Kanth v Kanth (D. Utah 1999)79 F.Supp.2d 1317
17 International Abduction [USA 1999]
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United States District Court
D. Utah
Central Division
No 2:99CV532C
14 Dec 1999
Rajani K. Kanth, Plaintiff
v
Cory Leigh Kanth, Defendant
<* page 1318>
ORDER
CAMPBELL, District Judge
001 Mr. Kanth has filed this petition under the
International Child. Abduction Remedies Act, 42 U.S.C.
11601-11610 (“ICARA”), and the Convention on the Civil
Aspects of International Child Abduction, included in the
Hague Convention adopted on October 25, 1980 (“the Hague
Convention”). Mr. Kanth alleges that Mrs. Kanth wrongfully
removed the children from Australia to the United States,
and that, under the Hague Convention, the children must be
returned to Australia so that the courts of that country can
determine custody. For the reasons stated below, Mr. Kanth’s
petition is denied. FN01
Background
002 Mr. and Mrs. Kanth and their two daughters are
citizens of the United States. Mr. Kanth was horn in India,
but moved to the United States. He became a naturalized
United States citizen in 1985. Mr. and Mrs. Kanth were
married in Salt Lake City, Utah, in March 1990. Both of the
Kanth daughters were born in Salt Lake City: Malini Amstel
Kanth in 1993 and Anjana Kesari Kanth in 1996.
003 Kanth is a college professor. In 1993, the
University of Utah denied Mr. Kanth tenure. Although he made
application to numerous universities, he was unable to find
an acceptable position in the United States. In 1996, Mr.
Kanth accepted. a temporary academic position with the
University of Aarhus in Denmark; he left the United States
in June of that year. Mrs. Kanth and the children stayed in
Salt Lake City until September 1996, when they joined Mr.
Kanth in Denmark.
004 The Kanths did not stay long in Denmark. Mrs. Kanth
and the children returned to Salt Lake City in April 1997;
Mr. Kanth returned in September of that year. Following
their return, Malini enrolled in a preschool in Salt Lake
City. According to Mrs. Kanth, Malini made friends in the
preschool and generally excelled.
005 Because Mr. Kanth was not able to locate an
acceptable academic position in the United States, he again
accepted a teaching position in a foreign country, at the
University of New South Wales, Australia. Mrs. Kanth opposed
the move, consenting to go only when Mr. Kanth told her that
the family’s stay in Australia would last only six months.
FN02 The Kanth family traveled to Australia on temporary
visas, arriving in July 1997. They left behind most of their
household furnishings and personal belongings, including
many of the children’s toys. These items were stored
primarily with Mrs. Kanth’s family in Salt Lake City. (See
Cory Leigh Kanth Aff. Exhibits) (Photographs).
006 The Kanth family was in Australia for a total of
nine, months, from July 1997 to April 1998. While in
Australia, Mr. Kanth continued to seek teaching positions in
the United States. When his efforts were unsuccessful, he
agreed to continue in his teaching position at the
University of New South Wales for six months. However, Mr.
Kanth did not complete this second six-month term. He and
his family returned to Salt Lake City in April 1998. When
the family left Australia, they broke their lease on their
apartment and forfeited a $1,120 rental bond.
<* page 1319>
007 Although Mrs. Kanth states that the family returned
to the United States because Mr. Kanth had an Interview at
Franklin and Marshall College in Pennsylvania, a fact the
court accepts as correct, two letters submitted to the court
by Mrs. Kanth indicate that the family may have also left
Australia as a result of Mr. Kanth’s personal difficulties.
The first letter is from Dr. Graham Voss, Associate Head of
the School Of Economics at the University of New South
Wales. In the letter, Dr. Voss acknowledged that Mr. Kanth
was resigning his “visiting position” as of April 2, 1998.
Dr. Voss stated:
“Again, let me express my sympathies with your
difficulties and wish you and your family all
the best in the future.” (Cory Leigh Kanth Aff.
Exs. at 1933) (Letter from Voss to Kanth of
3/30/1998).
