USA – GA – MOORE – 1990

USA – GA – MOORE – 1990 (Return denied) (Habitual residence) MOORE v MOORE. The mother took the child to Switzerland for a visit with the intent of keeping the child there. The father brings the child back to the United States. Under the Hague Convention, the mother sought an emergency ex parte hearing with the court asking that custody be returned to her. The court finds that the habitual residence of the child was Georgia, USA. (Note, DCT: There is confusion as to how the child got back to the U.S. Did the mother return with the child or did the father bring the child back to the United States?)


Court: Superior Court of Dekalb County, State of Georgia, USA
Number: Civil Action No. 90-2603-1

Applicant: Andrea Anne Vorpe Moore


Respondent: Robert James Moore

Date: 20 Mar 1990


Petitioner, * CIVIL ACTION NO. 90-2603-1
v. *
Respondent. *

Petitioner has filed a writ of habeas corpus challenging the
respondent’s custody of the parties’ child. The court held an
expedited evidentiary hearing on the issue. The court has reviewed
the documentary evidence, the applicable legal authorities and
argument of the parties. After considering the matter, the court
denies relief to petitioner at this time.

Petitioner proceeds under the Convention on the Civil Aspects
of International Child Abduction done at the Hague on October 25,
1980 (Hague Convention) and the International Child Abduction
Remedies Act. 42 U.S.C. Sec. 11601 et seq. Petitioner sought an
emergency ex parte hearing with the court and requested custody be
immediately returned to her. After that hearing, the court made
arrangements for the child to be taken into the custody of the
local department of family and children services and be placed in
a foster home until the court could hold an expedited hearing on
the issue. Petitioner alleged she feared the respondent would
flee if he had notice of the hearing. However, before the sheriff
obtained custody of the child, the parties reached a temporary
consent order under which the respondent would maintain custody
while allowing petitioner to have daily visitation with the child
at a local child care center.

Because petitioner has insisted on an expedited hearing, the
court denied respondent’s request for a continuance. The
respondent had approximately 2 1/2 weeks notice of the hearing
date, but contends he was unable to locate and retain an attorney
who was versed in international law. For the reasons set out
below, the court will retain jurisdiction over the custody issue
between these parties and it may be appropriate in the future to
reconsider petitioner’s request for relief on this issue.

The parties met in the United States and were married in the
United States on October 2, 1986. Petitioner is a citizen of
Switzerland and respondent is a citizen of the United States.
Except for occasional visits to Switzerland, the parties have
resided in the United States during their marriage prior to the
dispute in issue. The minor child of the parties was born in the
United States on April 13, 1988 and was undoubtedly a resident of
Georgia until petitioner mother took the child with her to visit
Switzerland at the end of August, 1989.

The court finds from the evidence that the mother told father
she only intended to visit Switzerland and in fact had purchased
return tickets. However, once the mother arrived in Switzerland
she advised the father she did not intend to return and suggested
he join her there to attempt a reconciliation. The mother advised
the father he must be physically present in Switzerland before he
could attempt to locate a job. She told him her father would
assist him in finding a job. He expressed reluctance because he
could not speak the language and had no means of support while
living in Switzerland. However, in an effort to seek
reconciliation and be with his child, the father did travel to
Switzerland. The father testified he never intended to live
permanently in Switzerland. The mother has produced documents
signed by the father which suggest otherwise. The father stated he
only signed the documents to authorize him to search for work and
remain in the country while he sought reconciliation of the
parties. Based on the evidence before the court at this time, the
court will find the father never intended a permanent residence in

Shortly after the father arrived in Switzerland, the mother
filed for divorce and obtained temporary custody of the child. The
father was not aware of the law, language or procedures in
Switzerland. He continued to stay with his wife’s parents. The
father contends he never knew or understood that the Swiss courts
had given custody of the child to his wife.

The court must determine whether or not the child was a
habitual resident of Switzerland at the time of the Swiss decree
which gave temporary custody to the mother. If the child was a
habitual resident of Switzerland, then this court must return the
child to the mother and relegate respondent to any rights he might
have in Switzerland. However, if the child was not a habitual
resident of Switzerland, then this court is not bound by the prior
Swiss court order. This court finds the child at the time of the
Swiss custody order was in fact habitually resident in Georgia.
The child was taken to Switzerland by the mother on the pretense
of visiting the mother’s parents. This court finds as a matter of
fact that the father never would have allowed the child to be
taken to Switzerland if he understood the mother was going to file
a divorce action in Switzerland and seek custody there. Further,
no matter what the parties’ intentions were in this case, the
court believes under all applicable law the Georgia courts have
jurisdiction over the child.

The court treated this matter on an expedited basis because
of the intense dispute between the parties and the strain, both
financial and emotional, being placed on the parties. The court
only expresses an opinion that the child should not be immediately
returned to Switzerland. The court expresses no opinion on what
the ultimate disposition of the case may be as to the child’s
custody situation in the event the parties are divorced. Because
this court has Jurisdiction over the divorce action presently
pending by the respondent against petitioner, the court will also
retain jurisdiction over the habeas corpus action to make any
further findings as the court deems appropriate.

For these reasons, the court declines to grant immediate
habeas corpus relief.

SO ORDERED this 20th day of March, 1990.

/s/ Robert J. Castellani

Copies to: Robert James Moore
George S. Stern
Susan Hurst
R. Scott Tobin



Applicant: Respondent

Susan A. Hurst Andrew Bips,
Attorney At Law Attorney At Law
Box 420202 90 Fairlie St. N.W., No. 850
Atlanta, Georgia 30342 Atlanta, GA 30303
(404) 256-0010
FAX (404) 851-9081
WMH COMMENTS: The Brief In Support of Petition (not shown) argued
that the test should be the domicile of the parties rather than
the actual residence. This seems contra to the various notes
taken at meetings implementing the Convention where the general
thrust was that actual residence was desired. The court found
that actual contact with the forum was the test. Compare 9
Uniform Laws Annotated 3(a)(2), “Significant Contacts”.