Quinn v Settel (Fla.App. 3 Dist 1996)683 So.2d 617
=================================================================
Aislinn Quinn, Appellant
v.
Joel John Settel, Appellee
Third District Court of Appeal of Florida, No 96-1582, 30 Oct 1996
NESBITT, Judge
<* page 618> A mother appeals a final judgment on parental
responsibility which establishes a plan of rotational custody. We
affirm the order under review. The following facts gleaned from
the final judgment and supported by the record establish the basis
for the trial judge’s decision.
Aislinn Quinn filed the instant action to determine parental
custody. She and Joel Settel stipulated to being the biological
parents of a daughter, born October 26, 1984. The parents were
both students in California when the child was born, Each parent
is now married. Quinn and her husband live in Florida; Settel, his
wife, and the children of that marriage, live in France. Over
time, a custodial arrangement evolved, was agreed upon, and was
utilized effectively, with the girl spending considerable
intervals with each parent. From its inception, the girl’s family
was never structured in the usual and common fashion. An extended
family spreading over various parts of the world was created for
her.
As the trial judge concluded, the parties fully shared the
responsibilities and joys of bringing up the girl and took turns
in being the custodial parent.
The judge specifically found:
The child not only has not been harmed by the
rotating custodial agreement, but, to the contrary,
the child has derived great benefits from the
rotating agreement.
Although the father for years encouraged the girl’s relationship
with her mother, in the summer of 1995, he refused to honor his
prior agreement to return the child to this country. The mother
went to the Hague Court and accomplished the girl’s return for
that summer, with the child to be returned to Paris, and a hearing
set for that September. The mother did not return to France with
the child as agreed, and that action was dismissed., The father
attempted to counter claim, however, but was not permitted to do
so, as the Court ruled that under the articles of the Hague
Convention, because the child was now located in the United
States, he would have to initiate proceedings in the United
States. Thereafter the father chose to submit personally to the
jurisdiction of the Florida court. He filed his answer to the
instant petition, and counter-petitioned to establish paternity
and have himself declared the appropriate primary residential
parent.
This sequence of events significantly strained the parties’
previous cooperative spirit. Although for years the mother
encouraged the girl’s relationship with her father, after the
Hague action, the mother interfered somewhat with the
father/daughter relationship and with the girl’s relationship with
her father’s family.
The trial judge found, however, that Quinn and Settel were
intelligent and exhibited a high degree of civility. She concluded
that they were law-abiding citizens who would continue to work for
the child’s best interests. She expressed her feeling that once
she provided a structure for the families that enabled them to
work together for the child’s well-being, the plan would be
followed.
The judge determined:
It is in the best interests of the minor child that
this court continue to enforce the intent of the
various previous agreements of the parties
themselves which established shared parental
responsibility and a shared custodial arrangement
with a rotating custody schedule;
She observed:
The court has not made this rotating custody
arrangement lightly. Such rotation may not be
altered unless there is a substantial change in
circumstances which has not been dealt with in this
final hearing. It must be an event which occurs in
the future which is not contemplated on this date.
The court’s intention is to give [the girl]
stability and prevent an additional international
custody battle in the future.
The judge went on to establish a schedule where the girl would
spend eighth grade with <* page 619> the father, ninth and tenth
grade with the mother, and eleventh and twelfth grade with the
father, all with visits and telephonic access encouraged.
The report of the psychologist studying the girl and the two
families confirms that the trial court’s decision was not an abuse
of discretion. The psychologist reported her belief that both
families loved the girl, and that there were no psychological or
clinical reasons to recommend one parent over the other. The child
herself, according to the psychologist, when asked if she had any
thoughts about her custody and visitation arrangements, reported
that she wanted “a few more years here with my mom to get to know
her, then two to three years with my dad, then I’ll go to college
somewhere away from both homes so there won’t be any more problems
about who I live with.”
As stated above, the mother appeals the rotational plan ultimately
ordered. The only proper concern in a custody case is the child’s
best interests. Addamson v Chavis (Fla. 1st DCA 1996) 672 So.2d
624; Bienvenu v Bienvenu (Fla. 3rd DCA 1980) 380 So.2d 1164.
