USA – FEDERAL – FJELDHEIM – 1996 (Motions for summery judgement denied) FJELDHEIM v FJELDHEIM. The mother takes the child for a visit to the United States. The lower court ruled that the child was not wrongfully retained in the U.S. because the child had reached an age of maturity to decide where she wanted to live. Both the mother and father apply to the U.S. district Court for a summary judgement regarding the return of the child to Norway pursuant to the terms of ICARA. The court ruled that this was a matter for trial and denied both petitions of summery judgement.


Fjeldheim v Fjeldheim (W.Dist.Mich. So.Div. 1995)No. 1:95-CV-394, 19 Jan 1996


In re:

The Application of


Petitioner, File No. 1:95CV-394
v. Hon. Richard Alan Enslen



This matter is before the Court on the parties’ respective motions
for summary judgment regarding this petition for the return of the
child, Tove Johanne Anderson FJeldheim, to the Country of Norway
pursuant to the terms of International Child Abduction Remedies
Act (42 U.S.C. Sec 11601 et seq.). For the reasons which follow,
these motions shad be denied.


These motions concern the family life of Terje Bye Fjeldheim, Sara
Marie Anderson, and their daughter Tove Johanne Anderson
Fjeldheim. Terse Fjeldheim is a native citizen of Norway; Sara
Anderson is a native citizen of the United States; and Tove
Anderson Fjeldheim is a dual citizen of the United States and
Norway. It appears from the affidavits filed that Petitioner and
Respondent were married in Oslo, Norway on November 14, 1980, and
that Tove was born in Oslo, Norway on March 11, 1982. It further
appears that Tove lived in Oslo, Norway between 1987 and April 3,
1994. At which time, the child was taken with her father’s
permission to Traverse City, Michigan — according to him for the
purpose of a temporary visit of her grandparents which was
supposed to end on July 1, 1994.

Needless to say, Tove was not returned to Norway. On June 16,
1994, Respondent filed a complaint for ex parte temporary custody
and restraining order with the 13th Circuit Court for the County
of Grand Traverse, Michigan. Copies of these pleadings and others
noticing a hearing before the Circuit Court on August 18, 1994
were personally served on Petitioner on July 6, 1994. There having
been no answer by Petitioner to the Circuit Court, the county
clerk entered the default of the Petitioner and notice of the
default was sent to Petitioner on August 11, 1994. Neither
Petitioner nor an attorney on his behalf appeared for the
scheduled August 18, 1994 hearing and the Circuit Court then
entered an order awarding custody to the Respondent and further
finding that under the Hague Convention of the Civil Aspects of
International Child Abduction and the International Child
Abduction Remedies Act that the child was not wrongfully retained
in the United States because the child was of sufficient age to
express a preference as to her place of residence and had
expressed a preference to remain in the United States. Such order
was based in part on the testimony of both the Respondent and of
Tove FJeldheim, who stated in part that she did not wish to return
to Norway and wished to live with her mother in Michigan.

Meanwhile, the Petitioner was pursuing remedies under the Act
through the State Department. It appears that Petitioner filed a
petition for repatriation of Tove pursuant to the Hague Convention
with the Norwegian Ministry of Justice and Police on June 21,
1994, which was then forwarded to the United States State
Department Office of Children’s Issues on June 27, 1994
Apparently, the State Department misinformed the Petitioner by
letter of August 12, 1994 that the Circuit Court action would not
proceed because of the issues under the Hague Convention (which
according to Petitioner would have been the correct response to
the petition under Article 16 of the Hague Convention).
Petitioner also sued In the Sarpsborg City Court for marital
separation and custody on February 10, 1995. According to
Petitioner, he recently received an order from the pertinent
Norwegian appellate court granting him joint custody of Tove
pending a final determination — but giving Respondent daily care
of Tove until such determination was made.

