Smith v Smith (Ken.W.Dist 1997)Civil Action No. 1:97-CV-7S(R)
16 International Abduction [USA 1997]
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
Civil Action No. 1:97-CV-7S(R)
RUSSELL JAMES SMITH, PETITIONER.
V.
CYNTHIA ANN SMITH, RESPONDENT.
MEMORANDUM OPINION
001 Petitioner Russell Jaemes Smith seeks the return of
his son, Nathan, to Australia pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction (the “Convention”). He alleges that Respondent
Cynthia Smith, his wife, removed their child from Australia
in violation of the Convention by refusing to return the
child from a vacation to the United States. For the reasons
that follow, the Court finds that Mrs. Smith did wrongfully
remove Nathan from his “habitual residence,” Australia, in
violation of the Convention and orders that Nathan be
returned to Australia for custody proceedings.
FACTS
002 Petitioner Russell Jaemes Smith, a citizen of
Australia, and Respondent Cynthia Ann Smith, a citizen of
both the United States and Australia, FN1 were married in
Hawaii on March 20, 1987. The couple lived in Australia from
the beginning of their marriage and Nathan, their only
child, was born there on March 31, 1992. Mr. Smith has been
employed in Australia since several years before the
marriage. Due to the nature of his employment, Mr. Smith
travels frequently and Mrs. Smith has been Nathan’s primary
caretaker. The parties separated permanently, after a
previous separation and attempt at reconciliation, in May
1996. FN2
003 In August 1996, Mr. and Mrs. Smith agreed that Nathan
would accompany his mother to the United States for a visit
with her parents. This visit was to last approximately one
month. See Deposition of Cynthia Ann Smith at 107; Letter
from Mrs. Smith’s Australian Counsel to Mr. Smith’s Former
Australian Counsel, Exhibit B to Petitioner’s Brief in
Support of Petition (“We are further instructed that [Mr.
Smith] consents to [Mrs. Smith] taking Nathan to the United
States of America for a holiday for one month in October.”);
Letter from Mr. Smith’s Former Australian Counsel to Mrs.
Smith’s Australian Counsel, Exhibit C to Petitioner’s Brief
in Support of Petition (“We are instructed … that Mrs.
Smith is to return on 5 October 1996. Mrs. Smith did not
resign from her job in Australia prior to this trip.
Deposition of Cynthia Ann Smith at 107. Mrs. Smith and
Nathan were to meet Mr. Smith in Hawaii on October 5, 1996.
However, Mrs. Smith and Nathan never arrived. Mrs. Smith
testified that she agreed to meet Mr. Smith in Hawaii but
decided not to go after he refused to obtain hotel
accommodations for her and Nathan.
DISCUSSION
004 The Convention, implemented in the United States as
the International Child Abduction Remedies Act, 42 U.S.C.
11601-11610, is designed to deter parental kidnaping across
international borders. Feder v. Evans-Feder, 63 F.3d 217,
221 (3rd Cir. 1995). See also 42 U.S.C. I 1601(a)(1)-(4).
Its stated purpose is to “protect children internationally
from the harmful effects of their wrongful removal or
retention and to establish procedures to ensure their prompt
return to the State of their habitual residence, as well as
to secure protection for rights of access.” Convention,
Preamble. Both the United States and Australia are signatory
nations to the Convention. See Feder, 63 F.3d at 221.
005 Federal courts considering petitions brought under the
Convention have stressed two principles embodied in the
Convention and it implementing statutes: a court in the
abducted-to nation has jurisdiction to decide the merits of
an abduction claim, but not the merits of the underlying
custody dispute.” See Friedrich v. Friedrich (“Friedrich”
II), 78 F.3d 1060, 1063) (6th Cir. 1996). Second, the
abducted-to nation should “restore the pre-abduction status
quo and thereby discourage parents from engaging in forum
shopping by crossing international borders. See Id. at 1064.
Under the Convention, a child has been subject
to a”wrongful removal” when:
a. it is a 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. The rights of
custody mentioned in sub-paragraph a above, may
arise in particular by operation of law or by
reason of a judicial or administrative decision,
or by reason of agreement having legal effect
under the law of that state.
Convention, art. 3; Friedrich v. Friedrich (“Friedrich I),
983 F.2d 13396, 1400 (6th Cir. 1993). A petitioner seeking
the return of a child to a particular country must show. by
a preponderance of the evidence, that the removal was
wrongful. If the petitioner is able to meet this burden the
respondent must show that one of the exceptions applies. To
prove that an exception applies, the respondent must show
one of the following:
1. by clear and convincing evidence that there
is a grave risk that the return of the child
would expose the child to physical or
psychological harm. Convention, Art. l3(b); 42
U.S.C. 11603(e)(2)(A).
