Meredith v. Meredith, CIV 90-1632-PHX-RGS.

• Decision Date: 26 February 1991
• Docket Number: No. CIV 90-1632-PHX-RGS.,CIV 90-1632-PHX-RGS.
• Citation: 759 F. Supp. 1432
• Parties: In re the Application of Marie Claire E. MEREDITH, Petitioner, v. Steven MEREDITH, Respondent.
• Court: U.S. District Court — District of Arizona

759 F. Supp. 1432

In re the Application of Marie Claire E. MEREDITH, Petitioner, v. Steven MEREDITH, Respondent.

No. CIV 90-1632-PHX-RGS.

United States District Court, D. Arizona.

February 26, 1991.

Raul Castro, Phoenix, Ariz., for petitioner.

David Derickson, Phoenix, Ariz., for respondent.

FINDINGS OF FACT CONCLUSIONS OF LAW AND DECISION

STRAND, District Judge.

BACKGROUND

A petition pursuant to the Hague Convention was filed by Marie Claire Meredith, October 22, 1990, which seeks the return of a minor child, Christina, born to Petitioner and Respondent March 12, 1987. Petitioner alleges the child was wrongfully removed from Birmingham, England to Phoenix, Arizona where the Respondent resides. A hearing on the merits was held February 14, and 15, 1991, and the court now issues its findings of fact, conclusions of law, and decision.

FINDINGS OF FACT

Petitioner Marie Claire Meredith was born in Algiers and is a French citizen. She emigrated to the United States in November of 1975 pursuant to a "fiancee Visa" or a K-1 Visa and has been a permanent resident alien for approximately 15 years due to a marriage to Mr. Walter Graves, and later, due to her marital relationship with respondent, Steven Meredith. Respondent is a United States Citizen and has resided in Arizona since 1969.

Marie Claire and Steven Meredith were married July 18, 1986, in Phoenix, Arizona and resided in Arizona as husband and wife from the date of their marriage until December of 1989. Marie Claire and Steven Meredith had a child, Christina Vanessa Meredith, who was born in Phoenix, Arizona, on March 12, 1987. She is a United States Citizen, and resided in Arizona until December of 1989. After May of 1990, the minor child resumed living in Phoenix, and has continued to live here since that date.

Petitioner met Steven Taylor, a British citizen, in Phoenix, Arizona, while she was married to and living with Respondent. Petitioner telephoned Mr. Taylor in Birmingham, England, from Phoenix, Arizona several times, including a thirty-minute phone call on November 9, 1990. It was after this phone call that Petitioner suggested to Respondent that she go to France to visit her parents. Round-trip airline tickets for Petitioner and Christina were issued by Trans World Airlines in Phoenix, Arizona, on November 19, 1989. Petitioner left for France with Christina and a child from a previous marriage, Jerome Graves, on December 7, 1989.

On December 29, 1989, Petitioner told Respondent she would not be returning to Arizona. She instructed Respondent to go to the Arizona court, file for a divorce and grant her custody of Christina, informing him that if he followed her instructions, she would let him see the minor child again. On January 2, 1990, Petitioner and the minor child, left France and went to Birmingham, England.

Respondent filed a Complaint for Dissolution of Marriage on January 18, 1990, in the Superior Court of Arizona in Maricopa County. Respondent obtained an emergency ex-parte order granting him custody of his daughter from the Honorable Bernard J. Dougherty of the Arizona Superior Court and a hearing was scheduled for January 26, 1990.

The hearing scheduled for January 26, 1990, was quashed due to lack of service. A new hearing was scheduled for March 13, 1990. Respondent was led to believe and did believe that Petitioner was residing in France. Whenever he called for Petitioner, he was informed that Petitioner was "visiting somewhere in the country." Petitioner did not inform Respondent that she was no longer residing with her parents in France, and did not inform Respondent that she had moved to her companion Steven Taylor's home in Birmingham, England.

Petitioner admitted that if Respondent had learned of her new location in January or February of 1990, she would have moved again so that he could not locate her or their child. Petitioner enlisted the aid of her parents and other family members in her attempt to deceive Respondent into believing that Petitioner and their minor child were still residing in France.

