Neumann v. Neumann
| Decision Date | 17 May 2016 |
| Docket Number | Civil Action No. 15-CV-11995 |
| Citation | 187 F.Supp.3d 848 |
| Parties | Steven Michael Neumann, Petitioner, v. Julie Anne Neumann, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Jay N. Siefman, Birmingham, MI, Kenneth E. Prather, Kenneth E. Prather Assoc., Grosse Pointe, MI, for Petitioner.
Kay A. Schwarzberg, Kay A. Schwarzberg Assoc., Mt. Clemens, MI, for Respondent.
Family legal disputes rarely find their way into federal courts. This case presents one exception to that general rule: a petition by one parent for return of minor children to their country of habitual residence, from which they had been taken by their other parent. This case is brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, which has been implemented by the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. § 9001, et seq.
Petitioner Steven Neumann seeks the return to Mexico of three minor children—JMN, JSN, and MKN—who are the issue of his marriage to Respondent Julie Neumann. See Compl. (Dkt. 1). Julie vigorously opposes the children's return. While she raises troubling allegations touching on Steven's fitness as a parent, this Court's role under the Convention is not to determine which custodial arrangements would effectuate the best interests of the children. Rather, the exclusive mission is to find whether the children were wrongfully removed from their country of habitual residence and, if so, whether certain limited affirmative defenses have been made out, so as to permit the children to remain in the United States. Having conducted a four-day-long evidentiary hearing, and having interviewed the children in camera, the Court concludes that the Convention requires the return of two of the minor children, JSN and MKN, to Mexico. Thereafter, another court must make the very difficult decision about appropriate custody arrangements.1
Julie and Steven were married in 1997. Tr. Vol. 1 19:4-19:5 (Dkt. 44). Three children were borne from their marriage: a daughter, JMN (born 1999, now 16); and two sons, JSN (born 2002, now 14), and MKN (born 2003, now 13). Id. 19:6-19:12. In February 2011, the Neumann family moved to Mexico upon Steven taking an assignment in Mexico City from his employer, Ford Motor Company. Id. 19:13-20:8. The family lived together in Mexico until late December 2014. On December 26, 2014, there was an explosive domestic dispute in the Neumann home, fueled in part by excessive consumption of alcohol by Steven, an admitted alcoholic. Id. 60:22-60:23; Haynes Report at 10. Julie immediately removed the children from the home and two days later, on December 28, 2014, she and the children boarded a plane and left Mexico for the United States, eventually arriving in Michigan to stay with her family. Tr. Vol. 2 58:24-59:2, 116:14-117:9 (Dkt. 45).
Steven filed a complaint for divorce in Mexico on May 11, 2015. Tr. Vol. 1 31:20-31:22. The next day Julie filed a complaint for divorce in Michigan's Wayne County Circuit Court. Id. 31:23-31:25. In June 2015, Steven filed a petition in this Court for the return of all three children pursuant to the Hague Convention. The Court entered a temporary restraining order preventing Julie from removing the children from the state of Michigan. 6/3/2015 Op. & Order (Dkt. 4). At the parties' urging, the Court appointed a child psychologist to offer opinions to the Court on certain issues. Dr. Jack Haynes, Ph.D., was selected to evaluate all five members of the Neumann family and offer opinions on three issues: (i) the extent to which the minor children could each make a mature decision about returning to Mexico; (ii) whether requiring the children to return to Mexico would pose a grave risk that they would be exposed to physical or psychological harm; and (iii) the validity of the views expressed in a report concerning the well-being of the children submitted by social worker Chuck Snyder, LMSW, in connection with the Wayne County Circuit Court divorce case filed by Julie. 6/19/2015 Order (Dkt. 16).
While Dr. Haynes conducted his evaluation, the parties engaged in several months of discovery. The parties also engaged in facilitation, in an effort to resolve their differences outside the courtroom. After these efforts proved unsuccessful, the Court conducted a four-day evidentiary hearing. Upon completion of the hearing, the Court spoke with each of the children individually, in chambers and with only a law clerk present. The Court then invited the parties to submit proposed findings of fact and conclusions of law, which it has considered in addition to the evidence presented at the hearing and the information gleaned from its conversations with the children.
