USA – FEDERAL – BROOKE – 1995

Brooke v Willis (S.D.N.Y. 1995)907 F.Supp. 57
=================================================================

John Brooke, Petitioner

v.

Terry Willis, Respondent.

No. 94 VC 7493 (SAS)
United States District Court, S.D. New York
02 Aug 1996

<* page 58>

OPINION AND ORDER

SCHEINDLIN, District Judge.

Petitioner John Brooke (“Petitioner”) has filed this Complaint and
Petition under the Hague Convention on the Civil Aspects of Child
Abduction (“the Convention”) and its implementing legislation, the
International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. 
11601 et seq., against his ex-wife Terry Willis (“Respondent”).
Petitioner seeks to compel Respondent to appear in court with
their daughter Demelza to show cause for the alleged wrongful
retention of the child in the United States. Pursuant to the goals
of the Convention, Petitioner then seeks a court decision ordering
the immediate return of Demelza to England. For the reasons set
forth below, the petition is granted.

I. FACTUAL BACKGROUND

Petitioner was born in England and is a British citizen.
Respondent was born in China but is a naturalized citizen of the
United States. See Child Abduction and Custody Act Questionnaire,
dated September 9, 1994 (“Questionnaire”), at pp. 1-2. Although
the facts regarding family history are somewhat sketchy, the
parties were married in Whea- ton, Illinois and Willis later gave
birth to Demelza on May 22, 1984. See Telephone Conference, dated
June 16, 1995 (“Tel. Conf.”), at p. 7. FN1 In 1987, the parties
were formally divorced. See Questionnaire at p. 4. Although it is
not stated in the record, it appears from later court documents
that the parties were residing in California at the time of their
divorce.

On July 9, 1990, the Superior Court of California, County of
Marin, executed a Stipulation and Order Regarding Child Custody
and Visitation. The Order provided for joint legal and physical
custody of Demelza and stated that the child should spend fifty
percent of her time with each parent. See Stipulation and Order at
11113, 4. In addition, paragraph 4 pronounced that “the parties
intend that half of Demelza’s education be in the United Kingdom
and the remaining amount in the United States of America.” Both
parties stipulated that this agreement would be effective in all
countries, including the United States and the United Kingdom. Id.
at 118. At this time, the parties also signed an agreement
specifying the time periods Demelza would spend with each parent
and in school in England and the United <* page 59> States.
Affidavit of John Brooke, dated September 8, 1994 (“Brooke Aff.”),
at pp. 1-2.

Petitioner decided to move back to England permanently in the
summer of 1990. Id. at p. 2. Pursuant to the Stipulation and
agreed upon timetable, Demelza accompanied Petitioner to England
in July, 1990. Demelza lived with Petitioner and his parents in
Bradford Yorkshire, England throughout the summer. See Declaration
of John Edwin Brooke (Petitioner’s father), dated December 9,
1990. In accordance with the custody timetable, Petitioner
returned Demelza to Respondent in California on August 28, 1990.
See Brooke Aff. at p. 2.

Respondent failed to return Demelza to England in December, 1990
in violation of the Stipulation and Order and the timetable. Id.
Petitioner then left England and went to California to contact
Respondent and Demelza. At first, Respondent allowed Petitioner to
visit with his daughter several times, but she then filed an
ex-parte restraining order against him in a California state
court. Petitioner claims that before it was time for the parties
to appear in court, however, Respondent fled the state with the
child. This same series of events later took place in Virginia.
See Tel.Conf. at pp. 4-5. As a result of Respondent’s evasive
behavior, state misdemeanor warrants were issued for her arrest in
both California and Virginia. Id. at p. 5. These warrants remain
outstanding and Petitioner has been unable to exercise his custody
rights since the summer of 1990.

Petitioner last saw his daughter on October 25, 1993 in Virginia.
Brooke Aff. at p. 3. He last spoke to his daughter and Respondent
in late March or early April of 1994. Around this time, Respondent
provided Petitioner with a White Plains, New York address.
Tel.Conf. at p. 6.

II. THE PRESENT PETITION

Petitioner first became aware of the Hague Convention on the Civil
Aspects of Child Abduction on or about August 30, 1994. Brooke
Aff. at p. 1. He claims that had he known about this remedy at the
time of the initial abduction in December, 1990, he would have
made an application under the Convention at that time. Id. at p.
3.

