|
In Judge v Williams, 2011 WL 3100346 (E.D.N.C.)
Petitioner Brian Anthony Judge filed a Verified Petition Under Hague
Convention seeking the return of his minor child, E.L.W.J. ( "Child") to
the Republic of Ireland. In an order filed on July 20, 2011, the court
found, pursuant to 42 U.S.C. 11604 and North Carolina General Statute s
50A-31, that E.L.W.J. was imminently likely to be removed from the state
by her mother, Respondent Rebecca Lynn Williams, if not taken into
immediate custody pending the court's ultimate disposition of the Hague
Petition. Accordingly, the court ordered that a warrant be issued
directing the United States Marshal to take physical custody of E.L.W.J.
and deliver her to the court for a hearing on the Hague Petition set for
July 21,2011, at 4 p.m. The court ordered that the Marshal could, if
necessary, deliver E.L.W.J. into the custody of Petitioner pending the
hearing.
The matter came on for hearing on July 21,
2011. Petitioner was present with his attorney, Jennifer Lyday, and
E.L.W.J. Respondent was present, without an attorney. The undersigned
asked Respondent if she was prepared to go forward without an attorney,
and Respondent answered yes. Both Petitioner and Respondent testified,
and introduced evidence. Based on the testimony and evidence at the
hearing and the Verified Hague Petition and Verified Application, the
found that E.L.W.J. was born in the Republic of Ireland on May 4, 2007.
Petitioner was E.L .W.J.'s father, and Respondent was E.L.W.J.'s mother.
Petitioner and Respondent have never married. On January 26, 2010,
Petitioner and Respondent executed a statutory guardianship declaration
which granted Petitioner joint guardianship of E.L.W.J. under Irish Law
pursuant to Section 4(2) of the Children Act of 1997. From E.L.W.J.'s
birth until July 2009, Petitioner lived with the Child and raised the
Child with Respondent. Both Petitioner and Respondent lived with the
Child again from January 2010 until June 2010. From July 2009 to January
2010 and again from June 2010 until the events giving rise to the filing
of the Hague Petition, Petitioner spent time with the Child every
Wednesday and Saturday. The Child spent the night with Petitioner every
other Saturday. E.L.W.J. lived in Ireland from her birth until March
2011. She was enrolled in a Montessori classes for the school term of
September 2010-June 2010. In January 2011, Respondent told Petitioner
that she would like to visit the United States to see her sister, and
that she would like to take E.L.W.J. with her. Petitioner refused to
sign a passport application for E.L.W.J. Petitioner averred that
Respondent nevertheless obtained a United States passport for E.L.W.J.
without his knowledge or consent. On the passport application,
Respondent stated she would be using the passport to travel to the
United States for six weeks. The passport was issued on March 3, 2011.
On Wednesday, March 16, 2011, Petitioner spent time with E.L.W .J.
during his regularly-scheduled access time. Respondent told him at the
conclusion of the access time that she was planning on taking a trip
over the upcoming weekend so Petitioner would not have his
regularly-scheduled Saturday access time. On March 19, 2011, Petitioner
sent Respondent a text message asking to speak with E.L.W.J. Respondent
replied that Petitioner would be able to speak with E.L.W.J. on Monday.
On March 22, 2011, Respondent emailed Petitioner telling him she was
"gone for good." She told Petitioner it was in the best interest for
her, E.L.W.J., and her older child to be away from Petitioner. She
warned Petitioner not to come looking for her because he would never
find her. Petitioner reported Respondent's taking of E.L.W.J. to the
local police. He filed an application with the Irish Central Authority,
the office designated by Ireland to administer its responsibilities
under the Hague Convention. Petitioner thereafter filed for sole custody
of E.L.W.J. He testified that the Irish District Court for the Dublin
Metropolitan District served Respondent in the United States with notice
of the hearing on the application. Respondent did not attend the
hearing. The Irish District Court granted Petitioner sole interim
custody of E.L.W.J. and scheduled another hearing on September 29, 2011.
Respondent testified she did not feel E.L.W.J. was safe in Petitioner's
custody. She testified that in the past Petitioner allowed E.L.W.J. to
insert an object in her nostrils, necessitating a visit to the emergency
room, and blamed the incident on E.L.W.J.'s older half-sister. She also
testified that Petitioner had, on one occasion, locked E.L.W.J. and her
half-sister in a sitting room for hours. In June 2010, he took
painkillers that did not belong to him and was impaired. She also
testified that E.L.W.J.'s half-sister was a witness to Petitioner
physically assaulting Respondent on one occasion, and that Petitioner
broke Respondent's arm while on a vacation in Spain. Respondent also
testified that Petitioner spoke to E.L.W.J.'s half-sister about topics
which were inappropriate. She introduced into evidence email
correspondence between herself and Petitioner, wherein each accused the
other of drug use and inappropriate behavior. Respondent testified that
Petitioner had not, however, ever harmed E.L.W.J. Respondent also
testified that separating E.L.W.J. from her half-sister would result in
psychological harm to both children.
