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In re Polson, 578 F.Supp.2d 1064 (S. D. Ill. 2008)
reconsideration denied 2008 WL 4372402, Kenneth Polson Petitioned for
the return of his son, Robert Andrew Polson ("Bobby"), to Australia so
custody matters could be determined in an Australian Court. His wife
Megan Polson responded to the petition . After a hearing the court
granted the petition. Megan and Ken met in Houston, Texas, in 2000.
Megan was a United States citizen; Ken was 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 Australia and obtained permanent residency status there in
July 2007. In November 2007, Megan and Bobby traveled to the United
States, where they remained. While Megan and Bobby were gone, Ken kept
in close contact with them both bytelephone and e-mail and continued to
provide financial support for 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. In late April 2008, Ken received an e-mail 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 for
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 Megan 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. The Court held that Bobby's
habitual residence was at all times Australia. Prior to November 2007,
Ken and Megan shared a settled intent to reside with Bobby in Australia
in a regular family household. He was born there and up to that time had
lived all his life there except for vacations outside the country. All
objective indicia and the parties statements indicated 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 indicated Bobby's habitual residence changed. While 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. The
preponderance of the evidence showed 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.
The Court took direct judicial notice of the
law of the habitual residence in determining whether the abduction was
in breach thereof. It found that under the provisions of the Australian
Family Law Act 1975 each parent is a joint guardian and a joint
custodian of their child and has the right to make decisions concerning
daily care of the child. Thus, Megan and Ken had the same rights to make
decisions regarding Bobby's day-to-day care. Megan's retaining Bobby in
the United States beyond a temporary "vacation" period against Ken's
wishes to have him back in Australia for a custody determination by
Australian courts breached Ken's parental custody rights over Bobby. The
Court found that at all relevant times, Ken exercised or attempted to
exercise his custodial rights as to Bobby. Whenever a parent keeps or
seeks to keep regular contact with his child, the parent is exercising
rights to custody, (Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th
Cir.1996), and that was what Ken did in this case. The Court found Ken
met his burden of showing Bobby was wrongfully retained in the United
States in breach of Ken's custody rights.
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