Petitioner, through his attorneys, then filed this application for
the return of the child in this Court on June 15, 1995. Petitioner
claims that the child should be returned to Norway because she was
wrongfully retained in Michigan from her country of habitual
residence by her mother. To the contrary, the Respondent claims
that the Circuit Court has already determined that the child was
not wrongfully retained and that it is in the best interests of
the child to remain win her mother.


Federal Rule of Civil Procedure 56(c) provides that summary
Judgment is proper “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with affidavits,
if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to Judgment as a maker
of law.” City Management Corp. v. U.S. Chemical Co. 43 F.3d 244,
250 (6th Cir. 1994) (quoting Rule 56(c)).

“A party seeking summary judgment bears the initial burdens of
specifying the basis upon which it contends judgment should be
granted and of identifying that portion of the record which, in
its opinion, demonstrates the absence of a genuine issue of
material fact.” Pierce v. Commonwealth Life Ins Co., 40 F.3d
796, 800 (6th Cir. 1994) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986)). “Once this initial burden is met, it
becomes the burden of the non-moving party to come forward with
specific facts, supported by the evidence in the record, upon
which a reasonable jury could find there to be a genuine fact
issue for trial. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d
201, 205 (6th Cir. 1995) (citing Anderson v. Liberty Lobby. Inc..
477 U.S. 242, 248 (1986)). Summary judgment against the non-movant
is appropriate where the non-movant, after adequate time for
discovery on material matters at issue, fails to make a showing
sufficient to establish the existence of a material disputed fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

“Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences are [trial] functions, not
[summary judgment functions] . . . The evidence of the non-movant
is to be believed, and all justifiable inferences are to be drawn
in [the non-movants] favor.” Anderson 477 U.S. at 255. The
factual record presented must be interpreted in a light most
favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp 475 U.S. 574, 587 (1986). This Court “may not resolve
disputed questions of fact in a summary judgment decision . . .
and if a disputed question of fact remains, the district court
should deny the motion for summary judgment and proceed to trial.”
In re Atlas Concrete Pipe Inc., 668 F.2d 905, 908 (6th Cir. 1982).


Respondents motion for summary judgment is based on her argument
that the principles of collateral estoppel and res judicata and
the Constitution’s Full Faith and Credit Clause require that the
Court enforce the order of the Circuit Court determining that the
Hague Convention and the Act did not require Tove’s return to
Norway. 28 U.S.C. 1738; United States v. McGlocklin, 8 F.3d 1037,
1052 (6th Cir. 1993). Petitioner’s response is that these orders
are without effect because the Circuit Court lacked subject matter
jurisdiction under the Act to make such a determination. United
States v. Brady, 936 F.2d 212. 216 (5th Ctr. 1991); Heikkinen v.
Hovinen, 7 Mlch. App. 541, 545, 152 N.W.2d 163, 165 (1967).

To understand Petitioner’s response requires a discussion of the
terms and purposes of the Convention and the Act. The Hague
Convention of the Civil Aspects of International Child Abduction
was signed into international law on October 25, 1980 for the
purposes of “secur[ing] the prompt return of children wrongfully
removed or retained in any contracting State; and . . . ensur[ing]
that rights of custody and of access under the law of one
Contracting State are effectively respected in other Contracting
States.. Art. 1. Its terms have been implemented by the laws of
all countries adopting the Convention. In the United States, its
terms have teem implemented through the terms of the International
Child Abduction Remedies Act (42 U.S.C. 11601 et seq).

