The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
Before the Court in this matter is a petition for return of child. The Court held a hearing on the petition on February 17, 2010. Following the hearing, the Court directed the parties to submit briefing citing to the transcript and record and took the matter under advisement. The parties have now submitted their briefing and the matter is ripe for the Court consideration. This difficult decision under ordinary circumstances is made more difficult here because of the conduct of the parties. The Court has spent a great deal of time wading through the arguments of the parties in an effort to craft an order that upholds the intent and purpose of the Hague Convention. The Court's findings are as follows.
Factual and Procedural Background
On December 21, 2009, the Petitioner, Patrick John Stirzaker, filed a Verified Petition for Return of Child and for provisional relief (the Petition) pursuant to The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (the Convention) and the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (Dkt. No. 1). Petitioner seeks the return of PHS and has filed a Hague Convention Application filed with the Central Authority in Mexico and forwarded to the United States Central Authority.
The Petitioner and Respondent, Lilian Hicel Hernandez Beltran, met in August of 1998 and were married on January 10, 2003 and remain married today. The parties are the parents of the eight year old child at issue in this case, PHS, who was born on May 10, 2001 in Rancho Mirage, California. (Dkt. No. 1, Ex. B). Petitioner alleges he, PHS, and the Respondent resided in Mexico and that the Respondent has wrongfully removed and/or retained PHS in March of 2009 from Mexico to the State of Idaho where they currently remain.
As PHS's father, Petitioner claims he has rights of custody arising from the laws of Mexico under the Civil Code for the Federal District. (Dkt. No. 1, Ex. D). Petitioner further asserts that he did not consent to PHS's removal from Mexico. In support of his Petition, the Petitioner submitted a multi-page narrative describing his life with the Respondent and the factual basis that PHS was wrongfully removed. (Dkt. No. 1, Ex. C). At the time of PHS's removal, Petitioner alleges he was exercising his custody rights within the meaning of the Convention as PHS's father at their habitual residence in Mexico.
The Respondent disputes these allegations and counters that the Convention does not apply here. Alternatively, the Respondent argues that an exception or affirmative defense to the Convention applies that precludes ordering the return of PHS to Mexico. The Respondent asserts the Petitioner was not exercising his parental rights, the return of PHS would pose a grave risk of harm to her and/or would violate fundamental human rights. Having considered the submissions by the parties, the arguments made and evidence offered at the hearing, and the entire record herein, the Court finds as follows.
The Convention is a civil legal mechanism available to parents seeking the return of, or access to, their child. As a civil law mechanism, the parents, not the governments, are parties to the legal action. The countries that are party to the Convention have agreed that a child who is habitually resident in one party country, and who has been removed to or retained in another party country in violation of the left-behind parent's custodial rights, shall be promptly returned to the country of habitual residence. See 42 U.S.C. § 11601(a)(4). The Convention has two main purposes: first, to ensure prompt return of children to their state of habitual residence when they have been wrongfully removed and, second, ensure the rights of custody and access of one contracting state are respected by other contracting states. See Karkkainen v. Kovalchuck, 445 F.3d 280, 287 (3rd Cir. 2006) (citations omitted). The Convention procedures are designed "to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping in custody cases." See Baxter v. Baxter, 423 F.3d 363, 367 (3rd. Cir. 2005) (citation omitted). The Convention is not, however, intended or designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court. See In re B. Del C.S.B., 559 F.3d 999, 1002 (9th cir. 2009) (citations omitted); see also Hague Convention art. 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.").
I. Application of the Convention
The Convention applies to children under the age of sixteen who have allegedly been wrongfully removed or retained from their country of habitual residence to another country where both countries are signatory nations to the Convention. See Hague Convention art. 4. Both of these requirements are met here. Mexico and the United States, are both signatory nations to the Convention, In re B. Del C.S.B., 559 F.3d at 1002 n. 1, and there is no dispute that the child in question in this case, PHS, is under the age of sixteen.
