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Roche v Hartz, 2011 WL 841556 (N.D.Ohio)

Adrian Roche and Cynthia Hartz married in Australia in 2001. Hartz, an American, had been living in Australia since 1997. The marriage produced two boys, both born in Australia: LR, born December 10, 2002 and AR, born December 5, 2005. The boys received dual citizenship upon petition shortly after birth. Hartz lived in Australia from the boys' births until April 2007 when she decided to move to America with LR and AR. Hartz said she wanted to come to America to spend time with her ailing mother and to help move her mother from Arizona to Ohio. Hartz's mother had been diagnosed with Alzheimer's disease, and Hartz "wanted to spend time [with her] before she forgot who I was." Hartz said the trip also gave an opportunity for LR and AR to get "reacquainted with their cousins, aunties (and great), uncles, and grandparents on a more 'normal' basis." Although not excited with the idea of his family leaving Australia, the timing of their absence worked for Roche, as well, as he was bogged down at work at the time. Even before Hartz and the children first departed for the United States, Roche and Hartz disagreed over how long they would be gone. Roche wanted the trip to America to last six months--the amount of time Hartz needed to move her mother. Hartz, however, was non-committal. In June 2007, two months before her and the children's planned departure, she emailed Roche and their friends and family to explain why she was relocating to America: "It is the best time for us to come also as [LR] will be in first year in Feb 2009 here [in Australia] and then we are locked into staying put for a few years. Adrian will commute to see us and I will commute the kids every 6 months to [Sydney. We intend to stay [in America] for a year, but will give it 6 months if it is too hard I will return." In July 2007, Roche and Hartz visited Cleveland, Ohio in preparation for Hartz's and the children's move. Hartz's sister lived in the Cleveland area and Hartz's parents intended to relocate from Arizona to Cleveland. Roche and Hartz looked for housing for the family and a school for LR, who was four-and-a-half-years old at the time and was ready to begin school. Impressed with the breadth of therapy services and specialized programs the Orange Schools could offer LR--who suffered from autism and requireed individual attention--Roche and Hartz enrolled him in Orange and jointly took a six-month lease on a house within the school district. Hartz and the children departed for America in August 22, 2007. Once in America, Hartz started building a network of doctors and physicians for LR and AR. LR began seeing a speech therapist, a vision therapist, an occupational therapist, a psychiatrist, and a person to personally accompany LR throughout his daily school day, among other professionals. Both boys also regularly saw a local pediatrician. In addition, LR started school at Orange and adjusted "quite well." In January 2008, six months after their initial move, Hartz asked to extend the stay for six more months. Hartz tempered her request by signaling that she still intended to eventually reunite the family in Australia. To that end, Hartz relayed to Roche that she had located an autism specialist in Australia and had identified an Australian school that could properly accommodate  LR's needs. As to AR's future schooling, Hartz emailed the Australian school where AR was pre-enrolled and asked to defer his entrance to February 2009, copying Roche on the email. Roche initially balked at Hartz's request to extend her stay, but reconsidered because "[LR] had ... fitted into the school ... and [Hartz's] parents still had not moved," which, according to Roche, was the whole reason for Hartz coming to America in the first place. Throughout 2008 the children's acclimation to the United States continued uninterrupted. LR, for example, began meeting with Orange's guidance counselor and other classmates once a week for "lunch bunch," a way for LR to make friends. LR also started participating in after-school activities such as the drama club, Little Scientists, and soccer. Both boys tried Karate, joined Boy Scouts, and regularly attended church and Sunday School. Throughout 2008, Hartz's mother's condition deteriorated leaving her temporarily unable to move to Ohio. Hartz again asked to remain with the children in America, and once again Roche acquiesced. As Roche explained it, "Obviously I wanted everyone to come home, because that's what we planned to do. That's the basis on which I had allowed these shorter term extensions to go for six months at a time. It was only going to be for another six months, another six months, but the parents weren't moving. So what was I to do?" Although frustrated that his family had been abroad for so long, Roche continued to support them financially. Hartz's and the kid's expenditures ranged from $12,000 to $25,000 a month, which included things such as rent, household expenses, therapy for the boys, a full-time au pair Hartz had brought from Sydney to Cleveland, and Hartz's horse and hunt-club membership. In May 2009, Hartz finally moved her mother from Arizona to Ohio. With the impetus for Hartz's trip completed, Roche flew to America on October 29, 2009 to visit for a few months and prepare his family for their move back to Australia in December, a s was then planned. Upon his arrival, however, Roche was greeted by a process server, who served him with divorce papers, not by his family. As part of Hartz's divorce petition, Roche, Hartz, and their lawyers met throughout 2009 and 2010 to negotiate a custody arrangement and parenting plan. At one particular meeting in May 2009, Roche asked to take the kids abroad on a two-week vacation. Hartz's lawyer agreed on the condition that Roche would waive his rights under the Hague Convention, in exchange. Roche responded with the instant petition on August 18, 2010.

