Application of Robinson (D.Co. 1997)983 Fed.Supp. 1339
14 International Abduction [USA 1997]
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In re the Application of:
Petitioner: Philip Edward Robinson
and
Respondent: Kimberly Ann Robinson
United States District Court, D. Colorado
07 Nov 1997
No 97-WM-994
<* page 1341>
MEMORANDUM OPINION AND ORDER
MILLER, District Judge.
001 Philip Robinson petitioned this court for the return
of his minor children, Benjamin and Stephanie, to Great
Britain pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction, December 23, 1981,
51 Fed.Reg. 10,494, 10,498 (1986) [hereinafter Convention],
as implemented in the United States by the International
Child Abduction Remedies Act (“ICARA”), 42 U.S.C.
11601-11610 (1994). The children’s mother, Respondent
Kimberly Robinson, removed them from Great Britain and they
currently reside with her in Colorado. The object of the
Convention is to protect children from their wrongful
removal from one country to another and to establish
procedures for their prompt return to the “state of their
habitual residence.” Convention, Preamble, 51 Fed.Reg. at
10,498. Congress agreed, determining that wrongful removal
was harmful to the children’s well-being and that they
should “be promptly returned unless one of the narrow
exceptions set forth in the Convention applies.” 42 U.S.C.
11601. As presented in this case, I must first determine the
threshold question of whether the children were wrongfully
removed and, if so, whether any “narrow exception” precludes
an order of their prompt return.
Factual Background
002 In 1979 Petitioner and Respondent were married in
Aspen, Colorado, and moved to England soon thereafter where
both children were born, Benjamin on November 6, 1986, and
Stephanie on August 28, 1991. The family lived together in
England until June 1995, when Mrs. Robinson and the children
moved out of the family residence.
003 While separated, Mrs. Robinson applied to a local
court for a restraining order against Mr. Robinson. The
parties entered into a court approved “undertaking,” in
which Mr. Robinson agreed to vacate the home pending
resolution of the issues between them. Although the
undertaking did not address custody of the children, they
remained with Mrs. Robinson. At the end of July 1995, and
without the consent of Mr. Robinson, Mrs. Robinson brought
the children to Aspen, Colorado, where they moved in with
her father and step-mother.
004 That fall, Benjamin was enrolled in the third grade at
Aspen Elementary, where Mrs. Robinson worked in the
lunchroom part-time, and Stephanie began pre-school. In
January 1996 Mrs. Robinson and the children moved into their
own apartment in Glenwood Springs, approximately 42 miles
from Aspen. Despite the move, Mrs. Robinson continued to
work and Benjamin finished the school year at Aspen
Elementary. With the help of public assistance programs,
Mrs. Robinson was eventually able to quit her job and begin
college-level coursework emphasizing computers.
005 Since moving to Colorado, the children have
participated in several extra-curricular activities.
Benjamin started to play hockey, joined the Cub Scouts and
Kampus Club, plays soccer, and briefly participated in the
Aspen “Buddy” program. Stephanie belongs to the Brownies and
regularly attends her brother’s hockey games. Mrs. Robinson
and the children frequently visit, or are visited by, her
extended family and now attend church together. They have
also received psychological counseling.
006 During this time, Mr. Robinson visited his family in
Aspen in September 1995, but was unable to resolve matters,
with Mrs. Robinson. He next visited Colorado from July
through September 1996. Since his return to England, he has
exchanged some correspondence and maintained occasional
phone contact with the children, but has not seen them.
Removal or Retention
007 Petitioner must first prove by a preponderance of
evidence that Respondent’s removal was wrongful. 42 U.S.C.
11603(e)(1)(A).
008 A removal is wrongful when (1) it violates the custody
rights of the Petitioner under the country’s law where the
child “was habitually resident immediately before the
removal”; and (2) Petitioner actually exercised those
custodial rights (or would have but for the removal).
Convention, art. 3, 51 Fed.Reg. at 10,498.
<* page 1342>
009 There is no dispute but that the “habitual residence”
at the time of removal was the United Kingdom. Hence,
English law determines whether Petitioner had custody
rights.
