USA – FEDERAL – JOHNSON – 1997 JOHNSON v JOHNSON. The mother appeals the Virginia trial court’s decision granting sole custody of the child to the father. The appeals court affirms the trial court’s decision.
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Johnson v Johnson (Va.App. 1997)493 S.E.2d 668
11 International Abduction [USA 1997]
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Anne Franzen Johnson
v.
Thomas Arthur Johnson
Record No. 2200-96-4, Court of Appeals of Virginia, Richmond.
09 Dec 1997
Fitzpatrick, Chief Judge
001 <* page 669> Anne F. Johnson (mother) appeals the trial
court’s decision granting sole custody of Amanda Johnson (child)
to Thomas A. Johnson (father). Mother argues that the trial court
erred in: (1) finding that it had jurisdiction to modify its
prior custody order; (2) refusing to defer the exercise of
jurisdiction over the custody of Amanda to the Swedish courts;
and (3) finding mother in contempt. We hold that the trial court
properly exercised its jurisdiction and affirm.
BACKGROUND
002 Father is an attorney with the United States Department of
State, and mother is an attorney with the Swedish Ministry of
Foreign Affairs. The parents met in Switzerland and were married
on December 6, 1986. Their only child was born in Switzerland on
November 11, 1987. In 1990, father was posted to Washington, D.C.
and moved to Virginia, and mother wag posted to New York City.
The child split her time equally between her parents’ homes.
003 The parties separated on December 31, 1990. Mother first
filed for custody in New York City, but the parties agreed that
Virginia was the more appropriate forum. On February 8, 1991,
they signed a Settlement Agreement providing for joint custody
and giving the child essentially equal time with both parents.
The Circuit Court of the City of Alexandria (trial court)
incorporated this agreement into a final divorce decree dated
February 11, 1992. The terms of the custody agreement required
the child to spend two weeks with father and two weeks with
mother on an alternating basis. The trial court found that in
this, “unique” situation, the child had a “fully established
homes in both Virginia and in New York, with a separate set of
friends, social activities, schooling, church, and recreational
activities of the most comprehensive nature in both locations.”
004 <* page 670> On June 16, 1993, father filed a petition and
affidavit for modification of the custody decree because of his
concern that mother was planning to relocate to Sweden with the
child. Father alleged that he had been advised “on competent
authority by Swedish counsel” that the only way a Virginia court
could-maintain jurisdiction was to “provide for alternating but
equal time of no more than one school year, i.e. one year in
Sweden and one year in the United States, with the specific
finding that the Father’s domicile will remain the habitual
residence of the child.” (Emphasis added). Father requested the
following:
005 That for the foregoing reasons, none of which
were contemplated at the time the last custody
decree was entered and which constitute a
substantial change in circumstances, the best
interests of the child require that a
modification decree be entered by this Court
providing, at a minimum, that the parties
alternate custodial residences with the minor
child from school year to school year, with an
equal division of remaining time, and with
appropriate custodial visitation time while the
child is with each parent, and that a finding be
made that the Father’s domicile shall be the
child’s habitual residence regardless of time
which the child may be scheduled to spend with
her mother in Sweden.
006 On June 23, 1993, the trial court scheduled a hearing on
the merits. Pending that hearing, the trial court ordered that
the minor child’s “habitual residence” was to he the residence of
her father in Virginia, and that it had continuing and exclusive
jurisdiction to decide all matters concerning the care and
custody of the child. The court also allowed mother to take the
child with her to Sweden until three days prior to the date set
for trial, but provided as follows:
007 That the failure of [mother] to return to
the Commonwealth of Virginia … with the minor
child … as required by the terms of this Decree
shall constitute contempt of this Court Order and
cause an immediate vesting of sole custody of the
minor child of the parties in the Petitioner.
008 That [mother] is enjoined and prohibited
from taking any action to change or modify this
Decree or to seek custody of the minor child of
the parties through the courts of Sweden or any
other jurisdiction except the Circuit Court for
the City of Alexandria….
009 Both parties and their respective counsel agreed to the
terms of the decree and endorsed the order with no objection.
