*1 MILLER, Petitioner-Appellee, Doris MILLER, Respondent-
William
Appellant.
No. 99-2630. Appeals, Court of
United States
Fourth Circuit.
Argued Dec.
Decided Feb. *3 Porter, P.A., Charlotte, NC,
Henderson & Appellee. for ON BRIEF: A. Marshall II, Charlotte, NC, Basinger, Appellant. for Cannon, Passenant, Thomas R. Sheila G. Cannon, Helms, Porter, Henderson & P.A., Charlotte, NC, Appellee. KING, Before WIDENER Circuit GARWOOD, Judges, and Senior Circuit Judge of the United States Court of Circuit, Appeals for Fifth sitting by designation.
OPINION KING, Judge: Circuit (“Miller”) appeals William Miller from him against the decision rendered in the Western District of North Carolina order- the return ing of his infant children to mother, in custody Canada of their (“Ms.Miller”). See Memoran- Doris Miller 4,1999 (“Dis- dum and Order of November Order”). trict Court The district court proceeded under the International Child (“ICARA”), Abduction Remedies Act 11601-11610, §§ implements U.S.C. Aspects Convention on the Civil (“Hague of International Child Abduction Convention”), 25, 1980, Oct. T.I.A.S. 11,670, 19 I.L.M. 1501. We affirm the district court.
I. August forcibly Miller removed in the children from their mother’s home Catharines, (cid:127)Ontario, Canada, and St. brought them into the United States to Charlotte, him settle with in North Car- pursuant olina. Ms. Miller filed this action Convention,1 and the ICARA seeking the children’s return they ground illegally abducted by Miller in violation of a valid Canadian custody order. A. Paras, Emily Apy,
ARGUED: Patricia Reiss, P.C., Bank, NJ, dis- Apy, Appel- underlying Red The essential facts Helms, Cannon, Riley pute spelled lant. Troy, Christian are out District Court sig- 1. Both the United Canada to the Convention. States and are natories in North within become settled Carolina is a citizen and resident Ms. Miller Order. Canada, a citizen and Convention. meaning while Miller is par- The States. court ascertained that the re Finally, resident of United Miller, child, Hope elder Christian ties’ turn the children to Ms. Miller did health, in in Canada safety, was born risk to the “pose grave in married parties subsequently well-being of the children as defined 1995, prior to the birth of separated Id. by the Convention.” child, Taylor Faith Kendra younger was born Irwin who B. have since divorced. They August 1995. complicated by This case is a series court, in an October An Ontario orders courts conflicting issued (“Ontario Order”), perma granted decree Ontario, in both New York State and both the children to Ms. Miller. nent after the children were taken before and 28, 1998, arrived in Can On to North Carolina. The exercis ostensibly purpose for the ada— began spring a New battles visitation un supervised ing his court.5 Ms. Miller then filed a family and, without Ms. der the Ontario Order — 1995 in custody petition October Ontar- consent, took the children from Miller’s ap- intermittently io. The each and returned with them to the her home *5 appear peared in—and failed to in—both The district court found United States.2 They York and courts. the New Ontario during on the amount of time “[biased that violating each were admonished for various during in the children lived Canada orders, including regarding mandates visi- lives, respective of their the the course payment support. of rights tation and child in habitually resident Cana children were Subsequent to the Ontario Order of Oc- 28, District Court August da as of 1998.” 3,1997, the New York court awarded Order, Moreover, tober court deter at 4.3 the in custody of the children to Miller a filed her mined that Ms. Miller (“New 28, 1998 decree York year af March Or- petition less than one der”).6 relief, granting the New to the United ter the children were taken States,4 family Faith had not court noted that Ms. Miller Hope and that and maintained, 2. Ms. appears the in an affidavit to the It from record that Miller ini- Miller day Mr. Miller and an- tially petition custody Hope district court: "That filed a of home, me, my assaulted unborn) other man came to (then of Faith in New York in March Hope J.A. and abducted and Faith.” 1995, separated. while the See 183.t 18, (June J.A. 130 1999 order of Court of submitted, 3. Ms. Miller as evidence before the 3, Ontario); (November Appeal for J.A. 182 court, past regarding the declarations Miller). 