Application of Wojcik v Wojcik (E.D.Mich. 1997)959 F.Supp. 413
4 International Abduction [USA 1997]
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In re the Application of: No. 96-71392
Eric Wojcik, Petitioner, 11 Feb 1997
v
Karen Marie Wojcik, Respondent
________________________________/
MEMORANDUM AND ORDER DENYING PETITION
Cohn, District Judge
I. Introduction
001 <* page 414> This is a petition for the return of
minor children pursuant to the Convention on the <* page
415> Civil Aspects of International Child Abduction at the
Hague, October 25, 1980, T.I.A.S. No 11670 (the Convention),
and the International Child Abduction Remedies Act (the
Act), 42 U.S.C. 11601-11610. Petitioner Eric Wojcik (the
father) seeks the return of his two minor children,
Jessica-Cecille and Jennifer, to France. The children are
currently in the United States with their mother, respondent
Karen Marie Wojcik (the mother).
002 For the reasons which follow, the petition will be
denied.
II. Facts
003 The Court makes the following findings of fact. The
father is a French citizen. The mother is an American
citizen. They were married in France on February 15, 1986,
and made France their home. They had two children, both born
in France: Jessica-Cecille, born on July 10, 1988, and
Jennifer, born on March 24, 1991. Both children have dual
citizenship in France and the United States. Between 1988
and 1994, the family visited the United States three times.
During these visits, they stayed with the mother’s family in
Michigan.
004 On October 13, 1994, the mother took the children
with her to the United States for a vacation that was
supposed to last a couple weeks. The father knew and
approved of this vacation. On November 1, 1994, the mother
called the father from the United States and told him that
neither she nor the children would return to France. She
told the father they were staying with her brother in
Roseville, Michigan, and gave the father the telephone
number. The father had been to the brother’s house on one of
the family’s visits.
005 On November 23, 1994, the father petitioned for
divorce in France. The mother did not attend the hearing,
but was represented by French counsel. The French court
denied the mother’s request for an international rogatory
commission that would allow her to answer the petition in
the United States. The court issued a provisional ruling
that “parental authority … will be jointly shared by the
two parents,” and that the children “will have their usual
residence” at the father’s home in France. The mother filed
a complaint for divorce in Macomb County, Michigan, on June
30, 1995. The record does not reflect the current status of
the complaint.
006 On July 1, 1995, the father filed a request for the
return of his children with the French Central Authority.
FN1 On July 17, 1995, the French Ministry of Justice
telefaxed a letter to the Office of Children’s Issues at the
United States Department of State FN2, asking for help under
the Convention in returning the children to France. On July
18, the Office of Children’s Issues telefaxed a letter to
the French Central Authority that confirmed receipt of the
request and stated that the Office had sent a letter to “Ms.
Janet Hayes,” FN3 requesting that she agree to return the
children to France voluntarily.
007 On July 25, 1995, the mother’s counsel
contacted the Office of Children’s Issues and related the
mother’s refusal to return the children to France. On
January 30, 1996, the State Department forwarded the
father’s application to the National Center for Missing and
Exploited Children (NCMEC), a private, nonprofit corporation
that handles child abduction cases arising under the
Convention. NCMEC arranged for legal aid in the United
States for the father to seek the return of his children.
008 On March 27, 1996, the father filed the present
petition for the return of his children pursuant to the Act,
42 U.S.C. 11603(b). The Count held an evidentiary hearing
on May 9, 1996, at which the mother was the sole witness.
The mother testified that the father, from the beginning of
their marriage, emotionally and occasionally physically
abused her. The mother also testified that the father
emotionally abused their daugh- <* page 416> ters often and
twice physically abused their eldest daughter. FN4 As to
the children’s life in America, the mother testified as
follows: she and the children lived in Roseville with her
brother for approximately eight months before she rented her
own house, where they lived at the time of the hearing; both
children have attended the same school or daycare since
their arrival and have friends and relatives in the area
with whom they are close; the oldest, Jessica-Cecille, is
not involved in community or church activities, but the
whole family attends the same church every Sunday; and both
have forgotten
French and adopted English as their spoken language.
