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In re DD, 440 F.Supp.2d 1283 (M.D. Florida,2006) petitioner was a 28
year old citizen of France who lived with his parents in Foure de la
Vigne, France, and was employed as a forklift driver. Respondent was a
27 year old citizen of the United States who was born in Oklahoma and
lived in Naples, Florida. A daughter-D.D.-was born to petitioner and
respondent in Naples, Florida, on January 29, 2000. After their wedding
the parties decided to move to France. Petitioner testified that she
agreed to move to France for one or two years. Petitioner left the
parties apartment in France on January 1, 2004 when the parties
separated; During their separation they alternated custody of the child.
Respondent left France on March 31, 2005 with the child . She ultimately
went to her parents home in Naples, Florida and never returned to
France. On April 4, 2005, petitioner was unable to contact respondent by
telephone, and learned that his daughter had been taken out of school
for several days. Using his key, petitioner entered the apartment and
found it empty except for a box containing the two letters from
respondent their rings, some pictures, and some documents relating to
respondent's French boyfriend. The first letter, addressed to "stupid
idiot," stated among other things, that "my lawyer will contact you,"
thanked petitioner for going on vacation and giving her a three week
head start, and concluded with "See you in Hell, M..... F....." The
second letter stated, among other things, that respondent knew her
rights, she "already filed a paper that gives me the right to do it
[take the children]," she had a lawyer in Oklahoma, and respondent would
call petitioner in a few days from Oklahoma. The letter continued that
petitioner would not find her, "so [you] better get a lawyer."
Petitioner contacted lawyers and others in an attempt to find and return
his child. Petitioner reported the event to the French police, and
criminal charges were filed in France against respondent for abduction
of the child. In April, 2005, petitioner filed an application with the
French authorities for the return of his child pursuant to the Hague
Convention. Respondent would not voluntarily return the child.
Petitioner attempted to locate his wife in the United States by calling
her mother. Respondent returned the call, and gave petitioner an address
in Naples belonging to her father. In June or July, 2005,
respondent changed her address and telephone number; petitioner
testified she did not give the new information to him, while respondent
testified that she had done so verbally. Despite the references in the
letters, no lawyer from the United States or France ever contacted
petitioner, and petitioner never received any papers in France
indicating respondent had permission to leave. In June, 2005, petitioner
filed for divorce in France and respondent was served with the
complaint. Efforts to have respondent return to France in connection
with the divorce proceedings were unsuccessful. Petitioner obtained a
court order temporarily awarding him custody of his child and providing
for visitation by respondent. The divorce remained pending, and
petitioner and respondent were still married. Petitioner attempted to
enter the United States in September or October, 2005, to see the
children, but was turned away by immigration authorities in Newark, New
Jersey.
The Court first looked to whether there was a settled intent to
abandon the prior habitual residence by the person(s) entitled to fix
the place of the child's residence. Ruiz, 392 F.3d at 1252-53. The
inquiry was whether there was a settled intent between petitioner and
respondent, the biological parents of the child, to abandon the United
States and to establish France as the permanent residence of the child.
This settled intention need not have existed at the time of departure
from the United States, but can develop during the course of the stay in
France even if the original intent had been a temporary relocation. The
testimony did not establish that there was an initial settled intent to
abandon the United States as the place of habitual residence. Petitioner
was a French citizen who had overstayed his visa, and his habitual place
of residence was clearly France. Respondent was a United States citizen
whose habitual place of residence was clearly Florida. Respondent
testified that when they left Florida for France, the intent was to stay
for one year, maybe two; petitioner did not testify about this, but did
not dispute it. Th Court found that the evidence at least cast doubt
upon whether, at the time they went to France, there was a shared
settled intent to make France their habitual residence. The Court found,
however, that petitioner had established by a preponderance of the
evidence that there developed an implicit shared intent to establish
France as the place of habitual residence for petitioner, respondent,
and the child. Several months after arriving in France, respondent
returned to the United States to obtain work and an apartment.
Respondent then returned to France, although the reason was disputed by
the parties. Near the end of the one year time period of which
respondent testified, petitioner and respondent obtained their own
apartment in France, where they lived together for almost three years.
Notably, respondent returned to France after various trips to the United
States.
Because the child's habitual residence at the time of removal was
France, the law of France governed the decision as to whether custody
rights existed at the time of removal. Under French law, parental
authority is considered a set of rights and duties which is vested in
the father and mother until the majority or emancipation of the child.
C. Civ., art. 371-1. As applies to this case, a father and a mother
exercises common parental authority. C. Civ., art. 372. A child may not
leave the family home without permission of both the father and the
mother. C. Civ., art. 371-3. The separation of the parents has no impact
on the rules governing the exercise of parental authority. C. Civ., art.
373-2. Any change of residence of one of the parents which modifies the
terms of the exercise of parental authority cannot be undertaken without
prior timely notice, and if the parents cannot agree, they must submit
the issue to the French courts. C. Civ., art. 373-2. The evidence
clearly established that, under French law, petitioner had "rights of
custody" concerning the child at the time of removal.
The Court concluded that the evidence in this case established that
respondent's removal of the child from France was a wrongful removal
under the Hague Convention. The French court had already effectively
ruled that the removal was wrongful and had ordered custody of the child
to be with petitioner. Petitioner established he was exercising his
rights of custody at the time the child was removed. Petitioner
continued to share custody of the children and participate in their
lives during his separation from his wife. |
