STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
HENRY J. TYSZKA,
Case No. 90-022578-DM
Plaintiff,
-V-
Hon. Samuel A. Turner
MICHELE TYSZKA, (P-21635)
Defendant.
_______________________/
OPINION REGARDING PENDING
MOTIONS
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OPINION
1. Introduction and Facts
This domestic relations case is presently before the Court on
various motions of the parties requesting that the Court preserve
or vacate the existing interim custody order, dated September 4,
1990, (hereinafter the Custody Order) by which the
plaintiff/father Henry J. Tyszka (hereinafter the plaintiff) was
awarded custody of the Parties’ minor children, Victoria (age 4
1/2) and Aleksander (age 1 1/2). FN1 The dispositive issues
relate to whether this Court shall continue or vacate its Custody
Order and are: first, whether this Court’s jurisdiction was
properly invoked by the plaintiff, and second, whether under
either the provisions of the Hague Convention on the Civil Aspects
of International Child Abduction (hereinafter the Hague
Convention) or equitable considerations the Custody Order should
be see aside, and the defendant mother, Michele Tyszka,
(hereinafter the defendant) be awarded interim custody of the
parties’ children. For the reasons stated more fully below the
Court finds that plaintiff properly invoked this Court’s
jurisdiction. The Court further finds, however, that under either
the Hague Convention or equitable principles the plaintiff is not
presently entitled to custody over the children, and thus the
relevant provisions of the Custody Order must be vacated.
The relevant facts and allegations appear as follows:
Plaintiff and defendant were married an February 15, 1986, in
Rennes, France. As noted, they have two minor children. Following
the marriage, from March, 1986 until June, 1989, the family
resided in Michigan. During this time plaintiff obtained a
Michigan drivers’ license. He also obtained a Michigan Teacher’s
Certificate, and apparently obtained at some point a teacher’s
position. He also acquired property in Michigan.
In the summer of 1989 the family took a vacation in France.
The plaintiff returned to Michigan with the daughter in July,
1989, and the defendant remained in France with the son. In the
fall of 1989 plaintiff returned to France with the daughter where
the defendant had secured a job and a house for the family, There
is some indication that the plaintiff was unable to secure a job
or a house in Michigan. Other indications are that he returned to
France on a one year leave of absence.
Plaintiff lived in France with defendant until August, 1990.
During this time he secured the French permits necessary for him
to live and obtain employment in France. He also sought various
jobs in France. Finally he applied for admission into a graduate
degree program.
In August, 1990, plaintiff and the children returned to the
United States on a vacation trip. Plaintiff had informed the
defendant that they would return from the vacation on September 4,
1990. The airplane tickets obtained by plaintiff show that they
were round-trip tickets with a return date of September 4, 1990.
At no point immediately prior to his departure did plaintiff
indicate to defendant that he would not be returning or otherwise
had contemplated filing divorce proceedings upon arriving in
Michigan.
Yet, on September 4, 1990, the plaintiff, instead of
returning to France, filed the instant action for divorce. On
that date he also sought and obtained the Custody Order presently
at issue. On September 6, 1990, the plaintiff telephoned defendant
to inform her that he and the children would not return to France.
While defendant disputes whether she received formal notice
of the pendency of this action, she ultimately on September 12,
1990, initiated divorce proceedings in France. She, too, obtained
an order, dated September 13, 1990, from a French court granting
her custody of the children. Nevertheless, defendant appeared in
this action end submitted herself to the Court’s jurisdiction.
2. Jurisdiction
The jurisdictional issue before this Court revolves on
whether plaintiff satisfied the residency requirements of MCL
552.9 which states, in pertinent part:
“A judgment of divorce shall not be granted by a Court
in this state in an action for divorce unless the
complainant or defendant has resided in this state 180
days immediately preceding the filing of the complaint
…”
In Leader v Leader, 73 Mich App 276 (1977), the court
discussed the principles underlying the foregoing statute:
Residence in Michigan is defined as a place of abode
accompanied with the intention to remain…. Domicile
and residence in Michigan are synonymous terms. Today
in our mobile society physical presence for a longer
period of time is no longer the key factor it once was.
FN2
For many purposes, residence must be considered in
light of a person’s intent…. presence, abode,
property ownership and other facts are often
considered, yet intent is the key factor.
In Leader, id, 280-281 the Court, in applying the foregoing
analysis held that a wife did not abandon her Michigan residence
when she moved to Kentucky for approximately four months to
attempt a reconciliation with her husband who had removed himself
to Kentucky. Sometime after her return to Michigan from Kentucky
she filed for divorce. She was not physically present in Michigan
for 180 continuous days prior to the filing of the action.
