Neumann v. Neumann
187 F. Supp. 3d 848
E.D. Mich.2016Background
- Steven and Julie Neumann lived in Mexico from Feb 2011 until Dec 2014 with their three children (born 1999, 2002, 2003) while Steven worked in Mexico City on a Ford assignment; children attended a local international school and were integrated into Mexican life.
- On Dec 26, 2014 a serious domestic altercation occurred (involving alcohol, a knife and injuries to Julie); two days later Julie left Mexico with the three children and brought them to Michigan.
- Steven filed a Hague Convention petition in federal court seeking return of the children to Mexico; the court conducted a four-day evidentiary hearing, appointed a child psychologist, and interviewed the children in camera.
- Court found Mexico was the children’s habitual residence at the time of removal and that Steven retained and was exercising custodial rights under Mexican law, establishing a prima facie case of wrongful removal.
- Julie asserted affirmative defenses under Hague Convention art. 13: consent/acquiescence, the children’s objection due to maturity, and grave risk of physical or psychological harm if returned (pointing to domestic violence and Steven’s alcoholism).
- The court denied the consent/acquiescence and maturity defenses and found Julie failed to show by clear and convincing evidence a grave risk of harm to the two younger children; it ordered return of JSN and MKN to Mexico (older child had turned 16 and Hague no longer applied).
Issues
| Issue | Plaintiff's Argument (Neumann) | Defendant's Argument (Julie) | Held |
|---|---|---|---|
| Country of habitual residence | Children lived in Mexico for ~4 years, attended school and had settled daily life there | Children retained ties to Michigan and parents lacked settled intent to remain in Mexico | Mexico is the habitual residence (presence and acclimatization sufficient) |
| Wrongful removal / exercise of custody | Steven had joint custodial rights under Mexican law and was exercising them; removal breached those rights | Julie argued Steven had abandoned exercise (no contact for two days; intoxicated) | Steven retained and was exercising custody; removal was wrongful (liberally apply "exercise") |
| Consent / acquiescence | N/A (denies consent) | Julie pointed to heated statements (e.g., "get out of my life") as consent/acquiescence | Isolated/angry statements in dispute do not constitute formal relinquishment or unequivocal acquiescence; defense rejected |
| Child objection / maturity | N/A | Boys prefer to stay in U.S.; thus their objections should bar return | Children’s expressed preferences were not specific objections to repatriation and, as to the boys, they were not sufficiently mature; defense rejected |
| Grave risk of harm (art. 13(b)) | N/A | Return would expose children to physical or psychological harm from domestic violence and Steven’s untreated alcoholism | Julie failed to prove by clear and convincing evidence a grave risk of physical or psychological harm to JSN and MKN; return ordered for those two children |
Key Cases Cited
- Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) (focus on child-centered habitual-residence inquiry and limits on district court resolving custody merits)
- Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (clarifies ‘‘exercise’’ of custody and narrow scope of Hague exceptions)
- Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) (defines habitual residence as acclimatization and settled purpose from child’s perspective)
- Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007) (burdens for Convention defenses and discussion of grave risk categories)
- Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006) (school and daily activities are central indicators of habitual residence)
- Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) (examined parents’ subjective intent in habitual-residence analysis; criticized by Sixth Circuit)
- Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (ordering return does not automatically place children in petitioning parent’s custody; other protective arrangements possible)
- Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (grave risk of psychological harm requires high risk and not mere unhappiness with return)
- Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (limited spousal abuse in presence of child insufficient for grave risk exception)
- Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000) (extensive domestic violence and threats can establish grave risk of harm)