USA – CA – STORVIK – 1995 (Return ordered) STORVIK v STORVIK. The father came to the United States as a visiting scholar. His wife and child accompanied him. The mother came on a J-2 visa. The mother retains the child in the U.S. claiming the habitual residence has shifted from Norway to the U.S. The court ruled that since the stay was temporary, as indicated by the J-2 visa, the habitual residence did not change from Norway. The court orders the child returned to Norway. (Mr. Hilton for the father)
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Storvik v Storvik (Calif. Superior Court 1995)Santa Clara County No. FL 047219
1 International Abduction [USA 1995]
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Baard E. Storvik and Pamela Storvik
Superior Court of California
County of Santa Clara No FL 047219
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ARGUMENT
MEMORANDUM OF LAW RE: HABITUAL RESIDENCE
23 May 1995
1.0 FACTS
1.1 There is one minor child Christopher A. Storvik, born
in Norway on 18 Feb 1989. To date Christopher has
spent approximately 86% of his life in Norway and 14%
of his life in California.
1.2 Baard E. Storvik came to California as a Visiting
Scholar at Stanford University on a J-1 Visa. Pamela
Storvik and the minor child accompanied him for this
temporary stay on a J-2 Visa.
1.3 The parties separated on or about 11 Jan 1995.
Pamela Storvik and their son remained in the place
that the family had rented when they came to
California for the 1994-1995 Academic Year. Baard E.
Storvik moved to a nearby address in Palo Alto,
California.
1.4 On 13 Mar 1995 Pamela Storvik brought an action for
dissolution and alleged that Baard E. Storvik was not
the father of Christopher.
2.0 THE UNILATERAL INTENT OF A PARENT CANNOT CHANGE THE
HABITUAL RESIDENCE OF A CHILD.
2.1 Pamela Storvik argues that, since she intended to
live in California on a permanent basis, the
“Habitual Residence” of Christopher has shifted from
Norway to California.
2.2 Pamela Storvik is in the United States on a J-2 Visa
which expires on 31 Jul 1995. The terms of a such a
visa are set out in 8 U.S.C. 1101(a)(15)(J) which
holds that it is issued to “. . . an alien having a
residence in a foreign country which he has no
intention of abandoning . . .”
2.3 The fact that Pamela Storvik may have intended to
remain in California indefinitely does not alter that
fact that her present status by which they lawfully
reside in California is of a temporary nature.
Sukati v Com. Dept. of Public Welfare (Pa.Cmwlth.
1979) 402 A.2d 325, 326 – 327.
2.4 Baard E. Storvik is a graduate student and an
instructor at the University of Oslo in Norway. His
plans from the outset of his temporary stay in
California were to return to Norway about the first
week of Jun 1995 to resume his duties as an
instructor.
2.5 The unilateral decision of Pamela Storvik to remain
in California with Christopher cannot, as a matter of
law, change the “Habitual Residence” of Christopher
from Norway to California.
2.6 In the case of Application of Ponath (D.Utah 1993)
829 F.Supp. 363 a family left Utah for a “temporary”
stay in the Federal Republic of Germany (FRG). After
the family had arrived in the FRG the mother and
child were prevented from leaving the FRG by the
father and his family. After being in the FRG for
about 10 months, the same period of time that
Christopher has been temporarily in California, the
mother and the child left the FRG and returned to
their home in Utah. The father in the FRG made an
application under The Convention on the Civil Aspects
of International Child Abduction, done at the Hague
on 25 Oct 1980 [The Convention] and filed an action
in the Federal Court in Utah. The Federal Court, in
denying his petition, stated the following:
“3. For purposes of 42 U.S.C. Sec 11603(e)(1)(A) and
Article 3 of the Hague Convention, the habitual
residence of the minor child was in Carbon County,
Utah. Between petitioner and respondent, the more
creditable testimony in the court’s view, is that of
respondent who testified that she, and the minor
child, were detained in Germany against her desires
by means of verbal, emotional and physical abuse. The
court cannot conclude under such circumstances that
respondent and the minor child were habitually
resident in Germany within the meaning of the Hague
Convention. Although it is the habitual residence of
the child that must be determined, the desires and
actions of the parents cannot be ignored by the court
in making that determination when the child was at
the time of removal or retention an infant. The
concept of habitual residence must, in the Court’s
opinion, entail some element of voluntariness and
purposeful design. Indeed, this notion has been
characterized in other cases in terms of ‘settled
purpose’.
The governing principle for ascertaining the elements
of habitual residence is contained in the speech of
Lord Scarman in R. v. Barnet London Borough Council
ex parte Shah [1983] 2 A.C. 309, where he says, at
page 314: “and there 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.
In re Bates No. CA 122.89 at 10, High Court of
Justice, Fam. Div’n Ct. Royal Court of Justice,
United Kingdom (1989). In this case, what began as a
voluntary visit to petitioner’s family in Germany,
albeit an extended visit, might be viewed by the
court as a change of habitual residence of the minor
child but for respondent’s intent and desire to
return to the United States with the minor child and
petitioner’s willful obstruction of that purpose.
