USA – FEDERAL – PONATH – 1993 (1993) (Return denied) (Habitual residence) PONATH v PONATH. The mother returned to the US with the child. The father filed for the child’s return under the Hague Treaty. The court ruled that the US was the place of habitual residence, not Germany. The court found that the mother had only agreed to go to Germany for a visit. The child was born in the US and the only connection to Germany was the visit.
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Application of Ponath (D.Utah 1993)829 F.Supp. 363
In re the Application of:
Petitioner: Sten Ponath
and
Respondent: Jeri Lynn Ponath
No. 93-C-0643-S, 17 Aug 1993
Keith H. Chiara, Price, UT, Duane, R. Smith, Salt Lake City, UT,
for petitioner.
David S. Dolowitz, Cohne, Rappaport & Segal, Salt Lake City, UT,
for respondent.
MEMORANDUM DECISION AND ORDER
SAM, District Judge.
This matter is before the court on Petitioner’s Motion for
Return of Child pursuant to the International Child Abduction
Remedies Act, 42 U.S.C. Secs 11601-11610. and the Convention on
the Civil Aspects of International Child Abduction, done at The
Hague on October 25, 1980 (the “Hague Convention”). Petitioner
alleges that the parties’ minor child was wrongfully removed by
respondent from the Federal Republic of Germany (“Germany”) to
the United States of America (“United States”).
An evidentiary hearing was held on Monday, August 2, 1993,
with closing statements being addressed to the court on August 3,
1993. Petitioner was present in court and represented by counsel
Duane R. Smith, Esq. and Keith H. Chiara, Esq. Respondent was
present in court and represented by counsel David S. Dolowitz,
Esq.
The court, having considered the oral and written arguments
of counsel, as well as the relevant evidence, including the
testimony of witnesses, enters the following Memorandum Decision
and Order containing the court’s findings of facts and
conclusions of law.
INTRODUCTION
Petitioner and respondent met briefly while he was visiting
Utah in July 1990. He returned to Utah in August 1990, and
maintained contact with respondent. The couple was married in
October 1990 and had a child in July 1991. From the time of their
marriage until November 1991, the family resided in Utah In
November 1991, the family traveled to Germany. Respondent and the
minor child returned to the United States in September 1992.
Petitioner claims that respondent wrongfully removed the child
from Germany and he has initiated this action seeking the child’s
return to Germany for a determination of custody.
The ‘Hague Convention “. . . establishes legal rights and
procedures for the prompt return of children who have been
wrongfully removed or retained….” 42 U.S.C. 11601(a)(4). The
United States became a signatory to the Hague Convention in 1988.
Id at 11601(b). The objective of the Hague Convention is “to
secure the prompt return of children wrongfully removed to or
retained in any Contracting State” and “to insure 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).
Retention or removal of a child is wrongful under the Hague
Convention ” 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 habitually resident immediately before the removal or
retention and
(b) at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have
been so exercised but for the removal or retention.
Hague Convention Art. 3
Petitioner seeks return of the minor child to himself or his
agent to be returned to Germany for a determination of custody of
the child in the courts of that country.
Petitioner’s burden is to establish that the minor child was
wrongfully removed within the meaning of the Hague Convention by
a preponderance of the evidence. 42 U.S.C. Sec. 11603(e)(1).
Likewise, respondent’s burden as to any exceptions to return of
the child afforded by the Hague Convention, must be established
by a preponderance of the evidence except that those exceptions,
set forth in Article 13b and 20 of the Hague Convention, must be
established by clear and convincing evidence. FN 01 id at (2).
The threshold issue presented is whether the habitual
residence of the child “immediately before the removal” was in
Germany, as alleged by petitioner, or in the United States, as
asserted by respondent. If the habitual residence of the minor
child were in the United States, then there was no wrongful
removal. See Meredith v Meredith (D.Ariz. 1991) 759 F.Supp. 1432,
1436. (“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 term “habitual residence” is
not defined by either the Hague Convention or 42 U.S.C. Sec.
11601-11610. “The intent is for the concept [habitual residence]
to remain fluid and fact based, without becoming rigid.” Levesque
v Levesque (D.Kan 1993) 816 F.Supp. 662, 665. Commenting on this
concept, one British court observed:
No definition of `habitual residence’ has ever been
included in a Hague Convention. This has been a matter
of deliberate policy the aim being to leave the notion
free from technical rules, which can produce rigidity
and inconsistencies as between legal systems.
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
It is greatly to be hoped that the courts will resist
the temptation to develop detailed and restrictive
rules as to habitual residence, which might make it as
technical a term of art as common law domicile. The
facts and circumstances of each case should continue to
be assessed without resort to presumptions or
pre-suppositions.
In re Bates No. CA122.89 at 9-10, High Court of Justice, Fam.
