Case Information
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ________________________________________________________________ ERIC W. SORENSON,
Plaintiff, v. FINDINGS OF FACT, CONCLUSIONS OF LAW & ORDER
Civil File No. 07 ‐ 4720 (MJD/AJB) JANEA M. SORENSON,
Defendant. ________________________________________________________________ Susan Anderson McKay, McKay & Perusse, LLC, for Plaintiff Eric W. Sorenson. Janea M. Sorenson, pro se.
________________________________________________________________
I. INTRODUCTION
This matter came on for trial before on March 2008 pursuant Article 15 Convention on Civil Aspects International Child Abduction, done Hague October (“Convention”) International Child Abduction Remedies Act, U.S.C. § et seq., (“ICARA”) determination whether minor child parties resident of the State of Minnesota, States, and whether Defendant wrongfully retained the minor child within Australia.
At trial, Plaintiff appeared person his counsel, Susan Anderson McKay of McKay & Perusse, LLC. Plaintiff presented three witnesses: John Vento, Amy Wickstrom Daly, and Eric W. Sorenson. Defendant appeared pro se, by telephone from Sydney, Defendant called Court proceeding and Court faxed exhibits her at Australian telephone number, which she received. Defendant presented no witnesses trial. The parties have both also submitted affidavits exhibits, which Court has considered.
Based upon presentations of counsel Janea Sorenson, the submissions filed matter, evidence adduced during trial, Court makes following findings of fact conclusions of law. To extent findings of fact may be considered conclusions of law, they will be deemed conclusions law. Similarly, extent matters expressed as conclusions law may considered findings fact, they will be deemed findings fact. II. FINDINGS OF FACT makes following findings fact a preponderance
evidence:
A. Factual Background
1. General Facts Relating Relocation Plaintiff Eric Sorenson (“Father”) Defendant Janea M. Sorenson (“Mother”) are citizens States.
Father were married Chicago, Illinois, on October 25, 2002. Their minor daughter, E.S.S., also a U.S. citizen, born in Woodbury, Minnesota, [REDACTED]
In November accepted a position with Secure Computing Corporation as Sales Engineer Secure Computing’s Chatswood, Australia, office.
Secure Computing’s November offer letter did contain termination date Father’s employment state any particular duration for his employment employer helped him obtain Long ‐ Term Business Stay
Visa three ‐ year duration.
Mother and E.S.S. obtained three ‐ year Australian visas were dependent upon Father’s visa status.
All Sorensons’ visas were set expire June 2007.
In preparation their move Australia, Mother and Father sold their house in Minnesota. They also sold their two cars. Sorensons shipped almost all their personal belongs
They left some belongings with parents and some belongings with Mother’s grandparents.
Father, Mother, E.S.S. moved Australia February While Australia, neither Father nor Mother purchased home. Within few months moving Australia, marital relationship became strained.
Mother Father separated October but continued reside in same home. In March Mother Father separated their residences.
Despite separation, Father determined they would both remain along E.S.S.
While did purchase car.
Neither Father nor Mother obtained Australian drivers licenses.
Father remained on voter rolls Minnesota and received and returned absentee ballots for Minnesota elections while he Australia. Father used Sorensons’ former Minnesota residence as his address purposes voting, although Sorensons had sold house.
Father renewed his Minnesota drivers license May during visit to Minnesota, after he first moved Australia. Father used his parents’ address in Eden Prairie, Minnesota, as his residence listed on his Minnesota drivers license.
Father and Mother shared joint bank account U.S. Bank they continued use when they moved Australia.
After Father and Mother separated, Father opened bank account with Minnesota credit union and, later, Wells Fargo.
Father also opened used Australian bank account while living in Upon moving surrendered their Minnesota residency under federal state tax laws claimed as their their tax forms.
During summer due problems her romantic relationship, Mother contemplated relocating to California, but to Minnesota.
In May 2007, Mother again contemplated relocating United States with E.S.S. At that time, Mother Father exchanged e ‐ mails regarding possible flights from Australia States.
Mother did plan Minnesota, but rather, contemplated moving California. Sorensons had no connection California.
On May 30, 2007, Mother formally informed Father, through her solicitor, E.S.S. would staying in Australia Mother would be obtaining new Australian visas Mother E.S.S.
Beginning June 2, 2007, after Sorensons’ three original visas expired, Mother retained E.S.S. in Australia against Father’s wishes.
Immediately before retained E.S.S. in May 2007, all of E.S.S.’s friends were
As May E.S.S. had Australian accent.
E.S.S. has been living since February when she was
approximately months old.
Until visa expired June E.S.S. located Australia permission both Mother. Upon expiration of his visa, Father returned to Minnesota. remains in Australia E.S.S. Father has returned to Australia to visit E.S.S.
