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In Seaman v Patterson, --- F.Supp.2d ----, 2011
WL 124223 (M.D.Ga.) Petitioner sought the return of her four children to
Mexico, alleging that the children were wrongfully removed from Mexico
and taken to the United States by the children's father, Respondent John
Kennedy Peterson. The Petitioner, Pandita Charm-Joy Seaman, a Jamaican
citizen, and the Respondent, John Kennedy Peterson, a United States
citizen, were lawfully married on February 2, 2002, in Macon, Bibb
County, Georgia. From July 2002 through May 2006, the Petitioner and
Respondent had three children together, T.L.P, age eight years; C.D.P.,
age seven years; and R.T.P., age five years. During this time, the
Petitioner and Respondent maintained a home in Houston County where the
Petitioner cared for the three children. The Respondent was a 100%
permanently-disabled Army veteran due to Post-Traumatic Stress Disorder.
In May 2006, after four years together in the United States, the
Petitioner, the Respondent, and their children moved to the state of
Jalisco, Mexico. They briefly lived in Guadalajara and then moved
permanently to nearby Chapala. The Petersons settled in Mexico and
remained there until the Respondent brought the children back to the
United States in October 2010. According to the Petitioner, the
Petersons "were moving down [to Mexico]," and, in preparing to do so,
sold their home in Houston County along with all their belongings. In
her testimony an investigator for the Houston County Department of
Family and Children Services, stated that, based on her investigation,
it was clear the Petersons intended to stay in Mexico. While living in
Mexico, the Petitioner and Respondent had their fourth child, S.A.P.,
now four years of age. While living in Guadalajara, the Petersons lived
either with or in close proximity to several members of the Petitioner's
extended family. The Petitioner and Respondent's relationship had nearly
always been marked by conflict. According to the Petitioner, after the
death of the Respondent's stepfather, who also lived in Mexico, in
November 2009, the Respondent began drinking heavily and smoking
marijuana, causing the Respondent's behavior to become even more
volatile.
In February 2010, after several months of
increasing discord, the Respondent moved out of the family home in
Chapala and established a separate residence from his family, leaving
the children in the Petitioner's custody. The Petitioner filed for
divorce in Mexico in May or June 2010, but she had not served the
Respondent with process in that action. In July 2010, the Respondent
left Mexico and returned to the United States. Once back in the United
States, the Respondent began planning to take the children from the
Petitioner and to bring them to the United States. On September 24,
2010, by his own admission, the Respondent returned to Mexico and broke
into the Petitioner's home, apparently looking for the children's
passports so that he could "legally" take them back across the border
into the United States. Fearing for her life and afraid that the
Respondent would return and attempt to abduct the children, the
Petitioner withdrew the children from school and moved in with her
parents in Guadalajara.
On September 27, 2010, the Petitioner and
Respondent appeared before the Deputy of the Municipal Judge and Acting
Head of Functions of the Municipal Court, in an attempt to reach a
resolution concerning custody of the children. Pursuant to a Written
Declaration issued by the Municipal Court, the Respondent was permitted
to spend Saturday, October 2, 2010 with the children, but was under
strict orders to return the children to the Petitioner no later than
10:00 p.m. that night. However, the Respondent, by his own admission,
had no intention of returning the children to the Petitioner. Rather, in
accordance with his plan, he took the children and fled to the United
States. In a Houston County, Georgia, Juvenile Court hearing held
November 17, 2010, when asked whether he "had every intention of
disobeying that Judge's order?" and whether he "knew when [he] went in
that [he] wasn't going to listen to this judge?," the Respondent
replied, "Absolutely." Instead, the Respondent called the Petitioner at
approximately 9:00 p.m. that night and informed her that he was not
going to return. Late on the night of October 2, 2010, the Respondent
crossed the border back into the United States. In his testimony before
the Court, the Respondent claimed he crossed into the United States
"legally" by producing certain documents to Mexican authorities. This
testimony was suspect. On cross-examination in the Juvenile Court
proceeding, he acknowledged that he had carefully planned the abduction,
and, in the process, disobeyed a Mexican "judge." Neither the parties
nor the Court were able to find Mexican law that allows one parent to
take children across international borders without the children's
passports or the other parent's consent. Although it was unclear exactly
how the Respondent managed to cross the United States-Mexican border
with his children it was clear that he did so without the Petitioner's
permission and without his children's passports. The Petitioner did not
learn of her children's presence in Georgia until October, 6, 2010.
