Luedtke v Luedtke Thomsen, 2012 WL 2562405 (S.D.Ind.) [Switzerland] [Habitual Residence]

      In Luedtke v Luedtke Thomsen,  2012 WL 2562405 (S.D.Ind.) Petitioner Nathan Luedtke's filed a Petition for Return of his two children to Switzerland.  Nathan Luedtke and Respondent Heidi Luedtke-Thomsen were married in 2006. Nathan, who was born in Naperville, Illinois, met Heidi, who was born in California, in California, and the couple lived together there while Nathan was a graduate student at the University of California, San Diego. The couple then moved to New Haven, Connecticut, where Nathan completed a two year post-doctoral fellowship. For the past six years the couple lived in Switzerland, where Nathan worked as a professor of organic chemistry at the University of Zurich. Heidi was the primary caretaker of the couple's two children-a four-and-a-half year-old girl and a fifteen month-old boy-both of whom were born in Switzerland.

         On March 26, 2012, Nathan arrived at the couple's apartment to find his wife
and children absent without any indication of their whereabouts. He soon discovered that the family's legal documents, including passports and birth certificates, were missing, as were the children's toys. Nathan discovered email messages containing receipts for airline tickets to San Francisco, where Heidi's brother lived. Nathan contacted Heidi's brother in San Francisco and asked him to meet her at the airport and help her care for the children.
Nathan was eventually able to make contact by email with Heidi, although she was unwilling to talk to him on the phone. During these conversations, Nathan learned that Heidi was concerned that he had developed a brain tumor and Heidi feared that violence would befall the children and herself at Nathan's hands. However, Nathan never threatened Heidi or the children, nor had there ever been any domestic violence in the family. Nathan's general practitioner never recommended that he be psychologically evaluated, nor had Nathan ever experienced an episode that he would characterize as "manic," "bipolar," or "clinically depressed."

        On April 7, Nathan arrived at Heidi's mother's house in the United States while Heidi was en route to her mother's house. Nathan then met with Heidi on April 9 and asked her to return the children to Switzerland, but Heidi indicated that she was not willing to do so. During the conversation, Nathan observed that Heidi, who appeared to have lost about twenty pounds, looked off into the distance and would then return to the conversation with "new ideas."    Nathan and Heidi met with a doctor at the University of California-Irvine on April 11. The doctor suggested that Heidi may be suffering from an unknown psychological problem and recommended that Heidi be admitted for a 72-hour inpatient evaluation. Following an incident outside the doctor's office, Nathan returned to Heidi's mother's home and, with Heidi's mother's approval, took the children to his brother's home in Carmel, Indiana, where the children still were.  The children  communicated daily with their mother by video chat, and Nathan  received approximately ten text messages and five emails per day from Heidi.

          After relocating the children to Indiana, Nathan traveled to Switzerland, where
he filed for legal separation and also filed a Hague petition with the Central Authority. While in Switzerland, Nathan underwent an MRI according to his agreement with Heidi that they both would seek medical evaluation. The MRI results were normal. Nathan has since returned to the United States, where he rented an apartment for himself and his two children while waiting for this matter to be resolved.
  
         The District Court observed that a petitioner seeking return of children must show by a preponderance of the evidence that (1) a child under sixteen years of age was (2) wrongfully removed (3) from his or her habitual residence. There can be no dispute as to the first element of Nathan's case: the Luedtke children are well under the age of sixteen. Because whether the removal is wrongful depends on the habitual residence of the child, the Court turns to analysis of that element next. It noted that   Courts should interpret "habitual residence" according to the "ordinary and natural meaning of the two words it contains, as a question of fact to be decided by reference to all the circumstances of any particular case." Koch, 450 F.3d at 712 (describing the habitual residence test articulated in Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001), and adopting its approach). With respect to young children, the intent of the child's parents rather than the intent of the child is most useful in determining the child's habitual residence. Koch, 450 F.3d at 713. In determining the parents' intent, the court considers whether the parents' primary "residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." In doing so, the court may consider actions as
well as declarations.

         Here, the evidence clearly established that the Luedtkes intended to abandon
the United States and make Switzerland their habitual residence. As a preliminary
point, the record revealed that the Luedtke family had lived in Switzerland for the
past six years. While sheer length of stay is not dispositive, other evidence indicated that the Luedtkes had abandoned residence in the United States and established residence in Switzerland. Nathan was recently awarded tenure status as a professor of organic chemistry at the University of Zurich. Because Heidi did not testify at the hearing, it was more difficult to discern her intent. However, the Court found that her decision to seek a larger flat, which required committing to a one-year lease, to accommodate the Luedtkes' growing family spoke to her intent to make her home in Switzerland. For these reasons, the Court concluded that the Luedtkes abandoned any residence they had in the United States and, at the time Heidi brought the children to the United States, their habitual residence was Switzerland.

          The District Court found that  the removal of the children from Switzerland was wrongful. Pursuant to Article 297, paragraph 1 of the Swiss Civil Code, parents exercise custody jointly during marriage. Furthermore, pursuant to paragraph two of the same Article, if the parents cease living together or they are separated, the court may award
parental custody to one spouse. There was no evidence to suggest that, at the time
Heidi removed the children from Switzerland, any court order existed as to custody
of the Luedtke children. For this reason, the Court concluded that Nathan and Heidi had joint parental custody under Swiss law at the time the children were removed. Thus, when Heidi took the children to another country, she effectively precluded Nathan from caring for the children or having any say in where the children would reside. The removal of the children from Switzerland  breached Nathan's custody rights and constitutes wrongful removal. The Court had little trouble concluding that Nathan was actually exercising his custody rights, given his testimony that he participated in caring for the children on evenings and weekends.

       Heidi argued that the children should not be returned to Switzerland because
doing so posed a grave risk of psychological harm to the children.    While Heidi argued that Nathan posed a risk of harm to the children, she offered little evidence supporting her allegations. The only evidence Heidi pointed was the fact that the Swiss Court where the petition for separation was pending  requested psychological evaluations of both parents. But this "evidence" shed little light, if any, on whether Nathan posed a risk of grave harm to the children; especially given that, in the meantime, the Swiss Court has ordered that custody remains with both parties. As such, Heidi fell far short of stablishing a risk of harm by clear and convincing evidence.  Nathan Luedtke's Petition for Return of Children was granted.

Font Paulus ex rel. P.F.V. v. Vittini Cordero, 2012 WL 2524772 (M.D.Pa.) [Dominican Republic] [Well Settled in New Environment] [Wishes of the Child]

      In Font Paulus ex rel. P.F.V. v. Vittini Cordero, 2012 WL 2524772 (M.D.Pa.) Alberto Eugenio Font filed a Verified Petition for Return in which he alleged that  P.F.V.'s mother, Respondent Ana Virginia Vittini Cordero, wrongfully retained P.F.V. in the United States without his permission. He sought the return of his child P.F.V. to the Dominican Republic where the Petitioner and his daughter were citizens.

       The Court observed that it must first determine when an alleged wrongful removal or retention occurred so that it could establish the relevant date of the child's habitual residence. ( Karkkainen, 445 F.3d at 290). Wrongful removal refers to the
noncustodial parent's physical taking of the child out of the country. Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir.2005). Thus, a noncustodial parent may remove a child from the country with permission, but then wrongfully retain the child outside the country. The assertion in this matter was not that P.F.V. was wrongfully removed to the United States, but that she was unlawfully retained here by her mother.

       The Court observed that in determining the date of a wrongful retention, the Third Circuit Court of Appeals  held that it "does not begin until the noncustodial parent...clearly communicates her desire to regain custody and asserts her parental right to have [her child] live with her." Karkkainen, 445 F.3d at 290.  Here, it appeared that the wrongful retention occurred on July 8, 2010. Mr. Font Paulus signed an agreement limiting the period in which his former spouse could keep his daughter outside of her home country. That agreement specifically stated that she would be "returning to [Santo Domingo] on July 8, 2010." Therefore, the wrongful retention occurred when Ms. Vittini Cordero did not return P.F.V. to the Dominican Republic on that date: July 8, 2010.

      It was necessary to determine "the State in which the child was habitually resident immediately before the removal or retention. "Convention Art. 3a. The Court noted that the  Third Circuit Court of Appeals has defined a child's habitual residence as "the place where he or she has been physically present for an amount of time sufficient or acclimatization and which has a 'degree of settled purpose' from the child's perspective." Baxter, 423 F.3d at 368. The inquiry focuses 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." "When a child is too young to have an intent regarding her habitual residence, the touchstone inquiry is 'shared parental intent.' "  In re Application of Adan, 437 F.3d 381, 392 (3d Cir.2006) The focus is the "degree of settled purpose."  It is not necessary that the person intends to stay in a place indefinitely. 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.  Where the parents have stipulated to the child's residence in a written agreement, their shared intent need not be inferred from their actions.     Mr. Font Paulus  successfully demonstrated that P.F.V.'s habitual residence at the time of the wrongful retention was in the Dominican Republic. P.F.V. was born in the Dominican Republic and there was no evidence presented that,  prior to her departure in June of 2010,  she had ever been to another country. She had lived in the Dominican Republic for ten years, meaning she was acclimatized and settled there. While there was evidence presented indicating that P.F.V.'s parents perhaps did not envision P.F.V. remaining forever in the Dominican Republic, including Mr. Font Paulus's consent to P.F.V. obtaining United States citizenship, this was immaterial to the termination. Mr. Font Paulus testified credibly that he believed permanent residency status would be used for P.F.V. to travel to the United States for vacations only, and that P.F.V. would ultimately decide her residence upon turning eighteen. Moreover, as to the particular trip at issue, the power of attorney / authorization to travel explicitly provided for P.F.V.'s return to the Dominican Republic after just one month. Mr. Font Paulus testified that he had rejected attempts at longer periods and that it was his expectation and intention that P.F.V. would return to her school in the Dominican Republic in the fall. Together, this indicated that P .F.V. was a habitual resident of the Dominican Republic at the time she was retained in the United States.

