USA – FEDERAL – MEREDITH – 1991

In re the Application of: MARIE CLAIRE E. MEREDITH,
Petitioner,

v.

STEVEN MEREDITH, Respondent

No. CIV 90-1632-PHX-RGS, 26 Feb 1991

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

759 F.Supp. 1432 (D.Ariz. 1991)

COUNSEL:

Raul Castro, Phoenix, Arizona for petitioner.

David Derickson, Phoenix, Arizona, for respondent.

JUDGES: Roger G. Strand, United States District Judge.

FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION

BACKGROUND

A petition pursuant to the Hague Convention was filed by
Marie Claire Meredith, October 22, 1990, which seeks the return of
a minor child, Christina, born to Petitioner and Respondent March
12, 1987. Petitioner alleges the child was wrongfully removed from
Birmingham, England to Phoenix, Arizona where the Respondent
resides. A hearing on the merits was held February 14, and 15,
1991, and the court now issues its findings of fact, conclusions
of law, and decision.

FINDINGS OF FACT

Petitioner Marie Claire Meredith was born in Algiers and is a
French citizen. She emigrated to the United States in November of
1975 pursuant to a “fiancee Visa” or a K-1 Visa and has been a
permanent resident alien for approximately 15 years due to a
marriage to Mr. Walter Graves, and later, due to her marital
relationship with respondent, Steven Meredith. Respondent is a
United States Citizen and has resided in Arizona since 1969.

Marie Claire and Steven Meredith were married July 18, 1986, in
Phoenix, Arizona and resided in Arizona as husband and wife from
the date of their marriage until December of 1989. Marie Claire
and Steven Meredith had a child, Christina Vanessa Meredith, who
was born in Phoenix, Arizona, on March 12, 1987. She is a United
States citizen, and resided in Arizona until December of 1989.
After May of 1990, the minor child resumed living in Phoenix, and
has continued to live here since that date.

Petitioner met Steven Taylor, a British citizen, in Phoenix,
Arizona, while she was married to and living with Respondent.
Petitioner telephoned Mr. Taylor in Birmingham, England, from
Phoenix, Arizona several times, including a thirty-minute phone
call on November 9, 1990. It was after this phone call that
Petitioner suggested to Respondent that she go to France to visit
her parents. Round-trip airline tickets for Petitioner and
Christina were issued by Trans World Airlines in Phoenix, Arizona,
on November 19, 1989. Petitioner left for France with Christina
and a child from a previous marriage, Jerome Graves, on December
7, 1989.

On December 29, 1989, Petitioner told Respondent she would
not be returning to Arizona. She instructed Respondent to go to
the Arizona court, file for a divorce and grant her custody of
Christina, informing him that if he followed her instructions, she
would let him see the minor child again. On January 2, 1990,
Petitioner and the minor child, left France and went to
Birmingham, England.

Respondent filed a Complaint for Dissolution of Marriage on
January 18, 1990, in the Superior Court of Arizona in Maricopa
County. Respondent obtained an emergency ex-parte order granting
him custody of his daughter from the Honorable Bernard J.
Dougherty of the Arizona Superior Court and a hearing was
scheduled for January 26, 1990.

The hearing scheduled for January 26, 1990, was quashed due
to lack of service. A new hearing was scheduled for March 13,
1990. Respondent was led to believe and did believe that
Petitioner was residing in France. Whenever he called for
Petitioner, he was informed that Petitioner was “visiting
somewhere in the country.” Petitioner did not inform Respondent
that she was no longer residing with her parents in France, and
did not inform Respondent that she had moved to her companion
Steven Taylor’s home in Birmingham, England.

Petitioner admitted that if Respondent had learned of her new
location in January or February of 1990, she would have moved
again so that he could not locate her or their child. Petitioner
enlisted the aid of her parents and other family members in her
attempt to deceive Respondent into believing that Petitioner and
their minor child were still residing in France.

