| In Nelson v Petterle, 2011 WL
1048107 (E.D.Cal.) Petitioner sought the return of her 11 year old son
to Iceland. Respondent was the child's father, who lived in California.
Petitioner and Respondent were married in January of 1999, at Lake
Tahoe, California. The child was born in 1999 in the United States. The
parties and child lived together in Sparks, Nevada until 2001, when they
moved to Oceanside, California. Petitioner and Respondent separated in
January of 2002. Upon separation, Petitioner and the child moved to
Gothenburg, Nebraska; Respondent remained in California. While living in
Nebraska, Petitioner commenced a proceeding for Legal Separation.
Petitioner modified the Legal Separation into a proceeding for divorce.
A Decree of Dissolution of Marriage ("Decree") was granted on January
27, 2004, by the District Court of Lincoln County, Nebraska. The Decree
awarded Petitioner "care, custody and control" of the child, "with
reasonable visitation reserved in the Respondent." The child custody
portion of the Decree stated: That the care, custody and control of the
minor child of the parties ... shall be awarded to the Petitioner, with
reasonable visitation reserved in the Respondent. The parties agree that
each shall keep the other' [sic] informed of the physical status of the
minor child and all other matters which are pertinent to the
continuation of a strong relationship between parent and child, and
neither party shall alienate the affection of the child for the other
party. Since the child had been of school age, Respondent had visitation
of the child every summer. Respondent testified the child would spend at
least two months with him each summer, from approximately the end of a
school year until shortly before the start of the next school year. In
2007, Petitioner and the child moved to Moscow, Idaho so Petitioner
could attend the University of Idaho. Respondent did not object to the
move. In 2008, Petitioner received two scholarships to attend the
University of Iceland. Petitioner had family in Iceland, including her
grandmother, four older brothers and numerous aunts, uncles and cousins.
Petitioner resided briefly in Iceland as a child.
Petitioner first discussed moving to Iceland
with Respondent in 2008 when she request that he sign a passport
sign a passport application for the child. Petitioner told Respondent
she won two scholarships and was moving there to attend school.
Respondent testified that Petitioner presented the move to Iceland "as a
package deal" with a "closed end." Respondent believed Petitioner and
the child's move to Iceland was temporary.
Respondent signed the child's passport
application. Petitioner moved to Iceland in July of 2009. Petitioner's
primary purpose in moving to Iceland was to complete her university
training so she could improve her situation for herself and her family.
Petitioner had discussed the idea of moving to Iceland with her children
(the child and her 17 year-old son from another relationship). At the
time of Petitioner's move to Iceland, she abandoned Idaho as her home.
Petitioner did not maintain a residence in Idaho and had no intention of
returning to Idaho, Nebraska, or California. When Petitioner moved to
Iceland, she sold her furniture and vehicle, and packed only things that
were "irreplaceable." The child helped her decide what items to keep and
move. When Petitioner moved to Iceland, she had not made a final
decision to remain in Iceland after completing college. However, the
possibility of remaining in Iceland permanently was an option from the
beginning. Petitioner made her decision to remain in Iceland gradually,
as she settled into her new home with the child. After a time, it became
Petitioner's settled purpose to live in Iceland full-time with the
child. Petitioner discussed remaining in Iceland with the child and they
came to the decision to remain in Iceland as a family. Petitioner
informed Respondent of her intention to remain in Iceland permanently
sometime after the New Year in 2010, when she told Respondent she was
working on obtaining her Icelandic citizenship. Respondent testified
Petitioner first told him that she wanted to stay in Iceland permanently
in April of 2010. Respondent further testified that he told Petitioner
he "was not interested" in the child obtaining Icelandic citizenship.
Respondent's testimony indicated he would not have signed the child's
passport application had he thought Petitioner would stay in Iceland
permanently.
At the time of Petitioner's move to Iceland,
the child was on summer vacation with Respondent in Sacramento,
California. The child flew to Iceland to be reunited with Petitioner in
the second week of August, 2009. The child resided continuously with
Petitioner in Iceland from the middle of August, 2009, until July 2,
2010. Petitioner and the child lived in family campus housing in
Iceland. There were multiple children around the child's age living in
campus housing, and the child made a number of friends. The children in
campus housing attend the same school as the child. The child
participated in an Iceland soccer league and joined a basketball team;
both held practice multiple times a week. The child also spent time with
his extended family, including children around his age. Some of
Petitioner's extended family lived in the same town as Petitioner, and
others live less than thirty minutes away. The child attended his
community school in Iceland for the entire 2009-2010 academic year.
