USA – FEDERAL – LEVESQUE – 1993 (Return ordered) LEVESQUE v LEVESQUE. The father takes the child to US. Mother applies for the return under the Hague Treaty and ICARA. The court ordered the return to Germany. Germany is the habitual residence. The court also found that the mother did not acquiesce to the removal.
===========================================================
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSAS
[Filed 25 Feb 93, 11:05 a.m. at Topeka, KS]
[Entered on the Docket 25 Feb 93]
816 F.Supp. 662 (D. Kan. 1993)
In re the Application of: )
BRITTA ANN JESSICA LEVESQUE )
)
Petitioner, ) CIVIL ACTION
)
v. ) Case No. 93-4037-DES
)
DEAN WILLIAM LEVESQUE, )
)
Respondent. )
__________________________________)
ORDER
This matter is before the court for decision after an evidentiary
hearing held February 24, 1993. This matter was brought by the
petitioner under the International Child Abduction Remedies Act,
42 U.S.C. s 11601, et seq., and the Convention on the Civil
Aspects of International Child Abduction, done at the Hague on
October 25, 1980 (“Convention”). The petitioner alleges wrongful
removal of the minor child Vallery Ashley Levesque from her home
in Germany. The court has heard the evidence presented at the
hearing, has examined the file, and, after careful deliberation,
makes the following general findings. The court will follow-up
this order in the very near future with a memorandum and order
explaining its reasoning behind the findings.
1. The court has jurisdiction over this action pursuant to 42
U.S.C. Sec. 11603.
2. The court finds that Germany is the “habitual residence”
of the minor child Vallery Ashley Levesque.
3. The court further finds that Dean Levesque, the respondent
in this action, wrongfully removed Vallery from the petitioner’s
residence in Germany.
4. In addition, the court finds that Britta Levesque did not
acquiesce to custody of Vallery with the respondent. Therefore,
the respondent shall return Vallery to the petitioner for her
return to Germany.
5. Finally, the court finds that pursuant to 42 U.S.C. s
11607(b)(3), the respondent must pay the expenses incurred by the
petitioner in obtaining the return of the child. This shall
include, but may not be limited to court costs, legal fees and
transportation. The court will order the parties to comply with
the provisions of D. Kan. Rule 220 in seeking such costs. The
court strongly urges the parties to attempt settlement of this
issue.
IT IS BY THE COURT THEREFORE ORDERED that the minor child
Vallery Ashley Levesque be returned to the petitioner Britta Ann
Jessica Levesque within twenty-four (24) hours of the entry of
this Order.
IT IS FURTHER ORDERED that the petitioner is awarded the
costs associated with this action as outlined above, the amount to
be determined by the court in a later order.
Dated this 25th day of February, 1993, at Topeka, Kansas.
/s/ Dale E. Saffels
_______________________________
DALE E. SAFFELS
United States District Judge
\_______________________________
/——————————-
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
[Filed 02 Mar 93, 2:30 p.m. at Topeka, KS]
[Entered on the Docket 02 Mar 93]
816 F.Supp. 662 (D. Kan. 1993)
In re the Application of: )
BRITTA ANN JESSICA LEVESQUE )
)
Petitioner, ) CIVIL ACTION
)
v. ) Case No. 93-4037-DES
)
DEAN WILLIAM LEVESQUE, )
)
Respondent. )
__________________________________)
MEMORANDUM AND ORDER
This matter is before the court on a petition filed by Britta
Ann Jessica Levesque pursuant to the International Child Abduction
Remedies Act, 42 U.S.C. s 11601, et seq. (“act”), and the
Convention on the Civil Aspects of International Child Abduction,
done at the Hague on October 25, 1980 (“Convention”). The
Convention became effective in the United States on July 1, 1988.
In a general order entered February 25, 1993, the court
ordered the minor child Vallery Ashley Levesque, d/0/b 4/16/89,
currently residing with the respondent Dean William Levesque
(“Dean”) in Geary County, Kansas, to be returned to the petitioner
Britta Ann Jessica Levesque (“Britta”). The court also awarded
fees and costs associated with bringing this action. The purpose
of this memorandum and order is to set forth the court’s reasoning
behind its findings.
FACTS
Vallery Ashley Levesque (“Vallery”) was born in Schwetzingen,
Germany, on April 16, 1989, and resided in Germany until May 1991.