Finally, the mother testified that she has worked at the
same bank for more than a year.
III. The Treaty and Statute
A.
009 The signatory nations adopted the Convention in order
“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. The United States ratified the Convention on April
29, 1988. France is also a signatory nation.
010 The Convention applies to “children wrongfully
removed to or retained in any contracting State.” Art. 1.a.
The convention defines a retention as “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 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.
Art. 3.
A parent whose “child has been removed or
retained in breach of custody rights may apply
either to the Central Authority of the child’s
habitual residence or to the Central Authority
of any other Contracting State for assistance
in securing the return of the child.” Art. 8.
When a parent so applies, “[t]he Central
Authority of the State where the child is
shall tale or cause to be taken all
appropriate measures in order to obtain the
voluntary return of the child.” Art. 10.
011 The Convention establishes guidelines for considering
an application for the return of children:
[w]here a child has been wrongfully removed or
retained in terms of Article 3 and, at the
date of the commencement of the proceedings
before the judicial or administrative
authority of the Contracting State where the
child is, a period of less than one year has
elapsed from the date of the wrongful removal
or retention, the authority concerned shall
order the return of the child forthwith.
The judicial or administrative authority, even
where the proceedings have been commenced
after the expiration of the period of one year
… shall also order the return of the child,
unless it is demonstrated that the child is
now settled in its new environment.
012 Art. 12. The Convention admonishes that the judicial
and administrative authorities are “not [to] decide on the
merits of rights of custody,” Art. 16, and “[a] decision
under this Convention concerning the return of the child
shall not be taken to be a determination on the merits of
any custody issue,” Art. 19.
013 The Convention also provides that a child need not be
returned if the petitioning parent was not exercising
custody rights when the child was retained, the parent
consented to or acquiesced in the retention, “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,” or “the child objects to being
returned and has attained an age and degree of maturity at
which it is appropriate to take account of its views.” Art.
13. Finally, “[t]he return of the child under the provisions
of Article 12 may be refused if t}us would not be permitted
by the fundamental <* page 417> principles of the requested
State relating to the protection of human rights and
fundamental freedoms.” Art. 20.
B.
014 The International Child Abduction Remedies Act
implements the Convention in the United States. 42 U.S.C.
11601-11610. In passing the Act, Congress found that under
the Convention, “[c]hildren who are wrongfully removed or
retained within the meaning of the convention are to be
promptly returned unless one of the narrow exceptions set
forth in <* page 418> the Convention applies.”
11601(a)(4). The Act also reemphasizes that “[t]he
Convention and this chapter empower courts in the United
States to determine only rights under the Convention and not
the merits of any underlying child custody claims.”
11601(b)(4).
015 To enforce the Convention, Congress gave United
States district courts concurrent jurisdiction with state
courts over “actions arising under the Convention.”.
11603(a). A parent may initiate proceedings for the return
of children under the Convention “by commencing a civil
action,” which is accomplished “by filing a petition for the
relief sought in any court which has jurisdiction of such
action.” 11603(b). “The court in which an action is
brought under subsection (b) of this section shall decide
the case in accordance with the convention.” 11603(d).
016 The Act establishes specific burdens of proof for the
parent seeking the return of children (the petitioner) and
the parent opposing return (the respondent):
(
1) A petitioner … shall establish by a preponderance of
the evidence . . . that the child has been wrongfully
removed or retained within the meaning of the Convention….
(2) … [A] respondent who opposes the return of the child
has the burden of establishingÄ
(A) by clear and convincing evidence that one of the
exceptions set forth in article 13b or 20 of the convention
applies; and
(B) by a preponderance of the evidence that any other
exception set forth in Article 12 or 13 of the Convention
applies.
11603(e) (emphases added).
.. . .
IV. The Father’s Burden
017 The father’s burden as the petitioner is to show by a
preponderance of the evidence that “the child has been
wrongfully removed or retained within the meaning of the
Convention.” 11603(e)(1)(A). A child has been wrongfully
removed or retained under the Convention if the removal or
retention is “in breach of rights of custody . . . under the
law of the State in which the child was habitually resident
. . . and . . . at the time of removal or retention those
rights were actually exercised.” Art. 3.a, b.
