Furnes v. Reeves
| Decision Date | 10 March 2004 |
| Docket Number | No. 03-12826.,03-12826. |
| Citation | 362 F.3d 702 |
| Parties | Tom A. FURNES, Plaintiff-Appellant, v. Pamela Kay REEVES, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Robert Luckett Lee, Dana Elizabeth Marty Haas, Alston & Bird, L.L.P., Atlanta, GA, for Plaintiff-Appellant.
Michael E. Manely, The Manely Law Firm, Marietta, GA, for Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TJOFLAT, HULL and FAY, Circuit Judges.
Plaintiff Tom A. Furnes filed a petition under the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11611 (1988) ("ICARA"), seeking the return of his daughter Jessica to Norway from Georgia, where she now resides with her mother, Defendant Pamela Kay Reeves. Jessica was born in Norway in 1996 and lived there until 2001, when her mother visited the United States and later refused to bring Jessica back to Norway, in violation of Furnes's rights under Norwegian law and their custody agreement. After an evidentiary hearing, the district court denied Plaintiff Furnes's ICARA petition. After review and oral argument, we reverse.
Plaintiff Furnes, a citizen and resident of Norway, and Defendant Reeves, a citizen and resident of the United States, were married in 1994 and resided in Norway. Their daughter Jessica was born on September 17, 1996, in Norway, and resided with both parents until they separated in January of 1998.
During and after their separation, Plaintiff Furnes and Defendant Reeves's relationship was marked by constant conflict, and they were unable to agree on the division of their assets or the custody of their daughter. Defendant Reeves maintained custody of Jessica during the separation, and commonly thwarted Plaintiff Furnes's attempts to exercise his visitation rights. Defendant Reeves also made serious allegations against Plaintiff Furnes (including that Furnes had physically threatened and abused Reeves and had poisoned Jessica), which were later determined to be groundless. In addition, in December of 1998, there was a fire in the home of Defendant Reeves (the couple's former joint home), and Defendant Reeves was charged with arson and insurance fraud. Although ultimately acquitted, Defendant Reeves was ordered to pay a large civil judgment in connection with the fire.
On August 25, 1999, the Bergen City Court in Norway entered an order granting Plaintiff Furnes custody of his daughter Jessica. The Bergen City Court found that there was little doubt that Defendant Reeves played the "leading part" in the conflict between the parties, that unrest in Reeves's life negatively affected her ability to care for her daughter, and that, in light of her previous "sabotage" of Furnes's scheduled visits, it was not realistic to believe that Defendant Reeves would be able to respect an agreement granting access rights to Furnes. The Bergen City Court specifically found as follows:
Production of evidence has shown that the level of conflict between the parties is high, and that there is little doubt as to that it is the defendant [Reeves] who is the leading part in this conflict. She emerges as the conflict instigator and has on several occasions made serious accusations against the plaintiff and other involved parties. These accusations have later proven to be completely groundless....
The court also finds grounds to comment that the defendant is presently involved in two cases with the plaintiff in two different courts: a dispute concerning a distribution of estate and the case concerning custody/access of the child. Moreover, she has been remanded in custody and is still charged with arson, insurance fraud and for filing false complaints. In spite of this she is also involved in and has hired attorneys for a private legal dispute in connection with the purchase of a dog. Thus there is much unrest involved with her and this has undoubtedly a negative affect in regards to the care of the child.
The defendant has furthermore shown a negative attitude to cooperating with the plaintiff concerning already determined access.... In this connection the court refers to that the defendant in several occasions has sabotaged the visits that have been determined by legally enforceable and provisional decisions concerning access....
It is the court's opinion that this episode clearly shows that the defendant has problems respecting the child's rights and protecting the child from conflicts between the parties. As maintained by the expert, the defendant can not differentiate between her own fears and skepticism and the child's fears and skepticism. Another situation that the court would like to mention in this connection is the episode that took place at the home of the plaintiff, where the defendant, in the presence of the expert, provoked a conflict with the plaintiff, knowing that the expert was preparing his report to be used in the upcoming case.
The court is not in doubt that continuous conflicts at this level over a period of time will be harmful for the child.
In contrast, the Bergen City Court found, based in part on the testimony of the psychiatrist assigned as the case expert, that Plaintiff Furnes was an understanding and cooperative parent and was able to offer Jessica a secure home. On that basis, the Bergen City Court concluded that, notwithstanding Jessica's primary attachment to her mother, Furnes was best suited to maintain custody of Jessica, as follows:
The court agrees with the expert that the plaintiff is the party that emerges as the best suited person to care for Jessica, also taking into consideration the conflicts and cooperation problems between the parties. In the court's opinion, a transfer of custody to the plaintiff in itself might reduce the possibilities for conflicts and thereby create more peace and quiet for the child. The plaintiff has shown that he is more aware of the child's situation in relation to the conflict than the defendant is, and there is little reason to believe that his negative attitude towards the other party will hinder the child from having contact with her mother. In this connection the court finds reason to refer to the following from the expert's report....
