Nicolson v. Pappalardo

• Citation: 605 F.3d 100
• Decision Date: 30 April 2010
• Docket Number: No. 10-1125.,10-1125.
• Parties: Lucas NICOLSON, Petitioner, Appellee,v.Erica PAPPALARDO, Respondent, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

605 F.3d 100

Lucas NICOLSON, Petitioner, Appellee,v.Erica PAPPALARDO, Respondent, Appellant.

No. 10-1125.

United States Court of Appeals, First Circuit.

Heard April 8, 2010.

Decided April 30, 2010.

Deena Jo Schneider with whom Schnader Harrison Segal & Lewis LLP, Peter W. Evans and Givertz, Hambley, Scheffee & Lavoie, P.A. were on brief for appellant.

Stephen J. Cullen with whom Kelly A. Powers, Joshua J. Gayfield and Miles & Stockbridge P.C. were on brief for appellee.

Before BOUDIN, LIPEZ and HOWARD, Circuit Judges.

BOUDIN, Circuit Judge.

This is an appeal from a proceeding in the district court under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), which governs certain child custody disputes. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501. We begin with a description of the background events, drawn from the record in the district court, and of the proceedings that led to the present appeal.

Erica Pappalardo, an American citizen, and Lucas Nicolson, an Australian serving as a soldier in his country's armed forces, began a relationship in Australia when Pappalardo was traveling there. Pappalardo moved in with Nicolson and became pregnant. After she returned to the United States, Nicolson proposed marriage over the telephone, and she accepted and returned to Australia where the couple was married in August 2008. They moved to Townsville, where Nicolson was posted for service in the Australian Defense Force.

In November 2008, when Pappalardo was eight months pregnant, Nicolson told her he did not love her and was unsure whether marrying her had been a mistake. Pappalardo, upset, told Nicolson she wanted to move back to the United States as soon as she and the child were medically cleared to travel. But the couple continued to live together in Australia; Pappalardo says they did so despite continuing marital problems, because she was financially dependent on Nicolson and could not travel with a baby until the baby was three months old.

Their daughter, S.G.N., was born in December 2008. Until March 2009, all three resided together in Townsville. That month, Nicolson and Pappalardo arranged for a U.S. passport for S.G.N.-Nicolson says merely so S.G.N. could visit Pappalardo's family in the United States, but Pappalardo says Nicolson knew of and reluctantly acceded to her plans to move herself and S.G.N. permanently to the United States.

In exchange for Nicolson's signing for the child's passport, Pappalardo agreed to give the marriage another chance. Nicolson says this trial was for three months, but Pappalardo denies making any duration promises. She also claims that Nicolson did nothing in the following months to repair the marriage.

The couple made preparations for Pappalardo and S.G.N.'s travel, packing or shipping a large quantity of belongings including S.G.N.'s medical records and transferring title to the couple's car from Pappalardo to Nicolson. On March 29, 2009, Nicolson drove Pappalardo and S.G.N. to the airport to fly to Sydney where Pappalardo's mother would assist in their travel to the United States. The next day, in Sydney, Pappalardo mentioned to Nicolson's mother and sister that she did not plan to return.

Nicolson's mother informed Nicolson, who immediately flew to Sydney and angrily confronted Pappalardo at her hotel about her intentions; Pappalardo said she was unsure. He met with an attorney that day but told Pappalardo the next day that he would not pursue legal action because he wanted her to return with S.G.N. on her own accord. She said she was open to working on their relationship. On April 2, 2009, she and S.G.N. flew to the United States.

At first, the couple communicated regularly via e-mail and Internet video chat. At Nicolson's request, Pappalardo reserved a late May 2009 return airline ticket to Australia for herself, with S.G.N. to sit on her lap. Pappalardo claims Nicolson began harassing her with profane phone calls, text messages, and threats. On May 4, after meeting with a counselor, Pappalardo had an “epiphany” that their marriage would never work and notified Nicolson that she and S.G.N. would not return to Australia.

On May 14, 2009, Pappalardo filed a complaint in Maine state court seeking an ex parte temporary order for protection from abuse (“PFA”) against Nicolson, which was granted immediately and served on Nicolson on June 12. In the meantime, Nicolson filed an Application for Return-not then disclosed to Pappalardo-with the Central Authority of Australia, pursuant to the Hague Convention. The Convention, to which the United States and Australia are parties, can result in an order requiring the return to its habitual residence of a child wrongfully taken or retained.

