USA – OH – SCHROEDER – 1995

Schroeder v Vigil-Escalera Perez (Ohio Com.Pl. 1995)76 Ohio Misc.2d 25 (664 N.E.2d 627)
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Schroeder

v

Vigil-Escalera Perez

No 4-238549, 09 Nov 1995, Court of Common Pleas of Ohio, Cuyahoga
County, Division of Domestic Relations.

Joyce E. Barrett, Cleveland, for plaintiff

Herbert Palkovitz, Cleveland, for defendant.

Cheryl S. Karner, Judge.

<* page 629> This matter came on for hearing on September 8, 1995
pursuant to the defendant’s motion to dismiss under Civ.R. 12(B),
R.C. 3109.21 et seq. (“UCCJA”), The Hague Convention on Civil
Aspects of International Child Abduction and/or Forum Non
Conveniens. Present at the hearing were the plaintiff, Kimberly
Ann Schroeder, and her attorney, Joyce E. Barrett. The defendant,
Alberto J. Vigil-Escalera Perez, did not appear, although his
attorney, Herbert Palkovitz, was present and had an opportunity to
cross-examine and call witnesses.

The court makes the following findings of fact and conclusions of
law:

I. Statement of Facts

1. On February 1, 1995, the plaintiff/mother filed this present
action for legal separation and other equitable relief. The
defendant/father was served with the complaint by registered mail
on February 13, 1995. On March 8, 1995, the plaintiff/mother filed
a motion seeking temporary custody, which motion was served by
registered mail on the defendant/father on March 21, 1995. On May
16, 1995, the defendant/father filed a motion to dismiss this
present action, asserting for the first time The Hague Convention,
and that the child had been wrongfully abducted and/or retained in
Ohio. On July 6, 1995, the defendant/father filed a Hague
Convention action in federal court seeking the return of the minor
child (case No. 195CV1480, United States District Court, Northern
District of Ohio).

2. Plaintiff Kimberly Ann Schroeder is a citizen of Ohio and the
United States. Defendant Alberto J. Vigil-Escalera Perez is a
citizen of Madrid, Spain. In September 1991, the parties met in
Cuyahoga County, where both were students at Baldwin Wallace
College.

3. The defendant finished his education at Baldwin Wallace and
accepted a job in Mexico, where he moved in September 1991. The
plaintiff remained in Ohio to finish her education.

4. The parties continued to see each other and became engaged on
Christmas in 1991. Plaintiff moved to Mexico in July 1992 to be
with the defendant.

5. On April 10, 1993, the parties were married in Guadalajara,
Mexico.

G. Shortly thereafter, the plaintiff became pregnant with the
parties’ only child, Gabriela, who was born on February 23, 1994
in Guadalajara, Mexico. The child is therefore a citizen of the
United States, Mexico, and Spain.

7. From July 1992 until July 1994 when she left Mexico, the
plaintiff was in Mexico on a tourist visa, which required her to
return to the United States every six months.

8. In March 1994, soon after the birth of their child, the
defendant began looking for employment in Spain, where his family
resided. Plaintiff indicated to defendant her reluctance to leave
North America.

9. In June 1994, the parties with their infant daughter went to
Madrid to visit defendant’s family and for defendant to have a
second job interview. Upon their return to Mexico, defendant
advised his wife that he was going to take the job in Spain and
that they would all move there. The plaintiff and defendant then
spent the next few weeks packing up their belongings in Mexico to
be shipped to Madrid.

<* page 630>

10. On July 17, 1994, on their way to Spain, the plaintiff and
the minor child stopped in Berea, Ohio, to visit with the
plaintiffs family. The defendant joined them on August 2. On
August 12, 1994, the parties and the child left Ohio to make their
home in Spain.

11. Although the parties had intended to make their home in
Madrid, Spain, for at least the time being, plaintiff had moved
somewhat reluctantly. Not surprisingly, the plaintiff became
discontented and, on November 12, 1994, with the consent of the
defendant/husband, the plaintiff and the minor child left Madrid
for a visit in Ohio with plaintiff’s family. The plaintiff had a
round trip ticket for a return to Madrid on December 28, 1994.

