USA – CO – COLLOPY – 1991 (Return Denied) COLLOPY v CHRISTODOULOU. The father seeks return of the child to the United Kingdom. Even though the court determined the retention of the child in the USA was wrongful, the court ruled that the child has settled in her new environment.
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DISTRICT COURT, COUNTY OF ADAMS, STATE OF COLORADO
Case No. 90 DR 1138, Division B
IN RE THE MARRIAGE OF:
JOAN COLLOPY, Petitioner,
and
TITUS GEORGE CHRISTODOULOU, Respondent.
FINDINGS OF FACT AND ORDER
This matter having come before this Court for hearing on the
Respondent’s Motion for Return of Child Pursuant to the Hague
Convention and to Quash Service of Process and the Court having
received the Briefs of the parties and having heard the testimony
of the Petitioner and reviewed the Affidavit of the Petitioner and
the legal argument of the parties and being fully advised in the
premises does enter the following findings of fact and orders.
The Petitioner was born in Colorado on or about December 3,
1961. She has continuously maintained her legal residency in this
state. In 1982 she left Colorado to go to school in Belgium, while
there, she met the Respondent. She was in Belgium about four years
and then returned to Colorado in 1986. In the summer of 1987 the
Respondent came to Colorado; and on August 31, 1987, the
Petitioner and the Respondent were married in Brighton, Colorado.
Shortly, thereafter, there was a church wedding. The day after the
church wedding, the parties left Colorado returning to England so
that the Respondent could finish his doctoral work.
The Respondent is neither a U. S. citizen nor, apparently, an
English citizen; he’s a Greek Cypriot, and was and has been a
Commonwealth citizen. During the relevant time periods, he had a
temporary student visa which enabled him to stay in England and
continue his studies. While in England, the Petitioner had a work
visa which enabled her to work provided that her husband, the
Respondent, was still in school.
The Petitioner remained in England until October 27, 1989,
when she left England with the consent of the Respondent. She
brought with her the minor child, that was born as issue of this
marriage. Katherine Anne Collopy was born on August 9, 1989. The
Respondent consented to her visit. The Petitioner told the
Respondent that she was coming to Colorado to be with her sister
who had taken ill. The minor child was registered as a United
States citizen, and it appears that the Respondent consented to
this particular action.
When she came to Colorado in October of 1989, the minor child
was approximately 2 months old. She stayed in Colorado at the
Broomfield address, which happened to be her childhood home, and
during the course of her stay here, had various conversations by
telephone with the Respondent.
It appears that the Respondent never objected to her having
the child here, and it wasn’t until mid or late January of 1990,
when the Petitioner informed the Respondent that she would no
longer be returning to England; that he communicated to her in any
fashion that he was withdrawing or revoking his permission to
allow the minor child to remain with her in Colorado. At no time
has the Respondent ever requested custody of the minor child, and
it appears although there has been some attempts at phone
visitation, no actual visitation has taken place.
When the Petitioner brought the child to Colorado in October
of 1989, she was still breast-feeding the child. She and the child
had been living continuously with her parents at the Broomfield
address since October of 1989. Her present intentions are to
return to school in the fall and commence attending the University
of Colorado college of law.
In January of 1990, when the Respondent first communicated to
the Petitioner that he was objecting to the child remaining with
the Petitioner in Colorado, the child was approximately 5 months
old. At no time did the Petitioner ever change her permanent
address; in fact, it appears that while she was in England and
applying to various law schools or applying to take the LSAT so
she could go ahead into law school, she was using her Broomfield
address as her permanent residence. She continued to maintain the
Colorado’s driver’s license, a U.S. passport, never changed, and
also maintained her voter “registration in effect here in this
state. FN1
Further, although the parties left Colorado to return to
England in 1987 following their-marriage in the church ceremony,
some personal property was left behind, some of the wedding gifts
that the parties had received were left at the Broomfield
residence. The Respondent left part of his personal library behind
and the Respondent maintained a personal account at a local
Broomfield bank.
It appears that that child, who’s now 20 months old, spends a
great deal of time with–not only with the Petitioner, but with
the Petitioner’s extended family. It appears that the child,
although 20 months old, is able to recognize the circle of
individuals with whom she interacts at this point, It appears that
the child spends time with various sisters, brothers, and
relatives of the Petitioner.
The first issue that the Court wishes to address is the
questions of whether the Court has jurisdiction over the
Respondent.
