USA – FEDERAL – FEDER – 1994 (1994) (Return denied) FEDER v EVANS-FEDER, Mother takes child to the USA. The court ruled that the habitual residence of the child is the United States and the petition to have the child returned to Australia is denied. Father appeals. (See below)
Feder v Evans-Feder (E.D.Pa. 1994)866 F.Supp. 860
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Edward M Feder, Plaintiff,
v.
Melissa Ann Evans-Feder, Defendant
United States District Court
E.D. Pennsylvania
31 Oct 1994
Bartle, District Judge.
<* page 862> Petitioner, Edward M. Feder (“Mr; Feder”) has
brought the present action against his estranged wife,
Melissa Ann Evans-Feder (“Mrs. Feeder”) pursuant to the 1980
Hague Convention on Civil Aspects of International Child
Abduction (“Hague Convention”) and its implementing
legislation, The International Child Abduction Remedies Act
of 1988, 42 U.S.C. 11601-11610 (“ICARA”). The Hague
Convention is a treaty providing for the return of a child
to the country of his or her “habitual residence” when a
parent has wrongfully removed or retained the child in
violation of the other parent’s custody rights. Mr. Feder
seeks to have this court order the return of their four year
old son, Charles Evan Feder (“Evan”), to Australia, where
Mr. Feder currently resides. This would allow an Australian
court to determine issues of custody. Mrs. Feder, who lives
in Pennsylvania with Evan, opposes the petition.
The court held an evidentiary hearing on October 14, 1994.
The following constitutes the court’s findings of fact and
conclusions of law under Rule 52 of the Federal Rules of
Civil Procedure.
The Feders are American citizens who met while each was
working in Germany — she as an opera singer, and he as an
employee of Citibank. Evan, the Feders’ only child, was born
in Germany on July 3,1990. Evan is also an American
citizen.
Around the time of Evan’s birth, Mr. Feder began looking for
new employment. When Evan was approximately four months
old, Mr. Feder obtained a management position with CIGNA in
Philadelphia, Pennsylvania. In October of 1990, the Feders
moved to Jenkintown, Montgomery County, Pennsylvania, a
suburb of Philadelphia, where they purchased a home. This
move brought the Feders closer to Evan’s maternal
grandparents, who live in Waynesboro, Franklin County,
Pennsylvania, and his paternal grandmother, who lives In New
Jersey. At the age of two Evan began nursery school in
Jenkintown.
In the summer of 1993, after Mr. Feder lost his job with
CIGNA, he met with a personnel recruiter for the
Commonwealth Bank of Australia. Mr. Feder was interested in
an available position. When Mrs. Feder expressed reluctance
about living in Australia, Mr. Feder encouraged her to visit
the country on a trip arranged by the bank. He told her that
she should consider it as a free vacation and that she had
nothing to lose. Mrs. Feder eventually agreed to accompany
her husband on a two-week trip to Australia in August of
1993.
While there, the Feders investigated the Sydney area where
Mr. Feder would be working if he accepted the position. The
<* page 863> Feders consulted an accountant regarding the
cost of living in the country and met with a relocation
consultant, and real estate agents. Mrs. Feder also spoke
with representative of the Sydney Opera during,her trip. The
Feders returned to Jenkintown during the first week of
September of 1993.
Commonwealth Bank offered Mr. Feder a position as the,
general manager of its personal banking department in late
August or early September of 1993. During the first week of
September, the Feders met withal financial analyst in
Philadelphia about the compensation package the bank
proposed. Mr. Feder considered the position at Commonwealth
Bank to be advantageous both professionally, and
financially. Although Mrs. Feder remained opposed to the
idea of moving to Australia, Mr. Feder formally accepted the
Commonwealth Bank position on September 16, 1993. Bank
officials told Mr. Feder that the bank needed him to begin
work as soon as possible because the position had been
vacant for some time.
