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Not Reported in F.Supp.2d, 2008 WL 4280030 (W.D.La.)
(Cite as: 2008 WL 4280030 (W.D.La.))
Only the Westlaw citation is currently available.
United States District Court, W.D. Louisiana, Lafayette and Opelousas
Division.
Anne Bennett MORRISON Dietz
v.
John Ford DIETZ.
Civil Action No. 07-1398.
Sept. 17, 2008.
C. MICHAEL HILL, United States Magistrate Judge.
*1 On June 3-4, 2008, the Court conducted a bench trial of this matter.
[rec.
doc. 82].FN1 Appearing at the trial were Charles Glasscock Fitzgerald,
representing plaintiff, Anne Bennet Morrison Dietz, and John Ford Dietz,
proceeding pro se. The parties were given until the close of business on
June 16,
2008 to file post-trial briefs. Both parties filed briefs on June 16,
2008. [rec.
doc. 88, 89]. Plaintiff filed a revised post-trial rebuttal and a
revised brief on
June 20 and 21, 2008, respectively. [rec. docs. 90, 91]. Defendant filed
a
post-trial rebuttal brief on June 20, 2008. [rec. doc. 92]. Thereafter,
the Court
took the matter under advisement.
FN1. The parties consented to the jurisdiction of the court being
exercised
by the undersigned.
Findings of Fact and Conclusions of Law
The Court makes the following findings of fact and conclusions of law in
accordance with Federal Rule of Civil Procedure 52(a):
Plaintiff, Anne Bennet Morrison Dietz ("Anne Dietz"), and defendant,
John Ford
Dietz ("John Dietz"), both of whom are natural-born citizens of the
United States,
were married in Santa Fe, New Mexico on December 15, 1990. After living
in the
United States for several years, they moved, at the suggestion of John
Dietz, to
San Miguel de Allende, Guanajuato, Mexico. Two children were born of the
marriage:
A.M.D., born on December 14, 1994 (now age 13), and A.J.M.D., born on
June 23,
1998 (now age 10). The couple was divorced by Judgment dated September
10, 2001,
by the Minor Court in San Miguel De Allende, Mexico (the "Mexican
Court").
In that Judgment, Anne Dietz was granted custody of both children.
[Plaintiff's
Trial Exhibit 1]. Specifically, the Judgment provides that: "The
children of the
marriage ... both with the last name MORRISON DIETZ, shall be under the
care and
custody of the mother, Ms. ANNE BENNETT DIETZ, at the domicile marked
with
number
24 of Calle Santo Domingo of this city [San Miguel de Allende], with the
possibility of changing domicile, and obliging herself to give notice to
John Ford
Dietz of any change." [Plaintiff's Trial Exhibit 1, p. 3]. Her
ex-husband, John
Dietz, was granted visitation rights as follows: "The parties stipulate
that Mr.
JOHN FORD DIETZ shall have visiting rights over his children on the day
he decides
to be with them, including taking them on vacation, with previous notice
of this
to the mother, Ms. ANNE BENNETT MORRISON." [Plaintiff's Trial Exhibit 1,
p. 3].
After the divorce, the children resided with Anne Dietz and John Dietz
in Mexico.
In January, 2006, John Dietz took A.M.D. from Mexico to Gueydan,
Louisiana. Anne
Dietz had given permission for John Dietz to take A.M.D. on a vacation
to the
United States. [Tr. 252, lines 6-7]. However, she did not consent to
A.M.D.'s
permanent relocation to the United States. [Tr. 254, lines 10-14].
John Dietz filed suit for full custody of the minor children in the
Mexican Court
in March 2006. [Tr. 31, lines 21-25; 32, lines 1-8]. On May 21, 2006,
John Dietz
returned to Mexico and took A.J.M .D. back with him to the United
States. [Tr. 34,
lines 11-15]. After Anne Dietz called the school and spoke with his
teachers, she
discovered that A.J.M.D. had been permanently removed. [Tr. 34, lines
17-22; 35,
lines 13-17]. This occurred one or two weeks before the school term had
ended.
[Tr. 36, lines 7-11].
*2 Anne Dietz then called the home of John Dietz's parents, who live in
Gueydan,
Louisiana, to find out the location of John Dietz. [Tr. 34, lines
22-23]. She
spoke to John Dietz's brother, Thomas, who stated that they might be at
Six Flags,
but he did not really know where they were. [Tr. 34, lines 24-25; 38,
lines 4-9].
Anne Dietz continued calling John Dietz's parents to ascertain the
location of the
children, because John Dietz was not answering his cell phone. [Tr. 37,
lines
18-24]. However, once John Dietz's parents finally answered one of her
phone
calls, John Dietz's mother told Anne Dietz that "John does not want us
to talk to
you." [rec. doc. 37, line 25; 38, lines 2-3].
Anne Dietz further testified that she had called Louisiana first,
because John
Dietz's parents lived there. [Tr. 41, lines 13-15]. However, because
John Dietz
performed legal work on Indian reservations in the southwestern United
States, she
also thought that he could have taken the children to New Mexico,
Colorado, or
Arizona. [Tr. 41, lines 13-16]. John Dietz was licensed to practice law
in
Colorado and New Mexico, but not Louisiana. [Tr. 301, lines 1-7]. He
also owns an
interest in 42 acres of property in Colorado. [Tr. 98, lines 21-23].
Anne Dietz
stated that she did not know that the children were back in Louisiana
until August
of 2006. [Tr. 41, lines 19-21]. There is no credible evidence to the
contrary.
On June 21, 2006, Anne Dietz obtained an order from the Mexican Court
commanding
John Dietz to return A.J.M.D. to her custody. [Plaintiff's Trial Exhibit
2]. John
Dietz failed to appear for a hearing on June 23, 2006, citing "delicate
health."
[Plaintiff's Trial Exhibit 4]. Anne Dietz testified that shortly after
John Dietz
took A.J.M.D. in May, 2006, her attorney told her that John was not
going to
return to court in Mexico. [Tr. 50, lines 2-19].
On July 28, 2006, the Mexican Court issued a criminal arrest warrant for
John
Dietz for Nonfulfillment of Family Assistance Obligations and Arbitrary
Exercise
of His Own Right against Anne Dietz and A.J.M.D. [Plaintiff's Trial
Exhibit 3; Tr.
46, lines 2-4]. John Dietz's custody action was dismissed by the Mexican
Court on
January 10, 2007 because he presented conflicting medical excuses to
support his
failure to appear at the June 23, 2006 hearing. [Plaintiff's Trial
Exhibit 4; Tr.
47, lines 16-23].
On May 24, 2007, Anne Dietz filed an application for return of the
children under
the Hague Convention on the Civil Aspects of International Child
Abduction. [Tr.
54, lines 20-24; Plaintiff's Trial Exhibit 5]. The Mexican Central
Authority
directed an Application for the Return of the Children to the United
States
Central Authority on May 24, 2007. [Plaintiff's Trial Exhibit 5].