010 United Kingdom’s law provides that, where, as here,
the child’s father and mother were married at the time of
birth, each has parental responsibility for the child “‘
Children Act 1989, ch. 41, Part I, 2(l). (Exhibit P-3).
“Parental responsibility’ means all the rights, duties,
powers, responsibilities and authority which by law a parent
of a child has in relation to the child and his property.”
Id. 3(1). Thus, each parent has full custody rights unless
altered by court order. Further, under the United Kingdom’s
Child Abduction Act 1984, it is a criminal offense for a
parent to take a child out of the United Kingdom for more
than one month without the consent of the other parent,
again absent court order in favor of the first parent. Child
Abduction Act 1984, ch. 37, Part 1, 1(1) (Exhibit P-2).
Accordingly, both parents have on-going de jure custody of
the child until a court of competent jurisdiction orders
otherwise. See Aff. of Petitioner’s English Solicitor
(Exhibit P-11); Friedrich v. Friedrich, 78 F.3d 1060, 1064
(6th Cir.1996).
011 Nevertheless, Respondent argues that Petitioner’s
voluntary, Court approved “undertaking” not to communicate
with the Respondent or return to the matrimonial home
without her consent meant that Petitioner no longer had
custody rights. Such an argument cannot stand the test of
factual and legal scrutiny.
012 Supposedly as the result of alleged events, vigorously
disputed by Petitioner, Respondent removed the children from
the matrimonial home and then commenced injunction
proceedings against Petitioner in the local county court in
Great Britain. After hearing some of the evidence, the
district judge suggested the matter be handled with an
“undertaking” instead of a full hearing with a resulting
formal order. No admissions of fact were made (Petitioner
denied all allegations made by Respondent) and the resulting
agreement or “undertaking” is in lieu of a court order. Aff.
of Pet’r (Exhibit P-11). Indeed, a review of the
“undertaking,” (Exhibit R-1), discloses no agreement or
mention of custody. Accordingly, I conclude that
Respondent’s argument is without merit as no court order
exists to eliminate Petitioner’s de jure custody rights.
013 Respondent goes even further, essentially arguing
that, assuming Petitioner had custody rights, he failed to
exercise them at the time of their removal as is otherwise
required by Article 3 of the Convention. Given that
Respondent used the threat of judicial authority to obtain
the Petitioner’s agreement to keep from the matrimonial
home, converting his absence into a culpable failure to
exercise custody rights must be summarily rejected. FN01
014 Accordingly, I conclude that the Respondent’s removal
of the parties children from the United Kingdom to Colorado
was wrongful under the Convention and ICARA.
Exceptions
015 Given the wrongful removal, the children should be
returned “forthwith” (Convention, art. 12, 51 Fed.Reg. at
10,499) unless the Respondent shows, by the appropriate
burden of proof, one of the following exceptions:
1. This proceeding was commenced more than one year after
the removal and the children are “now settled in [their] new
environment”, Id.;
2. The Petitioner did not exercise custody lights or
consented to or acquiesced in the removal, Id. art. 13(a),
51 Fed.Reg. at 10,499;
3. The children’s return would expose them to grave risk of
physical or psychological harm, Id, art. 13(b), 51 Fed.Reg.
at 10,499;
4. The children object to return and have attained the age
and degree of maturity so that it is appropriate to take
into account their views, Id.; and
5. Return of the children would not be permitted by the
principles of the United States concerning protection of
human rights <* page 1343> and fundamental freedoms, Id.
art. 20, 51 Fed.Reg. at 10,500.
016 At hearing, Respondent did not assert that the
children’s return would be at grave risk to them or
violative of United States’ principles of human rights and
fundamental freedoms. Although Respondent made some argument
that Petitioner was not exercising his custody rights or had
acquiesced in the removal, an argument I reject, the real
emphasis of her case was two pronged: that the children
objected to being returned and, with more than one year
having passed, they are now settled in their new
environment. The Respondent has a burden of proving those
exceptions by a preponderance of the evidence. 42 U.S.C.
