Bickerton v Bickerton (California 1991)Contra Costa County Superior Court No. 91-06694
2 International Abduction [USA 1991]
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SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF CONTRA
COSTA
Number: 91-06694
Applicant: Larry Earl Bickerton
and
Respondent: Beverly J. Bickerton
Judge: Hon. Patricia K. Sepulveda
Date: 17 Jul 1991
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WMH NOTE: The relevant facts of this case are as follows:
The parties and children lived in Canada from the children’s
birth to 04 Jul 1986. At that time the parents entered into
a written separation agreement which was never made an order
of any court. The children then spent Jul 86 to Jul 87 in
California, Jul 87 to Jul 88 in Canada, Jul 88 to Jul 89 in
California, Jul 89 to Jul 90 in Canada and Jul 90 to Jul 91
in California. In Jun 1991 the mother brought an action for
exclusive custody in the California court. The father filed
an action under The Convention on the Civil Aspects of
International Child Abduction, done at the Hague on 25 Oct
1980 in Jul 1991 which stayed the Mother’s action for
exclusive custody. The Father argued that Canada was the
Habitual Residence of the children under the Convention.
The Mother admitted in the Convention hearing that her
retention would be wrongful if in fact Canada was the
Habitual Residence (she was not represented in the
California action). The Father, in his argument, presented
United States Federal Case Law holding that the domicile of
a child was that of the father absent a court order and
therefore all absences from Canada would be considered
temporary in nature.
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This matter came on before Department 16 on Father’s
“Petition for Return of Children to Petitioner”, pursuant to
the Hague Convention and I.C.A.R.A. (42 U.S.C. sections
11601, et. seq.). The matter stood submitted in
approximately one hour, based upon the declarations filed
(subject to objections thereto by Petitioner and rulings
thereon by the court, infra. Neither side requested a
Statement of Decision/Findings pursuant to C.C.P. Section
632. Based upon the information present, the court finds
and orders that:
l
1. Petitioner’s objections to certain of Respondent’s
declarations or parts thereof, on hearsay, foundational and
other grounds as set forth fully in the record, are granted
in their entirety. All objections to declarations, or parts
thereof, are stricken and shall not be considered by this
court in making its determinations herein. The only
exception to this is Petitioner’s objection to Respondent’s
representations of the wishes of the children re: returning
to Canada. To the extent that her declarations refer to
direct statements by either of the children in this regard,
the court shall consider such statements by the children
(obviously considering the potential bias of the party
reporting such statements). As to Respondent’s opinions re:
this same issue, the objections are sustained and those
portions of the declarations are stricken.
2. As set forth in the U.C.C.J.A. declaration filed by
Petitioner in this matter, the two minor children who are
the subject of this Hague Convention petition (Lindsay, age
12 and Bradley, age 10) were born to the parties in British
Columbia. Both children resided with their parents in
British Columbia until the parties separated in August of
1984. Lindsay has lived in British Colombia approximately
75% of her life; Bradley has lived in British Columbia
approximately 70% of his life.
3. After separation (8/84) Respondent moved to the
United States and Petitioner remained in British Columbia.
4. On July 4, 1986, the parties entered into a
Separation Agreement (a written contract no approved by the
court, nor made a part of the dissolution proceeding in
Canada) which provided for joint custody and guardianship of
both children. This agreement further provided that the
children would reside with each parent in alternating years
(from 7/1/86 to 7/31/87 with the Respondent, the next year
with Petitioner and so forth).
5. This agreement was complied with by the parties to
date. By the terms of this agreement, the children are at
this time with Respondent in California, due to be returned
to Petitioner in Canada on 8/1/91.
6. On 6/10/91, Respondent filed with this court (action
No. D91-06080) an O.S.C. requesting custody of the children.
7. On 7/1/91, Petitioner filed this Hague Convention
action and docket D91-06080 was stayed.
