USA – MA – Falls v Downie (Return denied) (No wrongful removal) FALLS v DOWNIE. Court found that the habitual residence of the child was not Germany and stated that “given this, neither the Convention nor ICARA applies and this court lacks subject matter jurisdiction”
Falls v Downie (Dist.Mass. 1994)871 F.Supp. 100
=================================================================
IN THE APPLICATION OF VERONIKA ELISABETH FALLS, Petitioner
v.
RICHARD THOMAS DOWNIE, Respondent
CIVIL ACTION NO. 94-30293-MAP
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
December 28, 1994, Decided
COUNSEL: For VERONIKA ELISABETH FALLS, Petitioner: Laura F.
Arbeitman, Northampton, MA.
For RICHARD THOMAS DOWNIE, Respondent: Leslie A. McLellan,
Amherst, MA.
JUDGES: MICHAEL A. PONSOR, U.S. District Judge
OPINION BY: MICHAEL A. PONSOR
OPINION: MEMORANDUM REGARDING PETITION FOR RETURN OF THE CHILD
December 28, 1994
PONSOR, D.J.
I. INTRODUCTION.
The petitioner Veronika Elisabeth Falls seeks an order from this
court pursuant to the Hague Convention and the International Child
Abduction Remedies Act ICARA), 42 U.S.C. Secs 11601-11610,
requiring the respondent Richard Thomas Downie to return their
two-year-old child Patrick Falls to her. These cases are always
difficult but this one, arriving as it did two days before
Christmas, was especially painful.
The court heard testimony from both the mother and father on
December 23, 1994 and rendered its decision orally. Findings of
Fact are set forth below. In summary, the court has concluded that
Patrick Falls was not a “habitual resident” of Germany at the time
of the alleged wrongful retention by the father, respondent
Downie. Given this, neither the Convention nor ICARA applies and
this court lacks subject matter jurisdiction. The petition will
therefore be denied and the court will order that this matter be
dismissed.
II. FINDINGS OF FACT.
Falls and Downie met each other in Germany when he was stationed
there in the Army, and she was working as a cook at a United
States Army base. The two began a relationship and in February
1992, Falls became pregnant. By that time, Downie and she were
living together in her apartment, though he maintained a room at
the base.
In the spring of 1992, the pair began building their own house on
land given to Falls by her mother, and on November 11, 1992, the
parties’ son, Patrick, was born.
Downie had been separated from his American wife since August of
1990 and a divorce was pending in the United States. It was the
parties’ plan that, once the divorce was final, they would get
married.
In March of 1993, Downie’s period of enlistment expired and he
left the military. For the balance of that year, Downie tried
unsuccessfully to find work in Germany. The family’s financial
situation became dire. Falls was working full time but needed
between thirty-five and forty percent of her salary simply to pay
the mortgage on the land and house they were building. The
situation darkened further when Falls discovered that she was
again pregnant in November of 1993.
At about this time, Falls and Downie decided that Downie should
return to the United States and attempt to find work as a police
officer in his home community in Western Massachusetts. He had
previously worked as a police officer in Amherst. Just before
Downie’s departure, when the arrangements for Patrick’s day care
unexpectedly fell through, both parties agreed that Downie would
take Patrick with him to the United States, where both he and the
boy would live with his parents.
The decision by Falls to permit Downie to take Patrick to the
United States was entirely voluntary. Moreover, Falls understood
when Downie left with Patrick that he and their child would be
staying in the United States for an indefinite period of time.
Although the couple had not married, they considered themselves a
family. The plan was that Falls would maintain close contact with
Downie and her son over the next few months, then come to the
United States in June of 1994 for her maternity leave after the
birth of her child, marry Downie and begin residing indefinitely
in the United States.
Following up on these plans, Downie left Germany in January of
1994 with Patrick and moved in with his parents in Amherst,
Massachusetts. He was able to obtain part time work as a police
officer, but could not find a full time job. Unfortunately, in
February of 1994, Falls suffered a miscarriage. Despite this
setback, she and Downie continued in a loving relationship for the
next few months and sustained their hope that Downie would find
full time employment, and she would join him and Patrick in the
United States. Because of the miscarriage, Falls lost the right to
maternity leave and postponed the planned trip to the United
States to August 1994.
In June of 1994, during a phone call Falls mentioned to Downie for
the first time that she wished that Patrick could come back to
Germany because she missed him very much. Downie stated that they
should talk about it when she came to the United States in August.
Meanwhile, Patrick settled down in Amherst, Massachusetts, living
at his grandparents’ three-bedroom home. He was cared for by, and
developed a close relationship with, his father. In addition, he
developed a close relationship with his grandparents, who took
care of him when his father was at work.
