Harsacky v Harsacky (Ky.App. 1996)930 S.W.2d 410
=================================================================
Harsacky
v
Harsacky
No 96-CA-0068-MR, Court of Appeals of Kentucky, 11 Oct 1996
OPINION
KNOPF, Judge:
<* page 411> This case involves an interpretation of the
international law regarding child custody across national borders.
Having fully considered the briefs and oral arguments of counsel,
the authorities cited therein, and the record before the trial
court, we find no error and are unable to improve upon the well
researched and well written opinion by the trial court. Therefore,
we adopt Judge Bartlett’s opinion as our own:
“This matter is before the Court on the Petitioner’s Motion to
return the children of the parties to Finland pursuant to the
terms of the ‘Hague Convention on the Civil Aspects of Child
Abduction’. That Convention has been signed by the United States,
and Congress has adopted procedures for its implementation by
enactment of the ‘International Child Abduction Remedies Act’. [42
U.S.C 11601, et seq.]
“Hearings have been held before the Court at which the parties
testified and offered the testimony of others, including that of
expert witnesses. The Court also received reports from
court-appointed psychologists concerning the current condition and
treatment of the children. In addition, numerous exhibits were
admitted into the record.
“Based on the evidence presented and a review of applicable legal
authorities, and having considered the Briefs submitted by the
parties, the Court is of the opanon that the Petitioner’s Motion
should be overruled and that this Court should retain jurisdiction
to determine issues of custody of the children of the parties.
FACTS
“The Petitioner, Tuulikki Harsacky, a native of Finland, and the
Respondent, Frank Harsacky, a native-born citizen of the United
States, were married in California in October, 1989. Mr. Harsacky
was in the process of separating from the U.S. Navy. Mrs. Harsacky
was trained as a nurse in Finland, but had been living and working
in the United States for about ten years. Both Harsacky children,
Alexandra (DOB: 11/23/90) and Katherine (DOB: 12/27/91] were born
in California.
“In April of 1992, the parties moved their family to Crestview
Hills, Kentucky. Mr. Harsacky testified that he had hoped to find
work in this area. However, he claims that Mrs. Harsacky soon
became unhappy and wanted the family to move to Finland. In any
event, they did move to Finland in June of 1992 and remained there
until April of 1996.
“While in Finland, the Harsackys purchased a home which was placed
in Mrs. <* page 412> Harsacky’s name due to Finnish law. It
appears that this home was purchased with the proceeds from the
sale of Mr. Harsacky’s house in California. It is noteworthy that
Mr. Harsacky was not employed during the time that they Ifved in
Finland. Apparently, the family lived off of their assets and
government social benefits.
“Sometime in late 1994, the parties discussed a return to the
United States. They have offered contradictory testimony as to
whether this was to be a permanent move, a vacation or a stay of
indefinite duration. There was testimony that Mr. Harsacky
considered re-enlisting in the Navy. Likewise, they spoke with a
friend in South Texas about job opportunities. It is more than
coincidental that Mrs. Harsacky had lived in the South Texas area
when she first came to this country. Finally, there is no dispute
that the parties wrote for, and received, information from a
Chamber of Commerce in Victoria, Texas and contacted a realtor for
assistance in locating a place to live in South Texas.
“Prior to leaving Finland for the United States, the Harsackys
leased their house and sold many items of personal property,
including their cars, boat, furniture, appliances and tools.
Moreover, when they traveled to this country in the Spring of
1995, they shipped, at considerable expense, items such as winter
clothing, Christmas decorations, books, tools, car parts and rugs.
In view of the type of property which they sold in Finland and
shipped to this country, the Court is persuaded that the parties
intended to relocate to the United States on an indefinite basis,
if not permanently.
“The Harsackys arrived in Houston, Texas on April 20, 1995. They
immediately contacted realtors about leasing a house or
condominium. In the short time that they were in Texas, the
parties rented several apartments or condominiums in different
locales. Not long after their arrival, Mr. Harsacky purchased two
automobiles, a Mercedes and a Chevrolet Suburban. In addition, Mr.
Harsacky had resumes prepared and went on job interviews. Indeed,
he claims to have been offered a position with a company in
Laredo. Clearly, the parties’ conduct in Texas is not consistent
with a vacation.
“Although Mrs. Harsacky denies any intention to live permanently
in the United States, she did acknowledge that they may have
stayed here for as long as a year if her husband was able to find
employment. This statement contradicts her allegation that they
were on a vacation in this country.
“The Court finds that the parties intended to live in this country
on an indefinite basis and that they brought their childLeh here
for that purpose. This finding is consistent with their conduct
and with the fact that Mr. Harsacky was seeking employment which
he was unable to find in Finland.
“On May 23, 1995, the lkarsackyd were living on South Padre
Island, Texas. On that date, a violent domestic dispute erupted
which resulted in Mrs. Harsacky’s arrest. The next morning, Mr.