11603(e)(2)(B).
Consideration of Children’s Objections
017 Turning first to the children’s objections, I was only
presented evidence of what were really Benjamin’s
preferences. Benjamin, a month or two shy of his eleventh
birthday, spoke with me in chambers outside the presence of
counsel and his family. That experience only serves to
underscore the wrenching pain of custody disputes and causes
me to question the wisdom of allowing this difficult issue
to be decided upon the wishes of a child — at least one
this young.
018 However, the language of the Convention is plain. I
have authority to not order the return if the child objects
so long as his or her age and maturity are such that it is
appropriate to take into account the child’s views. Indeed,
the commentary of Elisa Perez-Vera, official reporter of the
session at which the Convention was adopted, notes that the
child’s view “may be conclusive.” Elisa Perez-Vera,
Explanatory Report by Elisa Perez-Vera, in 3 Actes et
documents de la Quatorzieme session 426, 433 (1982)
Hereinafter Perez-Vera Report]. Perez-Vera, apparently
reflecting the intent of the contracting parties to the
Convention, nevertheless notes that reliance on the child’s
view could be problematic. Indeed, he observed that “this
provision could prove dangerous” in its application as the
young people may “suffer serious psychological harm if they
think they are being forced to choose between two parents.”
Id.
019 Similarly, the Legal Analysis of the Convention by the
Department of State emphasized that it was important that
use of the child’s objection was discretionary “because of
the potential for brain washing of the child by the alleged
abductor. A child’s objection to being returned may be
accorded little if any weight if the court believes the
child’s preference is the product of the abductor parent’s
undue influence over the child.” Public Notice 957, Hague
International Child Abduction Convention; Text and Legal
Analysis by the Department of State, 51 Fed.Reg. 10493,
10510 (1986) [hereinafter Public Notice 957].
020 This case bears out the legitimacy of those concerns.
A reading of the record might justify a conclusion that an
obviously intelligent young man of still tender age has a
maturity which justifies giving weight to his views. But the
dry record does not disclose tears coursing down the ruddy
cheeks of a brave boy who was put in a difficult, if not
impossible, position.
021 Reliance upon the objection makes some sense if the
child is approaching 16 years of age-when the Convention is
no longer applicable. Convention, art. 4, 51 Fed. Reg. at
10,498. FM02 On the other hand, a 10-year old with
maturity beyond his chronological age is still very much a
child. Indeed, other courts have simply declared that the
objection of one so young should not be considered. Tahan v.
Duquette, 259 N.J.Super. 328, 335, 613 A.2d, 486, 490
(1992).
022 However, I need not decide the issue on that point.
Not unrelated is whether the child’s objection “is a product
of the abductor parent’s undue influence over the child.”
Public Notice 957, 51 Fed.Reg. at 10,510; See Sheikh v.
Cahill, 145 Misc.2d 171, 546 N.Y.S.2d 517, 521-22 (1989).
1
023 It is likely that the abducting parent desperately
desires to keep his or her child from leaving the country.
It is unrealistic, indeed inhuman, to expect a caring parent
not to influence the child’s preference. Ac- <* page 1344>
cepting that there will be some influence, the question
really becomes when is it undue? I am sure the line is not
always bright, but I am equally certain that it has been
crossed in this case. The best evidence of that fact is
Exhibit 24, a letter from the youngster to me which was
suggested by the counselor, Karen Smith. Although initially
portrayed as a way to express himself, the boy acknowledged
that the counselor gave him “a few ideas.” When asked what
those were, he stated “just that I like it here and I’m
settled in, yeah.” (Emphasis added). His use of the term
“settled” bespeaks influence. It is the most significant
legal term of this dispute, yet, as discussed infra, it’s of
uncertain meaning. FN03 Regardless, it is not the language
of a ten year old. I cannot escape the conclusion that, with
the word being the keystone to Respondent’s defense, the
youngster was unduly influenced or pressured by the
counselor and the Respondent (described by the counselor as
a strong, positive influence).