1999 affidavit of Ms. Ms. Miller According of the children. residences thereafter, 1995, May pro- in initiated divorce resided, declarations, August Hope as of these 22, ceedings (April in New York. See J.A. 28 1993, parties; with both as of in New York court). family 1998 order of New York 1994, Canada; Miller in December with Ms. 1995, April as of arrangement, under shared court, 6, family February Miller in Canada and 6. The New York on with Ms. York; and, again, subsequent with in New as of Decem- August to the Ontario Or- 1998'— 1998, in ber 1995 until her removal temporary awarding der—issued a order cus- in Canada. Prior to her with her mother removal, tody Hope of and Faith to with always Faith lived in with supervised New visitation in York for Ms. Ms. Miller. order, temporary Miller. Prior to this any never had sole under court erroneously recounted the date of The court fact, York. In since December order 20, petition August petition 1998. The 1995, only entitled Miller had been visita- actually August was filed on 1999. The tion. correct, however, finding court was year the action was commenced less than one after the children’s removal from Canada. appeared person September application expressed judge had last his appeared hope upon on “most sincere although learning counsel had proceedings outcome these The court determined that her behalf.7 father will return to the Niagara Falls appear Mrs. Miller’s failure to “[g]iven area and will allow the children to visit behalf, this testify on her own Court hope with their mother.” That has not draw, and has drawn the permitted to been realized. strongest against inference her Order, view, application In our permits.” judge New York at 3 should evidence (citation omitted). The court then con- refused consider the cluded, fact, of the husband until the children were findings based on various returned to the of their mother. demonstrate a that “Mrs. Miller’s actions opinion In our that is still the appropri- understanding fundamental defect her position ate of the court. parenthood.” Id. at 10 duties (citation quotation and internal marks Ontario Court of at 6. Nota- omitted). bly, appeal par- the court of welcomed the litigate ties to further issue removing Before the children from Can- once the children were returned to Cana- ada, Miller twice asked Ontario courts to decree, however, Subsequent da. to this set aside the Ontario Order favor family the New York issued modi- Although New York his first re- Order. fying allowing order Miller to retain custo- second, rejected, quest was his substan- dy Hope and Faith and relocate with tially entreaty granted identical them to North Carolina. This modifying days a few after he re- order was issued on near- moved the children to United States. ly after Miller had absconded to However, the Ontario Order was reinstat- North with Carolina the children. ed in a 1999 order the Court June *6 (“Ontario of for of Ontario Court C. Order”). appeal The court of first pursuant Ms. Miller filed this action to that, recognizing the New determined Convention, 11,670, the Hague T.I.A.S. No. misap-
York the lower court had implemented in 19 I.L.M. as the plied regarding recogni- Canadian law the ICARA, by 42 United States U.S.C. foreign custody judgment. tion of a petition §§ initially 11601-11610. The was appeal court of also concluded submitted to the United States District for the District of New Court Western [wjhatever rights may the husband York on 1999. The action was by Order] had reason of the [New to thereafter transferred the Western Dis- otherwise, right had no either to or he Carolina, prop- trict of North where venue or to abduct the chil- assault his wife 11603(b) § erly (permitting lies. See view, In dren. our his conduct should “in Hague petitions Convention to be filed by application have been condemned the jurisdiction any court which has of such possible terms. judge strongest the action and which is authorized to exercise wife, the faults of the the Whatever jurisdiction place the its the where child husband had to be made aware that his filed”). petition at the time the is located objectives could not be achieved vio- or other unlawful conduct. To lence Ms. The district court treated Miller’s application in the circum- petition consider his as an for a of writ stances, See, approbate e.g., Zajaczkowski was to his con- v. corpus. habeas (D.Md. Zajaczkowska, F.Supp. ... 