008 The second letter was sent by a counselor (the
signature is illegible) from the Solution Focused Counseling
Centre. The author obviously knew of problems Mr. Kanth was
facing. The letter begins:
“Thanks for the post card. Obviously you made
it back to Utah and memories of Australia have
hopefully faded a little.” (Id. at 195) (Letter
of 5/11/1998).
009 After giving Mr. Kanth encouragement. and advice
about his mental and emotional state (“I am impressed that
you have started work on controlling your ‘demons’ “), the
author concludes with the statement: “Hope you will be
smiling more now that you are back in the States. Keep in
touch.” (Id)
010 Back in Utah, the children apparently settled into
the routine and practices they had had before the move to
Australia. Malina returned to the same preschool. The
children renewed their ties with Mrs. Kanth’s family, with
whom the children were very close. (Mrs. Kanth’s family were
the only relatives the children knew). The children were
seen by Dr. Tom Metcalf, who had been their pediatrician
since their births. (The children were seen by several
different doctors for illnesses in Australia).
011 Mr. Kanth accepted a temporary research fellowship at
Harvard University, and pursued his interview opportunity in
Pennsylvania. Mr. Kanth hoped that his Harvard fellowship
would help him obtain a teaching position in the United
States. Roger Owen of Harvard University wrote a letter of
recommendation for Mr. Kanth. In his letter, Mr. Owen noted:
Since leaving the University of Utah Rajani has
led a somewhat peripatetic existence, teaching
in Denmark and Australia and working on his
general critique of Enlightenment thinking. He
continues to be as productive of new ideas as
ever. But he certainly needs somewhere to rest
awhile if he is to exploit these new veins of
thought to the full.
(Id. at 020) (Letter from Owen to Kanth of
5/11/1998).
012 When Mr. Kanth did not find a teaching position in
the United States, he accepted a three-year position at the
University of Technology (“UTS”) in Sydney, Australia, and
the Kanth Family left for a second stay in Australia in July
1998. Again, most of the family’s furniture and personal
belongings were left behind in Salt Lake City.
013 Although Mr. Kanth contends that the family intended
to stay in Australia, the evidence in the record does not
support his contention. Mrs. Kanth states in her affidavit
that they left reluctantly for Australia, and that Mr. Kanth
had assured her they would return to the United States by
autumn in 1998. Mr. Kanth believed that he would soon have a
job with Duke University. Mrs. Kanth’s statement that her
husband anticipated that he would be receiving a job offer
from Duke University is corroborated by an e-mail message,
sent by Mr. Kanth to Mrs. Kanth’s father, telling him of the
family’s address in Sydney and asking him to “send us any
normal mail to the new address indicated above (this is
important since DUKE UNIVERSiTY will be writing to me at
your address) OR you can open the mail and read it to see
what it says and then call us (this is better for being much
FASTER.)” (Id.
<* page 1320>
at. 056) (e-mail from Kanth to Meyer of 7/23/1998).
014 When the position at Duke University did not
materialize, Mr. Kanth continued to apply for other
positions in the United States. In October 1998, Mr. Kanth
wrote an application letter to Florida Atlantic University
in which he declared:
I am specially happy to be applying to Florida
Atlantic for a suitable position in economics.
Briefly, my current status is that I am in the
running for a Chair in economics here at the
UTS, having just returned from a visiting stint
at Harvard. However, my sights are set else
where: for years now, I have been seeking to
return to the U.S. for professional and
personal reasons (my family lives in Utah.)
(Id. at 021), (Letter from Kanth to Florida
Atlantic University of 10/10/1998)
015 In a letter written, to Mrs. Kanth’s father in May
1999, Mr. Kanth makes clear his desire, to find work in the
United States:
I am trying my best, as I have had for years,
to find employment back in the US: in the very
short run, this may or may not happen. But the
long run prospects remain very high given the
level of my productivity. It may happen as
early as this Fall, or maybe a bit later. (Id;
at 032) (Letter from Kanth to Meyer of
5/5/1999).
