Stead v. Menduno
| Decision Date | 29 December 2014 |
| Docket Number | Civil Action No. 14–cv–01400–PAB–KMT |
| Citation | 77 F.Supp.3d 1029 |
| Parties | In re the Application of Anthony Leigh Stead, Plaintiff/Petitioner v. Davina Menduno, Defendant/Respondent. |
| Court | U.S. District Court — District of Colorado |
Jeffrey Matthew Connor, John David Cadkin, Miranda C. Rogers, Kristopher L. Reed, Kilpatrick Townsend & Stockton, LLP, Denver, CO, for Plaintiff/Petitioner.
Andrew John Helm, Charles Goldberg, Nathaniel Scott Barker, Lewis Roca Rothgerber LLP, Denver, CO, for Defendant/Respondent.
This matter comes before the Court on Petitioner Anthony Leigh Stead's Petition for Return of the Child (the “petition”) brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”)1 and the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. The Court held an evidentiary hearing on the petition on December 18–19, 2014. Both parties presented testimony and tendered exhibits. The Court has jurisdiction pursuant to 22 U.S.C. § 9003(a) and 28 U.S.C. § 1331. For the reasons outlined at the hearing, the Court granted the petition. The Court makes the following supplemental findings.
A.C.S. was born to petitioner, a New Zealand citizen, and respondent, a United States citizen, on October 21, 2011. Petitioner Ex. 4. Petitioner and respondent lived together during respondent's pregnancy, but separated shortly after A.C.S.'s birth, after which time respondent served as A.C.S.'s primary caretaker. After petitioner and respondent separated in early 2012, petitioner provided approximately $200 per week in financial support for respondent and A.C.S. until approximately October 2012. After October 2012, petitioner ceased providing financial support and instead began caring for A.C.S. during much of the day so that respondent could work.
In May 2013, respondent brought A.C.S. to the United States with petitioner's consent so that A.C.S. could meet respondent's family. Respondent bought a round-trip ticket with a return date of September 29, 2013. Before giving his consent to the overseas trip, petitioner demanded assurances that respondent would return to New Zealand with A.C.S. no later than September 2013. Respondent gave such assurances.
Between May and September 2013, petitioner had no contact with A.C.S., though respondent remained in contact with petitioner's family and provided periodic updates on their trip. On September 23, 2013, respondent informed petitioner's mother that she and A.C.S. would not be returning to New Zealand as she originally promised. On November 4, 2013, petitioner filed in New Zealand an Application in Accordance with the Hague Convention on the Civil Aspects of International Child Abduction for the Return of Child Abducted from New Zealand. Petitioner's Ex. 1 at 27–31. Subsequently, petitioner retained counsel in the United States and brought this action.
As a preliminary matter, the parties stipulate that A.C.S. is under the age of sixteen and that both New Zealand and the United States are signatories to the Convention. Thus, there is no dispute that the Convention applies in this matter.
ICARA provides that “[c]hildren who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” 22 U.S.C. § 9001(a)(4). To establish wrongful removal, “[p]etitioner's prima facie case consist[s] of three elements[:] (1) the child[ ] habitually resided in [New Zealand] at the time of the[ ] retention, (2) such retention breached petitioner's custody rights under the law of [New Zealand], and (3) [p]etitioner was exercising those rights at the time of retention.” West v. Dobrev, 735 F.3d 921, 929 (10th Cir.2013). Petitioner has the burden to prove that the child has been wrongfully removed or retained within the meaning of the convention by a preponderance of the evidence. 22 U.S.C. § 9003(e)(1)(A).
The Court finds that A.C.S. habitually resided in New Zealand before respondent retained him in the United States. The term “habitual residence” is deliberately not defined in the Treaty or ICARA. See Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir.2004). Rather “[c]ourts have widely recognized that the term should therefore be interpreted according to the ordinary and natural meaning of the two words it contains, as ... decided by reference to all the circumstances of any particular case.” Guzzo v. Cristofano, 719 F.3d 100, 106 (2d Cir.2013) (internal quotation marks omitted). While courts have supplied no uniform definition of “habitual residence,” in Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001), Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals formulated a distinct approach to habitual residence questions, focusing on the importance of parental intentions: “the intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child's residence.” Id. at 1075–76. Where the family has “manifested a settled purpose to change habitual residence,” then courts should find that the child's habitual residence has been changed, but where “the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period,” then the habitual place of residence will not be found to have changed, unless that period of time is “too long to expect children to live abroad without acquiring habitual residence.” Id. at 1076–77 & n. 27.
