March v. Levine

• Decision Date: 14 March 2001
• Docket Number: Nos. 00-6326,00-6551,s. 00-6326
• Citation: 249 F.3d 462
• Parties: (6th Cir. 2001) Perry A. March, in his capacity as father of Samson Leo March and Tzipora Josette March, both minor children, Petitioner-Appellee/Cross-Appellant, v. Lawrence E. Levine; Carolyn R. Levine, Respondents-Appellants/Cross-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 462

249 F.3d 462 (6th Cir. 2001)

Perry A. March, in his capacity as father of Samson Leo March and Tzipora Josette March, both minor children, Petitioner-Appellee/Cross-Appellant, v. Lawrence E. Levine; Carolyn R. Levine, Respondents-Appellants/Cross-Appellees.

Nos. 00-6326, 00-6551.

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 14, 2001

Decided and Filed: April 19, 2001

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 00-00736, Aleta A. Trauger, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] John E. Herbison, Nashville, Tennessee, Robert S. Catz, Nashville, TN, for Perry A. March for Appellee.

Gregory D. Smith, James G. Martin III, STITES & HARBISON, Nashville, Tennessee, Mark H. Levine, Los Angeles, California, for Appellants.

Before: KENNEDY and SUHRHEINRICH, Circuit Judges; GAUGHAN, District Judge^*.

SUHRHEINRICH, Circuit Judge.

OPINION

This appeal involves the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-11610 (2000), which is a codification of the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, 51 Fed. Reg. 10,493, 10,498 (app. B) (March 26, 1986) (hereinafter "Hague Convention"). The Hague Convention was adopted by the signatory nations "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Hague Convention, pmbl.

Under the ICARA, a petitioner must establish by a preponderance of the evidence that his children were wrongfully removed or retained in breach of his custody rights under the laws of the Contracting State in which the children habitually resided before they were removed or retained. Hague Convention, arts. 3, 12; 42 U.S.C. §11603(e)(1)(A). Once wrongful removal is shown, the children must be returned. Hague Convention, art. 12. However, a court is not bound to order return of the children if the respondents establish certain exceptions under the treaty. Hague Convention, art. 13. The ICARA requires that a respondent establish by clear and convincing evidence the grave risk of harm exception under article 13(b),¹ and the protection of fundamental freedom provision of article 20². 42 U.S.C. § 11603(e)(2)(A). Notwithstanding these exceptions, the treaty further provides that "[t]he provisions of this Chapter [pertaining to return of children] do not limit the power of a judicial or administrative authority to order the return of the child at any time." Hague Convention, art. 18 (emphasis added).

Respondents Lawrence E. Levine and Carolyn R. Levine ("the Levines"), the grandparents of two minors, Samson Leo March and Tzipora Josette March, appeal the order entered by the district court in this action under the ICARA and the Hague Convention which directed the Levines to immediately return the two minor children to their father in Mexico. Petitioner Perry A. March ("March"), the biological father of Samson and Tzipora, cross-appeals portions of the order decided adversely to him. We AFFIRM the district court's order, adopting its well-reasoned opinion. See March v. Levine, F. Supp. 2d , No. 3:00-0736 (M.D. Tenn. Oct.4, 2000).

I.

This case involves an American father who moved to Mexico with his two biological children, of whom he had custody. It also involves two American maternal grandparents who obtained court-ordered visitation rights, then removed the children from Mexico and returned with them to the United States, and then retained them after the end of the court-ordered visitation. The father seeks return of his children under the ICARA and the Hague Convention.

The mother of the children disappeared in 1996 and her parents, the Levines, believe she was murdered by her husband, March. This is the basis for the Levines' fervent belief that March should not have custody of their grandchildren. However, there have also been allegations that the maternal grandfather, Mr. Levine, killed his own daughter³. March has not been charged, nor apparently has anyone else has been charged, with the murder of the children's mother. The Levines were nevertheless successful in obtaining a default judgment as a discovery sanction against March in a wrongful death action which held that he killed his wife. March vehemently objects to being characterized as a killer and asserts that his wife disappeared, abandoning him and the children.

