De Silva v. Pitts

• Decision Date: 05 April 2007
• Docket Number: No. 06-7046.,06-7046.
• Parties: S.L.V.M. Cyndie DE SILVA, Petitioner-Appellant, v. Paul E. PITTS; Sabrina Pitts, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

481 F.3d 1279

S.L.V.M. Cyndie DE SILVA, Petitioner-Appellant, v. Paul E. PITTS; Sabrina Pitts, Respondents-Appellees.

No. 06-7046.

United States Court of Appeals, Tenth Circuit.

April 5, 2007.

Submitted on the briefs:^*

Cyndie de Silva, pro se.

Laura Haag McConnell, Russell Cook, Hartzog, Conger, Cason & Neville, Oklahoma City, OK, for Respondents-Appellees.

Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.

PORFILIO, Circuit Judge.

Petitioner-appellant S.L.V.M. Cyndie de Silva appeals the judgment of the district court denying her Hague Convention petition for return of her son, Jonathan, to her custody in Canada and allowing him, instead, to remain with his father in Oklahoma pending a custody determination. After "review[ing] the district court's findings of fact for clear error and its conclusions regarding principles of domestic, foreign, and international law de novo," Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.2002), we affirm.

I. BACKGROUND

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), 1988 WL 411501, T.I.A.S. No. 11,670, is implemented in the United States by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601-11610. The Hague Convention was adopted to protect children from the adverse effects of being wrongfully removed to or retained in a foreign country and to establish procedures for their return. See Ohlander v. Larson, 114 F.3d 1531, 1534 (10th Cir. 1997). "The Convention is meant to provide for a child's prompt return once it has been established the child has been `wrongfully removed' to or retained in any affiliated state." Id. (quoting Convention, art. 1).¹

The removal or retention of a child is wrongful where 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, where such rights were actually exercised by the parent seeking return of the child. The petitioner bears the burden of showing by a preponderance of the evidence that the removal or retention was wrongful. More specifically, the petitioner must show that: (1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of petitioner's custody rights under the laws of that state; and (3) petitioner was exercising those rights at the time of removal or retention. Shealy, 295 F.3d at 1122 (quotation and citations omitted). We are concerned under the Hague Convention only with the merits of the retention claim, i.e., whether Mr. Pitts's retention of Jonathan in Oklahoma is wrongful. See id. at 1121. The question of which parent would be the better custodian for Jonathan is not before us. Id.

II. FACTS

Ms. de Silva and Mr. Pitts, who were never married, are the natural parents of Paul Jonathan de Silva Pitts, who was born in Ardmore, Oklahoma, on February 16, 1993. Ms. de Silva, who was in the United States on a student visa, registered Jonathan as a citizen of her native Sri Lanka within the first few months of his life.

Shortly after Jonathan's first birthday in February 1994, Ms. de Silva was notified by the Immigration and Naturalization Service that her visa had expired and that she was required to leave the United States by March 28, 1994. Ms. de Silva did not comply with this deadline. In May 1994, Mr. Pitts secured an order from the district court for Carter County, Oklahoma, enjoining either parent from removing Jonathan from that court's jurisdiction (ne exeat order). On July 5, 1994, and despite the Carter County ne exeat order of which she had notice, Ms. de Silva took Jonathan with her to Sri Lanka without Mr. Pitts's consent. Approximately one month later, the Carter County court awarded full custody of Jonathan to Mr. Pitts and, later that summer, held Ms. de Silva in contempt of the ne exeat order.

Mr. Pitts eventually reunited with his son on a visit to Sri Lanka, a country which is not a signatory to the Hague Convention and could not provide Mr. Pitts an opportunity under the Convention to argue in the courts of that country that Ms. de Silva had wrongfully removed Jonathan from Oklahoma. See United States v. Amer, 110 F.3d 873, 881 (2d Cir.1997). On one of his visits to Sri Lanka, Mr. Pitts was served with papers relative to a second custody proceeding in Sri Lanka filed by Ms. de Silva. After being advised that the Sri Lankan courts would never enforce the Oklahoma custody order and that Ms. de Silva would almost surely be awarded custody, Mr. Pitts decided to agree to her custody demands, reasoning that, if he did not, she would likely flee again with the child. In 1996, Ms. de Silva obtained an order from a Sri Lankan court awarding her custody of Jonathan.

