USA – FEDERAL – JOHNSON – 1996

Johnson and Johnson (USA 1996)Note from US Central Authority to Swedish Central Authority
9 International Abduction [USA 1996]
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United States Department of State
Washington, D.C. 20520

OFFICE OF CHILDREN’S ISSUES
U.S. CENTRAL AUTHORITY
HAGUE CONVENTION ON THE CIVIL
ASPECTS OF INTERNATIONAL CHILD ABDUCTION

Tel. (202) 647-2688
Fax. (202) 647-2835

DATE: January 30, 1996
TO: Agneta Lundvall
Central Authority of Sweden

FROM: Leslie Rowe, Director
Central Authority of the United States

SUBJECT: The Hague Convention on the Civil Aspects of
International Child Abduction: Issues Raised By
the Case of Amanda Johnson.

001 In the United States, persons not party to a case
being considered by our Supreme Court, including foreign
governments, may submit relevant information to the court as
amici curiae (“friends of the court”) in connection with
pending cases with potentially broad ramifications. We have
been advised that Sweden does not have a similar formal
process, but that your office would, if asked, pass to the
Regeringsratten a statement by the United States Government
in a case raising issues under the Hague Convention on the
Civil Aspects of International Child Abduction of possible
significance for other international custody cases.

002 The Regeringsratten is now considering whether to
permit the return to the United States of Amanda Johnson, as
ordered by the Lansratten administrative court on October 6,
1995, and the Kammaratan administrative appeals court on
December 19, 1995. After careful review of the Johnson
case, we have concluded that it raises issues relevant to
the integrity and future success of the Hague Convention.
Accordingly, in light of our understanding that the Swedish
Central Authority could appropriately make our views known
to the court, we have prepared the attached statement
addressing the jurisdictional issue presented by the case.
We understand that the court will next discuss the Johnson
case tomorrow (January 31); we therefore hope that the
attached statement can be made available to the court
promptly. We regret that, in the interests of providing this
statement as soon as possible, we have not yet been able to
complete a Swedish translation. We will forward a
translation to you as soon as possible.

003 Thank you for your cooperation in this important
matter.

STATEMENT OF THE UNITED STATES
REGARDING HAGUE CONVENTION ISSUES OF GENERAL RELEVANCE
PRESENTED BY THE PARTICULAR CASE OF
AMANDA JOHNSON

Background

004 Mr. Thomas Johnson, a citizen of the United States,
seeks the return of his minor daughter, Amanda Johnson, a
dual citizen of the United States and Sweden, to his
physical custody under the Hague Convention on the Civil
Aspects of International Child Abduction. Mr. Johnson also
seeks to ensure that any future decisions on custody are
resolved by the court of the State of Virginia that entered
the custody order under which Amanda came to live in Sweden
in 1993.

005 Amanda was born in Switzerland in 1987. Mr. Johnson
and his wife, Ms. Anne Franzen-Johnson, a national of
Sweden, lived there from the time of their marriage in 1986
until 1990. In 1990, Ms. Franzen, an employee of the
Swedish Foreign Ministry, was reassigned to the Swedish
consulate in New York City, where she took up residence, and
Mr. Johnson, an employee of the U.S. Department of State,
was reassigned to Washington. D.C. and took up residence in
the State of Virginia. Between 1990 and 1993, Amanda lived
alternately with Mr. Johnson in Virginia and Ms. Franzen in
Now York.

006 Mr. Johnson and Ms. Franzen decided to divorce and
eventually agreed that jurisdiction over their divorce and
custody issues should be assumed by the courts of Virginia
rather than the courts of New York. Pursuant to an order of
a Virginia court that was entered in divorce and custody
proceedings that spanned 1991 – 1993, Mr. Johnson and Ms.
Franzen now share joint custody of Amanda, with primary
physical custody shifting between the father and mother
approximately every two years. The parent who does not have
primary physical custody is to have significant
visitation/access rights during the period that the other
parent has primary physical custody. In accordance with this
arrangement, Amanda left the United States for Sweden with
her mother in June 1993, on the understanding that she would
attend school there for two academic years, have significant
visitation with Mr. Johnson, and return to Mr. Johnson’s
physical custody effective August 20, 1995, so that she
could then spend two academic years In Virginia.

007 As modified in June, 1993, and finalized in December,
1993, the Virginia custody order includes an agreement by
the parties that Virginia is Amanda’s place of habitual
residence and that the Virginia court will maintain
continuing and exclusive jurisdiction to resolve all future
custody issues involving her. Ms. Franzen has not asked the
Virginia court to modify the December 1993 custody order. In
January 1995, however, Ms. Franzen sought to commence new
custody proceedings in the courts of Sweden, and asked that
she be awarded sale custody of Amanda. Ms. Franzen did not
transfer primary physical custody of Amanda to Mr. Johnson
nor permit Amanda’s return to the United States on August
20, 1995, as provided in the Virginia order.

008 The Lansratten administrative trial court on October
6, 1995, ordered Amanda’s return to Mr. Johnson effective
November 11 1995. Upon appeal, the Karnmaratan
administrative appeals court, on December 19, 1995,
similarly ordered that Amanda be returned, to Mr. Johnson,
on December 22, 1995. Enforcement of that order has been
delayed pending appeal by Ms. Franzen. The question whether
to enforce the return order is now before the
Regeringsratten.

