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In re Mikovic v Mikovic, 541 F.Supp.2d 1264 (M.D. Fla, 2007)
Petitioner Peter Mikovic sought the return of his child MPM to the
United Kingdom, Wales. Mrs. Mikovic was a citizen of the United States.
Mr. Mikovic appeared by trans-Atlantic video conferencing from Wales,
where he resided. Peter Mikovic came from Slovakia to the United States
on a six-month visitor's visa in 1995 to work in building construction.
The Mikovics met in December 2000 in Jacksonville, Florida and began
dating in January 2001. A few months after they started dating, Mr.
Mikovic told Respondent that he was in the United States illegally. They
were married in Florida on February 7, 2002. At at the end of 2002, they
together purchased a home in Jacksonville. Mrs. Mikovic, a dental
hygienist, testified that she paid the mortgage on the house. In 1998,
the United States government initiated removal proceedings against Mr.
Mikovic and on December 28, 1999, he was ordered removed in absencia
from the United States to Slovakia by the Immigration Court. On January
8, 2003, Mrs. Mikovic filed a petition with the Immigration Court on her
husband's behalf for permission to reapply for admission to the United
States. Mr. Mikovic was detained on February 21, 2003 pursuant to the
order of removal and incarcerated for the next five months. On June 27,
2003, Peter Mikovic was deported from the United States. After
deportation, Mr. Mikovic went to Slovakia to live and Mrs. Mikovic
joined him on July 2, 2003, returning to Jacksonville on July 20, 2003
because of her job. During this period Mrs. Mikovic worked with an
attorney to have the deportation decision reversed. She continuously
tried to help Mr. Mikovic become an American citizen. The Mikovics'
appeal for reconsideration of the deportation order was unsuccessful.
The Mikovics' immigration attorney, David Fletcher, testified that so
long as the couple remained married, Mrs. Mikovic can file on her and
MPM's behalf a request for waiver seeking permission for Mr. Mikovic to
reapply for admission based upon hardship, a process that can take six
months to a year or longer, and as to which the chances for success are
slim. He was unaware of any procedure available to Mr. Mikovic to pursue
permission to enter the United States prior to 2013 if the couple was
divorced. Mrs. Mikovic returned for a second visit to Slovakia from
October 27, 2003 until March 18, 2004, living with Mr. Mikovic in his
house, and maintaining her own bank account. She brought with her
$10,000 that she said she had inherited, which she said she spent to
improve her husband's house in Slovakia. During this period, Mrs.
Mikovic worked as a dental hygienist in Slovakia for a week and a half,
having acquired a permanent resident visa to live in Slovakia and a work
permit. Mrs. Mikovic testified that she was not happy in Slovakia. Mrs.
Mikovic became pregnant and returned to Jacksonville on March 18, 2004;
MPM was born in Jacksonville on August 12, 2004. The child was a dual
citizen of the United States and Slovakia. While in the United States,
Mrs. Mikovic again filed immigration paperwork seeking permission for
her husband to reapply for admission to the United States. Mrs. Mikovic
obtained a passport for MPM and returned to Slovakia with MPM on October
16, 2004, renting the Jacksonville house to a tenant. During this second
trip to Slovakia, Mr. and Mrs. Mikovic discussed the possibility of
moving to an English-speaking country to accommodate Mrs. Mikovic.
According to Mr. Mikovic, the discussions were to "make sure everybody's
happy, a compromise, ... Make sure we stay together." Mrs. Mikovic and
the baby stayed in Slovakia with Mr. Mikovic for three months until
January 2005, but again Mrs. Mikovic was not happy, feeling isolated in
her husband's rural house while he was gone, not knowing anyone or being
able to speak the language, and not having access to an automobile or
other transportation: "[W]e argued the whole-most of the time in
Slovakia. It was an awful experience for me. And he helped me pack the
bags, he took us to the airport and he kissed [MPM] good-bye and at that
point it was over for me." She returned to the United States with MPM on
January 15, 2005. Mrs. Mikovic testified that in her mind, the marriage
was over as of January 2005, the couple was separated, and that she
stayed in Jacksonville for that year with MPM without any objection from
Mr. Mikovic. During that year, she resumed working part-time, and paid
the mortgage on the house. Mrs. Mikovic acknowledged that she and her
husband continued to stay in touch. Mrs. Mikovic and MPM returned
to Slovakia to visit Mr. Mikovic from July 28 until August 18, 2005 to
celebrate MPM's first birthday. During this trip, the couple resumed
talks about living in an English-speaking country, and visited the
American Embassy in Prague seeking permission for Mr. Mikovic to return
to the United States. Mr. Mikovic testified that "if I cannot go back to
America we have to move somewhere else, make sure we are staying
together." They discussed the possibility of living in Great Britain,
Canada, and Australia. In October 2005, Mr. Mikovic moved to Great
Britain. He testified that he had found a job in Wales before making the
move. The couple discussed the move to Wales before Mr. Mikovic actually
relocated there. Mrs. Mikovic sold the couple's home in Jacksonville.