The District Court granted the petition. It
noted that "Habitual residence" is not defined by the Hague Convention.
Miller, 240 F.3d at 400. The Fourth Circuit has concluded, however, that
"there is no real distinction between ordinary residence and habitual
residence." A court must make a fact-specific inquiry on a case-by-case
basis to determine a child's customary residence prior to the removal or
retention. In undertaking this inquiry, the court uses a two-part
framework. Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir.2009). The
court first examines whether the parents shared a settled intention to
abandon the former country of residence. The court then examines the
extent of the child's acclimatization to the new country of residence.
Under the framework set forth in Maxwell, E.L.W.J.'s habitual residence
was the Republic of Ireland. First, there was no shared parental intent
to abandon the Republic of Ireland as E.L.W.J .'s habitual residence.
Second, there was no indication that the short four months E.L.W.J. has
spent in the United States rendered her so acclimatized to her life in
this country that the court "can say with confidence that [E.L.W.J.'s]
relative attachments to the two countries have changed to the point
where requiring return to the original forum would now be tantamount to
taking the child out of the family life and social environment in which
[her] life has developed." Petitioner had "custody rights" as to E.L.W.J.
as they are defined under the Hague Convention and Irish law. The Hague
Convention defines "rights of custody" as including "rights relating to
the care of the person of the child, and in particular, the right to
determine the child's residence." Convention, art. 5. The Eleventh
Circuit, in examining Irish law, has observed that "guardianship" under
Irish law " 'concerns matters of overriding seminal importance to a
child's upbringing' " and " 'the duty to ensure that a child is properly
cared for and that decisions relating to the child are made with his or
her best interests at heart.' " Hanley v. Roy, 485 F.3d 641, 646 (11th
Cir.2007). The Eleventh Circuit concluded that guardianship rights under
Irish law "necessarily involve 'the care of the person of the child'
within the meaning of the [Hague] Convention." The district court
similarly concluded that joint guardianship under Irish law is a right
of custody within the meaning of the Hague Convention. Additionally, it
was undisputable that Petitioner had "custody rights" as to E.L.W.J.
after June 29, 2011, when the Irish District Court awarded him interim
sole custody of the child. Respondent's removal of E.L.W.J. from Ireland
was in breach of Petitioner's custody rights. Petitioner's custody
rights--by virtue of his joint guardianship of E.L.W.J.--included the
right to make decisions of overriding seminal importance to E.L.W.J.'s
upbringing. The nation where E.L.W.J. is reared is a matter of
overriding seminal importance to E.L.W.J.'s upbringing, and Petitioner
had the right to take part in that decision. Moreover, Respondent's
retention of E.L.W.J. in the United States after the Irish District
Court awarded Petitioner interim sole custody of the child was in breach
of Petitioner's custody rights. Petitioner was exercising his custody
rights at the time of the E.L.W.J.'s removal from Ireland and retention
in the United States. Courts "will 'liberally find "exercise" whenever a
parent with de jure custody rights keeps, or seeks to keep, any sort of
regular contact with his or her child.' " Bader v. Kramer, 484 F.3d 666,
671 (4th Cir.2007)(quoting Friedrich v. Friedrich, 78 F.3d 1060, 1065
(6th Cir.1996) ("Friedrich II "). The Fourth Circuit has explained that
under this approach: " 'a person [who] has valid custody rights to a
child under the law of the country of the child's habitual residence ...
cannot fail to 'exercise those custody rights under the Hague Convention
short of acts that constitute clear and unequivocal abandonment of the
child." Here, Petitioner had been active part in E.L.W.J.'s life from
her birth until she was removed from Ireland.
The court found that Petitioner established, by
preponderance of the evidence, a prima facie case under the Hague
Convention. It next found that the Respondent had not met her burden in
establishing the "grave risk of harm" affirmative defense. Petitioner
had never harmed E.L.W.J. nor was there any suggestion that he would
harm her. Nor was there evidence of a sustained pattern of physical
abuse and/or propensity for violent abuse. Moreover, there was no
evidence that E.L.W J.'s separation from her half-sister would result in
the type of severe psychological harm envisioned by the affirmative
defense. See Freier v. Freier, 969 F.Supp. 436, 443
(E.D.Mich.1996)(finding that a child's separation from her mother and
two half-siblings did not establish the "grave risk" defense because
"this sort of adjustment problem common in the relocation of most
children is not enough"). Finally, Respondent had not shown, by clear
and convincing evidence, that returning E.L.J.W. to Ireland would
subject her to an intolerable situation.
|