On October 5, 1994, Petitioner filed a Comeplaint and Petition
under the Hague Convention and ICARA in the United States District
Court for the Southern District of New York seeking: 1) a writ of
habeas corpus ordering Respondent to appear in court with Demelza
to show cause why the child has been kept from Petitioner; 2) a
warrant in lieu of a writ of habeas corpus authorizing any United
States peace officer to take Demelza into protective custody
without the knowledge of Respondent; 3) an order directing the
Federal Marshal or other peace officer to enter Demelza’s name
into the national police computer system (N.C.I.C.) missing
persons section; 4) an order giving any United States peace
officer the authority to search any place where Demelza is
reasonably believed to be present; 5) an order directing the
prompt return of Demelza to Petitioner; and 6) an order for a
Hague Convention hearing. Petitioner would also like the court to
reserve the right to award Petitioner costs, fees, travel expenses
and attorney’s fees.

Federal Marshals have attempted to personally serve Respondent at
both the White Plains address she gave Petitioner and at a
Manhattan address furnished to Petitioner by the U.S. State
Department, Office of Children’s Issues. See Tel.Conf. at pp. 7-8.
Petitioner also claims to have verbally informed Respondent of his
petition and to have mailed her copies of all relevant papers. Id.
at pp. 10-11.

III. DISCUSSION

The Hague Convention was adopted in 1980 “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.” Hague
Convention, Preamble. ICARA, which implements the Convention in
the United States, provides that state courts รน and United States
district courts have concurrent original jurisdiction of actions
arising under the Convention. See 42 U.S.C.  11603(a).

Under Article 19 of the Convention, a federal district court may
determine the merits of a wrongful abduction claim but may not <* page 60> decide on the merits of the underlying custody dispute.
See Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993).
Initially, the court must determine whether the petitioner may
invoke the protection of the Hague Convention for an alleged
wrongful abduction of the child. See Meredith v. Meredith, 759
F.Supp. 1432, 1434 (D.Ariz. 1991).

A. Notice

As a threshold matter, due process requirements dictate that
proper notice of the proceedings be given in order that the other
parent can appear or otherwise inform the court of his or her
position. Meredith, 759 F.Supp. at 1435. Although the Convention
itself does not specify any notice requirements, ICARA provides
that notice be given in accordance with the applicable law
governing notice in interstate child custody proceedings. See 42
U.S.C.  11603(c).

In the United States, the Parental Kidnapping Prevention Act
(“PKPA”) and the Uniform Child Custody Jurisdiction Act (“UCCJA”)
govern notice in interstate child custody proceedings. See Klam v.
Klam, 797 F.Supp. 202, 205 (E.D.N.Y. 1992). Section 4 of the UCCJA
and Part (e) of the PKPA provide that reasonable notice and
opportunity to be heard must be given to all parties before a
custody determination is made. Section 5 of the UCCJA further
provides that notice “shall be given in a manner reasonably
calculated to give actual notice.”

Here, several attempts were made by Federal Marshals and by
Petitioner to personally serve Respondent and to mail her the
relevant papers at her last two known New York addresses. These
attempts were apparently unsuccessful because of Respondent’s
evasive tactics. In light of the circumstances, it does not appear
that Petitioner could have done any more to notify Respondent.
Furthermore, Petitioner claims to have given Respondent particular
details regarding the proceedings over the phone, including the
case number and the location of the Court. See Tel.Conf. at p. 11.

Both state and federal courts have found service to be sufficient
and proper under similar circumstances. In an interstate custody
case where personal service was impossible due to the flight of
the respondent, the court allowed substituted service in any
manner “reasonably effective to give the defendant notice of the
suit.” See Ingram v. Ingram, 463 So.2d 932, 936 (La.App.1985). The
court further noted that although there was no personal service,
the record reflected the respondent’s actual knowledge of the
pending litigation. Id. at 934. And in a federal case dealing with
a petition under the Hague Convention, the court found service to
be proper where the father sent papers to the mother’s parents and
specifically informed the mother of the proceedings over the
phone. See Meredith, 759 F.Supp. at 1433. In light of these
precedents, and the history of Respondent’s prior conduct, I
conclude that here Respondent has received actual notice of
Petitioner’s application under the Convention.

