USA – FEDERAL – NUNEZ – 1995 (Case remanded back to the district court) (13b)NUNEZ-ESCUDERO v TICE-MANLEY. This case is on appeal from a district court’s order denying the return of the child to Mexico. The appeals court reverses the district court and remands it back to the district court for further considerations. The Court stated that the district court must first make a determination of habitual residence under article 3. The court ordered the district court not to consider custody or the best interest of the child. The district court can only address an article 13b defense.
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Nunez-Escudero v Tice-Menley (8th Cir. 1995)58 F.3d 374
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Enrique Nunez-Escudero, Plaintiff-Appellant
v
Stephanie Rose Tice-Menley,Defendant-Appelle
No 94-1524, United States Court of Appeals, Eigth Circuit
Submitted 14 Nov 1994
Decided 26 Jun 1995
Enrique Nunez-Escudero appeals from the district court’s order
denying his petition for the return of his infant son to Mexico
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, Dec. 23, 1981, 51 Fed.Reg. 10493,
10498-502, as implemented by the United States in the
International Child Abduction Remedies Act, 42 U.S.C.
11601-11610. We reverse the district court’s order and remand to
the district court for further proceedings.
Enrique Nunez-Escudero, a citizen of Mexico, married Stephanie
Rose Tice-Menley, a citizen of the United States, in Mexico on
August 10, 1992. The couple has one child, Enrique Nunez-Tice,
born July 28, 1993, in Mexico. On September 21, 1993, Tice-Menley
left Mexico with her infant son and returned to her parents’ home
in Cologne, Minnesota. Nunez-Escudero filed this action, alleging
that Tice-Menley had wrongfully removed their son from Mexico in
violation of the Hague Convention on the Civil Aspects of
International Child Abduction. After receiving affidavits and
holding a hearing, the district court denied Nunez-Escudero’s
claim. This appeal followed.1
The Convention was adopted by the signatory nations “to protect
children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to
ensure their prompt return to the State of their habitual
residence, as well as to secure protection for rights of access.”
Hague Convention, Preamble. Both the United States and Mexico are
signatories to the Convention.
Under the Convention, as implemented by the Act, Nunez-Escudero
must initially prove by a preponderance of the evidence that
Tice-Menley removed their son from his “habitual residence.” 42
U.S.C. 11603(e)(1). If Nunez-Escudero meets this burden,
Tice-Menley must show by clear and convincing evidence the
applicability of one of the exceptions set forth in Articles 13b
or 20 of the Convention. 42 U.S.C. 11603(e)(2).
Two days before the hearing Tice-Menley submitted her affidavit,
as well as affidavits from her parents and a psychologist. Without
fully detailing all of Tice-Menley’s allegations, she stated that
Nunez-Escudero physically, sexually and verbally abused her, and
that she was “treated as a prisoner” by her husband and
father-in-law.
On January 21, 1994, the district court heard counsels’ argument.
The district court did not decide whether Tice-Menley removed the
baby from his habitual residence, Instead, it refused to order the
baby’s return because Tice-Menley established one of the Article
13(b) exceptions. Specifically, the court determined that there
was a grave risk that the return of the child would expose him to
physical and psychological harm and place him in an intolerable
situation. See Art. 13(b), Convention; 42 U.S.C. 11603(e)(2)(A).
The court reasoned: “to a six-month-old child the suggested action
would, in fact, be both a physical and a psychological harm to the
child.” The court explained: “if there’s any truth to the
potentiality that a six-month-old child would be institutionalized
by virtue of this action, that almost goes completely beyond the
subject of being an intolerable situation.” The next day, the
court entered a written order ruling that Tice-Menley established
that there is a “grave risk that the return of the child … would
expose him to physical and psychological harm and otherwise place
[him] in an intolerable situation.” Nunez-Escudero u Tice-Menley,
Civil File No. 3-93-835, Order at 1 (D.Minn. Jan. 23, 1994)
(citing Art. 13, Convention).
I.
Nunez-Escudero argues that the district court considered evidence
relevant only in a custody determination, not in applying the
Convention. He contends that the Article 13(b) inquiry is limited
to determining whether the courts of the child’s habitual resident
can provide protection to the child. Nunez-Escudero contends that
a child can only be exposed to a grave risk of harm under Article
13(b) if the habitual residence cannot protect the child.
Nunez-Escudero attacks the district court’s consideration of the
psychiatric evidence as inappropriate for the purpose of deciding
the applicability of Article 13(b).