016 According to Mrs. Kanth, Mr. Kanth feared that the
time he spent as a lecturer at UTS, a business school, and
not as a professor at a nationally-ranked university, would
damage his academic reputation and his future job
opportunities. In fact, Mr. Kanth was apparently so
dissatisfied with his position at UTS, that he considered
accepting a job at the National University of Singapore,
when an offer was extended to him in January 1999. (Id. at
027) (Letter from National University of Singapore to Kanth
of 1/29/1999).
017 During their second stay in Australia the Kanth
family again lived in rented apartments. According to Mrs.
Kanth, the family lived in a total of seven different rented
lodgings during their two stays in Australia.
018 Mr. and Mrs. Kanth disagree about the children’s
adjustment to their life in Australia. According to Mr.
Kanth, the children enjoyed life in Australia and had
friends and playmates there. Mrs. Kanth disputes this claim
and goes into considerable detail about the loneliness her
children experienced during both their stays in Australia.
(Cory Leigh Kanth Aff. at 25-27.) The evidence is not clear
on this question. For example, Malini was a student at the
Randwick School during the family’s second stay, and her
December 1998 report card from the school reflected that she
was “a very capable child” and did well in her studies.
(Cory Leigh Kanth Aff. Exs. at 143) (Student Progress
Report). However, the teacher noted that Malini was “quite
timid and reserved.” (Id.). On the other hand, Malini’s
principal at the Randwick School, Peter Kensell, stated that
“Socially, Malini had a number of close friends who enjoyed
her company in the classroom and the playground.”
(Petitioner’s Mem. Supp. Petition Ex. J) (Letter from
Kensell to whom it may concern of 6/23/1999). Mr. Kanth also
asserts that Malini engaged in various extracurricular
activities while in Australia, such as piano lessons and
ballet. However, there is nothing in the record that casts
doubt upon Mrs. Kanth’s statements that Malini attended
these activities infrequently, going to only three piano
lessons and one ballet lesson. (Cory Leigh.Kanth Aff. at
26.)
019 Mr. Kanth has submitted several letters from
professional colleagues. For the most part, none of the
letters are of particular assistance to the court because of
their conclusory nature, lack of detail, and statements to
the effect that Mr. and Mrs. Kanth enjoyed a warm, loving
relationship. Such assessments cast doubt on the accuracy of
the other statements made by the authors, because there is
no question that the relationship between Mr. and Mrs. Kanth
was deeply troubled and worsened
<* page 1321>
during their stays in Australia, and by March 1999, the
relationship between Mr. and Mrs. Kanth had deteriorated to
the point that Mrs. Kanth returned to Salt Lake City with
the children.
Discussion
020 The purpose of the Hague Convention is “to secure the
prompt return of children wrongfully removed or retained” so
that the courts of the county where the children habitually
reside may make a determination of custody. Hague
Convention, Art. 1.
021 To obtain relief under the Hague Convention, a
petitioner has the burden of proving, by a preponderance of
the evidence, that the children have been wrongfully removed
or retained. See 42 U.S.C. 11603(e)(i). A removal or
retention is “wrongful” if:
(a) it is in breach of rights of custody
attributed to a person … 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…
Hague Convention, Art. 3.
022 The first question, then, is whether Australia was
the habitual residence of the two Kanth daughters before
Mrs. Kanth took them from Australia in March 1999. If the
habitual residence of the children was not Australia, then
there was no wrongful removal. See In re Application of
Ponath, 829 F.Supp. 363, 364 (D.Utah 1993) (internal
citation omitted).
023 The term “habitual residence” is not defined in
either the Hague Convention or ICARA. Courts have speculated
that the intent is for the concept [habitual residence] to
remain fluid and fact based, without becoming rigid.'” Id.
at 365 (quoting Levesque v. Levesque, 816 F.Supp. 662, 665
(D.Kan.1993)).
