Slagenweit v Slagenweit (N.D. Iowa 1993)541 F.Supp. 264; appeal dismissed, 43 F.3d 1476 [8th Cir.1994]
28 Oct 1993
Robert M. Jilck, Webb L. Wassmer, Simmons, Perrine, Albright &
Ellwood, Cedar Rapids, IA, for petitioner.
William F. Olinger, William F. Olinger Law Firm, Cedar Rapids,
IA, for respondent.
ORDER
MELLOY, Chief Judge.
<* 265> The petitioner, Ulla C. Slagenweit (“Ulla”) , brings this
petition pursuant to The Convention on the Civil Aspects of
International Child Abduction done at the Hague on October 25,
1980 (“Convention”) The Convention was adopted by the
International Child Abduction Remedies Act of April 29, 1988,
codified at 42 U.S.C. Sec 11601, et seq. The respondent is
petitioner’s husband, Steven P. Slagenweit (“Steven”). The
petition requests that the court order that the minor child of
the parties, Sandra Slagenweit (“Sandra”) be returned to the
petitioner pursuant to the Convention and that the petitioner be
awarded all reasonable costs and expenses. The petition was
filed on August 6, 1993. The court held a full evidentiary
hearing on this matter on October 22, 1993. FN1 The court now
sets forth its findings of fact, conclusions of law and
discussion denying the petition.
Findings of Fact
Ulla met Steven while Steven was stationed in Germany with the
United States Army. Steven and Ulla were married on February
22, 1985, in Wiesbaden, Germany. The family consistently resided
in Wiesbaden, Germany, until June, 1991. While residing in
Germany, Steven and Ulla had three children. The youngest,
Sandra, is the subject of this controversy. Sandra was born on
April 15, 1990, which makes her currently 3 1/2 years old.
In June, 1991, Steven quit his job in Germany and traveled to the
United States in <* 266> order to obtain employment and further
schooling. Steven gave Ulla approximately three weeks notice of
his intent to travel to the United States. The evidence indicates
that prior to June, 1991, the parties had been experiencing
marital difficulties. When Steven decided to leave Germany in
June, 1991, he and Ulla seriously discussed divorce, however,
they agreed to try to make the marriage work. Both parties
anticipated that Steven would eventually return to Germany.
Steven brought Sandra with him when he left Germany in June,
1991. Steven moved to Cedar Rapids, Iowa. Steven has resided
continuously in Cedar Rapids since June, 1991. Pursuant to
agreement of the parties, Sandra was returned to Germany in
October, 1991, to reside with her mother.
In April, 1992, Ulla wrote to Steven indicating that she was
finding it very difficult to handle the three children. Ulla was
attempting to return to school and needed time to study for an
entrance exam which was to be given in May, 1992. She requested
that Steven come and pick up Sandra as soon as possible. Steven
did not travel to Germany to pick up Sandra, however, Ulla did
come to Iowa to visit Steven in July, 1992. Sandra accompanied
Ulla to Iowa. Sandra was left in Steven’s care when Ulla returned
to Germany that same month. Sandra has resided with Steven since
July, 1992.
It is undisputed that the decision to leave Sandra with Steven
was by mutual agreement of the parties. One of the main reasons
for leaving Sandra in the United States was to obtain medical
consultation and treatment for Sandra. Sandra has been diagnosed
as having grand mal epilepsy. Sandra’s speech, motor skills,
feeding habits, and other developmental functions are 12-24
months behind her chronological age. Sandra had shown significant
progress while in the United States when she was with Steven in
Iowa from June to October, 1991. Once Sandra was returned to Iowa
in July, 1992, Steven had her evaluated at the Department of
Pediatrics, Division of Developmental Disabilities, at the
University of Iowa Hospitals and Clinics. The University of Iowa
Pediatric Clinic has conducted periodic reviews of Sandra’s
condition. In addition, Sandra has been seen regularly by
Pediatric Associates, P.C., in Cedar Rapids. Pursuant to the
recommendations of the health care professionals, Sandra has
received physical therapy through St. Luke’s Hospital Physical
Therapy Department. In addition, the Special Education Division
of Grant Wood Area Educational Agency has given in-home
assistance to Steven and his girlfriend. Currently Sandra is
enrolled in the Grant Wood School for the developmentally
disabled.