The Respondent was not served in Colorado; the Respondent was
served in England. The Petitioner contends that pursuant to the
Colorado Long Arm statute 13-1-124(1)(e), that this Court does
have jurisdiction over the Respondent for purposes of resolving
the division of property issues that remain and also child support
issues in the event that the Court rules in the Petitioner’s favor
with regarding to the remaining issues.
The Colorado Long Arm statute provides, among other things,
that anyone who has maintained a marital domicile within Colorado,
submits him or herself to the jurisdiction of the Colorado courts
with respect to all issues relating to obligations for support and
any action for dissolution of marriage if one of the parties to
the marriage continues without interruption to be domiciled within
Colorado.
Clearly, in this case, the Petitioner, and I’ll so find, has
continued without interruption to be a domiciliary of the state of
Colorado. The question becomes whether or not the Respondent has
maintained a marital domicile within the state of Colorado.
The evidence has established, in this Court’s opinion, that
the Respondent has in fact maintained a marital domicile within
the state of Colorado. The undisputed, uncontroverted testimony
presented here today through the only witness who testified, the
Petitioner, was that she and the Respondent–that she came to
Colorado; the Respondent followed her; they were married in 1987,
first in a civil proceeding before a judge and then in a church
wedding. FN2
The parties received marital gifts which are still–some of
which, if not all of them, are still in the state of Colorado.
They left Colorado leaving behind these various wedding gifts that
they received. The Respondent left part of his personal library
behind, and the Respondent, while he was in Colorado, opened up a
bank account at a local Colorado bank and maintained it, and in
fact that account may still be in existence.
I think that although there’s no direct evidence that he
intended to establish a domicile, the Court can infer from all of
this circumstantial evidence that in fact it was his intent to
maintain a domicile, a marital domicile within the state of
Colorado by virtue of leaving behind all of these items that were
left behind. I can infer that at the time he came to Colorado to
marry the Petitioner, that there was an intent at least to
establish a marital domicile within this state.
The inquiry, however, doesn’t end there. The Court still has
to determine whether there was sufficient minimum contacts with
this state under the International Shoe case.
This Court believes that exercising jurisdiction over the
Respondent would not offend the mandates of International Shoe and
would be in compliance with the language contained in, In Re the –
Marriage of Ness, 759 P.2d 844, because the Court believes that
the Respondent has maintained some minimum contacts with this
state. As I previously found, the Respondent’s spouse, until the
decree of, dissolution entered, was here; the child of the
Respondent is here; the Respondent apparently has maintained a
bank account in this state, has left behind part of his personal
library, and some of the wedding gifts.
The Court believes that under the applicable case law it
would not offend basic concepts of due process and fairness for
this Court to exercise jurisdiction over the Respondent to deal
with the matters concerning the division of property and child
support in the event the Court determines that it should enter a
child support order.
The Court next wants to determine whether or not the Hague
Convention applies. The Court believes that it does. The Court
believes that the term “wrongful retention” as used in the Hague
Convention, clearly that the Petitioner in taking the child from
England and bringing the child to this country in the fashion in
which the child was removed and then keeping the child beyond the
time that the Respondent indicated he had authorized, that
retention, I think, constitutes the kind of conduct that the Hague
Convention was intended to address. FN3
Having said that, the Court wishes to address the argument
that return of the child should be denied since there is a grave
risk of psychological harm if the child is ordered to be returned
to England.
It states under Article 13(b), “A court in its direction need
not order a child returned if there is a grave risk that return
would expose the child to physical harm or otherwise place the
child in an intolerable situation.
This provision was not intended to be used by defendants as a
vehicle to litigate the child’s best interests. Only evidence
directly establishing the existence of a grave risk that would
expose the child to physical or emotional harm or otherwise place
the child in an intolerable situation is material to the court’s
determination. The person opposing the child’s return must show
that the risk to the child is grave, not merely serious.”
Then it goes on the say that, “A review of deliberations on
the Convention reveals that ‘intolerable situation’ was not
intended to encompass return to a home where money is in short
supply or where educational or other opportunities are more
limited.” FN4
This Court has no difficulty concluding that the Petitioner
has failed to meet her burden to establish by a preponderance of
the evidence that if this Court were to order the child returned
to England, that there would be a grave risk of psychological
harm. The Court, of course, heard no expert testimony in that
regard. At best, the Court heard from the Respondent who has
provided the care that the child has needed. Her opinion–her lay
opinion, to order the child returned to England, would cause
psychological damage to the child. On cross-examination she
indicated that that also would depend on many variables: where
they had to live, how long they were required to be in England,
whether she could accompany the child or not.
