United States District Court, D. Idaho
DAVID NEIL SMITH, Mundford, Norfolk, England, United Kingdom, Plaintiff-Petitioner,
VICKIE MICHELLE SMITH, Caldwell, Idaho, United States of America, Defendant-Respondent.
FINDINGS OF FACT, CONCLUSIONS OF LAW &
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE.
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.
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.
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.
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.
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.
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).
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.
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.
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