From September 1990 until May 1991, the parents were separated and
Vallery lived with Britta and Britta’s grandmother, still in
Germany. During the time of the separation, the parties were
governed by a Separation Agreement awarding them both joint
custody, with residential custody to Britta. In early May 1991,
Britta and Vallery moved to the United States where they stayed in
Maine with Dean’s sister for a short time. At the end of May 1991,
Britta and Vallery joined Dean in Junction City, Kansas, the
parents having reconciled their marital difficulties. Junction
City was Vallery’s residence until mid-April 1992 when Britta and
Vallery returned to Germany.
Dean testified that Britta told him she wanted to take
Vallery to Germany in April 1992 to celebrate both of their
birthdays. Dean agreed under the belief they would be returning to
Junction City. Britta testified that she told Dean she was leaving
and planned to stay in Germany with Vallery. She stated that Dean
agreed she could go back to Germany with Vallery. Whichever
scenario is accurate, Britta and Vallery returned to Junction City
on May 12, 1992, after approximately five weeks in Germany.
At that time, Britta stated she returned for the purpose of
getting her belongings, and planned to return to Germany with
Vallery to live. She testified that she discussed this with Dean
and he was in agreement that Vallery should live with Britta.
Apparently Dean was leaving for some kind of military maneuvers in
California, and, according to Britta, requested that she stay
until he returned. Thus, she was in the United States until June
20, 1992. Britta testified that when Dean returned they discussed
her return to Germany and he agreed Vallery should be with Britta.
In addition, Britta testified that Dean was going to file for
divorce in the United States.
Dean, on the other hand, testified that his sister called him
while he was in California on maneuvers and told him Britta was
selling some of their furniture and her wedding rings. When Dean
returned, Britta informed him she needed some time away and was
going to Germany. He further testified he felt it was better for
Vallery to be with her mother, but believed they would only be
gone for a short time. He acknowledged they were having some
marital problems, but no more than most couples experience.
Again, whichever version is the truth, Britta and Vallery
returned to Germany around June 21, 1992, with Dean’s permission.
Both Britta and Dean agree that they had several telephone
conversations regarding the possibility of him coming to visit in
late June or early July. Dean did arrive in Germany in early July
1992.
The details surrounding events on July 9, 1992, are by no
means clear to the court. Both parties agree Dean came over to
Britta’s apartment to visit Vallery. Britta testified she
discovered Vallery’s passport was missing and became suspicious.
while Britta was on the phone, Dean took Vallery from the
apartment without Britta’s permission. Dean testified that he had
seen Vallery only about four days out of the ten he had been in
Germany, because Britta restricted his access to the child. He
further testified he took Vallery because Britta told him he could
never see the child again.
Within four hours of Dean taking Vallery, Britta obtained a
German court order awarding her the right to determine Vallery’s
residency. Dean called later that evening from a friend’s house in
Germany and Britta told Dean of the court order. Dean stated he
believed it was a restraining order. In any event, Dean knew of
the existence of a German court order before he left Germany with
Vallery. He testified he called the military legal department,
which told him the order was of no effect if he had not been
served with a copy. The order had been entered ex parte and Dean
was not served.
Dean returned to the United States with Vallery and called
Britta once he had arrived. He subsequently began divorce
proceedings and obtained a temporary custody order from Geary
County District Court. In September 1992, Britta filed her answer,
through counsel, seeking custody of Vallery.
One other incident bears on the court’s determination in this
matter. On September 22, 1992, Britta signed a Marriage Settlement
Agreement giving residential custody of Vallery to Dean. Dean did
not sign that agreement until February 23, 1993, the day before
the hearing on this case. On November 18, 1992, however, Britta,
again through her attorney, revoked and rescinded the Marriage
Settlement Agreement she had previously signed, and reiterated she
intended to fight for custody of Vallery. The parties concur that
the agreement is of no legal effect regarding custody, but Dean
asserts it goes to Britta’s intent regarding custody after he had
removed the child from Germany. Britta testified that the only
reason she signed the agreement was that Dean threatened to have
her boyfriend, a U.S. Army soldier, court martialed for adultery.
Finally, this action was filed on February 17, 1993, and on
February 25, 1993, the court ordered the return of the minor child
to the mother.