Harsacky took the children and left for Northern Kentucky where
his sister resides. They arrived in Kenton County on May 27, 1995.
On May 30, Mr. Harsacky filed a domestic violence petition in the
Kenton District Court and was given immediate custody of his
daughters. On the same day, Mrs. Harsacky filed a Petition for
Custody in Cameron County, Texas District Court. In that Petition,
she alleged residency in Texas. On June 13, Mrs. Harsacky obtained
an Order from a Finnish Court granting her custody of her
children. Obviously, neither party appeared before the Court in
Finland.
“On July 13, Mrs.. Harsacky filed a Verified Petition in this
Court seeking custody. By Order dated July 14, 1995, this Court
found that it had jurisdiction and awarded temporary custody to
Mr. Harsacky. On August 24, Mrs. Harsacky filed her Motion to have
this Court return the children to Finland to allow the Courts of
that country to determine custody.
CONCLUSIONS OF LAW
“The Petitiorner has failed to.carry her burden of proof that the
children have been wrongfully abducted or retained in violation of
the Hague Convention or the International Abduction Remedies Act.
.
<* page 413> “The purpose of the Hague Convention on the Civil
Aspects of International Child Abduction is to deter a parent from
abducting or wrongfully retaining a child from its habitual
environment and removing the child to a jurisdiction in the hope
of obtaining a favorable custody decree. See, Explanatory Report
by Official Convention Reporter Elisa Pere Vera, pp. 428-429; See,
also, Friedrich v Fnedrich (6th Cir. 1993) 983 F.2d 1396, 1400.
The Convention aims to restore the status quo ante and to prevent
individuals from establishing legal and jurisdictional links which
are more or less artificial. See, Explanatory Report by Official
Convention Reporter Professor Elisa Perez-Vera, pp. 428-429; See,
also, Rydder u Rudder (8th Cir. 1995) 49 F.3d 369, 372.
“Both the C,onvention and the Interpational Child Abduction
Remedies Act, [42 U.S C. 11601], require an abduction or
wrongful retention. Under Art. 3 of the Convention, removal or
retention is considered wrongful where there is a breach of
custody rights under the law of the state in which the child was a
habitual resident immediately before the removal or retention.
Thus, at the center of many disputes over the applicability of the
Convention is a determination of the child’s habitual residence
prior to removal by a parent. 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.
“Neither the Convention nor the International Child Abduction
Remedies Act defines ‘habitual residence’. Indeed, it was intended
that this concept remain fluid and fact-based, without becoming
rigid. Brooke v. Willis (S.D.N.Y., 1995) 907 F.Supp. 67, 61;
Levesque v. Levesque (D.Kan. 1993) 816 F.Supp. 662, 666;
Friedrich, supra, at 1400-1401. The definition of habitual
residence must be determined by the facts and circumstances
presented in each particular case. Meredith v Meredith (D.Ariz.
1991) 769 F.Supp. 1432, 1434.
“In keeping with the principle that ‘habitual residence’ must be
judged on a case by case basis, it is not surprising that courts
have disagreed as to what factors should be controlling. For
instance, the relatively short length of the child’s presence has
not prohibited a jurisdiction from being the child’s habitual
residence. In Brooke v Willis, supra, a child was returned to
EngIand even though she had spent less that two months in that
country. The Court therein stated:
‘Place of habitual residence is determined more by
a state of mind than by any specific period of
time; technically, habitual residence can be
established after only one day as long as there is
some evidence that the child has become settled
into the location in question.’
[Id, 907 F.Supp. at 61.]
“Similarly, in Rydder u Rydder, supra, children were ordered to be
returned to Poland although they had lived in that country for
only six months while their father was working there on a
temporary assignment. Finally, in the oft-cited case from England,
In re Bates, [No. CA 122-89, High Court of Justice, Fam. Div’l Ct.
Royal Court of Justice, United Kingdom (1989)] the habitual
residence of the child was found to be New York, rather than
London, despite the fact that the child apparently lived in the
United States for only a couple of months. See, Feder v.
Evans-Feder (3rd Cir. l995) 63 F.3d 217, 222-23, citing, In re:
Bates.
“There is also some disagreement as to what extent the intentions
of the parents as to present or future residence should bear on
the determination of a child’s habitual residence under the
Convention. In Friedrich v. Friedrich, supra, the Court observed
that the focus must be on the child, not the parents, and that it
must examine past experience, not future intentions. [Id. at
1401.] However, in that case the child was returned to Germany
where he had lived since birth. The Court rejected the mother’s
claim that the child should be considered a resident of the United
States since she intended to bring him back to this country after
her discharge from the military. The Court placed little
significance on her intentions for the future residence of the
child, compared with the fact that he had resided in Germany since
birth.