In short, this Court believes that, although, at best, the
Petitioner has shown that if this Court were to order the child to
return to England, that it might put the child in a serious
situation. The Petitioner hasn’t shown that by so doing, by so
ordering, there would be a grave risk that the child would be
exposed to physical or psychological harm. FN5
The next argument that the Court wishes to address is the
argument of the Petitioner that the Convention doesn’t apply
because the child was a habitual resident in Colorado when
Respondent allegedly withdrew his permission for the child to
remain in Colorado; and although the Court has noted at the outset
that it believes that the Convention does apply, I think the Court
needs to address this particular issue a little more in detail.
Article 3 of the Convention provides that the retention of a
child is to be considered wrongful where: (a) it is a breach of
rights of custody attributed to a person under the law of the
state in which the child was a habitual resident immediately
before the retention: and (b) at the time of retention, those
rights were actually exercised either jointly or alone or would
have been so exercised but for the retention.
I think that in resolving this issue, it’s important to
recognize that what we’re dealing with at the time that the
retention of the child became wrongful is a child of about five
months of age who had no significant ties to England, and arguably
no significant ties at that point in time to Colorado.
I think that the–if the Hague Convention is to be given any
meaning, that the Court needs to construe the terms “habitual
resident” when dealing with a child of such tender age to in
effect include or impute the habitual–as a habitual residence of
this child, the habitual residence of the father. And I point that
out because I think, as I recall reading through the provisions of
the Hague Convention, custody rights-rights of custody include the
right to determine the habitual residence of a child, so that
although the Respondent consented initially to the child being in
this state and being in the company of the Petitioner, clearly at
that point, and I don’t think there’s a contention to the
contrary, he was exercising rights of custody. FN6
The court has to conclude that shortly after he told the
Petitioner that the child was remaining in Colorado without his
consent, that at that point he certainly was exercising rights of
custody. The questions is whether during the interim from the
point in time when the Petitioner communicated to him her intent
to remain in this state and keep the child here, whether the
period of time where he took no action until he voiced his
complaint or his objection, whether he was exercising rights of
custody.
This Court believes that he was. The Court believes that at
all times he was exercising his rights of custody, which this
Court has indicated includes the right to determine the habitual
residency of a child. So that when we’re dealing with a child
that’s only five months old, the child’s habitual residency would
in effect be, as the Court understands the Hague Convention, the
residence of the Respondent.
So the Court will find that the Convention does apply because
the child was a habitual resident of England where the child
resided with the father before the wrongful retention and would
have continued to exercise rights of custody but for the wrongful
retention. FN7
The last issue which the Court wants to address is, despite
this Court having found that the Hague Convention applies and that
the retention of the child beyond January 1990 was wrongful, that
the Court should deny the Respondent’s motion for return of the
child because the motion was filed more than one year after
Petitioner’s wrongful retention and because the child is now
settled in its new environment. Clearly, the petition was filed
more than one year after the Petitioner wrongfully retained the
minor child.
Although, initially, I had some questions about when the
years would start to run in the case after retention, because
arguably the retention is a continuing sort of thing, so it would
be difficult to determine the date–the controlling date.
I did find reference to it in the comments that, for purposes
of this particular exception, that the controlling date is the
date that, in some fashion or another, the moving party
communicates his or her objection to the other party and expresses
a desire that the child be returned. And for purposes of ruling on
this particular argument, I’LL find that the one-year period began
to run in late January of 1990 so that clearly the motion for
return of the child pursuant to the Hague Convention which was
filed in this case shortly before the permanent orders hearing,
which was conducted on February 22, [1991] was filed more than one
year after the Respondent communicated his objection to the
petition. FN8
Even though a year has past the question becomes should the
Court nevertheless order the child returned, and the Hague
Convention provides that the Court has the discretion to deny the
motion for return of the child if it finds that the child is now,
settled in its environment. FN9
Counsel for the Respondent has attached to his brief an
opinion, a recent opinion, that appears in the February 1991
Family Law Reporter, which is an opinion of a New York family
court which contains language this Court believes is helpful in
the resolution of the issue of whether or not the child has
been–is now settled in its new environment. FN10
In that decision, the court points out that the Respondents
in that case argued that the children had established a home,
friendships, ties to the community, and a way of life that affords
stability and meaning to them, arguments that are not unlike the
arguments advanced by the Petitioner in this case. The Court notes
that the children in that case are ages 3, and almost 1 1/2. They
are not yet involved in school, extracurricular community,
religion, or social activities, which children of an older age
would be. The children have not yet formed meaningful
relationships. Court noted that the Respondent was not alleging
that the children attend–were attending nursery school
prekindergarten, religious services, or instruction, and pointed
out that the Respondent offered no evidence to show that despite
their young ages, they’d already established significant ties to
their community.