The Nature of the Case as a Precedent

009 The Johnson case presents an important issue under the
Hague Convention and its resolution could have significant
implications for future international custody disputes. A
major achievement of the Convention was the establishment of
a rule of jurisdiction to govern responsibility for
resolving custody disputes between parents. By determining
the appropriate jurisdiction to be responsible for custody
matters, the Convention sought to discourage international
child abduction; absent the Convention’s jurisdictional
rule, parents would be free to engage in'”forum shopping” by
abducting or wrongfully retaining the child away from the
normal country of jurisdiction to some other country, hoping
that the second country would be more sympathetic to the
abducting (or retaining) parent in a custody proceeding.

010 The jurisdictional rule of the Convention is that
custody disputes should be resolved in the child’s place of
habitual residence. In the Johnson case, Amanda’s habitual
residence was indisputably in the United States when the
parents divorced and needed to resolve their custody issues.
Amanda and both of her parents were residing in the United
States. Although they had moved to the United States from
Switzerland, there was no plan that they or Amanda would
return to Switzerland, and Amanda at that time had visited
but never resided in Sweden.

011 The parents and the Virginia court were then faced
with the choice common to all custody cases: whether the
parents should have joint custody, or whether one parent
should have sole custody. An award of sole custody to Mr.
Johnson would presumably have meant that Amanda would never
have lived in Sweden for any significant period as a child.
An award of sole custody to Ms. Franzen would presumably
have meant that Amanda would have continued to reside in the
United States until Ms. Franzen’s assignment to New York
ended, and then would have gone with Ms. Franzen to the
country to which Ms. Franzen was next assigned (which, in
the end, was Sweden).

012 The choice between sole and joint custody was
complicated by a factor that will be common to any custody
dispute involving parents of different nationalities when
one parent explicitly intends to abandon residence in the
country of habitual residence; allowing the child to live
with the parent who does not intend to remain in the country
will create the possibility of a wrongful retention of the
child (which is a de facto “abduction”) if the child is
permitted temporarily to leave the jurisdiction with the
parent and the parent then seeks to establish the child’s
“habitual residence” elsewhere. This was a particularly
difficult prospect in the Johnson case because Ms. Anne
Franzen-Johnson might have been assigned to Swedish
diplomatic posts outside of Sweden, allowing Amanda to
reside with Ms. Franzen even temporarily could have created
the possibility of competing custody proceedings in several
different jurisdictions if each post of assignment could
have become Amanda’s habitual residence for purposes of the
Hague Convention.

* * * * *

013 It is apparent from this analysis that, if a child’s
temporary but extended residence outside the country of
habitual residence with original jurisdiction over custody
issues could result in a change of habitual residence for
Hague Convention purposes, the parents involved would have
no incentive to agree amicably to joint custody arrangements
or to permit the child to live for substantial periods with
each parent, in different countries. The parents then almost
certainly would each insist upon sole custody. This would,
in the first instance, have the insidious result of
substantially prolonging the custody dispute by making it
more difficult for the parents to come to agreement.

014 Moreover, and of particular relevance vis-a-vis the
Hague Convention, if the locus of habitual residence were
permitted to shift each time the child moved to another
country to live temporarily pursuant to a court-approved
joint custody agreement entered by the court that initially
had jurisdiction for Hague Convention purposes, the Hague,
Convention’s goals of preventing jurisdiction from being
established through an unlawful abduction or retention would
be thwarted. Indeed, the possibility of shifting habitual
residence would increase the possibility that the child
would eventually be abducted or wrongfully retained by the
parent outside the original jurisdiction.

015 For these reasons, the United States believes that,
when a custody order entered in a child’s country of
habitual residence permits the child temporarily to live in
another country, but clearly evidences an intent that the
child will return to the country in which the order is
entered, it should be understood that the child’s habitual
residence, for purposes of the Hague Convention, remains in
the original country and does not shift to the country of
permitted temporary residence. This should be particularly
true when one of the parents remains in the place of
habitual residence, and when the parents have themselves
agreed that the country of the original custody order shall
always be the jurisdiction of habitual residence. Adherence
to these basic principles will best further the overall
goals of the Hague Convention, and will be particularly
important in cases of joint custody.

016 As suggested above, any other approach would result in
a continual shifting of jurisdiction over custody issues,
with all of the uncertainty and instability that such
shifting would necessarily engender. It would also create
incentives for child abduction and forum shopping and
ultimately would encourage consensual custody settlements
that seek to ensure that the dual-national child maintains
strong ties to both parents and to both countries of its
nationality.

017 The United States notes that recognizing habitual
residence in the country that originally has custody
jurisdiction for Hague Convention purposes and to which the
child will return will in no way compromise the best
interests of the child. In fact, it will ensure that all
custody issues will be heard by a court fully familliar with
the history of the parents’ custody dispute and the child,
and therefore best able to resolve any disputes in the
child’s best interests. To the extent that psychological or
other reasons may be advanced to change a custody
arrangement that is in place, the court of habitual
residence when the custody arrangement was originally
established will be the appropriate forum to consider
whether the custody arrangement should be modified. In the
Johnson case, for example, Ms. Anne Franzen-Johnson is free
to ask the Virginia court to modify its original joint
custody decree, and to award her sole custody or other
appropriate relief, if it determines that such an
arrangement would be in Amanda’s best interests. The burden
on Ms. Franzen of doing so is no less than the burden would
be on Mr. Johnson if he were required to address the custody
issues in a Swedish court (in which case neither parent
would have the benefit of the Virginia court’s prior
expertise In the case). What is more important, however,
lest the objectives of the Hague Convention be undermined,
is to ensure that the jurisdiction of the court of habitual
residence is not lost when the court permits a child
temporarily to reside in another country on the agreed
understanding that the child will return. Otherwise, courts
will be unlikely ever to agree to such temporary residence
abroad.