The marital relationship parties has not been terminated there are no custody orders in place establishing either parent as legal or physical custodial parent. The Sorensons’ Intention upon Moving to Australia
At Sorensons’ relocation to they did not have definite intention to States, let alone to Minnesota. Their intention live Australia for an indefinite period time, lasting at least three years. The Sorensons intended make Australia their new home. bases finding various evidence record.
This finding supported testimony John Vento Father stated he going move three years then, after that, he would have other opportunities within Secure Computing. Vento further testified that these other opportunities would necessarily Minnesota, but could be in another Secure Computing’s global offices, including offices Australia, overseas, other U.S. locations. did express intent move temporarily to Australia and then return to Minnesota. The Court finds Vento’s testimony credible and gives it substantial weight.
The Court’s finding is also supported by February affidavit of Janea Sorenson, averring that, Sorensons’ move to Australia, they intended remain in Australia indefinitely, they had no plans to Minnesota States in general, and they had no agreement regarding how long they would remain Australia. The Court finds these statements credible, particularly light objective evidence Sorensons’ intentions, and gives it some weight.
The Court’s finding supported fact that Father Mother declared Australia, Minnesota, their their tax returns, fact family sold its house Minnesota along its two cars moved most its personal belongings The Court gives strong weight these objective indications Sorensons’ intentions. does find fact that, while maintained U.S. drivers license listing his parents’ address weigh heavily its finding. recognized U.S. drivers license he renewed license
only three months after leaving U.S.
Nor does Court find fact that Father voted by absentee ballot alters its conclusion. The fact that, while Father continued to vote in Minnesota listed as “Temporarily Outside U.S.” his voting record does weigh towards having intent to maintain Minnesota as residence. However, under Uniformed Overseas Citizens Absentee Voting Act, U.S.C. §§ 1973ff to ff ‐ implementing statutes in Minnesota, U.S. citizen who has relocated permanently overseas can continue vote by absentee ballot using his last legal address States. In this case, admitted that he used family’s previous legal address for purposes absentee voting, although family had sold house no longer resided there. The Court concludes that Father’s continuing vote absentee ballot, using his former address, is strong enough factor to outweigh other indications Sorensons intended relocate indefinitely Australia.
The Court’s finding also supported fact November 7, offer letter from Secure Computing does state termination date for employment The Court awards weight fact. gives little weight June letter from Secure Computing stating that Father’s assignment Australia from November 24, until May 15, 2007, because it created after Father’s return to United States, Father’s request used international child custody dispute.
The Court gives little weight fact that Father maintained U.S. bank account while Australia because he also admittedly opened and used an Australian bank account while there. Additionally, there incomplete evidence regarding all Mother’s bank accounts when she maintained them.
In light other evidence having observed Father’s testimony, Court does find credible testimony that Father Mother explicitly agreed they would Minnesota after three years. The Court gives little weight testimony. Court finds that, combination, foregoing facts establish that Sorensons intended abandon Minnesota as their habitual and establish as their new residence.
B. Procedural Background State Proceedings
On May served Summons Petition for dissolution marriage, venued Hennepin County District Court, Minnesota.
Father filed Summons Petition May 25, 2007. In Petition, Father asked state court determine dissolution child custody issues.
On September 19, 2007, Hennepin County District filed its Order holding that it did not have jurisdiction address petition for dissolution because Father domiciled Minnesota for 180 days before filing his Petition.
As child custody determination, state court held it was without jurisdiction address issue because Minnesota E.S.S.’s home state. Article 15 Proceedings
On July 16, 2007, Father filed a request for E.S.S. under Convention U.S. Department State.
On October 2007, Rachel Hackwill Australian Government Attorney ‐ General’s Department, Australian Central Authority, requested that U.S. Department State provide Article Declaration from Minnesota court her.
On November filed Verified Petition Determination Pursuant Article Court.
His claim is brought under the Convention, implemented by the ICARA. requests this Court issue order determining
1. That State of Minnesota, United States is habitual of minor child, E.S.S., within meaning of Article 4
of Convention, 19 I.L.M. 1501, et. seq.
2. That Defendant has wrongfully retained minor child, E.S.S., within within meaning Article of the Convention, I.L.M., et seq.
(Verified Compl. 5.) States are both Contracting States
Convention.
E.S.S. below age 16.
On January having had no further contact submissions from Plaintiff, Court ordered Plaintiff file proof notice action to Defendant then contact Court schedule hearing date order to expeditiously resolve Petition. personally served matter December 2007. Father
has filed proof personal service.