Having concluded that Plaintiff Furnes was the more fit parent, the Bergen City Court granted custody of Jessica to her father, Plaintiff Furnes, and mere access rights to her mother, Defendant Reeves. Specifically, the Bergen City Court ordered that Jessica live with her father and that Defendant Reeves have access to Jessica on alternating weekends; alternating Wednesdays; alternating Christmas, New Year, and Easter holidays; and for two weeks over Jessica's summer vacation.
Defendant Reeves appealed the August 25, 1999, judgment of the Bergen City Court to the Norwegian Gulating Court of Appeals. In 2001, the parties reached an agreement regarding custody (the "Agreement"), which was approved by the Gulating Court, and the appeal was dismissed. Pursuant to the Agreement, dated February 28, 2001, the parties would maintain "joint parental responsibility" for their daughter under Norwegian law; Jessica would live with her mother; and her father would have access to their daughter on certain days and at certain times. Specifically, the Agreement provided in relevant part as follows:
1. Today a court settlement has been entered into between Pamela Kay Reeves, date of birth and Nation ID No. 24.02.69 25270, hereinafter called the mother, and Tom Arne Furnes, date of birth and National ID No. 23.12.67 45788, hereinafter called the father.
2. The agreement concerns our child, Jessica Anne Kristine Furnes, date of birth and National ID No. 17.09.96 38072, hereinafter called the daughter.
3. We shall have joint parental responsibility for our daughter.
4. The daughter shall live with her mother, who shall have custody of the child.
5. The father shall have the following access to the daughter:
a) Alternating weeks from Thursday at 4 pm to Monday morning when the daughter is to be brought at school (kindergarten).
b) Alternating fall vacations. During the fall vacation 2001 the daughter shall be with the mother.
c) Alternating Christmas vacations. During the Christmas vacation 2001 the daughter shall be with the father.
d) Alternating Easter vacations. During the Easter vacation 2001, from April 9, 2001 to April 17, 2001, the daughter shall be with the father.
e) Three weeks during the summer, whereof two of the weeks shall be consecutive. Summer vacations shall be agreed upon within May 1st of every year. In regards to the 2001 summer vacation, the mother shall decide when she wants to have her vacation and thereafter the two parents shall alternately decide their vacations every other year within May 1st.
6. The parents have further agreed to cooperate loyally for the best for their daughter, ensuring that this agreement and what it confirms can be carried out. (Emphasis added.)
The term "joint parental responsibility" used in the Agreement has a designated meaning under Norwegian law. Thus, in addition to access rights, Plaintiff Furnes had additional rights associated with "joint parental responsibility" under Norwegian law. Specifically, under Norway's Act No. 7 of 8 April 1981 relating to Children and Parents (the "Children Act"), parental responsibility is broadly...
To continue reading
Request your trial
-
Bernal v. Gonzalez, MO–12–CV–00091–DC.
...the abducting parent hides the child is consistent with the purpose of the Convention to deter child abduction.”); Furnes v. Reeves, 362 F.3d 702, 723–24 (11th Cir.2004); Van Driessche v. Esezeoboh, 466 F.Supp.2d 828, 850 (S.D.Tex.2006). In Dietz the district court applied equitable tolling......
-
Abbott v. Abbott
...942, 949 (C.A.9 2002). The Court of Appeals for the Eleventh Circuit has followed the reasoning of the Croll dissent. Furnes v. Reeves, 362 F.3d 702, 720, n. 15 (2004). Certiorari was granted to resolve the conflict. 557 U.S. 933, 129 S.Ct. 2859, 174 L.Ed.2d 575 (2009).560 U.S. 8 IIThe Conv......
-
Cook v. United States, CASE NO. 14-20827-Civ-MORENO
...nor has he demonstrated due diligence arising from the failure to promptly pursue this claim. See Diaz v. Sec'y for Dep't of Corr., 362 F.3d 702, n.7 (11th Cir. 2004). With the passage of the Antiterrorism and Effective Death Penalty Act, litigants must be attentive to the time limitations ......
-
Lozano v. Montoya Alvarez
...(C.A.1 2013) (same), with Duarte v. Bardales, 526 F.3d 563, 568–570 (C.A.9 2008) (equitable tolling available); and Furnes v. Reeves, 362 F.3d 702, 723–724 (C.A.11 2004) (same). We hold that equitable tolling is not available, and therefore affirm.III Although this case concerns the applica......