Mrs. Feder was very reluctant to make such a major move. She
was skeptical about how long they would be staying in any
event due to her husband’s employment history. He had worked
for four different employers in ten different cities in
seven-different countries on four different continents in
the past twenty years, and, she did not want to relocate to
a foreign country now that they had a child. Moreover, She
was deeply concerned about the adverse effect any move Would
have on their marriage and their family life. The,Feders’
marital relationship had been deteriorating during, the
period Mr. Feder worked for CIGNA, where he was required to
spend approximately 65% of his time traveling. Stress due
to the loss of his job worsened the problems in the
marriage. Both of the Feders had sought counseling from a
therapist because of the problems they were experiencing.
Despite his wife’s misgivings, Mr. Feder remained committed
to moving to Australia. He had not seriously considered any
job openings in the United States although Mrs. Feder had
urged him to do so. Mrs. Feder consulted a divorce attorney
in October of l993. However, she decided not to initiate
divorce proceedings at that time. She did not want to end
their marriage without making a further try to salvage it
and she did not believe she could support herself and her
child while pursuing a divorce.
Later that month, Mr. Feder flew to Australia to begin work,
leaving Mrs. Feder and Evan in Jenkintown. Mrs. Feder
planned to stay in Jenkintown with Evan until they sold
their house, by which time she hoped to be able to decide
whether to end the marriage. Mrs. Feder did not oppose
listing the house with a real estate agent since she would
not be able to afford to live in such a large home if she
were to divorce her husband.
Between the time Mr. Feder accepted the Commonwealth Bank
position and the last week of October, 1993 when he moved,
the Feders sold household items which would not be useful in
Australia. After he moved, Mr. Feder sent Mrs. Feder
photographs of houses he was considering in the Sydney area.
In November of 1993, he purchased in both their names a 50%
interest in a house in St. Ives, a suburb’ of Sydney. Mrs.
Feder signed no papers pertaining to the transaction.
Commonwealth Bank financed the entire 50% interest Mr.
Feder bought and purchased the remaining 50%’ interest
itself. Mr. Feder told his wife that he had purchased the
house as a “surprise” birthday present” for her.
Mr. Feder returned to Jenkintown on December 13,1993.
Although they still had not sold their home, he told his
wife that he had arranged for a moving company to ship the
furniture to Australia in approximately two weeks. Most of
this furniture belonged to him before their marriage. Mr.
Feder, a gun enthusiast, also had his gun collection moved
to Australia. By the time he returned to Jenkintown, he had
already purchased airline tickets to Australia for his wife
and son. With great reluctance, Mrs. Feder accompanied him
to Australia with Evan. She did so, without any commitment
to remain there, in a last attempt to save her troubled
marriage.
The Feders began their flight on January 3, l99i, and after
stops in California and Hawaii, arrived in Australia on
January 8. Since the house in St.Ives needed renova- <* page
864> tions, the family spent approximately four and a half
months in a hotel and then an apartment before moving into
the house in May.
The Feders’ marriage worsened in Australia. Mrs. Feder told
her husband early that spring that she wanted to end the
marriage, take Evan, and return to the United States. Mr.
Feder attributed their marital problems to the stress and
demanding hours of his new job. He asked her to stay so they
could try to work out their problems after they moved into
their new home and he adjusted to his job. Mrs. Feder also
did not want to disrupt Evan’s time in nursery school by
returning with him to the United States before the school
term had ended.
Moving,into the house in St. Ives at the end of May, 1994
did not improve the couple’s relationship. After a
particularly serious argument in June, Mrs. Feder decided
that it was time she left her husband and returned to the
United States. Later that month she told him that she wanted
to take Evan to visit his grandparents in the United States.
She did not believe that Mr. Feder would let them leave the
country otherwise. Mr. Feder bought them round-trip tickets
for a departure on June 29 and a return flight on August 2,
1994. Mr. and Mrs. Feder had another argument very shortly
before her departure. Mr. Feder admitted she said to him at
that time that perhaps she and Evan should stay in the
United States and not return. Nevertheless, Mr. Feder drove
his wife and child to the airport as scheduled. Mrs. Feder
and Even left Australia and stayed, temporarily with her
parents in Waynesboro, Pennsylvania after their arrival in
the United: States.
