Babcock v. Babcock

• Decision Date: 30 November 2020
• Docket Number: 3:20-cv-00066
• Citation: 503 F.Supp.3d 862
• Parties: Denisa BABCOCK, Plaintiff, v. Chad Michael BABCOCK, Defendant.
• Court: U.S. District Court — Southern District of Iowa

503 F.Supp.3d 862

Denisa BABCOCK, Plaintiff,

v.Chad Michael BABCOCK, Defendant.

3:20-cv-00066

United States District Court, S.D. Iowa, Eastern Division.

Signed November 30, 2020

Eric Steven Mail, Eric David Puryear, Puryear Law PC, 3719 Bridge Avenue, Suite 6, Davenport, IA 52807, 563-265-8344, 866-415-5032 (fax), mail@puryearlaw.com, eric@puryearlaw.com, for Defendant.

Nicole D. Driscoll, Molly Marie McDonnell, Iowa Legal Aid (Davenport), 736 Federal Street, Suite 2309, Davenport, IA 52803, 800-532-1275 x1911, 563-884-4461 (fax), ndriscoll@iowalaw.org, mmcdonnell@iowalaw.org, for Plaintiff.

MEMORANDUM AND ORDER

ROBERT W. PRATT, Judge

Plaintiff Denisa Babcock, also known as Denisa Cholasta, a citizen of Canada, filed her Verified Complaint on August 20, 2020, seeking the return of N.J.B., her twelve-year-old child¹ with Defendant Chad Michael Babcock, a citizen of the United States, under the Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 [hereinafter Hague Convention], as implemented through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001 – 9011. ECF No. 1. The Court held a telephonic evidentiary hearing on the merits of the Verified Complaint on November 10, 2020. See ECF No. 45. Prior to the hearing, the Court interviewed N.J.B. in camera via videoconference without the parties or attorneys present. As ordered by the Court, the parties filed posttrial briefs on November 17. ECF Nos. 46, 47. The matter is fully submitted.

I. INTRODUCTION

The Hague Convention "establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained ...." 22 U.S.C. § 9001(a)(4). Its purpose is to "deter parents who are dissatisfied with current custodial arrangements from abducting their children and seeking a more favorable custody ruling in another country." Navani v. Shahani , 496 F.3d 1121, 1124 (10th Cir. 2007). It also serves "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1.

"The Convention and [ICARA] empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." 22 U.S.C. § 9001(b)(4) ; Stern v. Stern , 639 F.3d 449, 451 (8th Cir. 2011). Indeed, "[i]t is the Convention's core premise that ‘the interests of children ... in matters relating to their custody’ are best served when custody decisions are made in the child's country of ‘habitual residence.’ " Monasky v. Taglieri , ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (2020) (quoting Hague Convention, preamble). Thus, "it is not the duty or province of the Court to determine custodial matters, but instead merely to determine which country's courts have that duty." Id. "It is then up to the courts of the ‘habitual residence’ to decide the substantive merits of the underlying custody issue." Redmond v. Redmond , 724 F.3d 729, 737 (7th Cir. 2013) ; see also Abbott v. Abbott , 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) ("A return remedy does not alter the preabduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence." (citing Hague Convention, art. 19)).

II. FINDINGS OF FACT²

Plaintiff is a citizen of Canada. Defendant is a citizen of the United States. Plaintiff and Defendant were married in Bettendorf, Iowa in March 1996. ECF Nos. 42-4 at 3, 42-16 at 1. They have four children: A.B., born in 1998; M.B., born in 2002; N.D.B., born in 2003; and N.J.B., born in 2008. ECF No. 42-4 at 3. All four children are dual citizens of the United States and Canada. ECF No. 48 at 18. N.J.B. is the only child involved in this matter. ECF No. 1 ¶ 8. The parties lived together with their children in Camanche, Iowa for most of their marriage. See id.

In December 2011, this Court sentenced Plaintiff to sixty-four months’ imprisonment for embezzling funds from the local school district where she worked. United States v. Babcock , No. 3:10-cr-00074 (S.D. Iowa Jan. 23, 2012), ECF No. 84. Plaintiff was released from federal prison in September 2016 and spent the next seven months in U.S. Immigration and Customs Enforcement detention before she was deported to Canada. ECF No. 48 at 18.