010 At the ore tenus hearing on November 12, 1993, both
parties were represented by counsel. Claes Renstrom, a Swedish
domestic relations attorney, testified as an expert witness for
father regarding the enforceability of the parties’ custody
agreement by a Swedish court. He testified that:
011 [t]he important thing regarding this whole
case from the Swedish point of view is the
question of whether [the child] will acquire
habitual residence, or domicile, which … in …
Swedish legal terms is called hemvist (phonetic)
in Sweden.
012 If she has that, and if she requires [sic]
this, and let’s call it domicile, or habitual
residence, or whatever you like, . . . if she
acquires that, then it is possible for Mrs.
Johnson at every time to go to the Swedish Court,
and ask to have sole custody of the child.
013 Following this hearing, the parties agreed to settle the
issue of custody and a final consent order was entered on
December 28, 1993. This order modified the custody terms of the
divorce decree and outlined a new schedule for physical custody.
FN01 The trial court also made the following findings:
014 [T]his Court hereby expressly finds that it
has continuing and exclusive jurisdiction to
decide all matters relating to the care and
custody of the minor child … ; and the
Petitioner’s residence in the Commonwealth of
Virginia, United States of Amer- <* page 671>
ica, and not Sweden, shall constitute the place
of residence for the purpose of all adjudications
of custody and visitation of the said minor
child; and, that the Courts of Sweden as well as
all other courts anyplace in the world, shall not
acquire jurisdiction over the custody of the
child by reason of the Respondent’s residence in
the Country of Sweden. . .
IT IS FURTHER ORDERED that neither party shall
seek modification of this Order without prior
leave of this Court and Notice to the other
party.
015 Mother made no objection to this order and agreed to its
provisions. Shortly thereafter, she relocated to Sweden and took
the child with her. Visitation proceeded on schedule until early
1995.
016 In January 1995, mother, contrary to the December 28, 1993
consent order, filed for custody in the Solna District Court of
Sweden. That court issued a “writ of summons” requiring father to
appear to “reply to the points of claim and other submissions
presented by” mother. Additionally, mother refused to cooperate
with father’s upcoming Easter visitation.
017 On March 20, 1995, father filed in the trial court a
“motion for order finding defendant in violation of custody
decree and wrongfully retaining child in violation of
complainant’s custodial rights.” Father alleged several
violations of the express terms of the December 1993 consent
order, including the fact that mother had instituted a court
action in Sweden, that she had attempted to invoke the
jurisdiction of the Swedish court over the custody issue, that
she had refused all attempts by father to schedule his weeks of
physical custody of the child, and that she had wrongfully
retained the child.
018 On March 27, 1995, the trial court held a hearing on
father’s motion. The hearing was continued “for the purpose of
giving [mother] the opportunity to explain her conduct, obtain
active representation of her interests, and inform the Court of
any relevant and pertinent information.” Mother acknowledged
notice and requested another continuance because she could not
make travel arrangements or arrange for representation in such a
short time. On April 12, 1995, the court denied her request and
issued an order finding mother in violation of the express terms
of the December 1993 order and directing mother to relinquish
custody to father to compensate him for the time she had
wrongfully retained the child. FN02
019 On May 9, 1996, the Swedish Supreme Administrative Court
(Regeringsratten) issued its decision finding that mother had not
illegally retained the child and that the child’s “hemvist” was
in Sweden. FN03 The court ruled that “[tlhe requirements for
transfer of <* page 672> Amanda to the USA on the basis of the
enforcement act therefore do not exist. Anne Franzen Johnson’s
main request should therefore be granted.”
020 In July 1996, father filed a “motion for order of sole
custody to be granted complainant together with other relief.”
Additionally, he filed an affidavit and a “petition for issuance
of rule to show cause.” On July 3, 1996 the trial court issued a
rule to show cause against mother for contempt of the court’s
custody order. In August 1996, mother filed a “motion to dismiss
or defer” in the trial court. Father filed a response and a
crossmotion for sanctions against mother. After a hearing at
which mother was represented by counsel, the trial court found
mother to be “in willful, multiple, and continuing contempt of
this Court’s orders of December 28, 1993 and April 12, 1995.” The
court also directed mother to produce the child, ordered mother
to pay a fine and father’s attorney fees and related costs,
terminated father’s child support obligation, and granted sole
and exclusive custody to father. In addition, the court reserved
jurisdiction as necessary and enjoined mother from proceeding any
further in the courts of Sweden with any aspect of visitation or
custody.