018 The father has met his burden of proving by a
preponderance of the evidence that his daughters were
wrongfully retained: (l) the children were habitual
residents of France at the time of removal; (2) the removal
was in breach of his custodial rights; and (3) he was
exercising these rights of custody at the time of removal.
First, the children were born in France, their father was
French, their parents were married in France, and the
children had been residing in France continuously until
their removal. This is sufficient to show habitual
residences See Friedrich v Friedrich 983 F.2d 1396, 1402
(6th Cir.1993) (Friedrich I ) (“Thomas was born in Germany
and resided exclusively in Germany until his mother removed
him to the United States . . . therefore, we hold that
Thomas was a habitual resident of Germany at the time of his
removal.”). Second, under the laws of France, which govern
pursuant to Art. 3.a, married parents enjoy a presumption of
joint custody. Article 287 of the French Civil Code. Third,
the father and the mother were living together with the
children immediately before removal and the father exercised
his parental rights before the children were wrongfully
retained in the United States.
V. The Mother’s Defenses
019 “Children who are wrongfully removed or retained
within the meaning of the Convention are to be promptly
returned unless one of the narrow exceptions set forth in
the Convention applies.” 42 U.S.C. 11601(a)(4). The
exceptions “are not a basis for avoiding return of a child
merely because an American court believes it can better or
more quickly resolve a dispute.” Friedrich v. Friedrich, 78
F.3d 1060, 1067 (6th Cir.1996) (after remand by Friedrich
I).
020 The mother argues that she satisfied her burdens of
proof in showing that at least one of the following four
exceptions applies. First, the mother argues she showed by a
preponderance of the evidence that: 1) more than a year
passed from the “date of the wrongful removal or retention”
to the commencement of the proceedings before the judicial
authority and the children are “now settled in [their] new
environment,” Art. 12; and 2) the children have “attained an
age and degree of maturity at which it is appropriate to
take account” of their views and they object to being
returned, Art. 13. Second, she says she showed by clear and
convincing evidence that: 1) there is a grave risk that the
children’s return will result in physical or psychological
harm for the children, Art. 13.b; and 2) the “fundamental
principles of the requested State relating to the protection
of human rights and fundamental freedoms” do not permit the
children’s return, Art. 20.
VI. The Article 12 Defense
A.
021 Article 12 of the Convention provides that a child
shall be returned “forthwith” if less than a year passed
between the wrongful retention and “the commencement of the
proceedings before the judicial or administrative authority
of the Contacting State where the child is.” If, however,
more than a year passed between retention and commencement
of the proceedings, and the mother can demonstrate by a
preponderance of the evidence “that the child[ren] [are] now
settled in [their] new environment,” the children need not
be returned.
022 The father argues that the “proceedings before the
judicial or administrative authority” commenced when he
filed his application with the United States Central
Authority. Since the father’s application to the United
States Central Authority occurred less than one year after
the wrongful retention of the children. The father argues
that proceedings were begun within one year of the wrongful
retention and the children should be returned “forthwith,”
Art. 12. The mother argues that Article 12 allows for
different adjudicative systems in different countries, but
that in the United Stated the end of the year is measured
only by the commencement of proceedings before a judicial
authority. According to the mother, since more than a year
passed between when the children were retained in the United
States and the commencement of these proceedings before the
Court, and since the children are now settled in their new
environment, the Court should not order their return to
France.
B.
023 The key question, therefore, is whether the father
“commence[d] .. . proceedings before the judicial or
administrative authority” when he contacted the Central
Authority of the United States within a year of the wrongful
retention, such that the “settled in [their] environment”
exception to automatic return of the children does not
apply.
1.
024 The Act provides that “the term ‘commencement of
proceedings’, as used in article 12 of the Convention,
means, with respect to the return of a child located in the
United States, the filing of a petition in accordance with
subsection (b) of this section.” 42 U.S.C. 11603(f)(3)
(emphases added). Subsection (b) of 11603 states:
[a]ny person seeking to initiate judicial
proceedings under the Convention for the
return of a child may do so by commencing a
civil action by filing a petition for the
relief sought in any court which has
jurisdiction of such action and which is
authorized to exercise its jurisdiction in the
place where the child is located at the time
the petition is filed.
