USA – SC – KEANE – 1991

STATE OF SOUTH CAROLINA ) IN THE FAMILY COURT FOR THE) FIFTH JUDICIAL CIRCUIT
COUNTY OF RICHLAND ) 91-DR-40-0667
)
PATRICIA MARY KEANE, )
)
Plaintiff, )
)
-vs- ) ORDER
)
STEPHEN BRADLEY )
COURTWRIGHT, JUDY )
WEESNER AND KATHERINE )
COURTWRIGHT, )
)
Defendants. )
_________________________ )

This matter came to be heard before me on March 29, 1991 for
an evidentiary hearing to determine if the minor child Trevor
Courtwright has been wrongfully retained in this country and must
therefore be returned to his home in London, England pursuant to
the Hague Convention on the Civil Aspects of international Child
Abduction (hereinafter “the Hague Convention”). For the reasons
set forth below, I find and conclude that the Plaintiff-mother is
entitled to an Order requiring the child to be returned to the
United Kingdom forthwith and also entitled to an award of her
reasonable expenses, attorney’s fees and other costs.

THE ACTION

This action, reportedly the first of its kind in South
Carolina under the Hague Convention, was commenced on February
19, 1991 by the filing of a Pendente Lite Motion, Summons and
Complaint by the Plaintiff-mother seeking an Order requiring
Defendants to immediately surrender Trevor to his mother so as to
allow his return to Great Britain and for the costs, legal fees
and expenses she incurred in having to bring this action. On
March 13, 1991, a pendente lite hearing was held at which time
Defendants filed a Return to Motion for Immediate Relief
requesting that the mother’s Motion be denied and that the case
be allowed to proceed to an evidentiary hearing on the merits of
a legal custody case.

At that time, this Court heard argument from counsel for
both parties for approximately one (1) hour and thereafter, on
March 14, 1991, held an additional conference for 45 minutes in
chambers with counsel for all of the parties. Because of the
importance of the relief sought, and the fact that this is a case
of first impression in this jurisdiction, the parties agreed to
reconvene for an evidentiary hearing on March 29, 1991, at which
time the parties would be allowed to present testimony and other
evidence on the sole issue of whether the child had been
wrongfully retained in South Carolina and, if so, whether any of
the exceptions to mandatory return listed in the Hague Convention
applied.

Present in the courtroom at the call of the case were the
Plaintiff, Patricia Mary Keane, along with her attorneys Harvey
L. Golden, Esq., and J. Michael Taylor, Esq. Defendants Stephen
Bradley Courtwright, Judy Weesner and Katherine Courtwright were
also present along with their counsel, Francis T. Draine, Esq.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

After having heard the testimony of the Plaintiff Patricia
Keane, the Defendant Stephen Courtwright and the Defendant Judy
Weesner as well as having considered all of the exhibits accepted
into evidence, I make the following findings of salient fact and
conclusions of law:

Background Facts

1. Patricia Mary Keane and Stephen Bradley Courtwright were
never married to each other but are the natural parents of Trevor
Stephen Courtwright, who was born November 15, 1987 in Central
Middlesex Hospital, London, England. The minor child was an
habitual resident of London, England with his mother from the
time of his birth until October 21, 1991. Plaintiff has been a
resident of London, England, since before the birth of her son
and remained a resident thereof as of the time of the
commencement of this action.

2. Defendant Stephen Courtwright was also a resident of
London, England prior to the birth of his son and for
approximately three years thereafter lived with Trevor and
Trevor’s mother until he moved out of their home. On October 21,
1990 at a time when the father, Mr. Courtwright was no longer
residing with Plaintiff or their son, he asked Ms. Keane for
permission to take Trevor with him to the United States for a
visit with his family but to be returned prior to Trevor’s third
birthday, which was November 15, 1990. Upon being shown an
airplane ticket indicating that a return flight for Trevor was
reserved for November 14, 1990, Ms. Keane agreed to allow Trevor
to accompany his father to the United States.