II. STANDARD OF REVIEW
021 In its deliberation concerning a child’s welfare,
including its determination of jurisdictional and enforcement
issues, the trial court must make the child’s best interests its
primary concern. See Code 20-124.2(B). See also Farley v.
Farley, 9 Va.App. 326, 327-29 1 387 S.E.2d 794, 795-96 (1990).
“[T]rial courts are vested with broad discretion in making the
decisions necessary to guard and to foster a child’s best
interests.” Farley, 9 Va.App. at 328, 387 S.E.2d at 795 (citing
Eichelberger v. Eichelberger, 2 Va.App. 409, 412, 345 S.E.2d 10,
12 (1986)). “A trial court’s determination of matters within its
discretion is reversible on appeal only for an abuse of that
discretion.” Farley, 9 Va.App. at 328, 387 S.E.2d at 795 (citing
M.E.D. v. J.P.M., 3 Va.App. 391, 398, 350 S.E.2d 215, 220
(1986)). “We view the evidence and all reasonable inferences in
the light most favorable to the prevailing party below.” Lutes v.
Alexander, 14 Va.App. 1075, 1077, 421 S.E.2d 857, 859 (1992)
(citation omitted). “Where a trial court makes a determination
which is adequately supported by the record, the determination
must be affirmed.” Farley, 9 Va.App. at 328, 387 S.E.2d at 796.
III. JURISDICTION
022 Mother first argues that the trial court did not have
jurisdiction to modify the December 1993 consent decree because
the child’s connections to Virginia had dissipated. In the
alternative, she contends that the trial court erred in refusing
to defer jurisdiction to the Swedish court as a more convenient
forum, as the child’s new home state, or as the site of a
legitimately pending litigation. We hold that the trial court had
continuing jurisdiction to enforce its own decree, and did not
abuse its discretion when it refused to defer jurisdiction to the
Swedish court.
Continuing Jurisdiction
023 A Virginia trial court has continuing jurisdiction over
the modification and enforcement of its decrees.
024 The court may, from time to time … revise
and alter [its] decree concerning the care,
custody, and maintenance of the children and make
a new decree concerning the same, as the
circumstances of the parents and the benefit of
the children may require. The intentional
withholding of visitation of a child from the
other parent without just cause may constitute a
material change of circumstances justifying a
change of custody in the discretion of the court.
Code 20-108. See also Orlandi v. Orlandi, 23 Va.App. 21, 26,
473 S.E.2d 716, 718 (1996). “The court shall have the continuing
authority and jurisdiction to make any additional orders
necessary to effectuate and enforce [custody and visitation
orders].” Code 20124.2.
025 In the instant case, the trial court’s consent decree of
December 1993 set out a schedule for shared custody and several
other provisions, including an agreement that neither party would
initiate related proceedings elsewhere without the permission of
the trial court. Both parties agreed to be bound <* page 673> by
these terms. When mother filed for custody in Sweden in January
1995, the Virginia trial court clearly had jurisdiction to
consider this violation and to enforce its ongoing decree.
026 Mother argues that the child’s connections with Virginia
dissipated during the time she was in Sweden throughout 1994 and
thus rendered these provisions unenforceable. This argument
ignores the fact that the child was located in Sweden pursuant to
the Virginia trial court’s custody schedule, which allocated
equal time to each of the parents. At no time did the child’s
“residence,” as agreed to by the parties, change. The mere fact
that mother received her scheduled time first under the order did
not invalidate the remainder of the agreed-upon schedule or the
other court-ordered provisions.
027 A party must obey an existing custody order until a
modification order supersedes it. “[T]he custody decree is
conclusive as to all issues of law and fact decided and as to the
custody determination made unless and until that determination is
modified pursuant to law.” Code 20-135. Here, mother, who had
consented to the custody order and schedule, denied father his
court-ordered visitation and refused to return the child to
Virginia, as the consent decree directed. These actions do not
support her contention that she has acted “in good faith and in
orderly fashion.” Rather, they provide apt justification for the
trial court’s enforcement of its decree. To hold otherwise would
allow any dissatisfied custody litigant to divest a court of its
inherent power to enforce a valid order by simply taking the
child to another jurisdiction. Such an outcome is not
contemplated by either historical analysis or statutory
authority.
