USA – FEDERAL – MORRIS – 1999

Morris and Morris (D Colorado 1999)55 F.Supp.2d. 1156 [Civil Action No. 99-B-672]
24 International Abduction [USA 1999]
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO
30 Aug 1999

Lewis T. Babcock, Judge

Civil Action No. 99-B-672

In re the Application of:

SONJA E. MORRIS,

Plaintiff/Petitioner,

and

GERARD J. MORRIS,

Defendant/Respondent,

and Concerning

SEAN GERARD MORRIS,

Minor Child.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Babcock, J.

001 This action is brought pursuant to the 1980 Hague
Convention on the Civil Aspects of International Child
Abduction, 51 Fed. Reg. 10494 (the “Convention”), and the
Federal legislation facilitating the Convention in the
United States, the International Child Abduction Remedies
Act, Public Law 100-300 at 42 U.S.C. 11601, et seq. Pending
before me is a petition filed by the Petitioner, Sonja E.
Morris (“Mother”), for the return of the minor child, Sean
Gerard Morris (the “child”), to Switzerland pursuant to the
Convention. The matter was heard on August 23 and 24, 1999.
I heard the testimony of witnesses, arguments of counsel,
and reviewed all the evidence. For the reasons set forth
below, and pursuant to the Convention, I find that Colorado
is the “habitual residence” of the child, and therefore I
deny the petition. The Convention and its federal
implementing legislation give this Court jurisdiction over
the parties and subject matter of this case.

I.

002 The Mother and the Respondent (“Father”) met in
Munich, Germany, in 1989. From June 1990 to August 1998,
they lived together in the United States. The parties were
married in lreland on May 27, 1994. One child was born of
the marriage on April 1, 1997, Sean Gerard Morris.
(Defendant’s Exhibit A6). The child was born in Porter
Hospital in Denver, Colorado, and has citizenship in the
United States, Ireland, and Germany.

003 The Father has lived in the United States for 18
years and is a naturalized citizen. He is also a citizen of
Ireland. The Mother is a citizen of Germany, and her parents
and Aunt reside there. Neither the Mother, the Father, nor
the minor child have Swiss citizenship or Swiss passports.
The Mother and the Father have filed United States and
Colorado tax returns during the marriage. Further, the
Mother and the Father each maintain a Colorado driver’s
license, and the Father is a registered voter in Colorado.

004 The Father has been a professor at Metropolitan State
College of Denver (“Metro”) since 1991. He is now a tenured
full professor. In December 1997, he applied for and was
awarded a 10 month sabbatical leave and a one-term guest
teaching appointment at the University of Basel,
Switzerland, from October 1998 through March 1999.
(Defendant’s Exhibit A9). Upon accepting the sabbatical, the
Father signed a contract with Metro agreeing to resume his
normal teaching position upon his return. (Defendant’s
Exhibit A 12). In the event the Father did not return from
his Swiss teaching position, he agreed to repay Metro the
partial salary he would receive during the leave period.
(Defendant’s Exhibit A 12).

005 The Mother and Father sold their home prior to
leaving Colorado with the intention of returning and
purchasing a larger home. The parties’ furniture and other
household items were stored in Denver. The Mother, in a
letter to her Denver employer, Founders Funds, stated that
she intended to return to her position when she and the
Father returned to Colorado in August 1999:

I regret to inform you that I am resigning my
position as Investor Service Representative as
of July 20. My husband has accepted a position
overseas while on sabbatical leave from his
current institution.

Since I really enjoy working at Founders I
would greatly appreciate the opportunity to
resume my position upon my return to Denver in
August 1999.

(Defendant’s Exhibit Q).

006 At the time the parties left for Switzerland, the
Father fully intended to return to Colorado with his wife
and child at the conclusion of the sabbatical. He was of the
distinct belief that the Mother also intended to return to
Colorado to purchase a home and to resume her employment.
However, the Mother testified at trial and in deposition
that at the time she left Colorado, although she had written
a letter to her employer at Founders Funds expressing her
intention to return, she had no fixed intention to stay in
Colorado. She explained that she never burns bridges and
always keeps opportunities open. Her testimony was that she
didn’t believe the letter represented a firm commitment. I
do not find her testimony credible. Instead, I find and
conclude that at the time the parties left Colorado for
Switzerland, they had a shared, settled intention to return
to Colorado with the child.

