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In
Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) the District Court
granted the father’s petition under the Hague Convention for the return
of his eight-year-old daughter to Denmark, which it found was the
father's residence, the daughter's habitual residence, and the situs of
the marriage, the divorce, and the creation and enforcement of the
custody rights at issue.
Eight-year-old D.S.D. lived in Denmark since
infancy. Her parents, Peter Dalsgaard and Denise Montoya, were
divorcing, in Denmark. The parents shared joint custody of D.S.D., and
under Danish law parents with joint custody must each consent to a
child's remaining abroad. A March, 2011, agreement signed by both
parents allowed D.S.D. to visit Montoya, who moved to the United States
after the separation, from June 25, 2011, until August 1, 2011. On
August 1st Dalsgaard flew to Tampa, Florida, to accompany his daughter
during her return to Denmark in accord both with the agreement and with
Danish law. D.S.D. refused to return with her father; the preponderant
evidence suggests Montoya and her family assented to, and perhaps fueled
and encouraged, D.S.D.'s resistence. Dalsgaard returned to Denmark and
gained full temporary custody of D.S.D. from the pertinent Danish
authority. On September 28, 2011, Dalsgaard petitioned the District
Court for D.S.D's return to Denmark under the Hague Convention on the
Civil Aspects of International Child Abduction. After a hearing the
court orally ordered D.S.D. returned to Dalsgaard and to Denmark on
Tuesday, October 25, 2011.
Montoya exerted no effort arguing that D.S.D.'s
"habitual residence" is the United States. Nor could Montoya argue with
any success that no retention occurred. "[T]he term 'retention' is meant
to cover the circumstances where a child has been prevented from
returning to h[er] usual family and social environment." Pielage, 516
F.3d at 1288. A "retention" began when without Dalsgaard's consent
Montoya kept D.S.D. in the United States and away from "her usual family
and social environment" after August 1st. Montoya protested
that no "intentional" or "overt" retention occurred because she merely
acquiesced to D.S.D.'s desire to remain. Although whether the retention
is intentional is not controlling under the Convention, Montoya signed
an agreement under which her eight-year-old was due back in Denmark on
August 1st. The record was devoid of evidence that Montoya insisted or
even urged D.S.D. to return to Denmark--certainly nothing suggests that
Montoya attempted to enforce the agreement with the persistence,
authority, and persuasion typifying the responsible parent of an eight-yearold.
The Convention grants Montoya no presumption of neutral (let alone
pristine) motivation. The retention that began August 2nd was "wrongful"
under the Convention. A retention is not "wrongful" because of an
abductor's intentions; a retention is "wrongful" because of a violation
of a custody right in the child's habitual residence. D.S.D.'s habitual
residence is Denmark, and the question is whether Montoya retained D
.S.D. in contravention of Danish law. Under Chapter 1, Section 3 of the
Danish Act on Parental Responsibility: (1) If the parents have joint
custody, they must agree on significant decisions regarding the child.
The parent with whom the child lives can make decisions about general
day-to-day matters relating to the child, including where in Denmark the
child will have his or her habitual place of residence. (2) If the
parents have joint custody but disagree about the custody, they both
have to give their consent for the child to leave the country.... They
also have to give their consent if the child's stay abroad ... is
extended beyond the agreed, presumed, or specified duration, unless an
agreement has been made according to section 17(1)....Under Chapter 3,
Section 17, "(1) If the parents have joint custody and disagree about
which parent the child should live with, the court will decide the
matter.... (2) The court can change an agreement or a decision about a
child's place of residence." A letter from the Department of Family
Affairs to the State Department confirmed that under Danish law "[b]oth
parents must [ ] consent if a child's stay in a foreign country is
extended beyond what is decided or agreed." see Familiestyrelsen,
Legislation and Rules, http://www.familiestyrelsen.dk/en/englishversion/legislationandrules/
(last visited Oct. 22, 2011); Hague Convention, Art. 14 (permitting
direct judicial notice of the law of the habitual residence).
Dalsgaard and Montoya's March, 2011, agreement
declared joint custody and provided that D.S.D. will visit the United
States for "specified duration[s]." Unless a Danish court orders
otherwise, Danish law required that Dalsgaard consent before D.S.D.
remained outside Denmark for longer than the "agreed, presumed, [ ]
specified duration."
The Court found that Montoya's retention of
D.S.D. violated Danish law. A Danish state administration granted
Dalsgaard temporary full custody, which further proved that Montoya
retained D.S.D. in violation of the law of D.S.D.'s habitual residence.
Also, Dalsgaard applied for temporary full custody on August 2nd, the
day that Montoya's wrongful retention of D.S.D. began. Not that Montoya
challenged the point, but the order confirmed that Dalsgaard
unquestionably exercised his custody rights when the wrongful retention
began. Montoya claimed that Dalsgaard consented to the retention and
that D.S.D. "objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of [her]
views." Montoya's argument that Dalsgaard consented to the retention
required no attention because the only evidence of consent under the
Hague Convention was the evidence that fails to show consent under
Danish law, namely, the "re-assessment" provision of the March, 2011,
agreement. The one difference is the burden of proof; under Article 13
of the Hague Convention and ICARA, Montoya had to demonstrate consent by
a preponderance of the evidence. No evidence showed that Dalsgaard
consented under Danish law to D.S.D.'s move to the United States. That
left D.S.D.'s state of mind and "degree of maturity." The burden was
again Montoya's by a preponderance of the evidence, though even if D.S.D.
was mature and objected to return, application of the exception was not
mandatory. The Court indicated that before the evidentiary hearing, an
hour and twenty minute in camera interview of D.S.D. transpired; no
lawyers and no parents. Although a vibrant, cheerful, and delightful
guest in chambers, D.S .D. when questioned had little to say about her
parents' dispute. D.S.D. expressed in head nods and one-word sentences a
preference to remain in the United States. Her reticent and laconic
responses (she had plenty to say about other matters) left the depth and
sophistication of her conviction, and the maturity behind her
conviction, highly doubtful. Contributing to this doubt, Montoya
conceded that D.S.D. was "in a lot of turmoil right now" and "has to
digest a lot of things." Montoya admitted also that D.S.D.'s desire to
remain in the United States wavered. Dalsgaard asserted that D.S.D.'s
preference to remain in the United States was the product of Montoya and
her family's influence. Montoya denied that D.S.D. experienced untoward
manipulation. Based on her testimony, however, Montoya conspicuously
failed to explain to D.S.D. that D.S.D. was supposed to return to
Dalsgaard on August 1st. The evidence suggested that Montoya allowed a
belief to fester in D.S.D. that returning to Denmark betrayed Montoya.
The point was, even if Montoya inflicted no "undue" influence, D.S.D.
behaved as if she believes she must elect between her parents, and her
unenviable position obviously agonized her. Head nods and monosyllables
in favor of the status quo--an eight-year-old's best effort at a balance
of terror–was the closest D.S.D. can get to appearing to favor neither
parent. The sentiments of a perspicacious district judge addressing a
Hague Convention petition for a ten-year-old boy resonate. D.S.D. was
not afraid of the girlfriend, who in fact treated D.S.D. well by
D.S.D.'s own account. The Court concluded that D.S.D.'s distressing
story fully justified an order to return.
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