Notwithstanding this the Court found that the jurisdictional
requirement of the statute was satisfied because of her testimony
which indicated that she had never intended to reside in Kentucky
or permanently give up her Michigan residence.
In the case at bar there is no doubt that plaintiff’s
physical absence from Michigan, his move to France, his attempts
to secure the necessary permits to work or go to school in France,
and the various statements he made while in France without more,
could lead to the conclusion that plaintiff meant to give up his
Michigan residency. However, the Court also notes that plaintiff
had property in Michigan, had obtained the necessary certificates
to teach in Michigan and testified that he never intended to
change his residence. His statements while made in France, he
testified, were made as a matter of convenience to enable him to
be with his family. From these circumstances, especially
plaintiff’s testimony concerning his intent, the Court finds that
plaintiff did not form an intent to surrender his Michigan
residence upon his move to France. Under Leader, therefore, the
fact that plaintiff did not physically reside in Michigan for 180
continuous days immediately prior to his filing the instant case
does not negate the fact of his “residence” in Michigan for the
requisite period. Accordingly the Court finds that plaintiff
satisfied MCL 552.9, and thus has properly invoked this Court’s
jurisdiction.
3. Hague Convention
Both the United States and the Republic of France are
signatories to the convention. This Court has been given
jurisdiction to enforce the Hague Convention under the
International Child Abduction Remedies Act, 42 USC 11601 et seq;
see 42 USC 11603(a).
Under Article 3 of the Hague Convention:
“The removal or the retention of a child is to be
considered wrongful where –
a. it is in breech of rights of custody attributed to a
person, an institution or any other body, either
jointly or alone, under the law of the State in which
the child was habitually resident immediately before
the removal or retention; and
b. at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or
retention.
The rights of custody mentioned in sub-paragraph a
above, may arise in particular by operation of law or
by reason of a judicial or administrative decision, or
by reason of an agreement having legal effect under the
law of that State.”
Further under Article 4, supra, the Hague Convention only applies
to a child “who was habitually resident in a Contracting State
immediately before any breach of custody or access rights.” A
court, however, need not order the return of a wrongfully removed
or retained child if, pursuant to Article 13(b), supra,
there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation,
The fact that a prior custody order has been entered is not
determinative of the issue under the Hague Convention of whether a
child should be returned. Article 17, supra. In this, a
determination to return the child under the Hague Convention is
not to be taken to be a determination on the merits of any custody
issue.” Article 19, supra. Finally Article 26, supra, provides:
“Upon ordering the return of a child or issuing an
order concerning rights of access under this
convention, the judicial or administrative authorities
may, where appropriate, direct the person who removed
or retained the child, or who prevented the exercise of
rights of access, to pay necessary expenses incurred by
or on behalf of the applicant including travel
expenses, any costs incurred or payments made for
locating the child, the costs of legal representation
of the applicant and those of returning the child.”
In applying the foregoing to the case at bar the Court finds
that plaintiff did not wrongfully remove the children. Defendant,
notwithstanding plaintiff’s apparent subterfuge, did in fact
consent to have the plaintiff remove the children from France.
Because she gave her consent, plaintiff’s removal cannot be said
to have been in derogation of her parental rights, and thus under
Article 3, supra, the removal cannot be said to be wrongful.
Nevertheless plaintiff’s continued retention of the children
appears to have been wrongful. Under the original understanding
of the parties, plaintiff would return the children to France on
September 4, 1990, That this was the understanding of the parties
is clearly evidenced by the fact that round trip tickets with a
return date of September 4, 1990 were purchased. Indeed there is
no credible evidence before the Court to suggest that defendant
consented to the children’s absence beyond September 4, 1990. Her
prompt filing with a French court, and obtaining a custody order
in those proceedings, her prompt appearance in this case are
evidence enough and all belie any finding that defendant had
consented or would have consented had plaintiff been more
forthcoming about his intentions to file for divorce and seek
custody over the children. Plaintiff’s retention of the children
beyond September 4, 1990 therefore was in breach of the
defendant’s custodial rights, presumably recognized under the laws
of France, which rights were actively being exercised at the time.
Therefore under Article 3 of the Hague Convention, plaintiff’s
retention of the children was wrongful and defendant would appear
to be entitled to an order directing plaintiff to return the
children to plaintiff. [WMH Note 1]
As against this result plaintiff argued that the children’s
“habitual residency” was in Michigan, not in France, and thus the
provisions of the Hague Convention do not apply. This Court
disagrees. Rather the Court concurs with and adopts the
well-reasoned analysis of Referee Broderick who stated in his
“Opinion Dated on Record et 3:30 P,M., October 30, 1990,” p 3:
Now these children resided in the Commonwealth of
France for a period, of one child, for a period of nine
months, and the other child, for up to twenty months. A
month in the life of a child, nine months in the life
of a child, twenty months in the life of the child, is
a long time. I think they were, indeed, habitual
residents of France. They attended school in France.