APPLICABLE LAW
As stated previously, the Convention on the Civil Aspects of
International Child Abduction took effect in the United States on
July 1, 1988. There are two objectives of the Convention:
Article 1
a. to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and
b. to ensure that rights of custody and of access under
the law of one Contracting State are effectively
respected in the other Contracting States. FN1
Therefore, in actions filed under this Convention, and the act
implementing the Convention, essentially the court is to ascertain
which Contracting State has jurisdiction to determine the custody
rights of children who have been wrongfully removed. This court is
not making any custody determinations. WMH FN 01
The Convention applies to any child who is under sixteen
years of age and was “habitually resident” in a Contracting State
immediately preceding the breach of custody rights. Article 4.
Specifically, the convention provides:
Where a child has been wrongfully removed or retained
in terms of Article 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 the wrongful removal or
retention, the authority concerned shall order the
return of the child forthwith. Article 12.
Article 3 states that removal of a child is wrongful if it
breaches the custody rights of any person, even joint custody,
under the law of the State in which the child is a habitual
resident immediately prior to the wrongful removal or retention
and, that person was actually exercising his/her custody rights,
or would have been but for the wrongful removal or retention.
In an official commentary, the Convention reporter FN2 Elisa
Perez-Vera states:
Now, from the Convention’s standpoint, the removal of a
child by one of the joint holders without the consent
of the other, is wrongful, and this wrongfulness
derives in this particular case, not from some action
in breach of a particular law, but from the fact that
such action has disregarded the rights of the other
parent which are also protected by law, and has
interfered with their normal exercise. The Convention’s
true nature is revealed most clearly in these
situations: it is not concerned with establishing the
person to whom custody of the child will belong at some
point in the future, nor with the situations in which
it may prove necessary to modify a decision awarding
joint custody on the basis of facts which have
subsequently changed. It seeks, more simply, to prevent
a later decision on the matter being influenced by a
change of circumstances brought about through
unilateral action by one of the parties.
Perez-Vera Report at 447-448 (quoted by 51 Fed. Reg. 10493,
10506). WMH FN02
The court, even upon a finding that the Convention applies to
the facts of the individual case, is not obligated to return the
child if the person having the care of the child was not
exercising his/her custody rights at the time of the removal or
retention, or had acquiesced in the removal or retention. Article
13.
The issues in the current case are: 1) where was the habitual
residence of the child at the time Dean took her to the United
States from Germany; 2) was the child wrongfully removed; and 3)
did Britta acquiesce in Dean’s retention of the child in the
United States.
Pursuant to 42 U.S.C. Sec. 11603, this court has concurrent
jurisdiction with the state courts over actions brought under the
Convention. The burden is on the petitioner to establish by a
preponderance of the evidence that the child was wrongfully
removed or retained within the meaning of the Convention. 42
U.S.C. Sec. 11603(e)(1)(A). The respondent must prove by a
preponderance of the evidence that the petitioner acquiesced in
the removal or retention of the child. 42 U.S.C. Sec.
11603(e)(2)(B).
The court made the following findings in ordering the return
of Vallery to the petitioner:
1. The court has jurisdiction over this action pursuant
to 42 U.S.C. Sec. 11603.
2. The court finds that Germany is the “habitual
residence” of the minor child Vallery Ashley Levesque.
3. The court further finds that Dean Levesque, the
respondent in this action, wrongfully removed Vallery
from the petitioner’s residence in Germany.
4. In addition, the court finds that Britta Levesque
did not acquiesce to custody of Vallery with the
respondent. Therefore, the respondent shall return
Vallery to the petitioner for her return to Germany.
5. Finally, the court finds that pursuant to 42 U.S.C.
Sec. 11607(b)(3), the respondent must pay the expenses
incurred by the petitioner in obtaining the return of
the child. This shall include, but may not be limited
to court costs, legal fees and transportation. The
court will order the parties to comply with the
provisions of D. Kan. Rule 220 in seeking such costs.
The court strongly urges the parties to attempt
settlement of this issue.
[1] Removal or retention of a child can be wrongful only if
the removal or retention is from the habitual residence of the
child. The term “habitual residence” is not defined in the act or
the Convention and necessarily depends upon the facts and
circumstances of each case. Meredith v. Meredith, 759 F. Supp.