B. Requirements under the Convention

Several requirements must be met by Petitioner in order to invoke
relief under the Convention. First, both countries involved must
be signatories to the Convention. See generally Lon Vinion, When
Custody Conflicts Cross the Border, 15 Fam.Advoc. 30 (Spring,
1993). Both the United States and England are signatory countries.
Second, the child must be under sixteen years of age. See Hague
Convention, Article 4. Here, Demelza is eleven years of age.
Third, Petitioner must show by a preponderance of the evidence
that under the Convention, the child was wrongfully removed or
retained from the place of habitual residence. See Wanninger v.
Wanninger, 850 F.Supp. 78, 80 (D.Mass. 1994) (emphasis added).

Article 3 of the Convention provides that “the removal or the
retention of a child is to be considered wrongful where-

(a) it is in breach of rights of custody attributed
to a person . . . 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 . . . or would have been so
exercised but for the r e~noval or retention.”

<* page 61> Petitioner alleges that at the time of the wrongful
retention of Demelza in the United States, Demelza was a habitual
resident of England and Petitioner had rights of custody pursuant
to the Stipulation and Order. Brooke Aff. at p. 2. He further
alleges that Respondent’s actions violate his rights of custody
under the law of England. See Memorandum in Support of Verified
Complaint, dated October 5, 1994 (“Mem.”), at p. 1.

1. Habitual Residence

The term “habitual residence” was purposely left undefined by the
Convention so that its meaning could be determined according to
the specific facts and circumstances of each case. See Meredith,
759 F.Supp. at 1434. Courts should not interpret the term
technically or restrictively, but should examine every situation
free from presuppositions. See Rydder v. Rydder, 49 F.3d 369, 373
(8th Cir.1995). Place of habitual residence is determined more by
a state of being than by any specific period of time; technically,
habitual residence can be established after only one day as long
as there is some evidence that the child has become “settled” into
the location in question. See Lynda R. Herring, Taking Away the
Pawns: International Parental Abduction & The Hague Convention, 20
N.C.J. Int’l L. & Comm.Reg. 137, WL * *19-20 (Fall, 1994).

Here, although Demelza spent only one summer in England, the
record reflects that she was well accustomed to her surroundings.
Petitioner’s parents attest to the fact that the child enjoyed
living in their home and visiting with her aunt and cousins. See
Declaration of Alice Brooke, dated December 14, 1990. Furthermore,
according to neighbors, Demelza was happy and well taken care of
during her stay, and she even stood in the town square with a flag
in hand and recited the British Pledge of Allegiance. See Petition
of Neighbors, dated December 14, 1990. This evidence is sufficient
for the Court to conclude that England was Demelza’s habitual
residence in July of 1990. FN2

2. Custody Rights

In order to determine whether Petitioner possessed lawful custody
rights of Demelza at the time of Respondent’s retention of the
child in the United States, the Court looks to the law of the
child’s place of habitual residence. Friedrich, 983 F.2d at 1402.
Pursuant to the Convention, there are three possible sources of
custody rights under the law of the child’s habitual residence:
judicial or administrative decisions; legally binding agreements
between the parties; and operation of the law of the State. See
Herring, supra, at WL *25. Although the 1989 Stipulation and Order
regarding custody of Demelza was made by a California court rather
than a British court, the explanatory report accompanying the
Convention provides that a judicial decision regarding custody may
originate in a country other than the place of habitual residence.
Id. (citing Explanatory Report by Elisa Paeerez-Vera).
Furthermore, when custody rights are exercised in the place of
habitual residence based on a foreign custody decree, it is not
necessary for the state of habitual residence to formally
recognize that decree. Id.

As discussed above, the existing Stipulation and Order dictates
that both parents have joint physical and legal custody of
Demelza. This judicial decision also reflects the parties’ desire
to have Demelza spend half of her time in England and half of her
time in the United States. Most importantly, both parties clearly
agreed that the Stipulation and Order would be “effective in all
countries, including but not limited to the United States of
America, the United Kingdom, Hong Kong, Macau and Canada.”
Stipulation and Order at p. 3. In light of these facts, there is
no doubt that Petitioner possessed legal custody rights under the
law of England at the time of Demelza’s retention in the United
States by Respondent.

3. Exercise of Custody Rights

The Convention presumes that the person who held lawful custody
rights at the time of the removal or retention was actually exer-
<* page 62> cising, or would have exercised, such custody rights
but for the removal or retention; the burden of proof is on the
Respondent to prove that the Petitioner was not exercising his or
her custody rights at the time. Herring, supra, at WL *29.
Respondent has never argued in any court that Petitioner did not
possess custody rights to Demelza at the time the child was
detained in the United States. Therefore, Petitioner has satisfied
the elements of a claim for wrongful retention under Article 3 of
the Convention.