        The third inquiry considered whether there had been a breach of the Petitioner's rights of custody.   The testimony presented at the hearing established that Ms. Vittini Cordero left P.F.V. with Mr. Font Paulus from 2003 until December of 2009. During this period, on June 6, 2005, the two parties signed a divorce agreement stating "that they have agreed by means of the present act to transfer the mother Ana Virginia the watch and tutelage of the girl [P.F.V.]."  Conversely, in a May 11, 2009 agreement, the parties acknowledged that the Father had exercised de facto custody of P.F.V. for the preceding seven years.   From the testimony before the Court, it appeared that the de facto custody arrangement would have continued except that Ms. Vittini Cordero took possession of the child in December of 2009 and would not return her to Mr. Font Paulus. This caused Mr. Font Paulus to file a petition for custody on April 5, 2010, which was denied on October 13, 2010 as it was "physically impossible" for that court to secure the girl's testimony.

       This general arrangement was in accordance with the Court of Appeals for Children and Adolescents of the National District of the Dominican Republic which determined that, when affirming the denial of Ms. Vittini Cordero's request for unilateral authorization to take P.F.V. out of the Dominican Republic, while the divorce settlement agreement gave Ms. Vittini Cordero custody of her daughter, that Mr. Font Paulus had been exercising de facto custody.  Like the lower court, the appellate court held that "it is not appropriate to grant permission to depart until the custody of the minor and the place where she is to reside (abroad or in the Dominican Republic) is definitively decided upon."

             However, by the time of that decision, June 28, 2010, P.F.V. was already in the
United States with her mother by operation of the power of attorney / authorization to travel. This authorization was necessary as the Court for Children and Adolescent of the National District of the Dominican Republic denied Ms. Vittini Cordero's petition requesting authorization for P.F.V. to travel. This would have been necessary as the
Dominican Code for the Protection of Children and Adolescents, Act No. I4-94,
Article 116 provides that "No child or adolescent may travel outside the country
unless accompanied by a parent or guardian."Pertinent to this matter, Article 117
elaborates on this by establishing that a court is responsible for granting such
permission "in the event of disagreement about it between their parents or legal
representatives."

      This restriction conferred a ne exeat right on the Petitioner over his child. Such is "[a]n equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction . And, such a right will be found where a parent has a right to consent before the other parent removes the child from the jurisdiction. The Supreme Court has held that ne exeat rights are sufficient to support right of custody under the convention.    In this case, having failed to secure a proper court order, Ms. Vittini Cordero's authority to take P.F.V. outside of the country was predicated on the power of attorney, which expired on July 8, 2010. Therefore, it was unnecessary to analyze the complexities of the de facto custody arrangement between the parties as it was clear that as of July 8, 2010, Ms. Vittini Cordero was retaining P.F.V. in the United States in violation of Mr. Font Paulus's ne exeat rights. Such a right triggered "the Convention's protection of a parent's custodial"right to determine the child's place of residence."

         The Respondent presented evidence that from the end of December 2009 to the
departure on June 8, 2010, some six months, P.F.V. lived with her at the home of
Respondent's mother. Moreover, the evidence was that Petitioner was not permitted
to see P.F.V. and saw her only when he went to her school. Respondent contended
that during this period she was exercising custody rights conferred by the divorce
settlement. Without analyzing whether these rights were abandoned by Respondent's
absence for two years, it sufficed to say that this six-month period did not
overcome the ne exeat rights of Petitioner, assuming arguendo he did not have de
facto custody during this period. Therefore, Mr. Font Paulus was exercising his custody rights at the time of the wrongful retention and he  established a wrongful
detention.

        The Court noted that the well-settled exception only applies where the proceedings have been commenced after the period of one year from the date of the wrongful retention. The wrongful detention in this case began on July 8, 2010. As these proceedings were initiated on May 24, 2012, they were commenced more than one year from the date of the wrongful retention.    In determining whether a child is so well-settled, Courts review a list of factors. Within this Circuit, district courts had considered:  (1) the age of the child; (2) the stability of the child's new residence; (3)  whether the child attends school or daycare consistently; (4) whether the child  attends church regularly; (5) the stability of the [parent's] employment or
 other means of support; (6) whether the child has friends and relatives in the  area; ... (7) to what extent the child has maintained ties to the country of  habitual residence ... [8] the level of parental involvement in the child's  life[;][9] active measures to conceal [the] child's whereabouts (and the  possibility of criminal prosecution related thereto) [;] and [10] the  immigration status of the child and respondent.

      The court noted that the most important factor in the analysis will usually be "the length and stability of the child's residence in the new environment." In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir.2009).   Most pertinent to the instant case, however, was the recognition in element nine (9) above that concealment is a relevant factor in the analysis. Though the Third Circuit has not addressed the issue, the Ninth and Eleventh Circuits have applied the doctrine of equitable tolling to the Convention. See  Duarte v. Bardales, 526 F.3d 563, 569 (9th Cir.2008);  Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.2004) . Under this rule, "equitable principles may be applied to toll the one-year period when circumstances suggest that the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return." Duarte, 526 F.3d at 570. The Eleventh Circuit noted that federal limitations periods are customarily subject to equitable tolling, Furnes, 362 F.3d at 423, and the Ninth Circuit reasoned that "awarding an abducting parent an affirmative defense if that parent hides the child from the parent seeking return would not only encourage child abductions, but also encourage hiding the child from the parent seeking return."The U.S. State Department similarly stated in its public notice on the Convention that "[i]f the alleged wrongdoer concealed the child's whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.”
        The Court held that based on the credible testimony of Mr. Font Paulus, equitable tolling was properly applied to this matter.  Mr. Font Paulus testified that after July 8, 2010, he had contact with his daughter once on August 1, 2010 when she called him and did not leave a telephone number or the address at which she was staying. Following that date, Mr. Font Paulus was unable to ascertain her whereabouts until December of 2011 when he developed a belief that P .F.V. could be in Pennsylvania based on a birthday phone call received by Mr. Font Paulus's mother on December 31, 2010. Conversely, Ms. Vittini Cordero testified that she informed her ex-husband as to their move to Pennsylvania and that Facebook  somehow provided the specific addresses, but this testimony was confusing, uncorroborated, and lacking in credibility. The Court declined to credit P.F.V.'s specific statements that she had kept her father updated on the addresses since it did not  find it particularly credible due to the child's lack of maturity and her mother's influence. Instead, it found that even through the exercise of appropriate diligence that Mr. Font Paulus could not determine the location of his daughter from July 8, 2010 until December 31, 2010. Therefore, the one-year period for the application of the well-settled defense was tolled until December 31, 2010, and since the application was filed on May 24, 2012, this defense could not apply on its face.

           However, the court held that even if the period were not tolled, the defense would be inapplicable since the facts did  not suggest a stable residence in the United States. While there was very little evidence proffered at the hearing suggesting that P.F.V. was well-settled in the United States, there was significant testimony that her stay here had actually been rather chaotic. There was no affirmative evidence suggesting stability in the child's new residence, any consistency in the child's religious activities, whether the mother was employed or providing support, or whether there were any useful support structures which could assist the child and her mother within the United States. Instead, the testimony reflected a series of moves within New York City and within Pennsylvania, a disastrous fire which apparently destroyed all of P.F.V.'s possessions and killed her neighbors, and a subsequent period in which Ms. Vittini Cordero was so pressed to secure housing that she was unable to even contact friends or family members. The only fact which suggested that P.F.V. was well-settled was her uncorroborated statement that she had attended Trinity Academy since 2010. Even taken as true, this singular fact did not render her well-settled within the Untied States.    Therefore, since the exception did not apply based on tolling, and since there were inadequate facts to support its application, it was  not be applied to this case.

         The Court found that the “wishes of the child” defense failed for the same reason, that any attachment P.F.V. has developed to the United States had largely been the product of the time she was wrongfully retained here and was not derived from the period in which Mr. Font Paulus permitted her to be here on vacation.  P.F.V. did not express any strong attachment to the United States. Although P.F.V. testified that she did prefer life in the United States, this preference was largely based on that she had more friends and things here, and that she was getting better grades in her classes. This could hardly be characterized as a strong attachment. Even more fundamentally, the Convention looks to whether the child objects to being returned, and P.F.V. candidly explained that she would not object returning to the Dominican Republic where she also liked school and had friends. Therefore, since the child did not object to returning, this exception was denied.

