International Law Update

In dispute between Israeli citizens over child custody, Eighth Circuit rules that habitual residence of children was in U.S. based on Hague Abduction Convention and implementing statute and Court rejects argument that Israeli consent decree and Missouri divorce decree determine children’s habitual residence

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“Any idea that parents could contractually determine their children’s habitual residence is also at odds with the basic purposes of the Hague Convention. The Convention seeks to prevent the establishment of ‘artificial jurisdictional links’ as a means to remove the child from the ‘family and social environment in which its life has developed.’ … It is difficult to imagine a jurisdictional link more artificial than an agreement between parents stating that their child habitually resides in a country where it has never lived.” [...]

“… [W]hile [F] characterizes the Missouri repatriation agreement and the Kfar Saba consent judgment as prospective stipulations of habitual residence, they are in fact [merely] custody decrees. … Indeed, F must agree with that proposition, for they are the bases for his claim that retention of the children in Missouri is wrongful. See Hague Convention art. 3 [(‘The removal or retention of a child is to be considered wrongful where ... it is in breach of rights of custody attributed to a person....').]”

“Once the agreements are seen in this way, the fundamental problem with [F's] argument becomes clear. He is trying to use the Hague Convention as a vehicle to enforce his custody rights, simply by relabeling them as stipulations of habitual residence. … Regardless of how they are labeled, however, these agreements amount to provisions relating to the custody of the children, and ‘the Convention is certainly not a treaty on the recognition and enforcement of decisions on custody.’ …”

“While [F] has framed this case as a complex matter of first impression, it is in fact relatively simple. Immediately before the alleged wrongful retention in this case began, the children’s habitual residence under the Hague Convention was in Missouri, where they had lived without interruption for five years. Under the Convention, it was consequently for the courts of Missouri to determine whether [M's] refusal to bring the children back to Israel was indeed wrongful and if so, to fashion an appropriate remedy.”

“Instead of seeking to enforce his custody rights in the Missouri courts, however, [F] went to the court in Kfar Saba because, as he candidly testified in the district court, ‘it proposed better chances for me winning.’ Having obtained a favorable judgment there, he then turned to the federal court seeking enforcement of his newly minted custody rights through an ICARA petition. This course of litigation not only betrays a fundamental misunderstanding of the Hague Convention, but also precisely the sort of international forum shopping the Convention seeks to prevent. The district court correctly withheld the relief [F had] requested.” [600 F.3d 918‑922]

Citation: Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010).

Filed in: 2010 International Law Update, Issue 4

In case of minor child taken from Greece to United States by his father in violation of Greek Court’s reading of Hague Child Abduction Convention, Ninth Circuit holds that the District Court was wrong to grant comity to the Greek Court’s decision, where that decision was clearly wrong

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The Greek Court’s analysis of Article 3 made no determination whether Greece or the U.S. was the child’s habitual residence. If it ruled for Greece, this would have been dispositive. The Court notes that the failure to decide this central point casts doubt on its entire Article 3 determination. Without ascertaining the habitual residence of the child, the court could not have applied the appropriate law. Thus it could not properly rule on “determining whether Petroutsas had custodial rights to the child, whether he was exercising those rights, or whether Asvesta had violated his rights by removing and retaining the child in Greece.” [Slip Op. 10]

Citation: Asvesta v. Petroutsas, No. 08‑15365 (9th Cir. September 4, 2009).

Filed in: 2009 International Law Update, Issue 9

In mandamus proceeding seeking to set aside restrictions on parent’s access to child, Court of Appeals of Texas interprets and applies Texas law against international parental abduction, using Uniform Child Abduction Prevention Act as interpretation aid

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In mandamus proceeding seeking to set aside restrictions on parent’s access to child, Court of Appeals of Texas interprets and applies Texas law against international parental abduction, using Uniform Child Abduction Prevention Act as interpretation aid

Axel Michael Sigmar is involved in several international legal disputes, and frequently travels to Mexico. Apparently he received threats, and equipped himself with a concealed handgun. In the midst of this turmoil, he and his wife Lucia divorced with identical visitation rights for their daughter A.J. Lucia subsequently moved for a modification of the divorce decree, also requesting that Sigmar have only supervised access to the child, and that he temporarily not dispose of any assets. The Judge Barbara Hale found that Sigmar posed a threat of international abduction, and ordered that he only have supervised visits with A.J. The Judge also ordered that he not sell any assets until an evidentiary hearing in the modification matter.

Sigmar is now seeking a writ of mandamus to compel the Judge to set aside the restrictions.

The Court of Appeals of Texas agrees with the Judge. In general, mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. Here, because temporary orders in child custody disputes are not subject to interlocutory appeal, mandamus is a possible remedy.

As for the restrictions on Sigmar’s access to A.J., the Court notes that Texas was the first state to implement laws against international parental abduction. See Tex. Fam. Code Ann. §§ 153.501 .503. In interpreting the Texas law, the Court refers to materials about the Uniform Child Abduction Prevention Act which resembles the Texas law.

Section 153.503 permits the trial court to impose abduction prevention measures if there is a “potential risk”� of international abduction. The court should consider the obstacles to finding and returning a child from a foreign country, and the harm to the child if he/she is abducted to a foreign country. In particular:

“Section 153.502 provides statutory “�abduction risk factors’ for a court to consider in determining whether there is a potential risk of international abduction. See TEX. FAM. CODE ANN. § 153.502 (Vernon Supp. 2008). Subsection (a) provides a list of six preliminary factors the court “�shall consider,’ including whether the parent: (1) “�has taken, enticed away, kept, withheld, or concealed’ the child; (2) has threatened to do so; (3) “�lacks financial reason to stay in the United States’; (4) “�has recently engaged in planning activities that could facilitate the removal of the child from the United States’; (5) “�has a history of domestic violence’; or (6) “�has a criminal history or a history of violating court orders.’ Id. § 153.502(a) …”�

“If upon consideration of the factors in subsection (a) the court finds “�credible evidence of a risk of abduction,’ “�the court shall also consider’:”�

“(1) whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and”�

“(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.”�

“TEX. FAM. CODE ANN. § 153.502(b) … ”

“�In addition, if the court finds “�credible evidence of a risk of abduction’ under subsection (a), “�the court may also consider’: (1) “�whether the parent is undergoing a change in status with the United States Immigration and Naturalization Service that would adversely affect that parent’s ability to legally remain in the United States’; (2) whether INS has denied the parent’s application for citizenship; (3) whether the parent has forged or presented misleading or false evidence to obtain a visa, passport, or other identification card or has made any misrepresentation to the federal government; or (4) whether the foreign country to which the parent has ties presents legal or practical obstacles to the recovery and return of a child who is abducted to that country or poses a risk of harm to the child.8 TEX. FAM. CODE ANN. § 153.502(c) …”� [Slip op. 3]

Here, the Judge found that Sigmar had strong ties to Mexico and Austria, and was liquidating U.S. assets. According to the Judge’s findings, both of those countries lack effective mechanisms for the enforcement of the child custody order. Also, the U.S. Department of State has issued a travel warning for Mexico.

