March v. Levine

• Decision Date: 04 October 2000
• Docket Number: No. 3:00 0736.,3:00 0736.
• Citation: 136 F.Supp.2d 831
• Parties: Perry A. MARCH, in his capacity as the father of Samson Leo March and Tzipora Josette March, both minor children, Petitioner, v. Lawrence E. LEVINE and Carolyn R. Levine, Respondents.
• Court: U.S. District Court — Middle District of Tennessee

136 F.Supp.2d 831

Perry A. MARCH, in his capacity as the father of Samson Leo March and Tzipora Josette March, both minor children, Petitioner, v. Lawrence E. LEVINE and Carolyn R. Levine, Respondents.

No. 3:00 0736.

United States District Court, M.D. Tennessee, Nashville Division.

October 4, 2000.

COPYRIGHT MATERIAL OMITTED

John E. Herbison, Nashville, Robert S. Catz, Cadiz, KY, for Perry A. March, in his capacity as father of Samson Leo March and Tzipora Josette March, minor children, pltfs.

James Glasgow Martin, III, Gregory Dye Smith, Farris, Warfield & Kanaday, Nashville, for Lawrence E. Levine, Carolyn R. Levine, defts.

MEMORANDUM

TRAUGER, District Judge.

On August 3, 2000, Perry A. March filed a Petition for Return of Minor Children Pursuant to International Child Abduction Remedies Act, seeking the return of his two minor children, Samson Leo March, age 10, and Tzipora Josette March, age 6, to Mexico. The respondents, Carolyn R. Levine and Lawrence E. Levine, grandparents of the children, had removed them from Mexico on June 21, 2000 and brought them to Nashville, Tennessee pursuant to a visitation order issued by a court in Chicago, Illinois. Petitioner March has filed a motion for summary judgment (Docket No. 34), and the respondents have moved to dismiss the case based on several grounds, including the fugitive disentitlement doctrine (Docket No. 51).¹

A. Legal Standard

Petitioner seeks the return of his children pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that summary judgment may be rendered if "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).

This court finds that this type of case is appropriate for resolution by summary judgment. Indeed, the language of the Convention supports resolution by such means. Article 11 provides that a court, when faced with a petition under the Convention, should "act expeditiously in proceedings for return of children." Hague Convention, art. 11. Courts are to place these cases on a "fast track" in order to expedite these proceedings and carry out the purposes of the Convention.

The language of the Convention also authorizes courts to "take notice directly of the law of, and of judicial and administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable." Hague Convention, art. 14. See also 42 U.S.C.A. § 11605 ("[N]o authentication of such application, petition, document, or information shall be required in order for the application, petition, document, or information to be admissible in court.")

There is no requirement under the Hague Convention or under the ICARA, 42 U.S.C.A. § 11601 et seq., that discovery be allowed or that an evidentiary hearing be conducted. See Sinclair v. Sinclair, 121 F.3d 709, 1997 WL 428897, at *1 (6th Cir. Jul.30, 1997) (unpublished opinion) (citing Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir.1994)) (finding appellant's argument that the district court refused to hear testimony of two witnesses without merit). See also Kovacevich v. Kent State Univ., 224 F.3d 806, 831-33 (6th Cir.2000). Thus, under the guidance of the Convention and the statutory scheme, the court is given the authority to resolve these cases without resorting to a full trial on the merits or a plenary evidentiary hearing. See, e.g., Shalit v. Coppe, 182 F.3d 1124 (9th Cir.1999) (affirming district court's granting of summary judgment in favor of respondent in ICARA case).

B. The International Child Abduction Remedies Act

This petition is brought pursuant to the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C.A. § 11601 et seq. (1995). The ICARA was enacted in order to implement the provisions of the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention" or "Convention").² Both the United States and Mexico are signatories to this multi-nation treaty.³ (Docket No. 84, Response to Petitioner's Statement of Undisputed Facts No. 1)

The Hague Convention was adopted by the signatory nations⁴ in order "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, Preamble. Actions brought under the Convention are to be resolved as expeditiously as possible. See Hague Convention, art. 11 ("The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.").

Under the Convention, the removal of a child from one country to another country is to be considered wrongful when

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.

The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Hague Convention, art. 3.

As the petitioner, March has the burden of showing by a preponderance of the evidence that the removal of his minor children from Mexico was wrongful as defined by the Convention. See 42 U.S.C.A. § 11603(e)(1)(A). Once the petitioner meets this burden, then the burden shifts to the respondents to establish "(A) by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies"; or (B) "by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies." 42 U.S.C.A. § 11603(e)(2).

Thus, the person opposing the return of a child must establish:

1) by clear and convincing evidence that there is a grave risk that the return of the child would expose the child to physical or psychological harm; Hague Convention, Article 13b, 42 U.S.C. § 11603(e)(2)(A); 2) by clear and convincing evidence that the return of the child `would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms'; Hague Convention, Article 20, 42 U.S.C. § 11603(e)(2)(A); 3) by a preponderance of the evidence that the proceeding was commenced more than one year after the abduction and the child has become settled in its new environment; Hague Convention, Article 12, 42 U.S.C. § 11603(e)(2)(B); or 4) by a preponderance of the evidence that [the petitioner] was not actually exercising the custody right at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; Hague Convention, Article 13a, 42 U.S.C. § 11603(e)(2)(B).

Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) ("Friedrich I").⁵

C. Wrongful Removal or Retention

The respondents argue that the petitioner cannot carry his initial burden of proof because there has been no wrongful removal or retention of the two minor children. Under the Hague Convention, "`wrongful removal' refers to the taking of a child from the person who was actually exercising custody of the child" and "`wrongful retention' refers to the act of keeping the child without the consent of the person who was actually exercising custody." 51 Fed.Reg. 10494, 10503 (1986) (Hague International Child Abduction Convention: Text and Legal Analysis).

In their Answer, the respondents state that the two minor children were not wrongfully removed from Mexico because they "lawfully had physical custody of the Children at the time they were returned to the United States." (Docket No. 22 at 1) Furthermore, the children have not been wrongfully retained in the United States because "[t]hey have remained pursuant to an Order of the Juvenile Court for Davidson County, Tennessee." Id. The court finds this argument without merit.

In October 1999, the Circuit Court for Cook County (Chicago), Illinois granted the Levines petition for grandparent visitation, allowing them prescribed times of visitation with the children.⁶ (Docket No. 54, Ex. 7) On May 17, 2000, the Circuit Court ordered, in response to the Levines' emergency petition for "catch-up" visitation⁷ under the October 1999 order, that "the minor children ... be immediately turned over to the Levines' physical custody for visitation for an uninterrupted period of 39 days ...." (Docket No. 26, Ex. 1(a)). Pursuant to a Letter Rogatory issued by the Illinois court, the respondents were able to secure a Mexican court order to enforce the Illinois visitation order. See Docket No. 26, Ex. 2; Docket No. 103. It was on the basis of these orders that the respondents were able to remove the children from their school in Mexico on June 21, 2000.⁸

The respondents did not return the children to their father after the period of visitation because, by that time, they had secured a court order from the Nashville Davidson County Juvenile Court granting them temporary custody of the children (beyond visitation rights) pending a determination on their petition to terminate the parental rights of the father.⁹

On January 21, 2000, the Probate Court for Davidson County had entered judgment by default in favor of the Levines, as a discovery sanction, in a wrongful death action brought by the Levines against Perry March for the death of their daughter, Janet Gail March.¹⁰ (Docket No. 54, Ex. 1) Effective May 8, 2000, at the behest of the...