Additional facts are set forth in the district court's opinion. March, F. Supp. 2d at , No. 3:00-0736.

On or about June 15, 2000, the Levines arrived in Jalisco, Mexico, to visit the March children pursuant to an ex parteorder entered by an Illinois court on May 17, 2000⁴. This Illinois order granted them a thirty-nine day period of uninterrupted visitation with Samson and Tzipora. Although the visitation order did not restrict the Levines' ability to travel with the children, the order did not authorize the Levines to remove the children from Mexico for visitation. The Levines obtained a Mexican court order giving effect to the Illinois visitation order, but the Mexican order explicitly required that the visitation occur in Guadalajara, Mexico. The Levines went to the children's school, accompanied by the Mexican judge and armed police, and took physical possession of the children pursuant to these orders on June 21, 2000. That same night, contrary to the Mexican court order, they left Mexico with the children and returned with them to Tennessee, where the Levines reside. There is an outstanding Mexican arrest warrant against the Levines and their adult son, who is also one of their attorneys on appeal, for the kidnapping of the children.

The Illinois court-ordered visitation period expired July 30, 2000. Since that time, the Levines have refused to return the children to their father in Jalisco, Mexico, where the children had resided for more than one year prior to their removal. Instead, the Levines have sought termination of March's parental rights and custody of their grandchildren by instituting proceedings in Tennessee.

March filed his Petition for Return of Children under the ICARA on August 3, 2000, asserting that they were wrongfully removed from their habitual residence in Mexico in violation of his custody rights and the Hague Convention. In addition to the return of his children, March requested that the district court expedite matters; enter a provisional order directing the Levines to return his children pending a hearing, or alternatively, that the court grant him immediate rights of access, including telephone contact with the children and a schedule for the children to have time with him until a hearing on the merits; that trial be set in advance of the children's school year; and other relief.

The Levines filed a sworn Answer on August 22, 2000. Among numerous defenses raised, the Levines asserted that March should be disentitled from bringing his petition before the court under the fugitive disentitlement doctrine. They also asserted that Mexico is not the habitual residence of the children, as required for the return of children under articles 3 and 12 of the Hague Convention. They further asserted exceptions to return of children under articles 13(b) and 20 of the treaty, i.e., that return of the children to March would present a grave risk of psychological and physical harm as well as place them in an intolerable situation, and that return of the children would violate human rights and fundamental freedoms. In addition, they asserted that full faith and credit were due to various state and Mexican court decisions under a variety of legal theories, including "abstention."

On August 30, 2000, March moved for summary judgment or partial summary judgment on the question whether the Levines wrongfully removed or wrongfully retained the children under the ICARA. The next day, the Levines moved to dismiss the petition based on March's inability to establish that Mexico was the children's habitual residence, and the fugitive disentitlement doctrine.

On September 1, 2000, the district court ruled that it would decide these pending motions prior to allowing any discovery. More than a month later, and after the court allowed a voluminous amount of evidence into the record in conjunction with the parties' briefs and independently sought information under the terms of the treaty,⁵ the district court entered a fifty-two page opinion and an order in which it granted March's petition and ordered the Levines to immediately return the children to him. Specifically, the district court held that March had met his burden of establishing wrongful retention. It further held that the Levines had not met their burden of showing exceptions to return of children under the treaty. In addition, it declined to disentitle March from bringing his petition. However, the court, in aid of appellate jurisdiction, stayed its order until October 10, 2000, or until further direction from this Court.

Both parties appealed. A panel of this Court ordered a temporary stay of the district court's order until the Levines filed a substantive motion seeking a stay. After the Levines filed such a motion, this Court granted a stay of the district court's order pending resolution of the instant appeal and cross-appeal.

Regarding the merits, on appeal before this Court the Levines argue that the district court erred when it declined to disentitle March from pursuing his petition under the fugitive disentitlement doctrine based on various state court orders of contempt. They also contend that the district court erred when it refused to allow discovery or a hearing on the merits prior to ruling on the petition, or otherwise permit them to develop their...