On July 13, 2007, plaintiff filed a Petition for Return of Children in
the 15th
Judicial District Court for the Parish of Vermilion, State of Louisiana,
under
Docket No. 87187. [rec. doc. 1, Exhibit 1]. This action was filed
pursuant to the
Convention on the Civil Aspects of International Child Abduction done at
the Hague
on 25 October 1980 (the "Hague Convention"), as codified in the
International
Child Abduction Remedies Act ("ICARA"), 42 U.S.C. s 11601, et seq. At
the time of
the application, John Dietz was living in Gueydan, Louisiana with the
children.
*3 On August 24, 2007, John Dietz removed the case to this Court. [rec.
doc. 1].
He asserts that the children are "well settled" in their current
location, and
that the Court is not obligated to order their return. He further
contends that
plaintiff consented to their removal. Additionally, he alleges that
there is a
"grave risk" that the children would suffer severe psychological and/or
physical
harm if they were returned to plaintiff.
The Court held set a hearing on August 27, 2007, to set an expedited
discovery
schedule, trial date and, possibly, to determine the temporary custody
of the
children pending trial. [rec. doc. 3]. However, Anne Dietz failed to
appear for
the hearing because she had taken the children to Mexico in violation of
this
Court's order. [rec. docs. 11, 17]. The Court issued a bench warrant,
and the case
was administratively closed pending her return. [rec. docs. 12]. On
December 18,
2007, Anne Dietz was taken into custody and returned to the United
States; these
proceedings were reopened. [Tr. 238, line 25; 239, lines 7-8].
A bench trial on the Hague Convention application was held in this Court
on June
3-4, 2008.
Hague Convention and ICARA
The Hague Convention is an international treaty, to which the United
States and
Mexico are signatories. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376
(8th
Cir.1995). "The Convention is designed to secure the prompt return of
children who
have been abducted from their country of habitual residence or
wrongfully retained
outside that country." Ibarra v. Quintanilla Garcia, 476 F.Supp.2d 630,
632-633
(S.D.Tex.2007) (citing Oct. 30, 1985, transmittal letter from President
Ronald
Reagan to the United States Senate, reprinted at 51 Fed.Reg. 10,495
(March 26,
1986)).
The Hague Convention operates to restore the status quo as it existed
before the
wrongful removal of a child by establishing procedures for the return to
the
child's country of "habitual residence" before the removal. (Hague
Convention,
arts. 3, 12, reprinted at 51 Fed.Reg. 10498-99); H.R. DOC. NO. 100-525,
at 5
(1988) ("[t]he Convention is designed promptly to restore the factual
situation
that existed prior to a child's removal or retention."); Sealed
Appellant v.
Sealed Appellant, 394 F.3d 338, 344 (5th Cir.2004); England v. England,
234 F.3d
268, 271 (5th Cir.2000); Ibarra, 476 F.Supp.2d at 633. The Explanatory
Report to
the Convention instructs:
[F]rom the Convention's standpoint, the removal of a child by one
[parent with
custody] without the consent of the other, is ... wrongful, and this
wrongfulness derives ... from the fact that such action has disregarded
the
rights of the other parent which are also protected by law, and has
interfered
with their normal exercise.... [The Convention] is not concerned with
establishing the person to whom custody of the child will belong at some
point
in the future.... It seeks, more simply, to prevent a later decision on
the
matter being influenced by a change of circumstances brought about
through
unilateral action by one of the parties.
*4 Explanatory Report, P 71, at 447-48.
Another of the Convention's aims is to deter parents from crossing
borders in
search of a more sympathetic court. England, 234 F.3d at 271 (citing
Friedrich
v. Friedrich, 78 F.3d 1060, 1063 (6th Cir.1996) (Friedrich I )).
Accordingly, the
Convention prohibits courts considering Convention petitions from
"adjudicating
the merits of [the] underlying custody dispute [s]." Id. (citations
omitted).
In 1988, the United States ratified the Convention and enacted the
International
Child Abduction and Remedies Act ("ICARA"), the implementing
legislation. Sealed
Appellant, 394 F.3d at 342. Pursuant to ICARA, state and federal
district courts
have concurrent original jurisdiction of actions arising under the
Convention. 42
U.S.C. s 11603(a). A person seeking a child's return under the
Convention may
commence a civil action by filing a petition in a court in the
jurisdiction where
the child is physically located. Id. s 11603(b). The petitioner bears
the burden
of showing, by a preponderance of the evidence, that the removal or
retention was
wrongful, id. s 11603(e)(1)(A); the respondent, has the burden of
proving any
affirmative defenses, id . s 11603(e)(2). Sealed Appellant, 394 F.3d at
342.
WRONGFUL REMOVAL
Under the Convention, courts in contracting countries must return a
wrongfully-removed child to his country of habitual residence. Id. at
343 (citing
Convention, art. 12; 42 U.S.C. s 11601(a)(4)). For purposes of the
Convention, it
is irrelevant whether there is a custody dispute concerning that child
pending at
the time of removal. Id.; Hague Convention, art. 4 ("The Convention
shall apply to
any child who was habitually resident in a Contracting State immediately
before
any breach of custody rights....").
Initially, a petitioner bears the burden to prove, by a preponderance of
the
evidence, that the child's removal was wrongful within the meaning of
the Hague
Convention. Van Driessche v. Ohio-Esezeoboh, 466 F.Supp.2d 828, 841
(S.D.Tex.2006); Bader v. Kramer, 445 F.3d 346, 349 (4th Cir.2006)
(citing 42
U.S.C. s 11603(e)(1)). A parent wrongfully removes a child when he or
she removes
or retains the child outside the child's country of habitual residence,
and this
removal breaches the rights of custody accorded to the other parent
under the laws
of that country; and, at the time of removal, the non-removing parent
was
exercising those custody rights. Sealed Appellant, 394 F.3d at 343;
Convention,
art. 3.
Habitual Residence
The Hague Convention is in place to facilitate the return of
internationally
abducted children to their countries of "habitual residence" for custody
determination. S. REP. NO. 107-218, at 132 (2002). A child's habitual
residence is
the place where he or she has been physically present for an amount of
time
sufficient for acclimatization and which has a "degree of settled
purpose" from
the child's perspective. Van Driessche 466 F.Supp.2d at 842. However,
when a
child is too young to have an intent regarding habitual residence, the
inquiry
becomes "shared parental intent." Id. (citing In re Application of Adan,
437 F.3d
381, 392 (3d Cir.2006). The Court must consider all available evidence
to
determine the shared parental intent at the time of removal. Id. (citing
Mozes v.
Mozes, 239 F.3d 1067, 1076 (9th Cir.2001)).
*5 The unique circumstances of each case must be considered when
inquiring into a
child's habitual residence. Id. (citing Holder v. Holder, 392 F.3d 1009,
1016
(9th Cir.2004)). To establish a habitual residence, there must be a
settled
intention to abandon the residence left behind and an actual change in
geography
for a period of time that is sufficient for acclimatization. Id.; Mozes,
239 F.3d
at 1078.
A person can have only one habitual residence. Friedrich v. Friedrich,
983 F.2d
1396, 1401 (6th Cir.1993) ("Friedrich I "). On its face, habitual
residence
pertains to customary residence prior to the removal. Id. The court must
look back
in time, not forward. Id.