Petitioner obtained Icelandic citizenship for herself. She is a dual
citizen of Iceland and the United States. Petitioner testified the child
obtained Icelandic citizenship automatically when she became an
Icelandic citizen and that he can make his own decision about retaining
his Icelandic citizenship as an adult. Therefore, the child was also a
dual citizen of Iceland and the United States.
Petitioner and Respondent agreed that the child
would spend the 2010 summer vacation in Sacramento with Respondent. By
their agreement, the child flew to the United States on July 2, 2010,
and was scheduled to return to Petitioner in Iceland on August 15, 2010.
The child was enrolled in school in Iceland for the 2010-2011 school
year. A reservation for the child's return flight to Iceland on August
15, 2010 was booked, but Respondent did not return the child to
Petitioner's custody in Iceland per their agreement. Since August 15,
2010, Respondent refused to return the child to Petitioner's custody.
Respondent testified that he had decided he would keep the child in
California before the child arrived in the United States on July 2,
2010.
On August 9, 2010, Respondent, through counsel,
filed an ex parte Petition for Custody and Protective Order in the
Superior Court of Sacramento, Family Court . On August 9, 2010, the
Sacramento County Court issued an ex parte temporary order which
prevented removal of the child from California. Petitioner was unaware
of the ex parte proceedings in the Sacramento County Court. On August
12, 2010, Petitioner called Respondent to finalize plans for the child's
agreed upon return to Iceland. The child answered the phone, and while
Petitioner was talking to her son, an email arrived at Petitioner's
computer from Respondent. The August 12, 2010 email stated: Hi--I'll cut
to the chase: [Child] has made it clear, quite on his own, that he
doesn't want to return to Iceland. He is adamant. For this, and for my
own reasons, I have had the matter examined. At this time, the State of
California has decided that no one is permitted to remove him from the
state. Further information can be obtained from, and all questions
regarding this case be directed to: Sean Gejerde .... Petitioner
retained counsel in the United States to represent her in the state
court custody proceedings. On November 16, 2010, Petitioner's attorney
filed in state court: (1) a Motion to Quash Petition for Custody Based
on Lack of Subject Matter Jurisdiction, and (2) Petition for Return of
child under the Convention. On January 12, 2011, the Sacramento County
Court granted Petitioner's Motion to Quash Respondent's Petition for
Custody because California lacked subject matter jurisdiction regarding
the child's custody. The Sacramento County Court vacated all prior
orders and dismissed Respondent's case. Petitioner's Petition under the
Convention was set for hearing in state court for February 9, 2011.
Before the matter could be heard in state court, Respondent removed the
Petition to federal court.
The Court observed that Petitioner at no time
agreed or consented to the child remaining with Respondent after August
15, 2010. After the parties separated in 2002 until August 15, 2010, the
child always lived with Petitioner and spent summer vacations with
Respondent. From the time of the child's birth forward, Petitioner
continuously exercised her custodial rights as a parent. From and after
the divorce in 2004, Petitioner continuously exercised her rights of
"control, custody and care," under the Decree. The Court observed that
the Ninth Circuit has identified four questions that "a court applying
[the Convention] must ... answer": (1) When did the removal or retention
at issue take place? (2) Immediately prior to the removal or retention,
in which state was the child habitually resident? (3) Did the removal or
retention breach the rights of custody attributed to the petitioner
under the law of the habitual residence? [and] (4) Was the petitioner
exercising those rights at the time of the removal or retention? (citing
Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.2001). It noted that the
parties agreed the child's retention occurred when Respondent kept him
in the United States at the conclusion of his agreed-upon summer
vacation on August 15, 2010. Therefore, the issue was where was the
child habitually residing as of August 15, 2010? The Court pointed out
that the Ninth Circuit has "developed an analytical framework to provide
'intelligibility and consistency' in the determination of a child's
habitual residence." Under this framework, the first question is
"whether there is a settled intention to abandon a prior habitual
residence." (citing Mozes, 239 F.3d at 1075). "One need not have [the]
settled intention [to abandon a prior habitual
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