Viewed as generally detrimental to that end, split custody
arrangements are strongly disfavored and not ordinarily sustained.
Skirko v Skirko (Fla. 3rd DCA 1996) 677 So.2d 885. That being
said, however, the law is clear that certain particular
circumstances will tend to ameliorate some of the perceived
undesirable effects of such arrangements. Bienvenu, 380 So.2d at
1165 (citing age and maturity of the child and division of periods
of custody which related to actual events in the child’s life,
such as between school and holiday periods, as factors which might
make a rotational custody plan workable.
Thus, as observed in Gerscovich v Gerscovich (Fla. 5th DCA 1981)
406 So.2d 1150, 1152:
Regardless of the number of adverse precedents it
cannot be said that a rule of law is involved in
awarding custody of . . . children in rotating
fashion. Rather the award is an exercise of
discretion by the trial court. We are therefore
bound to apply the test that if reasonable men could
differ as to the appropriateness of the trial
court’s ruling then we are not at liberty to disturb
it. Canakaris v Canakaris (Fla. 1980) 382 So.2d
1197. We may not ask whether it is the best result;
only whether it is reasonable.
In the instant case, the trial judge’s actions were entirely
reasonable under the circumstances. The court’s decision was in
accord with a plan previously implemented by the parties
themselves, it was in harmony with the views of the
court-appointed psychologist, and it corresponded with what the
child herself had expressed as an ideal solution. Thus, we affirm
the order under review.
We write additionally to address one worry raised by the mother’s
counsel. At oral argument he expressed grave concern that
following the trial judge’s decision, the court would lose
jurisdiction over the matter once the child was out of the country
for over six months.
A child custody proceeding properly begun in Florida remains under
Florida’s jurisdiction until Florida determines otherwise, unless
virtually all contacts with the state clearly have been lost.
Brown v Dehnert (Fla. 3d DCA 1996) 672 So.2d 114. Also, the
Florida court retains jurisdiction under the Uniform Child Custody
Jurisdiction Act (UCCJA). See Greenfield v Greenfield (Fla. 4th.
DCA) 599 So.2d 1029, review denied, (Fla. 1992) 613 So.2d 4. The
Federal Parental Kidnapping Prevention Act, 28 U.S.C. 1738A,
establishes another state will not modify a Florida court’s
custody order. WMH FN-01
Likewise the Hague Convention specifically protects custody
determinations in the international context. As stated in Journe v
Journe (D.Puerto Rico 1995) 911 F.Supp. 43, 46:
The purpose of the Convention is “to protect
children internationally from the harmful effects of
their wrongful removal or retention and to establish
procedure to ensure their prompt return to the State
of their habitual residence. See Currier v Currier
(D.N.H. 1994) 846 F.Supp. 916, 920. To this end,
the Convention sets <* page 620> forth a carefully
delineated analytical framework for the application
of its provisions. In accordance with these
procedures, courts within signatory countries are to
determine whether the children have been wrongfully
removed from their place of habitual residence, and
are not to overstep the scope of their authority by
delving into and attempting to resolve an underlying
custody dispute. Hague Convention, Art. 19; 42
U.S.C. 11601(b)(4). Both the United States and
France are signatories to the Convention. WMH FN-02
In 1988, Congress enacted the International Child Abduction
Remedies Act (ICARA) 42 U.S.C. 11601, to implement the Hague
Convention in the United States. Any person seeking the return of
a child under the Convention may commence a civil action by filing
a petition in a court where the child is located. 42 U.S.C.
11603(b). The petitioner bears the burden of showing by a
preponderance of the evidence that the removal or retention was
wrongful. The respondent must show by clear and convincing
evidence that one of certain limited exceptions apply. WMH FN-03
Most often claimed is that the child’s return would result in
grave danger of psychological harm. Id. 11603(e)(1)(A), (2)(A).
See Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060, 1063-64;
Feder v Evans-Feder (3rd Cir. 1985) 63 F.3d 217.
Again, the Hague Convention does not permit a foreign court to
determine the merits of the underlying custody claim. The foreign
court is responsible only for deciding whether the child should be
returned to his or her “home” state. WMH FN-04 See Julia A.