The Respondent drove the children in a two-door
Pontiac Grand Prix from Chapala, Mexico, to Houston County, Georgia,
over the course of three grueling days and nights, which included a
night spent in the car and a night spent with the Respondents sister in
Columbus, Georgia, "to calm the kids down." As a part of the
scheme, the Respondent's former wife arranged for her doctor, Dr. Thomas
Williamson, an adult internist, to examine the children late in the
evening of October 5, 2010, when they finally arrived in Houston County.
The Respondent admitted the reason he took the children to Dr.
Williamson: "I knew this would be coming and I knew that I would need
that documentation so immediately full check-ups for all the kids." When
asked if the children, other than C.D.P., had "any health issues that
required you to see them on short notice," Dr. Williamson said no, they
"all seemed fairly healthy, other than the weight issue." Armed with his
letter, the Respondent would paint a dire picture in Juvenile Court that
the children had been neglected, they were malnourished, and, in the
case of C.D.P., medical treatment had been denied. None of this was
true. Dr. Williamson admitted that none of the children, including C.D.P.,
had any type of "grave health risks" when he examined them. Dr.
Williamson expressed no opinion in this Court that the children were,
within any degree of probability, malnourished or neglected while in
Mexico. Even if he had, it was unlikely that such testimony, even from a
qualified expert, would be sufficiently reliable to be admissible, given
the false information provided to the doctor, the lack of information
regarding family history and conditions in Mexico, and the fact that the
children, when he saw them late on October 5, 2010, had been through a
grueling three-day odyssey. His testimony in this Court, if anything,
suggestedthat the children were remarkably fit when he first saw them.
The conclusion that the Respondent manipulated the medical evidence in
Juvenile Court was buttressed by the testimony of the Respondent's own
physician, Dr. Gilbert Silverman.
On October 13, 2010, the Respondent initiated a
deprivation action in the Juvenile Court of Houston County, alleging,
inter alia, that while in the Petitioner's care, the children had fallen
into a state of malnutrition and had not received proper medical care.
The Juvenile Court verbally pronounced that the Children were to remain
in the care of the Respondent until the matter could be fully resolved.
In the meantime, on November 30, 2010, the Petitioner, in accordance
with the Convention, filed her Petition in this Court seeking the return
of her children. On Friday, December 10, 2010, the day after the first
evidentiary hearing in the District Court, the Juvenile Court of Houston
County entered "nunc pro tunc November 17, 2010," a handwritten "72 Hour
Hearing Order" granting temporary custody to the Respondent and allowing
supervised visitation by the Petitioner.
The Court appointed an experienced domestic
relations attorney, to be the Court's representative tasked with
interviewing the children. She noted no signs of neglect, malnutrition,
or physical abuse relating to their home life in Mexico or in the United
States since their return. The Court found no basis for concluding that
the children were subjected to any inappropriate conduct or influence in
Mexico. On the contrary, the children clearly enjoyed a happy, safe home
life in Mexico, except, of course, when their parents fought. C.D.P. was
the only child ever placed at risk, and the Respondent and Dr.
Williamson were primarily responsible for that incident.
The Court observed that Petitioner first must
show that the children were habitually resident in Mexico at the time of
their removal. The Eleventh Circuit, following the lead of the Ninth
Circuit, has established a two-step process for determining habitual
residence. First, the Court must determine "[w]hether there [was] a
settled intention to abandon a prior habitual residence ...." (Citing
Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir.2004). "It is not
necessary to have this settled intention at the time of departure, as it
could develop during the course of a stay originally intended to be
temporary." Additionally, in a case such as this one, where both parents
are "entitled to fix the place of the child[ren]'s residence," the Court
must consider the intention of both of the parents. The Court was
satisfied that the parties intended to abandon their Houston County
residence. They either traveled to Mexico intending to stay for a brief
period and, within a few months at the most, decided to abandon their
Houston County residence, or they traveled to Mexico already intending
to abandon their Houston County residence. The fact that the parties
sold their house in Houston County and took up residence in Mexico in
their own dwelling (rather than living with the Petitioner's parents or
in a hotel) suggested that, even initially, they intended to abandon
their Houston County residence. Whether or not this was the case, it
wass clear to the Court that at the very least they abandoned their
Houston County residence once in Mexico. They seldom, if ever, returned
to the United States. They enrolled their children in school when they
reached the appropriate age. They established legal, temporary residency
in Mexico and intended to become Mexican citizens. Their fourth child
was born and raised in Mexico and had never been to the United States
prior to her recent removal from Mexico. Moreover the investigator for
the Houston County Department of Family and Children Services, stated
that, based on her investigation, it was clear that the Petersons
intended to stay in Mexico. Having determined that the Petersons
intended to abandon their previous habitual residence in the United
States, the District Court found that there was "an actual change in
geography and the passage of a sufficient length of time for the
children to have become acclimatized." The Peterson family had lived in
Mexico for four years and seldom traveled back to the United States. The
youngest child was born in Mexico and only traveled to the United States
when brought here in October by her father. The children attended school
in Mexico, are fluent in Spanish, and were generally acclimatized to
Mexico. Indeed, the children had no appreciable connection to their
previous residence in Houston County prior to their removal from Mexico
in October. Because both the Petitioner and the Respondent intended to
abandon their previous habitual residence in the United States, and
because there was an actual geographical change and the passage of
sufficient time for the children to have become acclimatized, the Court
found that the habitual residence of the Peterson children was in the
state of Jalisco, Mexico.