Since coming to the United States, Sandra has shown significant
developmental progress. The evidence shows that Sandra has
developed roughly at the rate of one month of development for
each month of chronological age since she has begun receiving the
services of the University of Iowa Pediatric Clinic, Pediatric
Associates, P.C., Grant Wood Area Education Agency, and, St.
Luke’s Physical Therapy Department. While Sandra still remains
developmentally disabled, this rate of one month progress for
each month of chronological age is significantly greater than the
progress which had been shown while residing in Germany.
There is considerable dispute as to the intentions of the parties
concerning Sandra’s custody when she was left with Steven in
July, 1992. Considering all the evidence and testimony, this
court concludes that it was intended that Sandra remain with
Steven for an indefinite period of time, however, it was also the
understanding of the parties that Sandra would eventually return
to Germany. No specific date for Sandra’s return was set by the
parties.
When Ulla came to Iowa with Sandra in July, 1992, Steven did not
tell Sandra that he had established a relationship with another
woman. In June, 1992, Steven met his current girlfriend. The fact
of that relationship was kept from Ulla, in part, because Steven
was afraid that if he told Ulla about the relationship Ulla would
not leave Sandra with him when Ulla went back to Germany in July,
1992. Shortly after Ulla’s return to Germany, Steven and his
current girlfriend began living together. Steven’s girlfriend has
been very involved in providing care to Sandra and following
through on the recommendations as to home health care.
<* 267> In December, 1992, Steven’s son Robert traveled from
Germany to Iowa to visit Steven over the Christmas holidays. On
December 19, 1992, Ulla called Steven at his residence to advise
Steven of a medical emergency involving their other son, David,
who had remained behind in Germany. Steven’s girlfriend answered
the telephone when Ulla called. Ulla confronted Steven about
this fact and Steven admitted his relationship at that time. At
about that time Steven also advised Ulla he was considering
keeping Sandra on a permanent basis. He also indicated that he
would give Robert the choice of staying with his father in Iowa
or returning to Germany after the Christmas holidays. Robert
decided to return to Germany and left Iowa in January, 1993,
while Sandra remained behind.
Over the next couple months there were discussions back and forth
between the parties about Sandra returning to Germany. Notes
contained in the Grant Wood Area Education Agency Activity
Reports indicate that Steven had a desire to keep Sandra,
however, he was concerned about the cost of an international
custody dispute. Eventually, Steven did agree to return Sandra to
Germany and airline reservations were made for Sandra’s return on
February 25 or 26, 1993. However, the plane tickets were never
actually purchased and Sandra did not return to Germany. There is
a dispute between the parties as to whether the refusal to return
Sandra in late February was due to Ulla’s refusal to pay for the
airline tickets, Sandra’s chicken pox, or some other reason.
Suffice it to say, Sandra has remained with Steven to this date.
On March 31,1993, Steven filed a dissolution of marriage action
in the Iowa District Court In and For Linn County. He advised
Ulla of the filing of the divorce proceeding on the same day and
also indicated his intention to seek permanent custody of Sandra.
There was considerable testimony about whether this was Ulla’s
first indication that Steven was going to seek a divorce.
However, the evidence shows that the marriage had gone through a
number of difficult periods. There is also evidence through an
affidavit of one of Ulla’s friends that after Ulla found out
about Steven’s relationship with another women in December 1992,
that both Ulla and Steven agreed that they would get a divorce.
Ulla is contesting jurisdiction of the Iowa court over the
marriage of the parties and has sought dismissal of the Iowa
dissolution of marriage action. She has also commenced divorce
proceedings in the German courts. There was considerable
testimony about the status of the German legal action. However,
the court does not consider the status of either the Iowa or
German divorce proceedings to be of any significance in this
dispute. The return of Sandra to her mother in Germany would not
pose any grave risk of harm. There was evidence that Sandra’s
return to her mother would pose some adjustment problems. Given
Sandra’s developmental deficiencies, there would be a period of
confusion and a sense of loss. Sandra’s developmental progress
may be set back somewhat by the change to a German speaking
culture after Sandra has been exposed to the use of the English
language for the past 15 months. However, the evidence indicates
that any period of adjustment would be temporary and should have
no long lasting effect upon Sandra. Since Ulla speaks proficient
English, this court has no reason to believe that Ulla would not
do everything necessary to help Sandra make the transition from
an English speaking country to a German speaking environment.