024 Accordingly, I will not give the child’s objection any
weight as a separate defense to the Petition. I certainly
sympathize with his difficult position. He doesn’t want to
leave his mother, but he also spoke with some fondness of
friends in England, playing soccer and spending time with
his father. Forcing a child to choose between parents may be
the ultimate Hobson’s choice, particularly when massive
geographic or cultural differences separate the parents. I
decline to impose that responsibility on this youngster.
Are the Children Settled in a New Environment?
025 The only remaining defense to an order for return is
whether the children are “now settled in [their] new
environment,” i.e. Glenwood Springs, Colorado. Convention,
art. 12, 51 Fed.Reg. at 10,499. This exception is applicable
only if more than one year has elapsed from the wrongful
removal before the date of commencement of these
proceedings. Id “Commencement of the proceedings” is defined
as the initiation of these judicial proceedings, 42 U.S.C.
11603(f)(3), which was May 14, 1997. The wrongful removal
occurred in July, 1995, almost two years earlier. Without
more, FN04 therefore, the additional defense of “settled”
is available to Respondent.
026 When are the children “settled”? Unfortunately, that
term is not defined in the Convention or ICARA. Perez-Vera
provides no real assistance other than to make clear that
the issue is not a custody determination in the traditional
sense. FN05 The State Department’s legal analysis gives a
hint of substance by providing that the burden to resist an
Order of Return because the child is allegedly settled in
the new environment should require “nothing less than
substantial evidence of the child’s significant connections
to the new country . . . ” Public Notice 957, 51 Fed.Reg.
at 10,509.
026 Nor is “settled” a legal term of art in my experience.
It is not used in the Uniform Dissolution of Marriage Act
(Colo.Rev.Stat. 14-10-101 to 133 (1997)). The Uniform
Child Custody Jurisdiction Act, (Colo.Rev. Stat.
14-13-101 to 126 (1997)), which likewise makes no reference
to the term “settled,” does have the object of having
custody matters decided in the state with the “closest
connection and where significant evidence concerning [the
child’s] care, protection, training and personal
relationships is most readily available 14-13-102(c).
Interestingly, the State Department’s reference to
“significant connections” almost parallels the statutory
language and, hence, at least provides a suggestion of
meaning.
<* page 1345>
027 To fall back on general definitions is of little help
other than as a post-decision rationalization. FN06
Actually, Black’s Law Dictionary concedes the lack of
precision and provides sensible guidance: “Settled” is [a]
word of equivocal meaning; meaning different things in
different connections, and the particular sense in which it
is used may be explained by the context or the
circumstances.” BLACK’s LAW DICTIONARY 1372 (6th ed.1990).
028 Of course, the Convention and its purposes ultimately
provide the context for meaning in this case. Without more,
its object is the prompt return of wrongfully removed
children. However, there are exceptions and the one
relevant to the decision here is premised on the passage of
time, namely at least one year. Although there is nothing
magical about one year, FN07 its basic purpose is designed
to serve the best interests of the child which remain “of
paramount importance in matters relating to their custody .
. .” Convention, Preamble, 51 Fed.Reg. at 10,498. It would
seem that, just as it is harmful to wrongfully remove the
children from their habitual residence, it may also be
harmful to remove them again if they have become connected
to or “settled” in the new environment. However, it is not
the mere passage of time which determines the issue or the
Convention would have so provided. FN08 Rather, there
must also be evidence that the children are in fact settled
in or connected to the new environment so that, at least
inferentially, return would be disruptive with likely
harmful effects. The Department of State says there must be
“substantial evidence of the child’s significant
connections.” Public Notice 957, 51 Fed.Reg. at 10,509.
029 Has the respondent provided such evidence here?
Existing authorities do give us some handholds on the way to
a decision consistent with the intended purpose of the
Convention.