They had a doctor and health reports that exist in the
State of France. FN3 [WMH Note 2]
Plaintiff also argues that return under the Hague Convention
is not warranted because, pursuant to Article 13(b), supra, upon
return, the children will be presented with “immediate and grave
danger.” The United States State Department has provided some
analysis of this section. As stated in 14 FLR 2073 (July, 1988):
“this provision was not intended to be used by
defendants as a vehicle to litigate (or relitigate) the
child’s best interests. Only evidence directly
establishing the existence of a grave risk that would
expose the child to physical or emotional harm or
otherwise place the child in an intolerable situation
is material to the court’s determination. The person
opposing the child’s return must show that the risk to
the child is grave, not merely serious.”
Plaintiff, as evidence of his contention under Article l3(b),
alleges that defendant suffers from “psychiatric” and “drug and
alcohol” problems, and that defendant is “unable to care” for the
children. In addition, plaintiff testified to specific incidents
in support of his allegations. The Court, however, upon review of
those allegations, does not find that they establish that the
children would be subjected to immediate and grave danger. This is
so in light of credible testimony which shows that during
substantial periods of time defendant was the primary care taker
of the children, during which plaintiff voiced no objections to
her care of the children. Further defendant spent substantial
sums of money for the children’s support. The fact that defendant
may be under psychiatric care in France shows, if anything that
while she may have some psychiartic problems, she has sought
treatment for them. For all of the above reasons the Court finds
that the children would not and grave risk of harm if the children
were returned to the defendant. Plaintiff’s objections under
Article 13(b) supra, are thus without merit. [WNH Note 3]
For all the foregoing reasons the Court will grant an order
providing for the return of the children to the defendant pursuant
to the Hague Convention. The provisions of the Custody Order to
the contrary must be vacated.
4. Equitable Consideration
In entertaining actions for divorce and entering or setting
aside orders in divorce actions, this Court sits as a court of
equity, MCL 552,12. Thus equitable considerations, also apply to
whether the Court should continue in effect or vacate its Custody
Order. Ordinarily equity will not aid a fraud and will refuse to
enforce any purported rights obtained by fraud or
misrepresentation, and the courts have authority to set aside
orders or decrees in domestic relations actions opened on the
basis of fraud or misrepresentation. See generally, Berg v Berg,
336 Mich 284, 208 (1953); DeHaan v DeHaan (1957) 348 Mich 199.
In the case at bar the Court finds that plaintiff obtained
physical custody over the children essentially by perpetrating a
fraud on the defendant by concealing from her any hint that he was
not going to return with the children after September 4, 1990.
Moreover, his non-disclosure of his breach of his agreement with
defendant to the Court upon seeking an ex parte application for
the Custody Order constituted a material misrepresentation to the
Court, in that, it would have been material to the Court’s
determination of whether plaintiff was entitled to retain custody
of the children whether plaintiff, in good faith, had retained
custody of them. Given the circumstances of how plaintiff
retained physical custody over the children and how he solicited
the Court’s assistance through the issuance of the Custody Order,
the Court is persuaded that equitable considerations dictate that
the Custody Order be modified such that those provisions relating
to the custody of the children, and providing that defendant pay
child support will be vacated.
5. Other Matters
Article 16 of The Hague Convention states in pertinent part:
“After receiving notice of a wrongful removal or
retention of a child in the sense of Article 3, the
judicial or administrative authorities of the
Contracting State to which the child has been removed
or in which it has been retained shall not decide on
the merits of rights of custody until it has been
determined that the child is not to be returned under
this Convention ….
As observed by Referee Broderick in his opinion, supra,
“Under the Hague Convention, this Court is making no
ruling as to who is the better custodian of these two
children. The Hague Convention does not allow this
forum to make this determination. In fact, that is the
reason for the Hague Convention, is that the proper
forum would be the forum of habitual residence of the
children …
I think the court in France can accomplish their
investigation, and by their taking of testimony in this
regard, what is in the best interest of these children.
Whether they should indeed reside with their mother or
their father.