Mr. Feder came to the United States on business in July of
1994. When he went to the couple’s Jenkintown home to meet
his wife and attend to some errands, Mrs. Feder had him
served with a divorce complaint and papers seeking custody
of Evan. Mr. Feder returned to Australia shortly thereafter.
After obtaining furniture and appliances to replace those
which had been sold or shipped to Australia, Mrs. Feder and
Evan moved back into the home in Jenkintown.
Before she had left Australia, Mrs. Feder had taken some
steps to become acclimated to that country. In the spring
of 1994, in an effort to obtain some professional
fulfillment, she auditioned for a role with the Sydney
Opera. The opera hired her to sing in one performance in
February of 1995. The performance required her
participation in two weeks of rehearsals in December of
1994. Since Mr. Feder was busy at work, she handled many of
the decisions regarding the renovations of the St. Ives
house. She allowed Evan to attend nursery school three days
a week. At the urging of her neighbors, she put his name on
a waiting list for a private school so that he might have a
chance of attending it some seven years later when he turned
eleven. On the application, she answered “yes” to the
question, “Is the boy an Australian citizen or with
permanent resident status?” even though he was and is not.
Mr. Feder switched his drivers license registration from
Pennsylvania to Australia before Australian law legally
required him to do so. As he explained, he was a “guest” of
Australia working in a bank with close governmental ties and
believed he should apply promptly. Although he urged Mrs.
Feder to do the same, she refused to surrender her
Pennsylvania driver’s license. Similarly, Mr. Feder had
Commonwealth Bank submit an application for permanent
residency status for the entire family. “However, neither
Mrs. Feder nor Evan ever took the necessary physical
examination. Moreover, Mrs. Feder never signed any papers
to become a permanent resident. On the other hand, the
Feders did obtain Australian Medicare cards so that they
could receive any necessary medical treatment.
It must be emphasized that the Hague Convention does not
authorize this court to decide which parent is entitled to
custody of Evan. As the Court of Appeals for the Sixth
Circuit has held, “[t]he rights and wrongs of the actions of
the respective parents are not before us for disposition on
the merits.” Friedrich v. Friedrich (6th Cir. 1993) 983
F.2d 1396, 1402. Rather, this court’s limited function is
to determine, under the provisions of the Hague Convention
and enabling legislation, whether the courts <* page 865> of
Australia or of Pennsylvania should decide custody issues
regaling child. Id at 1403.
The preamble to the Hague Convention states a goal of
protecting “children internationally from the harmful
effects of their wrongful removal or retention and
[establishing] procedures to ensure their prompt return to
the State of their habitual residence.” Both Australia and
the United States are signatories of the treaty. A removal
or retention is wrongful when:
a. it is in breach of rights of custody attributed
to a person, either jointly or alone, 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, either jointly or alone,
or would have been so exercised but for the
removal or retention.
Hague Convention, Article 3. The parties agree that they
both had and were exercising rights of custody at the time
that Mrs. Feder brought Evan back to Pennsylvania.
. .
The petitioner, Edward Feder, has the burden of proving by a
preponderance of the evidence that the refusal of
respondent, Melissa Ann Evans-Feder, to return Evan to
Australia constituted a wrongful retention of Evan in the
United States. 42 U.S.C. 11603(e)(1)(A); see also In re
Ponath (D.Utah 1993) 829 F.Supp. 363, 365. To meet his
burden, Mr. Feder must establish that Evan was “habitually
resident” in Australia at the time of the wrongful
retention. Friedrich, 983 F.2d at 1399; see also In re Cohen
(Sup.Ct. 1993) 158 Misc.2d 1018 [602 N.Y.S.2d 994, 998].
Neither the Hague Convention nor its enabling legislation,
ICARA, defines habitual residence, and only a few cases have
analyzed the meaning of the term.