In January 2003, after living with her son for almost nine years in Sri Lanka, Ms. de Silva fled to Canada where she was accepted as a refugee. Jonathan joined her in Canada a few weeks later. The parents had kept in contact over the years, and Mr. Pitts knew that his son had relocated to Canada. Mr. Pitts visited Jonathan in Canada on a couple of occasions, and Jonathan traveled from Canada to visit his father in Oklahoma at least once before the summer of 2005. In 2005, Jonathan had a round-trip ticket for a summer visit to Oklahoma that provided for his return in August 2005 to Canada, where he was scheduled to attend an end-of-summer camp. Instead of returning to his mother in Canada, however, Jonathan expressed his desire to stay with his father in Oklahoma. Jonathan has remained in Oklahoma ever since with Mr. Pitts and his wife, respondent-appellee Sabrina Pitts.

Ms. de Silva quickly objected to Jonathan's relocation to Oklahoma and petitioned a Canadian court to enforce the 1996 Sri Lankan custody order. She neither informed Mr. Pitts of this action, nor disclosed to the Canadian court the fact of the 1994 custody order from Oklahoma.

In response to Ms. de Silva's petition, the Canadian court entered an ex parte order making a preliminary finding that Ms. de Silva was entitled to custody of Jonathan, ordering the return of the child to her, and setting the custody matter for further hearing after Mr. Pitts received notice. After the Canadian order was served on Mr. Pitts, he filed a response in the Canadian court which eventually stayed its earlier ex parte order. Counsel has advised us the Canadian matter remains abated.

While the Canadian action was pending, Ms. de Silva filed a petition for return of child in the federal district court for the Eastern District of Oklahoma pursuant to 42 U.S.C. § 11603 of ICARA seeking the return of Jonathan to her in Canada so that the Canadian courts can determine the matter of custody.² Mr. Pitts filed an objection to the petition, informing the district court for the first time of the pre-existing Oklahoma order granting him custody of Jonathan.

The district court referred the case to a magistrate judge who conducted a hearing at which both parties were present and represented by counsel. With consent of counsel, the magistrate judge also carefully and considerately conducted an interview in chambers with Jonathan. Afterward, she concluded that he was sufficiently mature to justify taking his wishes into account in this matter. After the parties reviewed the hearing transcripts³ and submitted proposed findings of fact and conclusions of law, the magistrate judge determined that Jonathan had been wrongfully abducted from Oklahoma when his mother took him to Sri Lanka in 1994 at a time when Oklahoma was his habitual residence, and that Jonathan wished to remain in Oklahoma with his father. The district court adopted the findings and recommendation of the magistrate judge to deny Ms. de Silva's ICARA petition, and she appeals.

On appeal, Ms. de Silva, now appearing pro se, argues that: 1) the United States (and specifically Oklahoma) was never Jonathan's habitual residence; 2) the Oklahoma custody order is stale and thus unenforceable; 3) the temporary order of the Canadian court should be accorded full faith and credit by the district court; 4) Mr. Pitts has acquiesced in her full custody both in Sri Lanka and in Canada; and 5) Mr. Pitts failed to show that Jonathan's return to Canada will harm Jonathan.⁴ Ms. de Silva also weaves various arguments into her brief going to her belief that custody of Jonathan should properly be with her. As mentioned above, however, "[o]ur scope of inquiry under the Hague Convention is limited to the merits of the abduction claim. As such, the merits of the underlying dispute related to custody of [Jonathan] are not before us." Shealy, 295 F.3d at 1121 (quotation and citation omitted).

III. ANALYSIS

Although we affirm the conclusion of the district court that Jonathan should remain in Oklahoma while the custody matter is determined, we do so via a different analytical path and relying on a different emphasis than the district court.

Initially we note that it was incorrect for the district court to apply the principles of the Hague Convention to Ms. de Silva's 1994 removal of Jonathan to Sri Lanka. The regulations implemented by the United States Department of State to govern Hague Convention actions apply only when a child is "taken to another country party to the Convention." 22 C.F.R. § 94.7. "If a child is taken from a signatory country and is retained in a non-signatory country, it appears that there is no remedy under either [ICARA, 42 U.S.C. §§ 11601-11610] or the Hague Convention." Mezo v. Elmergawi, 855 F.Supp. 59, 63 (E.D.N.Y.1994); see also United States v. Amer, 110 F.3d 873, 881 (2d Cir.1997) (noting that the "requirement that both the `left-behind' and the `retaining' countries are signatories to the Convention is also implicit in its very operation. Because the Convention functions solely through the...