Inconvenient Forum
028 Mother next contends that even if the trial court had
continuing jurisdiction to modify its existing custody decree, it
erred by failing to defer jurisdiction to Sweden as a more
convenient forum under Code 20-130. Mother has not demonstrated
error or an abuse of discretion in the trial court’s exercise of
jurisdiction over this matter.
029 The Uniform Child Custody Jurisdiction Act (UCCJA) is a
reflection of the public concern over the increasing numbers of
multi-jurisdictional custody battles. Although the UCCJA
explicitly applies to states and possessions of the United
States, Code 20125(10), “[t1he general policies of this chapter
extend to the international area.” Code 20-146. Of particular
concern is the frequency of child-snatching and wrongful
retention:
030 Often, the parent who loses the custody
fight, is unwilling to accept the court’s
judgment. The dissatisfied parents will remove
the child in an unguarded moment or fail to
return him after a visit and will seek their luck
in the court of a distant state where they hope
to find-and often do find-a more sympathetic ear
for their plea for custody.
* * * * * * *
[T]he Virginia UCCJA was enacted to avoid
jurisdictional competition and conflict with
courts of other states in matters of child
custody; to promote cooperation with courts of
other states … to discourage continuing
controversies over child custody; to deter
abductions and other unilateral removals of
children undertaken to obtain custody awards, . .
. and to promote the exchange of information and
other forms of mutual assistance between courts
of this state and those of other states concerned
with the same child.
Middleton v. Middleton, 227 Va. 82, 91, 93, 314 S.E.2d 362, 366,
367 (1984) (citation omitted) (emphasis added).
031 Under Code 20-130(A), “[a] court which has jurisdiction
[to modify a decree] may decline to exercise its jurisdiction …
if it finds that it is an inconvenient forum … and that a court
of another state is a more appropriate forum.” We will reverse
the court’s decision only upon a finding of abuse of discretion.
See Farley v. Farley, 9 Va. App. 326, 328, 387 S.E.2d 794, 795
(1990).
032 When conducting a forum non conveniens analysis,
the court shall consider if it is in the interest
of the child that another state assume
jurisdiction. For this purpose, it <* page 674>
may take into account the following factors,
among others:
1. If another state is or recently was the
child’s home state;
2. If another state has a closer connection with
the child and his family or with the child and
one or more of the contestants;
3. If substantial evidence concerning the child’s
present or future care, protection, training, and
personal relationships is more readily available
in another state; and
4. If the parties have agreed on another forum
which is no less appropriate.
Code 20-130(C) (emphasis added).
033 Applying these factors, we find the trial court did not
err in refusing to decline jurisdiction under the facts of this
case. Virginia was and is the child’s home state by agreement.
Under the consent decree, father’s residence in Virginia was the
child’s “place of residence for the purpose of all adjudications
of custody and visitation.” The parties agreed to this place of
residence designation in anticipation of the child’s stay in
Sweden. The child was to have equal time in both homes. But for
mother’s wrongful retention, the child would have been returned
to Virginia. While the most recent evidence concerning the
child’s care was in Sweden, pursuant to the terms of the December
1993 consent decree, the evidence concerning the child’s future
care would develop in Virginia. Finally, and of equal importance,
the parties formally agreed that they intended that “Virginia
shall be the only forum for adjudication of custody … matters.”
Also relevant to the inquiry is the evidence in the record that
the Swedish court system differs significantly from our own in
matters of child custody. Father’s expert testified that Swedish
courts do not grant joint custody and that “since there is no
statute in the Swedish law [requiring recognition of foreign
custody orders] foreign custody decisions cannot in principle
have any effect in Sweden whatsoever.” Additionally, in the
instant case the Swedish appellate courts have refused to give
comity to custody orders from the Virginia trial court. FN04
This case differs from Middleton where the Supreme Court was “not
reluctant to endorse an international deferral to the courts of
England because ‘Virginia’s jurisprudence is deeply rooted in …
the English system of justice.'” 227 Va. at 94, 314 S.E.2d at 368
(quoting Oehl v. Oehl, 221 Va. 618, 623, 272 S.E.2d 441, 444
(1980)).
034 Additionally, we “cannot overlook the child snatching
aspect of the case.” Middleton, 227 Va. at 95, 314 S.E.2d at 369.