In a frequently cited decision from the United Kingdom the
High Court of Justice explained:
the notion [of habitual residence is] free from
technical rules, which can produce rigidity and
inconsistencies as between legal systems . . . The
facts and circumstances of each case should
continue to be assessed without resort to
presumptions or presuppositions . . . All that is
necessary is that the purpose of living where one
does has a sufficient degree of continuity t o be
properly described as settled.
In re Bates, No. CA 122.89, at 9-10, High Court of Justice,
Fam.Div’n Ct.Royal Court of Justice, United Kingdom (1989)
(citation omitted). The Friedrich court, citing Bates with
approval, agreed that the analysis is highly fact-sensitive
and should not be confused with technical legal concepts
such as domicile. 983 F.2d at 1401; see also Ponath, 829
F.Supp. at 368. The Friedrich court further held that
[t]o determine the habitual residence, the court
muss focus on the child, not the parents, and
examine past experience, not future intentions . .
. [H]abitual residence can be “altered” only by a
change in geography and the passage of time . . .
983 F.2d at 1401. The parties agree that the United States
was Evan’s habitual residence at least until January of
1994. Accordingly, this court must determine whether the
time Evan spent in Australia, which was slightly less than
six months, altered this status.
Mr. Feder argues that this court should be guided by
Roszkowski v Roszkowska (N.J.Super. 1993) 274 N.J.Super.620
[644 A.2d 1150], which he contends is virtually identical to
the matter at hand. The boy in the Roszkowski case was born
in Poland to Polish parents. When the child was seven
months old, Mr. Roszkowski moved to the United States in
search of employment. His wife remained in Poland with the
child until he was nearly four years old, at which time they
moved to Mr. Roszkowski’s residence in New Jersey. The
couple separated almost immediately, and the child spent a
few days of every week with each parent. After the boy had
lived in New Jersey for slightly over-six months, his mother
sent him back to live in Poland with her relatives, although
both she and Mr. Roszkowski remained in the United States.
Mr. Roszkowski successfully petitioned for his return to the
United States, even though his mother had returned him to
the country in which he had spent nearly four years. Mr.
Feder argues that this court should follow this precedent
and return Evan to Australia.
<* page 866> The case at bar differs from Roszkowski, in
several crucial respects. The most obvious distinction is
that in Roszkowski, both of the parents lived in and
intended to remain in the United States, the country to
which the child was to be returned. Secondly, the
Roszkowski court relied on analogies to New Jersey’s version
of the Uniform Child Custody Jurisdiction Act in its
analysis of “habitual residence.” FN01 This Act required
the child to live in New Jersey for six consecutive months,
which requirement had been satisfied in Roszkowski. This
court rejects the analysis used by the Roszkowski court. As
Bates, Friedrich and Ponath held, the Hague Convention
presumes that courts will carefully examine the facts and
circumstances of a particular case in determining habitual
residence. Nowhere does this international treaty suggest
that it is appropriate to borrow an arbitrary cutoff date
from a state statute in determining whether habitual
residence has been established.
Mr. Feder also contends that this court must extend “full
faith and credit” to a determination made by the Family
Court of Australia that Evan is a habitual resident of
Australia. Section 11603(g) of ICARA states that
[full faith and credit shall be accorded by the
courts of the States and the courts of the United
States to the judgment of any other such court
ordering or denying the return of a child, pursuant
to the Convention, in an action brought under this
chapter.
42 U.S.C. 11603(g). The court also notes that pursuant to
Article 15 of the Hague Convention,
[t]he judicial or administrative authorities of a
Contracting State may, prior to the making of an
order, for the Return of the child, request that
the applicant obtain from the authorities of the
State of the habitual residence of the child a
decision or other determination that the removal or
retention was wrongful within the meaning of
Article 3 of the Convention . . .
