them financially and to stay away from the mother and children until custody rights were adjudicated. However, the court also found that these arrangements would not mitigate the grave risk of psychological harm to the children that a return to France would entail. The court, which denied repatriation, based its determination on uncontested expert testimony that the children would suffer from post-traumatic stress disorder upon return to France and on the wishes of the child who had been physically abused by her father to remain in the United States. The decision was upheld on appeal.
In Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003), cert. denied, 124 S.Ct. 1062, (U.S. 2004), the district court found that even if the children's habitual residence was in Israel, they need not be returned to Israel because they would face a grave risk of physical harm there due to the belief that the general violent situation in Israel made it a zone of war, and thus dangerous to children.
The Eighth Circuit reversed, finding fatal the district court's failure to cite any evidence that the children were in any more specific danger living in Israel than they were in when their mother voluntarily moved them there in 1999.
In March v. Levine, 136 FSupp2d 831 (M.D. Tenn. 2000), aff'd, 249 F3d 462 (6th Cir. 2001), cert. denied, 534 US 1080 (2002), the Sixth Circuit held that in evaluating whether there is grave risk of harm to the child, the court is not to make a determination of the child's best interest. The maternal grandparents' allegation that the father had killed the mother was insufficient to establish a grave risk that return of the children to their father in Mexico would expose them to harm despite outstanding criminal complaints against the father in Mexico, absent evidence that the father had ever abused the children.
In Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), the husband, who had earlier absconded to his native Ireland after being charged with criminal offenses in the United States, petitioned for return of the children after they were taken to United States by his estranged wife. The District Court granted the petition. The First Circuit reversed, holding that the wife, who had wrongfully brought the children to United States from their habitual residence in Ireland, showed by clear and convincing evidence that the children faced a grave risk of exposure to physical or psychological harm if they were returned to her husband in Ireland.
The husband had a long history of spousal abuse, of fights with others, and had shown a chronic disobedience of court orders in both the United States and Ireland. Because there was every reason to believe that he would violate any Irish court order made to protect the children, return to Ireland was not required.
The case law reflects that even when confronted with a grave risk of physical harm, certain courts have allowed the return of a child to the country of habitual residence, provided sufficient protection was afforded. See cases cited in Walsh v Walsh, 221 F3d at 204, 221 (1st Cir. 2002). That protection may take the form of "undertakings," or enforceable conditions of return that may be ordered to mitigate the risk of harm occasioned by the child's repatriation. See Feder v. Evans-Feder, 63 F3d 217, 226 (3rd Cir.1995). The concept of "undertakings" is based neither in the Convention nor in the implementing legislation of any nation; rather it is a judicially created concept, developed in the context of British family law. See P.R. Beaumont & P.E. McEleavy, The Hague Convention on International Child Abduction 156-59 & n. 183 (1999).
Undertakings may include such conditions as, for example, ordering the child's return to his country of habitual residence, subject to placement of the child in the temporary custody of a third party (e.g., foster care) in that country until the home country's courts sort out permanent custody issues. However, courts are reluctant to order undertakings because such action may involve the court in adjudicating the merits of the underlying custody dispute. Undertakings are primarily to be used to return the parties to the status quo that existed before the unlawful taking or retention of the child took place, but return to the status quo when a child was previously in an abusive situation is, obviously, not desirable.
Article 13: The 'Wishes of the Child' Defense
Article 13 permits a court to refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
The application of this exception is not mandatory. This discretionary aspect of Article 13 is especially important because there is a real potential for the brainwashing of the child by the alleged abductor. A child's objection to being returned may be accorded little if any weight if the court believes that the child's preference is the product of the abductor parent's undue influence over the child.
When is a child sufficiently mature to offer a valid opinion as to his preferences? The numbers vary, and there is no cut-off. Rather, the totality of the circumstances should be taken into consideration. In Raijmakers-Eghaghe v. Haro, 131 F.Supp.2d 953 (E. D. Mich. 2001), the court held that it was not precluded, as a matter of law, from taking into account the views of an eight-year-old child under the maturity exception of the International Child Abduction Remedies Act, as the Convention contained no age limit for applying this exception. However, in Yang v. Tsui, 2006 WL 2466095 (W.D.Pa., 2006), the court found that although the unlawfully detained child wished to stay in the United States and not return to Canada, that desire was the product of the passage of time during the litigation, and giving in to that desire would eviscerate the purpose of the Convention.
When relying on this defense to the return of the child, courts are required by the final paragraph of Article 13 to take into account information relating to the child's social background provided by the Central Authority or other competent authority in the child's State of habitual residence. This provision has the dual purpose of ensuring that the court has a balanced record upon which to determine whether the child is to be returned, and preventing the abductor from obtaining an unfair advantage through his or her own forum selection and the resulting ready access to evidence of the child's living conditions in that forum. Hague International Child Abduction Convention; Text and, 51 Fed.Reg. 10, 494.
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