USA – FEDERAL – FJELDHEIM – 1996 (2) (Settled in) (Article 13) FJELDHEIM v FJELDHEIM. “This matter comes before the court on petitioner’s motion for partial reconsideration of it motion and order denying summary judgement and setting this matter for trial” The motion for reconsideration is granted in part and denied in part. The court determined that the trial of the article 13 issue would be determined in accordance with Friedrich. (Are the courts in Norway able to provide the child protection.)? The court must determine, at trial, the date of removal or retention. (Has it been over one year)? This will allow the court to determine whether the child is in fact settled into a new environment.


Fjeldheim v Fjeldheim (W.Dist.Mich. So.Div. 1996)No. 1:95-CV-394, 29 Apr 1996

In re: File No. 1:95-CV-394

The Application of TERJE BYE Hon. Richard Alan Enslen
FJELDHEIM, Petitioner,


FJELDHEIM, Respondent.

This matter is before the Court on the Petitioner’s motion for
partial reconsideration of its previous January 19, 1996 Opinion
and Order denying summary judgment and setting this matter for
trial. This lawsuit concerns a petition for return of a child who
was allegedly retained in violation of the Hague Convention on
Civil Aspects of International Child Abduction and Title 42 United
States Code Sections 11601 et seq. FN1

This motion asks that the Court reconsider two aspects of its
ruling so as to foreclose certain issues from being determined at
trial. First, Petitioner asks that the Court determine that the
abduction/wrongful retention of the child did not occur until
after July 1, 1994. This date is important because the action was
filed on June 15, 1995. The Hague Convention provides in pertinent

Where a child has been wrongfully removed or retained
in terms of Art. 3, and at the date of the
commencement of the proceedings before the judicial
or administrative authority of the Contracting State
where the child is, a period of less than one year
has elapsed from the date of wrongful removal or
retention, the authority concerned shall order the
return the child forthwith.

The judicial or administrative authority, even where
the proceedings have been commenced after the
expiration of the period of one year referred to in
the preceding paragraph, shall also order the return
of the child, unless it is demonstrated that the
child is now settled in its new environment.

Art. 12.

Petitioner’s claim is that since the child’s scheduled return date
was July 1, 1994 that the retention did not occur until that date
and, therefore, the Court cannot consider whether or not the child
is settled in a new environment. This position is supported by law
to the effect that ordinarily the retention does not occur until
the date at which the child~s return failed to occur. It is also
supported by the fact that prior to July 1, 1994 the Petitioner
did not take action to procure the return of Tove and that his
later correspondence is consistent with him not reaming of a
problem until the July 1, 1994 date.

However, while most of Petitioner’s legal assertions are true,
they ignore other circumstances that have been alleged by the
Respondent. According to Respondent, she notified the Petitioner
almost immediately upon the child’s arrival on April 3, 1994 that
she was retaining the child in the United States. According to
her, she placed the child with Petitioners knowledge in school and
otherwise began to establish a home for the child in the United
States with the Father’s knowledge. Therefore, there is an issue
of fact that must be determined at trial concerning whether the
date of the wrongful retention occurred prior to June 15, 1994. If
it did, then the Court can also consider at trial evidence
relating to whether the child is settled in her new environment.

Second, Petitioner requests that the Court determine as a matter
of law that there is no issue of “grave risk” to the child under
Article 13 of the Convention. This Article provides in pertinent
pad that:
Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return
of the child if the person . . . which opposes its
return establishes that– (b) there is a grave risk
that his or her return would expose the child to
physical or psychological harm or otherwise place the
child in an intolerable situation.

Art. 13.

Petitioner asserts that this Article does not allow, despite its
wording, a consideration of whether the Petitioner is likely to
abuse the child. Petitioner bases this interpretation on other
international decisions which have interpreted this Article as
applying only when the country of habitual residence does not have
a welfare system to protect the child from abuse. See Evans v.
Evans, [1989] Fam. Law. 105 (Ct. App. United Kingdom 1989).
Indeed, this interpretation has been accepted in part by the Sixth
Circuit’s recent holding in Friedrich v. Friedrich, 78 F.3d 1060,
1069 (6th Cir. 1996). Therein, the Sixth Circuit confined
consideration of abuse to instances in which the court of the
country of habitual residence may be incapable or unwilling to
give the child adequate protection. Id. Therefore, the Court
determines that the trial of the Article 13 issue of abuse will be
determined in accordance with Friedrich and that the evidence
submitted on this Article 13 issue should be confined to whether
the Norwegian Court is unable or unwilling to provide the child
protection from abuse.

Accordingly. the motion for reconsideration is granted in part and
denied in part.

Dated in Kalamazoo, Ml: /s/ Richard Alan Enslen
Chief Judge

1. Ordinarily, the Court reviews a motion requesting a
reconsideration of a summary judgment motion based on the
standards applicable to summary judgment motions. Anderson
v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). However,
in this case, the motion is premised on assertions that the
Court made errors of law relating to its interpretation of
the Hague Convention such that the Court need only determine
whether those interpretations of law were mistaken.