In Miller v Miller, 240 F.3d 392, (4th Cir.,2001) the
Mother filed an action pursuant to the International Child Abduction
Remedies Act (ICARA) and the Hague Convention, seeking her children's
return to Canada on the ground that they were illegally abducted by the
father in violation of a valid Canadian custody order. The United States
District Court ordered the return of the children to Canada, and the
father appealed. The Court of Appeals held that Canada was the habitual
residence of the children; upon establishment of Canada as the
children's habitual residence, the mere existence of a New York order
granting permanent custody of the children to the American father was
not in itself a defense to his wrongful removal from Canada; and the
father failed to establish any defense to the return of the children.
In August 1998, Miller forcibly removed the children from their
mother's home in St. Catharines, Ontario, Canada, and brought them into
the United States to settle with him in Charlotte, North Carolina. Ms.
Miller filed an action seeking the children's return on the ground that
they were illegally abducted by Miller in violation of a valid Canadian
custody order. Ms. Miller is a citizen and resident of Canada, while
Miller is a citizen and resident of the United States. The parties'
elder child, Hope Christian Miller, was born in Canada in September
1990. The parties subsequently married in 1993 and separated in 1995,
prior to the birth of the younger child, Faith Kendra Taylor Irwin
Miller, who was born in Canada in August 1995. They have since divorced.
An Ontario court, in an October 3, 1997 decree ("Ontario Order"),
granted permanent custody of the children to Ms. Miller. On August 28,
1998, Miller arrived in Canada--ostensibly for the purpose of exercising
his rights of supervised visitation under the Ontario Order--and,
without Ms. Miller's consent, took the children from her home and
returned with them to the United States. The district court found that
"[b]ased on the amount of time during which the children lived in Canada
during the course of their respective lives, the children were
habitually resident in Canada as of August 28, 1998." The court
determined that Ms. Miller filed her Hague Convention petition less than
one year after the children were taken to the United States, and that
Hope and Faith had not become settled in North Carolina within the
meaning of the Hague Convention. Finally, the court ascertained that the
return of the children to Ms. Miller did not "pose a grave risk to the
health, safety, and well-being of the children as defined by the
Convention."
The Court of Appeals stated that the scope of a court's inquiry under
the Hague Convention is limited to the merits of the abduction claim.
The merits of any underlying custody case are not at issue. Ms. Miller,
as petitioner, was required to establish, by a preponderance of the
evidence, that her children were "wrongfully removed or retained within
the meaning of the Convention." Ms. Miller had to prove that: (1) the
children were "habitually resident" in Canada at the time Miller removed
them to the United States; (2) the removal was in breach of Ms. Miller's
custody rights under Canadian law; and (3) she had been exercising those
rights at the time of removal. In this case there were subsequent
custody orders from New York and Canada. The Court held
that upon establishment of Canada as the children's "habitual
residence," the mere existence of the New York Order granting permanent
custody of the children
to Miller was not in itself a defense for wrongful removal, though it
would be an appropriate--albeit discretionaryB
judicial exercise to "take account of the reasons" for that decree in
appraising the merits of this abduction claim. Article 17 of the Hague
Convention provides that the sole fact that a decision relating to
custody has been given in or is entitled to recognition in the requested
State [here, the United States] shall not be a ground for refusing to
return a child under this Convention, but the judicial or administrative
authorities of the requested State may take account of the reasons for
that decision in applying this Convention.
The district court concluded that Miller's removal of Hope and Faith
to the United States was a breach of Ms. Miller's custody rights under
the law of Canada, which was the habitual residence of the children at
the time of their abduction. The court determined, Miller's "removal of
the children from Canada was wrongful and his present retention of them
in the United States is wrongful." The court concluded that the defenses
raised by Miller were inapplicableand ordered that the children be
placed in Ms. Miller's custody for their return to Canada, and that law
enforcement officers provide any necessary assistance to ensure a safe
homecoming. That order was carried out and the children returned to
Canada with their mother.
In an action pursuant to ICARA and the Hague Convention, the court
reviews the district court's findings of fact for clear error, while its
conclusions regarding principles of domestic, foreign, and international
law are reviewed by it de novo.
On appeal, Miller asserted that the district court erred in
concluding (1) that Ms. Miller proved the wrongful removal of her
children from Canada, within the meaning of the Hague Convention, and
(2) that Miller failed to establish any of the four available defenses.
Miller argued that because he had been granted permanent custody of
the children pursuant to the New York Order of March 24, 1998, the
district court erred in concluding that Canada was the "habitual
residence" of the children as of August 28, 1998 (the day he removed
them to the United States) and that Ms. Miller was exercising valid
custody rights under Canadian law on that day.
The Hague Convention does not define "habitual residence." However,
in ascertaining how to make this determination, the court is guided by
the precedent of sister circuits in concluding that "there is no real
distinction between ordinary residence and habitual residence." "A
person can have only one habitual residence. On its face, habitual
residence pertains to customary residence prior to the removal. The
court must look back in time, not forward." This is a fact-specific
inquiry that should be made on a case- by-case basis. Moreover a parent
cannot create a new habitual residence by wrongfully removing and
sequestering a child. The evidence showed that both children were born
in Canada and resided there with their mother for a substantial portion
of their lives--in Faith's case, for her entire life--until they were
removed by their father to the United States. Miller argued that the
United States was their habitual residence, because Ms. Miller
wrongfully retained the children in Canada as of March 24, 1998, in
violation of the New York Order. Miller's argument presumed that the New
York Order superseded the earlier Ontario Order granting custody of the
children to Ms. Miller. However, the Ontario Court of Appeal upheld the
validity of the Ontario Order--at least pending further proceedings--and
denied recognition of the New York Order based on Canadian conflict of
law principles. In light of this reasonable disposition, the court saw
no reason not to defer to the court's decision, and rejected Miller's
contentions that Ms. Miller wrongfully retained the children in Canada
upon issuance of the New York Order. It agreed with the district court
that Canada was the children's "habitual residence" at the time Miller
absconded with them to the United States. Because
Canada was the children's "habitual residence" for purposes of the
abduction claim, the court looked to Canadian law to determine whether
Ms. Miller was exercising valid custody rights in that country at the
time of the children's removal. As the Ontario Court of Appeal
determined that Ms. Miller was entitled to custody of Hope and Faith,
despite the New York Order to the contrary, and Miller failed to provide
any authority from Canada undermining this decision or any other reason
to question the Ontario court's interpretation of the law of its own
country, the district court properly concluded that Ms. Miller was
exercising valid custody rights in Canada when her children were removed
from that country.