The record shows that John Dietz and Anne Dietz established their
domicile in
Mexico with their children in 1999, where they all remained through the
time of
the divorce in September, 2001. [Tr. 15, lines 12-14; 16, lines 22-25;
18, lines
13-21]. For the remainder of 2001 through January of 2006, the
children's primary
residence was in Mexico. [Tr. 20, lines 23-25; 21, lines 1-14; 23, lines
17-20;
256, lines 14-25; 257, lines 1-17]. After the divorce, John Dietz
continued to
work at his office, which was connected to the residence where Anne
Dietz was
living with the children. [Tr. 25, lines 13-25; 26, lines 1-6]. After
John Dietz
remarried, he continued to live in Mexico.
In January, 2006, John Dietz took A.M.D. from Mexico to the United
States. [Tr.
23, lines 5-13]. John Dietz had informed Anne Dietz that he was taking
A.M.D. with
him, and she consented. [Tr. 31, lines 1-5]. However, Anne Dietz was not
aware at
the time that John Dietz was not going to return A.M.D. to Mexico. [Tr.
30, lines
21-24]. While Anne Dietz gave John Dietz her permission to take A.M .D.
on
vacation, she did not give him permission to permanently relocate A.M.D.
to the
United States. [Tr. 31, lines 15-20; 58, line 25; 59, lines 1-2].
John Dietz testified that A.M.D.'s removal was intended to be temporary,
but that
"[w]ithin a couple of weeks or so before the end of January 2006, I
realized that
it was very likely [A.M.D.] would not be able to come back [to Mexico]
based upon
developments." [Tr. 286, lines 9-16].
Before the end of the school year, John Dietz took A.J.M.D. from Mexico
to the
United States in May of 2006. [Tr. 23, lines 21-25]. Anne Dietz
testified that she
did not consent to A.J.M.D.'s removal to the United States. [Tr. 58,
lines 22-24].
John Dietz admitted that Anne Dietz in no way consented to A.J.M.D.'s
removal.
[Tr. 285, lines 3-5].
It is undisputed that both boys had been living in Mexico for several
years prior
John Dietz's taking them to the United States in 2006; the custody of
the children
had been adjudicated by the Mexican Court (which recognized that the
domicile of
the children was in Mexico) with the consent of both parties.
Accordingly, the
Court finds that the children's habitual residence at the time of their
removal
was in Mexico.
Breach of Custody Rights
*6 In addition to proving that Mexico was the children's habitual
residence, Anne
Dietz had the burden to prove that the removal of the children was in
breach of
her custody rights under Mexican law. Van Driessche, 466 F.Supp.2d at
843;
Bader, 445 F.3d at 349.
In the Mexican divorce decree dated September 10, 2001, the parties
agreed to be
bound by six clauses, two of which are relevant to this action. The
first clause
provides that the children of the marriage "shall be under the care and
custody of
the mother." [Plaintiff's Trial Exhibit 1, p. 3]. That clause further
provides
that the domicile is "number 24 of Calle Santo Domingo of [San Miguel de
Allende],
with the possibility of changing domicile, and obliging [Anne Dietz] to
give
notice to John Ford Dietz of any change." In the Second clause, the
parties
stipulated that "Mr. John Ford Dietz shall have visiting rights over his
children
on the day he decides to be with them, including taking them on
vacation, with
previous notice of this to the mother."
Under the September 10, 2001 divorce decree, Anne Dietz was awarded
custody of
both children at their domicile in Mexico. [Tr. 23, lines 9-20].
Although John
Dietz later brought an action in Mexico to change custody, he failed to
pursue the
change of custody, and, therefore, the custody order of the Mexican
Court remains
in effect. John Dietz then took the children in 2006, which interfered
with Anne
Dietz's custody rights. [Tr. 244, lines 9-25; 245, lines 1-6]. Thus, the
Court
finds that Anne Dietz has custody of the children under the Mexican
divorce decree
and that John Dietz breached her custody rights by removing the children
and
relocating them to the United States without her consent.
Exercising Custody
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 place of residence." Convention, art. 5. If a court determines
that a
child has been wrongfully removed, the court shall order the return of
the child,
unless the person who opposes the return establishes that the party
seeking return
was not actually exercising the custody rights at the time of removal.
Convention,
arts. 12, 13a. Under the enacting legislation, ICARA, the party opposing
the
return has a burden of proving, by a preponderance of the evidence, that
the other
party was not actually exercising custody rights. 42 U.S.C. s
11603(e)(2)(B);
Hague Convention art. 13a.
The determination whether a party is exercising custody rights closely
parallels
the determination of the nature and dimension of those rights. Sealed
Appellant,
394 F.3d at 344. Courts charged with deciding "exercise" under the
Convention must
not cross the line into a consideration of the underlying custody
dispute. Id. To
avoid this possibility, American courts have interpreted "exercise"
broadly. Id. (
citing Friedrich II, 78 F.3d at 1063). Friedrich II held: "The only
acceptable
solution, in the absence of a ruling from a court in the country of
habitual
residence, is to 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"
Id. at 1065.
*7 [I]f a person has valid custody rights to a child under the law of
the
country of the child's habitual residence, that person cannot fail to
"exercise"
those custody rights under the Hague Convention short of acts that
constitute
clear and unequivocal abandonment of the child. Once it determines that
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. These matters go to the merits of the custody dispute and are,
therefore,
beyond the subject matter jurisdiction of federal courts.
Id. at 1066 (footnote and citation omitted; emphasis added).
In Friedrich II, the court noted that "[a]lthough there may be
situations when a
long period of unexplainable neglect of the child could constitute
non-exercise of
otherwise valid custody rights under the Convention, as a general rule,
any
attempt to maintain a somewhat regular relationship with the child
should
constitute 'exercise'." Id.
The Fifth Circuit adopted Friedrich II's reasoning in Sealed Appellant,
394 F.3d
at 345 ("... we adopt this reasoning from Friedrich II."). Accordingly,
in the
absence of a ruling from a court in the child's country of habitual
residence,
when a parent has custody rights under the laws of that country, even
occasional
contact with the child constitutes "exercise" of those rights. Id. at
344; see
also H.R. NO. 100-525, at 6 (1988) ("The Court is required to return a
child to
his/her habitual residence even if there is no legal order establishing
custody.").
To show failure to exercise custody rights, the removing parent must
show the
other parent has abandoned the child. Id. at 345. In Friedrich II, the
court held
that by visiting his children at least five times a year and
contributing to their
financial support, the father of two children was exercising his custody
rights
when the mother removed the children.
Here, the children, apparently, spent much of the time, beginning at
some point
after John Dietz remarried, with their father and step-mother on a ranch
located
outside of the town where Anne Dietz lived.
John Dietz took A.M.D. from Mexico in January, 2006, and took A.J .M.D.
from
Mexico in May, 2006. At trial, John Dietz admitted that Anne Dietz had
visitation
and contact with A.J.M.D. and A.M.D. in 2005, prior to their removal
from Mexico.
[Tr. 268, lines 13-15; 270, lines 1-7]. Additionally, John Dietz
testified that
Anne Dietz had telephone contact with A.J.M.D. and A.M.D. in 2005. [Tr.
266, lines
4-8; 268, lines 17-19; 269, lines 7-13; 270, lines 5-7]. Further, Anne
Dietz
specifically testified that she did not abandon her children. [Tr. 24,
lines
14-16].
