USA – LA – BOLTON – 1994

Bolton v Bolton (Parish Fam.Ct. 1994)East Batton Rouge, LA No. 110163, Div. “D”






This matter came on for hearing on an exception of subject
matter jurisdiction and a Petition for Return of Children under
the Hague Convention. WMH FN01 At issue is whether or not this
Court has jurisdiction to determine custody matters and whether
or not the law set forth under the Hague Convention applies

Carl and Elizabeth Bolton were married in 1986 in England.
For a short period of time they resided in the United States
where their first child was born. They subsequently returned to
England where they have lived up until a short time ago. Their
second child was born there. Carl is a citizen of England and
Elizabeth is a citizen of the United States.

The testimony of the parties indicated that during the Fall
of 1993, the parties discussed a move to the United States.
Although there is some disagreement over the exact decision,
generally it appears that the parties agreed that Carl would come
to the United States to seek employment. Elizabeth would follow
thereafter and the children would move if a decision was made to
stay in the United States permanently. Carl made the necessary
applications on his behalf and submitted passport applications on
behalf of the children. It is undisputed that the parties were
having financial difficulties and that their home was in the
process of being repossessed during this time.

On Dec. 26, 1993, Elizabeth left the matrimonial home for
approximately 10 days leaving the children with Carl. Elizabeth
then moved back into the home and Carl went to live with his
father. At some time in Jan. Carl went to the home, but Elizabeth
refused to let him in. He broke into the home and was charged
with a breach of the peace. In February, Carl left for the U.S.
to seek employment. He testified that he decided to go forward
with this plan because he would not be able to get a green card
in the event he and Elizabeth divorced. During this time period,
Carl remained in contact with Elizabeth and with his mother.
Elizabeth and the children were staying with his mother since
their home had been repossessed. On Feb. 17th, Carl was informed
by his mother that Elizabeth was packing and planning to leave
for the United States with the children. Carl contacted his
father who obtained, through the English courts, a Prohibited
Steps Order which would prevent Elizabeth from leaving the
country with the children. However, she was unable to be located
prior to her departure. Carl later learned that Elizabeth and the
children were in Baton Rouge staying with her sister. A Request
for Return was then filed in England along with a divorce

Carl then filed this Petition for Return of the Children
under the Hague Convention. The United States has ratified and
implemented the Hague Convention on the Civil Aspects of
International Child Abduction, as has England. The purpose of the
international law on this subject is to secure the prompt return
children wrongfully removed to or retained in any Contracting
State. It requires that a custody determination be made by a
court in the child’s habitual residence.

Elizabeth has argued that the children’s removal was not
wrongful because at the time of the removal Carl was not
exercising rights of custody over the children over the children.
WMH FN02 Rather, Elizabeth claims that she had the sole physical
custody of them for over one month prior to their arrival in the
United States. In addition, she argues that since she and Carl
are both in the United States with the intent to remain, the
Hague Convention is not applicable. In addition, Elizabeth sets
forth that since their home was re-possessed there is no place in
England to return. Finally, Elizabeth argues that Carl concurred
in their removal since he prepared their passport applications
and that returning the children to him will expose them to
physical or psychological harm. WMH FN03

Carl testified that the plans to come to the United States
as a family were modified after their separation at Christmas
time. At that point, he decided to come to the United States to
obtain his green card. Carl indicated that the earlier discussed
plan to bring the children to the United States was no longer a
consideration due to their marital problems. Therefore, he
submits that he did not concur in Elizabeth’s decision to bring
the children here. WMH FN04

Although there is no case law directly on point, one United
States Federal Court of Appeals decision discusses the Hague
Convention law at length. In Friedrich vs. Friedrich (6th Cir.
1993) 983 F.2d 1396, a United States citizen based in the
military in Germany left Germany with the child and returned to
the United States. Her husband, a German citizen, attempted to
have the child who had always lived in Germany returned there.
The Court looked at whether or not the child was an habitual
resident of the United States giving the United States court
jurisdiction over a custody dispute. In Friedrich, the mother had
left the matrimonial home a few days prior to her return to the
United States after her husband expelled her from their home.
The Court found that under the Hague Convention the father had
the burden of proving by a preponderence of the evidence that the
removal was wrongful. In order to do this, he must show that Mrs.
Friedrich removed the child from his habitual residence and that
he was exercising his parental custody rights over the child at
the time of the removal.