The court in that case concluded that the Respondent had not
met her burden of showing by a preponderance of the evidence that
the children were so settled in their new environment, that they
should not be uprooted and returned. Beyond this, the court noted
Respondent has not rebutted the information that these children
continue to have substantial, meaningful connections to Ontario. I
think that’s significant because, in this case, there hasn’t been
any showing whatsoever that the minor child has any substantial
nor meaningful connections to England.
Clearly, there hasn’t been a showing that the child is in
preschool, in nursery school, but there has been a showing that,
and this Court will so -find> that the child has established
significant ties to this community by virtue of having been here
as long as the child has been.
Although, as the Court has pointed out and so found, the
child’s retention is wrongful, but the Respondent has allowed
considerable amount of time to lapse, enough time to allow this
child to establish significant ties to this community so that this
Court should not order that the child be uprooted and returned at
this point.
In particular, those ties that this Court believes should
preclude the Court ordering the return with the mother. The child
has bonded with the extended family that the Petitioner has in her
community. The child was baptized in this state. The child–it
appears by virtue of the Petitioner’s testimony, she’s a nanny and
provides child care for other children, associates with those
children, and Court has to infer from that kind of conduct that
there is a bonding that has taken place. FN11
And in the absence of any evidence to the contrary, the Court
has to conclude that the Petitioner has met her burden of
establishing by a preponderance of the evidence that the minor
child is settled in her new environment, and because of that fact,
the Court should deny the motion to return pursuant to the Hague
Convention. FN12
The remaining issues of permanent orders shall be heard on
August 12, 1991 at 9:00 a.m.
DONE IN OPEN COURT this 8th day of May, 1991.
BY THE COURT: /s/ [Illegible: Probably John J. Vogel]
District Court Judge.
APPROVED AS TO FORM:
/S/ R. J. Wittenbrink
R. J. Wittenbrink, No. 1342
Attorney for Petitioner
7301 Federal Blvd, No. 301
Westminster CO 80030
/s/ Frank L. McGuane, Jr.
Frank L. McGuane, Jr., No. 315
Attorney for Respondent
3773 Cherry Creek North Drive, No. 825
Denver, CO 80209
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1. The above paragraph seems to indicate that domicile rather than
actual residence counts, at least as far a as parent goes. See
DiRugerio v Rodgers for a similar view as to PKPA. This may only
be of importance as to whether or not the court finds marital
domicile for purposes of IP jurisdiction. WMH Comment 04 Sep 1991
2. This gives one good reason why the other party should be
available in these cases. One sided testimony can be fatal as it
was sufficient to show that there was a marital domicile in the
state. WMH Comment 04 Sep 1991
3. The court implies here and finds later that the “Wrongful
Retention” did not start until the “visit” was over. A good move.
WMH Comment 04 Sep 1991
4. The above appears to be taken from the U.S. State Department
Analysis. WMH Comment 04 Sep 1991
5. A finding that the child’s best interest would not be served by
the return is not enough. A finding that the child would be put
in a serious situation is not enough. More than this is required.
WMH Comment 04 Sep 1991
6. The father’s residence determines the child’s residence — this
can be implied from federal case law as well. WMH Comment 04 Sep
1991
7. The court finds that the father’s habitual residence was the
UK, therefore that was the child’s habitual residence. WMH
Comment 04 Sep 1991
8. The wrongful retention starts after the left behind parent
withdraws consent to have the child out of the habitual residence.
This is analogous with the UCCJA and a “Temporary Absence”
discussion. WMH Comment 04 Sep 1991
9. Not a mandatory provision, the court has discretion. WMH
Comment 04 Sep 1991
10. David S. vs Zamira S. Docket Number: V 196959-60/90, dated 31
Jan 1991. WMH Comment 04 Sep 1991
11. Factors that will support a finding of contact with the forum
sufficient to overcome the request for return. WMH Comment 04 Sep
1991
12. Seems that little, if no evidence was presented on behalf of
the bonding in the UK. But would this make a difference? It is
the connection with the new forum that seems to matter. On the
other hand Navarro more or less did this as well. WMH Comment 04
Sep 1991