On September 4, 2009, Nicolson's Maine attorney attended the hearing on the final PFA order, but Nicolson did not attend and was denied permission to testify telephonically. The court was not told that Nicolson was pursuing Hague Convention relief because (Nicolson says) he was so advised by Australian authorities in case it might prompt Pappalardo to flee with S.G.N. Instead, his attorney and Pappalardo's lawyer agreed to entry of a PFA order dated September 4, 2009, which is central to this appeal.

The order recited in a checked box with form language that “[t]he parties have agreed to the following Order, which is made without findings of abuse” (the phrase “w/o admission” was added in handwriting). Further checked boxes limited Nicolson's contact with Pappalardo save that in the checked box form provision dealing with “temporary parental rights and responsibilities (custody) of minor child(ren),” Nicolson was given limited Internet contact with the child. That checked box reads as follows (the emphasized portion being handwritten):

The plaintiff [Pappalardo] is awarded temporary parental rights and responsibilities (custody) of minor child(ren), whose names and dates of birth are as follows [S.G.N.] (DOB 12-22-2008) TO BE AMENDED BY COURT OF COMPETENT JURISDICTION. PA OBO [S.G.N.] TO BE DISMISSED UPON ISSUANCE OF FINAL FM ORDER.

The defendant's rights of contact are limited as follows pending further order in Family Matter, Defendant [Nicolson] may have reasonable contact via Skype or other video conference system at least once per week and regular updates about child by regular e-mail contact. In Emergency phone contact is permitted. Defendant is granted access to records of child.

A closing form paragraph, on the second page of the form order, stated that the order would remain in effect for a specified period-in this case, a date two years hence was inserted-“unless earlier modified or vacated by order of court or, with respect to Child Support or Parental Rights and Responsibilities, by a Magistrate.” On October 2, 2009, Pappalardo filed a suit for divorce in the state court.

On October 22, 2009, Nicolson filed in federal district court in Maine a petition seeking return of the child to Australia, claiming under the Hague Convention that Pappalardo had wrongfully retained S.G.N. in the United States. ¹ The Convention provides for the return of a child whose removal or retention in another country is “in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention” and those custody rights were actually exercised at the time. Art. 3(a).

Under the Convention, the petitioner-in this case Nicolson-bears the burden of proving wrongful removal or retention by a preponderance of the evidence. 42 U.S.C. § 11603(e)(1). To do this, he must show (1) that S.G.N.'s habitual residence was Australia immediately prior to the retention, (2) that he had custody rights over S.G.N. at the time, and (3) that he was exercising those custody rights. Hague Convention art. 3. In this case, Pappalardo challenged only the first of the three pre-conditions, but she also claimed that Nicolson had consented to or acquiesced in the child's retention, two separate exceptions under the Convention.

The district court, in an extensive decision following the taking of evidence, concluded that S.G.N.'s habitual residence was Australia, that Nicolson had possessed and retained joint custody rights, and that he had not consented or acquiesced to Pappalardo's permanent retention of S.G.N. in the United States through the state court proceedings or otherwise. The court ordered S.G.N.'s return to Australia. Pappalardo appealed to this court which granted a temporary stay but expedited this appeal.

On this appeal, the issues of habitual residence, consent and acquiescence require discussion, and we begin with habitual residence. The Hague Convention does not define “habitual residence,” but the majority of federal circuits to consider it have adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence.² In an unpublished opinion, this circuit has employed that approach. Zuker v. Andrews, No. 98-1622, 1999 WL 525936, **1-2, 1999 U.S.App. LEXIS 6964, at *2-3 (1st Cir. Apr. 9, 1999).

On appeal Pappalardo argues only that S.G.N. never formed an initial habitual residence in Australia. Sensibly, she does not claim that, assuming S.G.N.'s habitual residence was Australia prior to the move back to Maine, merely retaining the child in Maine without Nicolson's consent or acquiescence would establish a new habitual residence. So we are not concerned with the standards for evaluating such a claim. Cf. Robert v. Tesson, 507 F.3d 981, 990-91 (6th Cir.2007) (concerning differing tests on change of habitual residence).

Pappalardo's thesis is that she never shared Nicolson's intent for S.G.N. to reside habitually in Australia because the couple's marital relationship broke down and Pappalardo formed the intent to leave with S.G.N before the child was...