Feder v. Evans-Feder

• Citation: 63 F.3d 217
• Decision Date: 24 August 1995
• Docket Number: EVANS-FEDER,No. 94-2176,94-2176
• Parties: Edward M. FEDER, Appellant, v. Melissa Ann
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 217

63 F.3d 217

64 USLW 2106

Edward M. FEDER, Appellant, v. Melissa Ann EVANS-FEDER.

No. 94-2176.

United States Court of Appeals Third Circuit.

Argued June 27, 1995.

Decided Aug. 8, 1995.

Rehearing and Rehearing In Banc Denied

Aug. 24, 1995.

Ann G. Verber (argued), Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, PA, for appellant.

Norman Perlberger (argued), Perlberger Law Associates, Bala Cynwyd, PA, for appellee.

Before: MANSMANN, GREENBERG and SAROKIN, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this case of first impression for this circuit, we have before us a petition filed by one parent against the other under the Hague Convention on the Civil Aspects of International Child Abduction. Edward M. Feder asserts that Melissa Ann Evans-Feder "wrongfully retained" their son, Charles Evan Feder ("Evan"), in the United States and requests that Evan be returned to him in Australia. Concluding that the United States was Evan's "habitual residence", Hague Convention, Article 3a, the district court held that the retention was not wrongful and denied Mr. Feder's petition.

We, however, conclude that Australia was Evan's habitual residence and hold that Mrs. Feder's ¹ retention of Evan was wrongful within the meaning of the Convention. We will therefore vacate the district court's denial of Mr. Feder's petition and remand the case for a determination as to whether the exception that Mrs. Feder raises to the Convention's general rule of return applies to preclude the relief Mr. Feder seeks.

I.

We begin by reviewing the evidence presented in this case. The facts as found by the district court leading to Mrs. Feder's retention of Evan are not in dispute.

Mr. and Mrs. Feder are American citizens who met in 1987 in Germany where each was working: she as an opera singer, and he as an employee of Citibank. Evan, their only child, was born in Germany on July 3, 1990.

In October, 1990, the family moved to Jenkintown, Pennsylvania because Mr. Feder had accepted a management position with CIGNA in Philadelphia. When CIGNA terminated Mr. Feder's employment in June of 1993, he began exploring other employment opportunities, including a position with the Commonwealth Bank of Australia. Although Mr. Feder greeted the possibility of living and working in Australia with enthusiasm, Mrs. Feder approached it with considerable hesitation. Nonetheless, that August, the Feders traveled to Australia to evaluate the opportunity, and while there, toured Sydney, the city where Mr. Feder would work if he were to accept the position with Commonwealth Bank. They spoke with Americans who had moved to Australia, consulted an accountant about the financial implications of living in Australia and met with a relocation consultant and real estate agents regarding housing and schools. Mrs. Feder also spoke with a representative of the Australia Opera about possible employment for herself.

In late August or early September of 1993, the Commonwealth Bank offered Mr. Feder the position of General Manager of its Personal Banking Department. Finding the offer satisfactory from a professional and financial standpoint, Mr. Feder was prepared to accept it. Mrs. Feder, on the other hand, was reluctant to move to Australia. She had deep misgivings about the couple's deteriorating marital relationship; in October, 1993, she consulted with a domestic relations attorney regarding her options, including a divorce. Nevertheless, for both emotional and pragmatic reasons, Mrs. Feder decided in favor of keeping the family together and agreed to go to Australia, intending to work toward salvaging her marriage.

Upon Mr. Feder's acceptance of the bank's offer, the Feders listed their Jenkintown house for sale and sold numerous household items that would not be of use in Australia. Toward the end of October, 1993, Mr. Feder went to Australia to begin work. Mrs. Feder remained behind with Evan to oversee the sale of their house in Jenkintown; Mr. Feder, in the meantime, looked for a house to buy in the Sydney area, sending pictures and video tapes of houses to Mrs. Feder for her consideration. In November of 1993, Mr. Feder purchased, in both his and Mrs. Feder's name, a 50% interest in a house in St. Ives, New South Wales, as a "surprise birthday present" for his wife. ²

Mr. Feder returned to Pennsylvania on December 13, 1993. Even though the Jenkintown house had not sold, Mr. Feder arranged for a moving company to ship the family's furniture to Australia and bought airline tickets to Australia for Mrs. Feder and Evan. The Feders left for Australia on January 3, 1994, where they arrived on January 8, 1994, after stopping briefly in California and Hawaii. Mrs. Feder was ambivalent about the move; while she hoped her marriage would be saved, she was not committed to remaining in Australia.