In August of 1994, Falls came to the United States and stayed with
Downie and his parents in Amherst. It was clear that-for reasons
that were not explored at the hearing — a shadow of some sort had
fallen over the relationship. Despite this shadow, both parties
still had hopes that they would eventually marry and make a
family. Petitioner raised the issue of returning with Patrick to
Germany several times during the August visit, but at this time
the respondent Downie refused to permit Patrick to leave. His
reason for this, as stated at the hearing, was that Patrick had
become used to the environment in his grandparents’ home, and he
did not think the disruption of a removal to Germany was in the
boy’s best interest. At this point, due to the passage of time and
the child’s young age, Patrick barely knew his mother.
On August 30, 1994, Falls returned to Germany, leaving Patrick
with Downie against her will. In Germany, she attempted to
institute legal proceedings to obtain appropriate court orders
giving her custody of Patrick. Delays occurred in this process.
Eventually, she did obtain an order from the Police Court in
Regensburg, Germany, holding that she was entitled to custody of
Patrick. It is undisputed that under German law the mother has
sole custodial rights over an illegitimate child.
Despite these legal developments, both parties testified that even
as late as September 1994, following the return of Falls to
Germany, they each clung to the hope that they would reunite as a
family. As of the date of the hearing, December 23, 1994, both
Falls and Downie appeared to have abandoned that hope. It is
unclear at what point the relationship became irretrievable.
III. DISCUSSION.
Although the facts of this case are somewhat tangled, the legal
issue is simple. The Hague Convention is directed at undoing the
wrongful removal or retention of a child. Under Article III of the
Convention, the retention of a child is wrongful where (1) it is
in breach of the rights of custody attributable to a person under
the law of the state in which the child was a habitual resident
immediately before the removal or retention, and (2) where the
custody rights were being exercised by the petitioner.
A key prerequisite to exercise of jurisdiction under the
Convention is that the child be removed or retained from its
“habitual residence.” Ponath v. Ponath (D. Utah, C.D. 1993) 829
F.Supp. 363, 365.
To invoke the protection of the Convention, the taking or
retention of a minor child must have occurred from a place where
the child habitually resides.
Meredith v. Meredith (D. Ariz. 1991) 759 F.Supp. 1432, 1436
The first time that the conduct of the respondent in this case
could conceivably be characterized as “wrongful,” would be in
August of 1994 when Falls asked to take Patrick back to Germany
and Downie refused to let him go. The petitioner bears the burden
of proving by a preponderance of the evidence that Patrick at that
time was a “habitual resident” of Germany.
This burden has simply not been carried. Courts have frequently
noted in cases under this statute that the term “habitual
residence” has never been defined either in the Convention itself
or in the case law. Ponath, 829 F.Supp. at 365.
In determining habitual residency, ‘the court must look back in
time, not forward . . . future plans are irrelevant to our
inquiry.’ Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396,
1401. ‘To determine the habitual residence, the court must focus
on the child, not the parents, and examine past experience, not
future intentions.’ Friedrich, at 1401. Slagenweit v. Slagenweit
(N.D. Iowa 1993) 841 F.Supp. 264, 268 .
What is required is that there be a “degree of settled purpose.”
Id. at 268, quoting In re Bates, No. CA 122.2-89 High Court of
Justice, Family Division Court, Royal Court of Justice, United
Kingdom 1989.
In this case, as of August 1994, this twenty-one-month old boy had
been living in the United States, with the agreement of his
mother, and with the prospect of an indefinite continuance of
residence, for eight months. He had become completely accustomed
to life in this country with his father and grandparents; he
barely knew his mother. It simply defies common sense to suggest
under these circumstances that Patrick was, as of that date, a
“habitual” resident of Germany. In every significant respect, the
boy had by August 1994 settled with the consent of his mother
indefinitely in this country.
This conclusion ends the discussion with regard to the application
of the Hague Convention and ICARA. To say there was no wrongful
retention, of course says nothing about the ultimate issue of
custody. This court’s decision simply signifies that a competent
court of the Commonwealth of Massachusetts will be making the
judgment with regard to custody. The child is not subject to
immediate return to Germany under the terms of the Convention.
IV. CONCLUSION.
For the foregoing reasons, the Petition For Return of the Child is
hereby DENIED and this matter is DISMISSED for lack of subject
matter jurisdiction. An appropriate order will issue.
MICHAEL A. PONSOR
U.S. District Judge
ORDER
December 28, 1994
PONSOR, D.J.
For the reasons set forth in the Memorandum issued today, this
case is hereby DISMISSED .
It is So Ordered.
MICHAEL A. PONSOR
U.S. District Judge