12. Upon the plaintiff’s and minor child’s arrival in Ohio in
November 1994, it soon became clear that the relationship between
the plaintiff and defendant was in trouble. Many conversations via
telephone took place between the plaintiff and defendant during
November and December 1994. Both parties vacillated in what they
wanted to do about their marriage and family. The plaintiff wanted
the defendant to move back to North America and live in the United
States with her and the minor child; the defendant wanted
plaintiff to move back to Spain with the minor child. It became
very clear that both parties were having a difficult time
adjusting to the cultural differences between Europe and the
United States. The parties, during that period of time, discussed
separating.

13. It is also clear from the evidence that at no time had the
plaintiff wrongfully detained or retained the minor child in the
United States. The defendant had encouraged the plaintiff to go to
the United States, albeit for a visit; but at no time did
defendant insist that the plaintiff return to Spain with the minor
child. Rather, during this period of time, the parties were trying
to determine how to work out their own problems with their
relationship. When it became clear that the plaintiff was choosing
to remain in the United States, the defendant decided to seek a
divorce from the plaintiff; and in fact on January 27, 1995, he
filed for divorce in Madrid; plaintiff was not served with these
proceedings until March 12, 1995.

14. The plaintiff filed this action for legal separation (with
her subsequent request for custody) on February 1, 1995. The
defendant was served with this present action on February 13, 1995
(although defendant is contesting the adequacy of service of
process, which will be discussed herein).

15. From November 1994 and continuing even until the date of this
hearing, the parties have had frequent and extensive telephone
contact with each other, where they have discussed their marriage
and their child. The defendant/father has even told the plaintiff
that she should have custody of the minor child as long as they
could work out visitation once Gabriela was old enough to travel.

16. Defendant is an international commodities broker who travels
throughout Europe.

17. During their many conversations, the defendant also indicated
to plaintiff that he would not ask her to return to Spain, since
his job would require him to travel a great deal throughout
Europe. In May 1995, the defendant told plaintiff that he was in
love with another woman and he did not want the plaintiff coming
back to Spain.

18. At all times, the defendant has known the whereabouts of the
plaintiff while she has resided here in Ohio. In June 1995, the
defendant was in Connecticut, but made no attempt to telephone or
visit with the minor child while in the United States.

19. The father has not contributed to the support of the
plaintiƓf/mother or the minor child. When the plaintiff left Spain
she took approximately $1,500. During the ten months she has been
away from the defendant, defendant has sent no money for the
support of the minor child, nor did he even acknowledge Gabriela’s
first birthday in February 1995.

20. Since the defendant has chosen not to participate in the
hearing, there was no testimony contrary to plaintiff’s recitation
of the facts. The court is therefore compelled to find that the
child has not been wrongfully retained in Ohio. The plaintiff left
Spain <* page 631> with the permission the defendant. The
defendant has known at all times Were the plaintiff and child
vrere. The defendant has acquiesced in plaintiffs living in Ohio
with the minor child and has not urged the plaintiff to return
with the minor child. In fact, it was not until more than six
months after plaintiff and the child arrived here that the
defendant even raised the issue of The Hague Convention, alleging
that the child had been wrongfully retained in Ohio and should be
returned to Spain. The federal district court action was not filed
until July 6, 1995, seeking the return of the child.