Anne Dietz testified that after the divorce, John Dietz kept an office
on the
property where she was living with the children. [Tr. 25, lines 13-25;
26, lines
1-6]. At the time, Anne Dietz was working at John Dietz's office. [Tr.
27, lines
10-15]. Anne Dietz testified that A.M.D. was attending internet school
on a
computer in his father's office, and that she saw the children every day
during
the week, whenever they came there. [Tr. 24, lines 20-25; 27, lines
12-15; 30,
lines 15-17].
*8 Additionally, Anne Dietz testified that the children would go back
and forth
between spending time with their father at his ranch outside of town and
with her
at the family residence. [Tr. 26, lines 14-18]. She also said that she
saw A.M.D.
almost every day in 2005 when he was not traveling with his father. [Tr.
26,
lines 19-22]. As to A.J.M.D., she reported that he would spend the night
with her
for a week, then spend a week or two at the ranch with his father. [Tr.
27, lines
1-9]. Further, she visited with A.J.M.D. regularly between January, 2006
and May
21, 2006, which was the date of his removal to the United States. [Tr.
269, lines
7-13].
After John Dietz removed A.M.D. from Mexico, Anne Dietz spoke with her
son by
telephone on several occasions. [Tr. 55, lines 16-20]. A few times,
however, John
Dietz told his family not to allow her to speak to A.M.D. [Tr. 55, lines
21-23].
John Dietz admitted, however, that Anne had "frequently" called his
parents' home
during that summer to speak with the boys. [Tr. 298, lines 24-25; 299,
lines 1-3].
His parents, Delores Hair Dietz and Albert Louis Dietz, Jr., confirmed
that Anne
Dietz called the children often. [Tr. 365, lines 5-9; 401, lines 4-7;
415, lines
1-4].
During the trial, John Dietz attempted to show that Anne Dietz had
insufficient
means to provide for the children. [Tr. 142, lines 21-25; 143, lines
1-25; 144,
1-4; 236, lines 4-22]. However, Anne testified that her brother, Richard
Morrison,
had been helping her with her finances. [Tr. 204, lines 15-17; 320, line
17]. In
any event, lack of financial support over a short period of time is
insufficient
under the convention to demonstrate that a parent has ceased exercising
custody
rights. See Baxter v. Baxter, 423 F.3d 363, 369-70 (3rd Cir.2005).FN2
FN2. Additionally, the Mexican Court ordered John Dietz to pay child
support, which, at some point, he apparently ceased paying.
The Court finds that John Dietz failed to prove that Anne Dietz was not
exercising
her custody rights. Anne Dietz did not clearly and unequivocally abandon
her
children. Friedrich II, 78 F.3d at 1066. In fact, her actions were to
the
contrary. Accordingly, I find that Anne Dietz has met her burden of
establishing,
by a preponderance of the evidence, that the children were habitually
residing in
Mexico, that she had rights of custody, and that she was exercising her
custody
rights prior to her sons' removal. Consequently, the children's removal
from
Mexico was wrongful as defined by the Hague Convention. Van Driessche,
466
F.Supp.2d at 845.
AFFIRMATIVE DEFENSES
Once the petitioner establishes that the respondent wrongfully removed
the child
from his habitual residence, the child must be returned unless the
respondent can
establish one of four narrow affirmative defenses. Sealed Appellant, 394
F.3d at
342 (citing Convention, arts. 12, 13, 20); Van Driessche, 466 F.Supp.2d
at 841;
Friedrich, 78 F.3d at 1067 (6th Cir.1996). A child may not be returned
to his
country of habitual residence if the removing party can show, by a
preponderance
of the evidence, that: (1) the proceeding was commenced more than one
year after
the removal of the child, and the child has become settled in his new
environment;
or, (2) the person seeking return of the child consented to, or
acquiesced in, the
removal or retention. Van Driessche, 466 F.Supp.2d at 841 (citing
Convention,
arts. 12, 13(a); 42 U.S.C. s 11603(e)(2)(B)). A removing party also may
prevent
the child's return if he can show, by clear and convincing evidence,
that:
principles relating to the protection of human rights and fundamental
freedoms do
not permit the return of the child; or, the return would cause grave
risk to the
child's mental or physical well-being. Sealed Appellant, 394 F.3d at 342
(citing
Convention, arts. 20, 13(b); 42 U.S.C. s 11603(e)(2)(A)).
Grave Risk
*9 Under Article 13b of the Hague Convention, a court is not bound to
order the
return of the child if there is a grave risk that the return of the
child would
expose the child to physical or psychological harm. Friedrich, 983 F.2d
at1400;
see also 42 U.S.C. s 11603(e)(2)(a); Hague Convention art. 13b. The
burden is with
the respondent to demonstrate "by clear and convincing evidence" that
the
exception applies. Simcox v. Simcox, 511 F.3d 594, 604 (5th Cir.2007)
(citing 42
U.S.C. s 11603(e)(2)(A). Courts have interpreted "grave risk" narrowly.
Id.
The text of the article requires only that the harm be "physical or
psychological," but the context makes it clear that the harm must be a
great deal
more than minimal. Walsh v. Walsh, 221 F.3d 204, 218-219 (1st Cir.2000);
see also
Nunez-Escudero, 58 F.3d at 377. The risk must be "grave", and, when
determining
whether a grave risk of harm exists, courts must be attentive to the
purposes of
the Convention. Id. (citing Hague Convention, art. 1). For example, the
harm must
be "something greater than would normally be expected on taking a child
away from
one parent and passing him to another"; otherwise, the goals of the
Convention
could be easily circumvented. Id. (citing Re A. (a Minor) (Abduction)
[1988] 1
F.L.R. 365, 372 (Eng.C.A.)); see also Friedrich, 78 F.3d at 1067-68; Re
C.
(Abduction: Grave Risk of Psychological Harm) [1999] 1 F.L.R. 1145 (Eng.C.A.);
C.
v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 F.L.R. 403,
410
(Eng.C.A.). Courts are not to engage in a custody determination, so "[i]t
is not
relevant ... who is the better parent in the long run, or whether [the
absconding
parent] had good reason to leave her home ... and terminate her
marriage." Id . (
citing Nunez-Escudero, 58 F.3d at 377); see also Department of State,
219 Hague
International Child Abduction Convention: Text and Legal Analysis, 51
Fed.Reg.
10,494, 10,510 (1986) ("[Article 13(b) ] was not intended to be used by
defendants
as a vehicle to litigate ... the child's best interests."); H.R. NO.
100-525, at 5
(1988) ("[the Convention] does not seek to settle disputes about legal
custody
rights, nor does it depend upon the existence of court orders as a
condition for
returning children.").
Little law in the Fifth Circuit exists on what constitutes "grave risk."
The
leading case on this issue is Friedrich II, which has, in part, been
relied upon
by the Fifth Circuit. See Sealed Appellant, 394 F.3d 338. In Friedrich
II, the
Sixth Circuit concluded that mere adjustment problems that come with the
relocation of most children is not enough to satisfy the requirement of
proof of
grave risk of harm to a child. See also Walsh, supra, 221 F.3d 204 (1st
Circuit
2000) (argument that removal would unsettle children who have now
settled in the
United States is insufficient to be grave risk of harm because that is
an
inevitable consequence of removal.).
