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In Maynard v. Maynard,
484 F.Supp.2d 654, (E .D. Mich., 2007)
on May 7, 1999, Mr. Maynard, an Australian
Citizen living in Australia, agreed to travel to Port Huron, Michigan to
work for his Australian employer, Diemould Tooling Services, for a
period of twelve months. Shortly after arriving in Michigan, Mr. Maynard
met Mrs. Maynard. The parties began living together in September 1999,
and they were engaged shortly thereafter on December 31, 1999. In or
about March 2000, Mr. Maynard's employer proposed, and Mr. Maynard
agreed to, a five-year extension of his employment in Michigan. In June
2000, the parties purchased a home in Port Huron, Michigan. Later that
year, on September 9, 2000, the parties were married in St. Clair,
Michigan. Following their marriage, the parties had two children, NCM in
2001 and GNM in 2002. Both children were born in Port Huron, Michigan.
From the time of their engagement, the parties traveled annually to
Australia for three to four week visits. As the expiration of Mr.
Maynard's five-year work assignment in Michigan approached, the parties
prepared to move to Australia. The parties sold many of their household
items in a garage sale in October 2005. In addition, they sold certain
pieces of furniture to friends or family. The parties selected items for
placement in a large wooden crate suitable for sea freight transport.
They packed the family's clothing, shoes, and personal items in
cardboard boxes so that they could be shipped by air freight.
Furthermore, the parties returned their leased automobiles, sold another
automobile, and listed their house for sale. The parties' house sold on
land contract and the closing occurred on November 11, 2005. Although
the parties did ship many of their personal possessions to Australia,
they did leave behind the following items: (1) a small savings account
held at E & A credit union, which is located in Port Huron, Michigan ;
(2) a home equity loan at E & A in the amount of $10,100.25; and (3) a
land sale contract on their former home, including their mortgage on
that home. Mrs. Maynard retained her Michigan driver's license and her
Michigan cosmetology license.
Prior to moving, the parties also arranged for
Australian Citizenship by Descent designation for their minor children,
which was obtained in May 2005. The parties planned their move so that
they would arrive and be established in Australia before the start of
NCM's primary schooling. The parties also completed and submitted the
necessary paperwork for Mrs. Maynard to obtain an Australian spousal
visa. Although Mrs. Maynard did not receive her spousal visa prior to
the family's arrival in Australia, she was able to secure a short-term
visitor's visa. Mrs. Maynard argued that the parties had several
discussions prior to moving to Australia about a purported agreement.
Mrs. Maynard offered the testimony of three witnesses to establish that
the parties had an agreement that they would give it a year and if she
was not happy in Australia, they could return to the United States. Ms.
Rosemary Arnold testified that she recalled three separate occasions
where she overheard Mr. Maynard tell Mrs. Maynard something to the
effect of "we will give it a year." According to Ms. Arnold, in August
2004 at a "cookout" at the parties' home, she heard Mr. Maynard say "we
will give it a year." In addition, while having dinner with the parties
at the River Crab Restaurant in December 2004, Ms. Arnold stated that
she heard Mr. Maynard tell Mrs. Maynard that they would give it a year
and if she was not happy, they could return to the United States.
Finally, Ms. Arnold testified that in early October 2005 she overheard
Mr. Maynard make similar statements to Mrs. Maynard. Ms. Shannon Piper,
Mrs. Maynard's sister, also testified that she overheard similar
statements. Finally, Ms. Carole Piper, Mrs. Maynard's mother, testified
that Mr. Maynard nodded his head after Mrs. Maynard told Ms. Carole
Piper that Mr. Maynard made similar statements. Based on this evidence,
Mrs. Maynard contended that prior to their move, the parties' had an
agreement that if she was not happy in Australia, the family would move
back to Michigan.
The parties arrived in Australia on November
18, 2005. In December 2005, the parties rented a home in Woodville
South, South Australia. Within three months of moving into the home,
their landlord sought, and the parties agreed, to extend the lease for
another twelve months, expiring on March 21, 2007. In June 2006, Mrs.
Maynard and the two children traveled to Michigan using return tickets
originally purchased when the family moved to Australia. Mrs. Maynard
and the children returned to Australia on July 26 or 27, 2006. According
to Mrs. Maynard, when Mr. Maynard met her and the children at the
airport, he told her that he was separating from her. On August 9, 2006,
the parties separated and Mr. Maynard moved into an apartment. On
September 7, 2006, Mrs. Maynard traveled to Michigan with the children.