Reyes v Jeffcoat, 2012 WL 2428587 (D.S.C.) [Venezuela] [Habitual Residence] [Video Testimony]

In Reyes v Jeffcoat, 2012 WL 2428587 (D.S.C.) the Petitioner, Maritza Meszaros Reyes and the Respondent, Harry Lee Langford Jeffcoat were married and had three children, one of whom was over the age of 16. On January 21, 2012, Petitioner commenced a suit by filing a Verified Petition for Return of Child to Petitioner and for Issuance of a Show Cause Order. Petitioner and Respondent filed divorce proceedings in Venezuela and in the United States, respectively. Both proceedings were stayed while this court decided the issues. Over the course of the trial, the court heard testimony from live witnesses who came from both the United States and Venezuela, witnesses by video conference from Venezuela. The court took in camera testimony from all three children.

The Court found that Petitioner and Respondent were married in Venezuela in 1993. They had three children-an oldest son, born in 1994; a daughter, born in 1996; and a youngest son, born in 2000. All three children had dual citizenship. Petitioner was a citizen of Venezuela. Since 2003, she held a United States Permanent Resident Card (also known as a green card), which she used each time she entered the United States. Respondent was a citizen of the United States. Between 1992 and 2003, he
possessed a Venezuelan resident visa, allowing him to permanently reside in Venezuela. That visa expired in 2003. He had not been authorized to live or work in Venezuela since 2003. Each time Respondent entered Venezuela since 2003, he entered as a tourist and was prohibited from staying in Venezuela for longer than 90 consecutive days. The family resided in Venezuela from 1993 until 2001. The Respondent was employed in Venezuela from 1993 to 2000. The Petitioner remained continuously employed in Venezuela, except for a two-year period beginning in 2001 when the Respondent took a job in South Carolina and Petitioner took a "leave of absence" from her employment. In 2001, the family moved to South Carolina.

Between 2001 and 2011, all three children spent substantial amounts of time in
both the United States and Venezuela. They participated in various activities, including educational, religious, social, musical, and athletic endeavors while present in each country. Since 2006, the Petitioner owned a large apartment in Caracas, Venezuela, and, since 2008, the Petitioner and the Respondent jointly owned a large house in Lexington, South Carolina. Both properties were capable of being a home for the entire family. Between 2006 and 2008, the father and children resided in Lexington, South Carolina. During this time, the children attended school at Heritage Christian Academy in Lexington, South Carolina. The parties' daughter began attending Heritage in the 2005-2006 school year. Both the daughter and the youngest son attended Heritage for the full 2006-2007 and 2007-2008 school years. Beginning in September 2008 and continuing until September 2011, the father and the children frequently traveled between the United States and Venezuela. The father and children never spent more than 90 consecutive days in Venezuela. The only time that they spent more than 90 consecutive days in the United States was from June 9, 2011 until September 12, 2011, the time period immediately preceding the date on which the mother alleged that the wrongful retention began.

Since 2008, the children were home schooled through the South Carolina

Association of Independent Home Schools. Mostly, the children worked on their studies in Caracas, Venezuela; however, educational activities also took place while the children were present in Lexington, South Carolina. Between September 2008 and September 2011, the children regularly traveled between the United States and Venezuela, using their United States passports when entering and exiting Venezuela and the United States. When they entered Venezuela, the children entered as tourists.

In October 2009, the parties renewed the three children's United States passports. The renewal applications for the United States passports listed the Lexington, South Carolina address as the children's permanent address. In May 2011, the parties renewed the daughter's and the oldest son's Venezuelan passports. The renewal applications for the Venezuelan passports listed the Caracas, Venezuela address as the children's current residence. Since 2008, the children were covered by a United States based health insurance plan through the mother's employer. The children's primary pediatrician and dentist were located in South Carolina. The children had received pediatric and dental care in Venezuela. The children's only orthodontist and eye doctor were located in South Carolina. They never received orthodontic or ophthalmologic care in Venezuela. The children indicated that they considered themselves Americans and wished to remain in the United States.

The Court concluded that because only two of the parties' children were under the age of sixteen, it would only make a determination as to whether those two children were wrongfully retained by the Respondent on or about September 12, 2011. It observed that Federal courts have developed a two-part framework to assist in the habitual residence analysis." Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). Under the two-part framework, courts evaluate the following: (1) shared parental intent-whether the parents shared a settled intention to abandon the former country of residence; and (2) acclimatization-whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment. With regard to shared parental intent, federal courts have cautioned that " 'the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence.' "(quoting Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir.2005)). Federal courts have considered the following factors as evidence of parental intent: parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence. The question of acclimatization " 'is not simply whether the child's life in the new country shows some minimal degree of settled purpose,' but whether the 'child's relative attachments to the countries have changed to the point where ordering the child's return would now be tantamount to taking the child out of the family and social environment in which its life has developed.' " (quoting Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). With regards to the acclimatization of the children, courts have considered the following: school environment; participation in social activities; the length of stay in the relative countries; and the child's age.

The Court found the facts of the case distinguishable from those of other cases were federal courts have explored the habitual residence of children under the Hague Convention. Because this family was a family of considerable means, many of the factors that federal courts consider in determining habitual residence (both those under shared intent and acclimatization) were unhelpful in the analysis of habitual residence in this case. It was clear from the facts presented that the parties' children had full and active lives in the United States and in Venezuela. The parties had very nice homes in both countries, and the facts show that the children spent considerable time in both places throughout their lives.

The following facts supported the mother's argument that as of September 12, 2011, the parties' children were habitually resident in Venezuela: the mother, the sole provider of the family since 2006, was employed as an attorney in Venezuela and is only licensed to practice in Venezuela; between September 2008 and September 2011, the children completed the majority of their homeschool activities while physically located in Venezuela; and * between September 2008 and September 2011, the children's time in the United States was during times traditionally considered holiday/vacation. The following facts supported the father's argument that as of September 12, 2011, the parties' children were habitually resident in the United States:
the children lived and attended school in South Carolina from 2006 to September  2008; the children participated in a South Carolina homeschool curriculum; the father was prohibited from remaining in Venezuela for more than 90 consecutive days; since 2008, the children always entered Venezuela as tourists using their United States passports; and the children's primary pediatrician and dentist were located in South Carolina, and the children's only eye doctor and orthodontist were located in South Carolina.

In balancing all of the facts, this court resolved the issue of habitual residence in favor of the father and found that since approximately 2006, the children's habitual residence had been the United States. Importantly, although the children stayed in Venezuela for an appreciable period of time from September 2008 to September 2011, they continued to travel in and out of Venezuela as tourists using their American passports. Also, their father, who administered their homeschool lessons, entered Venezuela as a tourist and was prohibited from staying in Venezuela for more than 90 days at a time. As such, neither the father nor the children were ever present in Venezuela for 90 consecutive days or more during the three-year period from September 2008 to September 2011. It may have been the mother's intent for her family to move to Venezuela in September 2008; however, the father did not share her intent, and the children's pattern of travel and their activities from September 2008 to September 2011 were not sufficient to establish Venezuela as their new habitual residence. Thus, from September 2008 to September 2011 the habitual residence of the children remained the United States.

Accordingly, the court found that Petitioner had not proven a prima facie case of wrongful retention and denied the petition.

Redmond v Redmond, 2012 WL 2368800 (N.D.Ill.) [Ireland] [Habitual Residence]

In Redmond v Redmond, 2012 WL 2368800 (N.D.Ill.) Derek Redmond filed a petition for the return of his son ("JMR") to Ireland. Ms. Redmond was born in the United States on December 24, 1977. Although a United States citizen, Ms. Redmond testified that she also held citizenship in Ireland, where her father was born. Mr. Redmond was born in Ireland on June 14, 1975. In 1996, at the age of nineteen, Ms. Redmond went to Ireland and attended college. Around this time, she began an intimate relationship with Mr. Redmond. Mr. Redmond and Ms. Redmond never married. Ms. Redmond received her Irish Associates Degree in 1998, and continued to live in Ireland until November 2007. In 2006, the parties, who were living together, conceived a child. They agreed that the child should be born in the United States. On March 28, 2007, JMR was born in Blue Island, Illinois. Mr. Redmond was present for JMR's birth and was listed as the father on JMR's United States birth certificate. On April 8, 2007 the parties returned with JMR to their common residence in Ireland. From his birth until November 2007, JMR lived with both of his parents in Ireland. During this time, Mr. and Ms. Redmond shared the intent that JMR be raised in Ireland. By November 10, 2007, however, the relationship soured and Ms. Redmond "changed her intent as to where she wanted to live and where JMR should be raised. Respondent informed Petitioner personally of her intent to return permanently to the United States on November 10, 2007.". Mr. Redmond has never changed his intent that JMR be raised in Ireland. On
November 10, 2007, Ms. Redmond took JMR to Illinois. Ms. Redmond returned to Ireland with JMR in February 2008 for a period of about two months.