*10 In Friedrich II, the court held that "grave risk" of harm, for the
purposes of
the Convention, can exists only in two situations. First, there is a
grave risk of
harm when return of the child puts the child in imminent danger prior to
the
resolution of the custody dispute, e.g., returning the child to a zone
of war,
famine, or disease. 78 F.3d at 1069. Second, there is a grave risk of
harm in
cases of serious abuse or neglect, or extraordinary emotional
dependence, when the
court in the country of habitual residence, for whatever reason, may be
incapable
or unwilling to give the child adequate protection. FN3 Id.; see also
Response to
International Parental Kidnaping: Hearing Before the Sen. Comm. on
Criminal
Justice Oversight, (1999) (statement of Catherine L. Meyer, British
Embassy
Co-chair of the International Centre for Missing & Exploited Children):
FN3. There was no proof offered at trial that the Mexican Court was
incapable or unwilling to adequately protect the children. John Dietz
made
un-corroborated allegations that he would not be treated fairly by the
Mexican Court because of the influence of the Mexican counsel for Anne
Dietz.
The Hague Convention provides limited defences based on welfare
considerations-a
court has the discretion not to return an abducted child if returning it
would
place the child at "grave risk of psychological or physical harm" or put
it in
an "intolerable situation". These are strong terms and they are meant to
apply
'in extreme circumstances only. The precedent case of Friedrich v.
Friedrich
(U.S. Appeals Court-6th District, 1996) established that "grave risk of
psychological or physical harm" could only apply to a situation where a
child
would be returned to a zone of famine or war or to a situation of
serious abuse
or neglect.
1999 WL 988418 (F.D.C.H.) (1999).
The facts in the instant case are similar to those in Friedrich II.
There, the
German father petitioned the court for return to his son to Germany
after the
mother removed him to Ohio. She argued that the return of her son to
Germany would
cause him grave psychological harm, because he had grown attached to
family and
friends in Ohio. She also hired an expert psychologist who testified
that
returning the child to Germany would be traumatic and difficult for the
child, who
was currently happy and healthy in America with his mother. The court
disagreed
that this constituted grave risk, finding as follows: "If we are to take
the
international obligations of American courts with any degree of
seriousness, the
exception to the Hague Convention for grave harm to the child requires
far more
evidence than Mrs. Friedrich provides. Mrs. Friedrich alleges nothing
more than
adjustment problems that would attend the relocation of most children."
(emphasis
in original). Id. at 1067.
The Fifth Circuit has adopted the standards and reasoning set forth in
Friedrich
II. See England, supra (mother's argument that adoptive child's
turbulent history
in orphanages, foster care, and difficult adoption proceedings was not
enough to
establish grave risk of psychological harm if she were separated from
her mother).
Other courts have also followed Friedrich II, and include: Nunez-Escudero,
58
F.3d at 377 ("district court incorrectly factored the possible
separation of the
child from his mother in assessing whether the return of the child to
Mexico
constitutes a grave risk that his return would expose him to physical or
psychological harm or otherwise place him in an intolerable situation");
Walsh,
221 F.3d at 220 n. 14 (1st Cir.2000) ("We disregard the arguments that
grave risk
of harm may be established by the mere fact that removal would unsettle
the
children who have now settled in the United States. That is an
inevitable
consequence of removal"). Given the rationale for the adoption of the
Convention,
and the enacting legislation passed by the Congress, the undersigned is
compelled
to agree with this reasoning. Additionally, the courts of other
signatories to the
Convention have come to the same conclusion.
*11 It has been said that courts in the United States should give
considerable
weight to the well-reasoned opinions of other Convention signatories.
Nunez-Escudero, 58 F.3d at 377; see also Air France v. Saks, 470 U.S.
392, 403,
105 S.Ct. 1338, 1344, 84 L.Ed.2d 289 (1985); 42 U.S.C. s 11601(b)(3)(B)
(recognizing "the need for uniform international interpretation" of
international
treaties). The Supreme Court of Canada has concluded that only severe
potential
harm to the child will trigger the "grave risk" exception, stating as
follows:
In brief, although the word "grave" modifies "risk" and not "harm," this
must be
read in conjunction with the clause "or otherwise place the child in an
intolerable situation." The use of the word "otherwise" points
inescapably to
the conclusion that the physical or psychological harm contemplated by
the first
clause of art. 13(b) is harm to a degree that also amounts to an
intolerable
situation.
Thomson v. Thomson, 119 D.L.R.4th 253, 286 (Can.1994); see also In re A.
(A
Minor), [1988] 1 F.L.R. 365, 372 (Eng.C.A.) (abducting parent must prove
grave
risk of harm that is "something greater than would normally be expected
on taking
a child away from one parent and passing him to another").
At trial, Dr. Ken Bouillion testified as an expert in clinical child
psychology.
[Tr. 64, lines 12-14]. Dr. Bouillion opined that "there would be great
risk of
psychological harm to the boys should they return to Mexico and the care
of their
mother." [Tr.79, lines 23-25]. He based his opinion on the fact that
from the fall
of 2003, when Anne Dietz went to Belize to live with a friend, she had
been
inconsistently involved in the care of the children, except for the
period of time
the previous fall when they lived with her. [Tr. 80, lines 1-4]. He
further noted
that, throughout the interviews, the boys demonstrated little attachment
to their
mother. [Tr. 80, lines 5-6].
Dr. Bouillion testified that the boys had also raised issues "somewhat
vague of
neglect" and lack of parenting by their mother. [Tr.80, lines 7-8]. Dr.
Bouillion
testified that the boys had referred frequently to being cared for by
multiple
nannies. [Tr. 80, lines 8-9]. They had also expressed concerns about
their
mother's past history of alcohol and drug abuse, and having other adults
in her
home. [Tr. 80, lines 9-11]. However, Dr. Bouillion testified that there
was no
evidence of physical, sexual or verbal abuse of either child by their
mother. [Tr.
104, lines 13-25, p. 105, lines 1-2].
Dr. Bouillion was also struck by the negative emotional trauma that the
boys had
experienced the previous August when they were removed from their school
by their
mother without any knowledge or cognitive understanding of that whole
process.FN4
[Tr. 80, lines 12-16]. He cited the fact of their unwillingness to
return to
Mexico against their stated desires to remain in the United States. [Tr.
80, lines
20-25].
FN4. This was pursuant to an Order of the State court, before removal.
*12 Additionally, Dr. Bouillion found it significant that the boys
demonstrated
regression from their previous level of development when they returned
to
Louisiana in December. [Tr. 81, lines 2-4; 92, lines 3-13]. He testified
that
A.J.M.D. continued to have problems with anxiety and stress. [Tr. 92,
lines
9-10]. As to A.M.D ., Dr. Bouillion reported that he had more serious
problems of
mood, anger and self-esteem. [Tr. 92, lines 10-11]. He also noted that
the
children had no meaningful contact with their mother since December.
[Tr. 81,
lines 4-6].
