USA – JOHNSON – 1996

Johnson and Johnson (USA 1996)United States Note No. 64 of 30 Jun 1996
8 International Abduction [USA 1996]
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No. 064

001 The Embassy of the United States of America presents
its compliments and refers to the Regeringsratten Supreme
Administrative Court decision of 9 May 1996 in Case No.
7505-1995. In this decision, the Regeringsratten denied the
petition of Mr. Thomas Johnson, a United States citizen,
under the Hague Convention on the Civil Aspects of
International Child Abduction (“Hague Convention”) for the
return of his daughter, Amanda Kristina Johnson, to the
United States. The United States finds this decision
inconsistent with the plain language of the Hague Convention
as well as the overall object and purpose of the convention
which are, as stated in Article 1, to “secure the prompt
return of children wrongfully . .. retained in a Contracting
State” and to “ensure that the rights of custody and access
under the law of one Contracting State are effectively
respected” in other Contracting States. More specifically,
the Regeringsratten decision disregards Sweden’s obligations
under Articles 1, 3 and 16 of the Hague Convention.

002 In 1986, Mr. Johnson married a Swedish citizen, Ms.
Anne Franzen. Amanda Kristina Johnson was born in
Switzerland in 1987 to Mr. Johnson and Ms. Franzen. Amanda
Johnson lived with her parents in Switzerland until 1990.
From 1990 until 1993, Amanda Johnson lived in the United
States, alternatively with her father in Virginia and with
her mother in New York. In February 1992, Mr. Johnson and
Ms. Franzen were divorced, and voluntarily entered into a
consensual custody agreement, executed by a Virginia state
court, to share joint legal and physical custody with
primary custody shifting between the father and mother
approximately every two years. Under the 1992 agreement,
each parent was entitled to liberal visitation with Amanda
during the time that the other parent enjoyed physical
custody. In February 1992, Amanda was clearly “habitually
resident” in the United States within the meaning of Article
4 of the Hague Convention. In accordance with the 1992
custody agreement, in June 1993, Amanda left the United
States to live in Sweden with her mother for two academic
years, or until August 1995, at which time her father was to
receive primary physical custody.

003 Consistent with the fact that Amanda was habitually
resident in the United States at the time of the agreement,
the February 1992 custody order was modified and finalized
in December 1993 to include a voluntary, consensual
agreement by both Mr. Johnson and Ms. Franzen that the state
of Virginia would remain the place of Amada’s habitual
residence and that the Virginia court would maintain
continuing and exclusive jurisdiction to resolve all future
custody issues. Specifically, the December 1993 custody
order stated that “it is the intent of the parties that the
Commonwealth of Virginia shall be the only forum for the
adjudication of custody or visitation matters involving the
child Amanda Kristina Johnson.

004 Notwithstanding the existence of the December 1993
custody order, including the voluntary agreement regarding
the Virginia court’s exclusive jurisdiction over custody
matters, in January 1995, Ms. Franzen filed a petition in
the Solna district court of Sweden seeking to establish sole
custody of the child. Furthermore, in August 1995, Ms.
Franzen refused to return Amanda to her father as agreed to
by Ms. Franzen and duly memorialized in the December 1993
custody order. Ms. Franzen’s refusal to return Amanda
Johnson to her father prompted Mr. Johnson to file a
petition with the Swedish Central Authority for the return
of Amanda under the Hague Convention.

005 As noted above, the Hague Convention establishes a
mechanism to ensure “the prompt return of children
wrongfully . . . retained in a Contracting State.” A court
adjudicating a Hague Convention petition must order the
return of a child to the country of the child’s habitual
residence unless the court finds that a specific Article
13(b) exception to the return duty applies. The 9 May 1996
Regeringsratten decision contravenes the Hague Convention.
Without invoking an Article 13(b) exception, the
Regeringsratten declined to return Amanda Johnson to the
United States, where she had been habitually resident, thus
preventing her father from exercising physical custody
during the remainder of the 1995-1996 academic year and the
following year. Notwithstanding the fact that Amanda had
been habitually resident in the United States for several
years at the time her parents agreed that she would live in
the United States from August 1995 until August 1997, the
existence of the December 1993 Virginia custody order, and
earlier decisions by both the Lanaratten (administrative
trial court) and the Kammardtten (administrative appeals
court) ordering Amanda’s return to the United States under
the Hague ConvenTion, the Regeringsratten surprisingly found
that Sweden and not the United States was Amanda’s place of
habitual residence.

006 Focusing on the Swedish law of “hemvist”, the
Regeringsratten based its decision on the grounds that
Amanda had been living in Sweden for a little over two
years, that she had adapted to life in Sweden, and that the
1993 Virginia custody order accorded her mother a greater
number of years of primary custody than her father. Such
reasoning turns the Convention on its head by rewarding the
very type of conduct that it is designed to deter. This
decision permits a parent wrongfully to retain a child for
the purpose of re-opening a custody proceeding in a more
sympathetic jurisdiction, whereas the Convention requires
parents to resolve custody disputes in the child’s place of
habitual residence or the country of original jurisdiction.