Once in Australia, the Feders finalized the purchase of their St. Ives house, but lived in a hotel and apartment for about four and one-half months while Mrs. Feder supervised extensive renovations to the house. Evan attended nursery school three days a week and was enrolled to begin kindergarten in February, 1995. Mrs. Feder applied to have Evan admitted to a private school when he reached the fifth grade, some seven years later. Although Evan is not an Australian citizen and was not a permanent resident at the time, Mrs. Feder represented to the contrary on the school application.

In an effort to acclimate herself to Australia, Mrs. Feder pursued the contacts she had made during the Feders' August, 1993 trip and auditioned for the Australian Opera Company. She accepted a role in one of the company's performances set for February, 1995, which was scheduled to begin rehearsals in December, 1994.

Mr. Feder changed his driver's license registration from Pennsylvania to Australia before legally obligated to do so and completed the paperwork necessary to obtain permanent residency for the entire family; Mrs. Feder did not surrender her Pennsylvania license nor submit to the physical examination or sign the papers required of those seeking permanent residency status. All of the Feders obtained Australian Medicare cards, giving them access to Australia's health care system.

According to Mrs. Feder, her marriage worsened in Australia. In the early spring of 1994, she and Mr. Feder discussed her unhappiness in the marriage as well as her desire to return to the United States. Mr. Feder attributed the couple's difficulties to the stress of his new job and requested that Mrs. Feder stay in Australia, anticipating that their problems would subside once the family moved into their new home. Once again, for both personal and practical reasons, Mrs. Feder agreed.

The family moved into the St. Ives home in May, 1994; the Feders' relationship, however, did not improve. Ultimately, Mrs. Feder decided to leave her husband and return to the United States with Evan. Believing that Mr. Feder would not consent to her plans if her true intent were known, Mrs. Feder told Mr. Feder that she wanted to take Evan on a visit to her parents in Waynesboro, Pennsylvania in July. Mr. Feder made arrangements for the trip, buying two round-trip tickets for departure to the United States on June 29 and returning to Australia on August 2.

Mrs. Feder and Evan left Australia as scheduled and upon their arrival in the United States stayed with her parents. In July, 1994, Mr. Feder traveled to the United States on business, and arranged to meet his wife and son at their still unsold house in Jenkintown. When Mr. Feder went to the house on July 20, 1994, he was served with a complaint that Mrs. Feder had filed in the Court of Common Pleas of Montgomery County, Pennsylvania on July 14, 1994, seeking a divorce, property distribution, custody of Evan and financial support. Shortly thereafter, Mr. Feder returned to Australia and Mrs. Feder and Evan moved into the Jenkintown house.

In September, 1994, Mr. Feder commenced a proceeding in the Family Court of Australia in Sydney, applying for, inter alia, declarations under the Hague Convention on the Civil Aspects of International Child Abduction. On October 4, 1994, the Judicial Registrar of the Family Court of Australia heard argument and issued an opinion declaring that Evan, Mr. Feder and Mrs. Feder were habitual residents of Australia immediately prior to Mrs. Feder's retention of Evan in the United States; that Mr. Feder had joint rights of custody of Evan under Australian law and was exercising those rights at the time of Evan's retention; and that Mrs. Feder's retention of Evan was wrongful within the meaning of the Convention. ³

On September 28, 1994, Mr. Feder commenced this action against Mrs. Feder by filing a petition pursuant to the Convention in the United States District Court for the Eastern District of Pennsylvania, alleging that his parental custody rights had been violated by Mrs. Feder's "wrongful removal and/or retention" ⁴ of Evan and requesting the child's return. Mrs. Feder opposed the petition, denying that Evan's removal from Australia and retention in the United States were wrongful and asserting that even if they were, Evan cannot be returned to Australia because there is a "grave risk" that his return will expose him to "physical or psychological harm" or place him in an "intolerable situation."

On October 14, 1994, the district court conducted an evidentiary hearing and on October 31, 1994, issued an opinion and order denying Mr. Feder's petition. Feder v. Evans-Feder, 866 F.Supp. 860 (E.D.Pa.1994). Concluding that Mr. Feder failed to prove that "Evan's habitual residence in the United States as of January 8, 1994 had changed to Australia by the time Mrs. Feder refused to return him from Pennsylvania in the summer of 1994[,]" the court held that "the habitual residence of Charles Evan Feder is in the United States and that his mother has not wrongfully retained him here." Id. at 868. The court's...