Hague Convention, Article 15. Mr. Feder, on his own
initiative and not at the request of this court, petitioned
a family court in Australia for a determination of Evan’s
habitual residence. It appears that Mrs. Feder received
notice of this proceeding but did not enter an appearance.
Articles 7(e), 8(f) and 14 of the Hague Convention permit
Australian judicial or administrative authorities to advise
this court of relevant laws of that country, such as those
pertaining to custody or the wrongfulness of a particular
removal or retention. However, it does not appear that the
Australian Family Court had jurisdiction to determine the
issue of Evan’s habitual residence. The Hague Convention
leaves this issue to the judicial or administrative
authorities of the country in which the child is living at
the time of the petition. See 42 U.S.C. 11603(b); Hague
Convention, Article 12. Evan was in the United States at
the time Mr. Feder’s petition was filed. Mr. Feder did not
petition the Australian Family Court for, nor did that court
enter a “judgment . . . ordering or denying the return of a
child, pursuant to the Convention.” 42 U.S.C. 11603(g).
Accordingly, this court is not bound by the Australian
determination and will render its decision based on the
facts before it.
Mr. Feder argues that various actions taken by the parties
demonstrate that the family, including his wife, had a
settled purpose of remaining in Australia. He claims that
Mrs. Feder must have intended to stay in Australia because
she auditioned for and received a role in a single operatic
performance to take place in Sydney in February of 1995,
with two weeks of rehearsals scheduled for December of 1994.
Mrs. Feder correctly explains that opera singers regularly
perform in foreign countries without living there or
changing their residence. She herself performed in numerous
countries during her operatic career without remaining in
those countries for lengthy periods of time.
Mr. Feder next points to the fact that Mrs Feder put Evan on
a waiting list to qualify him some seven years in the future
<* page 867> for a private school in the Sydney area. Mrs.
Feder indicated on the application that Evan had permanent
residency status in Australia, although that was
indisputably not true at the time. This court finds little
significance in this. Australian acquaintances told Mrs.
Feder that the school was so competitive that she must apply
for Evan years in advance if he were to have any chance of
being admitted. Evan undoubtedly would have obtained
permanent residency status by the time of enrollment if the
Feders’ marriage had improved and they did remain in the:
country. Mrs. Feder testified convincingly that she was not
committing Evan or herself to remain in Australia. She
merely sought to ensure that he had the opportunity to
obtain a fine education if they eventually were to decide to
stay. The application would not be binding in any way if she
and Evan or the entire family left Australia before Evan
turned eleven.
[81 Mr. Feder also notes that the family applied for and
received Australian Medicare cards which would entitle them
to receive medical ‘treatment under Australia’s national
health care system. War. Feder’ himself test)-‘ fled that
the application procedures were so minimal that they felt it
would be only prudent to apply., This court does not find
the decision to protect themselves if the need arose for
medical care to be indicative of a settled purpose of
remaining in Australia.
Mr. Feder argues that their decisions to sell their American
home, sell or ship their American furniture and to purchase
and renovate extensively a house in Australia indicate a
settled purpose to remain there. While this argument has
initial appeal, numerous important factors drastically
undermine the conclusion Mr. Feder attempts to draw from
these facts. As this court found above, Mrs. Feder agreed to
sell their home in Jenkintown based on her belief that she
and Evan could not afford to live there without her husband.
Second, her unrebutted testimony establishes that the
majority of the furniture belonged to him from before their
marriage and that he was free to do with it as he pleased.
Third, Mrs. Feder did not participate in the decision to
purchase their half interest in the house in St. Ives,
Australia. FN02 The bank paid all of the renovation
expenses. Mrs. Feder naturally made many of the renovation
arrangements, as Mr. Feder was working very long hours, and
she was eager to complete the project in the event their
marriage would improve.
Mrs. Feder argues that the Ponath case supports her position
that Evan did not establish a new habitual residence by
moving to Australia. 829 F.Supp. at 363. In Ponath, a child
was born in Utah to an American mother and a German father.
