Gaudin v. Remis, No. 01-15096 (9th Cir. 03/11/2002)03 International Abduction [USA 2002]
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 01-15096
March 11, 2002
CATHERINE JANE VON KENNEL GAUDIN, PETITIONER-APPELLANT,
v.
JOHN R. REMIS, JR., RESPONDENT-APPELLEE.
Appeal from the United States District Court for the
District of Hawaii Samuel P. King, District Judge, Presiding
D.C. No. CV-00-00765-SPK
Counsel Paul A. Lynch, Honolulu, Hawaii, for the
petitioner-appellant. Chunmay Chang, Honolulu, Hawaii, for
the respondent-appellee.
Before: David R. Thompson, Diarmuid F. O’Scannlain, and
Marsha S. Berzon, Circuit Judges.
The opinion of the court was delivered by: O’scannlain,
Circuit Judge
FOR PUBLICATION
Argued and Submitted November 2, 2001–Honolulu, Hawaii
OPINION
001 We must decide whether the parent of an abducted
child may maintain suit under the International Child
Abduction Remedies Act and the Hague Convention on the Civil
Aspects of International and Child Abduction when she
relocates permanently to the United States after filing suit
while residing abroad.
I.
002 Catherine Gaudin and John Remis lived in Hawaii as a
couple from 1988 until 1992. During their relationship, they
had two children, John and Andreas. Gaudin and Remis ended
their relationship in 1992, with Gaudin and the children
relocating to Quebec, Canada. As part of the relocation,
Gaudin and Remis entered into a stipulated custody judgment
in Hawaii Family Court. They agreed that Gaudin would
receive sole custody of the children, subject to visitation
rights by Remis.
003 During the past few years, Remis has become
increasingly concerned about Gaudin’s treatment of the
children. He claims that Gaudin has become a “religious
fanatic” who has psychologically harmed the children by
imposing bizarre restrictions on their lives. For example,
he alleges that Gaudin prohibits them from playing with
other children, refuses to allow them to watch television,
and dresses them in odd and inappropriate clothing.
004 In June 2000, Remis picked up the children from
Gaudin for an extended visit in Hawaii. He later refused to
return the children, instead filing an action in Hawaii
Family Court, seeking sole custody in light of Gaudin’s
recent behavior. Gaudin appeared in the action, but argued
that the court lacked jurisdiction. In July 2000, the
Hawaiian court awarded custody of the children to Remis.
005 Gaudin meanwhile filed a petition in federal court
under the International Child Abduction Remedies Act
(“ICARA”), 42 U.S.C. 11603(b), and the Hague Convention on
the Civil Aspects of International and Child Abduction
(the”Hague Convention” or the “Convention”), October 25,
1980, T.I.A.S. No. 11670, 19 I.L.M. 1501, seeking return of
the children to Canada. The court denied the petition,
concluding that the children would face a grave risk of
psychological harm if returned to Canada with Gaudin.
006 After the parties briefed this appeal, Remis moved to
dismiss for mootness. Remis alleges that Gaudin has recently
moved permanently to Hawaii. He claims that Gaudin has sold
her home in Canada and purchased a new one in Hawaii.
Further, he claims that Gaudin has secured a Hawaiian real
estate broker’s license. Finally, Gaudin allegedly married
her attorney for this appeal, who is licensed to practice in
Hawaii. Because both parents and the children are now
permanently located in Hawaii, Remis claims that neither
ICARA nor the Hague Convention can afford her any relief.
II.
007 The Hague Convention, which Congress implemented
through ICARA, was designed to address the problem of
parental international child abduction. FN01 art. 1., 19
I.L.M. at 1501; Mozes v. Mozes, 239 F.3d 1067, 1069-70 (9th
Cir. 2001); Shalit v. Coppe, 182 F.3d 1124, 1127 (9th Cir.
1999). The Signatories perceived that parents were
wrongfully taking their children across international lines
“in search of a more sympathetic court” for custody
proceedings. Friedrich v. Friedrich, 983 F.2d 1396, 1400
(6th Cir. 1993); see also Mozes, 239 F.3d at 1070. The
Convention sought to eliminate this motivation by allowing
for the prompt return of abducted children. art. 2, 19
I.L.M. at 1501; Mozes, 239 F.3d at 1070.
008 A Convention petitioner must show that the removal of
her child was “wrongful.” art. 3, 19 I.L.M. at 1501. Article
3 defines “wrongful” as
a) . . . in breach of rights of custody
attributed to a person, an institution or any
other body, either jointly or alone, under
the law of the State in which the child was
habitually resident immediately before the
removal or retention; and
b) at the time of removal or retention those
rights were actually exercised, either
jointly or alone, or would have been so
exercised but for the removal or retention
Id.; see also 42 U.S.C. 111603(e)(1),
(f)(2).
009 Thus, a petitioner must show that at the time of
removal (1) she exercised custody over the child, (2) under
the laws in which the child was habitually resident, and (3)
that the abductor breached those custody rights by removing
the child. Art. 3, 19 I.L.M. at 1501; see also Mozes, 250
F.3d at 1070.
010 Generally, a court must return a wrongfully abducted
child. art. 12, 19 I.L.M. at 1502; Shalit, 182 F.3d at 1128.
The Convention does not extend to custody determinations.
