[HOME]

      nysdivorce.com    brandeslaw.com

^{The definitive site on the web for New York Divorce and Family Law.}

Yang v Tsui, 499 F.3d 259 (3d Cir., 2007

The next factor for the District Court to consider was Yang's custody rights at the time of retention. The District Court held that under British Columbia law Yang had custody of Raeann on November 20, 2002, because Raeann usually resided with Yang. The District Court also found that Yang was exercising her custody rights at the time of retention. Therefore, the District Court held that Yang had satisfied her burden under the Hague Convention of proving that the child was wrongfully retained.

The District Court had to determine whether Tsui met his burden of proving the applicability of the"wishes of the child" exception. It believed that any objection that Raeann had to returning to Canada was based on Tsui's wrongful retention. The District Court refused to apply the exception because its application in such a situation would frustrate the purpose of the Convention. The District Court also explained that even if this was an appropriate case for the exception, Tsui had not met his burden of proving that Raeann was of sufficient age and maturity for her views to be taken into account. Further, the Court found that Raeann's views has been formed by outside influence. Additionally, her reasons for staying, which included comfortable living conditions and friends, were not sufficient to satisfy the requirements for the exception. Therefore, the District Court concluded that even if the exception could apply to this case, the requirements for its application were not met. As Tsui did not prove that an exception applied, the District Court granted Yang's Petition and ordered that Tsui return Raeann to Yang.
          The Third Circuit found that the District Court was correct in its determination that Canada was Raeann's habitual residence immediately before the retention in this case. It pointed out that it has said on several occasions, such a determination is fact-intensive and " 'necessarily varies with the circumstances of each case.' it noted that it has defined habitual residence as the place where the child has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective." The inquiry focuses on the child, but also must consider the "parents' present, shared intentions regarding their child's presence in a particular location. On the date of retention Raeann was five years old. The District Court found, under the facts of this case, that a five-year-old was too young to have an intent regarding her habitual residence. Although contrary to its finding in Whiting v Krassner, (391 F.3d 540) where it held that a four-year-old child is able to acclimate, it did not change the propriety of the District Court's finding as other facts made this determination a correct one. The record indicated that Raeann had only been in Pittsburgh for a few weeks when the wrongful retention occurred. There was no evidence in the record to suggest that any special circumstances existed which would enable her to acclimatize quickly. Based on this evidence, it could not be said that Raeann became "firmly rooted in her new surroundings" prior to the date of retention. As there was no evidence of acclimatization, that Raeann abandoned Canada as her habitual residence, or that there was a degree of settled purpose from Raeann's point of view, from Raeann's perspective Pittsburgh did not become her habitual residence prior to the date of retention. The record would not support a finding that Raeann had been physically present in the United States for an amount of time sufficient for acclimatization and which had a degree of settled purpose from her perspective. As the record did not reflect Raeann's perspective on her habitual residence, the court focused on the "parents' present, shared intentions." There can be a change in the habitual residence of a child when the parents have a settled purpose in moving the child even for a limited period of time. In order for a purpose to be settled there must be "a sufficient degree of continuity." Additionally, a child's prior habitual residence must be effectively abandoned by the shared intent of the parents for her to acquire a new habitual residence. The District Court's finding comported with the case law. Even though the period was indefinite, it could not be said that the purpose of Raeann's traveling to the United States possessed "a sufficient degree of continuity to be properly described as settled." The shared intent was that Raeann would remain in the United States only as long as it took Yang to recover, which was anticipated to be two to three months. Additionally, there was no evidence that Yang and Tsui intended for Raeann to abandon Canada as her habitual residence. Even though the exact length of the stay was left open to negotiation, the court was able to find no settled mutual intent from which such abandonment could be inferred. The evidence did not demonstrate a shared mutual intent to change Raeann's habitual residence. Canada was Raeann's habitual residence before she went to stay with Tsui in the United States and immediately before she was retained by Tsui on November 20, 2002.