Respondent hired a French attorney to accomplish service upon
Petitioner pursuant to French law. On February 21, 1990, service
was accomplished upon Petitioner through her father who stated
that Petitioner resided with him in France at the house where the
papers were served. Petitioner’s father, Jacques Anton, was served
and given copies of all of the documents listed on the Affidavit
of the process server, in both English and French. Petitioner
acknowledges she received these documents on February 24, 1990.
She also acknowledges she was aware of the March 13, 1990, hearing
and that she understood the hearing was to determine custody of
the minor child. Petitioner further received notice of this
hearing from telephone conversations between herself and
Respondent who specifically informed her of the hearing date and
that she should present. Petitioner, however, did not respond to
the Petition of Dissolution, nor did she appear at the March 13,
1990, hearing, or make any a ttempt to notify the court ony
circumstances which would have prevented her appearance.

On March 13, 1990, the Arizona Court found service to be
propepon Petitioner, and further, after hearing the merits of the
Petition, the court lawfully awarded custody of the or child,
Christina, to Respondent. On March 27, 1990, a Notice and
Application for Entry of Default was properly filed and adefault
was entered against Petitioner. A hearing was held April 26, 1990,
and a Decree of Dissolution which lawfully awarded custody of the
minor child to Respondent was signed by the Arizona tricourt Judge
and filed. On May 24, 1990, Respondent regained physical custody
of the minor child.

Respondent and the minor child have continuously resided in
Phoenix, Arizona since their return from England in May of 1990.
On Friday, June 1, 1990, Petitioner appeared in Phoenix, Arizona
demanding to see the minor child. Petitioner was told she must
first comply with the restrictions upon her visitation as set
forth in the Arizona Decree of Dissolution. While in Arizona on
June 1, 1990, Petitioner made no attempt to have the Decree of
Dissolution or its provisions regarding custody or visitation
vacated or modified.

Respondent has never been served with notice of any British
proceeding affecting his rights to custody of Christina nor has he
ever been afforded an opportunity to appear and present his case
to the British Court. The Wardship proceedings were conducted
after Respondent had regained custody of the minor child on May
24, 1990.

Petitioner acknowledges the fact that she is currently
divorced pursuant to the Arizona Superior Court Decree of
Dissolution entered April 26, 1990. This is the same document
which awards full, sole, and legal custody of the minor child,
Christina to Respondent. At no time has Petitioner filed an action
in the Arizona court to set aside or modify the Decree of
Dissolution, or any of its provisions relating to custody or
visitation. Petitioner has never appealed the Arizona court’s
decision regarding the dissolution of the marriage or any of the
provisions of the decree.

CONCLUSIONS OF LAW

The Hague Convention is an international treaty designed to
protect custody rights of parents on a global scale. The United
States became a signatory nation to the Convention in July of
1988. The stated objective of the Convention is “to secure the
prompt return of children wrongfully removed to or retained in any
Contracting State,” and “to ensure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States.” Hague Convention, Art.
1, (a),(b) (“Convention”). Based upon Article 19 of the Convention
and under the International Child Abduction Remedies Act Sec.
2(b)(4), n1 the court is empowered to determine the merits of an
alleged abduction, but not the merits of the underlying custody
claims or issues. Therefore, the focus of the court is solely on
whether Petitioner may invoke the protection of the Convention for
what she alleges was the wrongful abduction of her daughter from
Birmingham, England on May 24, 1990. The court concludes that she
cannot.

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – –
n1 Enacted by Congress to facilitate the implementation of
the Convention. 42 U.S.C. Sec. 11601 et seq.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – –

In order to invoke Hague Convention relief, Petitioner must
satisfy two threshold issues: 1) lawful rights of custody at the
[*8] time of the removal or retention; and 2) that such removal
or retention is from the child’s “habitual residence.” Based on
the evidence presented, the court concludes that Petitioner has
not established the existence of either of these factors.