III. RELIEF

Pursuant to due process requirements, United States courts dealing
with petitions under the Convention to immediately return children
to their alleged places of habitual residence have usually
required a hearing to allow both parents to present arguments
before deciding whether the child should be returned for further
custody proceedings on the merits. See, e.g., In re Prevo6, 855
F.Supp. 915 (W.D.Tenn. 1994); Currier v. Currier, 845 F.Supp. 916
(D.N.H. 1994). In order to initiate such a preliminary hearing,
Petitioner has requested a writ of habeas corpus ordering
Respondent to produce the child in court and show cause why the
child has been removed and retained away from Petitioner.
Petitioner has also requested a warrant in lieu of the writ of
habeas corpus.

In light of the fact that Respondent has purposely evaded
Petitioner for almost five years and has fled the jurisdiction of
two state courts in the past when she was ordered to appear, it is
doubtful that Respondent will voluntarily comply with an order to
bring Demelza into court. For this reason, the Court will issue a
writ of habeas corpus and allow Respondent fourteen days to comply
with the order; however, if Respondent has not complied after
fourteen days, the Court will then issue a warrant in lieu of the
writ of habeas corpus, which will allow any United States peace
officer to bring Demelza into court without the consent of
Respondent.

Respondent will be given seven days to appear in court from the
time Demelza is taken into custody, after which time the Court may
hold a Hague Convention hearing to decide if the child should be
immediately returned to E ngland with Petitioner. The Court notes
that if Demelza is in fact delivered to the court pursuant to the
warrant, and Respondent does not appear immediately, the Court can
grant temporary custody of the child to Petitioner pending the
resolution of these proceedings. See Currier, 845 F.Supp. at 919.

The Court will also order the child’s name to be entered into the
national police computer system (N.C.I.C.) missing persons section
in order to aid in identifying her whereabouts. The Court will
reserve judgement on an award of costs, fees, travel expenses and
attorney’s fees until such time as the Court decides whether the
child should be returned to England with Petitioner.

The Court’s Order embodying this relief is annexed hereto as
Exhibit A.

IV. CONCLUSION

Because Petitioner has satisfied both the threshold requirements
for a petition under the Hague Convention and the applicable
notice provisions, the above relief is awarded pending the final
determination of the petition.

SO ORDERED.

EXHIBIT A

United States District Court Southern District of New York

John Brooke, Petitioner,

v.

Terry Willis, Respondent.

94 CV 7943 (SAS).

ORDER

SCHEINDLIN, District Judge.

Petitioner’s application is hereby granted:

1) The name of the child, Demelza Brooke, shall be entered into
the national police computer system (N.C.I.C.) missing persons
section.

2) A Writ of Habeas Corpus shall issue ordering Respondent to
appear in this Court with Demelza to show cause why the child <* page 63> has been kept from Petitioner. Respondent shall be given
fourteen days to comply with such Writ.

3) If Respondent has not complied with such Writ after fourteen
days, a Warrant in lieu of the Writ shall issue allowing any
United States peace officer to bring Demelza into this Court
without the consent of Respondent. Respondent shall be given seven
days to appear in this Court from the time Demelza is taken into
custody.

4) If Demelza is delivered to the Court pursuant to such Warrant
and Respondent does not appear immediately, the Court may grant
temporary custody of the child to Petitioner pending the
resolution of these proceedings.

5) If Respondent has not appeared within seven days from the time
Demelza is taken into custody, the Court will then hold a Hague
Convention hearing to decide if the child should be immediately
returned to England with Petitioner.

SO ORDERED.

Dated: New York, New York
August 2, 1995

——————–
1. On June 16, 1995, the Court conducted an ex parte telephone
conference with Petitioner. As detailed below, Petitioner’s
attempts to serve and contact the Respondent were
unsuccessful. However, these efforts were sufficient to
satisfy due process notice requirements. See infra pp.
59-60.

2. Due to the peculiar circumstances of this case, it is
arguable that Demelza is also a habitual resident of the
United States under the Convention. However, for purposes of
this petition it is only crucial to determine if England can
be considered Demelza’s habitual residence.