(emphasis added). Under the Act, the father did not commence
judicial or administrative proceedings when he contacted the
United States Central Authority. Therefore, under the Act,
the father did not commence judicial or administrative
proceedings until more than a year after the children’s
wrongful retention and, if “it is demonstrated that the <*
page 419> child[ren] [are] now settled in [their] new
environment,” Art. 12, the Court may order that the children
remain in the United States. WMH FN1
025 However, the Act states that “[t]he provisions of
this chapter are in addition to and not in lieu of the
provisions of the Convention.” 42 U.S.C. 11601(b). The
Court must therefore look to the terms of the Convention to
see if they require a different interpretation.
2.
026 Article 12 provides that if the child was wrongfully
retained less than one year before “commencement of the
proceedings before the judicial or administrative authority
… the authority concerned shall order the return of the
child.” (emphasis added). Since it is the judicial or
administrative authority “concerned” that orders the child
returned, only an authority with the power to order a
child’s return can be a judicial or administrative authority
under Article 12. The Convention has a chapter devoted
solely to Central Authorities, Art. 6, 7, in which no
mention is made of the power to order a child’s return.
Article 6 provides that “Contracting State[s] shall
designate a Central Authority to discharge the duties which
are imposed’ by the Convention upon such authorities.”
Article 7 instructs that “Central Authorities shall
cooperate with each other and promote cooperation amongst
the competent authorities in their respective States.”
Article 7 then presents a list of measures for which Central
Authorities are responsible. The list includes “secur[ing]
the voluntary return of the child or . . . bring[ing] about
an amicable resolution of the issues,” Art. 7.c. (emphasis
added), FN5 but does not include ordering the return of a
child. Nor is the Central Authority given the power to order
a child’s return elsewhere in the Convention.
027 Other provisions of the Convention also show that the
Central Authority is not a judicial or administrative
authority as used in Article 12. Under Article 7.f, the
Central Authority may “initiate or facilitate the
institution of judicial or administrative proceedings.”
Contacting the Central Authority cannot suffice to commence
administrative proceedings if one job of the Central
Authority is to initiate the institution of administrative
proceedings. Article 11 allows the Central Authority to
request reasons for delay if the judicial or administrative
authority has not reached a decision within six weeks of
“the date of commencement of the proceedings.” If contacting
the Central Authority constituted commencement of the
proceedings, the Central Authority itself would be the
delaying party. Article 30 states that “[a]ny application
submitted to the Central Authorities or directly to the
judicial or administrative authorities . . . shall be
admissible in the courts or administrative authorities of
the Contracting States.” (emphasis added). Article 30
therefore distinguishes between submissions to a Central
Authority and submissions to a judicial or administrative
authority.
3.
028 The father cites to language in the Explanatory
Report, Elisa Perez-Vera, Hague Conference on Private
International Law, Acres et documents de la Quatorzieme Sew
sign, v. III, 1980 (the Report) FN6, stating that Article 12
“has retained the date on which proceedings were commenced,
instead of the date of decree, so that potential delays in
acting on the part of the competent authorize ties will not
harm the interests of parties protected by the Convention.”
108. The father argues this language shows that the
framers of the Convention anticipated that the Article 12
clock would stop upon the filing of an application with the
Central Authority because, otherwise, delay by the
authorities might harm the petitioner’s interests. However,
the language does no more than justify the choice of a date
at the beginning of the process, rather than at the end, so
that delays once the proceedings commenced would not
adversely affect the par- <* page 420> ties. WMH FN2 The
language does not define when the relevant proceeding
commences.
029 The drafters of the Convention rejected a proposal to
define “judicial or administrative authorities.” The Report
states, however that “it is clear that these are the
authorities who have the power, according to the internal
law of each Contracting State, to determine questions
concerning a child’s custody or protection.” Report, 1186.
As discussed above, under the internal law of the United
States, be., the Act, the courts and not the Central
Authority have the power to determine questions concerning a
child’s custody.