030 The first factor is simply the passage of time. If the
action to return is promptly commenced, it is generally
granted unless the abductor proves, by clear and convincing
evidence, that return would involve grave risk of harm to
the child or violate fundamental principles of the United
States relating to human rights protection. Convention,
arts. 13(b), 20; 42 U.S.C. 11603(e)(2)(A). FN09 On the
other hand, if at least one year has passed then the
abductor’s task is much easier as he or she need only prove
the settled status by a preponderance of the evidence. FN10
That is only consistent with common sense: Prompt action for
return seeks to remedy the harm of the original wrongful
removal. As time passes a child becomes increasingly
settled or connected to its new environment and delayed
return may itself become the second harmful disruption.
031 A second important factor is the age of the children.
Benjamin and Stephanie are old enough to allow meaningful
connections to the new environment to evolve. On the other
hand, children of a very young age are not. See David S. v.
Zamira S., 151 Misc.2d 630, 636, 574 N.Y.S.2d 429, 4&3
(1991) (holding that children 3 and 1 1/2 “are not yet
involved in school, extracurricular, community, religious or
social activities which children <* page 1346> of an older
age would be. The children have not yet formed meaningful
friendships.”).
032 With those factors in mind, there is significant,
essentially undisputed, evidence that the children are
settled in their new environment: they have lived in the
same area for 22 months prior to commencement of action (5
months in Aspen with Respondent’s father a nd then the
balance in nearby Glenwood Springs); as exemplified by the
testimony of Respondent’s father and brother, the children
have had active involvement with the Respondent’s extended
family; the children are doing well in school; and they are
active participants in extracurricular matters such as Cub
Scouts, Kampus Club, hockey and soccer. There is also
evidence that, as healthy children usually do, they have
made friends in school and elsewhere. In short, they have
adjusted well to their new community.” FN11
033 On the basis of this and other evidence, I conclude
that the Respondent has established by a preponderance of
the evidence that the children are settled in their new
environment. See Wojcik; 959 F.Supp. at 420 (children are
settled where they have lived in United States for 18
months, living first with mother’s brother and then in a
house on their own; both children attend school and church;
and they have friends and relatives in the area).
034 It bears emphasis that this is not a determination of
which is the best venue for their residence. The young man
spoke of school, soccer and friends in the United Kingdom.
Indeed, his description of a demanding school in England
could well explain why he is a good student here (where, he
states, school is easier because it has lower expectations
of him). Nevertheless, the Convention has essentially
decided that, once settled in the new environment, to again
uproot the children would be harmful. In that sense the
ultimate best interests of the children are served by
denying the petition. That is the best I can do under the
Convention. Unfortunately, that does not ease the pain of
loss or frustration of the caring parent. FN12
Conclusion
035 For the foregoing reasons, the father’s Petition for
Return of the Children is denied and this matter is
dismissed with prejudice. Each party shall pay his or her
own costs and attorney fees.
—————————-
Notes by William M. Hilton
1. There is some argument that if there is a finding that
the child is “well settled” the court does not have
the discretion to return the child to his/her habitual
residence. See State Central Authority (Smith) and
Ayob (Australia 1997), in Hilton House as
Smith_and_Ayob_aus.txt.
If this argument is not accepted then an Art. 12
finding of “well settled” changes the return from
mandatory to discretionary.
When ever this is a finding that the return is
discretionary, one should argue that, notwithstanding
the finding, the Habitual Residence is the more
convenient forum. See, for example, the language in
the UCCJA at 9 ULA 7.
2. While I know of no direct case on tolling while
negotiating, it can be inferred from the cases that
hold negotiations do not acquiescence make. See In re
H and Others (Minors) (UK 1997), in Hilton House as
Inreh_and_others_uk.txt. There the House of Lords
held that parties may negotiate for return without
this being held acquiescence. This should be the rule
for the one year period as well.
3. Note the references to the UCCJA. Since there are
many similarities, one should review the case law
under the UCCJA when handling a Hague case.