This court recently confirmed that exceptions to the Convention
are to be narrowly construed. Rydder v Rydder (8th Cir. 1995), 49
F.3d 365 372. We acknowledged that the Convention prohibits a
court from adjudicating the merits of an underlying custody
dispute, and that the Convention’s primary purpose is to restore
the status quo and deter parents from crossing international
borders in search of a more sympathetic court. Id (citing
Friedrich u Friedrich (6th Cir.1993), 98 F.2d 1396, 1400.)
(Convention and Act grant courts jurisdiction to determine the
merits of the abduction claim, but not the merits of the
underlying custody issue). In Rydder, the mother attempted to
establish the applicability of Article 13(b) by relying on written
authorities recognizing the harm of separating a child from his
primary caretaker. Id at 373. We concluded this general evidence
could not satisfy Article 13(b), emphasizing there must be
“specific evidence of potential harm.” Id
Tice-Menley offered some general evidence that the baby could be
subject to a grave risk of physical or psychological harm or be
placed in an intolerable situation in Mexico. She submitted an
affidavit that she was physically, sexually, and verbally abused
by her husband. She was not allowed to leave the family home
without her husband or father-in-law. She also stated that she
feared for her baby’s safety. She stated that her husband and his
family objected to her nursing the baby and that her husband
refused to acquire a baby safety seat for the car. Tice-Menley
also detailed accounts of her father-in-law’s verbal abuse, and
stated that she had seen her father-in-law hit his youngest son
with a wooden plunger.
Although this evidence is more specific than that offered in
Rydder, the evidence suffers from the same shortcoming. The
evidence is general and concerns the problems between Tice-Menley,
her husband and father-in-law. The district court based its order
on the baby’s age, the impact of separating the baby from his
mother, and the possibility that the baby could be
institutionalized during the pendency of the Mexican custody
proceedings. Although Tice-Menley’s counsel referred to the
possibility of institutionalization in argument, Tice-Menley did
not offer any such evidence.2
The district court incorrectly factored the possible separation of
the child from his mother in assessing whether the return of the
child to Mexico constitutes a grave risk that his return would
expose him to physical or psychological harm or otherwise place
him in an intolerable situation. Art. 13(b), Convention; 42 U.S.C.
11603(e)(2)(A). After examining the text of the Convention and
cases from a range of other countries, the Supreme Court of Canada
concluded that only severe potential harm to the child will
trigger this Article 13(b) exception:
In brief, although the word “grave” modifies “risk”
and not “harm,” this must be read in conjunction
with the clause “or otherwise place the child in an
intolerable situation.” The use of the word
“otherwise” points inescapably to the conclusion
that the physical or psychological harm contemplated
by the first clause of Art. 13(b) is harm to a
degree that also amounts to an intolerable
situation.
Thomson u Thomson (Can. 1994), 119 D.L.R.4th 253, 286 . See also
In re A. (A Minor), [1988] 1 F.L.R. 365, 372 (Eng.CA) (abducting
parent must prove grave risk of harm that is “something greater
than would normally be expected on taking a child away from one
parent and passing him to another”). We should give considerable
weight to these well-reasoned opinions of other Convention
signatories. See Air France v. Saks (1985), 470 U.S. 392, 403 [105
S.Ct. 1338, 1344, 84 L.Ed.2d 289]; 42 U.S.C. 11601(b)(3)(B)
(recognizing “the need for uniform international interpretation of
the Convention”).
Moreover, most of the evidence Tice-Menley presented at the first
hearing was irrelevant to the Article 13(b) inquiry. The Article
13(b) inquiry does not include an adjudication of the underlying
custody dispute, Rydder, 49 F.3d at 372, and only requires an
assessment of whether the child will face immediate and
substantial risk of an intolerable situation if he is returned to
Mexico pending final determination of his parents’ custody
dispute. It is not relevant to this Convention exception who is
the better parent in the long run, or whether Tice-Menley had good
reason to leave her home in Mexico and terminate her marriage to
Nunez-Escudero, or whether Tice-Menley will suffer if the child
she abducted is returned to Mexico.
We reject Nunez-Escudero’s argument, however, that the Article
13(b) “intolerable situation” exception applies only if the
government agencies and courts of Mexico are unable to protect the
child if he is returned to that country. “[I]t is clear that
Article 13(b) requires more than a cursory evaluation of the home
jurisdiction’s civil stability and the availability there of a
tribunal to hear the custody complaint. If that were all that were
required, the drafters of the Convention could have found a clear,
more direct way of saying so. Tahan v. Duquette (Ct.App. Div.
