Ahmed v. Ahmed

• Decision Date: 16 August 2017
• Docket Number: No. 16-6486,16-6486
• Citation: 867 F.3d 682
• Parties: Faisal AHMED, Petitioner–Appellant, v. Mardia Mohsin AHMED, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

867 F.3d 682

Faisal AHMED, Petitioner–Appellant,

v.Mardia Mohsin AHMED, Respondent–Appellee.

No. 16-6486

United States Court of Appeals, Sixth Circuit.

Argued: June 15, 2017

Decided and Filed: August 16, 2017

Rehearing Denied September 1, 2017

ARGUED: John T. Winemiller, MERCHANT & GOULD P.C., Knoxville, Tennessee, for Appellant. Linda Shay Gardner, GARDNER LAW OFFICE, Bethlehem, Pennsylvania, for Appellee. ON BRIEF: John T. Winemiller, R. Bradford Brittian, MERCHANT & GOULD P.C., Knoxville, Tennessee, for Appellant. Linda Shay Gardner, GARDNER LAW OFFICE, Bethlehem, Pennsylvania, for Appellee.

Before: COLE, Chief Judge; GIBBONS and ROGERS, Circuit Judges.

COLE, C.J., delivered the opinion of the court in which ROGERS, J., joined, and GIBBONS, J., joined in the result. GIBBONS, J. (pp. 691–92), delivered a separate opinion concurring in the judgment.

OPINION

COLE, Chief Judge.

This is an action under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), which the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001 et seq. , has implemented into United States law. Faisal Ahmed claims that his wife, Mardia Mohsin Ahmed wrongfully retained their daughters in Knoxville, Tennessee, from the infants' habitual residence of the United Kingdom.¹ Mr. Ahmed filed a petition for their return. Because Mr. Ahmed has failed to establish that the United Kingdom was the children's habitual residence at the time Mrs. Ahmed retained them, we affirm the district court's denial of his petition.

I. FACTS AND PROCEDURAL HISTORY

Mr. Ahmed is a citizen of the United Kingdom and resides in London. Mrs. Ahmed is a United States citizen and resides in Knoxville, Tennessee.

The couple married in Bangladesh in December 2009. At the time, Mr. Ahmed lived in London and Mrs. Ahmed was an optometry student in Michigan. After the wedding, Mrs. Ahmed remained in Michigan to complete her studies. Mr. Ahmed visited periodically from London.

In August 2011, Mrs. Ahmed moved to London to live with her husband. She obtained a visa, began working, and took steps to become licensed to practice optometry in the United Kingdom. That September, Mrs. Ahmed received a National Insurance Number (the equivalent of a Social Security Number).

Mrs. Ahmed returned to the United States in December 2011 for additional training needed to practice optometry in the United Kingdom. Mr. Ahmed again visited Mrs. Ahmed in the United States periodically.

Mrs. Ahmed did not return to London until August 2013, which she considered a permanent move. That October she applied for Indefinite Leave to Remain ("ILR") in the United Kingdom, stating in the application that she had considered London her permanent home for the previous two years. Mrs. Ahmed received her ILR the next year.

By all accounts, the couple's relationship grew rancorous during this period, exacerbated, the parties say, by Mrs. Ahmed's professional challenges, two miscarriages, and the interference of both sets of in-laws.

In February 2014, Mrs. Ahmed became pregnant again and was put on bed rest by her doctor for months. In April, she registered for an exam required to practice optometry in the United Kingdom.

The couple had a bitter argument in May 2014, of which they offer conflicting accounts. Mrs. Ahmed then traveled to Knoxville, where she had lived previously. The couple disputes whether Mrs. Ahmed intended to return to the United Kingdom. Mrs. Ahmed maintains she did not plan to return, noting that she took her optometry instruments and other valuables with her to the United States. Mr. Ahmed maintains he expected her to return in as little as a month. Mrs. Ahmed contends that she did not return to the United Kingdom because of her high-risk pregnancy and the acrimony in her marriage.

Mr. Ahmed traveled to Knoxville in October 2014 on a three-month visa in anticipation of the birth of their children. That November, Mrs. Ahmed gave birth to twins in Knoxville. After a few days, the family moved into a local apartment, where Mr. Ahmed cared for the children as his wife recovered from childbirth.

In January 2015, Mr. Ahmed's visa expired and he returned to London. Mrs. Ahmed insists she told Mr. Ahmed then that she intended to remain in the United States with the children indefinitely. Mrs. Ahmed moved with the children to her parents' home in Knoxville, where they live today. The children received medical care in Knoxville from birth until May 2015.