“… [A]n affirmative finding on only one of these preliminary factors (if supported by the evidence) is all that is required to proceed to a consideration of the additional factors listed in subsections (b) and (c).”�

“To begin with, the statute states that “�the court shall consider evidence’ relevant to the six factors. Id. § 153.502(a) … The statute does not specify the number of factors on which a court must make an affirmative finding. … In addition, the statute lists these factors in the disjunctive.”�

“The comment to section 7 of the UCAPA suggests that no particular quantum of risk factors is required.”�

“The more of these factors that are present, the more likely the chance of an abduction. However, the mere presence of one or more of these factors does not mean that an abduction will occur just as the absence of these factors does not guarantee that no abduction will occur.”�

“UNIF. CHILD ABUSE PREVENTION ACT § 7 cmt., 9 Part IA U.L.A. at 42.”�

“For these reasons, we hold that evidence sufficient to support an affirmative finding on only one of the six preliminary factors may constitute “�credible evidence of a risk of abduction’ sufficient for a court to consider the additional factors listed in subsections (b) and (c).”� [Slip op. 4]

Applying this to the case at bar, the Court agrees with the Judge that Sigmar’s recent sale of an office building in Austin, and his insistence that A.J.’s passport be renewed, could facilitate A.J.’s removal from the U.S. Such events are credible evidence of a risk of abduction. Furthermore, Sigmar has ties to both Austria and Mexico. As for subsection (c) concerning the obstacles and risks which may be posed if Sigmar were to abduct A.J., the Court holds that such matters are legislative facts under Tex. R. Evid. 201(a), and a court may take judicial notice of them.

” … [W]e hold that facts regarding another country’s compliance with the Hague Convention on the Civil Aspects of International Child Abduction, or whether that country poses obstacles to the prompt return of a child taken there or poses risks to the child’s safety are legislative facts about which a trial or appellate court may take judicial notice without prompting by the parties.16 See [1 STEVEN GOODE ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE] § 201.2 (with regard to judicial notice of legislative facts, a court “�may employ whatever facts [it] reasonably believe[s], without any requirements of indisputability or of opportunity of parties to be heard concerning such beliefs’) …”� [Slip op. 5]

Here, the travel warnings provided by the U.S. Department of State supports the Judge’s finding under subsection (c). The Court concludes that the evidence, and the information of which it has taken judicial notice, support the Judge’s finding of potential risk of international abduction.

After making further findings that the restrictions are consistent with the public policy of Texas and the best interest of the child, the Court finds that the Judge did not abuse her discretion in requiring supervised visitation.

Citation: In Re Axel Michael Sigmar, No. 10 08 00328 CV (Court of Appeals of Texas, Tenth District, November 5, 2008).

Filed in: 2008 International Law Update, Issue10

Where mother moved children from Venezuela to permanent stay in United States, Seventh Circuit rules that father had sufficient “rights of custody”� under Hague Abduction Convention to have U.S. court order return of children to Venezuela, since father also had right of patria potestas under Venezuelan law

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Where mother moved children from Venezuela to permanent stay in United States, Seventh Circuit rules that father had sufficient “rights of custody”� under Hague Abduction Convention to have U.S. court order return of children to Venezuela, since father also had right of patria potestas under Venezuelan law

In 1999, Jose Gregorio Altamiranda Vale (Petitioner) and Maria Jose Figuera Avila (Respondent) got married in Venezuela . Respondent gave birth to twins a year later. Six years later, Respondent met an American man on the Internet and divorced Petitioner pursuant to a mutual agreement. The court awarded physical custody of the children to Respondent, but granted both parents rights of patria potestas or “paternal power.”� Under Venezuelan law, this term includes all the parental duties and rights as to their children’s care, development and education.

Respondent obtained Petitioner’s consent in 2006 ostensibly to take the twins to Florida to attend a wedding. Respondent, however, took them to Peoria, Illinois where she married the man she had met on the Internet. As part of the ongoing dispute, an Illinois state court issued an uncontested judgment declaring that the children were now habitual residents of Illinois.

Petitioner filed a petition in Illinois federal court for the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), T. I. A. S. No. 11,670, 1343 U. N. T. S. 89 (in force for U.S. July 1, 1988) and its implementing U.S. statute: the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Sections 11601 et. seq. The parties later settled and dismissed the litigation by Agreement.

Respondent, however, failed to abide by the Agreement. Petitioner filed his Hague Convention petition and moved to set aside the judgment dismissing his suit, alleging that the Respondent had obtained that judgment by fraud. The district court set aside the judgment, citing evidence that Respondent had lied about financing the children’s travel and about the children’s ability to travel. Ruling that removal of the children had violated Petitioner’s rights of custody, the court ordered the children returned to Venezuela. Respondent appealed. The Seventh Circuit affirms.

The Court dismissed Respondent’s objection that the district court lacked the power to reopen the proceeding. The Court explains that: “The settlement agreement itself authorizes Petitioner to resume his Convention suit if Respondent violated it, and she did “� and the Agreement is part of the state court judgment. … [T]he reopening of the judgment was lawful… [as was] the judgment rendered by the district court after the reopening, since implicit in the state court judgment authorizing the reopening was the possibility that the result would be a Convention order that the children be sent back to Venezuela.”� [Slip Op. 7]

Thus the district court had jurisdiction over Petitioner’s case. The substantive holding then is that Respondent’s removal of the children to Illinois violated Petitioner’s “rights of custody”� under Venezuelan law and the Convention.

“The Convention does not speak simply of “�custody,’ but of “�rights of custody,’ and these are broadly defined to include “�rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ … [S]o the enumeration is not necessarily exhaustive. By virtue of the doctrine of patria potestas, [Petitioner], the father, had rights relating to the care of the person of the child, and, by virtue both of that doctrine and even more clearly by virtue of the doctrine of ne exeat, the right to determine that the child’s place of residence would remain Venezuela rather than the United States.”�

“No more is necessary to establish that Petitioner had “�rights of custody,’ which Respondent infringed. … [The authorities] hold that the doctrine of ne exeat does not create a right of custody, reasoning that, if it did, the effect would be to send the child to a parent who did not have custodial rights but merely a right to prevent the child from being removed to another jurisdiction. That is a fair point, though cutting against it is the invitation to abduction that is tendered if a parent can violate ne exeat with impunity.”�

“But we need not decide whether the doctrine of ne exeat creates custody rights, for in none of the cases that answer the question in the negative did the plaintiff also have the right of patria potestas. Only Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002), is cited for the proposition that patria potestas does not confer a custody right; … [but] all that case actually holds (besides that the doctrine of ne exeat does not by itself create a right of custody) is that patria potestas is a default doctrine and hence does not override rights conferred by a valid custody agreement between the parents. Id. at 954. (The father in Gonzales had access rights as well as ne exeat, but not patria potestas.) There is no such override here.”�

“The divorce decree gave Respondent physical custody of the children subject to Petitioner’s right of patria potestas. It provided: “�The Father and the Mother shall both EXERCISE THE PATRIA POTESTAS over our children as we have been doing and as established by the Law. The aforementioned children shall remain under the Guard of the mother, with whom they are currently living.’ When the parent who does not receive physical custody is given the rights and duties of patria potestas, he has custody rights within the meaning of the Hague Convention.”� [Slip op. 8 9].