On September 7, 2006, the same day, Mrs. Maynard signed a complaint for
custody in the Circuit Court for the County of St. Clair, Michigan. Mrs.
Maynard also signed and filed a Uniform Child Custody Jurisdiction
Enforcement Act Affidavit listing Australia as the children's "home
state." On September 8, 2006, the Circuit Court entered an ex parte
order for custody, child support, and health care expenses, providing
Mrs. Maynard with sole physical custody of the children. Mr. Maynard's
petition was filed on January 9, 2007.
The District Court pointed that "habitual
residence must not be confused with domicile. To determine the habitual
residence, the court must focus on the child, not the parents, and
examine past experience, not future intentions." (Citing Friedrich v.
Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993). The Sixth Circuit has
further advised that "[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." Also
instructive was the Third Circuit's explanation of the term in Feder v.
Evans-Feder, 63 F.3d 217 (3d Cir.1995): Guided by the aims and spirit of
the [Hague] Convention and assisted by the tenets enunciated in
Friedrich v. Friedrich and Re Bates, we believe that a child's habitual
residence is the place where he or she has been physically present for
an amount of time sufficient for acclimatization and which has a "degree
of settled" from the child's perspective. We further believe that a
determination of whether any particular place satisfies this standard
must focus on the child and consists of an analysis of the child's
circumstances in that place and the parents' present, shared intentions
regarding their child's presence there.
The Court found that prior to moving, the
parties made extensive arrangements evidencing an intent to remain in
Australia for more than a temporary period. Although the parties left
certain accounts with their credit union open after they moved, the
Court dids not believe this remaining property is evidence of an intent
to return to Michigan. Based on Mr. Maynard's testimony, the parties'
bank account at E & A credit union remained open in order pay certain
outstanding expenses and to receive payment from the vendee under the
land contract for the sale of the parties' home.
The Court did not believe the fact that Mrs.
Maynard retained her Michigan driver's and cosmetology licenses was
evidence of an intent to return to Michigan. Mrs. Maynard never renewed
her driver's license because it remained valid without her doing so and
her cosmetology license was renewed only after her mother contacted her
in August 2006, shortly before she removed the children to Michigan. The
Court believed the parties' actions after the move evidenced their
intent that their to move to Australia was more than temporary and that
it was clearly for an indefinite period. For the first month after their
arrival, the parties moved into a furnished apartment. They extended the
lease at their second apartment for another year, ending on March 21,
2007. Mr. Maynard, although initially on "casual" status with his former
employer, Diemould Tooling Services, subsequently obtained employment
with Eddie's tool shop. Mrs. Maynard interviewed for several cosmetology
positions and ultimately secured a position at Jazz Cutters. Although
she was terminated because she did not possess the proper Australian
cosmetology license, she subsequently applied for and received this
license. In addition, Mrs. Maynard received Australian governmental
benefits from the time of the family's arrival. She also obtained a
spousal visa, permitting her to stay in Australia as long as she was
married to Mr. Maynard. Moreover, the parties enrolled their minor
children in daycare at ABC Learning Center. In June 2006, they prepared
the eldest child, NCM to begin primary school in Australia. The children
became familiar with Australian vernacular, learned to play cricket and
Australian rules football, and befriended other children while attending
daycare and visiting their grandparents. The Court did not believe the
alleged agreement between the parties in any way altered its
determination of Australia as the children's habitual residence. Even if
the evidence offered by Mrs. Maynard was sufficient to establish that
there was an agreement or understanding that the family would move back
to the United States after one year if she was unhappy, this does not
preclude the establishment of a habitual residence in Australia. At
best, the terms of the purported agreement were that maybe the family
would return to Michigan if Mrs. Maynard was unhappy, but that the
family would stay in Australia indefinitely if she was happy. This is
not the same as having an agreement to stay in Australia for a specific
period of time with definite plans to return to the United States.
The court held that where the parties establish
a residency for an indefinite period, the residency during that period
is the habitual residence of the parties. The fact that the parties may
at some future time decide to reside elsewhere, does not preclude the
habitual residence from being the place where the parties are actually
residing for that indefinite period of time. Consequently, there was no
question, that when Mr. and Mrs. Maynard took up living quarters after
the move to Australia, Australia became, and was immediately prior to
their removal, the habitual residence of the children. Mrs. Maynard's
decision to return to the United States did not destroy or change that
habitual residence. The court held that Mr. Maynard satisfied his burden
of proving by a preponderance of the evidence that the parties' two
minor children were habitual residents of Australia prior to their
removal.
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