II. The Hague Convention

21. The Hague Convention on the Civil Aspects of International
Child Abduction was adopted in 1980 “to protect children
internationally from the harmfull effects of their wrongful
removal or retention and to establish procedures to insure their
prompt return to the state of their habitual residence.” The Hague
Convention, Preamble. The Hague Convention recognizes the harm
done to children by parental kidnaping and a strong desire among
those signator countries to implement an effective deterrent to
such behavior. Both the United States and Sptun are signatory
nations. The United States has implemented The Hague Convention in
the International Child Abduction Remedies Act (“ICARA”), Section
11601 et seq., Title 42, U.S.Code. The ICARA provides that state
courts and United States district courts have corururrent original
jurusdidion of actions arising Ruler the convention See Section
11603(a), Title 42, U.S.Codc

22. Under The Hague Convention, when both countries are
signatories and the child is under sixteen, a person seeking the
protection of The Hague Convention must show by a preponderance of
evidence that the child was wrongfully removed or retained from
the child’s place of habitual residence. In order to determine in
this case whether or not Spain should be the country for purposes
of determining custody and the return of the child, this court
must look at two issues: (1) Is Spain the habitual residence of
the infant Gabriela? and (2) Was the~removal of Gabriela from
Spain or her retention in United States wrongful?

23. Since there is no actual custody decree issued by any court
(either from Spain or from the United States), this court is
relying on the defendant/father’s statement in his affidavit that
he was entitled to custody under Spanish law. There was actually
no evidence presented on this issue. No translation of any Spanish
law was presented to the court and in fact there was no testimony
by the defendant that he was entitled to custody under Spanish
law, since he was not present at the hearing. Nonetheless, the
court will consider The Hague Convention issues.

24. The threshold issue that must be addressed in an cases
involving The Hague Convention is where is the habitual residence
of the minor child. Is the habitual residence of the child Spain
as argued by father or is it the United States as asserted by
mother? The father argues that the parties together decided to
move from Mexico to Spain, that they bad a settled intent to
reside in Spain, and that prior to the child’s arrival in the
United States in November 1994, the only country that could have
been Gabriela’s babitual residence was Spain. The court finds that
prior to November 12, 1994, there is no question that Cabriela
could not have been a habitual resident of the United States. Her
first five months of life had been spent in Mexico, and the next
three months of her life had been in Spain

25. Defendant argues that the date we must look at is November
12, 1994 and that we must ignore any actions or facts after
November 12, 1994. As the Sixth Circuit stated in Friedrich v
Friedrich (C.A.6, 1993), 983 F.2d 1396, 1402: a * * * habitual
residence can be ‘altered’ only by a change in geographyl and the
passage of time, not by changes in parental affection and
responsibility. The change in geography must occur before the
questionable removal[.]” The Friedrich court wanted to make sure
that courts would not consider questionable or wrongful removal as
an action that would alter habitual residence. Otherwise The Hague
Convention would be rendered meaningless.

<* page 632>

26. However, the case now before this count is very different
fiom Friedrich, since the child was removed fiom Spain with the
knowledge and consent of the defendant/father. Surely in any case
where a child is removed from one countly to another country with
the consent and acquiescence of the other parent, a residency
change can result, thus changing the habitual residence of the
child. In the case at hand, while it is true the plaintiff and her
baby had return tickets, it became very clear during the next
several months that marital problems existed, and that the
defendant/father vacillated in his desire to have the plaintiff
return to Spain. It is clear the defendant acquiesced and agreed
that the plaintiff and child could remain in the United States.

27. As instructed in Friedrich it is clear that the focus in
these cases should be on the child, not the parents, and that past
experience, not future intentions, must be examined. That,
however, is difficult to do when an infant is of such tender
years: Gabriela was only five months old when she moved to Spain,
and eight months old when she left Spain. The question then
becomes whether the time from November 12 to February 1 when the
plaintiff filed her action for legal separation, an eighty-day
period, constitutes sufficient contact by Gabriela with the United
States to make the United States her habitual residence, or
whether the removal and retention of Gabliela from Spain during
that time was wrongful, thus triggering The Hague Convention.

28. Considering the evidence and testimony, this count concludes
that it was intended that Gabriela remain with her mother in the
United States for an indefinite period of time. When the defendant
became aware that the plaintiff would not be returning to Spain
with the child, he raised no objection and indeed acquiesced in
the plaintiff’s remaining in this country.