Todd, The Hague Convention on the Civil Aspects of International
Child Abduction: Are the Convention’s Goals Being Achieved?, 2
Ind. J. Global Legal Stud. 553 (1995). Whenever all the
requirements of the Hague Convention are met, a “left-behind”
parent may invoke the treaty to have this or her child returned.
See Susan L. Barone, International Parental Child Abduction: A
Global, Dilemma With Limited Relief — Can Something More Be
Done?, 95 N.Y. Int’l L.Rev. 103, 104 (1995).
Thus, the mechanisms are in place to ensure compliance with such
orders as the one at issue. Furthermore, the Convention
anticipates that all necessary expenses incurred to secure a
child’s return will be shifted to the abductor, both to restore
the applicant to the financial position he or she would have been
in had there been no removal or retention, WMH FN-05 as well as
to deter such conduct from happening in the first place. See
Currier v Currier (D.N.H. 1994) No. 94-99, 1994 WL 392606; 42
U.S.C. 11607(b)(3); see also Levesque v Levesque (D.Kan 1993)
816 F.Supp. 662
Accordingly, in sum, as stated above, we find no abuse of
discretion in the court’s decision, and we affirm the order in its
entirety.
WMH Foot Notes:
——————–
1. It must be noted that this act, by its own language, only
applies between the States, Territories and Possessions of
the United States. See, e.g., Dare v Secretary of Air Force
(D.C.Del. 1985) 608 F.Supp. 1077 (Overseas military base is
not a “possession” of the U.S.)
2. Within limits this quote is accurate. It, improprerly I
assert, leads one to believe that a foreign nation cannot
vary an order made in the U.S. This is not so. If the
foreign court finds that the child’s habitual residence is
now within its jurisdiction then it would a) Deny the
petition to return (See, e.g., Harsacky v Harsacky (Ky.App.
1996) 930 S.W.2d 410: “It follows that a child cannot be
wrongfully removed or retained if the jurisdiction to which
the child is taken can be considered its habitual
residence.”) and b) vary the exisiting order based upon its
version of “best intrests.”
3. The “Clear and Convincing Evidence” rule only applies to
defense raised under Art. 13(b) and Art. 20 of The
Convention. See 42 U.S.C. 11603(e)(2)(A).
4. This really should read “Habitual Residence” since it
differs somewhat from “Home State”. See, e.g., In Re Bates,
No. CA 122.89, High Court of Justice, Family Div’n Ct. Royal
Court of Justice, United Kingdom (1989), cited in Friedrich
v. Friedrich (6th Cir. 1993) 983 F.2d 1396.
5. See also Application of Heyer (Fulton Co.Ct.1983) 119
Misc.2d 159 [463 N.Y.S.2d 159, 160-161] (Action is remedial
in nature.
=================================================================
Comment by William M. Hilton, CFLS:
Refer also to WMH FN-02
The tenor of this decision is that once an order is made in Forum
1 that only Forum 1 will have the power to vary (modify) the
order. While this is technically correct when all Forums are
subject to the UCCJA and/or 28 U.S.C. 1738A, it is flatly
incorrect when it comes to courts of foreign nations.
The generally observed rule for jurisdiction over children in
countries outside of the United States is by one form or another
of parens patriae:
Literally “parent of the county,” refers
traditionally to the role of state as sovereign and
guardian of persons under legal disability. Parens
patriae originates from the English common law where
the King had a royal prerogative to act as a
guardian to persons with legal disabilities such as
infants, idiots and lunatics. In the United States,
the parens patriae function belongs with the states.
This also can be called the “flee and plea” rule.
It is true that The Convention has to some extent limited this
exerise of parens patriae jurisdiction, but only so long as the
forum in question is not the “Habitual Residence” of the child.
If the forum in question is the “Habitual Residence” of the child
then it is presumptively the only forum that has the authority to
make orders concerning the child. See, e.g., the following cases:
Journe v Journe (D.Puerto Rico 1995) 911 F.Supp. 43, 46-47;
Wanninger v. Wanninger (D.Mass. 1994) 850 F.Supp. 78, 80; Currier
v Currier (Dist. N.H. 1994) 845 F.Supp. 916, 920; and Levesque v
Levesque (D. Kan 1993) 816 F.Supp. 662, 664.