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Smith v. Smith

United States District Court, D. Idaho

February 20, 2018

DAVID NEIL SMITH, Mundford, Norfolk, England, United Kingdom, Plaintiff-Petitioner,
v.
VICKIE MICHELLE SMITH, Caldwell, Idaho, United States of America, Defendant-Respondent.

          FINDINGS OF FACT, CONCLUSIONS OF LAW & ORDER

          B. LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE.

         INTRODUCTION

         The Court held a bench trial on January 29, 2018, in this matter, and the parties filed post-trial briefs on February 9, 2018. The matter is now at issue. For the reasons explained below, the Court finds that the minor child DMS must be returned to the United Kingdom under Article 12 of the Hague Convention.

         FINDINGS OF FACT

         The Smiths were married in 1997 and resided in England. Vickie is a citizen of the United States; David is a citizen of the United Kingdom. While residing in England, they had two children, DOS. (now age 16) and DMS (now age 15). Nearly twenty years later, the marriage broke down and David filed for divorce. The court in England granted primary custody of the children to Vickie while David received visitation rights. Vickie initially filed a motion with the English court to remove the boys permanently from the jurisdiction but withdrew that motion, see Order (Dkt. No. 1-5) at p. 3, and represented to the court, through her solicitor, that “she will not remove the children from the jurisdiction without the agreement of [David Smith].” See Order (Dkt. No. 1-6) at p. 2.

         On May 30, 2017, Vickie, a United States citizen, absconded with DMS to the United States without David's permission, and without approval of the English court, leaving behind her other child DOS. Vickie and DMS lived briefly in Colville, Washington, where his mother's siblings lived, and then moved in with various other family members, and for a short time, lived in a homeless shelter. Since August of 2017, Vickie and DMS have lived in Caldwell, Idaho, with a childhood friend of Vickie's. Vickie works part-time at a convenience store in Nampa. DMS has completed the first semester of his sophomore year at Caldwell High School, and recently began his second semester.

         To regain custody of DMS, David initiated proceedings in the English court to compel Vickie to return DMS to England. The court did not grant the requested relief because it was unclear whether Vickie had notice of the petition, but the court did grant leave to David to restore his application once Vickie received notice. See Order (Dkt. No. 1-10) at p. 2. The court did “note”, however, that (1) in earlier proceedings, Vickie had “assured the Court (through her instructed solicitor) that she would not remove the children (or either of them) from the jurisdiction without the agreement of the Applicant father, such assurance being recorded on the face of the order”; (2) that Vickie was “in breach” of the custody orders; and (3) that the “removal of [DMS] from the jurisdiction of England and Wales, and his retention outside the jurisdiction is wrongful within the meaning of Article 3 of the Hague Convention 1980.” Id. at p. 2.

         David filed a complaint against Vickie in this Court on November 30, 2017, alleging that her removal of DMS was wrongful under Article 3 of the Hague Convention, and asking for an Order that DMS be returned to England. On December 6, 2017, this Court issued an ex parte temporary restraining order (TRO) enjoining Vickie from removing DMS from Idaho pending a hearing on the complaint's request to return him to England. That evidentiary hearing has now been held, and the case is ready to be resolved.

         CONCLUSIONS OF LAW

         The United States and the United Kingdom are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. The goal of the Convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and . . . to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” See Hague Convention, art. 1. The Signatories perceived that parents were wrongfully taking their children across international lines “in search of a more sympathetic court” for custody proceedings. Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1181 (9th Cir. 2002). The Convention sought to eliminate this motivation by allowing for the prompt return of abducted children. Id. at 1182. Congress implemented the Convention through the International Child Abduction Remedies Act (ICARA).

         Wrongful Removal

         To prevail under ICARA, David must show that DMS was “wrongfully removed” by Vickie “within the meaning of the [Hague] Convention.” See 22 U.S.C. § 9003 (e)(1)(A). Generally, a court must return a wrongfully abducted child. Von Kennel, 282 F.3d at 1182. The Convention does not extend to custody determinations but simply restores the pre-abduction status quo by allowing for the return of a wrongfully abducted child. Id. The Convention, in Article 3, states that a child's removal is “wrongful” if “it is in breach of rights of custody” under the law of the jurisdiction where “the child was habitually resident immediately before the removal . . . .” See Hague Conv. Art. 3. In determining whether Article 3 applies, the Ninth Circuit has held that a court must answer 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 habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?” Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir. 2007).

         David has carried his burden of proving that (1) DMS was removed in May of 2017; (2) at that time, DMS was habitually residing in England; (2) the removal breached Vickie's assurance to the court that she would not remove DMS without David's consent; and (3) David was exercising his custodial rights at the time of the removal.

         To put a finer point on item (2) above, Vickie deliberately violated the child custody arrangement set forth in the United Kingdom court by bringing DMS to the United States without permission and without any notice to either the court or David. Vickie's claim that an unnamed policeman told her she was excused from complying with the London court custody order by a domestic violence law is not credible. It is highly unlikely that any policeman would give complex legal advice that might expose the recipient to the serious consequences of violating a court order. Surely any police officer giving such advice would have made some record of it, but a search of police records revealed nothing. Moreover, any reasonable person receiving such advice would get it in writing, given the serious consequences that follow from violating a court order. But Vickie - who compulsively ensured that other matters were confirmed in writing - never had the police ...


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