2. by clear and convincing evidence that the
return of the child “would not be permitted by
the fundamental principles of the requested
State relating to the protection of human rights
and fundamental freedoms.” Convention, Art. 20;
42 U.S.C. 11603(e)(2)(A).
3. by a preponderance of the evidence that the
proceeding was commenced more than one year
after the abduction and the child has become
settled in its new environment. Convention, Art.
12; 42 U.S.C. 11603(e)(2)(B).
4. by a preponderance of the evidence that the
petitioner was not actually exercising the
custody night at the time of removal or
retention, or had consented to or subsequently
acquiesced in the removal or retention.
Convention, Art. 13(a); 42 U.S.C.
11603)(e)(2)(B).
Friedrich I, 983 F.2d at 1400.
006 Thus, Mr. Smith must prove by a preponderance of the
evidence that (1) Mrs. Smith wrongfully removed Nathan from
his “habitual residence,” and (2) Mr. Smith was exercising
his parental custody rights at the time of removal or that
he would have exercised his rights absent the removal, under
the law of the country of Nathan’s habitual residence.
Should Mr. Smith meet his burden on these two points, Mrs.
Smith has the burden of showing that one of the Convention’s
exceptions applies.
“HABITUAL RESIDENCE”
007 Although the Convention provides little guidance on
what is a “habitual residence,” the Sixth Circuit has
previously visited the issue. In Friedrich I, the Sixth
Circuit concluded that there is no meaningful difference
between habitual and ordinary residence. Friedrich I, 983
F.2d at 1401; Rydder v. Rydder, 49 F.3d 369, 370) (8th Cir.
1995). A person’s “habitual residence” is a matter of
geography altered more by the passage of time than it is by
any “changes in parental affection and responsibility.”
Friedrich I, 983 F.2d at 1402. “[T]o determine the habitual
residence, the court must focus on the child, not the
parents, and examine past experience, not future
intentions.” Id. at 1401.
008 For there to be a change in one’s “habitual residence”
“there must be a degree of settled purpose. . . . 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.” Feder, 63 F.3d at 223 (quoting, In re
Bates, No. CA 122-89, High Court of Justice, Family Div’n
Ct. Royal Courts of Justice, United Kingdom (1989)).
However, a child’s wrongful removal by one parent does not
alter that child’s “habitual residence.” See Feder, 63 F.3d
at 226 (holding parent’s unilateral decision to keep child
in United States does not to affect his “habitual
residence”); Meredith v. Meredith, 759 F. Supp. 1432, 1435
(D. Me. 1991) (holding child’s “habitual residence”
unchanged by mother’s refusal to return child from vacation
in France).
009 Based upon the couple’s history in Australia and the
parties’ apparent intention that Nathan be returned to
Australia at the end of his trip to the United States, Mr.
Smith argues that Australia was Nathan’s “habitual
residence” at the time of his removal to the United States.
Conversely, Mrs. Smith contends that Mr. Smith granted her
permission to take Nathan to the United States and, once
there, gave consent to his remaining there. Evidence in the
record demonstrates that the parties agreed Nathan would be
returned to Australia in October 1996. Mrs. Smith never
resigned from her job in Australia and the parties’
attorneys were in agreement that Nathan and Mrs. Smith would
return to Australia after the visit to the United States.
Mrs. Smith even concedes that she had Mr. Smith’s consent to
take Nathan to the United States for a visit, and that she
intended to return to Australia at the end of that visit.
Deposition of Cynthia Ann Smith at 107.
010 Until the prolonged trip to the United States, Nathan
had lived in Australia since birth and his life there was
sufficiently “settled” to make Australia his “habitual
residence.” By keeping Nathan in the United States beyond
the date of his scheduled return, Mrs. Smith effected a
removal of Nathan from his “habitual residence,” but she did
not successfully alter his “habitual residence” through her
unilateral acts. Prior to Nathan’s removal, there was no
settled intention for Nathan to remain in the United States.
Any continuity or subsequent appearance of settlement in the
United States is a result of Nathan’s removal from Australia
and does not alter his “habitual residence.”
EXERCISE OF CUSTODY RIGHTS
011 Under the Convention, a child’s removal from the
country of his”habitual residence” is only “wrongful” if “a
person in that country is, or would otherwise be, exercising
custody rights to the child under that country’s law at the
moment of removal.” Friedrich II, 78 F.3d at 1064;
Convention, Art. 3). Custody rights “may arise in particular
ky operation of law or by reason or a judicial or
administrative decision, or by reason of an agreement having
legal effect under the law of a state.” Id. “Exercise” is
interpreted liberally and the Sixth Circuit has concluded
that “as a general rule, any attempt to maintain a somewhat
regular relationship with the child should constitute
‘exercise.'” Id. at 1066.
