McCullough v McCullough (W.D.Pa. 1998)4 F.Supp.2d 411
11 International Abduction [USA 1998]
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<* page 412>
MEMORANDUM ORDER
D. Brooks Smith, District Judge
001 This memorandum order is issued in support of the Order
and Warrant of Arrest, <* page 413> docket no., 4, which I
issued in this matter yesterday, May 11, 1998. That
morning, Randy Blake McCullough (hereinafter “petitioner”),
filed a Petition and Complaint for Return of Child to
Petitioner and For a Warrant in Lieu of a Writ of Habeas
Corpus, docket no.1, pursuant to The Convention on the Civil
Aspects of International Child Abduction, done at the, Hague
on 25 October 1990 (hereinafter “the Convention”) and the
International Child Abduction Remedies Act (hereinafter
“ICARA”), 42 U.S.C. 11601 et seq. Petitioner sought,
inter alia, extraordinary ex parte relief.
002 Petitioner averred that his wife, Mary Ann McCullough
(hereinafter “respondent”), wrongfully removed their
children, Zachary Blake McCullough, and Victoria Sharon
Louise McCullough, from their residence at 66 Stanley
Avenue, Kitchener Ontario, Canada, and that she was
wrongfully retaining them in her parents home located in
Barnesrboro, Cambria County, Pennsylvania. Petitioner,
appearing ex parte with his counsel, testified that he lived
with respondent and their children in Kitchener, Ontario
until Monday, March 23, 1998. On Sunday, March 22, 1998,
petitioner, a self-employed truck driver, left for his usual
weekly trucking run which lasts two to three days. He
telephoned home that evening, spoke with respondent and
said, “good night” to the children. On the evening of
Monday, March 23, 1998, petitioner again telephoned home to
talk with his wife and children, but his telephone calls
went unanswered.
003 The next morning, on Tuesday, March 24, 1998, at.7:43
A.M., petitioner telephoned the home of Gloria and Leroy
Keith, respondent’s parents, to enquire if they knew the
whereabouts of their daughter. Petitioner was advised that
respondent was at the Keith residence with the children.
During a brief telephone conversation with the respondent,
petitioner was advised that the “end time” was near and that
she and their children would not be returning to Canada.
004 Petitioner understood the reference to the “end time”
as a statement which related to his wife’s religious beliefs
as a member of the Philadelphia Church of God. It is
petitioner’s understanding that respondent, as a member of
that sect, must be ready, to flee to Petra, Jordan if and
when the church leader directs. Apparently, adherents
believe that only by escaping to Petra will God save them
from an apocalyptic event. According to petitioner,
respondent considers such a directive from the leader as
tantamount to a command from God. It is also petitioner’s
understanding that some members of the church have already,
traveled to Jordan. Because the petitioner feared that
respondent might, flee with their children, he contacted an
attorney in Canada. Based on the advice of his Canadian
counsel, petitioner filed a petition with the Attorney
General in Canada under the Convention in the hope of
regaining physical custody of the children, thereby enabling
him to proceed with a custody case in Ontario. Petitioner
filed the instant proceeding after seeking relief under the
Convention and ICARA.
005 Only a handful of courts have been confronted with
cases arising under the Convention and ICARA. Fortunately,
the Court of Appeals for the Third Circuit has decided one
such case of first impression. In Feder v. Evans-Feder, 63
F.3d 217 (3d. Cir.1995), the Third Circuit was presented
with a petition under the Convention for the return of a
child wrongfully retained the United States. The court noted
that:
The Convention’s approach to the phenomenon of
international child abduction is straight forward.
It is designed to restore the “factual” status quo
which is unilaterally altered when a parent
abducts a child and aims to protect the legal
custody rights of the non-abducting parent. Thus
the cornerstone of the Convention is the mandated
return of the child to his or her circumstances
prior to the abduction if one parent’s removal of
the child from or retention in a Contracting State
has violated the custody rights of the other and
is therefore, “wrongful.”
Id at 221 (citing Hague Convention, Article 12). The
removal or retention of a child is “wrongful” under the
Convention if it breaches the “rights of custody attributed
to a person . . . either jointly or alone, under the law of
the State in which the child was habitually resident
immediately before the <* page 414> removal or retention”
and such custody rights were actually being exercised.
Hague Convention, Article 3. “For purposes of the
Convention, ‘rights of custody’ shall include rights
relating to the care of the person of the child, and in
particular, the right to determine the child’s place of
residence.” Feder, 63 F.3d at 221 (quoting Hague
Convention, Article 5(a).
006 In Feder the threshold question facing the court was
the situs of the minor child’s habitual residence. The
mother had removed the child from Australia and had retained
him in her new home in Jenkintown, Pennsylvania, causing the
father to petition under the Convention for the return of
the child. The district court concluded that the child’s
habitual residence was Jenkintown, Pennsylvania and that the
mother’s retention of the child there was not wrongful.
Accordingly, the district court concluded that the
Convention was inapplicable and denied the father’s
petition.