The evidence shows that A.C.S. lived in New Zealand his entire life up to the time that respondent brought him to the United States. The evidence further shows that both petitioner and respondent intended A.C.S. to live on Waiheke Island, New Zealand. Respondent testified that shortly before she and A.C.S. left New Zealand for the United States, she promised petitioner that she would return with A.C.S. in September 2013 and that, upon her return, the parties would put together a parenting plan. Petitioner's Ex. 9 at 435. Respondent's only rebuttal to the evidence that A.C.S.'s parents intended him to reside in New Zealand is that, when she and petitioner began dating and discussing having a child, they intended to buy a boat and sail around the world and had intentions of visiting the United States at some point. The Court finds that these vague plans do not rebut the clear intention of both respondent and petitioner at all relevant times that A.C.S. would reside in New Zealand.
The Court finds that respondent's decision to remain in the United States violated petitioner's custody rights under the laws of New Zealand. Petitioner was A.C.S.'s legal guardian under New Zealand law, both because he lived with respondent during the time between A.C.S.'s conception and his birth and because he is listed on A.C.S.'s birth certificate as the child's father. See Petitioner's Ex. 1 at 20; see also New Zealand Care of Children Act (“CCA”) §§ 17(1)-(2).2 One of a guardian's custody rights under New Zealand law is the right to determine, “for or with the child, or helping the child to determine, questions about important matters affecting the child,” CCA § 16(1)(c), among them “changes to the child's place of residence.” Id. § 16(2)(b). Respondent's unilateral decision to remain in the United States with A.C.S. notwithstanding the assurances she gave to petitioner that A.C.S. would return to New Zealand breached this right.
Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir.1996).
Respondent argues that petitioner abandoned his custody rights because he provided no financial support since at least November 2012 and because he did not contact A.C.S. after Respondent brought him to the United States. Docket No. 52 at 45. Respondent also argues that, during the time that petitioner cared for A.C.S. so that respondent could work, petitioner viewed himself as A.C.S.'s babysitter and suggested that respondent should pay him for his work. Id. at 5. Finally, respondent argues that petitioner failed to participate in mandatory counseling provided by the New Zealand court system, which respondent had arranged for the purpose of putting together a parenting plan.
The Court finds that petitioner was exercising his custody rights at the time of the retention. Respondent has provided no evidence that petitioner forfeited his custodial rights under New Zealand law. The section of the CCA, since repealed, that allowed parties to request court-provided counseling, provides no indication that such counseling is mandatory. See 2013 CCA § 65. Moreover, while New Zealand appears to have amended the CCA to make family dispute resolution mandatory before parties can initiate custody proceedings, see CCA § 46E, the mandatory dispute resolution provision was not enacted until March 31, 2014. Id. Even under this new mandatory scheme, respondent provides no evidence that failure to participate in dispute resolution constitutes forfeiture of custody rights.
With respect to petitioner's actions after respondent and A.C.S. came to the United States, the Court finds that petitioner's failure to contact A.C.S. between May and September 2013 does not constitute the sort of “clear and unequivocal abandonment” required to find in respondent's favor on this element of plaintiff's prima facie case. Friedrich, 78 F.3d at 1066. Rather, petitioner exercised his rights of custody by receiving...
To continue reading
Request your trial
-
Dumitrascu v. Dumitrascu
...manner, the court should stop - completely avoiding the question whether the parent exercised the custody rights well or badly.” Stead, 77 F.Supp.3d at 1035 Friedrich, 78 F.3d at 1066). The evidence confirms that petitioner was exercising her custody rights under Romanian law before her chi......
-
Garcia v. Pinelo
...McCurdy v. Shreve–McCurdy, 806 F.Supp.2d 1010, 1021 (E.D.Mich.2011) ; see alsoIn re Application of Stead v. Me n duno, 77 F.Supp.3d 1029, 1037, 2014 WL 7403282, at *4 (D.Colo. Dec. 29, 2014) ("The equitable doctrines invoked by respondent are not mentioned in the Convention and are therefor......
- Xiong v. Knight Transporation, Inc.
-
Hulsh v. Hulsh
...had little savings and the fact that most of the losing party's expenses went towards childcare, In re Application of Stead v. Menduno, 77 F. Supp.3d 1029, 1037-38 (D. Co. 2014); where the prevailing party contributed to the contentious relationship and abused respondent, Souratgar, 818 F.3......