Few cases address the weight to be accorded to a psychologist's
testimony in a
Hague Convention case. In Tahan v. Duquette, 259 N.J.Super. 328,
333-335, 613
A.2d 486, 488-489 (N.J.Super.A.D.1992), the trial court was called to
perform the
grave risk analysis where a father had removed his nine-year-old child
from its
habitual residence in Canada. The father proffered a court-appointed
clinical
psychologist's psychological and bonding evaluation of the parties and
the child,
as well as testimony from his current wife and the child's teacher,
regarding the
psychological harm that the child would suffer if his life was disrupted
by
compelling his return to Canada. After the hearing, the trial court
ruled that the
Article 13b inquiry, concerning physical or psychological harm or
otherwise
placing the child in an intolerable situation, was not intended to cover
factual
matter which was subject to being considered in a plenary custody
hearing. The
trial judge opined that to do so would usurp jurisdictional prerogatives
reserved
by the Convention to the courts of Quebec. Accordingly, the court ruled
that the
proffered testimony would not be heard.
The Superior Court agreed, finding as follows:
We agree with the trial judge that the Article 13b inquiry was not
intended to
deal with issues or factual questions which are appropriate for
consideration in
a plenary custody proceeding. Psychological profiles, detailed
evaluations of
parental fitness, evidence concerning lifestyle and the nature and
quality of
relationships all bear upon the ultimate issue. The Convention reserves
these
considerations to the appropriate tribunal in the place of habitual
residence,
here Canada, specifically Quebec. No court on a petition for return
should
intrude upon a foreign tribunal's subject matter jurisdiction by
addressing such
issues.
Id. at 334, 613 A.2d 486.
Here, the Court repeatedly informed the parties that its role was not to
determine
custody based on the best interest of the children. This inquiry is
appropriate in
a custody proceeding, not in a Hague Convention case. "It is settled law
that the
weight to be accorded expert opinion evidence is solely within the
discretion of
the judge sitting without a jury. While he may not arbitrarily fail to
consider
such testimony, he is not bound to accept it." Pittman v. Gilmore, 556
F.2d
1259, 1261 (5th Cir.1977); Webster v. Offshore Food Service, Inc., 434
F.2d 1191,
1193 (5th Cir.1970).
*13 In this case, the Court finds that John Dietz has failed to meet his
burden of
showing that returning the children to Mexico would expose them to a
"grave risk".
The cases interpreting "grave risk" hold that more is required that just
the
normal consequences of taking a child from one parent and passing him to
another.
There has been no showing here that removing the boys from John Dietz
and
returning them to Anne Dietz would cause them imminent danger, serious
abuse or
neglect, or extraordinary emotional dependence. Rather, the adjustment
problems
exhibited by the children were of the type to be expected under the
circumstances.
Both boys have apparently re-adjusted. Additionally, the court finds
that the
actions of John Dietz, described below, (which were not disclosed to Dr.
Bouillion) likely contributed to the adjustment problems of both
children.
Accordingly, this argument lacks merit.FN5
FN5. The testimony of the children's teachers and the school principal
was
to the effect that while the children had shown some regression
immediately
upon their return to Louisiana, both children had readjusted to school
and
their social lives within months of their return from Mexico, and were
doing
well at the time of trial.
Age and Maturity
The Convention establishes that a court "may refuse to order the return
of the
child if it finds that the child objects to being returned and has
attained an age
and degree of maturity at which it is appropriate to take account of its
views."
England, 234 F.3d at 271-272 (5th Cir.2000) (citing Convention, art. 13,
51
Fed.Reg. at 10499)). The party opposing the child's return must
establish the
child's maturity by a preponderance of the evidence. Id. (citing 42
U.S.C. s
11603(e)(2)(A) (1994). Like the grave risk exception, the "age and
maturity"
exception is to be applied narrowly. Id. (citing 42 U.S.C. s 11601(a)(4)
(1994);
Nicholson v. Nicholson, No. 97-1273-JTM, 1997 WL 446432, at *3 (D.Kan.
July 7,
1997) ("The child objection defense has been narrowly construed").
"Whether a
child is mature enough to have its views considered is a factual
finding, and, as
such, the district court is entitled to deference." Simcox, 511 F.3d at
604.
Additionally, the Court should distinguish between a child's objections,
as
defined in Article 13b, and a child's wishes, as expressed in a custody
case:
The Hague Convention also provides a limited opportunity for the child
to be
heard provided it has obtained an "age and degree of maturity" at which
it is
appropriate to take its views into account. But a main intention of this
article
was to draw a clear distinction between a child's objections, as defined
in the
article, and a child's wishes as commonly expressed in a custody case.
This is
logical, given that the Convention is not intended as an instrument to
resolve
custody disputes per se. It follows, therefore, that the notion of
"objections"
under Article 13b is far stronger and more restrictive than that of
"wishes" in
a custody case.
Response to International Parental Kidnaping: Hearing Before the Sen.
Comm. on
Criminal Justice Oversight, (1999) (statement of Catherine L. Meyer,
British
Embassy Co-chair of the International Centre for Missing & Exploited
Children);
1999 WL 988418 (F.D.C.H.).
*14 At trial, Dr. Bouillion testified that he had examined both
children, as well
as Anne Dietz, John Dietz, and John Dietz's present wife, Iniani Dietz.
[Tr. 65,
lines 17-20]. Dr. Bouillion stated that he had interviewed the boys on
three
separate occasions individually and apart from their parents. [Tr. 89,
lines
13-15; 90, lines 5-7]. Based on his examinations, Dr. Bouillion opined
that both
boys could be interviewed and give a "fairly accurate description" of
their
thoughts and feelings. [Tr. 83, lines 20-22]. He further found that the
children
had the intellectual capacity and the judgment to do so. [Tr. 83, lines
22-23].
In making the determination as to whether the boys' objections should be
considered, the court must consider the extent to which the "child[ren]'s
views
have been influenced by an abductor, or if the objection is simply that
the child
wishes to remain with the abductor." Lieberman v. Tabachnik, 2008 WL
1744353, *
15 (D.Colo. Apr.10, 2008) (citing Nicholson, 1997 WL 446432).
Application of the
defense is within the court's discretion if the court believes that the
child's
preference is the product of undue influence over the child. Id; Hazbun
Escaf v.
Rodriguez, 200 F.Supp.2d 603, 615 (E.D.Va.2002) ( "[t]he discretionary
aspect of
this defense is important because of the potential for undue influence
by the
person who allegedly wrongfully retained the child"). If a court
determines that
the youngster's opinion is the product of undue influence, the child's
wishes are
not taken into account." de Silva v. Pitts, 481 F.3d 1279, 1286 (10th
Cir.2007).
Here, evidence exists, and I find, that A.J.M.D.'s views were unduly
influenced by
his father. At trial, Anne Dietz testified that the first opportunity
she had to
see A.J.M.D. was when she picked him up at St. Peter's School in
Louisiana in
August of 2007. [Tr. 60, lines 5-9]. She stated that when A.J.M.D. saw
her, he
"started crying and trying to run away from me, and he started saying
that this is
all about money. Daddy's told me this is all about money and the house,
and you
want to take this all away from us and put us in foster care." [Tr. 60,
lines
10-13].
Anne Dietz's testimony is corroborated by A.J.M.D., who testified that
he did not
think that his mother loved him, "[b]ecause she is just trying to use us
to take
money from us," and that she was "trying to take our house [in Mexico]."