007 After reviewing the few cases which have construed the
term “habitual residence of a child,” the Third Circuit
defined this term to mean “the place where he or she has
been physically present for an amount of time sufficient for
acclimatization and which has a ‘degree of settled purpose’
from the child’s perspective.” Id. at 224. The court
concluded that the child!s habitual residence was Australia,
contrary to the district court’s adjudication. ~ Accordingly
the Feder court, in applying the Convention, had to decide
whether the father had custody rights which were breached by
the mother’s retention of the child in Pennsylvania and if
so, whether the father had actually been exercising those
rights at the time of of the wrongful retention. Id at 225.
The court answered those questions in the affirmative and
vacated the district court’s denial of the fathers petition,
remanding the matter for a determination of whether any
exceptions to mandatory return applied. Id at 226.
008 In Feder, the petition for the return of the child was
served upon the mother before any hearing was held. In the
case before me, however, petitioner did not serve his
initial pleading upon the respondent because he contended
that notice would only serve as an impetus for her to flee
to Jordan. Consequently, petitioner requested that this
court: (1) issue a “warrant of arrest” for the two
children, Zachary and Victoria McCullough; (2) order that
physical custody be given to petitioner; (3) give respondent
notice of a hearing to be held promptly on the merits of
petitioner’s petition seeking the return of the children to
Ontario; and (4) order the return of the children to Canada.
009 Accordingly, this court had to promptly determine an
issue not addressed in Feder, the propriety of an ex parte
request to seize children which were alleged to have been
wrongfully removed from their “habitual residence.” Under
the ICARA, which implements the Convention, any court
exercising jurisdiction of an action seeking the return of a
child “may take or cause to be taken measures under Federal
or State law, as appropriate, to protect the well-being of
the child involved or to prevent the child’s further removal
or concealment before the final disposition of the
petition.” 42 U.S.C. 11604(a). At the same time, the Act
prohibits a court from granting a provisional remedy
pursuant to 11604(a) which would remove a child from “a
person having physical control of the child unless the
applicable requirements of state law are satisfied.” 42
U.S.C.A. 11604(b). FN01 I find support in both Federal
procedural rules and in the substantive and procedural law
of Pennsylvania, for the extraordinary emergency relief
being sought by petitioner.
010 First, the Pennsylvania Rules of Civil Procedure
applicable to custody and visitation matters contain a
provision authorizing the grant of “special relief.”
Pa.R.C.P 1915.13. Such relief includes “the award of
temporary <* page 415> custody, partial custody or
visitation” and the issuance of appropriate process
directing that a child or a party or person having physical
custody of a child be brought before the court.”
011 Farther, Pennsylvania’s Juvenile Act provides for the
issuance of a “warrant of arrest” under the following
circumstances:
If it appears from affidavit filed or from sworn
testimony. before the court that the conduct,
condition, or surroundings of the child are
endangering his health or welfare or those of
others, or that he may abscond or be removed from
the jurisdiction of the court or will not be
brought before the court notwithstanding the
service of the summons, the court may issue a
warrant of arrest.
42 Pa.C.S.A 6335(c) (emphasis added). I specifically
invoked this statute in my Order and Warrant Of Arrest
issued yesterday.
012 For procedural guidance, I analogize petitioner’s
request to a claim for a temporary restraining order under
Federal Rule of Civil Procedure 65. See Sinclair v.
Sinclair, 121 F.3d 709 (table, text in WESTLAW at 1997 WL
428897) (6th Cir. 1997) (district court issued a temporary
restraining order under Convention and ICARA and federal
marshals took children into protective custody). The grant
of injunctive relief “is an ‘extraordinary remedy, which
should be granted only in limited circumstances.'” Instant
Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800
(3d.Cir. 1989), (quoting Frank’s GMC Truck Center, Inc. v.
General Motors Corp., 847 F.2d 100, 102 (2d Cir. 1988)).
“Generally speaking, courts apply the standards for granting
a preliminary injunction in determining the propriety of
issuing a temporary restraining order.” Tootsie Roll Indus.
v. Sathers, Inc., 666 F.Supp. 655 at 658 (D.Del. 1987).
013 In order to obtain injunctive relief, the moving party
must show:
“(1) a reasonable probability of eventual success
in the litigation, and (2) that it will be
irreparably injured pendente lite if relief is not
granted to prevent a change in the status quo.”
Moreover, while the burden rests upon the moving
party to make these two requisite, showings, the
district court “should take into account, when
they are relevant, (3) the possibility of harm to
other disinterested persons from the grant or
denial of the injunction, and (4) the public
interest.”
Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.
1994) (citations omitted). An injunction should not be
granted without a “clear showing of immediate irreparable
injury.” ECRI v McGraw-Hill, Inc, 809 F2d 223, 226 (3d
Cir. 1987); Instant Air Freight Co., 882 F.2d at 800.
014 Further, to prove irreparable harm, the moving party
“must ‘demonstrate potential harm which cannot be redressed
by a legal or an equitable remedy following trial.'”
