Baxter v. Baxter

• Decision Date: 15 September 2005
• Docket Number: No. 04-3228.,04-3228.
• Citation: 423 F.3d 363
• Parties: Henry G. BAXTER, Appellant v. Jody Amanda BAXTER.
• Court: U.S. Court of Appeals — Third Circuit

423 F.3d 363

Henry G. BAXTER, Appellant v. Jody Amanda BAXTER.

No. 04-3228.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) May 26, 2005.

Filed September 15, 2005.

COPYRIGHT MATERIAL OMITTED

Matt Neiderman, Duane Morris LLP, Wilmington, Delaware, for Appellant.

Gerard F. Gray, Gray & Associates, Georgetown, Delaware, Georgia L. Leonhart, Lewes, Delaware, for Appellee.

Before SCIRICA, Chief Judge, ALITO and GARTH, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Chief Judge.

This is an appeal from the denial of a petition for the return of a child to Australia under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501. The principal issue is whether the District Court correctly held the petitioner consented to the removal or retention of the child under article 13(a) of the Hague Convention, defeating his claim for return. See Baxter v. Baxter, 324 F.Supp.2d 536, 538 (D.Del.2004). We will reverse and remand.

I.

Henry G. Baxter initiated this proceeding on May 13, 2004 by filing a petition in the District Court of Delaware seeking the expedited return of his five-year old son Torin to Australia. The petition alleges that his wife, Jody Amanda Baxter, wrongfully retained Torin in the United States under the Convention, and that Torin's custody should be decided by an Australian court.

Although the parties disagree on the reasons for Mrs. Baxter and Torin's trip to Delaware, the factual background is straightforward. On September 2, 2003, Mrs. Baxter and Torin traveled to the United States from Australia without Mr. Baxter. They took up residence at the home of Mrs. Baxter's mother and sister in Selbyville, Delaware.¹ Within two weeks of her arrival, Mrs. Baxter commenced a relationship with Kelly Stidham, a local contractor working on a project at her mother's house. Fourteen days later, Mrs. Baxter and Torin moved in with Mr. Stidham. A few days thereafter, Mrs. Baxter telephoned her husband in Australia and demanded a divorce. Mrs. Baxter and Torin have since been living in the home of Mr. Stidham.

Before September 2003, Torin and his parents lived together as a family in Australia.² Their lifestyle was itinerant. During the first four years of Torin's life, the family lived in several remote settlements in the Australian outback, and also spent a year in Ireland. Mr. Baxter moved from job to job, and the family moved from place to place. The Baxters' last home together was on Bathurst Island, an aboriginal community in the Tiwi Islands, in Australia's rugged Northern Territory. By all accounts, their stay there was short and troubled. The community was beset with problems, including petrol sniffing and domestic violence. The couple eventually decided the environment was unsuitable for their child, and that Mrs. Baxter and Torin should leave Bathurst Island and travel to the United States to visit Torin's grandmother and aunt, whom the child had never met.

The parties dispute whether the purpose of the trip to Delaware was to relocate definitively in the United States or to visit relatives for a time while giving the family an opportunity to plot a new course. The evidence demonstrates that Mrs. Baxter and Torin flew to the U.S. on one-way tickets, and that Mrs. Baxter took with her important personal and family documents.³ At the same time, they left behind in Australia with Mr. Baxter a large number of possessions, including personal effects and toys.

The District Court conducted a full evidentiary hearing where the parties and other witnesses testified. Affidavits were entered into the record without objection. Mr. Baxter testified that before learning of his wife's affair with Mr. Stidham, he had planned to rejoin his family in Delaware for the Christmas holidays. He sent a letter to his employer on the Tiwi Islands asking for leave in December, and purchased an airplane ticket to the United States. Mr. Baxter testified that he was open to the idea of looking for work in the U.S. during the trip, but that it might not prove feasible. Otherwise, he claims the plan was that the family would probably return to Australia, once he found a new job and a new place for them to live. The parties agree there was no talk of divorce or separation prior to Mrs. Baxter and Torin's departure.

For her part, Mrs. Baxter testified that the idea of the trip was to escape the troubled community on Bathurst Island while Mr. Baxter tried to establish a new business selling solar-powered water purifiers to remote outback dwellings. She testified that the move to the United States was "permanent, because [Mr. Baxter] didn't want to worry about us." On the other hand, she admitted that the plan was for Mr. Baxter to rejoin her and Torin in Delaware over Christmas. She also testified that "it wasn't until [she] met Mr. Stidham that everything changed and [she] decided to end [her] marriage and live with Mr. Stidham."

The testimony from Mrs. Baxter's family is also inconclusive about the trip's purpose. Her sister testified, based on telephone conversations prior to Mrs. Baxter and Torin's arrival, that the primary goal of the trip was to visit family, and that exploring the possibility of a move to the U.S. was secondary. Her mother, on the other hand, testified that "[Mrs. Baxter] and Torin were coming over to live, and to establish a home, education." Mrs. Baxter's mother enclosed a porch in her house to create a play space for Torin's benefit, indicating her expectation that the visit would be long-term.

The District Court found under the Hague Convention that Australia was the habitual residence of the child until the time of the move to Delaware. Baxter, 324 F.Supp.2d at 538. The court noted that a purpose of the trip was to explore the possibility of a permanent move, but found there was no intent to resolve this matter until after Mrs. Baxter and Torin's arrival. Id. at 539. Nevertheless, the court concluded that Mr. Baxter had consented to Torin's removal to the United States, defeating his claim for return of the child under the Hague Convention. Id. Mr. Baxter filed this timely appeal.

II.

We have appellate jurisdiction under 28 U.S.C. § 1291. The District Court had subject-matter jurisdiction under 28 U.S.C. § 1331, as this action arose under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, and its implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. ("ICARA"). Under ICARA, state and federal district courts have concurrent original jurisdiction over actions arising under the Convention. 42 U.S.C. § 11603(a).

We review the District Court's findings of historical and narrative facts for clear error, but exercise plenary review over the court's application of legal precepts to the facts. Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir.2003); Feder v. Evans-Feder, 63 F.3d 217, 222 n. 9 (3d Cir.1995); see also Beta Spawn, Inc. v. FFE Transp. Servs., 250 F.3d 218, 223 (3d Cir.2001) ("This court has plenary review over the district court's choice and interpretation of legal standards, and its application of those standards to the facts of the case.").

III.

The Hague Convention has two main purposes: "to secure the prompt return of children wrongfully removed to or retained in any Contracting State[,]" and "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. Any person seeking the return of a child under the Convention may commence a civil action by filing a petition in a court where the child is located. 42 U.S.C. § 11603(b). More broadly, the Convention's procedures are designed to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases. See Feder, 63 F.3d at 221. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See Hague Convention, art. 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.").

Under article 3 of the Convention, the removal or retention of a child is "wrongful" where:

a. 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; and

b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Hague Convention, art. 3. To obtain an order for the child's return, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under article 3. 42 U.S.C. § 11603(e)(1)(A). If this burden is met and the petition is filed within the appropriate time frame, the Convention requires courts to "order the return of the child forthwith." Hague Convention, art. 12.

Wrongful removal or retention claims under article 3 of the Convention typically raise four issues for analysis: when the removal or retention at issue occurred, the country in which the child was habitually resident prior to the removal or retention, whether the removal or retention breached the custody rights of the petitioner, and whether the petitioner was exercising those custody rights at the time of the removal or retention. See Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.2001); see also Feder, 63 F.3d at 225 (holding wrongful retention inquiry centers on whether petitioner's custody rights under law of country of habitual residence were breached by the retention, and whether petitioner was exercising those...