29. As the court found in Slagenweit v. Slayenweit (N.D.Ohio
1993), 841 F.Supp. 264, it is sometimes difficult to determine
when the allegedly wrongful retention of the child actually
occurs. In that ease, the child left Germany for the United States
in July 1992 pursuant to a joint decision of mother and father. It
was unclear when the child would be going back to Germany, which
had been the child’s residence prior to July 1992. In Slagenweit,
after discussion between mother and father as to when the child
would be returned, it became clear in March 1993, when the divorce
petition was first filed in Iowa, that this was the alleged
wrongful retention date. In Slagenweit, the Could found that when
the parties actually began a battle over custody of the child was
the date to be used in setting habitual residency. In the case now
before us, it was not until May 16, 1995, when the defendant filed
his motion to dismiss, that custody became an issue; if there is
wrongful retention, it would appear that that is the appropriate
date from which to examine retention.

30. There is no actual definition of “habitual residency” in The
Hague Convention. The definition most cited by our courts is set
forth in a British decision: In re Bates (1989), No. CA122.89
(High Court of Justice, Family Division Court, Royal Court of
Justice, United Kingdom). The Bates court, as cited in Levesque v.
Levesque (D.Kan.1993), 816 F.Supp. 662, 665, states:

“No definition of ‘habitual residence’ has ever been included in
the Hague Convention. This has been a matter of deliberate policy,
the aim being to leave the notion free from technical rules, which
can produce rigidity and inconsistencies as between legal systems.
* * * It is greatly to be hoped that the courts will resist the
temptation to develop detailed and restrictive rules as to
habitual residence, which might make it as technical a term of art
as common law domicile. The facts and circumstances of each case
should continue to be assessed without resort to pressumptions or
presuppositions. ” (Emphasis added.) See, also, Rydder v Rydder
(C.A.8 1995), 49 F.3d 369, at 373; Friedrich v. Friedrich 983 F.2d
at 1401; and In re Application of Ponath (D.Utah 1993), 829
F.Supp. 363, 3G5, all quoting In re Bates.

31. This court, therefore, concludes that Ohio became the
habitual residence of Gabliela prior to the filing of this action
in February 1995. The parties had mutually agreed that Gabriela
would remain in the custody of the plaintiff for an indefinite
peri- <* page 633> od in Ohio. The change in geography was not the
result of a questionable removal of the child. In fact, there was
a clear change in residence from Spain to Ohio. There was a
substantial passage of time from the removal on November 12, 1994
to the beginning of the alleged wrongful retention in May 1995.
While it may be that the defendant intended the child to return to
Spain at some future date, this court is convinced that no
definite time for the child’s return was set or discussed, and
that it was the mutual intent of the parties that the child be
with the mother in Ohio for an indefinite amount of time.

32. When determining a child’s habitual residence and looking at
where a child has been physically present and for what period of
time, ”[tlhe 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.” In re Application of
Ponath, 829 F.Supp. at 367. “The intent is for the concept
(habitual residence) to remain fluid and fact based, without
becoming rigid.” Levesque u Levesque, 816 F.Supp. at 665; In re
Application of Ponath, 829 F.Supp. at 365. “[A] child’s habitual
residence is the place where he or she has been physically present
for an amount of time sufficient for acclimatization and which has
a ‘degree of settled purpose’ from the child’s perspective.” Feder
u Evans-Feder (C.A.3, 1995), 63 F.3d 217, 224.

33. Essentially, then, even if Spain was indeed the habitual
residence of the minor child prior to the child’s removal on
November 12, 1994, there is sufficient evidence that the removal
was not “wrongful” as defined under The Hague Convention.
Defendant knew at all times where the plaintiff and the child
were. Defendant clearly acquiesced in the removal and retention of
the child in the United States. In fact, the defendant did not
even seek the return of the child until six months after the child
was removed.

34. As Article 13 of The Hague Convention states: ” * * * 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 * * * subsequently acquiesced in the removal or
retention[.]”