<* page 414> “Other recent decisions have given more weight to
the present intent of the parents, especially with regard to very
young children. In Levesque v Levesque, supra, the Court, again
citing In Re Bates, noted that when the Respondent returned to
Germany with her child it was her intent to remain indefinitely.
The Petitioner had agreed that she could take their child to
Germany but argued that he believed she would return to this
country with her. The Court ruled that the mutual agreement that
the wife could take their daughter to Germany for an unspecified
period of time constituted a “settled purpose” sufficient to cause
Germany to be the child’s habitual residence. Levesque, 816
F.Supp. at 666-667.
“The term ‘settled purpose’ has been used in the Bates decision to
describe the state of mind of the parents which would support a
finding of habitual residence. In Bates, the Court defined this
concept 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 sewed purpose.
That is 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 wel! be many,others. All that
is necessary is that the purpose of living where
one does have a sufficient degree of continuity to
be properly described as settled’. See, Levesque v
Levesque, supra, at 666, citing In Re Bates, at 10.
Again, in Brooke v Willis, supra, the Court commented that a
child’s habitual residence can be established after as little as
one day if the child has become ‘settled’ into the location. [Id
at 60.]
“In Feder v. Evans-Feder, supra, the Court noted the agreement of
the parents to move to Australia, even though the wife did not
intend to remain if the marriage failed. The Court found a sewed
purpose to live in Australia where the husband had moved to find
work. [Id. 63 F.3d at 218.] The Court further stated that a
determination of habitual residence required an analysis of the
child’s circumstances and the parents’ present, shared intentions
regarding their child’s presence there. [Id., at 224.]
“Other Courts have recognized the importance of considering the
parents’ present intent concerning the child’s residence. See,
Cohen u Cohen (N.Y.Supp. 1993) WL 364578; In re: Ponath (D.Utah
1993) 829 F.Supp. 363. In Ponath the Court said:
‘Although it is the habitual residence of the child
that must be determined, the desires and actions of
the parents cannot be ignored by the court in
making that determination when the child was at the
time of removal or retention an infant. The concept
of habitual residence must, in the court’s opinion,
entail some element of voluntariness and purposeful
design.’
[Id at 367.]
Certainly, when considering a parent’s complaint that a child has
been abducted and wrongfully removed to a jurisdiction, the Court
must ask whether the parent intended or agreed that the
jurisdiction would be home to the child, if only for an indefinite
period.
“In this case, the Court finds that it was the intention of both
Harsackys to bring their family to the United States for no less
than an indefinite period of time. The facts surrounding their
return to this country in April of 1995 show their intent, to
remain for more than merely a vacation. People who intend only to
spend a vacation in any given area do not contact realtors for the
purpose of looking at homes to purchase and do not interview for
jobs. It is implausible that the Harsackys would sell many of
their possessions in Finland and ship the balance of their
belongings, at great expense, to this country if they intended to
remain for only a few months. The fact that they brought their
Christmas decorations and winter clothing, including Mrs.
Harsacky’s fur coat, to the southernmost part of Texas in April,
is inconsistent with Mrs. Harsacky’s claim that they were here on
vacation. It is more reasonable, and the facts support this
Court’s belief, that the parties were in southern Texas, an <*
page 415> area previously known to Mrs. Harsacky, for the purpose
of relocation. It is undisputed that Mr. Harsacky did in fact look
for employment when he arrived in Texas after having been
unemployed for nearly three years. In summary, this Court finds
that the Harsackys had the settled purpose of bringing their
family to the United States in order to locate hereon an
indefinite basis in the hope that Mr. Harsacky could find
employment.
“The Petitioner, Mrs. Harsacky, has the burden of establishing by
a preponderance of evidence that her children have been wrongfully
removed or retained by the Respondent, Mr. Harsacky, in violation
of the provisions of the Convention. [42 U.S.C. 11603(e).] Based
on the foregoing, this Court finds and concludes as a matter of
law that she has failed to carry that burden of proof. This Court
is of the opinion that there was no wrongful abduction or
retention of the children from their habitual residence. Both
parents agreed to bring their children to this country to make a
new home on no less than an indefinite basis. Thus, it cannot be
said that Mr. Harsacky abducted or wrongfully retained the
children in this country.”
Mrs. Harsacky now contends on appeal that the trial court,should
have considered her decision, made prior to May 24, 1995, to
return with the children to Finland as a basis to change their
habitual residence back to that country. However, this argument
was not raised before the trial court. In addition, the trial
court’s finding that both Harsackys intended to remain in the
United States on an indefinite basis contradicts this
interpretation. Moreover, we fully agree with the trial court that
a determination of habitual residence “must focus on the child,
not the parents, and examine past experience, not future
intentions” Friedrich v Friedrich 983 F2d at 1401. Under the
circumstances as found by the trial court, Mrs. Harsacky’s
unrealized future intention cannot change the specific intention
demonstrated by the conduct of both parties.
Accordingly, the judgment of the Kenton Circuit Court is affirmed.
All concur.