A. Lawful Rights of Custody

Article 3, as further clarified by Article 5(a), provides
that the removal or retention of a child is to be considered
wrongful where:

(a) it is in breach of rights of custody attributed to a person .
. . under the law of the state in which the child was a habitual
resident immediately before the removal or retention; and

(b) at the time of the removal or retention, those rights were
actually exercised, either jointly or alone, or would have been so
exercised but for the removal or retention.

Custody rights are determined by the law of the child’s
habitual residence. “Habitual residence” is an undefined term in
the Convention. It is apparent that it must be determined by the
facts and circumstances presented in each particular case.

Petitioner argues Christina’s habitual residence is
Birmingham, England. Petitioner argues the decree by British
Judge Scott Baker establishes the requirement of habitual
residence. There are two defects with Petitioner’s contentions.
First, the determination of “habitual residence” was not made by
the British Court until May 24, 1990, or after Mr. Meredith
regained control of Christina, and second, there was no evidence
regarding any attempts by Petitioner to establish such residence
prior to this action. The court concludes Petitioner sought such a
declaration simply to invoke the protection of the Hague
Convention, for if Christina was not an “habitual resident” of
Birmingham, England, she was not removed wrongfully from a place
of “habitual residence.” Moreover, the proceeding was conducted ex
parte with no service or other notice to Respondent so that he
might have appeared or otherwise advised the court as to his
position. Such a proceeding does not comport with the requirements
of due process as Mr. Meredith was not provided with any notice or
opportunity to be heard. Further, Respondent testified that as of
this date, he has never been served with copies of any documents
or been made aware in any formal manner of the official findings
of the British Court. Petitioner has not demonstrated habitual
residence by any objective evidence. The only factor tending to
support such an assertion is the ex parte British decree. Evidence
before this court demonstrated that Petitioner left for England
without informing Respondent, and secreted her whereabouts from
Respondent. It would be inequitable and unjust to allow such
conduct to create “habitual residence” for Christina, a minor
child who is an United States citizen, an Arizona domiciliary and
who shares “habitual residence” with her lawful, custodial parent,
her father. FN 1

Christina was born March 12, 1987, in Arizona and remained in
said State until December 7, 1989. The only reason she left
Arizona was to accompany her mother on a holiday visit to France.
Christina was absent from the State of Arizona for a period of
five months being a temporary resident with Petitioner in France
and England. 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. Accordingly, the court concludes that Christina’s place
of habitual residence was and is Phoenix, Arizona and not
Birmingham, England. FN 2

With respect to the issue of the “breach of custody rights,”
Petitioner left the country with the acquiescence of Respondent.
By December 29, 1989, however, she was interfering with his
parental custodial rights by unilaterally removing and/or
retaining the child abroad without his consent. She further
interfered with his rights as a parent by moving to a new country,
and concealing the child’s whereabouts through deceit and the
utilization of other family members including her parents.

Moreover, her rights of shared parental custody were
terminated with the issuance of the Custody decree from the
Arizona Superior Court. Custody of the child has been expressly
awarded to Respondent in a lawful proceeding of which Petitioner
was given notice and in which she was given an opportunity to
participate. The temporary order of custody was made into a
permanent order after the Arizona court determined that she had
failed to respond to any of the pleadings which had been served on
her.

Article 17 of the Hague Convention specifies that the Court
may not base its decision to return or not to return the child
solely on the existence of a custody order, but also provides that
the facts and circumstances concerning the custody order and the
reasons for its issuance may be examined by the court. Convention,
Article 17. In the case at bar, it is clear that Respondent’s
Custody Order was based on lawfully supported findings that
Arizona had proper jurisdiction over the parties and that
respondent was entitled to custody of Christina, the minor child
of the parties. Petitioner was on notice of the pending
dissolution of the marriage. She had instructed Mr. Meredith to go
to the Arizona court and pursue both a divorce decree and a
petition for child custody. These documents were personally served
on Petitioner through her father with the papers both in English
and in French. She admitted being aware of the existence of such
documents by February 24, 1990. The Superior Court found such
service to be lawfully sufficient. Testimony from the hearing
demonstrated both that Mr. Meredith told Petitioner she needed to
appear at the Superior Court proceedings, and that she had sought
legal counsel in England with regard to such proceedings. She also
accepts the fact the Arizona court had jurisdiction over the
divorce and child custody issues as she requested that forum, and
now recognizes the validity of the divorce.