Citation: Altamiranda Vale v. Avila, 538 F.3d 581; No. 08 2161 (7th Cir. 2008).

Filed in: 2008 International Law Update, Issue8

Where Chilean father challenged removal of his child to United States by child’s mother, Second Circuit rules that parent did not have custody rights under Hague Convention, where father only had rights to visitation and to prevention of wife from removing child from Chile

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Where Chilean father challenged removal of his child to United States by child’s mother, Second Circuit rules that parent did not have custody rights under Hague Convention, where father only had rights to visitation and to prevention of wife from removing child from Chile

On April 22, 2001 Valentina Almendra Villegas Arribada (Child) was born to Hugo Alejandro Villegas Duran (Petitioner) and Johana Ivette Arribada Beaumont (Respondent), an unmarried couple. The child lived with Respondent in Chile following the couple’s separation in 2004.

Petitioner had visitation rights, and Respondent was not supposed to remove the Child from Chile without Petitioner’s permission. Respondent obtained an order from the Eighth Minors’ Court of Santiago to travel to the U.S. temporarily.

After the Respondent and the Child remained in the U.S., Petitioner petitioned for the Return of Child in a New York federal court on July 25, 2006. The Court denied the petition and dismissed on jurisdictional grounds. It held that Petitioner did not have custody rights under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) [T. I. A. S 11670, in force for U.S. July 1, 1988] as implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601 et seq. (2000). Petitioner noted this appeal.

The U.S. Court of Appeals for the Second Circuit, however, affirms the district court. The issue is whether the Petitioner has custody rights under the Hague Convention, or whether they are simply rights of access. If the Petitioner has custody rights, then a U.S. Federal court would have jurisdiction to order the return of the Child. If the Petitioner has merely has access rights (as the district court found), then a United States court lacks jurisdiction to order the return of the Child.

The Court explains. “A petitioner cannot invoke the protection of the Hague Convention unless the Child to whom the petition relates is `habitually resident’ in a State signatory to the Convention and has been removed to, or retained in, a different State. [Cite]. … [A] removal or retention is considered “�wrongful’ for the purpose of return of the Child under the Hague Convention where: (a) it is in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, Art. 3, 51 Fed. Reg. at 10,498.”�

“Under Chilean law, when parents live separately, the responsibility for the personal care of their child rests with the mother. [Cite]. However, the other parent still has a ne exeat right: the right to determine whether the child will leave the country. [Cite]. Although Respondent was granted permission by order of the Chilean court to leave the country with the child for three months, violation of the conditions of that order can be a violation of Petitioner’s ne exeat right.”�

“In interpreting the Hague Convention, this Court has held that violating a ne exeat right is insufficient to qualify as a violation of custodial rights…we found that a ne exeat clause does not create rights of custody within the meaning of the Hague Convention. We agree with the district court that Petitioner did not establish the custody requirement by a preponderance of the evidence. Petitioner primarily relies on an affidavit from the Chilean … “�Central Authority’ as support for his argument that he has custodial rights under Chilean law… However, it is readily apparent that, even if it is authoritative, the district court was not bound to follow it.”�

“As this Court has previously stated, “�a foreign sovereign’s views regarding its own laws merit “� although they do not command “� some degree of deference.’ [Cite] Reasons existed for the district court to refrain from giving the affidavit absolute deference. Most importantly, the Central Authority’s conclusion that joint custody exists under Chilean law as a default rests almost exclusively on the ne exeat right.”�

The rights that the Petitioner has in this case do not create rights of custody under the Hague Convention and ICARA. They only consist of Petitioner’s right of access to the Child.

Citation: Duran v. Beaumont, 534 F.3d 142 (2nd Cir. 2008).

Filed in: 2008 International Law Update, Issue7

Applying Hague Convention on Child Abduction, Ontario Court of Appeal deferred to U.S. federal courts’ ruling to allow teenager just under sixteen who expressed mature and reasonable basis for remaining with his father in Oklahoma rather than return to his mother who lived in Canada, his former habitual residence, at least until U.S. courts have resolved effect of Oklahoma custody order and that of Sri Lankan court

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Applying Hague Convention on Child Abduction, Ontario Court of Appeal deferred to U.S. federal courts’ ruling to allow teenager just under sixteen who expressed mature and reasonable basis for remaining with his father in Oklahoma rather than return to his mother who lived in Canada, his former habitual residence, at least until U.S. courts have resolved effect of Oklahoma custody order and that of Sri Lankan court

The question in this case is whether an Ontario court should order a child’s return to this province for a custody hearing when an appellate court and a trial court in the United States have decided against ordering that child’s return. Determining whether to decline jurisdiction in favour of the American courts requires an analysis of the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S 11670; 1343 U.N.T.S 49; 19 I.L.M. 1501 [in force for U.S. July 1,1988] the basis for the U.S. courts’ decisions. Canada and the United States are parties to the Convention.

Paul Pitts (Petitioner or F), is an American citizen who resides in Ardmore, Oklahoma. He has been married for nine years to Sabrina Pitts. Ms. Pitts’ daughter, Sarah, lives with the family. The Respondent is Samarasinghe De Silva (Respondent or M), a citizen of the Republic of Sri Lanka (formerly Ceylon). M came to Canada as a refugee in 2003 and is now a “landed immigrant.”� She intends to stay in Canada and hopes to become a citizen. She currently lives in Barrie, Ontario with a daughter.

Jonathan (J) is the 14 year old son of M and F. He was born in Ardmore, Oklahoma on February 16, 1993. M, who was in the United States on a student visa when she gave birth to J, registered him as a citizen of Sri Lanka soon after he was born.

M and F separated shortly after J’s birth. A custody dispute arose and M filed family court proceedings in Oklahoma county court. The court ordered both parties not to take J from the court’s jurisdiction during those proceedings. M, however, violated this order and took J to Sri Lanka in July 1994. A month later, the state Court granted F custody of J. This order remains unmodified.

F eventually found out where J was living and visited him in Sri Lanka. M next lodged custody proceedings in the Sri Lanka courts. On September 29, 1996, a consent order granted custody of J to M. Like the 1994 Oklahoma order, this order has remained in effect.

For seven years, J lived with M in Sri Lanka. F visited J there several times. In 2003, M took her daughter and J and moved to Canada. In the summer of 2003, J spent two weeks in Oklahoma with F and then returned to Canada. In the summer of 2004, J spent one week in Oklahoma with F and again went back to Canada.

In July 2005, J went to Oklahoma. Though he was due to return to Canada on August 12, J did not return. He has been living in Oklahoma with F for more than two years. He is now 14 years old and attends Ardmore Middle School.