Mrs. Mikovic said she had put the couple's home on the market in August
2005, before Mr. Mikovic moved to Wales, because of problems with it,
and a contract was pending on the sale of the home on October 19, 2005.
"[H]e didn't ask me to go to the U.K. until after the fact that I had a
buyer," according to Mrs. Mikovic. The home sale closed on December 30,
2005. Mr. Mikovic testified that "[s]he sell everything. She sell my
cars, my tools, our furniture. Everything." Mrs. Mikovic lived at a
friend's house for about two weeks, and then drove to Pennsylvania to
stay with Mr. Mikovic's aunt for about a month. Mr. Mikovic testified
that the Jacksonville home was sold to allow Mrs. Mikovic and MPM to
move to Wales.
Mrs. Mikovic and MPM arrived in Wales on January 25, 2006. She
brought her clothes and $10,000 from the sale of the house, keeping
nearly $6,900 in a bank in Pennsylvania and purchasing a $20,000
certificate of deposit on January 11, 2006 in a Jacksonville account.
Within days, the family moved into a rented house at 21 Locke Street,
Newport, South Wales. They had a six-month lease that both signed.
Likewise, utilities for the home were in both names. They shared a joint
bank account, and Mrs. Mikovic had a credit card. While in Wales, MPM
was enrolled in day care, attending Kites Nursery School, and Mrs.
Mikovic worked through a job placement agency. Though she prepared a
resume focused on presenting her credentials as a dental hygienist, Mrs.
Mikovic said she was unable to find a hygienist job in Newport. Both
Mrs. Mikovic and MPM registered for benefits with the National Health
Service, receiving free medical care and medications while in Wales.
From April 2006 through September 2006, Mr. Mikovic worked a
construction job 98 miles away in Aberystwyth, Wales during the
weekdays, paying weekly rent and living with four other Slovakian
workers, returning to the Newport home to spend weekends with Mrs.
Mikovic and MPM (except on the few weekends when Mrs. Mikovic and MPM
went to the beach community of Aberystwyth for the weekend) Mrs. Mikovic
applied for residence documentation in Wales because "I didn't know how
long I would be there, so I had to send these applications off to make
sure that I didn't overstay my visitation time." On October 25, 2006,
Mrs. Mikovic and MPM were issued a residence card (affixed to their
passports) as family members of an "EEA National" (European Economic
Area) which authorized them to remain in Wales until October 25, 2011.
To obtain a passport to travel to Slovakia for Christmas 2006, Mrs.
Mikovic filed documentation with Slovakia (and received on January 2,
2007), certifying "that I am ending my permanent residence on the
territory of the Slovak Republic for the reason of moving to Great
Britain on 2nd January, 2007. Mrs. Mikovic testified that by the end of
2006, their marriage was "pretty much over" and that they started
discussing how to split up their money. On December 15, 2006, the family
traveled to Slovakia for the holidays. While in Slovakia, the couple
argued because Mrs. Mikovic did not want to stay with Mr. Mikovic's
family." Mrs. Mikovic checked into a hotel where she stayed one night by
herself, and Mr. Mikovic and MPM had Christmas dinner with Mr. Mikovic's
family. After that, Mr. Mikovic stayed in the hotel with his wife, and
MPM stayed with Mr. Mikovic's sister for most of the trip. Returning to
Wales on January 4, 2007, Mrs. Mikovic said that she told her husband
she wanted to go to the United States permanently and asked how much
money she could take with her. She said that Mr. Mikovic responded that
she could take back the $10,000 that she brought, which she thought was
not a fair amount given the amount of her funds she had spent on the
marriage. Mr. Mikovic conceded that in January 2007, he offered to give
Mrs. Mikovic L6,000 pounds to go back to the United States "for two
months," based on the fact that she had brought $10,000 with her from
the United States to Wales, but that he did not ultimately give her the
money. Mrs. Mikovic denied that she told her husband that she planned to
return to Wales after two months.