1432, 1433 (D. Ariz. 1991). WMH FN 03 In Meredith, the mother
petitioner was a citizen of France, her husband respondent a
citizen of the United States, living in Arizona. The mother took
their child to France, ostensibly to visit her parents, but then
notified the father she was not returning to Arizona. The mother
subsequently went to England without the father’s knowledge. The
father regained custody of the child and the mother filed a
petition pursuant to the Convention alleging the child was
wrongfully removed. The court, in determining the habitual
residence could not be England, reasoned:
To equate the temporary removal and subsequent
sequestration of the minor child to legal status of
‘habitual residence’ in another country would be to
reward Petitioner for her ability to conceal the child
from the Respondent, her lawful, custodial parent. The
Petitioner may not benefit from such conduct.
759 F. Supp. at 1435.
The respondent contends the instant case is much like the
Meredith case, but the court finds the case distinguishable. Even
if Britta told Dean she was going away for a short time, which is
disputed, Dean knew she was going in June 1992 because they were
having marital problems. He did not know when Britta would return
and, to the court’s knowledge, Britta did not attempt to keep Dean
from knowing where they were. In fact, there was telephone contact
and the parties made arrangements for Dean to come to Germany to
visit. The Meredith court’s reasoning regarding concealing the
child does not apply here in an analysis that is fact intensive.
As acknowledged in Friedrich v. Friedrich, — F.2d —, 1993
WL 9797 (6th Cir. January 22, 1993) WMH FN04, very few United
States cases have addressed the application of the Convention. One
of the most thorough cases analyzing the term “habitual residence”
is In Re Bates, No. CA 122/89, High Court of Justice, Family Div’n
Ct., Royal Court of Justice, United Kingdom (1989). WMH FN05 Bates
involved a two and one-half year old child who had been removed
from her mother’s apartment in New York and taken by the nanny to
the father’s home in England. The removal was with the knowledge
and approval of the father. The parents’ marriage had been rocky
for some time, in part due to their unusual lifestyle. Father was
a rock musician who was touring almost constantly and, at the time
the child was taken, was in the Far East.
Prior to the father’s departure for the Far East, the mother
adamantly insisted upon remaining in their New York apartment with
the child and her nanny, to which the father reluctantly agreed.
They had rented and spent a few days in the apartment in late
January 1989. On February 2, 5, 6, and 7, the family accompanied
the father on engagements in several states and Vancouver, British
Columbia. The mother, nanny and the child returned to New York
and the child was removed to England on February 9, 1989.
As noted by the Bates court, no Hague Convention has ever
defined “habitual residence,” although the term is frequently used
in such conventions. The intent is for the concept to remain
fluid and fact based, without becoming rigid. The court quotes R.
v. Barnet London Borouqh Council ex parte Shah [1983] 2 A.C. 309,
314 as follows:
‘ . . . and there must be a degree of settled purpose.
The purpose may be one or there may be several. It may
be specific or general. All that the law requires is
that there is a settled purpose. That is not to say
that the propositus intends to stay where he is
indefinitely. Indeed his purpose while settled may be
for a limited period. Education, business or
profession, employment, health, family or merely love
of the place spring to mind as common reasons for a
choice of regular abode, and there may well be many
others. All that is necessary is that the purpose of
living where one does has a sufficient degree of
continuity to be properly described as settled.’
In re Bates at 10.
The Bates court went on to state:
I am satisfied that the arrangements that had been
agreed, however acrimoniously, before the abduction
date between the two parents for Tatjana’s [the child]
care, accommodation and therapy treatment in New York
during the period of three months or so that would be
due to elapse before the father’s return to London
amounted to a purpose with a sufficient degree of
continuity to enable it properly to be described as
settled.
Id. at 10-Il.
This reasoning is particularly persuasive to this court in
determining Germany is the habitual residence of the child.
Assuming for the sake of this petition that Dean was misled on
June 20, 1992, and believed Britta was going to return to the
United States after a short time, both parents agreed that Britta
would return to Germany for some period of time with Vallery. The
amount of time was left open and Dean agreed Vallery should go
with Britta. These arrangements had been agreed to and “amounted
to a purpose with a sufficient degree of continuity to enable it
properly to be described as settled.” The court further finds
credible Britta’s testimony that in April 1992 she was returning
to Germany to live and only returned in May to retrieve some
belongings. Britta’s actions are more consistent with her
testimony than are Dean’s actions with his testimony. FN3
In short, when Britta and Vallery returned to Germany in
April, then finally in June 1992, there was an intent to remain,
at least for a period of time which was indefinite. This was by
mutual agreement. Britta was caring for Vallery as a parent cares
for a child, and, under German law, both parents are obliged and
entitled to take care of the minor child. BGB Sec. 1626 (German
Civil Code). The court finds that Britta was exercising her rights
of custody as contemplated by Article 3 of the Convention and
Dean’s removal was wrongful.