3. Upon his arrival in this country, Trevor was immediately
taken to Columbia, South Carolina and remained there since that
time. He was not returned, as promised, on his birthday nor, as
later promised, by Christmas. Mr. Courtwright himself testified
that it was not until he came back to the United States that he
decided that the comparative living conditions were such that he
decided that the child would have a better life in this country.

4. By a letter from the father to the mother, dated January
18, 1991, Mr. Courtwright told Ms. keane that he was “not exactly
sure if and when [he would] be able to bring Trevor back.” The
only reasons cited by Mr. Courtwright in this letter for the
change in the plans were (1) the opportunity for Trevor to
experience a different lifestyle, (2) that Trevor and Mr.
Courtwright “both have so many more possibilities here”,
including Mr. Courtwright’s chances for regular employment, and
(3) the opportunity for Trevor to see members of his American
family. No fear was expressed that, if he were returned, Trevor
would be in danger of physical or even psychological harm nor was
there any criticism of the way Trevor had been cared for all his
life by his mother prior to his trip to the United States. It
was, instead, a unilateral decision made by Mr. Courtwright
without consulting the child’s mother which represents no more
than a difference of opinion as to the child’s best interests,
one which did not occur to the father until after he had taken
the child from his homeland.

The Hague Convention

5. On April 29, 1988 the United States Senate ratified the
Convention on the Civil Aspects of International Child Abduction
(the “Hague Convention”). This international treaty, to which
the United Kingdom is also a party, was adopted out of a

[d]esir(e) to protect children internationally
from the harmful effects of their wrongful
removal or retention and to establish
procedures to ensure their prompt return to
the State of their habitual residence, as well
as to secure protection for rights of access.
Hague Convention Preamble

6. The United States, as a Contracting State under the
Treaty, is required to “take all appropriate measures to secure
within [its] territories the implementation of the objects of the
Convention” and, for this purpose, ” they shall use the most
expeditious procedures available. Hague Convention, Article 2.

7. To implement this treaty, Congress passed the
International Child Abduction Remedies Act, 42 U.S.C. Secs
11601-11610 (1989). Section 11601(a)(2) of that Act expressly
states a Congressional finding that “[p]ersons should not be
permitted to obtain custody of children by virtue of their
wrongful removal or retention.”

Jurisdiction

8. 42 USC 11603(a) provides that the Courts of the States
and the United States District Courts shall have concurrent
original jurisdiction over actions arising under the Convention.
Subsection (b) of that same section provides that:

Any person seeking to initiate judicial
proceedings under the Convention for the
return of a child or for arrangements for
organizing or securing the effective exercise
of rights of access to a child may do so by
commencing a civil action by filing a petition
for the relief sought in any court which has
jurisdiction of such action and which is
authorized to exercise its jurisdiction in the
place where the child is located at the time
the petition is filed.

Most importantly, Sec. 11603(d) provides that “the court in which
an action is brought under subsection (b) shall decide the case
in accordance with the Convention. (emphasis added). Local Law
regarding ultimate issues of custody are inappropriate and
irrelevant:

The basic approach of the Convention is to
require the prompt return of a child under
sixteen and essentially to restore the status
quo before the wrongful removal or retention
occurred, thereby making such actions legally
fruitless and serving as a deterrent. It does
not provide for any judgment on the merits on
the conflicting custody claims or for
enforcement of a foreign custody decree. It
provides for return whether [or not] there is
a custody decree in favor of the left-behind
parent. In other words, no custody decree
need be issued before the abduction/retention,
or thereafter, for the return obligation of
the Convention to apply.

Pfund, “The Hague Convention on International Child Abduction”.
Family Law Quarterly, Vol. XXIV, Number 1, Spring 1990 at page 39
(emphasis added) (A copy of this article is attached). [SYSOP’s
Note: This article is no included and is currently not in the
data base]

Wrongful Retention

9. Whether a child’s removal or retention in another
country is wrongful is determined by the law of the country where
the child is from, not where he has been abducted to.
Specifically, the Hague Convention provides that the retention is
wrongful where “it is in breach 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.”
Hague Convention, Article 3, Section a..