35. The fact that defendant has made no effort to see or visit
with the minor child, although encouraged by the plaintiff to do
so, is further evidence that the defendant acquiesced in the
retention of the child in the United States. As the court stated
in Ponath, 829 F.Supp. at 368:

” * * * the Court finds, for purposes of the Hague Convention,
that respondent has established by a preponderance of the evidence
that petitioner gave his consent for respondent to return to the
United States with the minor child. The conclusion is further
supported by petitioner’s failure, for almost six months, to make
any meaningful effort to obtain return of the minor child.
Accordingly, the court concludes that removal of the child was not
wrongful within the meaning of the Hague Convention.”

36. The court therefore finds that under The Hague Convention, the
United States is Gabriela’s habitual residence.

III. Service of Process Was Valid

37. The defendant has raised the issue and in fact has filed a
motion to dismiss the complaint under Civ.R. 12(B), alleging,
among other things, that service of process was insufficient.
There is no doubt that the defendant received the pleadings. They
were sent to him certified mail at his place of employment, and
according to the defendant’s own affidavit, a secretary signed for
these papers. (Defendant maintains that the secretary who signed
for the complaint could not read English and had no authority to
accept the service of process on behalf of the defendant.)

38. Civ.R. 4.5 permits service in a foreign country where either
Civ.R. 4.3 or 4.4 allows service outside Ohio. As a last resort,
defendant could have been served by publication pursuant to Civ.R.
4.4; thus, he may be served under Civ.R. 4.5.

39. It is well-settled law in Ohio that service at a place of
employment is <* page 634> sufficient. Service by certified mail
can be properly executed by delivering the service to one other
than the named defendant. In Mitchell v. Mitchell (1980), 64 Ohio
St.2d 49, 18 O.O.3d 254, 413 N.E.2d 1182, a divorce case, service
of process was made by certified mail to the address of
defendant/wife and signed by another. The Supreme Court stated:

“Similarly certified mail service under the rule does not require
that delivery to a person other than the defendant be restricted
to a person authorized by appointment or by law to receive service
of process for the defendant. All that is required is that
certified mail service be consistent with due process standards;
i.e., it must be reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections. Mullane v Central Hanover Bank & Trust Co. (1950),
339 U.S. 306 [70 S.Ct. 652, 94 L.Ed. 865] * * *.” Id., 64 Ohio
St.2d at 51, 18 O.O.3d at 256, 413 N.E.2d at 1183-1184.

40. It is well established that the purpose of service is to give
actual notice to a party of proceedings pending against him.
Defendant has not argued that he did not actually receive summons
and the complaint. It is not necessary for defendant to personally
sign for certified mail. Service is deemed sufficient when a
return receipt is signed by any person at an address reasonably
calculated to give the defendant notice. Where clearly defendant
has actual notice of the complaint, it is specious to argue that
the service method was not one reasonably calculated to give him
actual notice.

41. Certainly sending certified mail to the defendant at his
place of employment was consistent with due process standards and
certainly reasonably calculated to give him notice of the divorce
action. Under the Rules of Civil Procedure, certified mail does
not require actual service upon the addressee/party receiving the
notice, but is effective upon certified delivery to an
“appropriate person.” See Castellailo v. Kosydar (1975), 42 Ohio
St.2d 107, 110, 71 O.O.2d 77, 78, 326 N.E.2d 686, 689. In Lanza v.
Lanza (June 11, 1992), Cuyahoga App. No. G0225, unreported, 1992
WL 136260 the court of appeals affirmed the trial court’s finding
where certified mail service of process was delivered to
defendant/husband’s employer.