The evidence shows that Sandra would receive very adequate
medical care in Germany. The German medical facilities and access
to necessary medications are equal to those of the United States.
In addition, Ulla has medical insurance through her employer
which will cover Sandra. In that sense, Sandra may be somewhat
better off in Germany since Steven currently has no medical
insurance; Sandra is currently receiving health benefits through
the Title XIX Program.
The parties agreed that Sandra has dual citizenship, that is, she
is a citizen of both Germany and the United States. The parties
also agreed that under both Iowa and German law the parents have
joint rights of custody. No custody orders have been entered in
any of the divorce proceedings pending in Iowa and Germany.
<* 268> Conclusions of Law and Discussion
[1] The petition is brought pursuant to the Convention on the
Civil Aspects of International Child Abduction. Both Germany and
the United States are signatories to the Convention. The
Convention “.. . establishes legal rights and procedures for the
prompt return of children who have been wrongfully removed or
retained … Children who are wrongfully removed or retained
within the meaning of the Convention are to be promptly returned
unless one of the narrow exceptions as set forth in the
Convention applies.” 42 U.S.C. 11601(a)(4). The petitioner, Ulla,
has the burden of showing by preponderance of the evidence that
the child, Sandra, has been wrongfully removed or retained within
the meaning of the Convention.
Under Article 3 of the Convention, the retention of a child is
wrongful where (1) it is in breach of the rights of custody
attributable to a person under the law of the state in which the
child was a habitual resident immediately before the removal FN2
or retention, and (2) where the custody rights were being
exercised by the petitioner. In this case, respondent argues that
Germany was not the country in which Sandra was habitually
resident before the alleged wrongful retention and that Ulla was
not exercising her rights of custody.
[2] As to the second argument of the respondent, the court finds
that Ulla was exercising her rights of custody. Article 5
indicates that for purposes of the Convention, one of the rights
of custody includes the right to determine the child’s place of
residence. Ulla was exercising her right of custody when she and
Steven made the joint decision to leave Sandra with Steven in
July, 1992. Thus, the court finds that Ulla has met her burden of
showing that prong of the analysis.
[3] This court concludes, however, that Ulla has failed to show
by a preponderance of the evidence that Germany was Sandra’s
place of habitual residence prior to the alleged wrongful
retention. It is somewhat unclear as to when the wrongful
retention began. There is some evidence that Ulla and Steven
began discussing Sandra’s permanent residence shortly after Ulla
found out about Steven’s relationship with his current girlfriend
in December, 1992. However, Steven and Ulla did discuss Sandra’s
return to Germany in January and February, 1993. Steven did
indicate that he would return Sandra in February, 1993, and in
fact, a definite date for return was set. One of the reasons
Steven gave to Ulla for keeping Sandra after Robert returned to
Germany was continued medical treatment of Sandra and regulation
of a new medication for Sandra’s epilepsy. However, by March 31,
1993, when the divorce petition was filed, it was clear to all
concerned that it was Steven’s intent to keep Sandra on a
permanent basis. The court will adopt the petitioner’s argument
that the date for measuring when the wrongful retention began is
March 31, 1993.
The issue then becomes whether Sandra was a habitual resident of
Germany or Iowa prior to March 31, 1993. This court concludes
Sandra was a habitual resident of Iowa prior to that date. In
determining habitual residency, “a court must look back in time,
not forward … Future plans are irrelevant to our inquiry.”
Friedrich v Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993). “To
determine the habitual residence, the court must focus on the
child, not the parents, and examine past experience, not future
intentions.” Friedrich, at 1401.
In defining habitual residence, a number of courts have indicated
that the British courts have provided the most comprehensive
analysis of this term. A number of courts cite the case of In re
Bates, No. CA 122.2-89, High Court of Justice, Family Division
Court, Royal Court of Justice, United Kingdom, 1989. See
Friedrich, at 1401; Levesque v. Levesque, 816 F.Supp. 662, 666
(D.Kan.1993); Ponath v Ponath, 829 F.Supp. 363 (Utah 1993). The
Bates court is quoted in Levesque, at 666 as follows:
‘. . . 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 <* 269> 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.