As soon as M realized that J was not going back to Canada, she resorted to the Ontario courts. On August 17, 2005, Ontario Superior Court of Justice made an ex parte order granting M interim and permanent custody of J. In the material filed in support of her motion, M did refer to her Sri Lanka custody order but she neglected to mention the original Oklahoma court order granting custody to F.

M next petitioned an Oklahoma federal court for an order returning J. to her custody in Canada pursuant to the Convention. A full hearing before a Magistrate Judge Kimberly West (MJ) took place in chambers on January 18, 2006. M and F were both present and represented by counsel.

On February 15, 2006, the MJ denied M’s petition, for two main reasons. First, the MJ held that M was trying to exploit the Convention for an improper purpose, namely, to circumvent her breach of 1994 the non removal order of the Oklahoma court. “[T]he fact remains [that] Petitioner violated an express and unequivocal court order issued by an Oklahoma court with competent jurisdiction, the existence of which she possessed actual notice [of] and now is trying to evade international law by creating a habitual residence for J to her unfair advantage.”�

“Second, the MJ gave considerable weight to J’s express view that he preferred to stay in Oklahoma. … In her “�Findings of Fact,’ the MJ described her interview with J as follows: “�During his stay in Oklahoma, J has maintained telephonic contact with Petitioner and J’s sister. J expressed to this Court his desire to remain with F because Ardmore has better schools than in Canada and he likes F’s house. J appears comfortable in his current surroundings, well settled in school and with friends and genuinely desirous of remaining in Oklahoma.”�

“J shows no animosity for Petitioner and states [that] Respondents have not spoken ill of her or discourages (sic) J from maintaining mostly unfettered contact with Petitioner and his step sibling. In sum, J demonstrated a remarkable grasp of the situation, the conflict between his parents and the proceeding. It is the evaluation of this Court that J has demonstrated a sufficient degree of maturity whereby his views and opinions may be given some persuasive weight.”�

In the Conclusions of Law section of her judgment, the MJ stated: “This Court has also considered [J's] expressed opinions as to his status in accordance with Article 13(b) of the Hague Convention. This Court observed J to be a bright, expressive child with a well developed understanding of his situation and the positions of his parents. He has attained an age and degree of maturity to so consider his views. Unlike M, this Court did not find J to be particularly swayed by lavish gifts and wealth in forming an opinion that the schools were better in Oklahoma, he enjoyed his friends and activities and his home. He is well settled in his environment in Oklahoma with [F] without apparent adult indoctrination. Allowing him to remain with [F] while an Oklahoma court determines custodial issues between his parents is in his best interests at this time.”�

F appealed the order. M filed the order and sought its confirmation in the Carter County Court for the State of Oklahoma “� the same court that issued the 1994 custody order in F’s favor. On February 21, 2007, a Judge denied confirmation of the motion judge’s order.

It will be recalled that Judge West had decided against M on two bases “� [1] the continuing validity and primacy of the original 1994 Oklahoma custody order and [2] J’s views as given credit pursuant to Article 13(2) of the Hague Convention. The Tenth Circuit disagreed with the first basis for Judge West’s decision. The Court stated that the normal focal point for determining a question of custody is the habitual residence of the child at the relevant time, which in J’s case was Canada. Accordingly, Judge West erred by placing too much reliance on the 1994 Carter County custody order in favor of F.

However, the Tenth Circuit strongly endorsed the second basis for Judge West’s decision, namely, her ascertainment of, and proper regard for, J’s views and preferences. After a detailed review of Article 13(2) of the Hague Convention, case law interpreting this article, and Judge West’s process for determining J’s views and preferences followed by her assessment of them, the Circuit Court concluded:

“While a father’s largesse could naturally be a factor in a child’s decision, our reading of the record suggests this was taken into consideration by the magistrate judge. Moreover, the fact [that] J and his father have discussed relocation over a period of time, and that J returned to Canada during the period of those ongoing discussions, convince us that this was a considered decision on J’s part and represents his honest wishes. We are also mindful of the [MJ's] opportunity to observe J in person, and we accord great deference to the court’s findings based on that experience.”�

Given the court’s duty to consider J’s best interest and to determine whether he was of sufficient age and maturity to weigh in on this matter, we find no error in the district court’s ultimate conclusion that J should remain in Oklahoma while Oklahoma courts decide the custody matter. We hold that, under the unusual circumstances of this case, it is appropriate to refuse repatriation to Canada solely on the basis of J’s desire to stay in Oklahoma.

In the view of the Canadian Court, the sole issue on this appeal is whether the Ontario courts should decline jurisdiction in this contested custody matter in favor of the Oklahoma courts.

“Among the most important factors guiding courts’ decisions to decline jurisdiction is comity “� the deference owed to the legitimate judicial acts of other countries: see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S. C. R. 897, 912 15 (S.C.C.), Antares Shipping Corp. v. “�Capricorn”�’(The) (1976), [1977] 2 S. C. R. 422, 448 (S.C.C.); Beals v. Saldanha, [2003] 3 S. C. R. 416 (S.C.C.). Comity is at the core of this case. The Superior Court order under appeal orders American authorities to return J to Canada. Decisions by U.S. federal courts at the trial and appellate level say the opposite; they decline to order J’s return. The key question in this case is therefore whether this court should defer to the Tenth Circuit’s decision to refuse to return J to Canada under the Hague Convention.”�

“Beyond the overarching principle of comity, the Hague Convention’s effectiveness depends on there being a general respect for the decisions under the Convention by the courts of the Contracting State to which the child has been removed. It is these courts that have primary responsibility for adjudicating Hague Convention applications: see Caruso v. Caruso, [2006] O.J. No. 5311 (Ont. S. C. J.).”�

“The combination of comity, on the one hand, and of the need to preserve the Hague Convention’s effectiveness, on the other, calls for courts to avoid interfering, as much as possible, with foreign interpretations of the Convention. As such, this court should respect the Tenth Circuit’s decision not to order J’s return to Canada unless that decision evinces a clear misinterpretation of the Hague Convention or fails to meet a minimum standard of reasonableness.”�

“The starting point in any case involving the Hague Convention must be to recognize its predominant objective “� securing the prompt return of abducted children to the country where they habitually reside. As expressed by La Forest J. in Thomson , supra, at p. 559: “�The underlying purpose of the Convention, as set forth in its preamble, is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence.’ The Convention is founded on the assumption that a wrongfully removed or retained child’s best interests will usually lie in the child’s prompt return to the country of habitual residence, and that the deterrent effect on wrongful removals or retentions of the Convention’s mandatory return procedure will also serve the interests of children generally: see W. (V.) c. S. (D.), [1996] 2 S. C. R. 108 (S.C.C.) at ¶ 77.”�

“However, the Convention provides for exceptions to the mandatory return of abducted or wrongfully retained children to their country of habitual residence. Four exceptions permitting non return relate (I) to children who have become settled in their new environment (Article 12); (ii) to a situation where the custodial parent in the country of habitual residence was not exercising custody rights at the time of removal or retention, or consented or subsequently acquiesced to the removal or retention (Article 13(1)(a)); (iii) to a situation where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13(1)(b)); and (iv) to a situation where return would violate the fundamental principles of the requested country relating to the protection of human rights and fundamental freedoms (Article 20).”�

“A fifth exception, central to this appeal, is contained in Article 13(2) of the Convention which provides: “�The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”�

“The primary reason Article 13(2) exists is simple: given that the Convention applies only to people under age 16 (Article 4), it would not make sense to apply the return mechanism with its full force to children close to age 16. The Convention’s reporter, Elisa Perez Vera, in her “�Explanatory Report’ in Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, vol. 3 (The Hague: 1980) at ¶ 30, describes Article 13(2) as “�absolutely necessary given the fact that the Convention applies, ratione personae, to all children under the age of sixteen; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.’”�

“Article 13(2) requires a court to engage in two inquiries: (1) does the child object to being returned; and (2) has the child attained an age and degree of maturity at which it is appropriate to take account of his or her views?”�

“[The MJ] undertook both of these inquiries. [As noted above], she conducted an in camera interview in her chambers with J. … J was a few days short of his thirteenth birthday when this interview took place.”�

“Judge West stated that J “�demonstrated a remarkable grasp of the situation, the conflict between his parents and the proceeding.’ He showed no animosity towards [M] He was not improperly influenced by [F]. Thus, Judge West concluded, J had attained an age and degree of maturity “�whereby his views and opinions may be given some persuasive weight.’ J’s views, … included “�his desire to remain in Oklahoma with [F]. Accordingly, Judge West refused to order J’s return to Canada. A year later, the U.S. Court of Appeals for the Tenth Circuit dismissed M’s appeal from Judge West’s order.”�

“In my view, the Tenth Circuit’s decision merits deference. It is not a clear misinterpretation of the Hague Convention and does not fail to meet a minimum reasonableness standard.”�

“There can be no doubt that J had “�attained an age and degree of maturity at which it is appropriate to take account of his views.’ … The parties agreed that Judge West should interview J, a clear sign that they recognized his maturity and the relevance of his views. I note, parenthetically, that the Children’s Law Reform Act, R.S.O. 1990, c. C 12, s. 64(2), specifically permits a court to interview a child to determine the child’s views and preferences in a custody proceeding. … The Tenth Circuit affirmed this component of Judge West’s reasoning. I see no basis for challenging this conclusion of the two U.S. courts.”�

On the second issue, Judge West recorded J as expressing “his desire to remain with [his father]“� and, later, “his desire to remain in Oklahoma with [his father]“�.

“It might be contended that a “�desire’ to remain in Oklahoma is not the same as an objection to returning to Ontario, which is what Article 13(2) requires. However, such a distinction is strained. Judge West recorded J’s reasons for preferring to stay in Oklahoma, including his comfort in his father’s home and his satisfaction with his school, activities and friends in Ardmore. On her description, J compared his life in Oklahoma with the possibility of living in Ontario and came out in favor of Oklahoma. In these circumstances, a fair conclusion is that J’s “�desire’ to stay in Oklahoma comprehends an objection to returning to Ontario, at least at this point in his life.”�

“For these reasons, I conclude that Judge West’s invocation of Article 13(2) of the Hague Convention to refuse to order J’s return to Ontario, and the Tenth Circuit’s affirmation of that decision, deserve deference from this court.”�

“I make one final observation. If the parties cannot resolve their dispute, a custody hearing on the merits must take place in the appropriate Oklahoma court. As the Tenth Circuit court emphasized, the original 1994 Oklahoma court order granting custody of J to F no longer governs.”�

“Accordingly, a new custody hearing in Oklahoma will be necessary if the dispute cannot be resolved. J will be 15 years old next month. His opinion regarding where he wants to live will be even more than highly persuasive “� it will probably be determinative. Accordingly, the parties should seriously consider a means of fairly ascertaining J’s views without further delay, expense and conflict so that both parents can be actively involved in J’s life.”�

“I would allow the appeal. The Ontario courts should decline their admitted jurisdiction in this contested custody dispute in favor of the Oklahoma courts.”� [¶¶ 35 51].

Citation: De Silva v. Pitts, 2008 CarswellOnt 41; 2008 ONT. C. A. 9 (January, 2008).

Filed in: 2008 International Law Update, Issue 2

In dispute over alleged parental abduction of children from Mexico, Sixth Circuit remands for district court to consider what conditions, if any, could ensure the safety of the children upon their return to Mexico during the pendency of custody proceedings

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In dispute over alleged parental abduction of children from Mexico, Sixth Circuit remands for district court to consider what conditions, if any, could ensure the safety of the children upon their return to Mexico during the pendency of custody proceedings

Defendant Claire Simcox appeals from a district court decision ordering her to return to Mexico with two of the four children who currently reside with her in Ohio. The district court found that the return of the minors was required under the Hague Convention on Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act (ICARA).

The Defendant and the Plaintiff, both U.S. citizens, had since 2002 resided in Mexico, though in three separate states therein. The family traveled frequently for Mr. Simcox’s work, and spent time in some 45 different countries. In January 2006, Mrs. Simcox left Mexico with four of her children, and escaped to Ohio, where she had family. In assessing the case, the district court was hindered by a lack of credible evidence provided from either party, and Mr. and Mrs. Simcox presented vastly differing views on the home situation the children had been in. However, based on testimony of the three eldest children, the court determined that Mr. Simcox was verbally abusive to his wife and often used physical punishment against the children.

“Mr. Simcox filed this petition seeking return of the children to Mexico on January 12, 2007, nearly one year after the abduction. Preliminarily, the district court concluded that Mr. Simcox had established, by a preponderance of the evidence, that the children were wrongfully removed from Mexico the country of ‘habitual residence’ within the meaning of the Hague Convention and thus the burden shifted to Mrs. Simcox to prove one of the defenses against return permitted under Article 13. The court noted that the Convention authorizes a court to decline to order the return of a child who objects to such return, if the child is of sufficient age and maturity to consider its views. Id. at 952. The court found that the two older children ‘possessed the requisite level of age and maturity sufficient for this Court to consider their views,’ noted their ‘unequivocal[] . . . objections to return[ing] to Mexico,’ and thus declined to order their return.” [¶ 24]. The court also found the two youngest children, aged 4 and 8, lacked the requisite level of age and maturity, and their views were not taken into account.

Despite much evidence of the ill temperament of Mr. Simcox, and his overwhelming need to control combined with a tendency to act out violently, and noting that Mrs. Simcox “ha[d] provided evidence of a serious risk of harm due to abuse and emotional dependence,” the lower court held that it could “only consider that evidence ‘directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation. [¶ 26]. The court then concluded that the threshold of a “grave risk” required to decline to order the return of the younger children was not met.

