Sealed Appellant v. Sealed Appellee

• Citation: 394 F.3d 338
• Decision Date: 15 December 2004
• Docket Number: No. 04-10656.,04-10656.
• Parties: SEALED APPELLANT, Petitioner-Appellant, v. SEALED APPELLEE, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

394 F.3d 338

SEALED APPELLANT, Petitioner-Appellant, v. SEALED APPELLEE, Respondent-Appellee.

No. 04-10656.

United States Court of Appeals, Fifth Circuit.

December 15, 2004.

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Brad M. LaMorgese (argued), Cooper & Scully, Dallas, TX, for Petitioner-Appellant.

Timothy Shawn Marcel (argued), Luling, LA, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BARKSDALE, GARZA and DeMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In this expedited appeal, Appellant Father seeks the prompt return of his two children to Australia, their country of habitual residence. The relief is sought under the Hague Convention on the Civil Aspects of International Child Abduction, 25 Oct. 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (the Convention), implemented in the United States by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11611 (ICARA). Applying the Convention, the district court determined: Father was not exercising his custodial rights; therefore, Mother did not wrongfully remove their children from Australia. Accordingly, the district court did not order the children's return. VACATED; RENDERED; REMANDED to district court to determine the details concerning the children's prompt return to Australia.

I.

Appellant is the Australian-citizen father of two Australian-born children, ages two and four. Appellee, the children's mother, is an American citizen who lived in Australia for approximately nine years before returning to the United States in 2003. Father and Mother have never been married, but lived together with their elder child for approximately 18 months before Mother and child moved out. At that time, Mother was pregnant with her second child with Father. He has never had primary physical custody of either child.

Both parties agree Father maintained contact with his children after Father and Mother separated; they disagree, however, about the amount of contact. Father claims he visited the children multiple times a week; Mother, only about four or five times a year. It is undisputed that Father gave Mother money for child support, although the amount and regularity is unclear. Mother conceded in district court that she initiated at least some of the contacts with Father. For example, she and the children sent him cards for his birthday, Father's Day, and several other occasions.

In early September 2003, Father, Mother, and their children had dinner together in Australia, at which time Mother told Father she planned to take their children on a holiday to visit her parents in Texas. Father understood the children would be there for a month before returning to Australia and believed the trip was planned for February 2004. Father signed the necessary papers for the children to receive Australian passports. He did not consent to the children's permanent removal from Australia. Mother left Australia with the children in early September 2003, with no intention of returning. Several days later, Father discovered Mother had permanently left the country when he found her telephone line disconnected and her house vacated.

Father attempted to communicate with Mother in Texas. He was able to speak with Mother's parents and ascertain that the children were staying at their home, but Mother refused to speak to him. Father contacted a legal aid organization in Australia, and representatives from that organization informed him this was likely a parental abduction case under the Convention. With the help of the Australian International Family Law Section of the Attorney-General's Department, Father filed the necessary documents to begin the process of having the children returned to Australia under the Convention.

On 27 April 2004, approximately seven months after Mother had removed the children from Australia, Father petitioned the United States District Court for the Northern District of Texas to order the children's return to Australia, per Convention procedure. The district court issued a show cause order to Mother that same day, ordering her to appear for a hearing on 4 May 2004.

Father traveled to Texas for the hearing, during which he was represented by counsel obtained for him by the Australian authorities. Mother elected to proceed pro se at the district court hearing, including cross-examining Father. After the first day of the hearing, she consulted with a lawyer; and, on the second day of the hearing, she stated she had a meeting scheduled with another lawyer that afternoon. Mother did not retain counsel until after the district court proceedings had ended. (Mother is represented on appeal.)

At the hearing, Mother testified, among other things: Father is the children's biological father; Father paid token support for the children and occasionally visited them; Mother left Australia with the children less than a year prior to the hearing; Father agreed to sign the papers necessary for the children to get Australian passports; and Mother did not tell Father she planned to stay in the United States permanently. Father testified: he paid child support to Mother weekly; he visited the children at least weekly; he did not consent to the children's permanent removal from Australia; and the Australian government was financing his legal efforts. At the close of the hearing, the district court orally denied Father's petition and did not order the children's return to Australia. It entered an order to this effect on 6 May 2004.