Although mother had rightful custody in Sweden for a period of
time, her subsequent wrongful retention equates with child
snatching. Id. In Middleton, the father, in violation of a
visitation agreement, refused to return his children. Id. Here
mother violated a custody agreement by wrongfully retaining her
child after her period of physical custody concluded. In both
cases, the violating parent gained “a tactical advantage by his
conduct.” Id. If we require the trial court to decline
jurisdiction, “it will tend to encourage such conduct in the
future, contrary to one of the principal purposes of the UCCJA.”
Id. at 96, 314 S.E.2d at 369. Based on the factors enumerated in
the UCCJA and the trial court’s clear continuing jurisdiction to
modify its initial consent decree, we cannot say that the trial
court abused its discretion in refusing to defer jurisdiction to
the Swedish court as a more convenient forum.
035 Mother also argues that the trial court should have
deferred jurisdiction because Sweden was the child’s new home
state. FN05 Home state status is but one factor to consider
in the forum non conveniens analysis. It is not determinative. In
light of mother’s agreement to designate Virginia as <* page 675>
the proper forum for adjudication of custody matters and for
making the initial determination of whether to defer, mother
fails to establish an abuse of discretion.
036 In the instant case, during the time immediately preceding
both the divorce decree and the consent decree of December 1993,
the child spent short periods alternatively with each parent,
resulting in an equal division of her time between Virginia and
New York. At that time, the child had no single home state under
the UCCJA definition. The trial court and the parties agreed that
Virginia would be the child’s home state, or habitual residence,
for the purposes of all custody determinations, and that the
parties would seek leave of that court before initiating custody
proceedings elsewhere. This agreement became part of the
December 1993 consent decree, a court order endorsed by both
parties. Mother never objected to nor appealed either provision.
FN06
037 We find impersuasive her present contention that the
child’s presence in Sweden throughout 1994 supports a
determination that Sweden has become the appropriate forum as the
child’s new “home state.” Virginia was the child’s home state at
the beginning of the proceedings, and father continues to reside
in Virginia. Mother did not avail herself of the opportunity to
appear before the trial court to argue a change in circumstances
justifying the designation of an alternate home state. The
original agreement incorporated in the trial court’s order
contemplated that the trial court would consider deferral after a
hearing. Consequently, mother is still bound by the trial court’s
determination of habitual residence and the procedural
precondition to which she agreed. See Code 20-130(C)(4), The
trial court did not abuse its discretion in recognizing Virginia
as the appropriate forum and refusing to defer to the Swedish
court. FN07
038 Mother’s final contention is that the trial court should
have deferred jurisdiction to Sweden because a new proceeding was
pending in Sweden. Code 20-129 states that a court
039 shall not exercise its jurisdiction … if
at the time of filing the petition a proceeding
concerning the custody of the child was pending
in a court of another state exercising
jurisdiction substantially in conformity with
this chapter.
040 This contention is without merit. FN8 The “priority in
time” aspect of the UCCJA rests within the Commonwealth while the
ongoing custody order remains in effect. Mother cannot circumvent
the law by simply filing a new petition in Sweden.
041 The Swedish court based its jurisdiction solely on the
child’s presence in Sweden. However, by its very nature, the
trial court’s order contemplated an ongoing custody arrangement,
and the “[plhysical presence of the child, while desirable, is
not a prerequisite for jurisdiction to determine [her] cus- <*
page 676> tody.” Code 20-126(C). The agreement had specific
provisions outlining the schedule for alternating physical
custody, summer and vacation visitation, travel arrangements, and
schooling. The child’s presence in Sweden until January 25, 1995
was pursuant to a valid Virginia order, and the child’s
continuing presence after January 25, 1995 was the result of
mother’s wrongful retention of the child in defiance of the trial
court’s order. Wrongful retention does not confer “jurisdiction
substantially in conformity with this chapter” and would not
effectuate the requirements of Code 20-129. Moreover, since the
Swedish court refused to grant comity to the trial court’s order,
requiring the trial court to defer jurisdiction would be
unreasonable and would undermine the purposes of the UCCJA.