The district court ultimately decided that Mrs. Simcox had not met her burden of demonstrating a valid defense to the return of the two youngest children, and ordered their return to Mexico for determination of custody by the Mexican courts. Because of evidence of serious abuse at the hands of Mr. Simcox, the district court conditioned return of the children on certain “undertakings” to reduce the risk of harm to the children upon their return to Mexico. For protection, the court further ordered Mrs. Simcox return with them, and retain custody until a decision could be reached by the Mexican courts.

Mrs. Simcox appeals, and raises five arguments: “(1) the district court erred in holding that Mexico was the children’s place of habitual residence prior to their removal; (2) the district court misinterpreted Article 13b of the Convention, which permits a court to decline to order return if such return would present a “grave risk” of harm to the children; (3) the district court erred in adopting undertakings that required Mrs. Simcox herself to return to Mexico and that did not sufficiently ameliorate the risk of harm to the children; (4) the district court erred in holding that Mr. Simcox had not consented to the removal of the children; and (5) the district court erred in determining that D. Simcox was not of sufficient age and maturity to consider his objection to being returned to Mexico.” [¶ 36]

The U.S. Court of Appeals for the Sixth Circuit reverses and remands. In particular, it affirms the district court decision on points 1, 4, and 5, but remands for further consideration on points 2 and 3. Although the Court agrees with much of the district court’s legal analysis of the Hague Convention, its ordered “undertakings” are problematic in this case, in particular the order hat Mrs. Simcox herself return to Mexico. The district court should reconsider what conditions, if any, could ensure the safety of the children in Mexico during the pendency of custody proceedings.

On the matter of the Court’s interpretation of Article 13b and the order that Mrs. Simcox also return to Mexico, the Court takes issue with the lower court’s reasoning. Under Article 13b of the Hague Convention, a court “is not bound to order the return of the child 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.” The question before the Court then is at what level will ordering a return expose the child to a “grave risk” of harm or place the child in an “intolerable situation.” This question has no clear answer, but the Court provides an analysis based on both the Hague Convention and its progeny.

“In considering these authorities, we believe that Hague Convention cases dealing with abusive situations can be placed into three broad categories. First, there are cases in which the abuse is relatively minor. In such cases it is unlikely that the risk of harm caused by return of the child will rise to the level of a “grave risk” or otherwise place the child in an “intolerable situation” under Article 13b… Second, at the other end of the spectrum, there are cases in which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. In these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court’s orders. Consequently, unless ‘the rendering court [can] satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser’s custody,’ the court should refuse to grant the petition. Third, there are those cases that fall somewhere in the middle, where the abuse is substantially more than minor, but is less obviously intolerable. Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return. Even in this middle category, undertakings should be adopted only where the court satisfies itself that the parties are likely to obey them… Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.” [¶ 58]

In examining the facts of the case, the Court concludes that it falls into the second category of situations. While some level of discretion is required, the district court’s order has been inappropriate for two primary reasons:

“The problem with these undertakings is two fold. First, the court ordered Mrs. Simcox herself, not just the children, to return to Mexico. Thus, Mrs. Simcox could arguably defeat the order of return by simply refusing to accompany her children to Mexico… Second, there may be doubts as to the enforceability of these undertakings. By the district court’s analysis, Mr. Simcox has exhibited ‘an arrogance, a need to be in control and a tendency to act out violently,’ and such traits raise questions as to Mr. Simcox’s willingness to abide by the court’s undertakings, as do his threats to have his wife arrested upon her return to Mexico.” [Slip op. 16]

The Court remands, and instructs the district court to determine what undertakings, if any, would be sufficient to ensure the safety of the Simcox children upon their return to Mexico pending the outcome of custody proceedings.

Citation: Simcox v. Simcox, No. 07 3911 (6th Cir. December 28, 2007).

Filed in: 2007 International Law Update, Issue12

In case of minor children being taken to the U.S. from France without French parent’s consent the Sixth Circuit holds that the Children’s habitual residence was in the U.S., under the Hague Convention, where they had returned to France for three weeks after an eleven month stay in the U.S.

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In case of minor children being taken to the U.S. from France without French parent’s consent the Sixth Circuit holds that the Children’s habitual residence was in the U.S., under the Hague Convention, where they had returned to France for three weeks after an eleven month stay in the U.S.

Ivan Nicholas Robert (Petitioner), a citizen of France, married Gayle M. Tesson (Respondent), as citizen of the United States, on January 6, 1996 in France. They had meet in 1994 in Houston, Texas where Petitioner was training to be a helicopter pilot. On May 22, 1997 Respondent gave birth to twin boys, Thomas J. Robert and Alexis E. Robert in Houston, Texas.

In December of 1998 the family moved to France, after establishing a French company called SCI TAGIR, which was used to purchase a lot in Cabris, France. The family lived in an apartment near the lot they had purchased until July 1999, when the parties decided that their marriage was not working, and separated. Respondent took the boys to Baton Rouge where they lived in a rented apartment and the boys attended school.

In September of 2001 the Respondent and the boys returned to France to reunite with Petitioner. The parties agreed to purchase and renovate a rustic house named “Mas Verdoline”, which lacked electricity and running water. The family lived in a rental in Cabris during their stay in France because the renovations on Mas Verdoline had not been completed. The boys attended French school and became fluent in French during this time. The marriage became strained once again and in July of 2002, Respondent left to take a temporary position in Denver, Colorado. The boys stayed in France with Petitioner due to the demanding nature of Respondents employment.

Respondent returned to France in November of 2002 and returned to Denver with the boys in December of 2002. The boys attended school in Denver and had little contact with the Petitioner during this time. In September of 2003, Respondent took the boys back to France after purchasing round trip tickets with a return date of October 8, 2003. The family stayed together at Mas Verdoline and the boys were enrolled in French school. On October 8, 2003 the parties had an argument after which the Petitioner left the house alone. Respondent took the children back to Denver while the Petitioner was away, leaving a note stating that Respondent was taking the children to see sick mother.

Respondent filed for legal separation from Petitioner in Ohio on December 3, 2003. Petitioner filed for divorce in a French court on January 23, 2004 and then filed a criminal complaint alleging that Respondent had abducted the children. The French court granted temporary custody of the boys to Petitioner on September 22, 2004. Respondent was convicted of the criminal charges on December 12, 2005, receiving a one year suspended sentence.

Petitioner filed a Petition for Return of Children in the Southern District of Ohio, pursuant to the International Child Abduction Remedies Act, 42 U.S.C. Section 11601, alleging that Respondent removed the boys from France in violation of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). A magistrate judge issued a report and recommendation on June 29, 2005. “Relying largely on the Ninth Circuit’s decision in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (“Mozes”), the magistrate judge found that the parties lacked a shared intent to remain in France, and recommended that the petition seeking return of Thomas and Alexis be denied. The district court adopted the magistrate judge’s report in its entirety on May 19, 2006” [Slip op. 7]. Petitioner filed an appeal in the United States Court of Appeals for the Sixth Circuit, which affirmed the decision of the district court.