On January 12, 2007, Mr. Mikovic threatened to report to the Wales
social services that Mrs. Mikovic had been mistreating MPM as a way to
keep her in Wales. Mrs. Mikovic testified that the threat "scared" her
and that she immediately went to the day care to pick up MPM. She told
the day care personnel that she was upset because her husband was trying
to falsely accuse her of bruising MPM and had threatened that he was
going to call social services and the police. The nursery became
concerned and called social services. According to the police report,
Mrs. Mikovic told the nursery she was taking MPM to a hotel for now and
then back to the United States. The nursery reported to police that Mr.
Mikovic had informed it on the preceding day, January 11, that MPM would
be attending nursery until the end of the month. Mr. Mikovic told the
police officer that Mrs. Mikovic was returning to the United States for
two months to take care of her grandmother, and, according to the police
report "Peter actually agreed also that he had said that sort of thin
[sic] [making false reports about bruising] in the past to keep Amy at
home." A police officer found Mrs. Mikovic at a hotel and inspected MPM
for bruises, finding none. The police report describes Mrs. Mikovic as
"frantic and extremely upset," and said that she stated that it was her
intention to leave her husband. Social Services called Mr. Mikovic to
confirm that Mrs. Mikovic had his consent to leave for the United States
with MPM and Mr. Mikovic responded: "But she tell me she going to
America take care of her grandmother for two months and she come back."
"[S]he swear to God she go for two months to America and come back."
Mrs. Mikovic said she has no idea why he said that he had consented only
to a two month trip. After Mr. Mikovic spoke with the social services
workers, he attempted to contact Mrs. Mikovic who did not answer the
phone. After 24 hours with no contact, Mr. Mikovic reported her missing
to police. He subsequently learned she had left for the United States.
Mrs. Mikovic left Wales with MPM on January 13, 2007, taking with her
between L14,000 and L15,000 from the sale of the Mikovic house in
Slovakia. According to Mr. Mikovic, Mrs. Mikovic did not take any of her
records; "she left everything." Mrs. Mikovic moved into her current
Jacksonville address in February 2007. Mr. Mikovic testified he began
searching for MPM immediately, and that he never consented to Mrs.
Mikovic taking MPM back to the United States forever. He said he had no
information about the whereabouts of M PM for over two months. After
that, Mrs. Mikovic gave her telephone number to Mr. Mikovic's aunt in
Pennsylvania, and he was able to call. After Mrs. Mikovic returned to
the United States, Mr. Mikovic forwarded immigration paperwork to her
and she and Petitioner's aunt filed papers attempting to secure his
entry into the country. He testified that though he would prefer to live
in Wales because it is closer to his family in Slovakia and it is
"European," he is still attempting to come to the United States because
it would make his wife happy to live here, and that the happiness of
living with his wife and son would be worth the compromise. Mrs. Mikovic
said that Mr. Mikovic agreed that she could return to the United States
if she was not happy in Wales, and that he consented to her leaving
Wales with MPM. "[W]e had mutually come to a decision that our marriage
was over and that I was taking [MPM] and going to the U.S.," she said.
She contended that Mr. Mikovic brought this action because he was upset
about her taking the money from the sale of his mother's home. Mr.
Mikovic denied both statements. On March 16, 2007, Mr. Mikovic, in
accordance with the Hague Convention, filed an application with the
Central Authority of England and Wales for the return of MPM, which in
turn applied to the United States' Central Authority. Mrs. Mikovic was
living in Jacksonville with MPM and was working part time as a dental
hygienist and assistant; MPM was attending day care in Jacksonville.
Mrs. Mikovic filed for divorce and custody of MPM in the Florida state
court in Jacksonville.
The parties agreed that Mr. Mikovic satisfied the last three elements
of establishing wrongful removal under the Hague Convention, that is,
that Mr. Mikovic had custody rights pursuant to the law of the United
Kingdom, that under that law, he was exercising his custody rights at
the time of MPM's removal, and that MPM was under the age of 16. See
Dallemagne 440 F.Supp.2d at 1293-94. The disputed issue was whether MPM
was a "habitual resident" of Wales in January 2007 when Mrs. Mikovic
removed him to the United States.