The Court next determined that the Respondent's
removal of the children to the United States was in breach of her
custody rights under the laws of Mexico. Because rights of custody are
rather loosely defined, courts generally look at the background report
of the Convention for guidance. (Citing Whallon, 230 F.3d at 455.) That
report states that "the law of the child's habitual residence is invoked
in the widest possible sense," and that the sources from which custody
rights derive are "all those upon which a claim can be based within the
context of the legal system concerned."
The applicable law here was the Civil Code for
the State of Jalisco, Mexico (the "Civil Code"). In Mexico generally,
and in Jalisco particularly, the doctrine of patria potestas (parental
authority/responsibility) governs the relationship between parents and
their children. "Parental authority/responsibility (patria potestas )
can be understood as the series of reciprocal rights and obligations
that exist between the father and the mother.... Its purpose is the
custody of the minors themselves as well as their assets and it is
intended to protect them." Article 578. Patria Potestas "is exerted by
both parents," (Article 581), and lasts until it ceases under Article
597, is terminated under Article 598, or is suspended under Article 601.
The rights and duties of patria potestas are as follows: I. It is, above
all, a duty and an obligation to be exerted personally and it cannot be
waived under any circumstance. Only in the exceptions permitted by law,
may those exerting parental authority/responsibility (patria potestas )
entrust custody of those subject to it to a third party; II. It is not
transferrable, except in cases of adoption; III. It represents a
positive duty of constant care that requires effective and constant
performance to achieve its purpose; and IV. It confers the right and
duty to discipline in a prudent and moderate manner with the purpose of
harmonic and positive education. Article 580.
The issue was whether the rights conferred on
the Petitioner by the doctrine of patria potestas were rights of custody
or rights of access. The District Court noted that the Eleventh Circuit
had yet to address this specific issue, but the First Circuit had in
Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000). In discussing the doctrine
of patria potestas in general, and as applied by the Baja California Sur
Civil Code in particular, the First Circuit concluded that rights
conferred on a parent by patria potestas are rights of custody rather
than mere rights of access. As in Whallon, here, patria potestas rights
are rights of custody. The purpose of the doctrine "is the custody of
the minors themselves as well as their assets and it is intended to
protect them." Article 578. Moreover, the Petitioner's patria potestas
rights had not ceased, nor had they been terminated or suspended. Thus,
when the Respondent removed the children without the Petitioner's
consent, he violated the Petitioner's rights of custody.
The Court next determined that Petitioner
showed an actual exercise of her rights of custody. The courts
"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."(citing Bader v. Kramer, 484 F.3d 666, 671 (4th
Cir.2007). 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."(quoting Friedrich v. Friedrich, 78 F.3d 1060,
1066 (6th Cir.1996)). "Further, '[o]nce it determines the parent
exercised custody rights in any manner, the court should
stop--completely avoiding the question whether the parent exercised the
custody rights well or badly.' " (quoting Friedrich, 78 F.3d at 1066).
All of the evidence established Petitioner clearly exercised her rights
of custody; and there was no evidence that she unequivocally abandoned
her children.
The Court ruled that the Respondent's removal
of the children from the care of their mother in Mexico was wrongful
under the Convention, Article 3. Therefore, the Convention required that
this Court order the return of the children forthwith, (Article 12), and
ICARA required this Court to order the respondent to pay necessary
expenses incurred by or on behalf of the petitioner, including court
costs, legal fees, foster home or other care during the course of the
proceedings in the action, and transportation costs related to the
return of the child, unless the respondent establishes that such order
would be clearly inappropriate." (42 U.S.C. 11607.) It set forth a
schedule for submission of the request for fees and costs and for the
filing of opposition papers.
It ordered that the children be returned to
their habitual residence in Mexico and ordered that the Respondent pay
the actual, reasonable costs and expenses of the children's
transportation to Mexico.
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