007 While in Switzerland, the University of Basel filled
out necessary documents for the Father to obtain a resident
work permit which was valid through March 1999. The Father
neither applied for, nor intended to pursue, permanent
employment at the University of Basel or anywhere else in
Europe. While in Switzerland, the Father completed paperwork
relating to his Fall 1999 teaching position with Metro. He
submitted to Metro his 1998 Annual Evaluation document
together with his teaching, research, and service goals for
1999. He also submitted his Five Year Comprehensive
Development Plan as required of all Metro faculty. Further,
the Father was in E-mail contact with his colleague at
Metro, Professor Susan Helms, a witness at this hearing,
concerning the courses he would teach in the upcoming Fall.
(Defendant’s Exhibit A34).

008 The Father entered into a three-month lease for a
guesthouse in Austria from April 1, 1999, to July 1, 1999,
because the parties intended to vacation there after the
sabbatical ended on March 31, 1999. After Austria, the
parties intended to travel in Ireland until their return to
the United States and the Father’s resumption of his
teaching duties at Metro.

0009 In November 1998, the marriage began to weaken and
the Mother became less interested in vacationing in Austria.
The Father asked the Mother whether she intended to return
home to Colorado. She answered, “I do not know.” At trial,
the Father testified that when he juxtaposed this vague
answer against their prior, settled plan to come back to
Colorado, he assumed that she had already decided to stay in
Europe. His assumption is supported by Frau Habegger, the
child’s day care provider in Switzerland. In her deposition,
Frua Habegger revealed that in January 1999, the Mother
communicated her intent to move to Germany in the summer of
1999, with the child:

Q. This conversation that you had with Mrs.
Morris in January of 1999, tell me
specifically what was said.

A. Mrs. Morris told me that she had
difficulties in her marriage, and that — she
said she very likely would separate. And that
she wanted to go to Germany — in the summer
to Germany.

Q. Frau Habegger, did Sonja Morris ask you to
keep her conversation with you about marital
difficulties a secret?

A. She had requested of me not pass out the
information to her colleagues.

010 Defendant’s Exhibit N, pages 22-23). On February 7,
1999, without the Father’s knowledge or consent, the Mother
extended the rental agreement for their apartment in
Switzerland through the end of 1999.

011 At trial, the Father testified to his decision to
finally act upon his instinct that the Mother planned to
keep the child in Europe. On February 21, 1999, when his
guest teaching duties under the contract with the University
of Basel were fulfilled, the Father returned to Colorado
with the child without the Mother’s knowledge. The Mother
was traveling in Switzerland at the time of the removal.
Upon her return, on February 22, 1999, the Mother obtained
an ex parte custody order from a Swiss Court granting her
custody of the child. There was an arrest warrant issued for
the Father in Switzerland upon a charge of keeping a minor
from his legal custodian. (Defendant’s Exhibit T). On
February 22, 1999, the Father filed a Petition for
Dissolution of Marriage seeking custody of the minor child
in the Arapahoe County District Court for the State of
Colorado. The Mother was served in Switzerland in accordance
with Swiss law on February 23, 1999. Subsequently, the
Mother filed for divorce with the Swiss court on February
24, 1999. Both the Colorado and the Swiss custody actions
have been stayed by this Court pending resolution of this
Hague Convention proceeding.

II.

012 Under the Convention, I am required to promptly
return a child to his place of habitual residence when that
child has been wrongfully removed to a contracting state.
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). Both
Switzerland and the United States are contracting states to
the Hague Convention.

013 Pursuant to Article 19 of the Convention. I have no
power to pass on the merits of custody. Rather; the issue
before me is whether custody should ultimately be tried in
Switzerland or Colorado. To that end, under Article 3 of the
Convention, a removal or retention of a child is considered
“wrongful” when,

(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.

014 This case presents two issues: (1) whether the minor
child, Sean Morris, was “habitually resident” in Switzerland
or in Colorado prior to his removal or retention; and, (2)
whether the Mother had lawful rights of custody at the time
of the removal or retention based upon the law of the
habitual residence. See Friedrich v. Friedrich, 983 F.2d
1396, 1400 (6th Cir. 1990); Meredith v. Meredith, 759
F.Supp. 1432, 1434 (D.Ariz. 1991). The first issue is
dispositive. There is no dispute that the child’s habitual
residence was Colorado before the family went to
Switzerland. If the child’s habitual residence shifted from
Colorado to Switzerland, the removal was wrongful and the
Swiss Court would address custody. If the child’s habitual
residence remained in Colorado, removal was not wrongful and
custody will be decided in Colorado. Under the facts of this
case, I hold the child’s habitual residence remained in
Colorado, never shifted to Switzerland and, thus, there was
no wrongful removal.

015 The term “habitual residence” is not defined in the
Convention or its implementing federal legislation. See id.;
see also Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir.
1995).