[Tr. 347,
lines 11-18]. When the Court asked how he knew that his mother would do
that, A.J
.M.D. replied, "My dad was telling us, and he would show us some E-mails
that
Richard [Morrison] sent to him." [Tr. 347, line 25; 348, lines 1-2].
This
testimony shows that A.J.M.D. was unduly influenced by his father. FN6
FN6. Dr. Bouillion testified that he had no knowledge of this type of
undue
influence being used by John Dietz. This fact is another reason that the
court declined to accept the expert testimony of Dr. Bouillion.
During the questioning of the children, the Court carefully examined the
demeanor
of the children, and finds that neither child was of sufficient maturity
to take
account of their views. The older child, A.M.D., age 13, presented with
a flat
affect and barely responded to questioning. His answers tended to be
short and
curt, and his manner on the witness stand was highly defensive. A.M.D.
answered
many questions with his eyes cast downward, in a voice best
characterized as a low
monotone. He was viably uncomfortable on the witness stand. See Simcox,
511 F.3d
at 604 (court of appeals adopted lower court's finding that 8-year-old's
views
should not be considered because he was "preoccupied, disinterested and
detached,"
avoided discussing his father, and was visibly uncomfortable in dealing
with his
memories from Mexico."); England, 234 F.3d at 272 (fact that 13-year-old
child
had maintained her friendships with children in America, preferred
America to
Australia, and currently enjoyed her situation which had stabilized, did
not
establish that she was mature enough for the court appropriately to
consider her
views on where she would prefer to live under the Hague Convention); cf.
McManus
v. McManus, 354 F.Supp.2d 62, 71 (1st Cir.2005) (objections of 14-year
old
children to their return to their habitual residence was honored where
during
their testimony, they appeared intelligent, mature and articulate,
displayed
appropriate understanding of, and appreciation for, issues presented in
the case,
and effectively communicated their experiences and feelings concerning
those
issues.).
*15 Given the evidence presented and my direct observations, I find that
the
children have not attained an age and maturity such that their views
ought to be
taken into account.
One-Year/Well-Settled Defense
The next defense is that plaintiff's petition was not timely filed
because it was
filed more than one year following the boys' removal from Mexico. See
Convention,
Art. 12; 42 U.S.C. s 11603(e)(2)(B); Van Driessche, 466 F.Supp.2d at
848; Furnes
v. Reeves, 362 F.3d 702, 723 (11th Cir.2004).
An application under the Hague Convention is not subject to a
traditional statute
of limitations period. In re B. del C.S.B., 525 F.Supp.2d 1182, 1993
(C.D.Cal.2007). Instead, if the petition is filed with the district
court over one
year after the retention, it becomes subject to the "well-settled"
defense. Id.;
See Convention, art. 12; 42 U.S.C. s 11603(e)(2)(B). The well-settled
defense
prevents a child's return to his place of habitual residence when the
child has
become "connected to the new environment so that ... return would be
disruptive
with likely harmful effects." Id. (citing Zuker v. Andrews, 2 F.Supp.2d
134, 141
(D.Mass.1998)). The well-settled defense provides that, if proceedings
are
commenced more than one year after wrongful removal, the child should
not be
returned if he has become settled in, and accustomed to, his new
surroundings.
Hague Convention, art. 12. The well-settled defense must be proven by a
preponderance of the evidence. 42 U.S.C. s 11603(e)(2)(B).
In determining whether the child is well-settled, courts consider the
following
factors: (1) the age of the child; (2) the stability of the child's new
residence;
(3) whether the child attends school or daycare consistently; (4)
whether the
child attends church regularly; (5) the stability of the mother's
employment; and
(6) whether the child has friends and relatives in the area. Van
Driessche, 466
F.Supp.2d at 847-48; In re Ahumada Cabrera v. Lozano, 323 F.Supp.2d
1303, 1314
(S.D.Fla.2004).
Additionally, for the child to be well-settled, the court should
consider more
than whether he or she has a comfortable material existence, taking into
consideration the child's living environment and any active measures
taken to
conceal a child. Lops v. Lops, 140 F.3d 927, 946 (11th Cir.1998). Courts
have
also examined whether a parent who wrongfully removes a child will be
prosecuted
for concealment of the child. Mendez Lynch v. Mendez Lynch, 220
F.Supp.2d 1347,
1363-64 (M.D.Fla.2002).
Here, the Court finds that both children are well-settled. The testimony
of Dr.
Bouillion, the children's teachers and pastors establishes that the boys
are
comfortable in their environment, get along well with their step-mother
and
step-sister, attend school and church regularly, and participate in
extracurricular activities such as soccer and scouting. [Tr. 68, line
20; Tr. 69,
lines 15-16; 72, line 2; Tr. 81, lines 16-19; 85, lines 14-25; 86, lines
1-2; 221,
lines 5-9; 226, lines 4-21; 227, lines 4-7; 351, lines 16-21; 353, lines
14-23;
376, lines 2-3, 7-9; 337, lines 13-24; 379, lines 13-17; 389, lines
19-21; 392,
lines 18-20; 472, lines 5-10]. The parties do not dispute this issue.
*16 Even if the Hague Petition was filed more than one year after the
child was
removed and the child is well-settled, the court should determine
whether
equitable justifications exist for tolling the one-year period. The
purpose of
equitable tolling is to ensure that a parent who takes intentional and
significant
steps to conceal his or her children for more than one year will not be
rewarded
for that misconduct by creating eligibility for an affirmative defense
not
otherwise applicable. Furnes, 362 F.3d at 723. When the abducting parent
has
concealed the child, the one-year limitation period has been tolled
until the
parent seeking the child has located him or her." Van Driessche, 466
F.Supp.2d at
852; Furnes, 362 F.3d at 724 (tolling the limitation period four to six
months
due to respondent's concealment of the child and petitioner's extensive
efforts to
locate them); Lops, 140 F.3d at 933, 946 (finding that respondent and
his mother
took significant measures to conceal the child, including purchasing a
home but
keeping it in the seller's name, transacting business only in cash,
refraining
from taking a job that required disclosing a social security number, not
paying
taxes, not obtaining a driver's license, and essentially avoiding any
electronic
identity); Lynch, 220 F.Supp.2d at 1363 (tolling limitations period six
to nine
months because respondent concealed the child by living with friends of
others or
in public abuse shelters, telling her husband she was on vacation but
would
return, threatening to go underground with the children or take radical
steps to
change her identity, using a commercial post office box, and numerous
other steps
to conceal her location); Belay v. Getachew, 272 F.Supp.2d 553, 565
(D.Md.2003)
(tolling limitations period until petitioner, through his own efforts,
independently discovered child's location and acted with due haste in
bringing the
petition once he knew it); In re Ahumada Cabrera, 323 F.Supp.2d at 1309
(tolling
limitations period because respondent promised to come back at a future
date,
threatened to "get lost" if petitioner insisted the child be returned,
and
threatened to deprive petitioner of all communications with his daughter
if he
initiated proceedings against them through the Central Authority).