Moreover one can take advantage of 9 ULA 15 and 9 ULA
23 if one has an order from a foreign court that was
made consistently with the UCCJA. Indeed, it can be
stated that if one does have such an order that it
should be the first matter presented to the court in
the requested state for at least the following
reasons:
a) Virtually none of the defenses under The
Convention apply. In fact I have enforced an order
from Argentina in a case where the child was in
California for more than five (5) years.
b) If you are not successful under the UCCJA, one can
always turn to The Convention, thus giving you at
least two bites at the apple. See Arts. 18, 29 and 42
U.S.C. 11603(h). See also the article entitled The
Non-Exclusivity of The Convention on the Civil Aspects
of International Child Abduction; Published in
American Journal of Family Law, Vol. 9, No. 2, Summer
1995; 9 Am.J.Fam.L. 69 (1995). This may be found in
Hilton House at NONEXCLU.ART.
For purely psychological reasons one should present
the UCCJA argument before the Hague Argument.
——————–
1. I agree with the Court in Friedrich v. Friedrich that
the court should be wary of analyzing whether a parent
has exercised his or her custody rights as it indeed
becomes “dangerously close to forbidden territory: the
merits of the custody dispute” 78 F.3d at 1065.
2. Perez-Vera opined that “it would be very difficult to
accept that a child of, for example, 15 years of age,
should be returned against its will. Perez-Vera Report
at 433.
3. When asked to define “settled,” the boy stated “Well, I
like staying put here.” That tends to confirm that he
knew it was an important legal term to the Court and
the parties.
4. Petitioner does argue that there should be some sort of
tolling of the one year, equitable or otherwise, while
negotiations for voluntary return of the children were
being conducted. No authority is cited for that
proposition and there is nothing in the record to
justify a reliance for delay in filing.
5. Perez-Vera notes that the Convention avoided the
potential pitfall of having subjective value judgments
made on the “best interests of the child.” Perez-Vera
Report at 431. The Convention purposes are served when
a return is ordered or when it is determined that the
child is settled in the new environment. After that
determination has been made then there may be “an
examination of the merits of the custody rights …
which is outside the scope of the Convention.” Id. at
458.
6. See WEBSTER’s ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE
ENGLISH LANGUAGE, 1306 (1989 EDITION) which contains 30
different definitions including 11 to cause to take up
residence” and “to take up residence in a new country
or place,” both of which justify a finding for the
Respondent.
7. Perez-Vera discusses the importance of the role of a
specific time limit and how, although the one year may
be arbitrary, it serves an important watershed
separating the required return of the child from
allowing consideration of its best interests after it
has been settled in a new environment. Perez-Vera
Report at 458-59.
8. To simply provide some sort of rule, such as a
presumption or otherwise, based solely on the passage
of time would invite the person who wrongfully removed
the child to hide out or avoid service of process.
9. This assumes that other possible defenses under Article
13 (failure to exercise custody rights or the child’s
objection) are not at issue.
10. Certainly, passage of time should not give advantage to
the abductor who conceals the child or seeks to avoid
process but that is not the case here. The
uncontroverted testimony shows the Petitioner always
knew the location of the children and, in fact, visited
them in Colorado. Accordingly, there is no basis for
some sort of equitable tolling to preclude the
application of Article 12’s terms. See Wojcik v.
Wojcik, 959 F.Supp. 413, 420 (E.D.Mich.1997).
11. Respondent also presented the testimony of Karen Smith,
their professional counselor, that the children were
well adjusted. This appears to have been a professional
judgment rendered in the context of a custody
determination under Colo.Rev.Stat. 14-10-124(1.5)(d)
which requires the court to consider “the child’s
adjustment to his home, school and community” when
determining the best interests of the child in a
custody dispute. Such professional judgment is normally
entitled to some weight. However, because her
objectivity was impaired by her ultimate advocacy, I
gave her opinion little weight.
12. The Petitioner’s own words express his pain better than
the Court could ever suggest: “I am a tired, beaten
father. I have seen my children for six hours in the
last two years. I burn in agony, adrift in space
screaming in total silence with no one listening … I
feel as though Mother wants me to forget my only son
and daughter as if they are not important to anyone but
her, at the same time as holding the emotional gun to
my head 6,000 miles away … I have no brothers or
sisters and now I have had my children taken away from
me.” Aff. of Pet’r 16.