8. There is little case law interpreting the Hague
Convention provisions re: international child abduction and
retention. Both parties have fully presented their
positions re: their own interpretation of the various
provisions thereof. All future references to the Hague
Convention or the “Convention” hereinafter ar references to
the provisions of the Hague Convention, as implemented by
the terms of the International Child Abduction Remedies Act
(ICARA), 42 U.S.C. sections 11601 et seq.
9. Based on the evidence presented by Petitioner, the
court finds that he has made a prima facie showing of
“wrongful retention” within Article 12 of the Convention
(see, however further discussion in paragraph 10, infra re:
“retention” in this case) in that he has proven by a
preponderance of the evidence that:
(a) Canada is the habitual residence of both children
immediately before the retention under Article 3, subsection
(a), and
(b) Petitioner has a right of custody of the children
within the meaning of Article 3, subdivision (a). Though
there was no custody order in Canada, merely a Separation
Agreement setting forth his right to joint custody, it is
not clear that within agreement had absolutely no legal
effect in Canada. Even if the court accepted Respondent’s
representations in this respect re: Canadian law, under
California law Petitioner clearly has a right to custody,
even in the absence of a court order or agreement with legal
effect (see Civil Code Section 197).
The burden of proof thus shifts to Respondent to prove the
applicability of an exception to the requirement under the
Hague Convention that he children be returned to Petitioner.
10. Article 12 of the Convention provides that where a
child has been wrongfully retained in terms of Article 3,
and “…at the date of the commencement of the proceedings
before the judicial…authority of the Contracting State
where the child is wrongfully retained, the authority
concerned shall order the return of the child forthwith.”
That provision goes on to provide that where, however, the
proceedings have been commenced after the expiration of the
period of one year referred to above, return shall be
ordered unless the court finds that “…the child is now
settled in its new environment.” This latter exception must
be proven by Respondent by a preponderance of the evidence.
This potential exception raises an interesting technical
issue with regard to the particular facts in the case before
the court. Of course, no case authority can be found
directly on point. The issue relates to the date of filing,
of both this Hague petition and of Respondent’s O.S.C. for
custody. She filed her O.S.C. before the children were due
to be returned to Canada by the terms of the Separation
Agreement (8/1/91). Petitioner argues that the children
have thus not been in California for a full year. However,
this is an argument that he is hard pressed to pursue to its
logical conclusion, as until the children are due to be
returned to Canada, there is not a “wrongful retention”.
Respondent, appearing in pro per at today’s hearing,
stipulated that there was a wrongful retention if the court
found Canada to be the habitual residence of the children.
This is contrary to the position taken in her responsive
pleadings on this issue, wherein she argued that there is no
“retention” whatsoever until 8/2/91. Of course the court
could conclude that both sides (note that Respondent was
previously represented by counsel here, is now represented
in Canada, is receiving advice from both, and appeared to be
a very intelligent an capable advocate during the hearing)
timed the filing of their respective cases before this court
purposely. That is, since Respondent was represented by
counsel at the time she filed the O.S.C., she may have
intentionally timed that filing so that she was not
“retaining” the children. Of course, even if that intent
existed in her or her counsel’s mind, it may have been from
a desire not to potentially violate the law and the previous
Separation Agreement. Similarly, a suspicious mind might
conclude that Petitioner filed his Hague Petition prior to
8/2/91 so that the provisions of the possible exception when
the child has been retained outside the habitual residence
country would not, arguably, apply. Of course, with the
timing of today’s hearing, if this court denied the Hague
Petition and allowed Petitioner 15 days to file responsive
pleadings to Respondent’s O.S.C. (as he requested), the
hearing on her O.S.C. would have to be beyond 8/2/91, of
necessity.