As a result of Plaintiff's expected deportation, the parties planned for the whole family to move to Canada and start a new life there. Id. at 17. Plaintiff at first lived with her parents in Toronto but soon found a house for the family in Windsor, Ontario to be closer to Iowa for Defendant's travel back and forth until he could join the family full time. Id. at 29. The four children joined their mother in Windsor on June 28, 2017. Id. at 17. Defendant moved most of the family's possessions from Camanche to their new home in Windsor. Id. at 21–22. All of the children's personal belongings, including toys, games, computers, clothes, and dressers were moved to Windsor. Id. at 22. Plaintiff purchased new bedroom furniture for the children in Windsor. Id. During this time, Defendant could not stay in Canada for more than short visits due to his own criminal history of operating while intoxicated and public intoxication. He could not permanently relocate until his immigration paperwork was complete and he was approved for permanent residence. Id. at 18; 105. Defendant never filed the paperwork and was never approved to live in Canada. Id. at 19.

Upon his move to Canada, N.J.B. was enrolled in the local public elementary school in Windsor. Id. at 31. N.J.B., who was nine years old at the time, was already a grade behind children his age in Camanche. Id. at 32. Based on his age, N.J.B. should have been entering the fourth grade in Windsor; however, due to his speech and language problems, Plaintiff and the school decided to place N.J.B. in the third grade. Id. The school provided N.J.B. with focused attention on reading and speech, and N.J.B. progressed well. Id. at 33. N.J.B. attended the local school for two years. Id. at 35. Defendant was not involved in working with the local school, and in fact testified he did not even know N.J.B. was having academic problems in Canada. Id. at 35, 100.

N.J.B. also participated in local organized sports such as little league and soccer. Id. at 36–37. He made friends in Windsor and maintained a close relationship with his brothers who all live in Windsor. Id. at 30, 38. N.J.B. is athletic and enjoys being outdoors and playing sports with his friends and brothers. Id. at 36–37. N.J.B. had all of his medical needs met for the two years he lived in Windsor. Id. at 41.

The parties separated in late December 2017. ECF No. 48 at 20. Defendant returned to Camanche while the children remained with their mother in Windsor. Id. Defendant did not see the children again until June 2019. Id. at 22.

In February 2019, Plaintiff filed for divorce with the Ontario Superior Court of Justice and served Defendant with the petition. ECF No. 42-4; see ECF No. 42-5. Plaintiff petitioned for fully custody of their children,³ id. at 4, which the Ontario court granted on April 26, 2019, ECF No. 42-12. Rather than engaging in the Canadian divorce proceeding, Defendant filed a separate action in Clinton County, Iowa in March 2019 seeking a dissolution of their marriage.⁴ ECF No. 1 ¶ 17. That action has been stayed pending resolution of this matter. Id.

In early summer 2019, the parties’ oldest child planned a vacation to visit friends and family in Iowa. ECF No. 48 at 43. The younger children expressed an interest in visiting family and friends in Iowa, too, so Plaintiff asked Defendant if the children could come visit. Id. Defendant agreed, and N.J.B. and the oldest child traveled to Iowa for a ten-day visit starting on June 28.⁵ Id. at 43. The day before the children were to return to Canada, their grandmother called Plaintiff to ask if N.J.B. could stay longer. Id. Plaintiff agreed, believing it was best for the child to spend time with Defendant and Defendant's family. Id. at 45. Defendant was reluctant to let the child stay at first, believing it might cause problems between the parties in light of their legal situation. ECF No. 42-13 at 2, 5. At Defendant's request, Plaintiff then gave Defendant express permission for N.J.B. to stay until the end of summer, stating:

I, Denise Babcock give permission for [N.D.B.] and [N.J.B.] to extend their visit until September 1, 2019 so they can visit their father and additional family. [N.J.B.] will be returning to Canada for the 2019 school year. And [N.D.B.] is still deciding where he would like to attend school. The issue with [N.D.B.] will be revisited middle of August to make the final determination about where he will attend school.

Id. at 6. Defendant responded:

I agree with [N.J.B.] staying for the summer as well as [N.D.B.] but as far as [N.D.B.] wants to stay here until he graduates high school as he told me that's what he wants, [N.J.B.] would like to stay here to live as well as I'm concerned for the children living in Canada due to [M.B.] stealing, failing school and hanging out with the wrong crowd, [N.D.B.] failing school out in Canada and not having any friends is another concern of mine, not to mention no structure or guidance for our children out there due to you hardly ever home. Their [sic] are more concerns I have, as far as [N.J.B.] getting back home and possibly [N.D.B.] as agreement in August we will talk about that

Id. at 7.

As his return date approached, N.J.B. began to express to Defendant that he did not want to return to Canada. ECF No. 48 at 85. N.J.B. complained about Plaintiff assigning chores to the children and his older brothers forcing him to do all of the chores and punishing him if he refused. Id. N.J.B. also told Defendant that one of his brothers had pinched his neck so hard that it left a scar on N.J.B.’s neck after N.J.B....