In Re Polson
- Reporters:
- , ,
- Before:
- Gilbert
MEMORANDUM AND ORDER
I. Introduction
This case is before the Court on Kenneth Poison’s (“Ken”) Petition for Return of Child (Doc. 1). He brings this action under The Convention on the Civil Aspects of International Abduction, done at the Hague on October 25,1980 (“Convention”), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 and the International Child Abduction Remedies Act (“ICARA”),
*1066 II. Factual Background
Both parties agree to some background facts. Megan and Ken met in Houston, Texas, in 2000. Megan is a United States citizen; Ken is a British citizen. They began living together in Houston in 2001 and, after Ken received a promotion requiring a move to Australia, moved to Perth, Australia, together in May 2003. They were married in Australia on December 8, 2003, and Bobby was born on December 22, 2003. Ken, Megan and Bobby lived together as a family in Austrаlia and obtained permanent residency status there in July 2007.
In November 2007, Megan and Bobby traveled to the United States, where they remain today. The parties disagree about the circumstances of the November 2007 trip to the United States and its implication for child custody matters.
A. Ken’s Testimony
Ken testified that in September 2007 the family had spent two enjoyable weeks on vacation in the United States so he was not surprised when Megan announced she wanted to return to the United States with Bobby for another visit in November 2007. She told Ken she wanted Bobby to be able to spend time with an aging grandfather in the United States. Ken, who was scheduled to quit his job in Australia at the end of November, had no objection to Megan’s taking Bobby to the United States for such a visit. He planned to wind up his job in Australia and meet up with them in the United States in January 2008 to discuss his options for future employment, which included job opportunities in Singapore, Dubai, Spain and other locations around the world. Ken drove Megan аnd Bobby to the airport and saw them off on their trip.
It did not strike Ken as unusual that Megan had purchased one-way tickets for herself and Bobby; she reported to him that the travel agent had said that was the most economical way for them to travel. It also did not seem unusual to him that Megan purchased a seven-month travel health insurance policy for herself and Bobby; health care costs in the United States can accrue quickly in a crisis, he believed she has purchasеd travel health insurance policies for other trips and the visit to the United States had no firm end date. Ken was also not alarmed when Megan and Bobby shipped 14 containers of personal possessions to Megan’s parents’ home in northern Illinois before their trip; Megan did not usually pack lightly, and the family might have been moving to an entirely different location in several months so she may have been packing in anticipation of that move too. Several suitcases worth of Megan’s clothing and several boxes of Bobby’s toys were left behind in Australia.
Before Megan left for the United States, she had in some ways behaved strangely— for example, directing comments to Bobby that were intended for Ken — and had complained that she disliked the climate in Australia. She had not, however, mentioned she wanted to divorce Ken or that she was unhappy in any serious way with their marriage or with his commitment to his work. She also did not mention wanting to keep Bobby permаnently in the United States. To Ken, it fully appeared that Megan and Bobby were heading to the United States for a visit of several months before Ken and Megan would decide their future plans together.
While Megan and Bobby were gone, Ken kept in close contact with them both by telephone and e-mail and continued to provide financial support for them. He missed them greatly and on December 1, 2007, the day after his last day at work, wrote an e-mail saying he missed them, he had located American immigration materi- *1067 ais and would even be willing to take a job stocking shelves in the United States in order to be with them.
In the meantime, when the lease for the Poisons’ Australia home expired in mid-December 2007, Ken signed a three-month lease on an apartment in Perth, anticipating that he may not need a longer lease if he and Megan decided in January 2008 to relocate outside Australia. He intended that his residence be his family’s “home,” albeit downsized, while Megan and Bоbby were on vacation and until they established a new “home” wherever his employment prospects took them.
Ken’s January 2008 trip to join Megan and Bobby on vacation in the United States was delayed due to a credit card problem. In late January, Megan told Ken she wanted a divorce. Via e-mail, Ken immediately apologized and assured Megan he had changed his priorities. Ken, who was still living in Australia, traveled to the United States in March 2008 for a vacation with Megan and Bоbby and to attempt to save the marriage. Around that time, Megan informed Ken she and Bobby would be moving from her relatives’ house in northern Illinois to southern Illinois and stopped communicating with him regularly about Bobby’s life. Nevertheless, Megan and Ken began discussing plans for Bobby to come to Australia.
In late April 2008, Ken received an email from Megan’s attorney confirming that divorce was her plan. He testified that he had no objection to the divorce but wanted Bobby returned to Australia fоr consideration of custody matters. He and Megan arranged for Bobby to return to Australia for several months in late May after his school year was finished. Ken planned at that time to initiate custody proceedings in Australia without informing Megan in advance. Ken purchased a one-way ticket for Bobby to come to Australia. However, in May 2008 when Ken arrived in the United States to pick Bobby up for the trip, he was served with divorce papers from divorce proceedings Mеgan had initiated in Ogle County, Illinois, and was only able to see Bobby for two hours. Shortly thereafter, Ken revoked Megan’s authorization to use their joint credit cards, returned to Australia and filed the pending petition.