Div’n Ct. Royal Court of Justice, United Kingdom (1989) (quoting
Dicey & Morris, The Conflicts of Laws 166 (11th Ed.)).
As alluded to earlier, the Hague Convention sets forth
certain exceptions under which the court is not bound to order
the child returned to the jurisdiction from which wrongful
removal was effected. Those exceptions are set out in Article
13, FN 02 which provides in relevant part as follows:
Not withstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return of
the child if the person which opposes its return
establishes that
a) the person . . . having the care of the person of
the child . . . consented to or subsequently acquiesced
in the removal or retention; or
b) there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
Hague Convention, Art. 13.
Respondent has alleged that petitioner consented to her removal
of the minor child from Germany to the United States. Testimony
was heard on this issue. Respondent has also alleged that there
is physical or “psychological risk to the child if he is returned
to Germany. However, the latter issue was reserved and no
specific testimony or argument was heard. The court, therefore,
does not reach the merits of that issue.
FINDINGS OF FACT
The testimony of petitioner and respondent is, in many
instances, contradictory. The court judges respondent as the more
creditable witness and, therefore, gives more weight to her
testimony in making its findings of fact. FN 03
1. Petitioner is currently a citizen and resident of
Germany. Respondent is currently a citizen and resident of the
United States.
2. Petitioner and respondent married in Carbon County, Utah
on October 13, 1990.
3. Petitioner and respondent have one minor child, Richard,
age 2 years. The minor child was born July 21, 1991, in Price,
Carbon County,Utah.
4. From the time the minor child was born until November 6,
1991, petitioner, respondent and the minor child resided in
Carbon County, Utah.
5. On November 6, 1991, petitioner, respondent and the minor
child traveled to Germany on round trip airline tickets for the
purpose of visiting petitioner’s family. The visit was at the
suggestion and request of petitioner. Respondent had suggested a
six month open airline ticket, but petitioner said they would be
returning to Carbon County within three months. At the time the
airline tickets were purchased, the return trip was scheduled for
December 5, 1991.
6. The minor child traveled to Germany on a United States
passport.
7. Some two weeks after arriving in Germany, petitioner
obtained employment. Petitioner, respondent and the minor child
resided with petitioner’s parents. Commencing on or about April
1992, petitioner began the construction of a house on property
adjacent to that of his parents.
8. At the end of three months, approximately February 1992,
respondent desired to return to the United States with the minor
child, but petitioner refused to permit her and the minor child
to return. Petitioner prevented and continued to prevent
respondent and the minor child’s return to the United States by
means of verbal, emotional and physical abuse.
9. Some months later, during a discussion between petitioner
and respondent regarding her desire to return with the minor
child to the United States, petitioner told respondent that, if
she desired to live without him as her husband and as the minor
child’s father, she and the child could leave Germany.
10. At that time, there was no judicial custody order and no
legal proceedings had been commenced concerning the marriage or
custody of the child.
11. Respondent and the minor child returned to the United
States on September 7, 1992, and have resided in Carbon County,
Utah since that time,
12. On September 22, 1992, respondent filed an action for
separate maintenance, support and custody in the Seventh Judicial
District Court, Carbon County, State of Utah. On February 12,
1993, respondent filed a verified amended complaint seeking a
divorce, custody and support. Efforts to serve petitioner in
Germany were unsuccessful.
13. Petitioner returned to the United States at the end of
February 1993. On March 1, 1993, petitioner was arrested by
Carbon County police officials for allegedly attacking
respondent’s sister-in-law in her home while attempting to see
respondent and the minor child. The court’s finding regarding
petitioner’s verbal, emotional and physical abuse of respondent
is further supported by the evidence and testimony regarding
petitioner’s egregious conduct regarding his confrontation of the
respondent and her sister and the steps he was apparently
prepared to take to force his will upon respondent, contrary to
law. Petitioner was served with respondent’s state court divorce
proceedings on March 2, 1993.
14. On March 22, 1993, petitioner filed his answer to
respondent’s state court divorce proceedings. After bifurcation
of proceedings, a decree of divorce was entered on July 7, 1993.
Custody, support and other related matters remain pending in
state court.
15. Petitioner filed this action on July 9, 1993.
Petitioner’s request for return of the child pursuant to the
Hague Convention was filed with the United States Department of
State through the government of Germany by correspondence dated
March 29, 1993. There is no evidence, other than petitioner’s
testimony, which the court judges less creditable than that of
respondent, that he made any attempt to contact or see respondent
and the minor child before March 1, 1993, almost six months after
hey returned from Germany. FN 04
16. As testified to by Doctor Lynn Ravsten, respondent’s
clinical psychologist, she is suffering from post traumatic
stress disorder. Her behavior, as observed by him, supports her
statement that she was verbally, emotionally and physically
abused by petitioner.
