"This matter is before the Court on the Petitioner's Motion to return the children of the parties to Finland pursuant to the terms of the 'Hague Convention on the Civil Aspects of Child Abduction'. That Convention has been signed by the United States, and Congress has adopted procedures for its implementation by enactment of the 'International Child Abduction Remedies Act'. [42 U.S.C § 11601, et seq.]
"Hearings have been held before the Court at which the parties testified and offered the testimony of others, including that of expert witnesses. The Court also received reports from court-appointed psychologists concerning the current condition and treatment of the children. In addition, numerous exhibits were admitted into the record.
"Based on the evidence presented and a review of applicable legal authorities, and having considered the Briefs submitted by the parties, the Court is of the opinion that the Petitioner's Motion should be overruled and that this Court should retain jurisdiction to determine issues of custody of the children of the parties.
FACTS
"The Petitioner, Tuulikki Harsacky, a native of Finland, and the Respondent, Frank Harsacky, a native-born citizen of the United States, were married in California in October, 1989. Mr. Harsacky was in the process of separating from the U.S. Navy. Mrs. Harsacky was trained as a nurse in Finland, but had been living and working in the United States for about ten years. Both Harsacky children, Alexandra (DOB: 11/23/90) and Katherine (DOB: 12/27/91) were born in California.
"In April of 1992, the parties moved their family to Crestview Hills, Kentucky. Mr. Harsacky testified that he had hoped to find work in this area. However, he claims that Mrs. Harsacky soon became unhappy and wanted the family to move to Finland. In any event, they did move to Finland in June of 1992 and remained there until April of 1995.
"While in Finland, the Harsackys purchased a home which was placed in Mrs
Harsacky's name due to Finnish law. It appears that this home was purchased with the proceeds from the sale of Mr. Harsacky's house in California. It is noteworthy that Mr. Harsacky was not employed during the time that they lived in Finland. Apparently, the family lived off of their assets and government social benefits.
"Sometime in late 1994, the parties discussed a return to the United States. They have offered contradictory testimony as to whether this was to be a permanent move, a vacation or a stay of indefinite duration. There was testimony that Mr. Harsacky considered re-enlisting in the Navy. Likewise, they spoke with a friend in South Texas about job opportunities. It is more than coincidental that Mrs. Harsacky had lived in the South Texas area when she first came to this country. Finally, there is no dispute that the parties wrote for, and received, information from a Chamber of Commerce in Victoria, Texas and contacted a realtor for assistance in locating a place to live in South Texas.
"Prior to leaving Finland for the United States, the Harsackys leased their house and sold many items of personal property, including their cars, boat, furniture, appliances and tools. Moreover, when they travelled to this country in the Spring of 1995, they shipped, at considerable expense, items such as winter clothing, Christmas decorations, books, tools, car parts and rugs. In view of the type of property which they sold in Finland and shipped to this country, the Court is persuaded that the parties intended to relocate to the United States on an indefinite basis, if not permanently.
"The Harsackys arrived in Houston, Texas on April 20, 1995. They immediately contacted realtors about leasing a house or condominium. In the short time that they were in Texas, the parties rented several apartments or condominiums in different locales. Not long after their arrival, Mr. Harsacky purchased two automobiles, a Mercedes and a Chevrolet Suburban. In addition, Mr. Harsacky had resumes prepared and went on job interviews. Indeed, he claims to have been offered a position with a company in Laredo. Clearly, the parties' conduct in Texas is not consistent with a vacation.
"Although Mrs. Harsacky denies any intention to live permanently in the United States, she did acknowledge that they may have stayed here for as long as a year if her husband was able to find employment. This statement contradicts her allegation that they were on a vacation in this country.
"The Court finds that the parties intended to live in this country on an indefinite basis and that they brought their children here for that purpose. This finding is consistent with their conduct and with the fact that Mr. Harsacky was seeking employment which he was unable to find in Finland.
"On May 23, 1995, the Harsackys were living on South Padre Island, Texas. On that date, a violent domestic dispute erupted which resulted in Mrs. Harsacky's arrest. The next morning, Mr. Harsacky took the children and left for Northern Kentucky where his sister resides. They arrived in Kenton County on May 27, 1995. On May 30, Mr. Harsacky filed a domestic violence petition in the Kenton District Court and was given immediate custody of his daughters. On the same day, Mrs. Harsacky filed a Petition for Custody in Cameron County, Texas District Court. In that Petition, she alleged residency in Texas. On June 13, Mrs. Harsacky obtained an Order from a Finnish Court granting her custody of her children. Obviously, neither party appeared before the Court in Finland.
"On July 13, Mrs. Harsacky filed a Verified Petition in this Court seeking custody. By Order dated July 14, 1995, this Court found that it had jurisdiction and awarded temporary custody to Mr. Harsacky. On August 24, Mrs. Harsacky filed her Motion to have this Court return the children to Finland to allow the Courts of that country to determine custody.
CONCLUSIONS OF LAW
"The Petitioner has failed to carry her burden of proof that the children have been wrongfully abducted or retained in violation of the Hague Convention or the International Abduction Remedies Act.
"The purpose of the Hague Convention on the Civil Aspects of International Child Abduction is to deter a parent from abducting or wrongfully retaining a child from its habitual environment and removing the child to a jurisdiction in the hope of obtaining a favorable custody decree. See, Explanatory Report by Official Convention Reporter Elisa Perez-Vera, pp. 428-429; See, also, Friedrich v. Friedrich, [983 F.2d 1396, 1400 (6th Cir., 1993).] The Convention aims to restore the status quo ante and to prevent individuals from establishing legal and jurisdictional links which are more or less artificial. See, Explanatory Report by Official Convention Reporter Professor Elisa Perez-Vera, pp. 428-429; See, also, Rydder v. Rydder, [49 F.3d 369, 372 (8th Cir., 1995) ].
"Both the Convention and the International Child Abduction Remedies Act, [42 U.S.C. § 11601], require an abduction or wrongful retention. Under Article Three of the Convention, removal or retention is considered wrongful where there is a breach of custody rights under the law of the state in which the child was a habitual resident immediately before the removal or retention. Thus, at the center of many disputes over the applicability of the Convention is a determination of the child's habitual residence prior to removal by a parent. It follows that a child cannot be wrongfully removed or retained if the jurisdiction to which the child is taken can be considered its habitual residence.
"Neither the Convention nor the International Child Abduction Remedies Act defines 'habitual residence'. Indeed, it was intended that this concept remain fluid and fact-based, without becoming rigid. Brooke v. Willis, [907 F.Supp. 57, 61 (S.D.N.Y., 1995) ]; Levesque v. Levesque, [816 F.Supp. 662, 666 (D.Kan., 1993) ]; Friedrich, supra, at [1400-1401]. The definition of habitual residence must be determined by the facts and circumstances presented in each particular case. Meredith v. Meredith, [759 F.Supp. 1432, 1434 (D.Ariz., 1991) ].
"In keeping with the principle that 'habitual residence' must be judged on a case by case basis, it is not surprising that courts have disagreed as to what factors should be controlling. For instance, the relatively short length of the child's presence has not prohibited a jurisdiction from being the child's habitual residence. In Brooke v. Willis, supra, a child was returned to England even though she had spent less that two months in that country. The Court therein stated:
