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In Barr v Barr, 2011 WL 797664 (S.D.Tex.)
Petitioner Judith Barr's filed a Petition for Return of Children to the
United Kingdom of Great Britain and Northern Ireland. After a hearing
the court found, among other things, that Petitioner Judith Barr and
Respondent Todd Barr were married on September 13, 1997, in Palos Verdes,
California. Judith Barr was a resident of the United Kingdom. Judith
Barr and Todd Bar were the parents of C.B., born in 1999, and K.B., born
in 2001 (the "children") in the United States. In July 2008, Respondent
Todd Barr's employer transferred him to the United Kingdom for a four
year term. Petitioner, Respondent, and the children moved as a family
from the United States to the United Kingdom in July 2008. On January
28, 2009, Respondent Todd Barr initiated divorced proceedings in the
High Court of Justice in England, Principal Registry of the Family
Division (the "English Court"). On May 18, 2010, in a written judgment,
the English Court noted that both parties agreed that the Petitioner
"wife would be the primary carer and the [Respondent] husband would have
generous contact with all the children." On June 17, 2010, the English
Court issued a decree awarding the parties an absolute divorce.
Respondent Todd Barr then filed an application for holiday contact in
the English Court, requesting permission to travel to the United States
with the children for a summer vacation. On July 23, 2010, the English
Court entered an order allowing Respondent to travel with the children
to the United States for summer vacation from July 20, 2010 until August
18, 2010. The children traveled to the United States for their summer
vacation with their father, and were due to be returned to the United
Kingdom on August 19, 2010. . On August 18, 2010, Respondent Todd Barr
sent Petitioner Judith Barr a one-sentence e-mail stating that he would
not be returning the children to the United Kingdom. Respondent Todd
Barr thereafter refused to return the children.
On August 24, 2010, Petitioner Judith Barr
filed an application for return of the children with the Central
Authority for England and Wales. On September 2, 2010, Petitioner's
application was transmitted to the U.S. Department of State, the central
authority in the United States under the Convention. On January 24,
2011, Petitioner Judith Barr filed suit. After a hearing the Court found
that before the children's retention in the United States, the United
Kingdom was the children's home and habitual residence. The children
were enrolled in school in the United Kingdom and fully involved and
integrated in daily and cultural life in the United Kingdom.
The court held that to establish a prima facie
case of wrongful removal or retention under the Hague Convention and
ICARA, Petitioner must show by a preponderance of the evidence that: (1)
the habitual residence of the children immediately before the date of
wrongful retention was the United Kingdom; (2) the retention breached
the Petitioner's custody rights under the law of the United Kingdom; and
(3) the Petitioner was exercising custody rights at the time of the
retention.(citing Abbott, 130 S.Ct. at 1989; England, 234 F.3d at 270;
Hague Convention, Art. 3.) It pointed out that a parent cannot create a
new habitual residence by wrongfully removing or retaining a child.
(citing Diorinou v. Mezitis, 237 F.3d 133 (2nd Cir.2001); March v.
Levine, 249 F.3d 462 (6th Cir.2001) After determining that the
children's habitual residence in this case was the United Kingdom, the
Court must then consider whether the Petitioner had rights of custody at
the time of the retention. Whallon v. Lynn, 230 F.3d 450, 455 (1st
Cir.2000). Whether Petitioner has rights of custody is determined based
upon the law of the children's habitual residence, here, the United
Kingdom. The Court found as a matter of law, that the children's
habitual residence was the United Kingdom and that Petitioner Judith
Barr had rights of custody under the law of the United Kingdom, and
granted the Petition for return. |