012 Since Australia was Nathan’s “habitual residence”
prior to his removal, Australian law determines whether Mr.
Smith enjoyed custody rights and whether he exercised those
rights. In Feder v. Evans-Feder , the Third circuit,
presented with the same question. concluded that Australia’s
Family Law Act of 1975 applied to custody matters in
Australia. Under the Convention this Court “may take notice
directly [of the provisions of the Act] … without recourse
to specific procedures for the proof of that law.”
Convention, Art. 14.
013 The Family Law Act provides that each parent is a
joint guardian and a joint custodian of a child, each having
the right to make decisions about the child’s daily care.
Feder, 63 F.3d at 225 (citing Family Law Act, 1975,
63(E)(l)-(2), (F)(1) (Austl.)). Joint custody exists until
a court orders otherwise. Id. Thus, under Australian law,
Smith has joint custody of Nathan unless there a court has
ordered otherwise.
014 Mrs. Smith suggests at one point in her deposition
that an Australian court issued an order granting her
temporary custody over Nathan. See Deposition of Cynthia Ann
Smith at 6-78. However, later in her deposition she admitted
that there were no court orders granting her sole custody of
Nathan when they left Australia in September 1996. See id.
at 106-07. Mrs. Smith has also failed to produce any orders
granting her sole custody over Nathan despite this Court’s
order compelling her to turn over such documents. Therefore,
the Court can assume that there are no such orders and that
the parties have joint custody over Nathan.
015 As noted above, the “exercise” of custody rights is
interpreted broadly for purposes of the Convention.
Friedrich II, 78 F.3d at 1066. The Sixth Circuit has held:
“[I]f a person has valid custody rights to a child under the
law of the country of the child’s residence, that person
cannot fail to ‘exercise’ those custody rights under the
Hague Convention short of acts that constitute clear and
unequivocal abandonment of the child.” Id. If a parent has
exercised his custody rights at all, the court’s analysis
should end. It is irrelevant whether the parent exercised
the custody rights well and delving into such matters is
dangerously close to a consideration of the merits of the
custody dispute, which is clearly beyond a federal court’s
jurisdiction. 1d; 42 U.S.C. 11601(b)(4).
016 Although Mr. Smith’s job requires him to travel for
several days at a time, he claims Chat when he was home he
was Nathan’s primary caretaker. The parties are in dispute
about how often Mr. Smith saw his son after the parties
separated, but it is undisputed that Mr. Smith had at least
four visits with Nathan between May and September 1996. Mr.
Smith currently maintains contact with Nathan over the
telephone and has sent him several packages. The record does
not indicate a “clear and unequivocal abandonment” of Nathan
by Mr. Smith. It appears that he exercised his custody
rights up until Nathan’s removal from Australia and
continues to attempt to exercise those rights
telephonically.
017 Mrs. Smith suggests that Mr. Smith was not exercising
his custody rights because he merely had visitation rights
and not physical custody of Nathan. However, one of the
Convention’s goals is to protect the “rights of access” of
those parents who do not retain physical custody of a child
after a separation. “Rights of access” include “the right to
take a child for a limited period of time to a place other
than the child’s habitual residence.” Convention, Art. 5.
Mr. Smith had joint custody of Nathan under Australian law
and even though he did not have physical custody over
Nathan, he retained joint custody and exercised his custody
rights.
EXCEPTIONS
018 Because Mrs. Smith “wrongfully removed” Nathan from
Australia Nathan must be returned to Australia unless she
can show that one of the exceptions applies. The only
exception placed at issue by Mrs. Smith is the first one,
that there is a grave risk that the return of the child
would expose him to physical or psychological harm.
Convention, art. 13b; 42 U.S.C. 11603(e)(2)(A). For this
exception to apply, the “grave risk” must be established by
clear and convincing evidence. Id.
019 All four exceptions to the Convention are “narrow.”
Friedrich II, 78 F.3d at 1067. In fact, federal courts have
the ability to return a child to his “habitual residence”
even if one of the exceptions applies, if such a return
would be appropriate. Courts considering, the “grave risk’
exception have concluded that it exists only when there is
harm “that also amounts to an intolerable situation.” Id.
(quoting Thomson v. Thomson [1994] D.L.R.4th 253 (Canadian
case)). The harm required is “something greater than would
normally be expected on taking a child away from one parent
and passing him to another.” Id. (quoting In re A, 1 F.L.R.
365, 372 (Eng. C.A. 1988)). The Sixth Circuit has concluded
that a grave risk of harm exists in only two situations:
First there is a gave risk of harm when return
of the child puts the child in imminent danger
prior to the resolution of the custody dispute,
e.g., returning the child to a zone of war,
famine, or disease. Second, there is a grave
risk of harm in cases of serious abuse or
neglect, or extraordinary emotional dependence,
when the court in the country of habitual
residence, for whatever reason, may be incapable
or unwilling to give the child adequate
protection.