The family spent the first five months of the child’s life
in Utah before traveling to Germany. The father obtained
employment in Germany and began building a house for the
family near his parents’ residence.
After the child had been in Germany for eleven months, the
parents separated and the mother returned to Utah with the
child. The father filed a petition under the Hague
Convention seeking the return of the child to Germany.
Although the child had lived in Germany more than twice as
long as he had lived in Utah, the court held that the father
did not establish a change in the boy’s habitual residence.
The court reasoned that
[a]lthough 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.”
Id. at 367, The court found that although the mother had
traveled to Germany voluntarily, she remained there with the
child only because her husband coerced her to do so. Despite
the father’s demonstrated intent to remain in Germany the
court found that the mother had no such settled purpose.
Accordingly, the court held that the father had not
demonstrated by a preponderance of the evidence that Germany
became the child’s <* page 868> habitual residence during
the eleven months he lived there.
The Ponath decision is more persuasive than the Roszkowski
decision and is closer to the facts of this case. Mrs.
Feder’s testimony regarding her extreme reluctance ho move
herself and her son to Australia is credible and consistent
with her actions. Faced with a choice between abruptly
ending her marriage and remaining in an unfurnished home
with no visible means of support for herself and her son or
following her husband to Australia in a last attempt to keep
her family together, Mrs. Feder moved to Australia. Her
move was on a temporary, trial basis only. Unlike her
husband, she refused to surrender her Pennsylvania driver’s
license and took no steps herself to become a permanent
resident of Australia. Because her marriage worsened rather
than improved in Australia, she never developed a settled
purpose to remain. In fact, in less than six months she
decided that her marriage could not be saved. With this
decision, she ended her trial period in Australia and
returned with Evan to the United Stakes, where they are both
citizens. She traveled back to Pennsylvania with her son
because that was and is their home, where Evan spent the
vast majority of his life, and where their family and
friends are located.
Mr. Feder argues that Evan himself was habitually resident
in Australia because he attended an Australian preschool a
few days each week and had made some friends there. While
this court must, of course, decide the habitual residence
of the child, a child of four years cannot decide for
himself or herself where that habitual residence will be.
Such a child does not think about the subject and takes no
voluntary or purposeful actions in this regard. Of
necessity, we must evaluate the objectives and actions of
the parents. As the Ponath court similarly explained, “the
desires and actions of the parents cannot be ignored” in
making a determination in such a case. 829 F.Supp. at 367.
Evan’s father and mother viewed Australia differently during
the short time they were there. Mr. Feder may have
considered and even established Australia as his habitual
residence by June of 1994 despite his history of frequent
relocation, but Mrs. Feder assuredly did not. Significantly,
she and Evan spent less than six months in Australia before
they left. Under the circumstances here, Mr. Feder has not
proven that Evan’s habitual residence in the United Stakes
as of January 8, 1994 had changed to Australia by the time
Mrs. Feder refused ho return him from Pennsylvania in the
summer of 1994.
Even if Mr. Feder had established that Evan was habitually
resident in Australia, that would not end the analysis. The
Hague Convention does not require a court to return a child
if the respondent demonstrates by clear and convincing
evidence that “there is a grave risk that [the child’s]
return would expose the child ho physical or psychological
harm or otherwise place the child in an intolerable
situation.” Hague Convention, Article 13(b). This court
heard evidence regarding this subject at the October 14,
1994 hearing. In light of its decision regarding Evan’s
habitual residence, the court need not resolve this
question.
This court finds and concludes that the habitual residence
of Charles Evan Feder is in the United States of America and
that his mother has not wrongfully retained him here. The
petition of Edward Feder to have the child returned to the
Commonwealth of Australia is denied.
——————–
1. The enabling legislation for the Hague Convenlion
provides that “[t]he courts of the States and the
united States district courts shall have concurrent
original jurisdiction of actions arising under the
[Hague] Convention.” 42 U.S.C. 11603(a).
2. The Feders paid rent on the half of the house owned by
the bank.