024 The Third Circuit has discussed the concept of
habitual residence in detail, noting that although it is the
child’s habitual residence that must be determined, in the
case of a young child, “the conduct and the overtly stated
intentions and agreements of the parents during the period
preceding the act of abduction are bound to be important
factors and it would be unrealistic to exclude them.” Feder
v. Evans-Feder, 63 F.3d 217, 223 (3rd Cir.1995). The court
further explained.
[T]here must be a degree of settled purpose.
The purpose may be one or there may be several.
It may be specific or general. All that the law
requires is that there is a settled purpose.
That is not to say that the propositus intends
to stay where he is indefinitely. Indeed his
purpose while settled may be for a limited
period. Education, business or profession,
employment, health, family or merely love of
the place spring to mind as common reasons for
a choice of regular abode, and there may well
be many others. All that is necessary is that
the purpose of living where one does has a
sufficient degree of continuity to be properly
described as settled.
Id. (citation omitted).
025 The court determined that:
a child’s habitual residence is the place where
he or she has been physically present for an
amount of time sufficient for acclimatization
which has a degree of “settled purpose” from
the child’s perspective. We further believe
that a determination of whether any particular
place satisfies this standard must focus on the
child and consists of an analysis of the
child’s circumstances in that place and the
parents’ present, shared intentions regarding
their child’s presence there
Id. at224.
026 When the above definitions are applied to the facts
here, it is evident that the habitual residence of the Kanth
daughters immediately before being taken to the United
States in March 1999 was not Australia but the United
States. In March 1999, Malina was almost six years old,
Anjana three. They had spent nine months in Australia on
their first stay, and approximately the same amount of time
on
<* page 1322>
their second. Although Malina had attended school in
Australia, the evidence suggests that she may have had
difficulty finding friends in school and felt isolated. And
as far as whether Anjana could be seen as settled in
Australia, due to her young age, the focus must be dictated
by the perspective of her parents.
027 Also significant, and evidence that the children
would not have been “acclimatized” to their life in
Australia and would not have felt “settled” in their
Australian surroundings, is the fact that the family lived
in a succession of rented dwellings. Adding to the
unfamiliarity of the children’s surroundings, the rented
accommodations in which they were living were not furnished
with the family’s own belongings. The photographs submitted
by Mrs. Kanth show that much of the family’s furniture and
personal belongings were stored while the family was in
Australia. The stored belongings include such items as
Malini’s rocking chair, the children’s chest; and toy
cupboard, the children’s yard furniture, and Malini’s
bicycle and Anjaha’s tricycle. Such items are the kind that
children rely on to give them a sense of home and belonging,
and the Kanth children did not have these familiar
belongings with them when they were in Australia.
028 The evidence is also overwhelming the children’s
parents believed that their two stays in Australia would be
temporary, and brief. Mrs. Kanth adamantly insists that she
went to Australia reluctantly, relying on her husband’s
assurance that the family would quickly return to the United
States. And Mr. Kanth’s constant, search for a teaching
position in the United States, as shown by the numerous
letters to and from colleges and universities in the United
States, as well as his own words in his letter to Mrs.
Kanth’s father, undermines his present assertion that it was
the family’s intention to remain in Australia.
029 In sum, Mr. Kanth has failed to show that Australia
was the habitual residence of the children and, accordingly,
his petition is DENIED.
Footnotes
================================
1. This matter was set for oral argument on December 9,
1999. However, Mr. Kanth, who now lives in New York,
requested that oral argument he continued. Because
the progress of this case has been slow, the court
was reluctant to grant such a continuance. Mr. Kanth
agreed that the court could resolve the matter on the
basis of the written material, without oral argument.
The court has now carefully considered the materials
of the parties (those that were filed within the
deadlines set by the court) and concludes that oral
argument would not assist the court in reaching a
decision.
2. Mr. and Mrs. Kanth disagree sharply over whether they
intended that their stay in Australia would be
permanent or temporary. The evidence before the
court, as discussed below, leads the court to the
conclusion that Mrs. Kanth is correct when she states
in her affidavit that neither she nor Mr. Kanth
intended to permanently settle in Australia.