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In Nicolson v
Pappalardo, 674 F.Supp.2d 295, (D. Maine, 2010) Petitioner Lucas
Nicolson and Respondent Erica Pappalardo met in Germany in October 2007.
In December 2007, Pappalardo moved to Australia to live with Nicolson
and the two were married on August 10, 2008. After the marriage, the
parties moved to Townsville, Australia where Nicolson was employed.
After S.G.N. was born to Nicolson and Pappalardo they lived continuously
in Townsville since S.G.N.'s birth. In early April 2009, Pappalardo took
S.G.N. to visit Pappalardo's family in the United States. They were due
to return to Australia on May 22, 2009. On May 5, 2009, Pappalardo
notified Nicolson that she no longer intended to return to Australia
with S.G.N. On May 14, 2009, Pappalardo filed a Complaint for Protection
from Abuse against Nicolson in Maine District Court in Portland, Maine.
A Final Order for Protection was entered on September 4, 2009 awarding
Pappalardo temporary custody of S.G.N. and giving Nicolson the right to
contact S.G.N. via the internet and telephone. On May 27, 2009, Nicolson
filed an Application for Return with the Central Authority of Australia.
On October 22, 2009, Nicolson filed his Verified Petition for Return of
Child with this Court. Pappalardo then filed a Motion to Dismiss arguing
that the Court lacked jurisdiction because the Petition failed to allege
facts sufficient to show that S.G.N.'s habitual residence was Australia
rather than the United States. The district court denied the motion. It
noted that "Federal courts are agreed that 'habitual residence' must
encompass some form of 'settled purpose.' This settled purpose need not
be to stay in a new location forever, but the family must have a
'sufficient degree of continuity to be properly described as settled.' "
(citing Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir.2003)
(quoting Feder v. Evans- Feder, 63 F.3d 217, 223 (3d Cir.1995). A parent
cannot create a new 'habitual residence' by the wrongful removal and
sequestering of a child." (Citing Diorinou v. Mezitis, 132 F.Supp.2d
139, 143 (S.D.N.Y.2000) The relevant timeframe for evaluating the
child's habitual residence is immediately prior to the allegedly
unlawful retention. The Petition alleged that Pappalardo notified
Nicolson that she did not intend to return to Australia on May 5, 2009.
Thus, the retention at issue occurred on May 5, 2009. The Petition
alleged that S.G.N. lived in Australia from the time of her birth until
early April 2009, when she left with Pappalardo to travel to the United
States for a temporary visit with Pappalardo's family. Prior to April
2009, she was "fully involved with all aspects of daily family life and
cultural life in Australia." After
unsuccessfully attempting to persuade Pappalardo
to voluntarily return with S.G.N., Nicolson initiated proceedings to
obtain S.G.N.'s return on May 27, 2009. Nothing in the Petition
suggested that Nicolson agreed to allow S.G.N. to permanently relocate
to the United States. Taking the facts alleged in the Petition as true
there was no "settled purpose" between Nicolson and Pappalardo to shift
S.G.N.'s habitual residence from Australia to the United States. The
Petition alleged adequate facts to establish Australia as S.G.N.'s
habitual residence immediately prior to the retention.
Pappalardo argued that Nicolson's
Petition should be dismissed because he did not have custody rights with
respect to S.G.N. Pappalardo claimed that Nicolson relinquished his
custody rights when he voluntarily agreed to the Final Order of
Protection imposed by the Maine District Court, which allows him contact
with S.G.N. only via the internet and telephone. The court pointed out
that as with habitual residence, a petitioner's custody rights are to be
measured at the time immediately prior to the removal or retention. The
retention occurred on May 5, 2009. The Final Order of Protection was
entered on September 4, 2009. Thus, for purposes of the Motion, the
Final Order of Protection had no bearing on Nicolson's custody rights.
Under Australian law, in the absence of any orders of court, each parent
of a child has custody rights to that child. (Family Law Act, 1975,
111B(4)(a) (Austl.)). Thus, each parent is a joint guardian and joint
custodian of the child, and guardianship and custody rights involve
essentially the right to have and make decisions concerning daily care
and control of the child." ( Family Law Act at 63(E)(1)-(2), (F)(1)).
The Petition alleged that Nicolson was exercising his parental rights
until Pappalardo and S.G.N. left Australia. Accordingly, the Petition
alleged adequate facts to establish that Nicolson had custody rights to
S.G.N. at the time of the retention and that he was exercising those
rights.
Pappalardo also argued in favor of
dismissal on the grounds that Nicolson consented to or acquiesced in the
removal and retention of S.G.N. There was nothing in the Petition
alleging that Nicolson consented to or acquiesced in S.G.N.'s retention
in the United States beyond this date. Thus, dismissal of the Petition
on the basis of consent or acquiescence was not appropriate.
Pappalardo argued that the Court lacked jurisdiction because Nicolson
voluntarily participated in custody proceedings in the Maine District
Court. Pappalardo contended that Maine was now S.G.N.'s "home state"
under the Uniform Child Custody Jurisdiction and Enforcement Act and
that the Final Order of Protection entered by the Maine District Court
is determinative of Nicolson's Hague Convention Petition. Pappalardo
argued that Nicolson could not use his Hague Convention Petition to
"circumvent" the Maine court's order on custody and the jurisdiction of
the Maine courts. The Court held that Pappalardo's argument evinced a
misunderstanding of the nature of a Hague Convention Petition. Custody
litigation in state court revolves around findings regarding the best
interest of the child, based on state domestic relations law. An
adjudication of a Hague Convention Petition focuses on findings
regarding the child's habitual residence and whether one parent
wrongfully removed or retained the child. These are distinct
determinations and the language of the Hague Convention and ICARA
explicitly provides that these determinations do not need to be made by
the same court. See 42 U.S.C.11601(b)(4) ("The Convention and this
chapter empower courts in the United States to determine only rights
under the Convention and not the merits of any underlying child custody
claims."). An aggrieved parent may pursue his rights under both the
Hague Convention and state custody laws simultaneously. The Hague
Convention seeks to prevent an abducting parent from gaining any
advantage in litigation by providing the left-behind parent with an
expeditious avenue for seeking return of the abducted child in addition
to those remedies available under the local laws of the country to which
the child has been taken." The court pointed out that the Ninth Circuit
has held: "It would undermine the very scheme created by the Hague
Convention and ICARA to hold that a Hague Convention claim is barred by
a state court custody determination." Holder, 305 F.3d at 865 ;See also
Sillverman v. Silverman, 338 F.3d 886, 895 (8th Cir.2003)
("[Respondent's] argument that a state court custody decision can
somehow trump clearly granted federal court jurisdiction to decide and
review issues of congressionally adopted policy and procedure is simply
untenable."). Therefore, the Maine District Court's custody orders had
no bearing on Nicolson's Hague Convention Petition.
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