016 Therefore, the determination of a child’s habitual
residence is a factual determination made on a case-by-case
basis. See Wipranik v. Superior Court, 63 Cal.App.4th 315,
321 (Cal.App. 1998) (“the apparent intent is for the concept
to remain fluid and fact based, without becoming rigid.”).
The concept is not synonymous with common law “domicile.”
See Re Bates, No. CA 122/89. 1, 10, High Court of Justice,
United Kingdom, (1989)
(www.hiltonhouse.com/cases/Bates_uk.txt) Under the
Convention, a child cannot have more than one habitual
residence at a time.

017 When the parties left Colorado for the Father’s
sabbatical in Switzerland on August 1, 1998, the child was
habitually resident in Colorado. The Mother and Father lived
in Colorado since 1991, Sean Morris was born in Colorado,
and the parties established significant connections with
Colorado. The term “habitual residence” connotes more than a
mere physical presence in a contracting state. Therefore,
the fact that the parents and the child were physically
present in Switzerland for some period of time, does not, in
and of itself, persuade me that the child’s habitual
residence shifted from Colorado to Switzerland.

018 While the law requires me to focus on the child in
determining his habitual residence, because the minor child
in this case is merely two years old, he is unable to
meaningfully and independently express his feelings
regarding his habitual residence and has no capacity to
determine such status. In such a case I must consider the
overtly-stated intentions and conduct of his parents in
order to determine whether they formed the necessary “degree
of settled purpose that is required for a habitual
residence. See Re Bates, No. CA 122/89; In re Robinson, 983
F.Supp. 1339 (D.Colo. 1997). Further, in determining a
habitual residence, I must focus on the conduct of both of
the parents and not the future intentions of one of the
parents. See Friedrich, 983 F.2d at 1401.

019 The evidence shows that on October 1, 1998, only two
months after arriving in Switzerland, the parents rented an
apartment in Bad Saeckingen, Germany until November 30,
1998. The Father, Mother, and child commuted to Switzerland
four days a week where the Father taught at the University
of Basel, the Mother had temporary employment, and the child
attended day care. During these two months, the parties
spent three days every week in Germany, going to Switzerland
on the remaining four days only for purposes of employment
and day care. Every night of the week was spent in Germany.
While not dispositive, the fact that the parties lived in
Germany for these two months detracts from the argument that
Switzerland became the child’s habitual residence. The child
lived with his parents in Switzerland for only 104 days out
of a total 205 days away from Colorado. The remainder was
spent either living in Germany or vacationing elsewhere in
Europe.

020 In determining the habitual residence of a child, the
duration of the residence in the contracting state is a
factor for consideration. See Mozes v. Mozes, 19 F.Supp.2d
1108, 1115 (C.D. Ca. 1998). Where the duration of a stay in
a foreign country is intended to be indefinite, the habitual
residence of a child is usually in that foreign country. See
Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass. 1994);
Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan. 1993).
However, where the stay is intended for a limited, distinct
period of time, especially for less than one year, courts
have been reluctant to find that a new habitual residence
has been established. See In re. S (Minors), F.L.R. 70 (UK
1994) (www.hiltonhouse.com/cases/Inres3_uk.txt).

021 I find and conclude that the parties’ shared
intention was to remain in Switzerland for a limited period
of time defined by the Father’s sabbatical leave. The
Father’s sabbatical leave terminated on March 31, 1999,
although his teaching duties concluded in February 1999. The
Father’s teaching assignment at the University of Basel, was
for one semester as a guest professor. The Father signed a
contract with Metro, where he serves as a tenured professor,
to return to Colorado to resume his teaching duties at the
end of his sabbatical. The Father sought no permanent
teaching position in Switzerland. While in Switzerland, the
parties actually resided there for only four months, or 104
days, during which time they rented housing furnished by the
University of Basel. Although they sold their home in
Colorado, they intended to purchase a new and larger home
upon their return. This intent is manifested by the fact
that they stored their furniture and automobile in Colorado,
and the child traveled to Switzerland on a United States
passport with a round-trip ticket. Although the Mother
argues that the Father intended to retire in Austria, there
was no persuasive evidence of such intent. Further, the
Father testified credibly that he had no intent to retire in
Austria or elsewhere in the next 10-15 years.

022 The Mother’s testimony that she intended to remain in
Switzerland, when viewed with other evidence in the case, is
not credible. The Mother is a German national and holds a
German passport, as does the minor child. The Mother has
family and close friends in Germany, and no relatives in
Switzerland. Neither the Mother nor the Father is a Swiss
citizen, and neither holds a Swiss passport. During the
sabbatical stay, the Mother traveled with some frequency to
Germany. Finally, the deposition testimony of Frau Habegger,
the child’s Swiss day care provider, that the Mother, in
January of 1999, told her that she intended to move to
Germany in the upcoming summer months is in direct conflict
with the Mother’s testimony, and is persuasive as to the
Mother’s true intent.