007 The Regeringsratten decision represents a serious
departure from Sweden’s obligations under Articles 1, 3 and
16 of the Hague Convention. Specifically, Article 1 requires
“rights of custody and access under the law of one
Contracting State to be effectively respected” in other
Contracting States. The Regeringsratten decision frustrates
the rights of custody enjoyed by Mr. Johnson prior to
Amanda’s wrongful retention in Sweden. These custody rights
were mutually agreed upon by both Ms. Franzen and Mr.
Johnson and established under the law of the United States
by virtue of the December 1993 State of Virginia custody
order. Article 3 of the Convention states that the retention
of a child is wrongful where “it is in breach of rights of
custody attributed to a person … either jointly or alone .
. . under the law of the State in which the child was
habitually resident immediately before the retention.”
Article 3 further provides that rights of custody may arise
“by reason of an agreement having legal effect.” It is
indisputable that the December 1993 Virginia court order
granted Mr. Johnson joint physical and legal custody over
Amanda Johnson, and that both Ms. Franzen and Mr. Johnson
entered “an agreement having legal effect,” establishing the
State of Virginia as Amanda’s place of habitual residence.
In this regard the Regeringsratten also observed that Amanda
was living in Sweden “against her father’s will.” Ms.
Franzen’s retention of Amanda Johnson after August 1995 was
and continues to be clearly wrongful within the meaning of
Article 3.

008 Additionally, Article 16 of the Hague Convention
prohibits the courts of the State in which a child has been
wrongfully retained to decide on the merits of custody. By
declining to order the return of Amanda to the United
States, the Regeringsratten has effectively transferred
jurisdiction over the merits of custody from the Virginia
state court to the courts of Sweden, where Amanda has been
wrongfully retained. As noted in the travaux proparatoires,
Article 16 seeks to prevent “a decision on the merits of
custody being taken in the State of refuge.” Convention and
Recommendation adopted by the Fourteenth Session and
Explanatory Report by Elisa Perez-Vera, April 1981.
(Hereinafter Perez-Vera Report)

009 The decision of the Regeringsratten not only derogates
from Sweden’s obligations under Articles 1, 3 and 16 of the
Hague Convention, but also threatens the greater objectives
of the Convention, which are to deter parental kidnapping by
eliminating the advantages that may be enjoyed by the
abductor in the country to which the child has been
wrongfully retained, to prevent a parent who has wrongfully
retained a child from unilaterally establishing jurisdiction
in his/her country of nationality with a view toward
obtaining custody, and, most importantly, to protect
children by ensuring that they enjoy close contact with both
parents charged with their upbringing. Furthermore, the
Hague Convention also seeks to protect the rights of joint
custody. In this regard, the travaux proparatoires are
unambiguous: “. . . from the Convention’s standpoint, the
removal of a child by one of the joint holders without the
consent of the other, is . . . wrongful, . . . and this
wrongfuLness . . . derives from the fact that such action
has disregarded the rights of the other parent . . . and has
interfered with their normal exercise . . . (T)he whole
tenor of article 3 leaves no room for doubt that the
Convention seeks to protect joint custody. .” Perez-Vera
Report at 35, 40.

010 For the reasons stated above, the United States
considers Sweden to be in violation of its obligations under
the Hague Convention. The decision of the Regeringsratten
will not only discourage the voluntary settlement of child
custody disputes between citizens of the United States and
Sweden, but it will also tend to discourage voluntary
settlement between parents of all Hague Convention
Contracting States. As a result or this decision, children
whose parents are of different nationalities are less likely
to enjoy regular contact with both parents, to develop
strong ties with both parents, or to be protected from the
harmful effects of self-help measures undertaken by parents
to gain an upper hand in resolving child Custody disputes.
In other words, the decision can be expected to have an
immediate, negative effect on transnational custody disputes
among nationals of Convention States — a result that is
manifestly and significantly contrary to the Hague
Convention and to the best interests of the affected
children.

011 The United States intends, therefore, to recommend
that the agenda of the 1997 Special Commission of the
Permanent Hague Conference include a discussion of habitual
residence and joint custody under the Hague Convention for
the purpose of reaching an agreement among Contracting
States not to support Sweden’s interpretation of these
terms. In the meantime, the United States Strongly urges the
Government of Sweden to amend the 1989 Enforcement Law,
Sweden’s implementing legislation for the Hague Convention,
to remedy the inconsistency between Sweden’s hemvist law and
its obligations under The Hague Convention, and to take all
other necessary steps to correct the Regeringsratten
decision of 9 May 1996.

012 The Embassy of the United States of America avails
itself of this opportunity to renew to the Ministry of
Foreign Affairs the assurances of its highest consideration.

Embassy of the United States of America, Stockholm, June 20,
1996.