On March 25, 2008, Mr. Redmond filed a petition in the Irish district court seeking  legal guardianship and custody of JMR and the matter was set for hearing on April 17, 2008. At the time he filed the petition, Ms. Redmond and JMR were in Ireland. After learning that they were planning to leave Ireland, Mr. Redmond obtained an ex parte Order preventing them from doing so. Pursuant to that Order, the Irish National Police stopped Ms. Redmond and JMR from departing Ireland on April 8, 2008. Mr. and Ms. Redmond were represented by counsel throughout the Irish proceedings. On April 17, 2008, Ms. Redmond attended the hearing and moved to set aside the April 8 Order. Her motion was denied and she appealed. On April 22, 2008, the appellate court ruled in her favor, setting aside the April 8 Order. The Order noted that Ms. Redmond had agreed to return to Ireland for a future hearing. On April 23, 2008, Ms. Redmond left with JMR for Illinois. On June 25, 2008, the Irish district court ruled that it did not have jurisdiction over Mr. Redmond's application for guardianship and custody because JMR had been removed to the United States. Mr. Redmond appealed and a hearing was set for July 29, 2008. On July 23, 2008, Mr. Redmond obtained an ex parte Order requiring Ms. Redmond to appear with JMR at the July 29 hearing. At the hearing, neither Ms. Redmond nor JMR appeared. The Irish appellate court found that it had jurisdiction to consider Mr. Redmond's application for guardianship and custody. Ms. Redmond subsequently appealed to the Irish High Court. The High Court heard the matter on November 18, 2008, and issued judgment on November 26, 2008, ruling against Ms. Redmond. Ms. Redmond conceded in January 2009 that the Irish courts  had jurisdiction to hear Mr. Redmond's custody application.

In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to permanently relocate with her to the United States. On February 10, 2011, the Irish court, after a hearing, denied Ms. Redmond's application to relocate JMR to the United States and granted Mr. Redmond guardianship and joint custody of JMR. The Order directed Ms. Redmond not to make any application to any court outside the State in respect of JMR; not to remove JMR to a third country"; and "to live within a reasonable distance of Ballymurphy bearing in mind the Court's order that JMR
should attend Ballymurphy National School. The court also directed the parties to "share access to JMR on a 50/50 basis.

In response to the February 10 Order, Ms. Redmond requested leave of court to return to the United States for a short period in order to settle her affairs. The Irish court granted her request on the condition that she promise to: (1) return to Ireland with JMR no later than March 30, 2011; (2) not to apply to another court for custody; (3) terminate her employment in Illinois; (4) move to County Carlow, Ireland, and live within a reasonable distance of Ballymurphy National School; (5) have JMR attend Ballymurphy National School; (6) share custody with Mr. Redmond on an every-other-day basis; and (7) purchase a plane ticket for JMR's return trip to Ireland within seven days of her return to the United States. Ms. Redmond conceded that she made each of these promises under oath, and that she never intended to keep any of them. Ms. Redmond ailed to comply with all of the above sworn promises. Ms. Redmond admitted this at the June 8, 2012 evidentiary hearing.

On February 15, 2011, Ms. Redmond returned with JMR to Illinois. On March 23,  2011, she retained Illinois counsel and filed a petition for award of sole custody in the Circuit Court of Cook County, Illinois. Ms. Redmond did not return with JMR to Ireland on March 30, 2011. On May 10, 2011, the Irish court issued an Order requiring Ms. Redmond to produce JMR on June 30, 2011. The Irish court further declared that the retention of JMR in the United States after March 30, 2011 was wrongful within the meaning of Article 3 of the Convention. When Ms. Redmond failed to personally appear on June 30, the Irish court issued an Order directing that Ms. Redmond be attached and brought before the court to answer for her failure to comply with the promises that she made in February 2011. On July 27, 2011, the Circuit Court of Cook County denied Ms. Redmond's petition for custody, finding that the Irish courts had jurisdiction over the underlying custody issues. At the June 8, 2012 evidentiary hearing, Ms. Redmond testified to learning, that morning, of an outstanding warrant for her arrest in Ireland based on her failure to comply with the custody order.

The District Court observed that the Hague Convention does not define the term habitual residence," but rather regards it as a question of fact. Koch v. Koch. 450 F.3d  703, 712 (7th Cir.2006). The determination of 'habitual residence' is to be based on the everyday meaning of these words rather than on the legal meaning that a particular jurisdiction attaches to them. Avila, 538 F.3d at 583. The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for 'the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time 'immediately before the removal or retention.'" Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir.2010). The Court found that the date of the alleged wrongful retention was March 30, 2011, the date upon which JMR's retention in Illinois first violated Irish law. The Court had to decide whether JMR was a habitual resident of Ireland immediately prior to March 30, 2011 and did not consider the events in JMR's life after March 30, 2011. In determining habitual residence, the Court first examines the shared intent of the parents. Koch, 450 F.3d at 715; see also Gitter v. Gitter, 396 F.3d 124, 133 (2d. Cir.2005) In nearly all of the cases that arise under the Convention ... the parents have come to disagree as to the place of the child's habitual residence. It then becomes the court's task to determine the intentions of the parents as of the last time that their intentions were shared.". This examination is especially relevant in cases involving young children such as JMR. See Koch, 450 F.3d at 713 ("In the case of young children, the court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence.").

The Court noted that Mr. and Ms. Redmond, unmarried, had an intimate relationship for over ten years and maintained a home in Ireland. Ms. Redmond was born in the United States, but at the time of her pregnancy with JMR, had lived in Ireland for a decade. While JMR was also born in the United States, Mr. and Ms. Redmond immediately returned with him to Ireland when he was only eleven-days-old. The parties lived together with JMR in Ireland until November 2007. The quick return with JMR to their home in Ireland after his birth evidences the parents' shared intent that JMR reside in Ireland. Therefore, at least initially, JMR's habitual residence was in Ireland. Since November 2007, the parties have not maintained a shared intent as to the location of JMR's habitual residence. The question before the Court, therefore, was  whether JMR's habitual residence has changed from Ireland to Illinois. There are no bright line rules as to when habitual residence changes. Rather, a flexible application of the law to the unique facts of every case has created a continuum. On one end are cases where "the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move." Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001). On the other end "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." "In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence." The present dispute fell much closer to the latter end.

Ms. Redmond's actions revealed that she was fully aware that JMR's status in Illinois has always been contingent on the Irish custody proceedings. Both Mr. and Ms. Redmond vigorously litigated their cases before the Irish courts. Ms. Redmond was represented throughout the Irish custody proceedings and fully participated in them, frequently traveling with JMR to Ireland for court dates. Ms. Redmond was well aware that Mr. Redmond was seeking guardianship and custody rights of JMR in Ireland. In January 2009, Ms. Redmond filed her own application in the Irish courts for an Order allowing JMR to relocate with her to the United States. Although she may have hoped to move permanently to Illinois, Ms. Redmond also recognized that Ireland would have the ultimate say. For his part, Mr. Redmond never wavered that Ireland is JMR's habitual residence, as he filed for custody and guardianship shortly after Ms. Redmond first left. These circumstances weighed against a finding that JMR's habitual residence changed from Ireland to Illinois. JMR's status in Illinois-as evidenced by the conduct of both parties-has always been "contingent" or "temporary," and has never been "settled." Ms. Redmond acknowledged so much when she met with the Irish community welfare officer on March 12, 2008, when she petitioned the Irish courts to allow JMR to relocate with her to the United States in January 2009, and when she promised the Irish court in February 2011 that she would return with JMR to Ireland by March 30, 2011.

The next question was whether acclimatization should suffice to establish a change in JMR's habitual residence. Courts will often consider a child's habitual residence to be "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder. 63 F.3d 217, 224 (3d. Cir.1995). Under this framework, if JMR had become "acclimatized to the new environment to such a  degree," then he can become "a habitual resident of the new country despite the parents' shared intentions." Koch. 450 F.3d at 714. Ms. Redmond contended that JMR's life in Illinois from November 2007 through March 30, 2011, changed his habitual residence from Ireland to Illinois. Ms. Redmond testified that JMR had a pediatrician and dentist in Illinois and that she placed him in KinderCare from the age of two-and-a-half through three-and-a-half. She further testified that JMR went with her (or her parents) to St. Michael's church, had play dates with his friends, and frequently interacted with his large extended family in Illinois. Ms. Redmond noted that JMR spent approximately ten-and-a-half weeks in Ireland between November 2007 and February 2011, but that these returns were (with the exception of the first) all for court dates.

While these facts, coupled with the passage of nearly three-and-a-half years of very early childhood, suggested that JMR was happy and well-adjusted to his life in Illinois, such a finding was not dispositive of habitual residence in this case. The Ninth Circuit has cautioned that despite the superficial appeal of focusing primarily on the child's contacts in the new country, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Ms. Redmond unilaterally removed JMR from his original habitual residence in Ireland. Shortly thereafter, Mr. Redmond initiated custody proceedings to get JMR back. Indeed, what makes this case unique is Mr. Redmond's vigorous (and thus far successful) pursuit of his custody rights for nearly the entire duration of JMR's life in Illinois. As properly recognized by the Irish courts as well as the Circuit Court of Cook County, this is an Irish custody dispute, the merits of which have been, and should continue to be, adjudicated in Ireland. Ms. Redmond's flight to Illinois-which was only permitted in the first place because she promised under oath to return to Ireland-is

precisely the conduct that the Convention is designed to prevent.