Respondent hired a French attorney to accomplish service upon Petitioner pursuant to French law. On February 21, 1990, service was accomplished upon Petitioner through her father who stated that Petitioner resided with him in France at the house where the papers were served. Petitioner's father, Jacques Anton, was served and given copies of all of the documents listed on the Affidavit of the process server, in both English and French. Petitioner acknowledges she received these documents on February 24, 1990. She also acknowledges she was aware of the March 13, 1990, hearing and that she understood the hearing was to determine custody of the minor child. Petitioner further received notice of this hearing from telephone conversations between herself and Respondent who specifically informed her of the hearing date and that she should be present. Petitioner, however, did not respond to the Petition for Dissolution, nor did she appear at the March 13, 1990, hearing, or make any attempt to notify the court of any circumstances which would have prevented her appearance.

On March 13, 1990, the Arizona Court found service to be proper upon Petitioner, and further, after hearing the merits of the Petition, the court lawfully awarded custody of the minor child, Christina, to Respondent. On March 27, 1990, a Notice and Application for Entry of Default was properly filed and a default was entered against Petitioner. A hearing was held April 26, 1990, and a Decree of Dissolution which lawfully awarded custody of the minor child to Respondent was signed by the Arizona trial court Judge and filed. On May 24, 1990, Respondent regained physical custody of the minor child.

Respondent and the minor child have continuously resided in Phoenix, Arizona since their return from England in May of 1990. On Friday, June 1, 1990, Petitioner appeared in Phoenix, Arizona demanding to see the minor child. Petitioner was told she must first comply with the restrictions upon her visitation as set forth in the Arizona Decree of Dissolution. While in Arizona on June 1, 1990, Petitioner made no attempt to have the Decree of Dissolution or its provisions regarding custody or visitation vacated or modified.

Respondent has never been served with notice of any British proceeding affecting his rights to custody of Christina nor has he ever been afforded an opportunity to appear and present his case to the British Court. The Wardship proceedings were conducted after Respondent had regained custody of the minor child on May 24, 1990.

Petitioner acknowledges the fact that she is currently divorced pursuant to the Arizona Superior Court Decree of Dissolution entered April 26, 1990. This is the same document which awards full, sole, and legal custody of the minor child, Christina to Respondent. At no time has Petitioner filed an action in the Arizona court to set aside or modify the Decree of Dissolution, or any of its provisions relating to custody or visitation. Petitioner has never appealed the Arizona court's decision regarding the dissolution of the marriage or any of the provisions of the decree.

CONCLUSIONS OF LAW

The Hague Convention is an international treaty designed to protect custody rights of parents on a global scale. The United States became a signatory nation to the Convention in July of 1988. The stated objective of the Convention is "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, (a), (b) ("Convention"). Based upon Article 19 of the Convention and under the International Child Abduction Remedies Act § 2(b)(4)¹, the court is empowered to determine the merits of an alleged abduction, but not the merits of the underlying custody claims or issues. Therefore, the focus of the court is solely on whether Petitioner may invoke the protection of the Convention for what she alleges was the wrongful abduction of her daughter from Birmingham, England on May 24, 1990. The court concludes that she cannot.

In order to invoke Hague Convention relief, Petitioner must satisfy two threshold issues: 1) lawful rights of custody at the time of the removal or retention; and 2) that such removal or retention is from the child's "habitual residence." Based on the evidence presented, the court concludes that Petitioner has not established the existence of either of these factors.

A. Lawful Rights of Custody

Article 3, as further clarified by Article 5(a), provides that the removal or retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person ... under the law of the state in which the child was a habitual resident immediately before the removal or retention; and

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

Custody rights are determined by the law of the child's habitual residence. "Habitual residence" is an undefined term in the Convention. It is apparent that it must be determined by the facts and circumstances presented in each particular case.

Petitioner argues Christina's habitual residence is Birmingham, England. Petitioner argues the decree by British Judge Scott Baker establishes the requirement of...