10. Here, Trevor Courtwright was born in London, England,
where he resided his entire life with his mother prior to his
trip to the United States with his father and he therefor must be
considered an “habitual resident” of the United Kingdom.

11. Under British common law, it is the mother who had sole
custody of an illegitimate child. This principal was codified by
the law of England and Wales, Sec. 85(7) of Part V of the
Children Act of 1975, which states that, “while the mother of an
illegitimate child is living she has the parental rights and
duties exclusively.” Id.1

Mandatory Return

12. The first issue for this Court to decide is whether
Trevor is wrongfully retained within the meaning of the
Convention, which issue Plaintiff-mother has the burden of
proving by a preponderance of the evidence 42 U.S.C. Sec.
11603(e)(A). As stated above, Trevor is clearly wrongfully
retained against the will of the one individual who has the
exclusive right to custody of the child: his mother. If return
proceedings are commenced within one year of the wrongful removal
or retention, the return obligation is absolute:

Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the
date of the commencement of the proceedings
before the judicial or administrative
authority of the Contracting State where the
child is, a period of less than one year has
elapsed from the date of the wrongful removal
or retention, the authority concerned shall
order the return of the child forthwith. Hague
Convention Article 12

13. There is no question that this is an action in which
the minor child, Trevor, has been wrongfully retained after his
father brought him to this country ostensibly for a short visit.
Stephen Courtwright himself stated in a letter to the child’s
mother dated January 18, 1991 that “…I’m not sure exactly if
and when I’ll be able to bring Trevor back”. (See Affidavit of
Plaintiff-mother). The only reasons given for such “change in
the plans” are Defendant’s desire for the child to see his
grandparents and to allow “Trevor to experience a different
lifestyle than he had an opportunity for in England”. No
life-threatening emergency is cited nor is there any concern
voiced about his being mistreated while in his mother’s care. The
only reason for his retaining the child against the mother’s
——————–
1. In fact, even under South Carolina law Plaintiff mother has sole custody
of an illegitimate child. S.C. Code of Laws, Sec. 20-7-953 (B) (1984).
——————–

objection is “because he and I [Stephen Courtwright] both have so
many more possibilities here”. Simply put, the child’s father
has confused his own interests with that of the minor child’s and
has completely ignored the mother’s superior rights under English
law by taking unfair advantage of his superior economic position,
forcing Ms. Keane to come to this country to fight for her son.

Exceptions to Mandatory Return

14. A respondent who opposes the return of the child has
the burden of establish that one of the court exceptions to
mandatory return, as listed in the Hague Convention, apply. Two
of those exceptions, set forth in Article 13b and 20, must be
established by a high standard of proof, clear and convincing
evidence, that they apply. 42 USC Sec. 1103 (e) (2) (A).
Defendants have filed to meet this heavy burden.

15. Specifically, the provision contained in Article 13(b)
of the Convention states that the Court is not bound (but may
nonetheless choose) to order the return of the child if thee 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. Again, the father’s letter of January 18,
1991 fails to even suggest that there is any risk, grave or
otherwise, that the child would be exposed to any harm whatsoever
if he were returned to his mother. However, by challenging
Plaintiff’s right to recover Trevor the Defendants caused this
Court to set an evidentiary hearing out of an abundance of
caution.

16. Further, the provision of Article 20 is equally
inapplicable as it states:

The return of the child under the provisions
of Article 12 may be refused if this would not
be permitted by the fundamental principles of
the requested State relating to the protection
of human rights and fundamental freedoms.

Defendants have not even suggested that this Court should refuse
to return this child to Great Britain on the grounds hat Her
Majesty’s Government could not adequately protect its citizens’
human rights and fundamental freedoms.