The Court found that JMR's habitual residence was and still is in Ireland.

The Irish courts granted Mr. Redmond joint custody rights on February 10, 2011. While Ms. Redmond was granted leave to settle her affairs in the United States, she was ordered to return to Ireland with JMR by March 30, 2011, in order to share custody of JMR with Mr. Redmond "on a 50/50 basis." While ostensibly settling her affairs, she filed suit in the Circuit Court of Cook County. Ms. Redmond never returned to Ireland with JMR, and thereby breached Mr. Redmond's custody rights under Irish law.

Once a petitioner has established that he or she has custody rights under the laws of the country of habitual residence, courts 'liberally' find the exercise of those custody rights." Mr. Redmond exercised or attempted to exercise his custody rights since March 25, 2008, the date he initiated the Irish custody case. Mr. Redmond continued to actively pursue those rights through the instant petition under the Convention. Through his past and continued legal efforts, Mr. Redmond has established that he would have exercised his custody rights but for JMR's retention in Illinois. Mr. Redmond established, by a preponderance of the evidence, that as of March 30, 2011, JMR was wrongfully retained in Illinois, in violation of the Convention.

Mr. Redmond's petition for the return of JMR to Ireland was granted.

Acosta v Acosta, 2012 WL 2178982 (D.Minn.) [Peru] [Grave Risk of Harm]

In Acosta v Acosta, 2012 WL 2178982 (D.Minn.) Ricardo Acosta ("Ricardo") petitioned for the return of his two minor children M.A.A. and E.T.A. to Peru. Ricardo appeared telephonically from Peru. Ricardo was a citizen and resident of Peru. Anne Acosta the Respondent was citizen of the United States. She resided in Minnesota. Stephen and Susan Campbell were Anne's parents, and the grandparents of M.A.A. and E.T.A. Ricardo and Anne were the parents of two children: M.A.A., born February 6, 2003, and E.T.A., born August 23, 2007. On November 26, 2002, Ricardo and Anne were married in Ramsey County, Minnesota. From November 2002 to July 2006, Anne and Ricardo lived together in the United States in the states of Minnesota and Wisconsin. M.A.A. was born in the United States on February 6, 2003. In July 2006, Anne, Ricardo, and M.A.A. moved to Lima, Peru. On August 23, 2007, E.T.A. was born in Lima, Peru, and resided there with her family. While in Peru, Anne worked as a teacher at el Colegio de Franklin Delano Roosevelt (the "Roosevelt School"). Ricardo was briefly employed there as well, but more recently worked at the Lima airport.

Anne testified that Ricardo was verbally abusive towards her throughout their marriage. She testified that on at least one occasion Ricardo called her a "hippo" in the presence of M.A.A. and a "bitch" in the presence of E.T.A. Anne also testified that, prior to February 2011, Ricardo experienced several outbursts of violence which involved or were witnessed by his children. Specifically, she testified that Ricardo pushed M.A.A. down onto a bed for insubordination. She further testified that in about 2008 or 2009, Ricardo was driving the family car when he was cut off by a taxi. She testified that Ricardo: used the family car to force the taxi to a stop alongside the road's median, exited the car and assaulted the taxi driver, and broke the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel, all observed by M.A.A. and E.T .A., who were passengers in the family car.

In November 2010, Anne told Ricardo she was going to Minnesota for the holidays with M.A.A. and E.T.A. In prior years, Ricardo, Anne, and the children had all visited the United States together for the Christmas-New Year's holiday season. Stephen Campbell offered to purchase Ricardo an air ticket to visit the United States again that year, but Ricardo refused despite Stephen Campbell's urging. Anne had purchased airline tickets paid for by her father for her and the children to leave Peru for the United States on December 23, 2010 and return on February 16, 2011.  After Anne, M.A.A., and E.T.A. left for Minnesota, Ricardo could not reach them by telephone over the holiday period. Anne, Susan Campbell, and Stephen Campbell would not return Ricardo's calls, would offer excuses why the children could not talk, or would not answer the phone.

Sometime in early February 2011, Anne informed Ricardo that she would seek a divorce and that M.A.A. and E.T.A. would not return to Peru on February 16, 2011 as planned. Anne made plans to return to Peru from February 11, 2011 to February 16, 2011 to retrieve her and her children's possessions. On February 11, 2011, Anne, accompanied by her brother Jeffrey Campbell, arrived in Lima. Concerned for their safety, Anne and Jeffrey Campbell asked several people to go with them to the apartment she previously shared with Ricardo. Elizabeth Norton LeBoo, Anne's colleague at the Roosevelt School, and Jacob Johansen, an acquaintance of Anne from a prior master's degree program that was also employed by the Roosevelt School, volunteered to assist. On February 13, 2011, accompanied by Jeffrey Campbell, Leboo, and Johansen, Anne returned to the Acosta apartment. While at the apartment, Anne telephoned Ricardo to tell him she was removing clothing and toys. They each testified Ricardo returned to the apartment, crashing his car into a pole outside. Ricardo then broke a window on the taxi they had taken to the apartment and which was awaiting their return. Jeffrey Campbell and Johansen held the door of the apartment shut as Ricardo tried to enter the apartment. Ricardo kicked the door to pieces and forced his way into the home. Ricardo began throwing items at Anne. Ricardo then grabbed a knife and chased the men while the women hid in a backroom. Ricardo chased Johansen outside where Ricardo cut Johansen's leg with the knife. Ricardo returned to the apartment and eventually forced his way into the backroom where he first battered LeBoo and then Anne. Police arrived and, after passively watching the events for some time, restrained Ricardo.

Ricardo's version of the events was entirely different. He testified that it was Anne and her friends that broke doors in his house and "provoked" him. Ricardo testified that Anne attacked him and then Jeffrey Campbell pushed him down and kicked him. Ricardo testified that he did not hurt or attack Anne or LeBoo. He also testified that they took $15,000.00 from the apartment. The court found that Ricardo's version of the events of February 13, 2011 was not credible. His story was inconsistent and evolved as questioning proceeded. The Court found that the testimony of LeBoo was highly credible and the testimony of Jeffrey Campbell was also highly credible. He testified that after Ricardo arrived at the apartment, Ricardo grabbed a knife from the kitchen counter and chased Johansen outside the apartment. Jeffrey Campbell then went to look for Anne and LeBoo. While looking for Anne and LeBoo, Jeffrey Campbell was corned in a hallway by Ricardo, holding out a knife. Jeffrey Campbell testified that Ricardo looked like "an enraged doppelganger" of his former self. Cornered in the
hallway, with Ricardo waving a large kitchen knife, Jeffrey Campbell begged Ricardo to spare his life. Ultimately, Ricardo did. As a result of the incident, Anne sustained injuries, including cuts to her hand requiring stitches and bruises. In the midst of the melee at the apartment, Ricardo called Susan Campbell's cell phone. In a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister.

After leaving the apartment, Ricardo went to the police station while Anne, Jeffrey Campbell, Johansen, and LeBoo went to the hospital and U.S. Embassy before arriving at the police station. At the police station, Ricardo was accompanied by several of his relatives. LeBoo and Jeffrey Campbell testified that the police did not appear to take their version of the events seriously. Jeffrey Campbell testified that the Lima police would not allow Anne and her supporters to leave the station because of concerns about their identification cards. Jeffrey Campbell testified they were eventually released
when he offered cash to an officer as advised by his Peruvian attorney. Afterwards, a police report was issued that stated Ricardo had seen Anne and "her lover" embracing.

After the incident, Ricardo called Rachel Metcalf Harrington, the principal at the Roosevelt School, and threatened to come to the Roosevelt School and kill Anne with a knife. Harrington, testifying telephonically from Peru, stated Ricardo had appeared in television interviews near school property where he has blamed school officials for his problems with obtaining custody of his children. Harrington and the school staff assess the threat posed by Ricardo as serious and have implemented an emergency protocol should he violate the ban on his presence on school property.

In the weeks after Anne's return from Peru, Ricardo made numerous calls to Stephen Campbell and Susan Campbell. He left threatening voicemails. In one voicemail he states, "I'll kill your kids, because she's [Anne is] taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away." He also spoke over the phone to both Stephen Campbell and Susan Campbell. In one live conversation with Susan Campbell, Ricardo threatened to kill M.A.A., E.T.A., and then himself.