Because of all the foregoing factors, the court is going
to consider this a matter properly under the Hague
Convention provisions, despite the technical argument that
there has not yet been a retention. Similarly, the court is
going to treat this matter, for purposes of evaluating the
one year, “settling-in” exception referred to above, as
though the children have in fact been here for a year. Even
so, the court does not find that Respondent has met her
burden of proving that the children have in fact
“settled-in” within the meaning of Article 12. The children
are no more “settled-in” in California than they are in
Canada. The court does not find that the degree of
“settling-in” that has occurred would warrant not ordering
the return of the children to Canada.
12. The only other potentially applicable exceptions
are contained in Article 13, which provides at subdivision
(b) that the children do not have to be returned (at the
discretion of the court) if there is a grave risk that the
child’s return would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation. This exception must be proven by
clear and convincing evidence and Respondent has not met her
burden. There is no evidence of psychological threat to the
children, nor of psychological danger (but for the potential
if the court were to order one child’s return but not the
other’s). Thee is no evidence of an intolerable situation
of any sort if the children are returned to Petitioner’s
custody in Canada. The circumstances cited by Respondent
simply do no rise to the level of risk or circumstances
contemplated by the hague Convention. Whether the boy or
girl will have to share a bedroom and whether other people
must go through that room to reach other parts of the home
are issues which can be adequately addressed in the custody
proceeding, wherever that may take place. The children are
not at risk in the meantime.
The last possible exception, which need only be shown by
a preponderance of the evidence, is also contained in
Article 13, that being whether the children object to being
returned and whether they are of sufficient maturity and age
for the court to take account of their views. There is
little, if any, evidence that Bradley indeed does not wish
to return to his father (at least if his sister also goes).
There is evidence that Lindsay does object to returning.
However, he is insufficient evidence that either the 10 year
old boy or the 12 year old girl, are of sufficient age and
maturity for the court to take account of their views. No
expert evidence was presented on this point by Mother, even
though there was sufficient time to obtain the same. Her
representation that she could not get an appointment with
such an expert until day before yesterday does not explain
why she did not do so and then call the person as a witness
today. Age alone is not a sufficient means for making this
determination; if it were, the drafters of the language in
Article 13 would not have added the conjunctive requirement
of “degree of maturity”. At some age level, the court could
possibly make such a determination, based solely upon age
(i.e., if the child were 15 and a half years old). However,
even those circumstances, evidence of lack of ordinary
maturity could negate such a finding. At the ages of 10 and
12, the court simply cannot assume the children are of
sufficient maturity to give credence to their desires in
this regard. Insufficient additional evidence of their
maturity was presented.
13. The children are therefore ordered to be returned
to Canada pursuant to Article 12 of the Convention. The
court is cognizant that this Separation Agreement would not
call for their return until 8/1/91. Respondent put into
motion this proceeding, by filing her O.S.C. to change the
arrangements set forth in the Separation Agreement. The
Hague Convention makes no provision for delay of return.
However, given the unique factual scenario of this case
(wherein the children are not truly “wrongfully retained”
until 8/2/91), and considering the best interests of the
children, the court shall order that they be returned on
8/1/91. To suddenly take the children from their Mother
(who has done no wrong save to express through her O.S.C.
and her statements in court today her intent to wrongfully
retain the children after 8/1/91), cannot be found to
benefit the children in any way. Such a sudden disruption
of their lives would undoubtedly do them some emotional
harm. Furthermore, the additional period that the children
will remain in California (from today’s date of 7/17/91
until the otherwise agreed-upon return date of 8/2/91) is
relatively short.
14. For the same reasons stated above (paragraph 13),
the court shall not award attorney fees to Petitioner. This
is not the usual case of a parent who literally “steals” a
child away from the other parent or retains the child beyond
a scheduled visitation. This is the case of a Mother who
tried to handle this matter through legal channels, by
filing her O.S.C. re: Custody before the date the children
were to be returned to Canada. The court finds that it
would inequitable to punish her further through the awarding
of fees/costs.
15. For the information of the parties, the court did
not find it necessary to contact either the Central
Authority in Canada nor Judge Oliver.
16. Counsel for Petitioner to prepare the formal order.