022 The Father returned to Colorado with the minor child
on February 21, 1999. The fact that the Father cut short his
sabbatical is not persuasive to this Court on the issue of
habitual residence, because the child’s habitual residence
never shifted from Colorado to Switzerland. The Father
testified that he was concerned that he would be denied
access to his child if the custody issue were tried in a
German or Swiss Court. During the sabbatical, both the
Father and the Mother independently sought the advice of
European counsel due to marital difficulties. This evidence
simply shows that their marriage was failing and that each
were concerned over the custody of their child.

023 I am also persuaded by the few sabbatical cases
decided pursuant to the Convention. In those cases, as in
this case, the parties arrived at the location of the
sabbatical leave with a shared intention to return to their
state of origin. However, at some time during the
sabbatical, one of the parties changed his or her mind, and
expressed directly or indirectly an intent to remain in the
new state. See In re S (Minors,) F.L.R. 70; Storvik v.
Storvik, Calif. Super. Court, No. FL 047219 (1995)
(www.hiltonhouse.comjcases/Storvik_California.txt). In both
Storvik and In re. S the courts found that the child’s
habitual residence remained in the state of origin and that
the unilateral change in position of one of the parents was
not sufficient to alter the parties’ settled intention that
their state of origin was to remain the habitual residence
of the child during the sabbatical. See Storvik, No. FL
047219 (“the unilateral intent of a parent cannot change the
habitual residence of a child.”); see also Ponath v. Ponath,
829 F.Supp. 363 (C.D. Utah 1993); Mozes, 19 F.Supp.2d at
1115 (“to establish that the habitual residence of a child
has shifted, the law requires that a child be in the new
forum by mutual consent of the parents and that the child
has become settled in that new forum.”).

024 Similarly in this case, upon their departure to
Switzerland, the parties shared a clear intent to return to
Colorado. At some time during the sabbatical, the Mother
changed her mind and formed an individual intention not to
return to Colorado. Indeed, the evidence establishes that
her newly formed intent was to move to Germany. This
unilateral change of position does not make Switzerland the
child’s new habitual residence, especially where, as here,
the evidence shows that the Father never acquiesced in the
child remaining in Switzerland or, for that matter, in
Germany. In re S (Minors) F.L.R. 70; Storvik, No. FL 047219;
In re A and Another (minors). 1992 1 All ER 929, CA (1992)
Fain. 106 www.hlltonhouse.com/cases/Inrea2_u.ktxt) In a
sabbatical situation such as this one, in which a family
intends to be in a foreign country for a defined period of
time of less than one year and for a defined, specific
purpose, a parent’s unilaterally changed intent is not
enough to shift the habitual residence of a minor child. To
find otherwise would have significant negative policy
implications by discouraging extended international travel
and temporary international employment for scholastic and
professional enrichment.

025 The parties stipulated and I find and conclude that,
under the law of Switzerland, both parties had lawful rights
of custody when the Father returned to Colorado on February
21, 1999. Based on the credible evidence and the applicable
law, I find and conclude that the Mother failed to meet her
burden of establishing, by a preponderance of the evidence,
that the child’s habitual residence prior to the father’s
return home with the child shifted to Switzerland. I
conclude that the habitual residence of the child on
February 21, 1999, remained in Colorado. Therefore, his
removal to Colorado was not wrongful. Under Article 3 of the
Convention and its federal implementing legislation, the
proper forum to litigate custody is the Arapahoe County
District Court for the State of Colorado. Therefore, I will
not order the return of the child to Switzerland and the
Petition for Return of the Child is denied. This conclusion
terminates my analysis with regard to the application of the
Convention. I stress, however, that my finding of no
wrongful removal has no bearing upon the ultimate issue of
custody. My decision simply determines that a court of
Colorado, instead of a Swiss court, will be making the
ultimate decision with regard to custody.

026 WHEREFORE, THE COURT ORDERS that the Petition for
Return of Child is DENIED and this action is DISMISSED with
prejudice. Accordingly, the stay in the Arapahoe County,
Colorado ac-tion has been dissolved.

Dated: August 30, 1999 in Denver, Colorado.

BY THE COURT:

/s/Lewis T. Babcock, Judge

Deborah Read. Esq.
Milan & Malara, P.C.
1120 Lincoln, Suite 701
Denver, CO 80203

Timothy Walker, Esq.
Gerald W. Young, Essq.
Cox Mustain-Wood Walker & Schumacher LLC
6601 5. University Blvd. #200
Littleton, CO 80121-2913