1992), 259 N.J.Super. 328 [613 A.2d 486, 489]. WMH FOOTNOTE 1
Because Article 13 provides that the court “shall take into
account the information relating to the social background of the
child,” it has been held that the court may consider the
environment in which the child will reside upon returning to the
home country. See, e.g., Currier v. Currier (D.N.H.1994) 845
F.Supp. 916, 923 (in determining grave risk, Article 13 requires
the court to evaluate the surroundings to which the child is to he
sent and basic personal qualities of those located there); In re
Coffield (1994), 96 Ohio App.3d 52 [644 N.E.2d 662, 665] (Article
13 allows the court to consider “the basic environment” of the
home country and “the basic nature” of the individuals with whom
child would live). To ensure that the child is adequately
protected, the Article 13(b) inquiry must encompass some
evaluation of the people and circumstances awaiting that child in
the country of his habitual residence. For these reasons, we
cannot conclude that psychological reports are per se irrelevant.
In Tahan, the New Jersey Court acknowledged that, in general,
psychological profiles and evidence about parental fitness, life
styles, and relationships were irrelevant to the Article 13(b)
inquiry. 613 A.2d at 489. The evidence offered in Tahan, however,
differs from that in this case. There, the proffered testimony
consisted of evidence about family and school relationships, and
the impact of moving the child from the United States to Canada.
Id at 488. The court did not say that psychological evaluations
can never be considered: Indeed, the court stated just the
opposite:
To hold, as the trial court did, that the proper
scope of inquiry precludes any focus on the people
involved is, in our view, too narrow and mechanical.
Without engaging in an exploration of psychological
make-ups, ultimate determinations of parenting
qualities, or the impact of life experiences, a
court in the petitioned jurisdiction, in order to
determine whether a realistic basis exists for
apprehensions concerning the child’s physical safety
or mental well-being, must be empowered to evaluate
the surroundings to which the child is to be sent
and the basic personal qualities of those located
there.
Id. at 489.
Thus, we remand this case for further proceedings.3 We instruct
the court not to consider evidence relevant to custody or the best
interests of the child. On remand, Tice- Menley must present clear
and convincing evidence that the return of the child to Mexico
would subject him to a grave risk of harm or otherwise place him
in an intolerable situation if she is to prevail.4
II
Tice-Menley argues that this court can affirm the judgment because
the baby was not a habitual resident of Mexico, and therefore, the
Convention does not apply. Tice-Menley argues that she had no
intention of remaining in Mexico and had no choice in living there
because her husband and father-in-law made her a virtual prisoner.
Tice- Menley argues that she, as well as the baby, lost the
fundamental right of t freedom of movement, and neither of them
had a voluntary habitual residence in Mexico. She argues that a
six-week old nursing infant cannot make a determination of its own
“habitual residence,” but is dependent for that determination on
its mother. Tice-Menley argues that her son’s birth and short stay
in Mexico does not establish habitual residence there, and
compares her baby’s situation to that of a baby born to a woman
while vacationing in Mexico. She contends that no marital domicile
exists under Mexican law, and consequently, the Mexican courts
have no jurisdiction for determining dissolution or custody
issues. She cites several Mexican cases which state that a woman
coerced to live in a certain place does not acquire a marital
domicile, and that a couple living with their parents cannot
establish a marital domicile.
This court also considered the question of habitual residence in
Rydder, 49 F.3d at 373. In that case, the two children were born
in and registered as residents of Sweden. Id. at 371-72. The
children moved to Poland when their father was transferred there
under a two-year employment contract. The family intended to
remain in Poland for the duration of the father’s contract. Id. at
372. After the mother brought the children to Iowa, the father
sought their return under the Convention. Id. This court affirmed
the district court’s finding that the children were habitual
residents of Poland, rejecting the significance of the Swedish
residence registration and recognizing that “there is no real
distinction between habitual and ordinary residence.” Id. at 373.
The Sixth Circuit reached the same conclusion in Friedrich, 983
F.2d at 1401-02. In that case, the mother argued that she did not
wrongfully remove her son from Germany to the United States
because he did not habitually reside in Germany. Id. at 1401.
Despite that the son had lived with his parents in Germany for two
years, the mother argued the son was a habitual resident of the
United States because: (1) he had United States citizenship; (2)
the United States was listed as his permanent address for the
purpose of documentation; and (3) she intended to return to the
United States with her son when she was discharged from the army.