B. Megan’s Testimony
Megan testified that she had been extremely unhappy with her marriage to Ken before her November 2007 departure to the United States and that they had had numerous arguments and discussions about her dissatisfaction. She had told Ken she could not live with him anymore, wanted to move bаck to the United States with Bobby and wanted a divorce, although she did not ever use the actual word “divorce.” At that time, Ken was prepared to move back to the United States with her.
When she left Australia for northern Illinois, she clearly had no intention of returning. She purchased one-way tickets and packed the substantial majority of her and Bobby’s personal possessions, leaving only a duffle bag of old clothes and some broken toys. She told Ken to give the things she left behind to the Salvation Army. On her travel documents, she indicated she was making a permanent move to the United States. She purchased health insurance because she expected she and Bobby would stay in the United States indefinitely and that seven months would give them an adequate chance to acquire health insurance on their own in the United States.
When she told Ken in late January 2008 that she wanted a divorce, she attempted amicable negotiations about the dissolution of the marriаge and custody arrangements. She and Ken agreed Bobby would spend the summer with Ken in Australia, *1068 but when she learned in early May 2008 that Ken had purchased a one-way ticket for Bobby, she refused to let him go with Ken.
She maintained regular contact with Ken about Bobby until he filed the pending petition.
C. Court’s Factual Findings
To the extent that the parties disagree about the relevant events, the Court makes the following findings based on the demeanor of the witnesses while testifying as well as the reasonableness of their tеstimony and the documentary evidence presented at the hearing.
Megan wanted a divorce before November 2007 and had plans to return to the United States with Bobby to get it. She had told Ken she was unhappy with their marriage, but he had either not listened to her or had not taken her complaints seriously. In any case, he certainly failed to appreciate the extent of her dissatisfaction with the marriage.
When Megan and Bobby left Australia in November 2007, Ken naively but honestly bеlieved they were departing for a visit of several months to the United States, although the precise number of months had not yet been determined. While Megan clearly intended to have Bobby reside with her in the United States permanently, Ken did not know Megan was doing anything more than taking an extended vacation. He did not see any of the documents on which Megan indicated her return to the United States was a permanent move. He did not intend or consent to Bobby’s living on a regular basis in the United States simply by driving them to the airport and letting them depart from Australia without objection, although he consented to their vacation of several months’ duration. As the Court noted at the hearing, Ken was keeping his head in the sand about the state of his marriage, but that fact does not amount to consent to Megan’s retaining Bobby in the United States or an intent that Bobby regularly reside in the United States. Essentially, until late January 2008, Ken did not object to Megan and Bobby’s travels because he still believed they were temporary and in the nature of a vacation.
Ken had hopes that someday he would be employed outside Australia, possibly even in the United States, but those hopes remained aspirational. His December 2007 three-month flat lease reflected a temporary downsizing in light of his uncertainty about where his family would be in the future as opposed to an intent to move his family from Australia to the United States.
Once Megan explicitly told Ken in late January 2008 that shе wanted a divorce, she and Ken discussed custody arrangements for Bobby. Ken’s efforts to patch up the marriage in March 2008 and to have Bobby returned to Australia for custody proceedings do not reflect his intent for Bobby to reside regularly with Megan in the United States or his consent to his retention there.
III. Analysis
A. Jurisdiction and Authority
The Court has the power to exercise jurisdiction over this matter pursuant to
B. The Convention and the ICARA
Both the United States and Austrаlia are signatories to the Convention, which has as a purpose to implement an effective deterrent to the practice of parental kid-naping.
Feder v. Evans-Feder,
The Convention’s approach to the problem is straightforward, “[i]t is designed to restore the factual status quo that is unilaterally altered when a parent abducts a child and protect the legal custody rights of the non-abducting parent.”
Feder,
The ICARA entitles a person whose child has been wrongfully removed to or retained in the United States to petition in federal court for the return of the child.
Tо succeed on a petition under the Convention, a petitioner must establish by a preponderance of the evidence that the respondent “wrongfully removed or retained” a child within the meaning of the Convention.
Once the petitioner meets his initial burden, the burden shifts to the respondent to show “by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies” or “by a preponderance of the evidence that any other exceptiоn set forth in article 12 or 13 of the Convention applies.”
C. Application to this Case
1. Habitual Residence
The first step in determining whether Ken’s petition should be granted is to determine Bobby’s habitual residence when he was allegedly wrongfully removed or retained. This determination is a mixed question of law and fact.
Koch,
Ken argues that Australia was Bobby’s habitual residence at all relevant times. He bases this contention on the fact that Ken, Megan and Bobby lived there together as a family from 2003 to November 2007 and that Megan tоok Bobby to the United States and then attempted to retain him there against Ken’s wishes. Megan argues that Bobby’s habitual residence was the United States because the settled intention of both parents was for Bobby to live with her permanently in the United States after November 2007.
Bobby’s habitual residence has as all times been Australia. It is clear that prior to November 2007, Ken and Megan shared a settled intent to reside with Bobby in Australia in a regular family household. Indeed, he was born there and uр to that time had lived all his life there except for vacations outside the country. All objective indicia and the parties statements indicate that, prior to November 2007, Ken and Megan shared the intent that they and Bobby habitually reside in Australia.