The Circuit Court first addressed the issue of the proper legal standard to be applied. The Circuit Court had previously addressed this issue in Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (“Friedrich I”). The Circuit Court held that in assessing habitual residence under the Hague Convention. “Inquiry should focus exclusively on the child’s ‘past experience.’” “‘Any future plans’ that the parents may have ‘are irrelevant to our inquiry.’” [Slip op. 9].

The Ninth Circuit had elaborated a different standard in Mozes, which according to the Sixth Circuit held that “the subjective intentions of the parents are all but dispositive of a child’s habitual residence.” [Slip op. 10].

“Ignoring this Court’s binding decision in Friedrich I, the magistrate judge applied the Ninth Circuit’s rule in determining that Thomas and Alexis Robert are habitual residents of the United States. The magistrate judge determined that ‘the parties held no shared intent to abandon the United States’” [Slip op. 11].

“Rather than apply the Ninth Circuit’s rule in Mozes, the magistrate judge should have followed this Court’s decision in Friedrich I that is, the court below should have focused solely on the past experiences of the child, not the intentions of the parents. [Cite].” [Slip op. 12].

The Sixth Circuit did, however adopt the Third Circuits Ruling in Feder v. Evans Feder, 63 F.3d 217 (3d. Cir 1995), which held that “a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective” Feder, 63 F.3d at 224.

Addressing the standard of review the Sixth Circuit found fault with the district court because “[r]ather than apply this preponderance of the evidence standardthe magistrate judge applied the heightened standard of evidence adopted by the Ninth Circuit in Mozes.” [Slip op. 15].

“The International Child Abduction Remedies Act expressly states that courts should apply a preponderance of the evidence standard, 42 U.S.C. Section 11603(e)(1), not the unequivocal evidence standard adopted by Scotland and the Ninth Circuit. As a United States Court of Appeals, this Court is bound by Congress’ decision.” [Slip op. 16].

“Turning now to the merits of the case, we hold that even though the district court applied an incorrect legal standard in determining Thomas and Alexis’ habitual residence, it reached the correct result in holding that they were habitual residents of the United States at the time of their removal from France.” [Slip op. 18].

Even assuming that the boys acquired an habitual residence in France during their 15 month stay in that country, the boys took up a new habitual residence in the United States during the period beginning December 2002 when they lived in DenverAs the magistrate judge found, the children became “more and more socialized in the United States.” [Cite]. They attended American schools, formed meaningful relationships with their American relatives, and participated in excursions throughout the United States.” [Slip op. 19].

“Having determined that the boys were habitual residents of the United States at the time they boarded their September 2003 flight to France, the remaining question is whether or not their habitual residence changed from the United States to France during their three week stay at Mas Verdoline.”

“[S]ome evidence points to a conclusion that the boys did acquire a new habitual residence while in France. The boys were already fluent in French, and they were briefly enrolled in a French school.”

“These facts, however are not sufficient to outweigh the volumes of evidence suggesting that the boys would have perceived their stay in France to be merely a temporary journey before they returned to a permanent residence in the United States. First, their French father did little to welcome them to France or communicate that they should expect a long stay. Second  Thomas and Alexis brought only “two seasons worth of clothing” to France, a fact that suggests a return to the United States when the weather became warmer. Third, the actual length of the boys’ stay in France was only three weeks, hardly enough time for them to become “acclimatized” to a new residence, and far less than the ten months they had recently spent in the United States. Finally, the rough state of Mas Verdoline would suggest to any child that the French house was completely unlivable.” [Slip op. 20].

“The twins’ final trip to France lasted only three short weeks. In that time, they had few experiences that would have acclimatized them to their new surroundings, or which would indicate a settled purpose to remain in France. Indeed, most of their experiences at Mas Verdoline suggest the opposite. Accordingly, we hold that the twins’ habitual residence at the time of their removal from France was the United States.” [Slip op. 21].

Citation: Robert v. Tesson, No. 06 3889 (6th Cir. November 14, 2007).

Filed in: 2007 International Law Update, Issue10

Tenth Circuit rules that it cannot order child to be returned to U.S. under Hague Convention on Child Abduction (1) where Respondent took child from U.K. to U.S. in violation of English custody order, and (2) where new English custody order limiting Respondent’s custody rights prevents U.S. courts from granting relief

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Tenth Circuit rules that it cannot order child to be returned to U.S. under Hague Convention on Child Abduction (1) where Respondent took child from U.K. to U.S. in violation of English custody order, and (2) where new English custody order limiting Respondent’s custody rights prevents U.S. courts from granting relief

Bina Shahani (Respondent) and John Navani (Petitioner) were married in England in 1995. They had one son in 1996 named Jivan. After the marriage ended in divorce nine years later, an English family court gave primary custody to Respondent and visitation rights to Petitioner. Pursuant to Respondent’s written request, Petitioner consented that Respondent take Jivan to the U.S. for a trip.

Respondent, however, did not return to England. Petitioner next filed a proceeding under the Hague Convention on the Civil Aspects of International Child Abduction [Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49] in federal district court in New Mexico. The Court ordered Jivan returned to England. Thereafter an English court gave Petitioner primary custody of Jivan and limited Respondent’s access to the child. Respondent filed an appeal in the U.S. Court of Appeals for the Tenth Circuit. Petitioner’s motion to dismiss this appeal as moot is granted and this appeal is dismissed.

“The Hague Convention seeks to deter parents who are dissatisfied with current custodial arrangements from abducting their children and seeking a more favorable custodial ruling in another country. [Cite]. Generally, it creates an international legal mechanism requiring contracting states to promptly return children who have been wrongfully removed to, or wrongfully retained in, their jurisdiction, without deciding anew the issue of custody.

[Cite].” [Slip op. 2]

The Circuit Court first turns to the issue of Petitioner’s motion to dismiss the appeal on mootness grounds. “In the event that we would conclude that the district court erred in granting Petitioner’s Hague Convention petition and in ordering Jivan’s return to England, Petitioner argues that the new custody order nonetheless precludes us from granting Respondent any effectual relief and therefore moots her appeal … in two ways.”

“First, the English family court concluded in the new custody order that Respondent wrongfully retained Jivan in the U.S. in violation of Petitioner’s rights of custody. Petitioner contends that the English family court’s ruling on wrongful retention settles the issue that Respondent raises in this appeal: whether Petitioner had rights of custody over Jivan sufficient to trigger the Hague Convention’s mandatory return remedy.”

“Second, Petitioner argues that Jivan cannot be ordered to return to Respondent’s custody because the English family court has determined that custody should now be with Petitioner, not Respondent.”

“We agree with Petitioner … If we conclude that the district court should not have ordered Jivan’s return to England because Petitioner failed to make his threshold showing that he possesses rights of custody over Jivan, the only way to remedy the error would be to order Jivan’s return to the U.S. to be reunited with Petitioner.”