Acierno, 40 F.3d at 653 (citations eliminated). Mere
economic loss “does not constitute irreparable harm”. Id.
015 This Court concludes that plaintiff has established the
prerequisites for obtaining a temporary restraining order
(TRO) directing that the children be taken into custody
immediately and brought before this court. First, there is
a reasonable probability of eventual success on the merits
of petitioner’s request based upon the Convention and the
ICARA.
016 The sworn testimony of petitioner, taken ex parte,
demonstrates that Zachary is five years old and his sister,
Victoria, is three years of age. Respondent is the mother
and petitioner is the father of both children. Both
children were born in Kitchener, Ontario, Canada and have
resided there with both parents since birth. Thee facts
establish that (1) the children fall within the scope of the
Convention which applies to children less than 16 years of
age, and (2) the habitual residence of the children is
Kitchener, Ontario. See Feder 63 F.3d at 224.
017 The applicability of the Convention also requires that
I determine whether petitioner has custody rights that have
been breached and whether he was actually exercising those
rights at the time respondent left the marital home for
Pennsylvania. Under Ontario’s Children’s Law Reform Act,
“the father and the mother of a child are equally entitled
to custody of the child.” Children’s Law Re- <* page 416>
form Act, R.S.O. 1990, c. C. 12, 20.-(1). Because
petitioner was residing with the children and involved in
their daily care and control prior to the respondent’s
removal of the children, it would appear petitioner can
satisfy the requirement of the Convention that the remaining
parent was actually exercising custody immediately before
the children were removed. See Hague Convention, Article 3.
Accordingly, on the limited record before me, petitioner, as
the natural father of Zachary and Victoria, has shown at
least a reasonable probability that he can prove custody
rights and that the removal of the children from the family
home in Kitchener without his knowledge and approval was
wrongful.
018 Irreparable harm must also be demonstrated for TRO
relief to lie. Were respondent to flee this jurisdiction
with children prior to this court accomplishing it transfer
of physical custody, the very purpose. of the Convention and
the ICARA would be defeated. This, by definition, is
irreparable harm.
019 In light of the above, I issued the order directing the
United States Marshal to serve respondent with a “warrant of
arrest” for the children and copies of the pleadings filed
thus far, and that he bring the children before this court
forthwith. That was accomplished yesterday without incident,
and I proceeded to conduct an in camera session with both
parties and both children present.
020 Because respondent was without counsel when she
accompanied the children to my chambers, I did not make
inquiry of her other than to ask if she had any concerns
about the children’s safety or well-being if I were to
transfer physical custody to her husband until an
evidentiary hearing could be held the following day. She
stated that she had no such concerns. It was readily
apparent to this court that the two children interacted well
with both parents. I sought to explain to respondent the
limited purpose of the Convention and the ICARA, and that I
lacked the authority to make any final custody
determination. I assured both parties and counsel for
petitioner, that, pending an evidentiary hearing, I would
act in what I determined were the “best interests” of the
children.
021 I scheduled an evidentiary proceeding for today at
10:00 A.M., but informed the parties that if respondent were
unable to retain local counsel on such short notice, I would
look favorably upon a request for a reasonable continuance.
FN02 Not surprisingly, respondent has been unable to retain
counsel overnight, and this morning’s evidentiary hearing
must be continued. Because of the nature of the allegations
in the petition, and because I believe prompt resolution of
the narrow issues before me to be in the best interests of
all concerned, evidentiary hearing will be rescheduled
promptly. It is therefore
022 ORDERED this 12th day of May, 1998, that the
evidentiary hearing scheduled for 10:00 A.M. this date is
hereby re-scheduled to Friday, May 15, 1998, at 9:30 A.M.,
in Courtroom A 311, Washington Street, Johnston,
Pennsylvania. It is further
l
023 ORDERED that “physical custody,” as that term is
defined in Pa.R.C.P. 1915.l(b), of Zachary Blake McCullough
and Victoria Sharon Louise McCullough, shall remain with
Randy Blake McCullough pending the hearing schedule for
Friday morning. Petitioner is encouraged to permit
respondent to have “visitation”, as that term is defined in
Pa.R.C.P. 1915.1(b), with the subject children, prior to the
Friday hearing.
Footnotes
—————–
1. Another issue of first impression presented here is
whether the “best interests of the child” standard,
long applied by Pennsylvania courts in child custody
cases, is applicable in this porvisional remedy
setting. See generally White v White 437 Pa.Super. 446
[650 A.2d 110, 112-113] (1994). It is clear to the
undersigned that that polestar of custody adjudication
does not apply in a merits determination of this case
which is to be decided “in accordance with the
Convention.” 42 U.S.C.A. 11603(d). For purposes of
granting a temporary provisional remedy under 42
U.S.C.A. 11604, however, I hold that the “best
interests of the child” standard is applicable.
2. Respondent advised that she does have counsel in Canada
who was retained for purposes of filing for both
divorce and custody in that foreign jurisdiction. I
need not address here any evidentiary significance of
this revelation.