Id. at 1069. There is no allegation that returning Nathan to
Australia would put him at risk of war, famine, or disease,
therefore, the only question remaining is whether Mrs. Smith
has shown, by clear and convincing evidence, that such a
return would expose him to serious abuse or neglect and that
Australia would be unwilling to give him adequate
protection.
020 Mrs. Smith points her allegations of verbal and
physical abuse at the hands of Mr. Smith as evidence that
Nathan would be placed in grave risk of serious harm if
returned to Australia. She specifically notes an incident in
May of 1996 in which she suffered severe injuries in an
altercation with her husband. Although the conduct alleged,
if true, is inexcusable, it was directed toward Mrs. Smith,
not Nathan. There is no allegation that Mr. Smith ever
abused Nathan and these allegations, even if accepted as
true, do not prove by clear and convincing evidence that
Nathan’s return to Australia would place him at grave risk
of serious harm. See Nunes-Escudero v. Tice-Menley, 58 F.3d
374 (8th Cir. 1995). Moreover, Mrs. Smith does not argue
that the Australian courts are unable or unwilling to
adequately protect Nathan. In fact, Australian courts have
demonstrated their willingness to protect Nathan, as well as
Mrs. Smith, by issuing a domestic violence protection order
in the past.
ATTORNEYS FEES
021 The legislation implementing the Convention provides
for the assessment of fees and costs against the respondent
in a petition brought under the Convention. The statute
provides:
Any court ordering the return of a child
pursuant to an action brought under section 4
[42 U.S.C. 11603] shall order the respondent
to pay necessary expenses incurred by or on
behalf of the petitioner, including court costs,
legal fees, foster home or other care during the
course of proceedings in the action, and
transportation costs related to the return of
the child, unless the respondent establishes
that such order would be clearly inappropriate.
42 U.S.C. 11607(3). See also Rydder, 49 F.3d at 373-74.
Mr. Smith has requested that his attorney’s fees be
reimbursed in accordance with the statute. Therefore, the
Court shall consider an award of reasonable attorney’s fees
and costs upon the submission of records documenting his
costs within 10 days of entry of this decision. Mrs. Smith
shall have 10 days to respond and demonstrate why such an
award would be “clearly inappropriate.”
An appropriate order shall issue.
/s/ Thomas B. Russell
___________________________
Thomas B. Russell, Judge
United States District Court
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
Civil Action No. 1:97-CV-7S(R)
RUSSELL JAMES SMITH, PETITIONER.
V.
CYNTHIA ANN SMITH, RESPONDENT.
ORDER
022 A petition having been filed pursuant to the Hague
Convention on the Civil Aspects of International Child
Abduction, implemented in the United States as the
International Child Abduction Remedies Act, 42 U.S.C.
11601-11610, and the Court being sufficiently advised,
023 IT IS ORDERED: The petition is GRANTED. The parties
shall make arrangements for Nathan Smith to be returned to
Australia for custody proceedings.
024 IT IS FURTHER ORDERED: Petitioner shall submit his
request for attorney’s fees with documentation within 10 day
of the entry of this Order. Respondent shall have 10 days to
respond. Copies of these pleadings shall be sent to the
Judge’s Chambers in Paducah.
This is a final and appealable order. There is no just cause
for delay.
This the 10th day of December, 1997.
/s/ Thomas B Russell
__________________________
Thomas B. Russell, Judge
United States District Court
cc: Counsel
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24 May 1998. Note by William M. Hilton.
A review of the CIVIL DOCKET FOR CASE #: 97-CV-78 shows the
following:
30 Jan 1998 NOTICE OF APPEAL by respondent Cynthia Ann
Smith to decision [39-2], [42-1] (cc: all
counsel) receipt # 005008 (lw) [Entry date
02/04/98].
22 May 98 ORDER by Judge Joseph H. McKinley Jr.
granting motion for order executing judgment
[71-1] stay lifted; parties shall make
immediate arrangements for Nathan to be
returned to Australia for custody proceedings;
within 7 days counsel shall communicate with
one another to formulate a plan for
accomplishing the return of Nathan to
Australia; within 15 days counsel shall file a
joint report and an agreed order, or in the
absence of an agreement, separate orders
accomplishing the transfer of Nathan to
Australia (cc: all counsel) (ll).
——————–
1. Respondent was born in the United States but acquired
dual citizenship after her marriage to Petitioner.
2. Although not relevant to the outcome of this case,
there is some dispute over whether the couple
reconciled again in August 1996. Mr. Smith claims that
they did, but Mrs. Smith denies that any such
reconciliation took place.