17. The other exceptions, set forth in Article 12 and
Article 13b, are under a lower standard of proof (preponderance
of the evidence) but also do not apply to this case. The first,
set forth in Article 12, provides that a child who has been
wrongfully retained for a period of more than one year shall
nonetheless be returned unless it can be demonstrated that the
child “is no settled in its new environment”. Trevor has been in
this country no more than six months. [SYSOP’s Note: The
reference to Article 13b is in error; Subsection (b) deals only
with grave risk and/or intolerable situations. (a) and the other
unlettered sections may apply. Further, even though a child has
been present for a year or more and has settled in, the court
still has the discretion to return the child. It is not mandatory
to retain the child under these circumstances.]

18. The other exception, contained in Article 13a, states
that the court is not bound to order the return of a child (but
may nonetheless do so) if it is established that the
Plaintiff-mother was not actually exercising custody rights at
the time of removal or that she had subsequently consented or
acquiesced in the retention. This exception clearly does not
apply here because (1) it is uncontroverted that Ms. Keane had
custody of Trevor prior to his trip to the United States,
(indeed, Mr. Courtwright specifically asked her permission to
take him over here), (2) Ms. Keane adamantly stated in open Court
that she wanted her son back, and (3) Ms. Keane acted promptly in
contacting the British Central Authority in invoking the
protections of the Hague Convention.

19. For the foregoing reasons, I find as a fact that Trevor
Courtwright has been wrongfully retained in the United States by
his father, aided and abetted by his grandmother, Defendant Judy
Weesner, and his Aunt, Defendant Katherine Courtwright, and that
no exceptions to mandatory return of the child to England have
been established. As a result, this Court is required to order
that the child be returned to his mother forthwith.

PAYMENT OF FEES AND COSTS

20. 42 U.S.C. Sec. 11607(b) (3) provides:

Any court ordering the return of a child
pursuant to an action brought under section 4
[11603 of this Title] shall order the
Respondent to pay necessary expenses incurred
by or on behalf of the petitioner, including
court costs, legal fees, foster home or other
care during the course of proceedings in the
action, and transportation costs related to
the return of the child, unless the respondent
establishes that such order would be clearly
inappropriate. [Emphasis added]

Plaintiff-mother has limited financial means and had to borrow
funds to obtain possession of her child by this action. Her
attorneys have successfully obtained the return of the child and
defended against the father’s efforts to litigate the underlying
custody claim. Further, the Defendant has failed to show that an
award of fees and costs would be clearly inappropriate. As a
result, this Court is required to Order the payment of all of her
fees and expenses, including reasonable attorney’s fees and
private investigator costs, given the relative financial standing
of the parties and the wrongful retention of the child in this
country by the father. [SYSOP’s Note: An argument can and
should be made that these fees are remedial in nature and that
ability to pay is not an issue. See file HAGUEFEE.ASC for more
information on this point.]

21. I find the nature, extent and difficulty of the
services rendered by Plaintiff’s counsel to have been
considerable. This was a case of first impression in this
jurisdiction and involved novel issues including the application
of international, British and American Federal law in a South
Carolina State Family Court setting which included defending the
position that this Court should not determine the underlying
merits of the custody dispute. [SYSOP’s Note: See Article 16
which prohibits a court from litigating on the merits while this
matter is before the court.]

22. I further find the time and labor devoted to the case
by Plaintiff’s counsel t have been appropriate given the fact
this case involve two separate hearings totaling more than four
hours of in-court time, as well as pre-trial conferences with
this Court with opposing counsel as well as with the American and
British authorities, including Plaintiff’s counsel in London and
the United States Department of State, which requested the help
of the Golden Law Firm in bringing this action without advance
retainer. Also, it was necessary for them to prepare their case
at long-distance, acquire affidavits to proffer to the Court, and
prepare their client on short notice to testify and fact
Defendant’s lawyer’s cross-examination. In light of these
factors,I find it reasonable for Plaintiff’s attorneys t have
spent 36.45 hours up to the day before trial, as reflected in the
detailed accounting presented to the Court, as well as an
additional six (6) hours for each attorney on the day of trial
for trial preparation and given to the Court in evidence, without
objection.

