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In Walker v
Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the
return of his children to Australia who he claimed were wrongfully
removed from Australia and wrongfully retained in the United States by
Respondent Norene Ann Walker, the mother of the children. At the
evidentiary hearing the Petitioner testified, and Respondent moved for a
directed verdict. The court found based on its observations in court of
Petitioner's testimony and demeanor, that the Petitioner was being
evasive during the evidentiary hearing. Nor was the Petitioner's
testimony in certain regards credible on its face. The Court found that
Respondent's testimony was entirely credible.
The District Court found that Petitioner and
Respondent were married in Evanston, Illinois and lived in Seattle,
Washington for approximately eight years before moving to Australia,
and, while residing in the United States, the oldest of the Children was
born. In 1998 Petitioner, Respondent, and their child moved to
Australia. Before the family moved to Australia, the Petitioner promised
Respondent that the move would only be for five years and the family
would then return to the United States. While living in Australia, the
two younger Children were born. Petitioner, Respondent, and their three
Children resided in Australia prior to June 2010, but made several
extended trips to the United States. In June 2010, Petitioner,
Respondent, and the Children traveled to the United States and prior to
coming to the United States made arrangements for the Children to attend
school in the United States until June 2011. Upon arriving in the United
States, Petitioner, Respondent, and the Children went on a vacation on
the west coast and looked for housing before moving in the building that
the Respondent's parents resided in. In July 2010, Petitioner returned
to Australia and Respondent and the three Children remained in the
United States. In September 2010, the Children enrolled in school in the
United States. Petitioner helped in arranging for the transfer of
transcripts from Australia to the United States to assist in the
enrollment of the Children in school in the United States. Petitioner
knew that the Children would attend school in the United States at least
until June 2011. In November 2010, Respondent filed for a divorce in the
United States. In a Jan 21 Letter, Petitioner consented that the
Children could continue to live permanently with the Respondent in the
United States.
The Respondent decided to permanently remain in
the United States with the Children when she received the Jan 21 Letter.
Respondent responded to the Jan 21 Letter with the Jan 30 Letter and
Petitioner then replied with the Feb 16 Letter. After consenting for the
Children's permanent residence in the United States in the Jan 21
Letter, nowhere in the Feb 16 Letter did the Petitioner demand the
return of the Children to Australia. Instead, in the Feb 16 Letter,
Petitioner continued to bargain relating to a property settlement and
the amount relating to the support of the Children. Petitioner did
not visit the Children after he left the United States in July 2010 and
before he filed the Petition. Petitioner failed to support his Children
financially for several months before filing the Petition and Respondent
had to borrow money and work to support the Children. Petitioner did not
demand the return of the Children until five months after he had
consented for the Children to remain in the United States permanently
with the Respondent and seven months after Respondent filed for divorce,
indicating that she would seek custody of the Children. It was only
after the Respondent filed for divorce and the Petitioner was
unsuccessful in persuading the Respondent not to seek default against
him that Petitioner had second thoughts and decided to file a charge of
abduction of the Children under the Convention and demand the return of
the Children to Australia.
The District Court found that Petitioner has
failed to show any wrongful removal. Petitioner not only consented for
the Children's travel to the United States in June 2010, but he actually
accompanied the Children to the United States. In addition, Petitioner,
Respondent, and the Children went on a vacation to the west coast of the
United States before Petitioner returned to Australia. Thus, even if the
court considered that the Children's habitual residence was in Australia
prior to June 2010, based on the above facts, Petitioner failed to meet
his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention
claim contending that the Children were wrongfully retained in the
United States after they arrived in June 2010. For a wrongful retention
claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16
years, (2) the child was wrongfully retained, (3) the child was
wrongfully retained from his or her habitual residence, and (4) the
retention was in violation of the custody rights of the parent that
remains in the habitual residence of the child. A retention occurs when
the petitioner "unequivocally signaled h[is] opposition to [the child's]
presence in the United States," and at that point the child "remained
with [the parent in the United States] against [the other parent's]
wishes and was therefore retained." Karkkainen v. Kovalchuk, 445 F.3d
280, 290-91 (3rd Cir.2006). Based on the evidence presented in this
case, the alleged wrongful retention occurred on May 4, 2011, when the
Petitioner filed the original Petition under the Convention alleging
wrongful retention. Prior to that date, there was no evidence that any
wrongful retention of the Children occurred. Since the date of the
alleged wrongful retention was May 4, 2011, Petitioner had the burden to
establish by a preponderance of the evidence that immediately before
that date, the Children were being retained away from their habitual
residence in violation of the custody rights of the Petitioner in
Australia. The Seventh Circuit has held that a child's habitual
residence is determined by " 'the shared actions and intent of the
parents coupled with the passage of time.' " Norinder, 2011 WL 3966153,
at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also
Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of
a habitual residence requires an actual change in geography, as well as
the passage of an appreciable amount of time"). The Seventh Circuit has
indicated that "habitual residence must encompass some form of settled
purpose but the settled purpose need not be to stay in the new location
forever; rather the family must have a sufficient degree of continuity
to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v.
Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has
cautioned, however, that in regard to the determination of a habitual
residence, the "shared intent to someday return to a prior place of
residence does not answer the primary question of whether that residence
was effectively abandoned and a new residence established by the shared
actions and intent of the parents coupled with the passage of time." .
In addition, the length of the time that the child has spent in one
country "cannot be decisive," because otherwise a parent could establish
a habitual residence of a child by the "wrongful removal and
sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th
Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d.
Cir.2001)).
Petitioner failed to establish by a
preponderance of the evidence that at the time of the alleged wrongful
retention, the Children's habitual residence was Australia. The evidence
showed that immediately before May 4, 2011, the date of the alleged
wrongful retention, the Children's habitual residence was the United
States. The Children's habitual residence became the United States at
the latest after January 21, 2011, and there was ample evidence
indicating that Petitioner and Respondent shared an intent to make the
Children's habitual residence the United States sooner than January 21,
2011. For example, Petitioner clearly indicated his consent in the Jan
21 Letter. Petitioner then took no action to attempt to visit the
Children or to get the Children returned to Australia until five months
later. There was also evidence that even prior to January 2011
Petitioner looked for houses in the United States and indicated an
intent to have the children permanently remain in the United States.
Petitioner stated in the Feb 16 Letter that he had returned to Australia
in July 2010 "for business reasons," thus indicating that he was not
returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned
the Children in the United States. After returning to Australia in July
2010 and at the latest in January 2011, Petitioner abandoned the
Children. Petitioner did not return to visit and offered no
justification for failing to visit since July 2010. Petitioner, who was
the sole breadwinner of the Family, also ultimately cut the Respondent
and the Children off from financial support. Although Petitioner had
correspondence with Respondent in the Jan 21 and Feb 16 Letters, the
main concern of Petitioner in such correspondence was the negotiation of
support payments and property settlement. Respondent had shown that
after returning to Australia in July 2010 and at the latest in January
2011, Petitioner abandoned the Children. Therefore, based on the above,
Petitioner failed to establish his prima facie case by a preponderance
of the evidence that the Children were wrongfully retained from their
habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a
directed verdict on the wrongful removal claim. The Petition for Return
was denied as Petitioner has failed to establish that the Children were
wrongfully removed or wrongfully retained in the United States. The
court found that even if Petitioner could establish a wrongful removal
or retention, the consent exception and abandonment of custody rights
under the Convention applied.
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