This court concludes that Iowa became the habitual residence of
Sandra. The parties mutually agreed that Sandra would remain in
the custody of Steven for an indefinite period of time in Iowa. A
change in habitual residence from Germany to Iowa must be the
result of a change in geography and a passage of time. The change
in geography must not be the result of a questionable removal of
a child. Friedrich at 1401-1402. In this case, there is no
questionable removable; the parties agreed between themselves to
have Sandra live with Steven. Likewise, there was a clear change
in geography of Germany to Iowa. Furthermore, there was a
substantial passage of time from the removal in July, 1992, to
the beginning of the wrongful retention in late March, 1993.
While Ulla intended that Sandra return to Germany at some future
date, this court is convinced that no definite time for Sandra’s
return was set or discussed prior to the December 19, 1992
telephone call and that it was the mutual intent of the parties
that Sandra stay be of an indefinite nature.
More importantly, Sandra became a habitual resident by her
substantial involvement with her father, his girlfriend, the
other primary care giver, and the Iowa medical community. Sandra
has been seen on several occasions by the University of Iowa
Clinics, and Hospitals which has changed her to a new regimen of
medications which has greatly helped to alleviate the frequency
and severity of her seizures. Sandra has had regular contacts
with her Iowa pediatrician. Physical therapy and home health care
have been provided through St. Luke’s Hospital and Grant Wood
Area Education Agency. For a child suffering from the types of
physical and developmental problems experienced by Sandra, these
are significant indicia of habitual residence. Sandra has very
much become a resident of the Cedar Rapids community, with the
consent of both parents, so that she could no longer be
considered a habitual resident of Germany at the time of Ulla’s
demand for her return.
Consequently, Ulla’s petition for return of Sandra must be
denied. It must again be emphasized that the court is making no
determination as to the ultimate fitness of either person to have
temporary or permanent custody of Sandra. This court is only
determining that under the applicable provisions of the
Convention that return of Sandra to Germany is not mandated.
[4] Although the court has determined that Ulla has failed to
meet her burden showing that Sandra should be returned to
Germany, the court will briefly address respondent’s affirmative
defenses to Sandra’s return. The first defense relates to the
provisions of Article 13(b) of the Convention which provides that
return will be denied where there is a grave risk that return of
the child would expose the child to physical or psychological
harm. The respondent has the burden of proving this defense by
clear and convincing evidence. 42 U.S.C. 11603(e)(2)(A). For the
reasons stated in the findings of fact, the court finds that the
respondent has failed to meet his burden as to this issue. There
is no showing that the medical facilities in Germany are not
adequate to treat Sandra’s condition and give to her the physical
therapy she needs, nor is there any reason to believe that Ulla
would not be a fit parent and able to address Sandra’s medical
condition.
[5] The second defense is a more troubling one. That is, the
defense founded upon Article 12 of the Convention which provides
that when the proceedings for return of the child are commenced
after the expiration of a period of one year from the date of
wrongful retention, the child should not be returned if the child
is now settled in its new environment. The respondent has the
burden of showing this defense by a preponderance of the
evidence. 42 U.S.C. 11603(e)(2)(B). For the reasons set forth in
the discussion <* 270> concerning habitual residency, this court
concludes that the respondent has clearly met his burden of
showing that Sandra is settled in her new environment.
The more difficult issue is whether the petition was filed more
than one year after the wrongful retention as required under
Article 12 of the Convention. The petition was filed on August 6,
1993, which is clearly more than one year after Sandra commenced
living with Steven in Iowa. The petitioner takes the position,
however, that the wrongful retention began on March 31, 1993,
when Steven clearly communicated to Ulla his intention to keep
Sandra on a permanent basis. If the beginning of the wrongful
retention is the March 31, 1993 date, then the petition was filed
within one year and the Article 12 exception does not apply.
Strong arguments can be made in support of each parties position.