On February 16, 2011, Anne met with officers from the Ramsey County Sheriff's Department, and a warrant was issued for Ricardo's arrest on February 18, 2011.  On March 2, 2011, Ricardo initiated an action for custody of M.A.A. and E.T.A. before a Peruvian court in Lima. On March 10, 2011, Anne filed a Petition for Dissolution of Marriage, in which she sought custody of M.A.A. and E.T.A., in Minnesota state court in Ramsey County. On November 3, 2011, that Petition was dismissed for lack of jurisdiction. In May 2011, Ricardo traveled to Miami, Florida. Upon arrival, Ricardo was arrested. Id. He was eventually extradited to Minnesota. On September 1, 2011, Ricardo pled guilty in Ramsey County, Minnesota to making terroristic threats in violation of Minn .Stat. s 609.713. After his guilty plea, Ricardo returned to Peru to serve his probation. Visitation with M.A.A. and E.T.A. was arranged by use of the video-conferencing software Skype. The Skype visitation, however, stopped after one visit. Ricardo testified that he stopped the visitation because he preferred to explain what was occurring between him and Anne to his children in person.

While living in Peru, M.A.A. was enrolled in school at the Roosevelt School. Teachers at the Roosevelt School noted M.A.A. had behavioral problems. Harrington testified that M .A.A. told teachers he wanted to kill himself and he was referred to therapy. M.A.A. stopped therapy after two or three sessions because Ricardo felt the family could not afford it and because Ricardo felt, based on his own experiences, that therapy was ineffective. Harrington testified that in her nineteen years of experience as an educator, the severity of M.A.A.'s behavior problems stood out as one of the three most exceptional cases out of the thousands of students she has observed. Stephen Campbell testified that after M.A.A. arrived in the United States in December 2010, Stephen Campbell noticed M.A.A. would have violent outbursts, wet his bed at night, and said he wished he were dead. Stephen Campbell further testified that M.A.A. was now in therapy and his demeanor has improved and bed-wetting abated.

Dr. Jeffrey Edleson testified as an expert witness on behalf of Respondents. Dr. Edleson held a Ph.D. from the University of Wisconsin-Madison School of Social Work, and was a tenured professor at the University of Minnesota-Twin Cities School of Social Work. He testified that Ricardo's history of violence in the presence of others, escalation of violence, threats of suicide, and estrangement from his children were factors indicating a high risk of harm to M.A.A. and E.T.A were they to return to Peru. Dr. Edleson further testified that M.A.A.'s antisocial behavior was consistent with
exposure to domestic violence. RTX052-009 (noting a child's exposure to domestic violence correlates with antisocial behavior, anxiety, depression, and temperament problems). Dr. Edleson testified he believed M.A.A. to be exhibiting signs of depression.

At the close of the evidentiary hearing the court determined that the children were wrongfully retained in the United States, as contemplated by the Hague Convention, and that no other affirmative defenses applied. The sole issue before the Court was whether the affirmative defense in Article 13(b) of the Hague Convention applied. The Court observed that under Article 13(b), the Court is not bound to order the return of either M.A.A. or E.T.A. if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." . A "grave risk" of physical or psychological harm requires an assessment of whether the child will face "immediate and substantial risk of an intolerable situation" if returned to his or her country of habitual residence. Nunez-Escudero, 58 F.3d at 377.To prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to each child, not solely to a parent or some other third party. Hague Convention art. 13(b); see also Nunez-Escudero, 58 F.3d at 378 ("[Respondent] must present clear and convincing evidence that the return of the child to [his country of habitual residence] would subject him to a grave risk of harm...."); Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir.2010) ("The relevant inquiry is not whether there would be a grave risk of harm to [the child's mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.") However, where spousal abuse evinces a propensity towards violence and is accompanied by other risk factors specific to the child, a grave risk of harm to a child may be found. Baran v. Beaty, 526 F .3d 1340, 1346 (11th Cir.2008) (upholding finding of grave risk to child where Petitioner physically and verbally abused Respondent in addition to threatening to harm child, berating Respondent for hours in presence of child on one occasion, and handling child irresponsibly while drunk); Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing trial court's finding of no grave risk where evidence showed Petitioner had a propensity for violence based on history of spousal abuse and Petitioner beat and insulted Respondent in presence of children); Walsh v. Walsh, 221 F.3d 204, 220 (1^st Cir.2000) (finding grave risk where Petitioner had a history of disobeying court orders, had an "uncontrollably violent temper," had battered his other children, fought people younger than he, and based on the recognition of social science literature and law that spousal abuse is linked to physical and psychological injury to children). In determining whether a grave risk of harm to a child exists, courts may consider the environment to which the child would be returning. Nunez-Escudero, 58 F.3d at 377. In so doing, a court may consider both the resources in the country for dealing with domestic violence and the people awaiting the child. There is no requirement under the Hague Convention that a child actually have been previously harmed physically or psychologically; rather, the relevant inquiry is whether returning the child to the country of his habitual residence would present a grave risk of such harm or otherwise place him in an intolerable situation. Baran, 526 F.3d at 1346.

The district court found that grave risk of harm was proven by clear and convincing evidence and denied his petition. Ricardo had an explosive temper and propensity to maintain a state of violent rage. The breaking of a taxi windshield and assault incident in 2008 or 2009 and the February 13, 2011 apartment melee demonstrated that Ricardo, once enraged, will engage in acts of violence that are severe and not limited to his spouse. The severity of Ricardo's temper was underlined by his beating and threats to Anne but even more remarkably by his use of a weapon on Johansen, a man he had never previously met and did not believe to be his wife's lover; his beating of his wife's colleague LeBoo; and his highly specific threats towards Anne, her family members, and his own children. Ricardo's violent outbursts were not only severe, but they were of a lasting duration. After leaving the police station on February 13, 2011, he or someone acting at his direction attempted to gain access to LeBoo's residence. He also called the Roosevelt School and made highly specific threats. For weeks after the February 13, 2011 incident, he continued to make threatening phone calls to Stephen and Susan Campbell.. The circumstances to which M.A.A. and E.T.A. would return in Peru posed a grave risk of physical harm to them. What appeared to incite Ricardo's violence was the prospect of losing custody of his children. The evidence showed Ricardo did not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne. Dr. Edelson identified five high risk factors for future severe child abuse, including homicide. All were present in this case including threats by Ricardo to kill himself and his children. The Court was concerned about the police response were Anne, M.A.A., or E.T.A. to be in future physical danger from Ricardo. In light of the local police officers' slow response on February 13, 2011, the requirement to be paid cash prior to allowing the release of Anne and her friends from the police station where they had gone to report a crime, the filing of a false police report, and Ricardo's apparent influence over certain officers, the risk of harm to Anne, M.A.A., E.T.A. was exacerbated. The court found that a grave risk of physical harm to M.A.A. and E.T.A. existed should they be returned to Peru, and a grave risk of psychological harm was also present for M.A.A. and E.T.A. M.A.A. exhibited some behavior indicative of psychological harm.

Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) [Turkey] [Well-Settled] [Rights of access]

In Ozaltin v Ozaltin, Slip Copy, 2012 WL 2026443 (S.D.N.Y.) Nurettin Ozaltin filed a Petition on March 30,2012 for the return of his two minor children, S.E.O. and Y.O., to Turkey, and the enforcement of court-ordered visitation so long as the children remain in the United States. On April 2, 2012, the Court issued an order, directing Respondent Zeynep Tekiner Ozaltin to show cause as to why the Petition should not be granted. On April 30, 2012, and May 1, 2012, the parties appeared before the Court for an evidentiary hearing.

Both Petitioner and Respondent were dual citizens of Turkey and the United States. They were married on March 24, 2001, and had two daughters, S.E.O. (aged 8) and Y.O. (aged 6). Both children were born in New York and were also dual citizens of Turkey and the United States. Until December 22, 2010, the parties and the Children resided primarily in Turkey, first in Ankara and then in Istanbul. The Children regularly attended school in Turkey.

Respondent alleged that, on December 21, 2010, she and Petitioner had an argument about his drinking problem. During the argument, Petitioner told Respondent to take the Children and get out of the house. He warned her that, if  she did not do so, he would fire the staff, close the house and cut her off financially. In her testimony at the hearing, Respondent further alleged that Petitioner shoved
her and threatened to kill her. The next day, December 22, 2010, Respondent decided to take the Children to New York for the holidays, and purchased round trip tickets for a flight out of Turkey. Respondent alleged that she called Petitioner from the Frankfurt airport during a layover to inform him that she was taking the Children to New York, and that Petitioner responded with words to the effect of "fine, stay there." Petitioner denied that the December 21, 2010, encounter and December 22, 2010, conversation ever took place. Since December 22, 2010, Respondent and the Children had been living in New York City.

On January 7, 2011, Petitioner filed an application, pursuant to the Hague  Convention, with the Turkish Ministry of Justice, seeking the return of the Children from the United States to Turkey. On January 11, 2011, Respondent, acting through her Turkish attorney, applied for an order of protection against Petitioner. The 2d Uskudar Family Court issued an ex parte order of protection, directing Petitioner to refrain from using violence or threatening language against Respondent, from damaging the personal belongings of other family members, and from disturbing either Respondent or the Children by communication. On February 9, 2011, Respondent commenced a divorce action against Petitioner in the 3d Uskudar Family Court. Petitioner filed a cross-complaint for divorce. The divorce proceedings were currently pending.