Petitioner’s coercion of respondent by means of
verbal, emotional and physical abuse removed any
element of choice and settled purpose which earlier
may have been present in the family’s decision to
visit Germany. The aim of the Hague Convention is to
prevent one parent from obtaining an advantage over
the other in any future custody dispute. Friedrich v
Friedrich (6th Cir. 1993) 983 F.2d 1396, 1402. For
the court to grant petitioner’s motion, and thereby
sanction his behavior in forcing continued residence
in Germany upon respondent, and through her, the
minor child, would be to thwart a principle purpose
of the Hague Convention. In the court’s view, coerced
residence is not habitual residence within the
meaning of the Hague Convention. As noted earlier,
the concept of habitual residence, for purposes of
the Hague Convention, is viewed to be fluid and fact
based. Given the specific facts of this case, the
court can draw no conclusion other than that the
habitual residence of the child was in Carbon County,
Utah. Accordingly, pursuant to 42 U.S.C. Sec.
11603(e)(1), the petitioner has failed to show by a
preponderance of the evidence that the minor child
has been wrongfully removed or retained within the
meaning of the Hague Convention.”
2.6.1 In Ponath the court held that there must be an
element of voluntariness and settled purpose in
the establishing of a new “Habitual Residence” of
the child and that the unilateral act of a parent
cannot be used to change the child’s “Habitual
Residence”.
2.6.2 In this case Pamela Storvik has unilaterally
decided that Baard E. Storvik is not the father
of their child, that she is to be the custodial
parent and that the child is to live with her
where ever that may be. This view is contra to
the intent of The Convention and to permit her
view to prevail would make The Convention a dead
letter.
3.0 CONCLUSIONS
3.1 The “Habitual Residence” of Christopher has been and
continues to be Norway.
3.2 The objective intent of the parties when they came to
California was that it was a temporary stay that
would end about the first week of Jun 1995.
3.3 The unilateral acts of Pamela Storvik cannot be used
to change the “Habitual Residence” of Christopher.
3.4 The expressed intent of Pamela Storvik to remain in
California with Christopher is a “Wrongful Retention”
within the meaning of Art. 3 of The Convention.
4.0 SUBMISSION
4.1 Respectfully submitted on 23 May 1995.
/s/ Wm. M. Hilton, CFLS
END OF ARGUMENT
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RESULTING ORDER
ORDER AFTER TELEPHONE HEARING
26 Jul 1995
1.0 STATUS
1.1 This matter was continued from 21 Jul 1995.
1.2 This matter was heard by telephone on 26 Jul 1995.
1.3 Baard E. Storvik was represented by William M.
HILTON, CFLS.
1.4 Pamela Storvik was represented by Blair R. Smith,
Esq.
1.5 The matter was submitted on its pleadings and by
argument of counsel.
2.0 FINDINGS
2.1 Based upon the record before the court, the court
finds that Norway is the “Habitual Residences’ of the
minor child within the Meaning of Art. 3 of The
Convention on the Civil Aspects of International
Child Abduction, done at the Hague on 20 Oct 1980
[The Convention].
2.2 The court has not determined whether or not there has
been a “Wrongful Retention” within the meaning of
Art. 3 of The Convention.
2.3 The court has not determined whether or not Pamela
Storvik’s exception to the mandatory return under
Art. 12 of Thg Convention is well founded within the
meaning of Art. 13(b) of The Convention.
3.0 JURISDICTION
3.1 This court retains provisional jurisdiction to
determine if it has jurisdiction over this matter.
4.0 CHILD’S TRAVEL TO NORWAY
4.1 Pending further hearing on this matter on 29 Aug 1995
at 1:30 p.m., the minor child shall be taken to
Norway by Pamela Storvik or an agreed upon alternate,
on 12 Aug 1995.
4.2 Pending further order of this court, the minor child
shall be in the interim care of Baard E Storvik in
Norway for the period from 12 Aug 1995 through 29 Aug
1995.
4.3 The minor child shall travel from San Francisco
Interna- tional Airport to Helsinki, Finland where he
will be met by Baard E Storvik who shall travel to
Norway with the minor child.
4.4 The parents are to share equally the costs of
transporting the minor child to Norway.
4.5 Travel documents for Pamela Storvik and/or the minor
child may be obtained from the clerk of the court by
showing the clerk a ticket for herself and the minor
to Helsinki, Finland.
5.0 FURTHER HEARING
5.1 All matters not decided by this court are continued
to 1:30 p.m. on 29 Aug 1995.
6.0 INTERCOURT COMMUNICATION
6.1 Counsel for Baard E. Storvik shall proivde this court
wiht a proposed draft of a letter from this court to
the Central Authority of Norway for the purpose of
having this court communicate with the appropriate
court in Norway that would or could have jurisdictin
over this matter.
7.0 ORDER
7.1 The court has read the above, finds that it is in
accord with the pronouncement of the court on 26 Jul
1995 and heereby ORDERS that all parties are to carry
out each and every one of its terms.
/s/ Hon. Jeremy D. Fogel
Judge of the Superior Court
State of California