|
In Fridlund v Spychaj-Fridlund, 654 FSupp 2d
634, ( E.D. Kentucky,2009) the Respondent, who appeared pro se, failed
to Answer or to otherwise respond to the Petition for Return. Respondent
was served with the Petition on August 6, 2009, and his response to the
Petition was, thus, due on August 26, 2009. See Fed.R.Civ.P. 12(a)(1)(A)(I).
During the hearing on September 8, 2009, Respondent made no argument or
presentation of evidence which would excuse his failure to timely
respond, and, thus, failed to discharge the Court's Show Cause Order of
September 2, 2009. Accordingly, the Court considered the allegations
contained in the Petition to be deemed admitted by operation of
Fed.R.Civ.P. 8(b)(6) and founded its decision regarding the merits of
the Petition on those facts. The facts set forth in the Petition being
undisputed, the Court found that Petitioner was, and had been at all
relevant times, a resident of the Kingdom of Sweden. She was the natural
and biological mother of a three-year-old girl, known as "MAF". MAF,
from her birth, on April 22, 2006, to February 1, 2009, lived with both
Petitioner and Respondent in Sweden. MAF was removed from Sweden by
Respondent on February 1, 2009, and was in Richmond, Kentucky. By
operation of Swedish law, Petitioner shared joint custody of MAF with
Respondent Francis Matthew Spychaj-Fridlund, Petitioner's husband and
the father of MAF. Here, there was no dispute that Respondent removed
MAF from Sweden on February 1, 2009. Further, there was no real dispute
concerning MAF's place of habitual residence: Sweden. From her birth, on
April 22, 2006, to February 1, 2009, the child lived with both
Petitioner and Respondent in Sweden. was removed from Sweden by
Respondent on or about February 1, 2009. The Court next concluded that
Petitioner had established by a preponderance of the evidence that
Respondent has wrongfully retained MAF, as that term is defined in the
Convention.
The undisputed evidence demonstrated that
Petitioner had joint custody of MAF with Respondent, her husband, under
Swedish law and that Petitioner was exercising her custody rights over
MAF under Articles 3 and 5 of the Convention at the time Respondent
removed MAF from Sweden without Petitioner's permission. Further,
Chapter 6, s 13 of the Swedish Children and Parents Code provides as
follows: If two custodians have custody of the child, the provisions of
Section 11 and 12 shall apply to them jointly. If, owing to absence,
illness or some other reason, one of the custodians is prevented from
sharing in decisions concerning custody of the child that cannot be
postponed without convenience, the other custodian alone shall make such
decisions. However, this person alone may not make decisions of
far-reaching significance for the child's future unless it is manifestly
required by the best interest of the child. Reading the Code
straightforwardly, choices regarding a child's habitual residence are
decisions of "far-reaching significance for [a] child's future," and
that residence cannot be altered by the decision of one custody holder
alone. Having made the unilateral decision to remove MAF from Sweden to
the United States, Respondent breached Petitioner's joint custody rights
under Swedish law, and the Court concluded that removal of MAF was
wrongful under the Convention. Based upon the foregoing the court
granted the petition for return. |