42. Of course, there can be no better evidence of the actual
reccipt of the complaint than the motion to dismiss filed by
defendant’s attorney. In Kienzle Kienzle (Feb. 10, 1983), Cuyahoga
App. No. 45035, unreported, 1983 WL 5754, the court found that the
wile’s signing of a certified mail receipt for a divorce complaint
directed at the husband was sufficient service of process, where
the evidence indicated that the husband had notice of the divorce
proceedings. In Perkinswood Market, Inc. v. Limbach (Aug. 1994,
1994), Trumbull App. No. 93-T-4927, unreported, 1994 WL 590312,
the court specifically held that:

” * * * It is not necessary that service be attempted through the
most likely means of success-ordinarily residence service; it is
sufficient that the method adopted be one ‘reasonably calculated’
to reach its intended recipient. We believe therefore that
certified mail service sent to a business address can comport with
due process if the circumstances are such that successful
notification could be reasonably calculated.”

43. This court therefore finds that service of process on
defendant was sufficient.

IV. Ohio Jurisdiction Over
Defendant/Husband for
Purposes of Support

44. Sufficiency of service of process as discussed above,
however, must be distinguished from the concept of in personam
jurisdiction.

45. Defendant/husband’s only contact with Ohio was when he lived
hele in 1991 as a student and met the plaintiff/wife, and his
brief visit of August 1994 on his way to live in Spain. The court
finds that these contacts are not sufficient to obtain in personam
over the defendant/husband for purposes of division of property
and support.

46. Defendant argues, however, that the count is without subject
matter jurisdiction. That is not the case. While lack of in per-
<* page 635> sonam jurisdiction over defendant narrows the relief
that may be awarded to plaintiff, it certainly does not eliminate
relief altogether. The action withstands defendant’s Civ.R
12(B)(6) challenge.

47. The court certainly has in rem jurisdiction over the marriage
of the parties in order to grant a legal separation and/or a
divorce. “A judgment in an action for divorce is in the nature of
a judgment in rem. It determines the question of marriage
relations, or of personal status, as agamst all the world, and is
therefore, conclusive, not only upon the parties litigating in the
cause, but upon strangers.” McGill v Deming (1887), 44 Ohio St.
645, 11 N.E. 118; Hager v Hager (1992), 79 Ohio App.3d 239, 607
N.E.2d 63. In rem jurisdiction therefore vests this court with
the authority either to divorce these parties validly or to
declare a legal separation.

48. However, with respect to financial issues, it is clear that
“[t]he existence of personal jurisdiction * * * depends upon the
presence of reasonable notice to the defendant that an action has
been brought * * * and a sufficient connection between the
defendant and the forum State to make it fair to require defense
of the action in the forum.” Kulko v. Superior Court of California
(1978), 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132, 141.
See, also, Hanson v Denckla (1958), 357 U. S. 235, 2~53, 78 S.Ct.
1228, 1240, 2 L.Ed.2d 1283, 1298, which stated: ” * * * it is
essential in each case that there be some act by which the
defendant purposefully avauls itself of the privilege of
conducting activities within the forum State[.]”

49 Since child support, spousal support, and division of property
are essentially money judgments, they cannot be made absent in
personam jurisdiction over the obliger. See Rice v Rice (1949),
336 U .S. 674; 69 S.Ct. 751, 93 L.Ed. 957, which found that an ex
parte decree of divorce cannot impose orders of support or alimony
where the court lacks personal jurisdiction over the defendant.
See, also, Armstrong v Armstrong (1954), 162 Ohio St. 406, 55 O.O.
234, 123 N.E 2d 267, and Brown v Pugh (June 29, 1989), Hancock
App. No. 5-87-45, unreported, 1989 WL 77017.

V. Ohio Jurisdiction for Custody Purposes

50. Defendant argues that the same principle that leaves the
court without authority to divide property or order support
operates to leave the court without jurisdiction to determine
parenting issues. The court disagrees. Ohio has jurisdiction to
make an allocation of parental rights and responsibilities in this
case notwithstanding this court’s lack of in personam jurisdiction
over defendant/husband for money issues. Ohio derives such
authority by virtue of R.C. 3109.04 and The Hague Convention.

A. OHIO REVISED CODE
3109.04 and UCCJA

51. Without question, Pasqualone u Pasqualane (1980), 63 Ohio
Stied 96, 17 O.O at 58, 406 N.E.2d 1121, at paragraph three of the
syllabus, held that presence in the state of the child and one
parent was not enough, by itself, to give an Illinois court
jurisdiction over the Ohio parent in a custody action.