FN09
IV. CONTEMPT
042 Mother also asserts that the trial court erred in finding
her in contempt and granting sole custody to father in August
1996. Mother argues that her actions did not rise to the level of
contempt because she did not abduct the child, but sought only
modification of the trial court’s December 1993 order. She
contends that “[t]he fact that she violated an order of the
Circuit Court prohibiting her from doing this is hardly
controlling” and that an objective examination, “free from
clamorous invective and confusing onslaughts of character
assassination,” supports her position. She further argues that
she should not be held in contempt for her failure to relinquish
custody or respond to the trial court’s order to show cause
because she “could not come here without being liable to …
federal felony prosecution” and she “would be a victim of [the
Parental Kidnapping Prevention Act, 18 U.S.C. 12041 the instant
she set foot on these shores.” We find no merit in either claim.
The fact that mother chose to act in a manner that may give rise
to criminal charges does not shield her contumacious behavior”
FN110
043 The trial court’s authority to enforce its consent decree
includes the ability “to punish as contempt of court any willful
failure of a party to comply with the provisions of the order.”
Code 20-124.2. “A trial court has the authority to hold an
offending party in contempt for acting in bad faith or for
willful disobedience of its order.” Alexander v. Alexander, 12
Va.App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted).
“It is true that the inability of an alleged contemner, without
fault on [her] part, to render obedience to an order of court, is
a good defense to a charge of contempt.” Lai v. Commonwealth, 205
Va. 511, 514, 137 S.E.2d 896, 899 (1964) (citations omitted)
(emphasis added). “But where an alleged contemner has voluntarily
and contumaciously brought on [her]self disability to obey an
order, [s]he cannot avail [her]self of a plea of inability to
obey as a defense to the charge of contempt.” Id. at 515, 137
S.E.2d at 899.
044 Mother has demonstrated a willful and continuing failure
to comply with the trial court’s orders of December 1993 and
April 1995, provisions she agreed to and used to her advantage.
Further, she continues to deny father contact and wrongfully
retains <* page 677> the child. If she disagreed with the
procedural precondition that she obtain leave of court before
initiating modification proceedings elsewhere, or disagreed with
any other terms of the December 1993 order, her available
remedies included refusing to sign the consent decree and appeal.
Instead, she used the agreement to remove the child from the
United States. Her refusal to comply with terms to which she
agreed and her disregard for the trial court’s authority define
contumacious behavior.
045 Mother’s contention that fear of a federal kidnapping
prosecution excuses her failure to appear and shields her from a
finding of contempt has no merit. Her own behavior placed her in
that position. Mother has disregarded the trial court’s orders of
December 1993 and April 1995 and continues to do 115,1so. “When
one shows by [her] conduct a deliberate and studied effort to
disobey a valid order of a court, [s1he subjects [her]self to
punishment for contempt.” Laing, 205 Va. at 515, 137 S.E.2d at
899.
046 For the foregoing reasons, we affirm the trial court’s
August 9, 1996 change of custody, finding of contempt, imposition
of fines, and award of father’s costs and fees. Additionally, we
remand for an award of further costs and counsel fees incurred by
father in this appeal. See O’Loughlin v. O’Loughlin, 23 Va.App.
690, 479 S.E.2d 98 (1996).
Affirmed and remanded.
FOOTNOTES
——————–
1. Under the December 1993 modified custody agreement, the
parties were to share joint legal custody and physical
custody would alternate. Mother had physical custody
from August 20, 1993 to August 19, 1995, and father’s
physical custody was scheduled from August 20, 1995 to
August 19, 1997. Each parent was to have vacation
visitation during the term of the other’s physical
custody. The agreement also set out child support
payments from father during mother’s periods of
physical custody and visitation.
2. Two separate court systems in Sweden heard various
claims and appeals between January 1995 and May 1996.
Mother first filed for custody in Sweden in the Solna
District Court on January 25, 1995. That court
dismissed her claim on April 5, 1995, holding that the
child was domiciled in Virginia. Mother appealed to the
Regular Appeals Court (Svea Hovratt), which reversed on
September 7, 1995.
Father filed an application on March 14, 1995 for
return of the child under the Hague Convention. Both
parties attended a hearing on the application in the
County Administrative Court (Lansratten), which found
the child’s domicile to be Virginia and, on May 19,
1995, ordered her return. Mother appealed this order to
the Administrative Appeals Court (Kammaratten), which
reversed the order on June 19, 1995. Father filed a
second application with the Lansratten, which, on
October 6, 1995, again found that the child’s domicile
was Virginia and ordered her return. Mother appealed to
the Kammaratten, which, on December 19, 1995, found
that the child’s domicile was Virginia and ordered the
child’s return scheduled for December 22, 1995. The
Supreme Administrative Court (Regeringsratten) issued a
stay on the return order on December 21, 1995, and
reversed the return order on May 9, 1996, on the ground
that the child’s domicile was Sweden.