030 The Report also states that “[w]hen it is necessary,
in ‘order to obtain the child’s return, for the judicial or
administrative authorities of the State in which it is
located to intervene, the Central Authority must itself
initiate proceedings (if that can be done under its internal
law) or facilitate the institution of proceedings.” Report,
95; see also, Art. 7.f. Finally, Report 103 states that
the Central Authority must pursue a child’s voluntary return
even after commencement of proceedings before a judicial or
administrative authority. Thus, the Report acknowledges
that contacting the Central Authority does not commence
judicial or administrative proceedings.
031 The father cites to Hemard v. Hemard, No.
7-94CV-110-X (N.D. Tex. filed Feb. 15, 1995) (Findings of
Fact and Conclusions of Law), an unreported case in which
the District Court for the Northern District of Texas
ordered the return of a child to France. The child’s mother
took the child from France to the United States after the
father began divorce proceedings against her. The mother hid
the child, but the father found out after nine months that
the mother and child had entered the United States. The
father filed an application for the return of his child with
the United States Central Authority approximately ten months
after the removal. The District Court found that “[a] period
of less than one year elapsed from the date of He wrongful
removal and/or retention until the date of the commencement
of proceedings before the administrative authority in the
United States.” II.5. The District Court does not identify
when the civil suit was fled, but it was decided sixteen
months after the removal.
032 The father argues that the Hemard Court treated the
filing of the application with the Central Authority as
commencement of proceedings before the administrative
authority. This Court does not agree. It is not clear when
the civil action in Hemard was filed, so the Court cannot
say with certainty that the civil action was filed more than
a year after the wrongful removal. The District Court’s
legal conclusions are unsupported and run contrary to the
provisions of the Act and the Convention cited above. And
finally, the District Court found that “[t]he time for
commencing proceedings before the judicial authority was
tolled pending the location of the child,” II.6, and
therefore even if the civil action was filed more than a
year after the removal, the clock may have run less than a
year. For these reasons, the Court does not find Hemard
persuasive for the proposition that an application with the
Central Authority commences an administrative proceeding
under Article 12. WMH FN3
4.
033 In the United States, under both the Act and the
Convention, the relevant Article 12 period is the time
between the wrongful retention and the commencement of a
civil action under 42 U.S.C. 11603(b). The Convention used
the term “administrative authorities” not to include the
Central Authority, but because the drafters of the
Convention needed to allow for variety in the mechanisms of
how to order a child’s return. As stated in the Report,
“references to administrative authorities must be understood
as a simple reflection of the fact that, in certain Member
States, the task in question [the protection of minors] is
entrusted to such authorities while in the majority of legal
systems jurisdiction belongs to the judicial authorities.”
44.
C.
1.
034 Having thus interpreted Article 12, the Court must
now apply it to the facts at hand. There is no reason in
this case, as there might be in others, to refuse to apply
<* page 421> Article 12 for equitable reasons. The mother
did not hide the children; in fact, she called the father
the first day of the wrongful retention and told him where
they were. Cf. Hemard, 1.15. Still, eight months passed
between the wrongful retention of the children in November
of 1994 and the father’s contacting the French Central
Authority in July of 1995. The record does not reflect any
action taken by the father during that time, aside from
filing for divorce, to have his children returned to France.
Less than one month after the French Central Authority was
contacted, the mother had been asked to return the children
and had refused. Therefore, the Court will order the return
of the children unless the mother has shown by a
preponderance of the evidence, 42 U.S.C. 11603(e)(2)(B),
that “the child[ren are] now settled in [their] new
environment.” Art. 12.
2.
035 The mother has established by a preponderance of the
evidence that, as of the hearing: the children had been in
the United States for eighteen months; the mother and the
children had initially lived with the mother’s brother for
eight months until they moved into a rented house of their
own, where they still lived; both children had been
attending school or day care consistently; both had friends
and relatives in the area; the family attended church
regularly; and the mother had stable employment with the
same employer for more than a year. While not agreeing with
all of the mother’s testimony, the father provided no
evidence to call it into question. And aside from the
father’s family Ä a family that the mother testified was
indifferent to the children at best Ä the father has shown
no evidence that the children have maintained any ties to
France. WMH FN4
3.