On March 22, 2011, the Turkish Court ordered Petitioner to pay Respondent temporary alimony, of 4000 TL for the Respondent, and 3000 TL for each of the children. On May 13, 2011, Petitioner requested that the Turkish Court grant him provisional custody of the Children. The court rejected this request, but issued an order granting Petitioner overnight visitation with the Children, in the United States. Petitioner exercised his visitation rights several times between May 13, 2011, and August 2011, traveling to the United States to see the Children. On July 28, 2011, the Turkish Court issued an order granting Petitioner a two-week visitation period with the Children. On August 12, 2011, the Turkish Court issued an additional order, allowing Petitioner to take the Children outside the United States during the two weeks of visitation, and directing Respondent to give Petitioner the Children's passports. In a September 14, 2011, order, the Turkish Court specifically found that Petitioner "behaved contrary to good will and intentions by not delivering the children [to Respondent] on the appointed date, and that the children needs [sic] the care and compassion of their mothers [sic]." Petitioner ultimately turned the Children over to Respondent's representative on September 18, 2011, but the Children and Respondent remained in Turkey until November 4, 2011. On March 30, 2012, the Turkish Court again denied Petitioner's request for provisional custody of the Children, but reaffirmed the previously established visitation arrangements.

Throughout their lives, the Children had regularly traveled to and spent extended periods of time in New York. The Children were currently enrolled in school in New York and were also involved in various extracurricular activities. They had a close network of friends and family in New York, including Respondent's mother and sisters. Petitioner presently seeks the following permanent relief: 1) An order, pursuant to Article 12 of the Convention, directing the return of the Children to Turkey; 2) an order, pursuant to Article 21 of the Convention, enforcing, so long as the Children remain in the United States, Petitioner's rights of access to the Children (as granted by the Turkish Court); and 3) an order, pursuant to Article 26 of the Convention, directing Respondent to pay the costs incurred by Petitioner in connection with this action.

The Court found that, until December 22, 2010, Turkey was the Children's habitual residence. While the children traveled regularly to the United States, their primary residence was in Turkey, they attended school in Turkey, and their physicians, caretakers, and several extended family members were located in Turkey, The Court further finds that, despite a heavy business travel schedule, Petitioner was exercising custody rights at the time of the alleged wrongful retention.

The first issue was whether Respondent's removal of the children on December 22, 2010, and subsequent retention of them in the United States was wrongful. All of the proffered evidence indicated that Petitioner at no time consented to relocation of the Children's residence to New York. Petitioner has contacted the Turkish Ministry of Justice, sought custody of the Children in Turkish courts, and pursued his petition in the Court. Even if Petitioner approved the continuation of the Children's travel to New York, which was already in progress at the time Respondent allegedly placed the call from the Frankfurt airport, it was clear from the record that Petitioner neither consented or acquiesced in Respondent's subsequent retention of the Children in New York since that time.

Respondent's next argument was that her retention of the Children in New York was not wrongful because she had provisional custody of the Children, and so her retention did not violate Petitioner's custody rights. Respondent bases this reasoning on two premises-first, that Turkish law does not recognize the concept of joint custody and only awards one parent custody of a child upon separation; and second, that the Turkish Court had entered several orders denying Petitioner provisional custody. Thus, Respondent argued, the court orders denying Petitioner's requests for provisional
custody effectively granted Respondent provisional custody.

The Court observed that Turkish Civil Code Article 336 provides that: As long as the mother and the father are married, the custody of children is shared equally between the mother and the father. If they separate or divorce, the judge may decide to give the custody of the children to one of the spouses. In the event of the death of one of the spouses, custody belongs to the surviving spouse. Both Petitioner and Respondent proffered testimony by Turkish legal experts as to the parties' respective custody rights. Respondent's expert witness testified that, once parties separate, a Turkish court must grant provisional custody of the children to one parent or the other. He testified in a conclusory fashion that the various orders issued by the Turkish Court award Respondent provisional custody of the Children and that, by granting Petitioner visitation rights in the United States, the Turkish Court implicitly acknowledged that the Children need not be returned to Turkey. In contrast, Petitioner's expert testified that, during the pendency of divorce proceedings, Turkish courts will typically order children to live with one spouse, but that such an order is not tantamount to a grant of provisional custody, and does nothing to alter the custodial rights of the non-resident spouse. He testified that the orders issued by the Turkish Court to date provided only that the Children would live with Respondent during the divorce proceedings and should not be read to "constitute or 'imply' a termination or suspension of [Petitioner's] custodial rights." He further testified that the Turkish Court lacked the power to order Respondent to return to the United States with the Children, because of the pending Hague Convention petition. Petitioner's Turkish divorce lawyer, corroborated this point, testifying that, at the parties' first appearance in the divorce proceeding, she had advised the Turkish Court that Petitioner had filed a Hague Convention application with the Turkish Ministry of Justice and that the Turkish Court had instructed her to continue with that application process. The Ministry, which is Turkey's designated Central Authority for purposes of the Hague Convention, indicated that Petitioner and Respondent had joint custody of the Children: on April 5, 2012, Judge Seval Arslan of the Ministry wrote to the Department of State, the United States' designated Central Authority, and stated that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use [sic] to exercise those rights. In this context under Articles 3 and 12 of the Hague Convention, the [ mother] is in breach of rights of the [sic] custody under the law of Turkey in which the children were habitually resident before the removal,"

Based on the plain language of the Turkish Civil Code's joint custody provision and the evidence concerning the parties' relevant actions and interactions, the Court concluded that Petitioner had met his burden of showing that Respondent's retention of the Children in the United States is wrongful under the Convention.

As more than one year elapsed since Respondent originally removed the children from Turkey in December 2010 the Court was not obliged to order the Children's  return to Turkey if Respondent could show that the Children are so well settled in New  York that, "at least inferentially, return would be disruptive with likely harmful effects." In  re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). The affirmative defense that a child is  well settled in its new environment is meant to be narrow. See Lozano, 809 F.Supp.2d  at 218. Furthermore, "even where the respondent meets his or her burden to show that  [the] exception applies, the court may nevertheless exercise discretion to order
repatriation."Id. (internal quotations omitted); see also Friedrich v. Friedrich, 78 F.3d  1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention").

The Court observed that some of the factors courts consider in determining whether a child is well settled include: 1) the age of the child; 2) the stability of the child's residence in the new environment; 3) whether the child attends school or day care consistently; 4) whether the child attends church (or another religious institution) regularly; 5) the stability of the mother's employment; and 6) whether the child has friends and relatives in the new area. Lozano, 809 F.Supp.2d at 230-31.

S.E.O. and Y.O. were ages eight and six, respectively, and spent the majority of their lives in Turkey. While Respondent argued that the Children were familiar with New York, their residence in New York was not continuous since the December 2010  removal from Turkey, as the Children spent approximately eight months in New York  (December 22, 2010 to August 18, 2011), and then spent two and a half months in  Turkey (August 18, 2011 to November 4, 2011), before returning to the United States  for another five months (November 4, 2011 to March 30, 2010) before this action was
commenced. The children regularly traveled between Turkey and New York throughout their lives, and were accustomed to spending several months in both countries. The Children attended school consistently in New York, but they also attended school consistently in Turkey and, if returned to Turkey, would re-enroll in their former school. Similarly, while the Children had numerous friends and family in New York, the same was true of their relationships in Turkey. Given the financial resources available to both parties, the stability of Respondent's employment in New York was irrelevant. Considering all these factors, the Court found that Respondent failed to demonstrate by a preponderance of the evidence that the children were so well-settled in New York that returning them to Turkey would be "disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d at 152.

The Court granted th ePetition insofar as it sought the return of the Children to Turkey.

Respondent contended that the Court lacked jurisdiction to enforce Petitioner's rights of  access, relying on Article 21 of the Convention, which states that "[a]n application to  make arrangements for organising or securing the effective exercise of rights of access  may be presented to the Central Authorities of the Contracting States in the same way  as an application for the return of a child." Respondent cited two cases, Wiezel v. Wiezel-Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it "had jurisdiction over an Article 12 claim by a petitioning parent who claimed to have custody rights but is seeking as, a remedy, only visitation and other access  rights." 388 F.Supp.2d at 211. The court concluded that it lacked such jurisdiction, and  that "the Convention sets forth separate procedures by which signatory nations may enforce access rights of petitioning parents, and those procedures do not involve the  federal courts. Similarly, in Bromley, the court concluded that "the plain language of
[Article 21] of the Convention does not provide federal courts with jurisdiction over access rights." 30 F.Supp.2d at 860. In neither case, however, was the petitioning parent alleging wrongful removal of a child under Article 12 and seeking, as ancillary relief, rights of access as ordered by a court in the country of habitual residence.  Furthermore, ICARA specifically authorizes a parent to "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of  access to a child [by] commencing a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action." 42 U.S.C.A. 11603(b). Given the language of the statute, the Court found that it had jurisdiction to enforce Petitioner's rights of access to the Children, and ordered Respondent to comply with the visitation rights set forth by the Turkish Court's May 13, 2011, Order, so long as the Children remained in the United States.