128 duct. served, temporary custody Though properly ap- preceding did not and a Order pear person proceed- or counsel—for in Ms. order Miller's favor. —in ings in Canada that resulted in the Ontario or retained “wrongfully removed 1996). prop was proceeding the Notice 11603(c), of the Convention.” meaning § within the parties, see the erly given n and, 11603(e)(1)(A). Thus, below, § Ms. Miller was the case U.S.C. explain as we (1) the children were prove that: had to by the determined appropriately time at “habitually resident” Canada the Hague Con the with court accordance States; 11603(d). to the United Miller removed them vention, §see (2) of Ms. Mil- was in breach the removal law; under Canadian ler’s II. (3) those exercising she had been A. Hague time of removal. See rights at the Convention, T.I.A.S. No. Hague Conven adopting the 2,19 at 1501.8 I.L.M. pro sought “to tion, nations signatory internationally from tect by Ms. Upon substantiation removal wrongful their harmful effects from her children that removal of procedures to to establish or retention and Faith’s return wrongful, Hope and to the State prompt return ensure their respondent, required unless residence, as well as se their habitual one four available defenses. established of access.” protection cure 11603(e)(2)(A) (requiring proof, § See 11,- Convention, pmbl., T.I.A.S. Hague evidence, convincing clear and one is, That I.L.M. at exceptions forth in article 13b or set Hague of the Convention primary purpose applies); Convention quo and to deter preserve is “to status 11603(e)(2)(B) proof, by a (commanding § bound crossing parents from international evidence, that some preponderance of the sympathetic of a more aries search 12 or 13 exception forth in article other set Friedrich, 983 F.2d court.” Friedrich applies). In or Convention /”). (“Friedrich Cir.1993) (6th 1396, 1400 therefore, Miller could prevail, der inqui scope of a court’s Consequently, the evidence, show, convincing by clear and is limited ry under the (1) risk grave that: there was claim. See the abduction merits of to Ms. Miller would ex children’s return 11601(b)(4). the district § As 42 U.S.C. pose physical psychological them to or action, in this correctly recognized in an intol place harm or them otherwise underlying any “The merits situation, see erable District Court case are not at issue.” *7 13b, 11,670, 4-5, at 19 art. T.I.A.S. No. added); Order, see also (emphasis at 3 (2) 1502, of the I.L.M. at or the return (9th 1124, 1128 Coppe, Shalit v. F.3d permitted not be children to would Canada Friedrich, Cir.1999); 78 F.3d Friedrich v. of the Unit by principles the fundamental (“Friedrich (6th Cir.1996) 1060, 1063-64 protection of “relating ed to the States II”). fundamental free rights human and Convention, 20, doms[,]” case, Hague art. petition In this Ms. 5-6, 11,670, at establish, at er, by prepon a T.I.A.S. No. I.L.M. required if evidence, prevail Miller also could he estab- that her children 1503. derance of alone, so "wrongful” jointly or or would have been removal or defines a This article but the removal or a as one where: exercised retention. retention of child rights custody sub- mentioned in rights custody at- it in breach of a. above, may particular paragraph a arise in any or person, a institution an tributed judi- alone, by operation by reason of of law or a body, jointly or under either other decision, byor cial or administrative reason the child was State in which law of the the habitually having legal agreement effect under of an immediately before the resident retention; the law of that State. removal or 11,670, Convention, 3, Hague art. T.I.A.S. No. at of removal or retention b. the time 2, exercised, at actually at 19 I.L.M. either those evidence, lished, preponderance wrongful present of the Canada was and his re- (1) commenced tention of them in the this action was not United States is that: abduction, wrongful.” of the and the District Court at 5. within one Moreover, now well-settled North the court children were concluded Convention, Carolina, art. Hague inapplicable see defenses raised Miller were 11,670, 4, I.L.M: at Accordingly, at this action. the court or- T.I.A.S. (2) actually placed or that Ms. Miller “was dered that the children be in Ms. at exercising the time Miller’s for their return to Cana- da, pro- ... or had consented to or subse- and that law enforcement removal officers removal!,]” acquiesced any necessary vide assistance quently to ensure 13a, Convention, homecoming. art. T.I.A.S. No. safe That order was carried 4,19 11,670,at I.L.M. at 1502. out and the children returned to Canada with their mother. competing
Because of the
York and Ontario
orders
III.