036 The mother Has shown by a preponderance of the
evidence that the children, eight and five years old at the
time of the hearing, were settled in their new environment
as of the time of the hearing. Cf. David S. v Zamira S., 151
Misc.2d 630, 574 N.Y.S.2d 429, 433 (N.Y.Fam.Ct.1991)
(finding a three-year-old and a one-year-old were not
settled in their new environment because they were too young
to forge strong friendships, and they were “not yet involved
in school, extra-curricular, community, religious or social
activities which children of an older age would be”). The
Court therefore will deny the petition.7 The Court’s
decision is not a decision on who should have custody of the
children, or where the children should ultimately live, or
even that the children are settled in the United States for
the purposes of determining custody. The Court is merely
holding that the custody decision should be made in the
United States. WMH FN5
VII. The Motion to Strike
037 After the evidentiary hearing, the Court asked the
parties to file supplemental papers. In one of her briefs,
the mother refers to certain statements allegedly made by
the father during compromise negotiations. The father has
filed a motion to strike these references. The alleged
statements are not relevant to any issue discussed above and
the Court did not consider them. Therefore the motion is
moot and will be denied.
VIII. Conclusion
038 For the reasons stated above, the father’s petition
for the return of Jessica-Cecille and Jennifer to France
under the Convention and the Act is DENIED. The father’s
Motion to Strike Evidence of Conduct and Statements is
DENIED.
SO ORDERED.
Footnotes by Wm. M. Hilton , CFLS
FN1 The Court, in fact, does not have the authority under
either The Convention or ICARA to “. . . order that
the children remain in the United States.” The only
authority the court has is to grant or deny the
request of the Petitioner to order that the children
be returned to their habitual residence. This is
made clear by Arts. 18 and 19 and 42 USC 11603(h):
The Remedies under The Convention are not exclusive.
See also: The Non-Exclusivity of The Convention on
the Civil Aspects of International Child Abduction,
published in American Journal of Family Law, Vol. 9,
No. 2, Summer 1995. 9 Am.J.Fam.L. 69 (1995).
FN2 As to judicial delay, see: The Effect of Judicial
Delay in International Child Abduction Convention
Proceedings Published in American Journal of Family
Law, Vol. 9, No. 3, Fall 1995. 9 Am.J.Fam.L. 155
(1995)
FN3 Hemard actually seems to hold that if a child is
concealed and if one cannot with certainty determine
which court would have jurisdiction over the child,
then one may show due diligence by making an
immediate application to the appropriate Central
Authority which would be considered in a tolling
argument.
FN4 The recitation of contacts to show that the child is
” . . . now settled in its new environment” appear to
be those that would be considered in a “best
interest” hearing. This is particularly true in this
case when the court weighs the factors to be found in
the habitual residence and those of the requested
state. One questions whether or not such a balancing
test should be made since Art. 12 only concerns
itself with the “. . . new environment.” The test
should be, one would think, are there sufficient
contacts to establish the “settled” criteria of Art.
12, not that the new environment is “better” than the
old.
FN5 See the comments at WMH FN1.
——————–
1. “A Contracting State shall designate a Central
Authority to discharge the duties which are imposed by
the convention upon such authorities.” The Convention,
Art. 6.
2. By Executive Order No. 12648, Aug. 11, 1988, the
Department of State was designated the Central
Authority of the United States.
3. In spite of the misaddress, the mother received the
letter.
4. The mother asked that experts be allowed to testify as
to the children’s psychological health, but the court
denied this request, finding that the testimony would
not be helpful to a determination of the issues before
it. This ruling was not challenged.
5. Article 10, in the chapter entitled “Return of
Children,” also only gives the Central Authority the
power to “Take or cause to be taken all appropriate
measures in order to obtain the voluntary return of the
child.” (emphasis added).
6. Perez-Vera was the official reporter of the session at
which the Convention was adopted, but the Report is not
official.
7. Denial of the petition improper under Article 12, so
the Court will not examine the other defenses asserted
by the mother.