The trial court held that the child’s habitual residence had
been altered from Germany to the United States when Mr. Friedrich
removed his wife’s and child’s belongings, including the child’s
toys, from their home during a marital dispute. In addition, they
found that the father had terminated his custody rights when he
expelled them from their home.

The Court, in overruling the trial court’s decision,
discussed the term “habitual residence” and stated “. . .
habitual residence must not be confused with domicile. To
determine habitual residence, the Court must focus on the child,
not the parents, and examine past experience, not future
intentions.” The Court found that a person can have only one
habitual residence and that it pertains to customary residence
prior to removal. “The Court must look back in time not forward.”
The Court found that although Mrs. Friedrich intended for the
child to live in the United States in the future, prior to this
he had lived only in Germany. Although Mr. Friedrich may have
forced his wife to leave their matrimonial domicile, he did not
force her to leave the country.

With regard to the issue of termination of custody rights,
the Court found that Mr. Friedrich continued to have contact with
his wife and child despite their separation. Under the
Convention, whether a parent was exercising lawful custody rights
over a child at the time of removal must be determined under the
law of the child’s habitual residence.

After review of the evidence and law, this Court is of the
opinion that the Hague Convention is applicable and that there
was a wrongful removal of the children from their habitual
residence. The Court finds the language in the Friedrich case
regarding habitual residence to be of great influence in making
this decision. In addition, the Court in England should be the
Court to decide the issue of whether Carl was exercising
custodial rights at the time of their removal. It would appear
that he was since he remained in frequent contact with them
despite his absence from the country.

Also of importance is the fact that an English court had
attempted to prohibit the children’s removal by issuing the
Prohibited Steps Order. WMH FN05 In addition, the Bolton’s
divorce proceeding is pending in England. WMH FN06

The Court, however, believes that it is in the best interest
of the children for them to return to England with their mother,
rather than being returned to their father prior to their return

Judgment to be signed accordingly.

THUS DONE, READ AND SIGNED at Baton Rouge, Louisiana, this
4th day of May, 1994.

/s/ [Signature Illegible]
JUDGE, The Family Court


1. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention]

2. Art. 13(a): Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of the
requested State is not bound to order the return of the
child if the person, institution or other body which opposes
its return establishes that–(a) the person, institution or
other body having the care of the person of the child was
not actually exercising the custody rights at the time of
removal or retention, or had consented to or subsequently
acquiesced in the removal or retention[.]

3. An effort is made here to show that because of the intent of
the parties to move to the US, there was acquiescence on the
part of the Father to the removal of the children to the US.
This defense was not allowed by the court which is in
keeping with with the US view that mere intent is not
enough, there must also be an act on the part of the
“acquiescing” parent. Just what that “act” would be is not
clear, but it seems to require more than the mere utterence
of the words.

4. This case is in line with the US cases that allow a party to
change their mind as to acquiescence. This differs somewhat
from the UK view which does not seem to permit this.

5. This highlights the effect of promptly initiating an action
in the Habitual Residence…it goes towards the intent of
the party to not have agreed to the removal.

6. See 9 Uniform Laws Annotated (ULA) 6 (Simultaneous
Proceedings) of the Uniform Child Custody Jurisdiction Act

Contributed by:

Thomas F. Wade, Esq.
Box 44463
Baton Rouge, LA 70804
TEL: (504) 343-4872
FAX: (504) 336-4439
Dated: 13 May 1994