Conway v Dosen (Dist. Mont. 1995)CV 95-32-H-CCL









Before the court is Petitioner Topaz Conway’s Petition for Return
of Children to Their Habitual Residence (Australia) and Motion for
Summary Judgment, and Respondent’s Motion to Dismiss for lack of
jurisdiction. Respondent filed Objections to Entry of Summary
Judgment, but failed to file a brief in support of his motion to
dismiss, which pursuant to Local Rule 220-1, Rules of Procedure of
the United States District Court for the District of Montana, is
deemed an admission that the motion is without merit. Petitioner
has not responded to the motion to dismiss. This court has
jurisdiction over the matter pursuant to 28 U.S.C.  1331 (federal

Petitioner brings her application for return of children under the
International Child Abduction Remedies Act (ICARA), 42 U.S.C. 
11601-610, which codifies the Hague Convention on the Civil
Aspects of International Child Abduction, as adopted by
twenty-nine countries in 1980. Both the United States and
Australia are signatories to the Convention. Two of the goals of
ICARA are to ensure the prompt return of wrongfully removed or
retained children to the country of their habitual residence and
to ensure that countries mutually respect their decisions
regarding custody of and access to children. See 42 U.S.C. 
11601; Hague International Child Abduction Convention: Text &
Legal Analysis, 51 Fed.Reg. 10,494 (1986); H.R. Rep. No. 525,
100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 386. Courts
are not required or permitted to determine custody, but rather are
to determine whether a child has been wrongfully removed from, or
retained in a country other than, their place of habitual
residence. See 42 U.S.C.  11601(b)(4). Habitual residence has
been defined as the child’s usual place of residence and primary
home immediately before he or she was removed to a foreign
country. See State Department Legal Analysis, 51 Fed. Reg. 10504
(1980). Courts should not interpret the term “habitual residence”
technically or restrictively but should examine the facts of each
case without presupposition. See Rydder v. Rydder, 49 F.3d 369,
373 (8th Cir. 1995).

This court has subject matter jurisdiction over the petition to
return children to their habitual residence pursuant to ICARA,
which provides that:

The courts of the States and the United States district courts
shall have concurrent original jurisdiction of actions arising
under the Convention. 42 U.S.C.  11603(a).

There are four requirements that must be met for the convention to
apply: (1) the countries must be signatories; (2) the petitioner
must show that the children were “habitual residents” of
petitioner’s country prior to being wrongfully removed to or
retained in a foreign country; (3) the child or children must be
under age sixteen; and (4) the convention applies only when there
has been a wrongful removal or retention. See generally Lon
Vinion, “When Custody Conflicts Cross the Border,” 15 Fam. Advoc.
30 (Spring, 1993).

On May 18, 1995, nine months after sending her children to visit
Respondent and four months after failing in an attempt to compel
the return of her children through state court litigation,
Petitioner Topaz Conway applied to this court for the return of
her two minor children, ages eight and eleven, to their habitual
residence in Australia. When the petition was filed the children
were visiting their father, Respondent Steven A. Dosen, in Helena,

Six years earlier, on January 9, 1989, Petitioner Conway had been
granted sole custody of the children by the Eighteenth Judicial
District Court, Gallatin County, Montana, Cause No. DR- 88-800.
Petitioner subsequently moved to the State of Washington, and
ultimately emigrated to Australia with her children, with
Respondent’s written consent, on July 1, 1993. At the time she
obtained Respondent’s consent to emigrate, Petitioner promised to
return the children to Respondent for a visit, and did return the
children for a visit on August 23, 1994. The date the visit was to
be concluded is the central dispute between the parties. In late
December, 1994, an attorney not of record in this case filed on
Petitioner’s behalf a Motion for Order Compelling Visitation
Transfer before the Eighteenth Judicial District Court, Gallatin
County, in Cause No. DR-88-800. In January, 1995, after denying
Petitioner the right to participate in a hearing by telephone from
Australia, the state trial court ruled that the visitation
agreement between Petitioner and Respondent was an oral contract.
Dosen v. Dosen, Cause No. DR-88-800, slip op. at 3 (Eighteenth
Judicial District Court, Gallatin County, Montana, Jan. 6, 1995).
The court found that the oral contract had been partially
performed and would be fully performed on June 19, 1995, which the
state court found to be the date that Respondent should return the
children to Petitioner’s custody in Australia. Id. at 4. As
ordered by the state court, Respondent did return the children to
Petitioner on June 19, 1995. The children currently reside with
their mother in Australia.

Petitioner acknowledges in her motion for summary judgment that
the children have been returned to her. However, Petitioner
remains anxious about her custodial rights because Respondent
filed a Petition for Modification of Custody Decree in the
Eighteenth Judicial District, Gallatin County, Montana, in Cause
No. 88-800, in April, 1995. Apparently that proceeding has been
stayed during the pendency of this case. In her motion for summary
judgment, Petitioner states that she now seeks a permanent stay of
the state court custody proceedings. The court notes that Congress
has found that “[p]ersons should not be permitted to obtain
custody of children by virtue of their wrongful removal or
retention.” 42 U.S.C.  11601(a)(2). However, I do not find a
permanent stay of the custody modification proceedings to be
necessary or appropriate. While I agree that, for purposes of
applying ICARA, the children’s habitual residence is Australia,
and while the record indicates that there may have been a wrongful
retention of the children in Montana, the children are now
residing again with the custodial parent in Australia. Under these
circumstances, this court’s jurisdiction under ICARA is weak, if
it exists at all, and certainly this court is not willing to
become involved in Respondent’s quest for custody, both because
ICARA does not contemplate resolution of underlying custody
disputes and also because federal trial courts traditionally
abstain from such family law issues. Additionally, Respondent may
seek relief under ICARA from a court having jurisdiction where the
children now reside, i.e., in Australia, in organizing and
arranging an appropriate visitation schedule for the children and

Any person seeking to initiate judicial proceedings under the
Convention . . . for arrangements for organizing . . . the
effective exercise of rights of access to a child may do so by
commencing a civil action by filing a petition for the relief
sought . . in the place where the child is located at the time the
petition is filed. 42 U.S.C.  11603(b).

Finally, the Convention provides that “[w]here the judicial . . .
authority in the requested State has reason to believe that the
child has been taken to another State, it may . . . dismiss the
application for the return of the child.” Hague Convention,
Article 12.

The court has reviewed the Respondent’s motion to dismiss, which
is not supported by a brief, and is not persuaded by Respondent’s
argument that this court lacked jurisdiction over the matter on
the date Petitioner filed the application for return of the
children. The Findings of Fact, Conclusions of Law and Order Re
Visitation entered by the Eighteenth Judicial District on January
6, 1995, is but one piece of evidence bearing upon the factual and
legal question of whether or not Petitioner’s children were
wrongfully retained by Respondent within the meaning of ICARA.

Accordingly, for the reasons outlined above,


1. Respondent’s motion to dismiss is DENIED.

2. Petitioner’s motion for summary judgment is DENIED.

3. The Petition for Return of Children to Their Habitual Residence
(Australia) is DISMISSED as being moot and all relief is denied,
each party to bear the party’s own costs and fees.

The Clerk is directed forthwith to notify the parties of entry of
this order.

Done and dated this 14 day of August, 1995.

/s/ Charles C. Lovell
United States District Judge