In Van Driessche, 466 F.Supp.2d at 853 (citing Furnes and Belay ), the
court
looked to "facts taken together" to determine that the petitioner had
enough
evidence to suggest that his child was in Houston and no evidence that
the child
could be anywhere else. Id. at 853. The court concluded that the
one-year period
should be tolled until the date that the Belgian government sent a
letter to the
Southern District of Texas seeking information in Houston concerning the
mother's
whereabouts. It noted that the petitioner could have had the government
act on his
behalf and concurrently filed a Hague Petition, based on the same
information in
the letter. Id. at 854. "Even if an abducting parent does not provide an
address
or phone number to the seeking parent, a petitioner can file a petition
with the
Central Authority to implement a Hague Convention proceeding." Id. at
852-853 (
citing Lynch, 220 F.Supp.2d at 1354. Therefore, it is not necessary for
the
petitioner to know the exact location or address, or phone number to
file a
petition under the Hague Convention.
*17 In Belay, the petitioner came to the United States to see his child,
but was
picked up and taken to an unknown residence and able to see his child
for 15
minutes, never learning where his child was located. The court
determined that
this meeting was not sufficient to end the tolling period, as the period
was
extended to when the National Center for Missing and Exploited Children
informed
petitioner of the location of his child. It held that the equitable
estoppel
period (used interchangeably with equitable tolling) lasted until "the
Petitioner,
through his own efforts, independently discovered [his child's]
location." Id. at
565.
In determining the application of equitable tolling, a petitioner's
efforts to
seek the child's return are also considered. Furnes, 362 F.3d at 708-09
(applying
tolling after the father began ceaseless efforts to locate his child and
her
mother by contacting the landlord of the mother's home, contacting the
local post
office to find a forwarding address, contacting her relatives both at
home and
work, begging them to reveal her whereabouts, and traveling to Florida
and Georgia
in the United States after having been informed that they might be
living there);
Lynch, 220 F.Supp.2d at 1352-53 (applying tolling after the father
sought his
child's location by "bombarding" his friends and acquaintances with
calls,
contacting the International Police (Interpol), and calling every
Vazquez in
Miami, Florida trying to locate them); cf. Wojcik v. Wojcik, 959 F.Supp.
413,
420-21 (E.D.Mich.1997) (finding no reason to apply equitable tolling
because the
mother did not hide the children, and the father did not take any
actions to seek
their return other than filing for divorce).
Courts also look at possible criminal proceedings and their potential
effect on
the child in determining a tolling of the one-year limitation period.
Lynch, 220
F.Supp.2d at 1363-64 (noting there was little likelihood the respondent
would be
prosecuted for concealment because petitioner had promised to dismiss
any criminal
proceedings and believed the children needed their mother); In re
Ahumada
Cabrera, 323 F.Supp.2d 1303,1314 (S.D.Fla.2004) (citing Lops, 140 F.3d
at 946,
for the proposition that courts should consider the possibility of
prosecution for
conduct concealing the child). In this case, the record reflects that an
outstanding arrest warrant for John Dietz's taking of A.J.M.D. out of
the country
is pending in Mexico. [Plaintiff's Trial Exhibit 3; Tr. 46, lines 2-4;
288, lines
1-4; 292, lines 8-17].
Here, the record shows that as soon as Anne Dietz found out from the
school that
A.J.M.D. had been removed permanently, she called the home of John
Dietz's
parents, who lived in Gueydan, Louisiana, to discover the whereabouts of
her
ex-husband. [Tr. 34, lines 22-23]. She spoke to John Dietz's brother,
Thomas, who
told Anne Dietz that they might be at Six Flags, but he did not really
know where
they were. [Tr. 34, lines 24-25; 38, lines 4-9; 152, lines 4-11; 153;
lines 1-4].
She said that she kept calling John Dietz's parents to ascertain the
location of
the children, because John Dietz was not answering his cell phone. [Tr.
37, lines
18-24]. However, once his parents answered one of her phone calls, John
Dietz's
mother told Anne that "John does not want us to talk to you ." [rec.
doc. 37, line
25; 38, lines 2-3; 181, line 25; 182, line 1].
*18 Anne Dietz further testified that she had called Louisiana first,
because John
Dietz's parents lived there. [Tr. 41, lines 13-15]. However, because
John Dietz
performed legal work on Indian reservations, and was licensed to
practice law in
Colorado and New Mexico, she also thought that he could have taken the
children to
New Mexico, Colorado, or Arizona. [Tr. 41, lines 13-16; 301, lines 4-7].
John
Dietz, along with his sons, also owned an interest in 42 acres of land
in
Colorado. [Tr. 259, lines19-23; 260, lines 3-6]. Anne Dietz testified
that she did
not know that John Dietz and the children were back in Louisiana until
August of
2006. [Tr. 41, lines 19-21; 152, lines 10-11].
Anne Dietz stated that her first telephone conversation with her sons
after
A.J.M.D. was taken on May 19, 2006, was in August, 2006. [Tr. 56, lines
1-6]. She
testified that John Dietz called her and asked if she wanted to talk to
her sons,
to which she responded, "Of course." [Tr. 56, lines 7-9]. John Dietz did
not have
a regular phone line in Gueydan, so he called Anne Dietz from a Vonage
line to
speak to her sons. [Plaintiff's Exhibit 6; Tr. 300, lines 9-20]. Anne
Dietz
believed that all of her conversations with the boys were on a speaker
phone. [Tr.
56, lines 17-19; 57, lines 19-23].
The record reflects, and I find as fact, that Anne Dietz did not know
where her
children were until August, 2006. Although she made efforts to find them
by
telephoning John Dietz and his parents, she was prohibited by John Dietz
from
speaking with them until August, 2006. The Court finds that the one-year
period
was tolled until August 2006, and that, therefore, this was the date
that the
one-year period began to run in this case. Since the petition was filed
in state
court on July 13, 2007, the petition was timely filed within one year of
the date
that Anne Dietz located the children, and, thus, the "well-settled"
defense is not
available to John Dietz here.FN7
FN7. It should also be remembered that Anne Dietz had filed an
application
for return of the children on May 24, 2007 with the Central Authority.
CONCLUSION
Based on the foregoing reasons, the Court will render judgment in favor
of the
plaintiff, Anne Dietz. The children must be returned forthwith to
Mexico.
ICARA provides that the court "shall order the [removing parent] to pay
necessary
expenses incurred by or on behalf of the petitioner, including court
costs, legal
fees ... and transportation costs related to the return of the child,
unless the
[removing parent] establishes that such order would be clearly
inappropriate". 42
U.S.C. s 11607(b)(3). John Dietz has made no such showing here.
Accordingly, the
court will also enter judgment in favor of Anne Dietz and against John
Dietz, for
all reasonable attorney fees and costs incurred by Anne Dietz in these,
and the
state court proceedings, as well as the reasonable travel cost of Anne
Dietz and
the children. Sealed Appellant, 394 F.3d at 346 (citing Convention, art.
26;
Explanatory Report, P 136, at 468.
Counsel for Anne Dietz is to file an affidavit, itemizing by date and
description,
the time expended in this case, his customary hourly rate, the customary
hourly
rate for any legal assistant or other lawyer employed on this case, and
his costs
and expenses incurred in the prosecution of this case, within thirty
(30) days of
the date of the signing of these Reasons. The court will thereafter
enter an
additional Order, setting the fees and expenses awarded.
W.D.La.,2008.
Morrison v. Dietz
Not Reported in F.Supp.2d, 2008 WL 4280030 (W.D.La.)
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