“Ohio courts have placed a limitation upon the exercise of subject
matter jurisdiction * * * by holding that decisions impinging on
one’s right to custody are in personam in nature, and by requiring
that the court have personal jurisdiction over the parent whose
rights are being adjudicated. * * * In the context of a child
custody determination, as in other contexts, the in personam
nature of such cases has been held to require minimum contacts
with the state before jurisdiction over the person can be
exercised.” In re Brooks (Oct. 8, 1993), Lucas App. No. L-92152,
unreported, at *4, 1993 WL 403542

Case law has acknowledged, however, that although the defendant
must have minimum contacts with the forum for a valid custody
determination, the standard for such minimum contacts is somewhat
lower than those contacts required in order to impose a support
obligation on the defendant “AIthough the contacts required to
make a binding custody order may not need be as great as those
required to order a payment, more contact is required than would
be required in a divorce action.” Hostetler v. Kennedy (1990), 69
Ohio App.3d 299, 302, 590 N.E.2d <* [age 636> 793, 794, citing
Pasqualone v. Pasqualone, supra, 63 Ohio St.2d at 103, 17 O.O.3d
at 62, 406 N.E.2d at 1125-1126.

52. It is important to note that the decision in Pasqualone
followed very quickly after Ohio’s adoption of the UCCJA (R.C.
3109.21 through 3109.36), and in the years subsequent to
Pasqualone, it has grown clear that these statutory provisions and
the subsequent Parental Kidnaping Prevention Act of 1980 (the
“PKPA”), Pub.L. No. 96-611, 94 Stat. 3568 (1980), Section
1738A(a), Title 28, U.S.Code govern custody jurisdiction.

53. It is time to put to rest the Pasqualone decision, since at
the time Pasqualone and Hostetler were decided, Ohio law did not
mandate a parenting determination at the time a divorce or legal
separation was granted. However, with the adoption of S.B. No. 3,
which became effective April 11, 1991, it became mandatory for the
court to make a parenting determination in any divorce, legal
separation, or annulment proceeding in which there were minor
children. The language of R.C. 3109.04(A) is unequivocal and
provides:

“(A) In any divorce, legal separation, or annulment proceeding and
in any proceeding pertaining to the allocation of parental rights
and responsibilities for the care of a child upon hearing the
testimony of either or botl parents and considering any mediation
re port filed pursuant to section 3109.052 of the Revised Code and
in accordance with section 3109.21 to 3109.36 of the Revised Code,
the court shall allocate the parental rights an, responsibilities
for the care of the minor children of the marriage.” (Emphasis
added.)

54. R.C. 3109.04, of course, directs us to the allocation of
parental rights and responsibilities in accordance with R.C.
3109.21 l 3109.36, the Uniform Child Custody Julisdiction Act
(“UCCJA”), and R.C. 3109.22(A)(1), (2) or (4) specifically grants
custody jurisdiction to Ohio.

55. R.C. 2307.382, known as Ohio’s long arm statute, sets forth
situations that extent in personam jurisdiction, none of which
applicable to custody. However, R.C. 2307.385 specifically states:

“A Court of this state may exercise jurisdictionn on any other
basis authorized in the Revised Code notwithstanding sections
2307.381 to 2307.385, inclusive, of the Revised Code.”

Therefore it is clear that R.C. 3109.04, in conjunction with R.C.
2307.385, extends the long-arm jurisdiction to grant in personam
jurisdiction in all divorce cases with children, where application
of the UCCJA (R.C. 3109.22) indicates that custody jurisdiction is
appropriate.

56. There is no doubt that the commissioners of the UCCJA
themselves recognized this jurisdiction:

“There is no requirement for technical personal jurisdiction, on
the traditional theory that custody determination, as
distinguished from support actions * * * are proceedings affecting
status.” Comments following Section 12 of the UCCJA.