Respondent Hartz raised the "Article 12" defense, which she had to prove by a preponderance of the evidence. Article 12 of the Hague Convention provides, in relevant part: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Article 12 establishes a one-year limitations period circumscribing the power of a petitioned court. If the petitioner initiated proceedings within a year of the child being wrongfully removed or retained, the court must order the child's return in the absence of some other exception or defense. If a year or more elapsed between the wrongful removal or retention and petitioner's initiation of proceedings, the court need not order the child's return if the respondent establishes by a preponderance of the evidence that the child is "now settled in its new environment."

The District Court held that interplay between Petitioner Roche's prima facie case, in which he had to prove when the children were wrongfully removed or retained, and Hartz's Article 12 defense, which established a one-year limitations period, put Petitioner in a Catch-22 and left the Court unable to grant him relief. Although Roche said otherwise--believing throughout 2010 that he might still resurrect his marriage to Hartz, the Court found that Hartz's October 29, 2009 divorce petition put Roche on notice that the abducting parent was not going to return with the children. Thus, because October 29 was the "last date upon which it is undisputed that [the children were] present in the United States with [both parents'] permission," October 29 was the date Hartz's retention became wrongful. Consequently, the burden was on Roche to prove that the children's habitual residence was still Australia on October 29, the date the wrongful retention started. The record did not support such a finding.

The district court observed that the Sixth Circuit considers a child's habitual residence to be "the nation where, at the time of [a wrongful removal or retention], the child has been present long enough to allow acclimatization, and where this presence has a 'degree of settled purpose from the child's perspective.' " (citing Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995)) ). This requires the court to focus on whether the child developed a certain routine and acquired a sense of environmental normalcy with the people and places he or she encountered in a country, prior to the removal or retention date. Academic activities are among the most central in a child's life and are therefore highly suggestive of acclimatization. Moreover, a child's social engagements, participation in sports programs and excursions, and meaningful connections with the people and places in the child's new country all point to acclimatization. The Court found that by October 2009--twenty-six months after their arrival--the children's habitual residence had changed from Australia to America. Importantly to this determination of habitual residence, LR and AR came to America when they were four and one years old, respectively, and had continuously resided here since. Neither LR nor AR had attended any school in Australia before coming to the United States. Within a few weeks of their arrival in America, LR was enrolled at Orange. LR was in school essentially full time from his arrival in August 2007 until and after the date of retention, and, by accounts, had fit in "quite well." LR's counselor at school helped him make friends, including the other participants of the "lunch bunch." LR participated in after-school activities such as drama, Little-Scientists, Boy Scouts, and soccer. Both boys tried Karate and regularly attended church and Sunday School. They routinely played with their cousins. Finally, both boys frequently saw doctors, therapists, and other health professionals in the Cleveland area. These facts established that the boys would have perceived America to be their permanent residence, rather than "merely a temporary journey" before they returned to Australia. Accordingly, because the Petitioner could not show that the children's habitual residence was Australia immediately prior to the wrongful retention, the Petitioner failed to make out a prima facie case of wrongful retention under the Hague Convention.

Recognizing the weakness of a wrongful-retention theory, Roche instead alleged that Hartz wrongfully removed LR and AR from Australia on August 22, 2007, the day her and the children left for America. Roche contended that Hartz used misrepresentation to induce him into agreeing to the trip and used ambiguity to extend the stay more than two years, which was originally to last only six months. Roche asked the Court to side-step the typical habitual-residence analysis and discount the time the children spent in America, because, under his theory, such time is after the date of the wrongful removal. If the Court were to accept this wrongful-removal theory--and it did not-- Roche was still faced with Hartz's Article 12 defense. Because more than one year elapsed between the wrongful removal and Petitioner's initiation of this proceeding--here, three years--the court did not need to order the children's return if Respondent established by a preponderance of the evidence that the children were now settled in their new environment.

Under a wrongful-retention analysis, the Court considered twenty-six months of acclimation in fixing the children's habitual residence. Here, the Court had to factor in the additional ten months the children lived in the United States prior to Roche's Hague petition in determining whether the children are now "settled in their new environment." And by all indication, the children's connections to America strengthened in the additional ten months between Hartz's divorce petition and the instant action. Accordingly, even under this line of analysis Roche's argument failed. Under either theory the Court concluded that the children had become settled in America such that removal now would cause the children undue disruption.