The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER GRANTING EMERGENCY VERIFIED PETITION FOR RETURN OF CHILDREN TO THE UNITED KINGDOM PURSUANT TO 42 U.S.C. § 11601
Before the Court is Petitioner Christopher Oddy's ("Petitioner") Emergency Verified Petition for Return of Children to the United Kingdom Pursuant to 42 U.S.C. § 11601 ("Petition"), filed November 29, 2011. The Court held a hearing on the matter on February 10, 2012. Appearing on behalf of Petitioner were Stephen Cullen, Esq., and Kelly Powers, Esq., and appearing on behalf of Respondent Jahna Morris ("Respondent") was William Harrison, Esq. The Court heard testimony from Petitioner and Respondent at the hearing, and received Petitioner's Exhibits 1-13 and Respondent's Exhibits 14-29, 33, and 35-36.
Upon considering the Petition, the Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (the "Hague Convention"), the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., and the arguments and evidence presented at the hearing, the Petition is GRANTED and the Court HEREBY ORDERS as follows:
1. The parties are directed to meet and confer by February 24, 2012 regarding arrangements for the return of the minor children, S.O., born in 2004, and D.M.O., born in 2007 ("the children"), to the United Kingdom. If the parties are not able to reach a mutually agreed upon arrangement for repatriation of the children to the United Kingdom, Respondent may herself or through her attorney, make arrangements to return the children to the United Kingdom by April 24, 2012.
2. Respondent shall fully cooperate in the coordination and return of the children to the United Kingdom, including providing the children's passports and any other documents necessary for international air travel.*fn1 Respondent is responsible for the cost of the children's transportation to Petitioner's home in the United Kingdom. See 42 U.S.C. § 11607(b)(3) ("Any court ordering the return of a child . . . shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.").
3. Respondent is admonished that failure to comply with the terms of this order shall constitute contempt of court and may result in imposition of a fine and/or imprisonment.
4. The United States Marshals Service is directed to assist in the execution of this Order as necessary, and the United States Marshals Service may enlist the assistance of other law enforcement authorities as necessary to aid in any respect to secure the safe return of the children to the United Kingdom.
5. The parties may mutually agree upon alternative arrangements (including the sharing or shifting of the costs of the children's transportation) for the return of the children to the United Kingdom by written stipulation and proposed order filed with the Court.
This Court has jurisdiction over this matter pursuant to ICARA § 11603 because this case involves the retention of two children under the age of sixteen in the United States from their alleged habitual residence of the United Kingdom, and because the children are currently located within the jurisdiction of this Court in the District of Hawai'i.
I. ICARA and the Hague Convention
The Hague Convention was adopted in 1980 and its goal 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." Hague Convention, art. 1. Both the United States and the United Kingdom are signatories to the Convention; the United States implemented the Convention through the enactment of ICARA, 42 U.S.C. § 11601 et seq.
In drafting the Convention's provisions, the Conference attempted to address a particular type of "kidnapping" scenario: one in which a person, usually a parent, removes a child to, or retains a child in, a country that is not the child's habitual residence in order "to obtain a right of custody from the authorities of the country to which the child has been taken." The Convention seeks to eliminate the motivation for such actions by requiring the court of the "requested State," or the country to which the child has been removed, to return a wrongfully removed or retained child to his or her country of habitual residence, unless the removing party establishes an exception or defense to return. Hague Convention, art. 12. Unless and until there is a determination that the child need not be returned, "the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody." Id. art. 16. "[T]he Convention rests implicitly upon the principle that any debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal."
Asvesta v. Petroutsas, 580 F.3d 1000, 1003-04 (9th Cir. 2009) (some citations omitted).
Petitioner has the burden of establishing that Respondent's removal and/or retention of the children was "wrongful." Under Article 3 of the Hague Convention, a removal is wrongful where:
a) 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; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Hague Convention, art. 3; see also Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir. 2007).
In applying this provision, the 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 the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?
II. Petitioner's Prima Facie Case
Petitioner has the burden of proving by a preponderance of the evidence that Respondent's retention of the children in the United States was wrongful under the Convention. 42 U.S.C. § 11603(e)(1)(A). Specifically, Petitioner must show that: (1) the children were habitually resident in the United Kingdom at the time of the retention; (2) the retention was in breach of Petitioner's custody rights under United Kingdom law; and (3) Petitioner was exercising those rights at the time of retention.
Petitioner and Respondent were married on April 11, 2003 in the United Kingdom; Petitioner is a citizen of the United Kingdom and Respondent is a citizen of the United States. The children were born in the County of Poole, United Kingdom, and are citizens of the United Kingdom and the United States. [Petition at ¶¶ 4-6.] Petitioner and Respondent were divorced in the Bournemouth County Court in the United Kingdom on October 7, 2009. The Bournemouth County Court did not make any orders with respect to parental responsibility, residence or contact at the time of the parties' divorce. [Id. at ¶¶ 7-8.] Petitioner ...