Under the terms of the Act, it is clear that both state and
federal courts have subject matter jurisdiction to make
determinations under the Act when a petition is filed by the
parent claiming the abduction or retention. See 42 U.S.C.
11603(a), (b); Tyszmka v Tyszkma 200 Mlch, App, 231, 503 N.W.2d
728 (1993). However, it is far less clear whether the courts have
jurisdiction when the complaint is filed by the parent who has
retained possession of the child. This Is because the Act and
Convention are worded In such a way to address remedies for the
“petitioner” or “applicant” — which would seem to apply only to
the parent who has lost custody of the child and is seeking return
of the child. See 51 Fed. Reg. 10493, 10503 (1993); 42 U.S.C.
11602(1), 11602(4), 11603(b). While the Respondent argues that
such is too narrow of a reading of the grant of jurisdiction under
the Act and essentially throws a wrench into the workings of the
Act (which contemplates that state courts will first make a Hague
Convention analysis before proceeding to determine custody), the
Petitioner argues that this result is required by the language of
the Convention and Act and is in keeping with the purpose of the
Convention and Act that the parent residing in the place of the
child’s habitual residence have control over the forum that
determines the custody issue. Peter H. Pfund, “The Hague
Convention on International Child Abduction, the International
Child Abduction Remedies Act, and the Need for Availability of
Counsel for All Petitioners.” 24 Fam.L.Q. 35, 43 (1990).

Were this dispute about only the reading of the words Petitioner
and Applicant — then perhaps those words could be read broadly to
accommodate the interests advanced by the Respondent. However, the
reading of those words, and of the Act and Convention in general,
are intermeshed with their purposes — which are to discourage the
settling of custody disputes across foreign borders. The purpose
of the statute is fundamental to its interpretation since, as
Judge Learned Hand once wrote, “[statutes] should be construed,
not as theorems of Euclid, but with some imagination of the
purposes which lie behind them.” Lehigh Valley Coal Co. v.
Yensavage, 218 F. 547, 553 (2nd Cir. 1914); see also Connecticut
Nat’l Bank v. Germain, 503 U.S. 249, 255 n.1 (1992) (J. Stevens
concurring) (quoting Lehigh, supra). To this end, the terms
“petitioner” and “applicant” are meant to apply only to the parent
whose child has been taken from him/her and away from the child’s
country of habitual residence. Accordingly, this Court determines
that the state court lacked subject matter jurisdiction to
determine the Hague Convention issues since no “petition” or
“application” had been filed with it. As such, its determination
of these issues has no binding effect on this Court, nor any
other. Accordingly, Respondent’s motion for summary judgment is


As for Petitioner’s motion for summary judgment, it is true that
he has established a prima facie case of wrongful retention of a
child away from her place of habitual residence. Friedrich v.
Friedrich, 983 F.2d t396, 1400 (6th Cir. 1990). However, it is
also true that the Respondent has submitted substantial evidence
which would tend to establish some of the exceptions under
Articles 12 and 13 of the Convention — among others, that the
child is now settled in her new environment,2 and that she does
not wish to return to Norway and and is of sufficient age and
maturity to express her preference. Hence, the determination of
these issues require trial and are not appropriate for summary
judgment under Rule 56. Therefore, Petitioner’s motion for summary
judgment is denied.3


An Order shall be entered denying said motions, consistent with
this Opinion.

Dated In Kalamazoo, Ml /s/ Richard Alan Enslen
Chief Judge

1. Respondent has also pointed to evidence of other defenses
under Article 13 of the Convention — especially including
the fact that the child has stated for the record that she
does not wish to reside with her father. However, each of
these issues are not appropriate for summary judgment
because they involve the weighing of issues (like whether
the child is sufficiently mature to express a preference)
which cannot be determined from a cold record.

2. The Petitioner notes that there was less than a year from
the date the wrongful retention to the date that this
petition was filed. This is significant since the terms of
Article 12 would would appear to require that the Court
order return of the child immediately. However, when read
closer, Article 12 does permit the Court to consider whether
the child is settled in a new environment after more than
one year from the date of the wrongful retention. In this
case, the Court believes that the pertinent date for timing
purposes is the April 3, 1994 date when the visit began.
Since more than one year elapsed between that date and the
date the petition was filed, the Court can consider evidence
relating to whether the child now has become settled in her
new environment — in addition to other exceptions in
Article 13.

3. Furthermore, while this Court does have authority under
Article 16 of the Convention to order the return of be child
notwithstanding the evidence of exceptions, the Court deems
no sound reason for exercising that authority in this case.