“Yet the new custody order … forbids Respondent from removing Jivan from his father’s care and the jurisdiction of the English family court.” [Slip op. 7]

“Although the Full Faith and Credit Clause does not require us to recognize judgments, such as the new custody order, which are rendered in foreign countries, [cite], the new custody order should be given effect in American courts for two reasons. First, general principles of comity normally counsel giving ‘considerable deference’ to a foreign judgment.”

“Second, and more fundamentally, factors unique to the Hague Convention suggest that the English family court should be given the final word, through the new custody order, in this matter The Hague Convention attempts to prevent an international version of forum shopping. … [Cites].” [Slip op. 8]

“Neither party disputes that England is Jivan’s country of habitual residence. [Cites]. As a result, the English family court had, and continues to have, plenary jurisdiction over Jivan’s custody.” [Slip op. 9]

“Granting Respondent the relief she seeks would create the evil that the Hague Convention was intended to prevent: dueling custody orders issued by separate national courts.” [Slip op. 10]

The Court next addresses Respondent’s arguments. “First, she contends that the issue in her appeal remains whether Respondent breached Petitioner’s rights of custody under the original custodythe fact remains that we cannot grant her any effectual relief, even if we decided the issue in her favor”

“Second, Respondent asserts that the new custody order violates principles of English family law in determining that Petitioner had equal rights of custody at the time of the allegedly wrongful retention.” The Circuit Court, however, holds that “the only way for us to remedy the error would be to hold that the English family court incorrectly interpreted its own law in deciding custody. The Hague Convention explicitly forbids us, however, from determining the merits of custody.” [Slip op. 11]

“Third, Respondent suggests that the new custody order should have no effect in American courts because it was issued ex parte without her participation. [Cite]. It is true that principles of comity generally require us to examine the fairness of the foreign country’s judicial procedures  [a]lthough Respondent wishes to leave us with the impression that the English family court is a renegade body that routinely issues orders without hearing from both sides, Respondent’s affidavit makes clear that Respondent’s failure to participate in the English family court proceedings was her choice, not the result of the inherent unfairness of the English judicial system.” [Slip op. 12]

“Fourth and finally, Respondent asserts that this appeal is analogous to [cases] in which the Third and Fourth Circuits concluded that an appeal of an order granting a Hague Convention petition is not mooted by the child’s return to his country of habitual residence during the pendency of the appeal. … [T]he Fourth Circuit explained that it retained the power to grant meaningful relief because the district court could order the child’s return to the U.S. following a reversal and remand.”

“Furthermore, it noted (because the case involved Scottish law) that the courts of the UK are required by statute to recognize another contracting state’s Hague Convention orders meaning that if a federal court of appeals reversed a district court’s granting of a return petition, the courts of the UK would recognize that reversal and provide for the child’s return to the U. S.” [Slip op 12 13]

Citation: Navani v. Shahani, 2007 WL 2171355 (10th Cir. 2007).

Filed in: 2007 International Law Update, Issue7

In case of alleged child abduction under statute implementing Hague Convention, Tenth Circuit declines to order immediate repatriation of thirteen year old child to Canada with his mother based solely on child’s expressed desire to remain with his father in U.S. pending decision on permanent custody

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In case of alleged child abduction under statute implementing Hague Convention, Tenth Circuit declines to order immediate repatriation of thirteen year old child to Canada with his mother based solely on child’s expressed desire to remain with his father in U.S. pending decision on permanent custody

In Oklahoma, S.L.V.M. Cyndie de Silva (de Silva or Petitioner) and Paul Pitts (Pitts or Respondent) had a son together in 1993 named Jonathan. The two never married. Petitioner then registered Jonathan as a citizen of Sri Lanka, her native country. The following year, Petitioner took Jonathan to Sri Lanka without Respondent’s permission. An Oklahoma state court later awarded Respondent full custody. Respondent, however, gave up custody to Petitioner in light of her custody proceeding in Sri Lanka where Petitioner was likely to prevail.

Petitioner fled Sri Lanka with Jonathan in 2003 and settled in Canada. In 2005, after he had visited Respondent in Oklahoma, Jonathan decided that he did not want to return to his mother. Petitioner then asked a Canadian court to enforce the Sri Lankan custody order.

During the course of the Canadian proceeding, Petitioner also sued Respondent in U.S. district court to have her son returned to Canada. She invoked the International Child Abduction Remedies Act (ICARA) [42 U.S.C. Sections 11601 11610] which implemented the Hague Convention on the Civil Aspects of International Child Abduction (Convention) [1988 WL 411501, T.I.A.S. No. 11,670]. The Convention’s purpose is to protect children from being wrongfully removed or retained in a foreign country and to facilitate their return.

After hearing from the parties and interviewing Jonathan, the district court denied Petitioner’s ICARA request. She appealed. The U.S. Court of Appeals for the Tenth Circuit affirms, reasoning that the child would be better off in Oklahoma pending the ultimate decision on permanent custody. Thus, the Circuit Court decides only the retention claim, (i.e. whether Respondent’s retention of Jonathan in Oklahoma is wrongful) and does not address the question of which parent is the more suitable.

“The removal or retention of a child is wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention, where such rights were actually exercised by the parent seeking return of the child. The Petitioner bears the burden of showing by a preponderance of the evidence that the removal or retention was wrongful.”

“More specifically, the Petitioner must show that: (1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of Petitioner’s custody rights under the laws of that state; and (3) petitioner was exercising those rights at the time of removal or retention.” [Slip op. 2]

“As an initial matter, … the Petitioner, was required to establish that [Respondent's] retention of Jonathan in Oklahoma was wrongful. To do that, she had to show by a preponderance of the evidence that [Respondent] retained Jonathan away from Jonathan’s habitual residence. She was also required to show she was exercising her parental custodial rights at the time of the wrongful retention (or at least would have exercised those rights but for the wrongful retention) under the laws of the country of Jonathan’s habitual residence. Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993).”

“Once a Petitioner establishes that removal was wrongful, the child must be returned unless the Respondent can establish a defense. Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996). There are four defenses set out in the Convention, which are narrowly construed, [cite], and which are not relevant here. There is also a fifth consideration, left to the discretion of the judicial or administrative authority, which allows for refusal to order the return of a child where ‘the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.’ Hague Convention, 1988 WL 411501, Art. 13.” [Slip op. 6 7].

In applying this “age and maturity” exception, the court must keep in mind the Convention’s purpose. … The Convention does not specify an age for this determination. In this case, a magistrate judge interviewed Jonathan in camera outside the parents’ presence. By this time 13 years old, Jonathan explained that he preferred to remain with his father in Oklahoma because he had a nice home there and a greater chance to get a good education.

The Judge thought that Jonathan was bright, expressive, and understanding of his parents’ situation. Thus, the Judge acceded to Jonathan’s wish to stay with Respondent until some court or agency formally rules on permanent custody since it appears to be in Jonathan’s best interest.

Citation: Silva v. Pitts, 481 F.3d 1279 (10th Cir. April 5, 2007).

Filed in: 2007 International Law Update, Issue4