The Hague Convention is a coordinated international response to the jurisdictional problem presented when one parent, often in the course of a domestic dispute, deprives the other parent of custodial rights over shared children, by either fleeing with the children to take refuge in another country, or by retaining the children in one country contrary to prior agreement of the parents. See generally22 U.S.C. § 9001. The twin aims of the Convention are to secure the prompt return of any child either wrongfully removed or retained, and to ensure that the rights of custody and access recognized in one contracting country are respected in all other contracting countries. See Hague Convention, art. 1; 22 U.S.C. § 9001. Importantly, the Court's jurisdiction is limited to determining the merits of the abduction claim. Friedrich v. Friedrich ("Friedrich II"), 78 F.3d 1060, 1063–1064 (6th Cir.1996). The Court may not adjudicate the merits of any underlying custody dispute; this would run counter to the Convention's purpose of deterring parents from crossing borders in search of a more sympathetic court. Id.
Removal of a child is "wrongful" when it is in breach of a parent's custodial rights under the laws of the country in which the child was "habitually resident" at the time of the removal, and the parent was exercising those rights at the time of removal or would have been exercising them but for the removal. Hague Convention, art. 3; see alsoFriedrich II, 78 F.3d at 1064.3 As the petitioning party, Steven must demonstrate by a preponderance of the evidence that the children's removal from Mexico was wrongful. 22 U.S.C. § 9003(e)(1)(A) ; Simcox v. Simcox, 511 F.3d 594, 602 (6th Cir.2007).
However, even if the removal was wrongful, the Court is not necessarily bound to order return of the children. The Convention articulates certain exceptions, three of which Julie raises here: (i) the petitioning party had consented to or subsequently acquiesced in the removal; (ii) the child objects to the return and is of a sufficient age and degree of maturity that it is appropriate to take account of the child's views; and (iii) there is a grave risk that returning the child would expose the child to physical or psychological harm. Hague Convention, art. 13. The first two need only be established by a preponderance of the evidence; the third requires clear and convincing evidence. 22 U.S.C. § 9003(e)(2) ; Simcox, 511 F.3d at 603–604.
"Habitual residence" is not defined in the Convention. However, this Circuit has determined that a child's country of habitual residence "is the nation where, at the time of their removal, the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child's perspective.’ " Robert v. Tesson, 507 F.3d 981, 993 (6th Cir.2007) (quoting approvingly Feder v. Evans – Feder, 63 F.3d 217, 224 (3d Cir.1995) ). The emphasis of the inquiry is "on the child, not the parents, and examine[s] past experience, not future intentions." Id.(quoting Friedrich v. Friedrich ("Friedrich I"), 983 F.2d 1396, 1401 (6th Cir.1993) ).
The Neumann family moved to Mexico in February 2011 upon Steven accepting a three-year assignment in Mexico City from his employer, Ford. Tr. Vol. 2 110:7-110:18. Steven's contract was renewed in 2014, through 2017. Id. 139:20-140:6. The family resided continuously in Mexico from that point until the children's removal in late December 2014. While residing in Mexico, the children attended Greengates School, a private international institution, the tuition for which was paid for by Ford. Tr. Vol. 1 20:9-20:24. All three children were engaged in extracurricular activities—including sports, concerts, plays, and student government—and maintained friendships. Id. 20:13-20:17; Tr. Vol. 2 22:5-22:23; Haynes Report at 37.
Almost four years in Mexico is sufficient to render Mexico the children's country of habitual residence. Indicators suggestive of acclimatization include social engagements, participation in sports programs and other excursions, meaningful connections with people and places—and most especially—academic activities, which are "among ‘the most central... in a child's life.’ " Robert, 507 F.3d at 996 (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 293 (3d Cir.2006) ). All such indicators were in place in Mexico. Moreover, even though the Mexico assignment was a temporary one, Mexico was, both at the time of removal and for some years prior, the exclusive site of the children's day-to-day lives and experiences. It was in Mexico where the Neumanns maintained a home and a majority of their belongings, including two family dogs.
While it is true that the children returned to Michigan every summer for approximately four to six weeks, these return trips are more aptly characterized as summer vacations, which are commonly spent away from a family's place of residence. Tr. Vol. 1 95:10-95:20. And the fact that the...
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