Mr. Ahmed returned to the United States in April 2015. The next month, the entire family traveled to the United Kingdom. Once there, they moved into Mr. Ahmed's parents' home for one or two months. The couple disputes whether Mrs. Ahmed considered the relocation to the United Kingdom permanent. Mrs. Ahmed asserts that she left Knoxville "for a short summer visit" "to see if [their] marriage was going to work." (Hr'g Tr. 2, R. 27, PageID 213, 216; see also id. at 283–84.) Mr. Ahmed believed this to be a permanent move.

Indeed, Mrs. Ahmed traveled on a round-trip ticket with a return scheduled for November 2015. But the couple agrees this was partly so she could attend a professional conference in the United States. As United States citizens, the children traveled on a ninety-day visa.

Further, Mrs. Ahmed states she left her valuables in Knoxville, including her optometry instruments, jewelry and diplomas. Mr. Ahmed insists that his wife took nearly everything important to London.

Mrs. Ahmed's friend testified that Mrs. Ahmed planned to return to Knoxville to live, and the children's medical records from May 2015 reflect appointments for that fall. Moreover, Mrs. Ahmed did not sell her car or cancel her auto insurance in the United States, retained American medical insurance for herself and the children, renewed her Tennessee optometry license and professional liability insurance, and paid her Tennessee professional privilege tax before leaving for London.

Once in London, however, Mrs. Ahmed took the exam required to practice optometry in the United Kingdom. She also registered the children with the National Health Service and took them for a check-up in London.

In July 2015, Mrs. Ahmed traveled with the children to a wedding in Bangladesh. Their tickets indicated they were scheduled to return to London on August 5. But the couple disputes whether Mrs. Ahmed actually intended to do so. Mrs. Ahmed claims she told her husband upon leaving London that she would not return. Mr. Ahmed claims he did not learn her plans until August 4, when she flew to Knoxville with the children.

Mr. Ahmed submitted an application to the United Kingdom Central Authority on August 10, 2015, for the return of the children under the Hague Convention. The application was forwarded to the United States Department of State ("State Department") and National Center for Missing and Exploited Children. On August 28, the State Department asked Mrs. Ahmed to return the children to the United Kingdom voluntarily. She declined.

In March 2016, Mr. Ahmed filed this action in the district court. That April, the couple stipulated to a temporary restraining order prohibiting Mrs. Ahmed from removing the children from the Eastern District of Tennessee pending a hearing on the merits of the case. In June, the district court held a two-day hearing on the merits, during which each party presented live testimony and numerous exhibits. The district court denied Mr. Ahmed's petition for return.

II. ANALYSIS

A. Standards of Review

"The question of which standard should be applied in determining a child's habitual residence under the Hague Convention is one of law, and is reviewed de novo by this Court." Robert v. Tesson , 507 F.3d 981, 987 (6th Cir. 2007). But the determination of habitual residence is "one of fact, and is reviewed for abuse of discretion." Id . at 995. We review, however, underlying legal conclusions de novo and factual findings for clear error. Simcox v. Simcox , 511 F.3d 594, 601 (6th Cir. 2007). "Under the clear-error standard, we abide by the court's findings of fact unless the record leaves us with the definite and firm conviction that a mistake has been committed." United States v. Yancy , 725 F.3d 596, 598 (6th Cir. 2013) (internal quotation marks and citation omitted).

Under the ICARA, a petitioner seeking the return of a child under the Hague Convention must prove by a preponderance of evidence that the child was wrongfully retained or removed from her habitual residence. March v. Levine , 249 F.3d 462, 465–66 (6th Cir. 2001) ; see 22 U.S.C. § 9003(e)(1).

B. Hague Convention

Countries have adopted the Hague Convention to "protect children internationally from the harmful effects of their wrongful removal or retention and to ... ensure their prompt return to the State of their habitual residence."

March , 249 F.3d at 465 (quoting the Convention's preamble). The goal is to prevent a child from being "taken out of the family and social environment in which its life has developed." Robert , 507 F.3d at 991–92 (quoting the official commentary on the Hague Convention). The Hague Convention is also meant to deter parents from crossing borders in search of more favorable forums. Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996) (" Friedrich II ").

"[A] court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but not the merits of the underlying custody dispute." Id. at 1063 (citing § 9003(b)(4) ). If the petitioning party shows that the Hague Convention requires return to the abducted-from nation, the child is returned there to determine custody (unless the respondent establishes certain defenses, none of which are alleged here). Id. at 1067.

The Hague Convention requires return when the petitioner shows that the respondent wrongfully retained or removed the child in breach of the petitioner's custody rights in the child's habitual residence before retention or removal. March , 249 F.3d at 465–66 ; see Holder...