788 S.E.2d 261
Va. Ct. App.2016Background
- Father (U.S. citizen) and mother (Korean/U.S. dual citizen) married in 2004; child J.C. born in Arizona in 2007. Mother and J.C. moved to Korea in 2011 while father deployed; they remained there until December 2014.
- Father bought round‑trip tickets for mother and J.C. to visit the U.S. in December 2014; upon arrival father took J.C.’s passports and later kept J.C. in Virginia without mother’s consent.
- Father alleged J.C. disclosed sexual abuse in Korea and obtained psychological evaluations; mother sought prompt return of J.C. to Korea under the Hague Convention/ICARA.
- The juvenile court initially denied mother’s emergency petition as premature; on de novo review the circuit court found J.C.’s habitual residence was Korea, father’s retention was wrongful, and ordered return to mother after a court‑appointed forensic expert found no evidence of abuse.
- The circuit court awarded mother $29,955.37 in fees, interpreter and transportation costs under ICARA and added handwritten findings that father fabricated/manipulated abuse allegations; father appealed but many arguments were found procedurally defaulted or waived.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Coe) | Held |
|---|---|---|---|
| Habitual residence prior to retention | J.C. had lived in Korea since 2011 and was acclimatized there; Korea is habitual residence | Father argued U.S. (Arizona) was habitual residence, urging a Third Circuit shared‑intent test | Court held Korea is J.C.’s habitual residence (adopted Fourth Circuit/Miller standard; child was old enough and physically acclimatized) |
| Wrongful removal / custody rights | Mother argued father’s retention breached her custody rights under Article 3, making return mandatory | Father contended he did not violate mother’s custody rights | Court accepted circuit court finding that father violated mother’s custody rights; father’s contrary assignment was procedurally barred/waived |
| Grave‑risk exception (Article 13(b)) — alleged abuse in Korea | Mother maintained no clear/convincing evidence of abuse; expert found no abuse, so exception does not apply | Father argued J.C. would face grave risk of physical/psychological harm if returned | Court held father failed to prove grave risk by clear and convincing evidence; return ordered (father’s grave‑risk claims were procedurally defaulted in part) |
| ICARA fee/cost award and opportunity to object | Mother sought necessary expenses under 22 U.S.C. § 9007(b) and argued father had chance to object to draft order | Father argued award was inappropriate and claimed he lacked opportunity to object to final order | Court held father had opportunity to object (received draft 2 weeks before entry), fee award was not clearly inappropriate; affirmed award and remanded to calculate appellate fees/costs |
Key Cases Cited
- Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) (habitual‑residence analysis equates ordinary and habitual residence; fact‑specific inquiry)
- Feder v. Evans‑Feder, 63 F.3d 217 (3d Cir. 1995) (habitual residence involves acclimatization and settled purpose from child’s perspective)
- Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) (for very young children, parental shared intent gains prominence in habitual‑residence analysis)
- Abbott v. Abbott, 560 U.S. 1 (U.S. 2010) (Convention requires return absent applicable exception)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (U.S. 2014) (Convention’s object is prompt return to country of habitual residence)
- Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) (habitual residence pertains to customary residence prior to removal)
- Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004) (custody dispute pending at time of removal is irrelevant to Convention’s applicability)