The Convention also requires that the Petition for Return of Child be filed within one year of the date the child was allegedly wrongfully removed or retained. See Hague Convention art. 12.This requirement is also met in this case. The alleged wrongful removal and/or retention occurred upon PHS's arrival in Idaho between March or May of 2009 since which time she has not left Idaho. (TR, p. 20).*fn1 The Petition was filed December 21, 2009; less than one year since PHS's arrival in Idaho. (Dkt. No. 1).
The Respondent additionally challenges whether the Convention applies here in light of the Petitioner's contacts with the State of Texas. (TR, p. 6). At the hearing, the Petitioner testified that he lives in Mexico but he has a residence in San Antonio, Texas that he visits. (TR, pp. 12, 33-36). The Respondent points out that the address listed on the Petition is the Texas residence, the Petitioner possesses a Texas driver's license, and he recently consulted a divorce attorney in Texas. As such, the Respondent argues that the Petitioner is in fact a resident of the State of Texas, not Mexico, and that he should be judicially estopped from applying the Convention in this case. The Respondent also argues PHS's United States citizenship precludes application of the Convention.
The Convention applies to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights. See Hague Convention art. 4. There is nothing in the Convention precluding the petitioning parent from being a resident of the same country where the child is ultimately located after an alleged wrongful removal. Nor is the citizenship of PHS the determining factor under the Convention. The focus is on the child's habitual residence at the time of removal. Thus, the questions raised by the Respondent as to the Petitioner's residence in Texas or to PHS's citizenship do not determine the Convention's application here.*fn2 The Convention applies to cases involving the wrongful removal or retention of a child from the state of the child's habitual residence. See Asvesta v. Petroutsas, 580 F.3d 1000, 1003 (9th Cir. 2009). Here, the Petition alleges PHS was wrongfully removed and/or retained from her habitual residence in Mexico to Idaho. The Court finds the Convention applies to this matter.
Under the Convention, where the Petitioner demonstrates that a child has been wrongfully removed from its country of habitual residence, the child must be returned to its habitual residence unless an affirmative defense is established by the Respondent. Baran v. Beaty, 526 F.3d 1340, 1344-45 (11th Cir. 2008). In determining whether the removal and/or retention was wrongful, the court must answer a series of four questions: (1) when did the removal or retention at issue take place (2) immediately prior to the removal or retention, in which state was the child habitually resident (3) did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence (4) was the petitioner exercising those rights at the time of the removal or retention. See Hague Convention art. 3; Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). If the Petitioner satisfies his or her burden, the Respondent may attempt to show the Petition should be denied because an exception or affirmative defense to the Convention applies. Asvesta, 580 F.3d at 1003-04. As to the first question, the Court has already determined that PHS was removed in approximately March of 2009. The Court will discuss the remaining three questions and whether any exceptions apply below.
II. The Child's Country of Habitual Residence
Petitioner contends PHS's habitual residence immediately prior to her wrongful removal and/or retention is Mexico. The term "habitual residence" is not defined by either the Hague Convention or the ICARA. See Hague Convention art. 3. Rather a child's habitual residence is defined by examining specific facts and circumstances and is a term courts should not interpret technically or restrictively. See Harkness v. Harkness, 577 N.W.2d 116, 121 (Mich. Ct. App. 1998) ("determination of 'habitual residence' depends largely on the facts of the particular case"). Although it is the child's habitual residence that the court must determine, in the case of a young child, the conduct, intentions, and agreements of the parents during the time preceding the abduction are important factors to be considered. See Feder v. Evans-Feder, 63 F.3d 217, 223 (3d Cir. 1995); see also Pesin v. Osorio Rodriguez, 77 F.Supp.2d 1277, 1285 (S.D. Fla. 1999) (court would focus on parents' actions and shared intentions where children were four and six at time of alleged wrongful retention). In addition,
[T]here must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.
Feder, 63 F.3d at 223 (quotation omitted). Although the Respondent does not concede the habitual residence of PHS is Mexico, she does not raise much ...