57. It is also clear that the state of Ohio has a compelling
interest to determine custody of all children within its
jurisdiction to ensure that the child’s needs, physically and
financially, and its health, safety, and welfare, are being met.
It is routine procedure that mothers come into the courts of Ohio,
where they reside with their children, to seek a divorce and
custody determination, although fathers may not have sufficient
contact with Ohio to determine money issues. Certainly, the very
presence of the child in Ohio, which meets the requirements of the
UCCJA, makes the necessity of a custody order clear. Mothers can
always seek child support through the Uniform Reciprocal
Enforcement of Support Act (“URESA”), Family Support Act of 1988,
Pub.L. No. 100-485, Section 126(d)(2), 102 Stat. 2354 (codified at
Section 666, Title 42, U.S. Code [1991], and as adopted in Ohio,
R.C. Chapter 3115).

B. The Hague Convention

58. While this court finds jurisdiction over the father for
custody under Ohio law, the court also finds that The Hague
Convention itself in this international custody dispute clearly
gives Ohio jurisdiction.

59. Since the UCCJA was enacted to mandate the cooperation of
sister states in interstate custody disputes, it is entirely in-
<* page 637> applicable to the international custody dispute at
hand. Uniform Child Custody Jurisdiction Act, Prefatory Note
(1988), 9 U.L.A. 117-118. There is no requirement, therefore,
given the inapplicability of the UCCJA to the international
context, that the court have in personam jurisdiction over a
defendant to make an allocation of parental rights and
responsibilities. While some states have extended the general
policies of the UCCJA to the international arena, Ohio has not
promulgated similar provisions in its adoption of the UCCJA. The
Parental Kidnapping Prevention Act (“PKPA”) is similarly
inapplicable to the instant case, since the purposes of the PKPA
include (1) the promotion of interstate cooperation, (2) the
interstate enforcement of custody decrees, and (3) the elimination
of competition over jurisdiction. Section 1738A, Title 28,
U.S.Code (Congressional Findings and Declaration of Purpose)
(1982).

60. The Hague Convention is the body of law which governs this
international custody dispute. The Hague Convention serves as the
primary means of enforcing custody rights on a global scale.
Senate Treaty Doc. No. 11, 99th Cong., 1st Sess., reprinted in 19
I.L.M. 1501 (1980). The goal of The Hague Convention is to
litigate the merits of the custody dispute in the place of the
child’s habitual residence.

61. Therefore, if the UCCJA is inapplicable and The Hague
Convention controls, there is no further inquiry into in personam
jurisdiction over defendant/husband. The court is, therefore, left
with the inescapably conclusion that in this matter as “[i]n any *
* * legal separation * * * the court shall allocate the parental
rights and responsibilities for the care of the minor children of
the marriage.” (Emphasis added.) R.C. 3109.04.

62. Thus, this court has jurisdiction to allocate parental rights
and responsibilities for Gabriela’s care when addressing the
merits of the case.

VI. Ohio is a Proper Forum and Venue

63. Defendant also urges that this court find itself an
“inconvenient forum.” That concept as set forth in this case is
not relevant as defined in R.C. 3109.25, which compares states,
not a state with a foreign country. Further, examination of the
facts in this case shows Gabriela and part of her family with a
closer connection with Ohio than her father has with Spain.
Plaintiff resides in Cuyahoga County and has no plans to leave. As
noted above, defendant’s employment requires him to travel
throughout Europe, and he returned to Spain only in 1994 from
employment in Mexico. Certainly substantial evidence concerning
Gabriela’s future care is not more readily available elsewhere.
If, as defendant argues, there is no venue here under Civ.R.
3(B)(1) through (9), venue is proper under Civ.R. 3(B)(10).
Defendant’s venue challenge lacks merit.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that defendant’s
motion to dismiss (No. 266863) is hereby denied. Defendant is
hereby granted a thirty-day leave to file his responsive
pleading(s).

So ordered.