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Application of Falls v. Downe, 871 F. Supp. 100 (D. Mass., 1994)

The court concluded that Patrick Falls was not a "habitual resident" of Germany at the time of the alleged wrongful retention by the father. Given this, neither the Convention nor ICARA applied and the court lacked subject matter jurisdiction.

Falls and Downie met each other in Germany when he was stationed there in the Army, and she was working as a cook at a United States Army base. On November 11, 1992, the parties' son, Patrick, was born.

Downie had been separated from his American wife since August of 1990 and a divorce was pending in the United States. It was the parties' plan that, once the divorce was final, they would get married.

Falls and Downie decided that Downie should return to the United States and attempt to find work as a police officer in his home community in Western Massachusetts. Just before Downie's departure, when the arrangements for Patrick's day care unexpectedly fell through, both parties agreed that Downie would take Patrick with him to the United States, where both he and the boy would live with his parents.

The decision by Falls to permit Downie to take Patrick to the United States was entirely voluntary. Moreover, Falls understood when Downie left with Patrick that he and their child would be staying in the United States for an indefinite period of time. Although the couple had not married, they considered themselves a family. The plan was that Falls would maintain close contact with Downie and her son over the next few months, then come to the United States in June of 1994 for her maternity leave after the birth of her child, marry Downie and begin residing indefinitely in the United States.

Downie left Germany in January of 1994 with Patrick and moved in with his parents in Amherst, Massachusetts. He was able to obtain part-time work as a police officer, but could not find a full-time job. In February of 1994, Falls suffered a miscarriage.

Patrick settled down in Amherst, Massachusetts, living at his grandparents' three-bedroom home. He was cared for by, and developed a close relationship with, his father. In addition, he developed a close relationship with his grandparents, who took care of him when his father was at work.

In August of 1994, Falls came to the United States and stayed with Downie and his parents in Amherst. Petitioner raised the issue of returning with Patrick to Germany several times during the August visit, but at this time the respondent Downie refused to permit Patrick to leave. His reason for this, as stated at the hearing, was that Patrick had become used to the environment in his grandparents' home, and he did not think the disruption of a removal to Germany was in the boy's best interest. At this point, due to the passage of time and the child's young age, Patrick barely knew his mother.

On August 30, 1994, Falls returned to Germany, leaving Patrick with Downie against her will. In Germany, she obtained an order from the Court, holding that she was entitled to custody of Patrick. Under German law the mother has sole custodial rights over an illegitimate child.

The Court found that first time that the conduct of the respondent in this case could conceivably be characterized as "wrongful," would be in August of 1994 when Falls asked to take Patrick back to Germany and Downie refused to let him go. It noted that in In determining habitual residency, 'the court must look back in time, not forward ... future plans are irrelevant to our inquiry.' Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993). 'To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.' Friedrich, at 1401. Slagenweit v. Slagenweit, 841 F.Supp. 264, 268 (N.D.Iowa 1993). What is required is that there be a "degree of settled purpose." Id. at 268, quoting In re Bates, No. CA 122.2-89 High Court of Justice, Family Division Court, Royal Court of Justice, United Kingdom 1989. The Court found that as of August 1994, the twenty-one-month old boy had been living in the United States, with the agreement of his mother, and with the prospect of an indefinite continuance of residence, for eight months. He had become completely accustomed to life in this country with his father and grandparents; he barely knew his mother. "It simply defies common sense to suggest under these circumstances that Patrick was, as of that date, a "habitual" resident of Germany." In every significant respect, the boy had by August 1994 settled with the consent of his mother indefinitely in this country.