After being contacted Plaintiff, set bench trial March 25, filed responsive documents appeared telephonically for the entire bench trial. Australian Proceedings
Proceedings Australian Family Court, Sydney, are ongoing. On March the Australian court issued an order denying Mother’s request enjoin from pursuing his Petition this Court. Australian court awaiting the Article 15 determination from this
Court any subsequent action the Australian Central Authority before making custody decision.
III. CONCLUSIONS OF LAW
A. Jurisdiction
Article 15 of Convention provides
judicial or administrative authorities of Contracting State may, prior making of order return of child, request applicant obtain from authorities State of child decision or other determination that removal retention wrongful within meaning Article Convention. As explained Court’s March Order, Court does have subject matter jurisdiction order E.S.S.; however, does have jurisdiction make an Article 15 determination for benefit of Australian Central Authority. See, e.g., Morton v. Morton, F. Supp. 688 (D. Neb. 1997) (holding Utah court had jurisdiction decide “wrongfulness” of removal of child Germany under Hague Convention, although child was located in Germany).
B. Notice has received proper notice of this action.
Under ICARA, “[n]otice of action . . . shall be given in accordance applicable law governing notice in interstate child custody proceedings.” U.S.C. § 11603(c). applicable Minnesota statute provides:
a) Notice required for exercise of jurisdiction when person is outside this state may be given manner prescribed by law of this state service process or by law state which the service made. Notice must be given manner reasonably calculated give actual notice but may be by publication if other means are effective.
(b) Proof service may made manner prescribed by law state law state which service is made.
Minn. Stat. § 518D.108.
A process server personally served Mother with relevant documents.
Personal service reasonably calculated give actual notice. personal service conforms Minnesota’s notice requirements, and, therefore, ICARA’s notice requirements.
C. Article 15 Determination
1. Legal Framework Plaintiff must prove wrongful removal residence preponderance of evidence. 42 U.S.C. § 11603(e).
Authentication of documents is required. 42 U.S.C. § “[H]abitual determinations raise mixed questions of fact law therefore should be reviewed de novo.” Silverman v. Silverman, 338 F.3d (8th Cir. 2003) (en banc) (citation omitted). Article Convention provides: removal or retention child is considered wrongful
where – a) it breach rights custody attributed person, institution or any other body, either jointly or alone, under law State which child habitually resident immediately before removal or retention; b) of removal or retention those rights were actually exercised, either jointly alone, or would have been so exercised but removal or retention.
Generally speaking, ‘wrongful removal’ refers the taking of a child from the person who was actually exercising custody of the child. ‘Wrongful retention’ refers the act of keeping the child without the consent of the person who actually exercising custody. archetype of conduct is the refusal the noncustodial parent a child at the end of authorized visitation period.
Dept. of State, Hague Int’l Child Abduction Convention; Text & Legal Analysis (Mar. 1986), 51 Fed. Reg. quoted Silverman, 338 F.3d at
A petitioner cannot claim the removal or retention of a child is ‘wrongful’ under the Hague Convention unless the child to whom petition relates is ‘habitually resident’ a State signatory Convention has been removed or retained different State. Determination child’s habitual immediately before alleged wrongful removal or retention therefore threshold question deciding case under Hague Convention. Karkkainen v. Kovalchuk, F.3d 287 (3d Cir. 2006) (citations omitted). Therefore,
wrongful removal or retention claims under Article the Convention typically raise four questions: (1) When did removal or retention at issue take place? (2) Immediately prior removal or retention, which state child habitually resident? (3) Did removal retention breach rights custody attributed to petitioner under law residence? (4) Was petitioner exercising those rights removal or retention?
Id. (citation omitted).
2. When Did Removal or Retention Take Place? Until Father’s visa expired on June E.S.S. located in Australia with permission both Mother. When visa expired, he sought E.S.S.’s States and, against his wishes, Mother retained E.S.S. in Therefore relevant retention occurred in June 2007. must next determine in which State E.S.S. habitual
resident in May 2007.
3. Immediately Prior Removal or Retention, in which State Was Child Habitually Resident? a. Eighth Circuit Case Law: Silverman ‘Habitual residence’ not defined language the Hague Convention or by ICARA. However, text the Convention directs courts only one point time determining habitual residence: point ‘immediately before the removal retention.’ Art. Additionally, text Convention points child’s, not parents’, habitual residence. Id. A person may have only one residence, it should not be confused domicile. [T]he court must focus child, parents, examine past experience, future intentions. Habitual may only altered change geography passage time.
Federal courts are agreed that habitual residence must encompass some form of settled purpose. This settled purpose need be stay new location forever, but the family must have sufficient degree of continuity be properly described as settled. Additionally, the settled purpose must from the child’s perspective, although parental intent is also taken into account. Silverman v. Silverman, 338 F.3d 897 ‐ 98 (8th Cir. 2003) (en banc) (citations omitted).