Petitioner had mere physical possession of the minor child
Christina at the time of her removal by Respondent, and she did
not have any legal rights of custody of said child at that time.
It is true that prior to the entry of an order specifically
awarding custody to a particular parent, both parents are
considered as having legal custody. In this case, however, full
custody rights with respect to the minor child had been expressly
awarded to Respondent in a lawful proceeding of which Petitioner
was clearly aware and with respect to which she had been given an
opportunity to respond and/or to participate. The temporary order
was made into a permanent order after the Arizona court determined
that she had failed to respond to any of the pleadings which had
been served on her. In fact, Petitioner acknowledges the validity
of the Decree of Dissolution and has acquiesced in the legal
ramifications of the Court’s findings and orders. Specifically,
she accepts that she is now divorced. In short, Petitioner does
not dispute the existence of the decree nor has she attacked its
validity. Under the circumstances, Petitioner clearly does not
meet the threshold prerequisites necessary to invoke the Hague
Convention by alleging that a wrongful removal had taken place
from a person exercising rights of custody pursuant to the
Convention’s Article 3. n2

– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – –
n2 If the Court were to accept Petitioner’s interpretation of
the Convention, nothing that happened prior to May 24, 1990, would
be relevant in determining whether to grant relief to Petitioner
under the Convention. Thus, even if Petitioner had appeared in
Arizona, participated in the custody proceedings, lost and had
then moved the child to a hiding place, even for a day, as long as
she had the intent to remain in the hiding place, she could use
the Hague Convention to defeat her husband’s right to custody and
to carry out precisely what the Hague Convention was established
to defeat — wrongful retention of a minor child. Moreover, the
Court would be condoning the Petitioner’s deliberate disregard of
Arizona’s laws despite her recognition that the Arizona Superior
Court was the proper jurisdiction for such a domestic relations
action.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – –

B. Habitual Residence of the Child

As discussed above, the term “habitual residence” is not
defined by the Convention. To invoke the protection of the
Convention, the taking or retention of a minor child must have
occurred from a place where the child habitually resides. The
court has concluded that the facts and circumstances of this case
compel a finding that Christina was not a habitual resident of
Birmingham, England so as to trigger the protection of the Hague
Convention. Instead she is, and has always been a habitual
resident of Phoenix, Arizona.

Accordingly, without passing judgment on the underlying
issues of child custody and/or visitation, and pursuant to Article
27 of the Hague Convention,

IT IS ORDERED denying Petitioner’s Petition for Relief under
The Hague Convention.

FURTHER as Respondent, the lawful custodian of the minor
child, has regained custody of said child,

IT IS ORDERED denying Respondent’s Cross-Petition under The
Hague Convention as moot.

FURTHER ORDERED denying Petitioner’s Motion to Dismiss the
Cross-Petition filed by Respondent as moot.

FURTHER ORDERED that pursuant to Article 19 of the Hague
Convention, any modifications to the divorce decree and or
provisions relating to child custody or visitation must be pursued
in the Superior Court of Arizona, in and for the County of
Maricopa.

DATED this 26th day of FEBRUARY, 1991.

——————–
1. WMH Comment: This appears to be the first case that holds
that concealing a child does not cause the place of
concealment to become the Habitual Residence of the child.
See a UCCJA case: Curtis v Curtis (Miss. 1990) 574 So.2d 24
for discussion of this point.

2. WMH Comment. This is in accord with the UCCJA and the PKPA
wherein it is held that “Home State” includes periods of
temporary absence. See 28 USC 1738A(b)(4) and 9 ULA 2(5).