Nothing that happened after November 2007 indicates Bobby’s habitual residence changed. Once a person has a habitual residence, it can be changed by
forming a settled intention to abandon the one left behind. Otherwise onе is not habitually residing; one is away for a temporary absence of long or short duration. Of course, one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared; if it is manifest from one’s actions; indeed, one’s actions may belie any declaration that no abandonment was intended.
Mozes,
where the petitioning parent earlier consented to let the child stay abroad for some period of ambiguous duration. In these cases, the circumstances surrounding the child’s stay may sometimes suggest that, despite the lack of perfect *1071 consensus, the parents intended the stay to be indefinite, leading to an abandonment of the prior habitual residеnce. In other cases, the circumstances might suggest that there was no settled mutual intent to abandon the prior habitual residence.
Koch,
While it is clear that Megan intended to change Bobby’s habitual residence when she took him to the United States in November 2007, at no time did Ken agree to that change. First, Ken’s agreement to allow Megan to take four-year-old Bobby on a vacation abroad to relatives’ homes for several months is simply not for such an appreciable amount of time that it would indicate Ken’s intent to change Bobby’s habitual residence. Second, while a parent whose child is removed from him may, at some point, either by his words or conduct, agree to the child’s taking up residence at the place to which he was removed,
Koch,
One may think that Ken’s intent to relocate the entire family out of Australia in early 2008 to accommodate his new employment might indicate an intent to abandon Australia as a habitual residence. The planned relocation, however, was only aspirational and did not come to pass. In fact, the disintegration of the Poisons’ marriage called a halt to those plans, and Ken remained in Australia with hopes that at least Bobby would return to him there.
Once Megan announced she wanted a divorce, Ken continued to work toward having Bobby returned to Australia. True, his efforts were sporadic and lacking in complete candor, sometimes directed at reestablishing his family unit and sometimes directed at negotiating arrangements where Megan would allow Bobby to travel back to Australia where he could then pursue custody proceedings there. Nevertheless, at no time did Ken, either by acquiescence or overt agreement, indicate an intent that Bobby regularly reside outside Australia in the United States. His steady intent, once he knеw divorce was imminent, was always to have Bobby returned to Australia so Australian courts could determine the appropriate custody arrangement.
In light of lack of other evidence of a shared intent to abandon Australia as Bobby’s habitual residence, the Court cannot say that the seven or eight months between his departure from Australia and the filing of the pending petition is such an appreciable amount of time that it indicates abandonment of a habitual residеnce in the particular circumstances of this case.
In sum, the preponderance of the evidence shows that Ken and Megan had no shared intent to abandon Australia as Bobby’s habitual residence and to establish a new habitual residence for him in the United States or anywhere else. Bobby’s habitual residence in Australia was not “effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passаge of time.”
Koch,
*1072 2. Breach of Custody Rights
The Court is entitled to take direct judicial notice of the law of the habitual residence in determining whether the abduction was in breach thereof. Convention art. 14, T.I.A.S. No. 11670;
Mozes,
3. Exercise of Custody Rights
At all relevant times, Ken exercised or attempted to exercise his custodial rights as to Bobby. As Megan pointed out in her memorandum, whenever a parent keeps or seeks to keep regular contact with his child, the parent is exerсising rights to custody,
see Friedrich v. Friedrich,
For the foregoing reasons, the Court finds Ken has met his burden of showing Bobby was wrongfully retained in the United States in breach of Ken’s custody rights. The Court must now examine whether Megan can establish a defense to the petition.
4.Consent to Removal/Retention
To avoid an order of return once a petitioner has shown wrongful removal or retention, a respondent may show by a preponderance of the evidence that the petitioner "had consented to оr subsequently acquiesced in the removal or retention." Convention art. 13(a); see
IV. Conclusion
For the foregoing reasons, the Court GRANTS Ken’s petition for return of Bobby to Australia аnd ORDERS that Bobby be returned to Australia on September 27, 2008, or any earlier date mutually agreeable to the parties. The Court further finds that, due to the disparity in the financial resources between Megan and Ken, an award of expenses under
IT IS SO ORDERED.
Notes
. In
Fabri
v.
Pritikin-Fabri,
Four exceptions to the reach of the Convention are set forth in Articles 12, 13, and 20. The responding parent bears the burden of proving that one of these exceptions applies. For two of the exceptions, the burden is one of "clear and convincing evidence.” Specifically, the responding parent may avoid an order returning the child if she can demonstrate by clear and convincing evidence (1) that "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,” Art. 13(b), or (2) that returning the child would be inconsistent with "fundamеntal principles ... relating to the protection of human rights and fundamental freedoms.” The other two exceptions are subject to proof by a preponderance of the evidence. These include a showing (3) that judicial proceedings were not commenced within one year of the child’s abduction, and she is now well-settled in her new home, Art. 12, or (4) that the petitioning parent was not actually exercising custody rights at the time of the child’s removal.
(citations omitted).
. Megan does not argue that Bobby’s acclimatization to the United States should negate his habitual residence determined by his parents’ shared intent.