CONCLUSIONS OF LAW
1. The court has jurisdiction of this matter, pursuant to 42
U.S.C. Sec. 11603(a).
2. Pursuant to 42 U.S.C Sec. 116O3(d), the court makes its
findings and determination in accordance with the Hague
Convention.
3. For purposes of 42 U.S.C. Sec 11603(e)(1)(A) and Article
3 of the Hague Convention, the habitual residence of the minor
child was in Carbon County, Utah. Between petitioner and
respondent, the more creditable testimony in the court’s view, is
that of. respondent who testified that she, and the minor child,
were detained in Germany against her desires by means of verbal,
emotional and physical abuse. The court cannot conclude under
such circumstances that respondent and the minor child were
habitually resident in Germany within the meaning of the Hague
Convention. Although it is the habitual residence of the child
that must be determined, the desires and actions of the parents
cannot be ignored by the court in making that determination when
the child was at the time of removal or retention an infant. The
concept of habitual residence must, in the Court’s opinion,
entail some element of voluntariness and purposeful design.
Indeed, this notion has been characterized in other cases in
terms of “settled purpose”.
The governing principle for ascertaining the elements
of habitual residence is contained in the speech of
Lord Scarman in R. v. Barnet London Borough Council ex
parte Shah [1983] 2 A.C. 309, where he says, at page
314: “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 No. CA 122.89 at 10, High Court of Justice, Fam.
Div’n Ct. Royal Court of Justice, United Kingdom (1989). In this
case, what began as a voluntary visit to petitioner’s family in
Germany, albeit an extended visit, might be viewed by the court
as a change of habitual residence of the minor child but for
respondent’s intent and desire to return to the United States
with the minor child and petitioner’s willful obstruction of that
purpose. Petitioner’s coercion of respondent by means of verbal,
emotional and physical abuse removed any element of choice and
settled purpose which earlier may have been present in the
family’s decision to visit Germany. The aim of the Hague
Convention is to prevent one parent from obtaining an advantage
over the other in any future custody dispute. Friedrich v
Friedrich (6th Cir. 1993) 983 F.2d 1396, 1402. For the court to
grant petitioner’s motion, and thereby sanction his behavior in
forcing continued residence in Germany upon respondent, and
through her, the minor child, would be to thwart a principle
purpose of the Hague Convention. In the court’s view, coerced
residence is not habitual residence within the meaning of the
Hague Convention. As noted earlier, the concept of habitual
residence, for purposes of the Hague Convention, is viewed to be
fluid and fact based. Given the specific facts of this case, the
court can draw no conclusion other than that the habitual
residence of the child was in Carbon County, Utah. Accordingly,
pursuant to 42 U.S.C. Sec. 11603(e)(1), the petitioner has failed
to show by a preponderance of the evidence that the minor child
has been wrongfully removed or retained within the meaning of the
Hague Convention.
4. As an additional and/or alternative basis for the court’s
ruling, the court concludes that petitioner gave his consent for
respondent to return to the United States with the minor child,
Viewing the testimony of respondent as the more credible
testimony, the court finds, for purposes of the Hague Convention,
that respondent has established by a preponderance of the
evidence that petitioner gave his consent for respondent to
return to the United States with the minor child. This conclusion
is further supported by petitioner’s failure, for almost six
months, to make any meaningful effort to obtain return of the
minor child. Accordingly, the court concludes that removal of
the child was not wrongful within the meaning of the Hague
Convention.
ORDER
Therefore, based upon the foregoing Findings of Fact and
Conclusions of Law,
IT IS HEREBY ORDERED, ADJUDGE AND DECREED as follows:
1. Petitioner, Guido Sten Ponath’s Motion for Return of
Child is DENIED.
2. Each party shall bear their own fees and costs incurred
in this matter.
The clerk of the court is instructed to prepare and enter
judgment accordingly.
——————–
1. Article 13b and 20 exceptions relate to the risk of physical
or psychological harm to the child if returned and whether
the fundamental principles of human rights and freedoms of
the requested state would not permit return of the child.
2. Article 20 of the Hague Convention also provides: “The return
of the child under the provisions of Article 12 may be
refused if they would not be permitted by the fundamental
principles of the requested State relating to the protection
of human rights and fundamental freedoms.”
3. The court observes that both parents obviously love the
child and that this process is inherently stressful and
painful to the parties and their families. In determining
the parties’ credibility, the court echoes the sentiment of
another court faced with a similar dilemma: “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.” Levesque v Levesque (D.Kan. 1993) 816
F.Supp. 662, 666 n. 3
4. Petitioner represents, without any documentation, that on
November 2, 1992 he filed all necessary papers seeking
permanent custody of the minor child in Germany and that
order or decree has been issued.