case,
significant
recognize
it is
that “the
pursuant
In an action
to ICARA
meant,
in part,
to lend
Convention,
and the
we review the
priority
to the
determination hail
findings
court’s
of fact for clear
from the child’s state of habitual resi
ing
error,
regarding prin
while its conclusions
Larson,
114 F.3d
dence.” Ohlander
domestic,
ciples of
foreign, and internation
(10th Cir.1997). Thus,
upon
al law are reviewed
us de novo. See
as the children’s
establishment
II,
(citing
Fñedrich
available defenses. We address these ar- B. guments turn. fact, setting findings After forth its A. I.A, supra Part district court con-
see First, Hope cluded that removal of Miller insists that because he had Miller’s permanent custody granted Faith to the United States was a breach of been *8 pursuant under the law to the York Ms. Miller’s Order Canada, 24, 1998, which was the habitual resi- of March the district court erred concluding of the children at the time of their in that Canada was the “habitu- dence Thus, determined, al of the children as of abduction. the court residence” (the day he to the Miller’s “removal of the children from removed them vention, pro- judicial 9. Article 17 of Convention bul the or administrative vides, full, following: in requested may State take authorities relating that decision in The sole fact that a decision account of reasons for given entitled to has been in or is applying this Convention. [here, recognition requested 11,- State No. T.I.A.S. ground States] United shall not be a for 5,at 19 I.L.M. at 1503. refusing to a under this Con- return child (Miller States) York violation of the New Order. and that Ms. United however, not, dispute appear under Ca- valid does exercising day. that to the amount of time the nadian law on evidence as in nor assert that
children lived
Canada
a result
began
their Canadian residence
moving them
wrongfully
of Ms. Miller
does not
Convention
there.)
However, in
define “habitual residence.”
make this determina
ascertaining how to
argument
Because Miller’s
tion,
precedent of
guided by the
we are
super
presumes that the New
Order
concluding
in
that “there
our sister circuits
granting
earlier Ontario
seded the
Order
ordinary res
no real distinction between
custody of the children to Ms.
we
Friedrich
residence.”
idence and habitual
turn to the Ontario Court
Order
Bates,
I,
(citing In re
ed
the district court
After
States.
case,
history
litigation
children’s habitual
the Ontar
determined
upheld
validity
at that time
Canada. Miller
io Court of
residence
pending
and that the
fur
maintains that this was error
the Ontario Order —at least
residence,
proceedings
recognition
United
was their habitual
ther
denied
States
—and
wrongfully
because Ms. Miller
retained the
of the New York Order based on Canadian
principles.11
In light
children in
as of March
conflict of law
of this
instead,
us,
applies only
10. Miller
to look to the New
that,
to determinations
courts with-
asks
*9
York
under the full
in the United States and its territories.
Order. He contends
provisions
faith
of the Parental
and credit
(''PKPA”),
Kidnapping
distinguished
colleague
Judge
Prevention Act
11. Our
1738A,
Garwood,
super-
§
concurring opinion,
U.S.C.
New York Order
the
in his
main-
merely
sedes the
Miller’s reliance on
the Ontario Court of
Ontario Order.
tains that
however,
sought
pre-removal
quo
misplaced,
the PKPA
because it
to restore the
status
parent
exercising
custody
was
lawful
we see no reason
disposition,
reasonable
to the court’s decision.
rights
to defer
over a child at the time of removal
Therefore,
reject
we
Miller’s contentions must be determined under the law of the
wrongfully retained the
(citation
Ms. Miller
that
child’s habitual residence.”
omit-
upon
issuance of the
Canada
ted)); Shalit,
(holding
B.
spond accordingly.... When we trust
Next, Miller asserts that he
system in
the court
the abducted —from
that should have
two defenses
established
majority of claims of
country, the vast
Hope
Faith
of
and
prevented the reunion
that do not
to the level
harm —those
rise
the re
mother in Canada —that
with their
gravity required by
the Convention—
risk of harm to the
posed
grave
turn
a
evaporate.”
children,
they had
well-
and that
been
(internal
II,
that if Ms. Miller forcibly Miller When William removed children, ready her the Ontario courts are the children from Miller in Doris every step protect and to take able 28, 1998, the last decree out- them. See Ontario Court standing was that of the New York court (remarking are en- “the awarding custody. him The New York tirely a full request” hearing free to jurisdiction court undoubtedly had for that custody question). purpose Miller, petition- and Doris the sole case, in
er
was bound
that decree
Y.