Id
The Sixth Circuit rejected the mother’s argument, explaining “[a]
person can only have one habitual residence.” Id The court stated
that “[t]o determine the habitual residence, the court must focus
on the child, not the parents, and examine past experience, not
future intentions.” Id Because the child was born in Germany and
lived there exclusively, the court concluded that the child was a
habitual resident of Germany. Id at 1402. The court explained:
“habitual residence can be ‘altered’ only by a change in geography
and the passage of time, not by changes in parental affection and
responsibility.” Id
Citing In re Ponath (D.Utah 1993) 829 F.Supp. 363, 367 – 368 ,
Tice-Menley argues that an infant’s habitual residence follows
that of his mother, and that “coerced” residence cannot be
habitual residence under the Convention. In Ponath, the court
recognized that “[a]lthough it is the habitual residence of the
child that must be determined, the desires and actions of the
parents cannot be ignored … in making that determination when
the child was at the time of removal or retention an infant.” Id.
at 367. Acknowledging that “[t]he concept of habitual residence
must . . . entail some element of voluntariness and purposeful
design,” id, the court held that the father’s coercion of the
mother to stay in Germany “by means of verbal, emotional and
physical abuse removed any element of choice and settled purpose”
in remaining in Germany. Id at 368.
In Ponath, however, the child was born and lived in the United
States before visiting Germany where his father forced the family
to remain. Id at 366. In contrast, here, the baby was born and
lived only in Mexico until his mother fled to the United States.
To say that the child’s habitual residence derived from his mother
would be inconsistent with the Convention, for it would reward an
abducting parent and create an impermissible presumption that the
child’s habitual residence is wherever the mother happens to be.
See Friedrich 983 F.2d at 1402.
Accordingly, we cannot affirm the district court’s ruling on the
alternative ground that Nunez-Escudero failed to establish Mexico
as the child’s habitual residence. Nevertheless, on the record
before us, we believe that the district court should first make
the determination of habitual residence. If the parties wish to
further litigate this issue on remand, they are free to do so.5
We reverse and remand for further proceedings consistent with this
opinion.
Before Magill, Circuit Judge, John R. Gibson, Senior Circuit Judge
and Loken Circuit judge.
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[WMH FOOTNOTE 1: Responding to the last sentence of this
paragraph, the drafters in fact did find ” . . . a clear, more
direct way of saying so.” This is seen in the language of the
Explanatory Report by E. Perez-Vera. Hague Conference on Private
International Law, Actes et documents de la Quatorzieme session,
Vol. III, 1980, p. 426, Section 34 (In Part): “The practical
application of this principle requires that the signatory States
be convinced that they belong, despite their differences, to the
same legal community within which the authorities of each State
acknowledge that the authorities of one of them – those of the
child’s habitual residence – are in principle best placed to
decide upon questions of custody and access.” This should be
given significant weight. See Air France v. Saks (1985), 470 U.S.
392, 403 [105 S.Ct. 1338, 1344, 84 L.Ed.2d 289]. ]
Counsel for Appellant:
Justin Harley Per
Attorney At Law
Minneapolis, MN
Mary R. Vasaly
Attorney At Law
3300 Norwest Center
Minneapolis, MN 55400
TEL: (612) 672-8200
Counsel for Appelle:
Willem Frederik van Vliet
Attorney At Law
Minneapolis, MN
William Dennis Hull
Attorney At Law
8500 Normandale Lake Blvd
Minneapolis, MN 55437-3813
TEL: (612) 921-8550
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1. The Mexican Ministry of Foreign Affairs submitted an amicus
curiae brief in support of Nunez-Escudero’s claim that the
baby was wrongfully removed from Mexico in violation of the
Hague Convention.
2. The Mexican law and Mexican Ministry of Foreign Affairs
could perhaps shed light on the fate of the baby should he
be returned to Mexico. See Art. 7(e) and (g), Convention,
42 U.S.C. 11605.
3. The attorney for Nunez-Escudero admitted at oral argument
before this court that the Convention requires only the
immediate return of the child to the country of his habitual
residence and does not specify the logistics of the return.
The attorney suggested that the court could order the
child’s return to Mexico with Tice-Menley, and subject to
the assistance of Mexican or United States authorities.
4. Nunez-Escudero also argues that the district court violated
the local discovery rules by considering the late
submissions by Tice-Menley. In light of our remand for
further proceedings, this argument is moot.
5. Article 11 of the Convention requires that courts “act
expeditiously in proceedings for the return of children,”
and it contemplates that decisions will normally be reached
within six weeks from the date of commencement of those
proceedings. This action was commenced in December 1993,
over eighteen months ago. To meet our country’s treaty
commitment, which was entered into to discourage child
abduction and thereby to benefit children of all signatory
nations, it is now essential that the parties and the
district court expedite the final determination of this
dispute. At oral argument Tice-Menley presented us with a
divorce decree and award of custody from the Minnesota state
court. We point out that neither the second paragraph of
Article 12 of the Convention nor any intervening custody
order of a Minnesota state court prevents the implementation
of an otherwise appropriate order to return the child to
Mexico pursuant to the Convention.