[2] The court turns now to the question of acquiescence. As
stated above, if the mother consented or subsequently acquiesced
to the child’s removal or retention, the court is not bound to
order the return of the child. All of the exceptions which allow
courts to deny return of children under the Convention are
intended to be construed and applied very narrowly to effectuate
the objectives of the Convention. 51 Fed. Reg. at 10509. WMH FN06
Further, finding one of the exceptions in Article 13 applicable
does not make refusal of a return order mandatory. Id.. Even if
the court finds one or more of the exceptions applicable, it may
find the child should be returned. Id.
The court is satisfied that Britta did not acquiesce in
Dean’s retention of Vallery in the United States. Although Britta
did sign the Marriage Settlement Agreement on September 22, 1992,
purportedly giving Dean residential custody, she revoked and
rescinded the agreement within two months, long before Dean signed
the agreement. Britta obtained a German order within four hours of
Dean wrongfully removing Vallery, which gave Britta the right to
determine residential custody of the child. She filed her answer
in the Geary county divorce action seeking custody of Vallery.
Further, she has come in and vigorously prosecuted this action
under the Convention. The court finds that Britta has expressed
her intent in a number of different ways that are contrary to a
finding of acquiescence. FN4
Finally, pursuant to 42 U.S.C. Sec. 11607, Britta is entitled
to her costs for obtaining return of the minor child unless such
an award would be “clearly inappropriate.” The court has found no
cases construing this provision. No evidence presented to the
court suggests that such an award would be clearly inappropriate.
Therefore, the court finds such costs and fees as set forth in the
court’s previous order should be awarded to the petitioner. Again,
however, the court strongly recommends the parties settle this
issue.
The court hereby adopts the orders set forth in the February
25, 1993, order.
IT IS SO ORDERED.
Dated this 2nd day of March, 1993.
/s/ Dale E. Saffels
______________________________
DALE E. SAFFELS
United States District Judge
Arvid v Jacobson, Jacobson & Jacobson, Junction City, KS for
petitioner.
Blair A. Jones, Caffey, Kieffer & Jones, Manhattan, KS, for
respondent.
FOOTNOTES BY WILLIAM M. HILTON, CFLS
———————–
01. See Art. 19; 42 U.S.C. 11601(b)(4)
02. The full text of the Perez-Vera Report is available on Hilton
House BBS as PEREZ.RPT.
03. Meredith v. Meredith is available on Hilton House BBS as
MEREDITH.FED.
04. Friedrich v. Friedrich, from the District Court and Court of
Appeal are available on Hilton House BBS as FREDRICH.FED and
FREDRICH.F2D.
05. In re Bates is available on Hilton House BBS as BATES.UK.
06. This is in reference to the ANALYSIS OF HAGUE CONVENTION
(prepared by State Department) Cite as: 51 Fed. Reg. 10,503
(1986). This is available on Hilton House BBS as
ANLHAGUE.ASC.
——————–
1. Germany is also a Contracting State.
2. The Explanatory Report by Official Convention Reporter
Professor Elisa Perez-Vera published in Acts and Documents of
the Fourteenth Session Book III (1980)(“Perez-Vera Report”),
is recognized as the official commentary of the Convention.
Public Notice 957, Hague International Child Abduction
Convention; Text and Legal Analysis by the Department of
State, 51 Fed. Reg. 10493, 10503 (1986).
3. The court notes that determining credibility in this case,
where both parents obviously care about the child’s welfare
and are seeking a ruling in their favor, is a difficult task
at best. At worst, it does a disservice to the parties, by
tending to discredit one of the parent’s testimony. The court
recognizes that each party’s truth is colored by his/her
perception. Unfortunately, the court must make such
determinations.
4. Even if signature of the one document can be construed as
acquiescence, the court is satisfied under the circumstances
of this case that Vallery should be returned to Britta.