E.g., Shalit, 182 F.3d at 1128. Rather, the Convention
simply restores the pre-abduction status quo by allowing for
the return of a wrongfully abducted child. E.g., id. An
exception exists if the abductor can establish one of the
Convention’s narrow affirmative defenses. arts. 13, 20, 19
I.L.M. at 1502-03; 11603(e)(2). Of particular importance,
the abductor may show that the child would suffer a “grave
risk ” of “physical or psychological harm” if he were
returned. art. 13(b), 19 I.L.M. at 1502; 11603(e)(2)(A).
III.
011 In an affidavit submitted after briefing was
completed for this appeal, Remis claims that Gaudin has
recently moved permanently to Hawaii. He contends that
Gaudin’s action is moot because both parents and the
children now live permanently in Hawaii. For the moment, we
shall assume that Remis’s factual allegation regarding
Gaudin’s relocation to Hawaii is true.
012 In light of Gaudin’s move, she no longer seeks the
return of her children to Canada. Rather, she seeks the
transfer of her children to her within Hawaii, where she
purportedly intends to keep them for the indefinite future.
013 The Convention’s principal remedy is the return of
the abducted child. art. 12, 19 I.L.M. at 1502; Shalit, 182
F.3d at 1128. However, the Convention does not make clear to
what country a child must be returned. The Preamble recites
the Convention’s goal as the return of children “to the
State of their habitual residence.” 19 I.L.M. at 1501
(emphasis added). However, the actual text of the Convention
is silent as to where the child should be returned. Article
12 merely provides that a wrongfully removed child should
be”returned . . . forthwith.” 19 I.L.M. at 1502.
014 The Convention’s official commentary reveals that
this silence was intentional. See Elisa Perez-Vera,
Explanatory Report ΒΆ 110, in 3 Hague Conference on Private
International Law, Acts and Documents of the Fourteenth
Session, Child Abduction 459-60 (1982) [hereinafter
Perez-Verz Report]. FN02 The commentary explains that the
Convention rejected a proposal that would have required a
child to be returned to his habitual residence. Id. The
Convention was concerned that such a proposal would prove
“inflexible” when the petitioner moves from the State of the
child’s habitual residence postabduction. Id. In other
words, the Convention did not provide that a child be
returned to his pre-abduction habitual residence if the
petitioner had relocated to a different country. The
Commentary states that the Convention intended that the
child be transferred to the petitioner’s new residence in
these circumstances. Id.
015 The State Department’s commentary on the Convention
contains a similar discussion. “The Convention does not
technically require that the child be returned to his or her
State of habitual residence, although in the classic
abduction case this will occur. If the petitioner has moved
. . . the child will be returned to the petitioner, not the
State of habitual residence.” Hague International Child
Abduction Convention; Text and Legal Analysis, 51 Fed. Reg.
10404 (Mar. 26, 1986).
016 We need not resolve the broad question of whether, or
under what circumstances, a child should be returned to a
petitioner’s new, post-abduction residence. This case
presents unusual circumstances: Gaudin moved to the same
country in which Remis and the children are now found. The
Convention cannot be invoked when the petitioner moves
permanently to the same country in which the abductor and
the children are located.
017 The Convention does not extend to custody
determinations, i.e., which parent should care for the
child. E.g., Shalit, 182 F.3d at 1128. Rather, the
Convention is designed to decide which country should make
the custody determination. See art. 1(b), 19 I.L.M. at 1501
(framing an object of the Convention as “to ensure that
rights of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting States”); see also Mozes, 250 F.3d at 1070. In
other words, the Convention presumes that the petitioner is
located in a different country from that of the abductor and
the child, such that multiple countries could potentially
make a custody determination.
018 However, when a petitioner relocates permanently to
the same country in which the abductor and the children are
found, she casts her lot with the judicial system of that
country. When Gaudin purportedly relocated, she severed her
ties with Canada and made Hawaii the proper forum to
determine custody matters. Gaudin’s potential relief lies
with the Hawaiian courts, not with the Convention.
Therefore, if Gaudin has moved permanently to Hawaii, her
action is indeed moot. See, e.g., IRS v. Pattullo (In re
Pattullo), 271 F.3d 898, 901 (9th Cir. 2001) (“If an event
occurs while a case is pending on appeal that makes it
impossible for the court to grant any effectual relief
whatever to a prevailing party, the appeal is moot and must
be dismissed . . . .”).
IV.
019 We are hesitant, however, to conclude on this record
that Gaudin has moved permanently to Hawaii. Remis’s
allegations were presented to this court in a last-minute
affidavit. At oral argument, Gaudin suggested that she may
have moved to Hawaii for the sole purpose of regaining
custody of the children to return to Canada. As an appellate
court, we are illequipped to resolve this factual dispute.
We therefore remand to the district court for an evidentiary
hearing to determine whether Gaudin has moved permanently to
Hawaii. If the district court determines that Gaudin has
relocated, her action is moot; the district court then may
wish to consider whether to vacate its previous judgment.
See Doe v. Madison Sch. Distr. No. 321, 177 F.3d 789, 799
(9th Cir. 1999) (en banc). Since we deny the motion to
dismiss and remand for an evidentiary hearing, we do not
reach the merits of the appeal at this time. However, if the
district court determines that Gaudin’s action is not moot,
any subsequent appeal shall be assigned to this panel.
020 Motion to Dismiss DENIED; REMANDED for further
proceedings.
Opinion Footnotes
1 Along with the United States, Canada is a signatory
to the Convention. 19 I.L.M. at 1501.
2 Elisa Perez-Vera was the official Convention
reporter, and her report is “recognized by the Conference as
the official history and commentary on the Convention.”
Shalit, 182 F.3d at 1127-28 (internal quotation marks
omitted).