          As Raeann was an habitual resident of British Columbia, its law governed the determination of custody rights as defined by the Convention. It’s Family Relations Act stated, in pertinent part: 34. Persons who may exercise custody. 34(1). Subject to subsection (2), the persons who may exercise custody over a child are as follows: (a) if the father and mother live together, the father and mother jointly; (b) if the father and mother live separate and apart, the parent with whom the child usually resides; (c) if custody rights exist under a court order, the person who has those rights; (d) if custody rights exist under a written agreement, the person to whom those rights are given. 34(2). If persons have conflicting claims to custody under subsection (1), the following persons may exercise custody to the exclusion of the other persons unless a court otherwise orders: (a) the person who has custody rights under a court order; (b) if paragraph (a) does not apply, the person granted custody by an agreement; (c) if paragraphs (a) and (b) do not apply, the person claiming custody with whom the child usually resides.... R.S.B.C.1996, c. 128, s. 34. The Court affirmed the finding of the District Court that Yang was the parent with whom Raeann usually resided. Therefore, under section 34(2)(c), Yang had exclusive custody rights within the meaning of the Convention. It also found that she was exercising those rights at the time of retention. Under this prong, Yang's burden was easy because the test for finding the non-exercise of custody rights under the Hague Convention is stringent. Very little is required of the applicant in support of the allegation that custody rights have actually been or would have been exercised. The petitioner can show the exercise of custody rights by demonstrating that he or she kept or sought to keep, some sort of regular contact with the child. Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights.
          On appeal, Tsui maintained that he proved the "wishes of the child" defense by a preponderance of the evidence. The Third Circuit believed that the District Court did not err by refusing to apply this defense and affirmed despite her desire to remain in the United States. Article 13 includes what has been called the "wishes of the child" defense or exception. It provides: The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. As with any of the affirmative defenses under the Convention, this defense is to be construed narrowly. Even if the respondent meets his or her burden of proving the affirmative defense, the court retains the discretion "to order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child." The Third Circuit agreed with the analysis used by other courts that have addressed its application. The child's wishes can be the sole reason that a court refuses to order the return of the child to his or her habitual residence. See Blondin v. Dubois, 189 F.3d 240, 247 (2d Cir.1999). However, a court must apply a stricter standard in considering a child's wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis, such as whether the child would suffer a grave risk of harm if returned to his or her habitual residence. An analysis of whether to apply the "wishes of the child" exception requires consideration of the goals of the Convention and a determination of whether the child is of sufficient age and maturity for his or her views to be taken into account. The Convention does not set an age at which a child is automatically considered to be sufficiently mature, rather the determination is to be made on a case-by-case basis. In making its determination, a court should also consider whether a child's desire to remain or return to a place is "the product of undue influence," in which case the "child's wishes" should not be considered. The District Court heard Raeann's testimony in camera. Despite her intelligence and demeanor, the District Court found that Raeann was not of sufficient age or maturity for her views to be appropriately considered and declined to apply the exception to prevent Raeann from being returned to Canada based solely on her desire to remain in Pittsburgh. In addition, the District Court determined that this was not an appropriate case in which to apply the exception. The attachment that Raeann had to Pittsburgh and her family there were created because of Tsui's wrongful retention of Raeann. The three weeks in which Raeann resided with Tsui, but was not wrongfully retained by him, was not the time period during which Raeann grew attached to her family and life in Pittsburgh. Rather, it was the passage of time during the years of wrongful retention and litigation of this case that created Raeann's desire to remain in Pittsburgh. If the District Court applied the exception in this case, it would encourage parents to wrongfully retain a child for as long as possible. A lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home. The application of the exception in this case would reward Tsui for violating Yang's custody rights, and defeat the purposes of the Convention. Even if the record supported a finding that Tsui met his burden of proving the applicability of the exception to this case, it could not be said that the District Court abused its discretion by refusing to apply the exception. The District Court construed the exception narrowly in order to effectuate the purposes of the Convention.