Since the Convention is directed principally at protection of the
child, it can certainly be argued that the one year should be
measured from the date the child actually starts living with the
parent from whom custody is sought since it is clear that the
Convention is concerned about the interest of the child who has
become “settled” in his or her new environment. On the other
hand, the Convention speaks about one year from the “wrongful
removal or retention.” As in this case, there can be no wrongful
retention when the child is residing with the parent from whom
custody is sought pursuant to an agreement between the parents.
The wrongful retention does not begin until the noncustodial
parent, in this case, Ulla, clearly communicates her desire to
regain custody and asserts her parental right to have Sandra live
with her.
This court has been unable to find any authority which clearly
addresses this issue. It is the conclusion of this court that the
correct reading of the Convention is that the one year period
begins to run from the date the noncustodial parent asserts her
rights of custody, which in this case would be March 31, 1993.
This reading gives effect to the literal wording of the
Convention and comports with what this court believes to be the
spirit of the Convention. In those cases where the child has
become so settled in her new environment by mutual agreement of
the parties, prior to the assertion of custodial rights, then the
case should be analyzed under the question of whether a new
habitual residency has been established for the child. In most
cases, such as this, when there is a change of custody from one
parent to the other by consent, followed by a demand for return
of the child, the parent demanding the return will have a
difficult time showing that the voluntary change of place of
residence did not also result in a change of habitual residency.
In summary, this court finds that the habitual residency of
Sandra is in the state of Iowa. Consequently, the petitioner’s
petition for return of Sandra must be denied. Moreover, if it
were determined that Sandra’s habitual residency was in Germany,
respondent’s affirmative defenses under Articles 12 and 13 of the
Convention would fail.
ORDER
It is therefore
ORDERED.
That petitioner’s petition for return of Sandra Slagenweit
pursuant to the Convention on the Civil Aspects of International
Child Abduction is denied.
Comment by William M. Hilton (08 Apr 1994):
The Court’s use of the term “Wrongful Retention” appears to be
improperly used in this decision. The use of the term “Wrongful”
can only apply to removals or retentions from the child’s
“Habitual Residence”. If the place were the child was removed or
retained from is not the “Habitual Residence” of the child, then
the removal or retention is not “Wrongful” within the meaning of
Art. 3 of The Convention.
The more difficult issue is when does the “Habitual Residence” of
the child shift from the place were the child had been physically
present (here Germany) to the place where the child is now
physically present (here Iowa.) What if the child had been sent
to Iowa for a school term, e.g., 9 months? Would this cause a
change in the “Habitual Residence” of a child? Would the
existence or non-existence of a round trip ticket be
determinative? I think that the intent of both parents is
critical here: If a child is sent from one place of physical
residence to another place of physical residence then the mutual
intent of the parents should be controlling. If there is a
disagreement then perhaps the method that the court has used,
e.g., contacts with the new physical residence, vaguness of the
period of time, etc., would be approriate to determine “Habitual
Residence”.
This decision seems to also imply that if the parents had agreed
before hand as to a specific period of time that the child would
be in the new physical residence and that the child would then
return to its former physical residence, then the child’s
“Habitual Residence” would not have changed.
As to the court’s comment as to the start of the period of
“Wrongful Retention” (which assumes that the former physical
residence of the child was still its “Habitual Residence”): The
court is correct in assuming that it starts on the day of the
retention. See, e.g., Navarro v Bullock Superior Court of
California, County of Placer, No. 86481, 01 Sep 1098.
——————–
1. Article 11 of the Convention requires the court to act
expeditiously in proceedings for the return of children.
Article 11 indicates that normally a hearing and decision on
the merits of the dispute will be held and rendered within
six weeks from the filing of the petition. In this case, the
evidentiary hearing on the filing of the petition was delayed
at the mutual request of the parties. This court indicated
its willingness to hold a hearing and reach a decision within
six weeks of the filing of the petition. However, the
parties requested an opportunity to conduct discovery,
directed principally to the issues of Sandra’s current
medical condition and treatment in Iowa, prior to the
hearing. Consequently, an order was entered allowing for
expedited discovery under the local Rules of Civil Procedure
and setting the hearing for October 22, 1993.
2. It should be noted that this is not a case of wrongful
removal. It is undisputed that it was the joint decision of
steven and Ulla that Sandra remain with Steven in July, 1992.