3. The court explained its interpretation of the term
“habitual residence” as follows:
The term “habitual residence,” which corresponds to
hemvist,” is not defined in the Hague Convention
either. In general, it may be said that consideration
of the question of habitual residence under the
Convention is primarily a matter of making an overall
assessment of circumstances which may be observed
objectively, such as the length of sojourn, existing
social ties and other factors of a personal or
occupational nature which may indicate a more permanent
attachment to one country or the other. In the case of
a small child, the habitual residence of person who has
custody, and other family and social aspects, must be
the decisive factors.
4. “[T]he legal basis for recognizing the law of another
country is the doctrine of comity … [which is] a rule
of voluntary consent … defined as a courtesy or a
willingness to grant a privilege, not as a matter of
right but out of deference, respect, and good will.” In
re S.M., 938 S.W.2d 910, 918-19 (Mo.App.1997)
(citations omitted).
5. Under the UCCJA, a child’s home state is “the state
in which the child immediately preceding the time
involved lived with his parents, a parent, a person
acting as parent, for at least six consecutive
months…. Periods of temporary absence of any of the
named persons are counted as part of the six-month or
other period.” Code 20125.
6. Under the general law provisions governing venue and
inconvenient forum questions, and to which this issue
may be analogized, we note that party agreements have
historically been accorded great weight. See Code
8.01-265. Venue can be conferred by consent or waiver.
See Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80
(1963).
7. The record contains multiple references to the Hague
Convention on the Civil Aspects of International Child
Abduction. The Hague Convention provides a forum for
discussion and resolution of issues surrounding
international child abduction and wrongful retention,
and the United States and Sweden are both signatories.
Mother is the Swedish Ministry of Foreign Affairs
representative to the Hague Convention for these
issues. She argues that the Hague Convention does not
apply in this case because she did not wrongfully
retain the child. Her government has apparently adopted
a supporting position: that a child’s custody may be
litigated wherever the child resides. The United States
State Department has disagreed with this position on
policy grounds. The Hague Convention has not drafted a
controlling definition of habitual residence.
Resolution of this international disagreement is not
necessary to our present decision. Mother appeals the
issue of jurisdiction solely under the UCCJA, and we
find Virginia law sufficient to enable us to reach a
conclusion on these grounds.
8. This case is distinguishable from the situation in
D’Agnese v. D’Agnese, 22 Va.App. 147, 156, 468 S.E.2d
140, 144 (1996), where the court found “that the
Illinois court had obtained emergency jurisdiction,”
because the mother took the children out of state to
protect them from abuse. There is no emergency
exception applicable here.
9. Mother also argues that the trial court erred in
finding that she had waived her right to seek
modification of the custody agreement in a foreign
court. Mother signed a consent decree in which she
agreed that “Virginia shall be the only forum for the
adjudication of custody or visitation matters … now
or in the future;” and “neither party shall seek
modification of this Order without prior leave of this
Court.” A consent decree “is a contract or agreement
between the parties to the suit … and is binding
unless secured by fraud or mistake.” Orlandi v.
Orlandi, 23 Va.App. 21, 26, 473 S.E.2d 716, 719 (1996)
(citation omitted). Mother has not alleged either fraud
or mistake in this case. Consequently, she is bound by
the provisions of the decree which she dislikes, just
as she was entitled to the benefit of the provisions
granting her child support payments and the first term
of physical custody. Under the decree, mother did not
waive her right to any modification in a foreign court;
she merely agreed she would not do what she did-go to a
Swedish court without obtaining prior leave from the
trial court.
10. The underlying policy of Virginia’s felony parental
abduction statute, Code 18.2-49.1, is similar to that
of the Parental Kidnapping Prevention Act, 28 U.S.C.A.
1738A. See Foster-Zahid v. Commonwealth, 23 Va.App.
430, 437, 477 S.E.2d 759, 762 (1996) (mother convicted
of felony parental abduction under Code 18.2-49.1).