Lyon v Lyon, 2012 WL 1970363 (D.Kan.) [England] [Consent and Acquiescence]

In Lyon v Lyon, 2012 WL 1970363 (D.Kan.) petitioner Kevin Lyon filed a Verified Petition for Return of Child to England and Issuance of Show Cause Order seeking the return of his three-year-old son, F.M.S.L., to England under the Hague Convention. Mr. Lyon contended the respondent, Lisa Moreland, Lyon, the child's mother, unlawfully removed F.M.S.L. from England to Kansas in August 2011. Ms. Moreland-Lyon contended she did not wrongfully remove the child under the Act, that Kansas was the child's habitual residence, and that the Kansas state court had jurisdiction to determine the child's custody. She also argued that the well-settled exception applies, or that Mr. Lyon consented and acquiesced in F.M.S.L.'s removal. The court granted Mr. Lyon's motion and ordered that F.M.S.L. be returned to England.
Mr. Lyon and Ms. Moreland-Lyon met each other while she was on vacation in England in 1995. He was a citizen of the United Kingdom, and she was a citizen of the United States. By the end of 1997 or early 1998, Ms. Moreland-Lyon moved into Mr. Lyon's home in Prestwich, Manchester, England. After dating for four years, the couple married on October 28, 1999. For the next ten or eleven years, the couple lived in Prestwich. But it was normal for Ms. Moreland-Lyon to visit her mother in Kansas annually. While in England, Ms. Moreland-Lyon upgraded her academic qualifications in a school in the United Kingdom and obtained residency.

In March 2009, she gave birth to F.M. S.L. in Manchester. She stayed in the
United States for some of the pregnancy but traveled back to England in January 2009, in part to take advantage of England's universal healthcare system and so that F.M.S.L. would be eligible to receive "child benefit," which is provided to all children born in  England. Half of this child benefit was deposited regularly into Ms. Moreland-Lyon's English bank account for F.M. S.L.'s benefit. Mr. Lyon has also deposited money in this bank account for F.M.S.L. for the last three years. Since birth, F.M.S.L. has lived in both the United States and England at various times. In the fall of 2009, Ms. Moreland-Lyon traveled with F.M.S.L. to the United States to attend the Renaissance Festival as she had done in the past. During their time in Kansas, they stayed with Ms. Moreland-Lyon's mother and stepfather in Overland Park, Kansas. Mr. Lyon visited for about a week in October. Ms. Moreland-Lyon and F.M.S.L. returned to England in early December. The couple spent Christmas in Manchester. From December 2009 to August 2010, Mr. Lyon, Ms. Moreland-Lyon, and F.M.S .L. lived in England in the couple's home and did typical family things. In early May 2010, the couple was outbid on a home they were looking at in Prestwich, which upset Ms. Moreland-Lyon. She was eager to move out of their home in Prestwich to this larger home nearby.

Ms. Moreland-Lyon and F.M.S.L. traveled back to Kansas for the Renaissance Festival in August 2010. The plan was for Ms. Moreland-Lyon to remain in Kansas for the duration of the festival and to return to England by October 28. She did not return by that date and decided to remain in Kansas longer. Ms. Moreland-Lyon's mother persuaded her to return to England with F.M. S.L. on May 11, 2011.

Ms. Moreland-Lyon visited the United States for the 2011 Renaissance Festival. She and her husband’s agreement provided that Ms. Moreland-Lyon would leave for the United States on August 4, 2011, and return to England on December 11, and that Ms. Moreland-Lyon and F.M. S.L. would return to the United States on February 1, 2012, and stay through August 14. Ms. Moreland-Lyon testified that she signed the  agreement under duress because it was the only way she would get F.M.S.L.'s United  States passport returned to her. On August 4, Ms. Moreland-Lyon and the child flew to  Kansas. Mr. Lyon drove them to the airport and paid for the tickets. Mr. Lyon traveled
to Kansas in October. During the visit he met with Barbara Lyons, Director of the  Johnson County Montessori Preschool and Day Care. The child was currently enrolled  and attending the preschool. On December 9, Ms. Moreland-Lyon informed Mr. Lyon that she was not going to return to England on December 11 unless she had assurances from him that he would abide by the terms of the parties mediated agreement. Mr. Lyon provided several written assurances that he would abide by the agreement, yet Ms. Moreland-Lyon has refused to return to England with F.M.S.L.

The child was presently located in the District of Kansas, living with Ms. Moreland-Lyon in Overland Park. As in England, F.M. S.L. had a pediatrician and dentist in Kansas, and was flourishing in his environment.  In December 2011, Ms. Moreland-Lyon initiated divorce proceedings against Mr.
Lyon in Kansas state court. The court entered Ex Parte Temporary Orders providing for  rights of custody and access to Mr. Lyon and ordered the parties to participate in mediation to come up with a permanent parenting plan. A Decree of Divorce was entered in the case on April 16, 2012. The court found that Ms. Moreland-Lyon and the child "have been actual residents of the State of Kansas since August 3, 2010."The court stayed ruling on the custody of the child pending the outcome of the present Petition for Return of Child.

Mr. Lyon filed a Petition on March 23, 2012. The Court found that his habitual residence was England. F.M. S.L. had traveled back and forth from England to Kansas several times. Since birth he lived in England for approximately 16 months and Kansas for 14 months, not including the last 10 months since he was removed from England. The total number of months F.M.S.L. spent in each country was not determinative of  the habitual residence issue. As such, the court had to look to the parents' conduct, intentions, and any agreements they may have made regarding the child's living arrangements before and after removal. It was clear from the testimony that England was the couple's home throughout their marriage. Ms. Moreland-Lyon lived in England throughout the marriage except during her trips to the United States to work at the Renaissance Festival and to substitute teach. But those trips were relatively short in duration. Mr. Lyon continued to live and work in England full-time and only traveled to the United States for brief vacations. Additionally, F.M.S.L. was born in England. He lived in England for the first five months of his life, and returned to the United States only for the Renaissance Festival in 2009, 2010, and 2011. During those three years the plan was that Ms. Moreland-Lyon would reside in the United States with F.M.S.L. during the Renaissance Festival as she had done in the past before he was born. Each year, Ms. Moreland- Lyon unilaterally extended those stays in the United States without Mr. Lyon's consent.

Ms. Moreland-Lyon's changed intentions were the sole reason F.M.S.L. was away from England for long periods of time, and this court found that her unilateral actions did not change F.M.S.L.'s habitual residence. See Mozes, 239 F.3d at 1077. Therefore, England was F.M.S.L.'s habitual residence.

It was undisputed (1) that the parties were married when Ms. Moreland-Lyon removed F.M.S.L. from England, (2) that Mr. Lyon is F.M.S.L.'s father, (3) that the parties divorced on April 16, 2012, (4) that no court has ordered custody in this matter, and (5) that the parties had an informal agreement regarding visitation. Mr. Lyon has rights of custody under English law under the Children Act 1989 and the Child Abduction Act 1984. Both acts provide that couples married at the time of a child's birth have joint parental responsibility for the child. Ms. Moreland-Lyon did not contest that her removal breached these custody rights. Therefore, Mr. Lyon had custody rights to F.M. S.L., and Ms. Moreland-Lyon's removal of the child to the United States violated those rights. It was also uncontested that Mr. Lyon was exercising his custody rights.

The Court rejected Ms. Morlands "well-settled" defense finding that the child was here less than a year. Regardless, the court was not persuaded that F.M. S.L. was well settled in Kansas simply because he had a doctor, dentist, a preschool, and people looking after him in Kansas. The facts indicated F.M.S.L. had those things in England too. There was no dispute that F.M.S.L. was doing well in Kansas or that he was acclimated to living there. But he also had acclimated to life in England, and he was young enough that he could grow accustomed to nearly any location within a short period of time. "[I]n the abscence of settled parental intent, courts should be slow to infer from [the contacts noted above] that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. For these reasons, the court found that the well-settled exception did not apply.

The court observed that it was not required to return the child if it found that the  respondent established that the petitioner consented to or acquiesced in the removal. The consent defense requires that the respondent show that the petitioner consented to the removal before the removal. Acquiescence focuses on the petitioner's conduct after removal. Mrs. Moreland-Lyon argued that Mr. Lyon consented to the removal in August 2011 because he drove her and F.M.S.L. to the airport when they left England. These actions did not indicate that Mr. Lyon consented to F.M. S.L.'s permanent removal from England. Rather, Mr. Lyon did not really have a choice in the situation. Under the mediation agreement, Ms. Moreland-Lyon and F.M.S.L. were scheduled to leave for the United States. Mr. Lyon merely did what was in his nature-he drove his son and wife to the airport because he believed it was the right thing to do.

 Ms. Moreland-Lyon argued that Mr. Lyon acquiesced in the removal by meeting with the Montessori school in Johnson County. Yet this did not indicate Mr. Lyon's acquiescence to F.M.S.L. living permanently in Kansas. Mr. Lyon testified that he looked at the school and ultimately enrolled his son there so that he could benefit  from the opportunities the school provided. Enrollment in the school only showed that Mr. Lyon was trying to do the best for his son despite the couple's marital problems. Thus, the acquiescence argument failed.