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In re Application of Adams ex rel. Naik v. Naik,
363 F.Supp.2d 1025 ( N.D. Illinois, 2005) the parties were never married
to one another and, there was no court order entered concerning
Petitioner's paternity of the child (Kai), and no order was entered
awarding Petitioner any custody or visitation rights with respect to
Kai. Respondent alleges that she believed Adams is Kai's "natural
father." Respondent left England with Kai on August 15, 2004. After
Petitioner learned where she and Kai were located, Petitioner filed this
action and a companion action in England. Petitioner obtained two orders
from the High Court of Justice, Family Division, in London, England. The
High Court orders were issued on November 17, 2004 without prior notice
to Respondent. One of the orders declares that Alan Paul Adams shall
have parental responsibility for Kai William Bailey Naik, born 21st
December 1999. The other order declares that Kai William Bailey Naik is
habitually resident in the United Kingdom and was wrongfully removed
from the jurisdiction of England and Wales; it orders the defendant
mother to return Kai to the jurisdiction of England and Wales and grants
Respondent liberty to apply to vary or discharge the order on 48 hours
notice. Respondent has not moved to vary or discharge the order. The
petition in this case was served upon Respondent at her home in Crystal
Lake, Illinois on December 8, 2004. Respondent contended that Petitioner
has no custody rights to Kai under English or Illinois law within the
meaning of the Convention because, among other things, the parties were
never married, no order was ever entered conferring rights of custody to
Petitioner, Petitioner's name does not appear on Kai's birth certificate
as the father of the child, and Petitioner never applied for a parental
responsibility order until three months after Kai was taken to the
United States by which time the High Court no longer had jurisdiction
over her or Kai. She also pointed out that the order of parental
responsibility does not purport to, nor could it, award custody rights
to Petitioner, since that order serves the same function as a parentage
order under Illinois law: it merely declares the identity of the father
of a child born out of wedlock and leaves issues of support and custody
to be adjudicated in other proceedings.
The District Court denied the petition and
dismissed the action. It found that the removal of Kai from the United
Kingdom took place on August 15, 2004. Until that date Kai had
habitually resided in the United Kingdom. Respondent would have the
court look forward rather backward and determine that Illinois was the
state of habitual residency but that is not what the Convention
contemplates. Miller v. Miller, 240 F.3d 392, 400 (4th Cir.2001) ("The
court must look back in time, not forward.") (citing Friedrich v.
Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993)).
Petitioner asserted in his papers that he had
rights of custody attributed to him by UK law on August 15, 2004 because
of the orders of the High Court entered November 17, 2004. The court
concluded that at the time of the removal of Kai from England and Wales,
Petitioner was not exercising "rights of custody" with respect to Kai
under English law. Being an unmarried father whose name was not placed
on Kai's birth certificate and not having acted previously to obtain a
formal declaration of parental responsibility, much less custody,
Petitioner had no such rights. Therefore, the removal was not "wrongful"
within the meaning of the Convention.
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