In Silverman, the Eighth Circuit held that the district court erred in determining children were habitual residents of States rather than Israel stated:
The court should have determined degree settled purpose from children’s perspective, including family’s change in geography along their personal possessions pets, the passage time, family abandoning its prior and selling house, application securing benefits only available Israeli immigrants, children’s enrollment school, and, some degree, both parents’ intentions at move Israel. Fairly assessing these facts, there only one acceptable legal conclusion regarding children ʹ s habitual residence: they were residents Israel. at ‐ 99 (8th Cir. 2003) (footnote omitted). Eighth Circuit concluded “one spouse harboring reluctance during move does eliminate
settled purpose from children ʹ s perspective.” Id.
In its analysis follows majority opinion Silverman. In this case, there are no issues of domestic violence the Court not being called upon to determine whether or there are affirmative defenses to retention or removal. If those issues were before the Court, the Court would agree the dissenting opinion Silverman.
b. Application of Silverman to this Case Applying Silverman factors to case, the Court concludes that, E.S.S. was habitual resident of Australia immediately before retention.
One factor mentioned Silverman court weighs favor of United States being E.S.S.’s habitual residence just prior to time retention: there is no evidence that either parent attempted emigrate Australia attempted to obtain any type benefit only available Australian immigrants. However, Court finds other relevant factors all weigh favor finding that E.S.S.’s habitual residence Australia at time immediately prior to retention.
After examining weighing all relevant facts, Court concludes E.S.S.’s at relevant time. As has previously found, Sorensons’ relocation they did have definite intention States, let alone Minnesota. Their shared intention to live in Australia for an indefinite period time, lasting at least three years. This shared intent weighs towards finding that Australia E.S.S.’s habitual residence. See Koch v. Koch, 450 F.3d 703, 718 (7th Cir. 2006) (holding that parents’ shared intention live in Germany for at least three years supported finding that children’s habitual residence became Germany); Shalit v. Coppe, 182 F.3d 1128 n.5 (9th Cir. 1999) (noting that “[t]hree years is certainly enough for [the child] be considered ‘settled’ Israel, regardless [the mother’s] claimed intention to have him permanently Alaska some point future.”), quoted in Holder v. Holder, F.3d 1020 (9th Cir. 2004). Cf. In re Morris, 55 F. Supp. 2d (D. Col. 1999) (“Where duration a stay a foreign country is intended indefinite, habitual residence a child is usually that foreign country. However, where stay intended for limited, distinct period time, especially less than one year , courts have been reluctant to find new habitual residence has been established.”) (citations omitted) (emphasis added). testified he did intend move be
“permanent,” but change does require “permanent” move. As the Silverman court explained, the settled purpose required change in “need be to stay in a new location forever, but family must have sufficient degree continuity properly described as settled.” Silverman, F.3d at (citation omitted).
Immediately before retention, E.S.S. was settled in and acclimatized to Australia.
E.S.S. enrolled in preschool in Australia and had spent majority of her life Australia. She spoke Australian accent and all her friends were Australia.
Immediately before retention, Sorensons had lived for three years – significant period time – had all remained Australia despite breakdown family unit parents separating live in separate apartments.
When they moved Sorensons sold their house cars in Minnesota transported most their personal goods Australia.
By time Father’s visa expired, he had definite plan to States, but, as previously found, set intention family moved
While, at various times, Mother evinced desire relocate the United States, these temporary unformed plans did not alter E.S.S.’s habitual residence affect E.S.S.’s daily life. Additionally, contemplated moving California, not returning Minnesota, which further supports the conclusion Minnesota was not family’s continued habitual residence while family was
Weighing all these facts, from E.S.S.’s perspective, Sorensons had settled purpose remain Australia, United States. To E.S.S., Australia home. At time immediately before retention, was E.S.S.’s habitual residence.
4. Conclusion
Because Court concludes States, was E.S.S.’s habitual residence immediately before retention, does not reach questions whether retention breached custody rights under law whether exercising those rights retention.
Accordingly, based upon files, records, proceedings herein, IT IS HEREBY ORDERED :
1. minor child, E.S.S. resident Australia the immediately prior her retention 2. Plaintiff’s Verified Petition Determination Pursuant Article [Docket No. 1] is DISMISSED . A copy decision be furnished United States Central
Authority it may used under Article Hague Convention.
LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: April 2008 s / Michael J. Davis Judge Michael J. Davis States District Court
[1] Defendant submitted multiple affidavits Court. [Docket No. 22] In reaching its decision, Court has relied on unsigned affidavit submitted Defendant, filed Family March