notwithstanding
February
the earlier
and
See,
1997 Ontario court orders.
October
foregoing,
agree
Pursuant
to the
we
(2nd)
e.g., Restatement
Conflict
Laws
disposition
with the
court’s
of this
(“a
34, 70, 71,
§§
79 & comments a
state
dispute. We therefore affirm the court’s
power
custody
has
to determine a child’s
ruling, as embodied
its Memorandum
(nor-
guardianship
persons
or
as between
4,1999.
and Order of November
mally
parents)
competing
who are
AFFIRMED.
jurisdic-
it
personal
and over whom it has
tion”)
(“so long
and c
as it remains unmod-
GARWOOD,
Judge,
Senior Circuit
abroad,
ified either at home or
concurring
the result:
having juris-
decree rendered
this,
Despite
opinion, I
Judge King’s cogent
diction under the rules stated in
sec-
remain troubled
this case.
states”),
recognized
tion will be
other
(2nd)
114;
Judgments'
Restatement
It
abundantly
appellee
clear that
Dor-
§ 15.
willfully
is Miller has
flouted the valid
of the New York court issued in the
I do not
the June 1999 deci-
orders
understand
there
sion of the
to hold
proceedings
divorce
she instituted
Ontario Court
it,
Rather,
against appellant
including otherwise.
as I read
that deci-
William
unappealed
awarding custody
orders
sion held that the Ontario trial court erred
decision,
children to William Miller issued after the
its
3,1997
February 12 and
1997 orders of
set
Ontario court
October
aside
October
custody,
(awarding
awarding
the Ontario court
her
of decision
Doris Miller
children).
court orders
trial court “should have re-
Those Ontario
because the
(without
being
were issued
to consider the
William
fused
present
person
husband
the children were
through
or
counsel
until
returned
any hearing)
custody proceedings
(emphasis
Doris
to the
of their mother.”
added).
appellate
there over a
after
This
followed the
instituted
In-
proceedings.
having
she filed
New York
reference to the trial court’s
court’s
by the
proceedings
with vention
Ontario
wife’s disobedience
with the
“deal[t]
and,
importantly,
Appeal,
most
court orders re- Court
the New York
respect to
*12
now
children,”
the children have for well over
after
custody of the
garding
mother
Canada.
been returned
their
say:
on to
appellate
court went
court, the chil
As directed
the district
may have
the husband
“Whatever
put
airplane for Canada
dren were
on an
Judge
by reason of the orders
had
stay
Apparently
on November
1999.
no
New York
or
Crapsi [judge
court]
Diorinou
sought
was
from this Court. Cf.
otherwise,
right
he had no
either
as-
(2d
Mezitis,
v.
judge wife, faults of the
Whatever made that his
husband had to be aware
objectives not vio- could be achieved To or other conduct.
lence unlawful application in the circum- consider his stances, approbate was to his conduct.” LYTLE; Lytle; David Joan Jeanette added) (emphasis Maguire, Plaintiffs-Appellees, it clear that The Court made ultimately ruling it not on who was GRIFFITH, Jr., in his offi Charles D. legally custody, entitled to but rather was capacity cial as Norfolk Common that should not be decided holding Attorney; wealth Honorable James S. quo, until the status as it existed before Gilmore, III, capacity his official self-help, William Miller’s resort to violent Governor of the Commonwealth was restored. The Court of cast Virginia, Defendants-Appellants, no doubt on the trial court’s finding “flagrantly Doris Miller holding has been the children in direct Brewer, Individually R. and in Charles contravention of a [March 1998] capacity his official as Lieutenant of Falls, by Niagara order issued New York Department, the Norfolk Police De court,” proceeding in the which Doris Mil- fendant. instituted, awarding custody ler to William Thus, I agree Miller. am unable to with No. 99-2609. opinion statement this Court’s Appeals, United States Court reject Miller’s contentions that Ms. “[w]e Fourth Circuit. wrongfully the children in retained upon issuance of the New York Argued Sept. order.” [March 1998] Decided Feb. Nevertheless, attempt, I would grant present Miller relief in the William
appeal (assuming any practically is now
available). He did resort to violent and self-help,
unlawful has issue open left both in these
been Con- * stay orally requested slay requested stay applica- A week’s been to allow a court, not to allow but an presented tion to this Court to be and acted stay get to this Court but rather to assumption it that such relief seems fair ready gather and to more evidence should) (and granted. would have been present to the district court. Had a brief