Under Article 16, supra the Court agrees with the Referee’s
assessment of the limitation of its power to determine the custody
issue. Therefore this Court will hold in abeyance any
consideration of the custody issue beyond ordering that the
children be returned to their mother in France, until such time as
the appropriate French court adjudicates the issue. FN4 [WMH
Note 4] Also, consistent with Referee Broderick’s Opinion, supra,
pp 3-4, the Court will, however, order the plaintiff to pay
through the Office of the Wayne County Friend of the Court interim
child support of $50.00 per week per child until further order of
the Court. Also pursuant to Article 26, supra, the Court will
enter an order directing plaintiff to pay defendant’s hotel bill,
her air fare and her air fare for the return of the children to
France. Further plaintiff’s request for attorney fees shall be
decided while that of defendant’s be taken under advisement. [WMH
Note 5] Finally because the custody issue will be decided in
France, and there is an indication that some testimony as to the
psychological makeup , of both parties will be available in
France, plaintiff’s request for a psychological evaluation will be
denied. FN5
Defendant’s counsel is to prepare an order which conforms to
this Opinion.
/s/ Samuel Turner
_____________________
Circuit Judge
Dated: 21 Feb 1991
—————–
Comments and Notes by William M. Hilton (WMH)
1. The judge in this case used ordinary acts of the parties to
show that no consent to the retention had been made by the
mother: The Round Trip Airline tickets, the prompt action by
the mother in France to obtain a custody determination, etc.
When pleading these cases and the issue of acquiescence by
the left behind parent is raised, ordinary events such as
used by the court are very useful as a “tie breaker” in an
evidentiary hearing. On the other hand the parent arguing
that the consent was there may state, for example, that the
tickets were purchased on a Round Trip basis simply because
that was the lowest cost way to obtain tickets.
2. Here the court adopts the position that it is the physical
and not the legal presence of the child that is significant.
Compare this to 9 Uniform Laws Annotated (ULA) 2(5) which
defines an analogous term: “Home State”. The practitioner
should refer to the Uniform Child Custody Jurisdiction Act
(UCCJA) in explaining the Hague Convention but with the
caveat that the UCCJA is only similar and is not identical to
the Hague Convention.
When the child travels frequently and has not lived in any
one place for a significant period of time, then it may be
that the domicile is of significance. See High Court of
Justice, Family Division, Royal Courts of Justice, London
WC2, United Kingdom, CA 122/89, 23 Feb 1989 for an example of
this.
3. The court’s referal to the language of the analysis is to be
noted. The court approves the concept that there must be
immediate danger and that the matter must be more than
serious. The court also approves of the higher burden
required to prove this. For similar findings see the cases
cited in 9 ULA 3(a)(3), the “Emergency” section of the UCCJA.
4. Article 16 is not to be ignored. Its implementation can
cause the court to focus on the matter before it: The
determination of whether or not there has been a wrongful
removal/retention. The invoking of Article 16 is a
significant step in that direction as it stops the court dead
in its tracks on its normal “best interests” routine.
5. No mention was made of 42 USC 11607(b)(3) which requires the
payment of fees, costs, travel expenses, etc., unelss it can
be shown to be clearly inappropriate. Note that the court
did include travel costs, hotel, etc., in the amount to be
paid by the abducting parent.
Foot Notes
——————–
1. Plaintiff’s motion is entitled “Emergency motion for stay” so
as to preserve the existing custody order; motion for
immediate psychiatric evaluation, and for release of
defendant’s existing and past psychiatric records, and motion
for reasonable protective visitation for defendant, bond and
related relief.” Defendant’s motions are entitled “Amended
motion to modify the September 4, 1990 Ex Parte Interim Order
and return children to the mother” and an “emergency motion to
enforce the Hague Convention,” For simplicity’s sake
plaintiff’s motion will be referred to as his “motion to
preserve” and defendant’s motions will collectively be
referred to as her “motions to modify.”
2. “Domicile is the union of residence and intention, and
residence without intention, or intention without residence,
is of no avail. Mere change of residence, although continued
for a long time, does not effect a change of domicile….
Moreover, a domicile, once shown to exist, is presumed to
continue until the contrary is shown.
3. The Court would also observe that in the case of the minor
children, not of the age of reason, physical presence must be
weighed especially heavily since, of course, they cannot have
been deemed to have made a conscious decision concerning their
residency, Leader’s analysis of residency which focuses on
intent, and not physical presence, is thus largely
inapplicable.
4. The Friend of the Court will therefore not be required to
undertake an investigation into the custody issue.
5. Any other relief sought in plaintiff’s “Motion to Preserve” is
denied as being mooted by the foregoing findings. To the
extent that defendant’s “Motions to Modify” seek relief that
is inconsistent with the foregoing they too are denied.