II.

The district court's findings of fact are reviewed for clear error; its legal conclusions, de novo. E.g., England v. England, 234 F.3d 268, 270 (5th Cir.2000). "A factual finding is not clearly erroneous as long as it is plausible in the light of the record as a whole." United States v. Powers, 168 F.3d 741, 752 (5th Cir.), cert. denied, 528 U.S. 945, 120 S.Ct. 360, 145 L.Ed.2d 282 (1999) (internal quotation and citation omitted).

Father maintains Mother wrongfully removed the children from Australia because she left the country with the children in violation of Father's custody rights, which he was exercising at the time of removal. Mother testified as an affirmative defense that Father was not exercising his custody rights, so the removal was not wrongful. For the first time on appeal, Mother asserts: returning the children to Australia would pose a grave risk to their well-being; and, at oral argument, she seemed to further assert that removal was not wrongful because no custody proceeding is pending in Australia. Before addressing these issues, examination of the Convention is necessary.

This case is controlled by the Convention, to which both Australia and the United States are signatories. In 1988, the United States ratified the Convention and enacted ICARA, the implementing legislation. Pursuant to ICARA, state and federal district courts have concurrent original jurisdiction of actions arising under the Convention. 42 U.S.C. § 11603(a). A person seeking a child's return under the Convention may commence a civil action by filing a petition in a court in the jurisdiction where the child is physically located. Id. § 11603(b). The petitioner bears the burden of showing, by a preponderance of the evidence, that the removal or retention was wrongful, id. § 11603(e)(1)(A); the respondent, of proving any affirmative defenses, id. § 11603(e)(2).

Under the Convention, courts in contracting countries must return a wrongfully-removed child to his country of habitual residence. Convention, art. 12; 42 U.S.C. § 11601(a)(4). For purposes of the Convention, it is irrelevant whether there is a custody dispute concerning that child pending at the time of removal. Convention, art. 4 ("The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody rights...."; emphasis added). A parent wrongfully removes a child when he or she removes or retains the child outside the child's country of habitual residence, and this removal: breaches the rights of custody accorded to the other parent under the laws of that country; and, at the time of removal, the non-removing parent was exercising those custody rights. Convention, art. 3.

The Convention provides several narrow affirmative defenses to wrongful removal. See Convention, arts. 12, 13, 20. A child may not be returned to his country of habitual residence if the removing party can show, by a preponderance of the evidence, that: the non-removing party was not exercising custody rights at the time of the child's removal; or, the child is of proper age and maturity and has decided he does not want to return. Convention, arts. 12, 13(a); 42 U.S.C. § 11603(e)(2)(B). A removing party also may prevent the child's return if she can show, by clear and convincing evidence, that: principles relating to the protection of human rights and fundamental freedoms do not permit the return of the child; or, the return would cause grave risk to the child's mental or physical well-being. Convention, arts. 20, 13(b); 42 U.S.C. § 11603(e)(2)(A).

A.

Concerning Mother's affirmative defense that Father was not exercising his "rights of custody", each child was in Australia and had not left the country prior to their removal. There is no dispute that Australia is their country of habitual residence.

Mother and Father have never been married to each other and have never executed a formal custody agreement. When there is no such agreement between parents, courts must apply the laws of the country of the child's habitual residence to determine if the non-removing parent had "rights of custody" within the meaning of the Convention. Convention, art. 3; see also Whallon v. Lynn, 230 F.3d 450, 455 (1st Cir.2000); Feder v. Evans-Feder, 63 F.3d 217, 225 (3d Cir.1995); Elisa Perez-Vera, Explanatory Report: Hague Convention on Private International Law, ¶¶ 67-68, in 3 Acts and Documents of the...