23. I find the professional standing of Plaintiff’s counsel
to be high. Mr. Golden is immediate past national chairman of
the Family Law Section of the American Bar Association, is listed
“a.v.” in the Martindale Hubbell directory and he teaches CLE
seminars throughout the State and country in Family Law matters
to lawyer, judges, educators and laymen, and is current Treasurer
of the International Academy of Matrimonial Lawyers. Mr. Taylor
has practiced law since 1980, has been editor of the Family
Lawyer, the Newsletter of the South Carolina Bar Family Law
Section, is a form Special Assistant United States Attorney and
since 1987, has devoted approximately ninety-five (95%) percent
of his time to practicing domestic relations law with Mr. Golden.
I find the Two Hundred Twenty Five ($225.00) Dollar per hour rate
for Mr. Golden and One Hundred Twenty ($120.00) Dollar per hour
rate for Mr. Taylor to be reasonable and appropriate to those
fees customarily charged in this locality for similar legal
services.

24. Defendant’s financial declaration shows he earns over
$1,000 per month in net income and was able to pay his own
attorney a retainer of $1,000.00 prior to his testimony in Court.
Given Plaintiff’s poverty at the time of the trial, as shown by
her financial declaration filed with the Court, and as emphasized
by the Defendants themselves, it is very doubtful Plaintiff’s
counsel will be compensated at all, if not by Mr Courtwright.
Given the fat that Mr Courtwright must pay his own expenses, as
well as Ms. Keane’s, the Court feels that some adjustment in
attorney’s fees is appropriate. [SYSOP’s Note: One might wish
to consider joining others, here the grandparents and the Aunt,
pursuant to 9 Uniform Laws Annotated 10, which requires joinder
whenever there are others who claim custody. Once joined they
could be available for attorney fees and costs. One wonders why,
in this case, the court did not order fees against the other
defendants.]

25. Based upon the foregoing, I find and conclude that
Defendant, Stephen Courtwright, should be required to contribute
Two Thousand Five Hundred ($2,500.00) Dollars towards Plaintiff’s
attorneys’ fees, to be paid within sixty (60) days from the date
of this order.

26. Further, as of March 29, 1991, expenditures have been
made by or on behalf of the Plaintiff as follows:

Airline Ticket $564.00
Hotel (10 days @ $35/day) 350.00
Meals (10 days @ $10/day) 100.00
Filing Fee 50.00
Service of Process 609.25 2
——————–
2. According to the Affidavit of the private investigators submitted at the
first hearing o this matter, most of these expenses were incurred in
locating Mr. Courtwright after his sister, the person with whom he
testified he and Trevor resided, told the private investigator that neither
Mr. Courtwright nor Trevor lived at her address. Mr. Courtwright was, in
fact, served with process at that location and later testified that both he
and Trevor lived at that address with that sister, who is the third named
Defendant herein.
——————–

TOTAL: $1,673.25

Such expenses and costs shall, together with the attorney’s fees
set forth, shall be paid directly to the Law Offices of Harvey L.
Golden, P.A., counsel for Plaintiff, within sixty (60) days from
the date of this Order, as herein expressed.

DISPOSITION

Base don the foregoing Findings of Fact and Conclusions of
Law,

IT IS ORDERED that Defendant Stephen Bradley Courtwright
shall forthwith surrender the minor child Trevor to Plaintiff
Patricia Mary keane, along with his passport, return airplane
ticket and clothing for his return to the United Kingdom.

AND IT IS FURTHER ORDERED that Defendant Stephne Bradley
Courtwright shall pay the costs and expenses set forth above.

AND IT IS SO ORDERED

/s/ Jamie F. Lee

JAMIE F. LEE, PRESIDING JUDGE
THE FAMILY COURT OF THE FIFTH
JUDICIAL CIRCUIT

AT CHAMBERS
Bennettsville, South Carolina
April 16, 1991.