The Court observed that the Eleventh Circuit in Ruiz, has set forth
the analytical framework for determining "habitual residence." "The
first step toward acquiring a new habitual residence is forming a
settled intention to abandon the one left behind." Ruiz, 392 F.3d at
1252. "[W]hen an alleged abandonment of a clearly established habitual
residence for a new home is at issue, the court must determine not only
whether the child was settled in his new home, but whether the prior
habitual residence was abandoned, and the new home has supplanted the
old 'as the locus of the [child's] family and social development.' "It
is not necessary to have this settled intention at the time of
departure, as it could develop during the course of a stay originally
intended to be temporary." Ruiz, 392 F.3d at 1252. The determination of
this "subjective" settled intent is important "because there can be no
bright line rule with respect to the length of an absence." All that is
necessary is that the purpose of living where one does has a sufficient
degree of continuity to be properly described as settled.' " Ruiz, 392
F.3d at 1252 (quoting In re Bates, No. CA 122.89 at 9-10, High Court of
Justice, Fam.Div'n Ct.Royal Court of Justice, United Kingdom (1989)).
Because a young child (such as three year old MPM) does not usually have
a "settled intent" independent of his or her parents, a court should
look to "the settled purpose and shared intent of the child's parents in
choosing a particular habitual residence." Whiting v. Krassner, 391 F.3d
540, 550 (3d Cir.2004). "The shared intentions of both parents for a
child to establish a residence at a particular location, coupled with
actions to establish the residence, may create a new habitual residence
within a short time period. Importantly, the emphasis is on the shared
intentions of both parents rather than unilateral intentions of one
parent.
Under Ruiz, the Eleventh Circuit required the Court to determine
whether the Mikovics and their child acquired a new habitual residence
by "forming a settled intention to abandon the one left behind." Ruiz,
392 F.3d at 1252. The parties agreed that on January 25, 2006, the date
that Mrs. Mikovic and MPM first traveled to Wales, the United States was
the child's habitual residence. Thus, the question was whether the
Mikovics at that time, or at any time thereafter, shared an intent and
mutually agreed to abandon the United States as MPM's habitual residence
and whether their residence in Wales "had a sufficient degree of
continuity to be properly described as settled." To evaluate this
disparity, the Court first looked at the prior history of the couple and
their child. Although the underlying facts in the Eleventh Circuit's
Ruiz decision were somewhat different, the Court echoed the language of
Ruiz in finding that a preponderance of the evidence showed that Mrs.
Mikovic agreed to move to Wales "for a trial period" and that Mr.
Mikovic had promised her that if things did not work out, she could come
back to the United States. The Court further found that Mrs. Mikovic's
decision to go to Wales was "clearly conditional" and that "attempts to
salvage the marriage, rather than commitment to staying in the new
locale [was] what determined the length of stay ...." The Court was
aware that the "settled intention" of the parents may be developed over
time: "[i]t is not necessary to have the settled intention at the time
of departure [from the U.S.] as it could develop during the course of
the stay [in Wales] originally intended to be temporary." However, the
Court did not find this to be such a case. The Court credited Mrs.
Mikovic's testimony that, while the couple was in Wales, Mr. Mikovic was
gone much of the time, that she was not "happy with not having him
around", that they argued much of the time and that she was dissatisfied
living in Wales. The Court found that Mr. Mikovic had not proven by a
preponderance of the evidence that "the objective facts pointed
unequivocally to a new habitual residence. Nor could the Court say "with
confidence" that MPM's relative attachments to the two countries had
changed. Rather, the Court's assessment was that (1) the United States
had been and continued to be MPM's habitual residence, (2) that but for
Mr. Mikovic's immigration problems the couple and MPM would be living in
the United States, and (3) that once Mr. Mikovic was deported in 2003,
the couple unsuccessfully tried to live in Slovakia and then
unsuccessfully tried to live in Wales. These were "trial periods" and
"conditional" efforts to make their marriage work; "attempts to salvage
the marriage, rather than commitment to staying [in Wales]" determined
the length of stay in Wales. In short, while acknowledging that this was
a hard, close case, it concluded that this family was in "limbo during
its stay" in Wales. MPM's habitual residence remained the United States.
The Court concluded that the Hague Convention did not require Mrs.
Mikovic to return MPM to Wales |
