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In Nicolson v Pappalardo, --- F.3d ----, 2010
WL 1730393 (1st Cir.(Me.)) Erica Pappalardo, an American citizen, and
Lucas Nicolson, an Australian serving as a soldier in his country's
armed forces, began a relationship in Australia when Pappalardo was
traveling there. Pappalardo moved in with Nicolson and became pregnant.
After she returned to the United States, Nicolson proposed marriage over
the telephone, and she accepted and returned to Australia where the
couple was married in August 2008.
They moved to Townsville, where Nicolson was
posted for service in the Australian Defense Force. In November 2008,
when Pappalardo was eight months pregnant, Nicolson told her he did not
love her and was unsure whether marrying her had been a mistake.
Pappalardo, upset, told Nicolson she wanted to move back to the United
States as soon as she and the child were medically cleared to travel.
But the couple continued to live together in Australia; Pappalardo said
they did so, despite continuing marital problems, because she was
financially dependent on Nicolson and could not travel with a baby until
the baby was three months old. Their daughter, S.G.N., was born in
December 2008. Until March 2009, all three resided together in
Townsville. That month, Nicolson and Pappalardo arranged for a U.S.
passport for S.G.N.--Nicolson said merely so S.G.N. could visit
Pappalardo's family in the United States, but Pappalardo said Nicolson
knew of and reluctantly acceded to her plans to move herself and S.G.N.
permanently to the United States. In exchange for Nicolson's signing for
the child's passport, Pappalardo agreed to give the marriage another
chance. Nicolson said this trial was for three months, but Pappalardo
denied making any duration promises. She also claimed that Nicolson did
nothing in the following months to repair the marriage. The couple made
preparations for Pappalardo and S.G.N.'s travel, packing or shipping a
large quantity of belongings including S.G.N.'s medical records and
transferring title to the couple's car from Pappalardo to Nicolson. On
March 29, 2009, Nicolson drove Pappalardo and S.G.N. to the airport to
fly to Sydney where Pappalardo's mother would assist in their travel to
the United States. The next day, in Sydney, Pappalardo mentioned to
Nicolson's mother and sister that she did not plan to return. Nicolson's
mother informed Nicolson, who immediately flew to Sydney and angrily
confronted Pappalardo at her hotel about her intentions; Pappalardo said
she was unsure. He met with an attorney that day but told Pappalardo the
next day that he would not pursue legal action because he wanted her to
return with S.G.N. on her own accord. She said she was open to working
on their relationship. On April 2, 2009, she and S.G.N. flew to the
United States. On May 4, after meeting with a counselor, Pappalardo had
an "epiphany" that their marriage would never work and notified Nicolson
that she and S .G.N. would not return to Australia. On May 14, 2009,
Pappalardo filed a complaint in Maine state court seeking an ex parte
temporary order for protection from abuse ("PFA") against Nicolson,
which was granted immediately and served on Nicolson on June 12. In the
meantime, Nicolson filed an Application for Return with the Central
Authority of Australia, pursuant to the Hague Convention. On September
4, 2009, Nicolson's Maine attorney attended the hearing on the final PFA
order, but Nicolson did not attend and was denied permission to testify
telephonically. The court was not told that Nicolson was pursuing Hague
Convention relief because (Nicolson says) he was so advised by
Australian authorities in case it might prompt Pappalardo to flee with
S.G.N. Instead, his attorney and Pappalardo's lawyer agreed to entry of
a PFA order dated September 4, 2009, which was central to the appeal.
On October 22, 2009, Nicolson filed in federal
district court in Maine a petition seeking return of the child to
Australia. The district court concluded that S.G.N.'s habitual residence
was Australia, that Nicolson had possessed and retained joint custody
rights, and that he had not consented or acquiesced to Pappalardo's
permanent retention of S.G.N. in the United States through the state
court proceedings or otherwise. The court ordered S.G.N.'s return to
Australia.
The First Circuit pointed out that the Hague
Convention did not define "habitual residence," but the majority of
federal circuits to consider it have adopted an approach that begins
with the parents' shared intent or settled purpose regarding their
child's residence. In an unpublished opinion, this circuit had
employed that approach. (Citing Zuker v. Andrews, No. 98-1622, 1999
U.S.App. LEXIS 6964, at *2-3 (1st Cir. Apr. 9, 1999).
On appeal Pappalardo argued only that S.G.N.
never formed an initial habitual residence in Australia. Pappalardo's
thesis was that she never shared Nicolson's intent for S.G.N. to reside
habitually in Australia because the couple's marital relationship broke
down and Pappalardo formed the intent to leave with S.G.N. before the
child was born. The district court, however, found that while their
marriage was "fraught with difficulties from the beginning" and "[t]here
were numerous conversations about the viability of the marriage, both
before and after S.G.N. was born," "[t]hey lived together as a married
couple ... from the time of their marriage until March 29, 2009" and
"shared responsibilities for S.G.N." until that time, when she was over
three months old.
The Court stated that knowing nothing of private reservations, an
objective observer would view S.G.N. as an Australian resident: her
father was a citizen of the country and obliged to stay there during his
term of service; her mother, being pregnant, had returned to Australia
to marry him; they had married there and were living together there at
the time of S.G.N.'s birth; and S.G.N. was born there and lived there
for several months with both her parents. Judged by Nicolson's actions
incident to Pappalardo's departure, Pappalardo's intent to move
permanently to the United States seemingly became manifest and
definitive only at that time. As against this, Pappalardo's
position rested centrally on her earlier pre-birth declaration to Nicolson that she would move back to the United States and her testimony
that her subjective intent at the time of the birth was not to remain in
Australia. She relied on the proposition that "[w]here the
parents' relationship has broken down ....contemporaneous[ly] with the
birth of the child, no habitual residence may ever come into
existence." Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir.2003). The
Court rejected her argument because the circumstances in that case were
strikingly different. In Delvoye, the mother had traveled to a foreign
country merely to save expenses by giving birth there instead of in her
home country and with the intention from the outset of staying only a
short time.
In view of the foregoing the district court
did not err in finding that Australia was SGN's habitual residence.
The Court pointed out that a child retained
abroad over objection must be returned to his or her state of habitual
residence unless the respondent can establish one of the provided-for
defenses or exceptions. The district court was not bound to order the return of S.G.N. if
Pappalardo established by a preponderance of the evidence that Nicolson
"had consented to or subsequently acquiesced in [Pappalardo's] removal
or retention" of S.G.N. Hague Convention art. 13(a); 42 U.S.C. 11,603(e)(2)(B).
The First Circuit pointed out that Pappalardo claimed that a variety of conduct
and circumstances established that Nicolson both knew and consented to
S.G.N.'s permanent departure from Australia. Pappalardo pointed to
several facts already mentioned--Nicolson's participation in extensive
preparations for her and S.G.N.'s trip and the transfer of the car's
title--and to others: Nicolson's invitation to a male friend to move
into the house after his family's departure, Nicolson's mother's e-mails
expressing sadness at losing the child, Nicolson's Internet posts
on Facebook.com that described S.G.N.'s departure as "my loss of my
family" and "his baby girl ha[ving] been ripped from him" and his change
of status on that website from "married" to "single" (which he quickly
changed back), and various other statements. It noted that Nicolson
could also point
to circumstances in his favor consistent with his testimony that he
believed Pappalardo and S.G.N. would return to Australia and did not
consent to more than a temporary stay for S.G.N. in the United States.
These included his immediate arrangement for leave to fly to Sydney to
confront Pappalardo and seek legal advice after his mother informed him
of Pappalardo's intentions, Pappalardo's statements that she was open to
continuing to work on their marriage, his efforts to persuade her to
return thereafter and her reservation of a ticket to return. Nowhere was
it claimed that Nicolson expressly agreed that the child could move
permanently to the United States. His behavior was at least as consistent
with that of a man who wanted to continue the marriage and,
therefore, to avoid forcing a final choice on his wife. The district
court did not err in finding that Pappalardo has
not carried her burden to show "consent" to a permanent relocation of the
child.
The First Circuit noted that the outcome of the
case, turned on "acquiescence" and the question whether Nicolson
acquiesced to Pappalardo's retention of S.G.N. in the United States by
agreeing, through his attorney, to the Maine state court's entry of the
PFA order. The district court concluded that the PFA order could not bar
Nicolson's petition because the Hague Convention takes precedence over
state custody determinations. Under the Convention "[t]he sole fact that a
decision relating to custody has been given in or is entitled to
recognition in the requested State shall not be a ground for refusing to
return a child under this Convention ." Art. 17. The Convention confers
the privilege of deciding custody on the state of habitual residence.
Arts. 1(b), 16, 19.
The First Circuit stated that the consent order in this
case provided only for temporary custody but, if it were read as
agreeing to let the Maine courts determine final custody (as Pappalardo
claimed), it would think that this was an acquiescence or,
alternatively, a waiver of Hague Convention rights. The district court
cited federal cases, and others exist, that treat acquiescence as a pure
subjective intent inquiry, and Nicolson had no subjective intent in the
state court proceeding to have S.G.N. remain in the United States or to
confer final authority to decide her custody on an American court. After
all, he was privately seeking Hague Convention relief through the
Australian Central Authority at the very time he participated in the
state court proceeding, and he began his federal district court case
shortly afterwards. By contrast, a clear and formal consent order by the
non-U.S. parent agreeing to let a state court decide final custody
would, both linguistically and for policy reasons, warrant treatment as
acquiescence under the Hague Convention.
The Court held that it remained Pappalardo's
burden to show that an unambiguous consent order did exist in this case.
The consent order was not the unequivocal "acquiescence" or waiver that
it might first appear; at best, the order was, on the point in question,
a cryptic collection of printed and handwritten phrases that yielded no
single answer as to who was to decide on permanent custody. A protection
from abuse order is primarily concerned with dealing with an immediate
threat of abuse and, where there are minor children, making arrangement
for temporary custody. This order addressed both of those issues and,
after providing for temporary custody, incorporated this handwritten
language: "TO BE AMENDED BY COURT OF COMPETENT JURISDICTION. PA OBO [S.G.N.]
TO BE DISMISSED UPON ISSUANCE OF FINAL FM ORDER." The abbreviations could
be deciphered--although not with perfect assurance --but how to read the
sentences in relation to a final custody determination was even less
clear. Above all, the provision in which the language appeared was
directed to temporary custody for what, as the order elsewhere made
clear, was a limited period.
In sum, there was no "clear and unequivocal" expression of an agreement by Nicolson
to have final custody determined in a Maine court, nor "a
convincing written renunciation of rights" to this effect. What Pappalardo obtained by consent was full temporary
custody of the child at present with limited rights of contact by
Nicolson. Nicolson might have forestalled even a temporary custody order
by his Hague Convention proceeding because the Convention itself
provides, After receiving notice of a wrongful ... retention of a child
... the judicial or administrative authorities of the Contracting State
... in which [the child] has been retained shall not decide on the
merits of rights of custody until it has been determined that the child
is not to be returned under this Convention or unless an application
under this Convention is not lodged within a reasonable time following
receipt of the notice. Art. 16 (emphasis added). But he chose for
tactical reasons not to notify the state court of his Hague Convention
petition before the state court order issued. This did not defeat his
right under the Hague Convention to have permanent custody determined in
Australia.
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