Miller v. Miller ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DORIS MILLER, 
Petitioner-Appellee,
v.  No. 99-2630
WILLIAM MILLER,
Respondent-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(MISC-99-54-3-V)
Argued: December 5, 2000
Decided: February 16, 2001
Before WIDENER and KING, Circuit Judges, and
William L. GARWOOD, Senior Circuit Judge of the
United States Court of Appeals for the Fifth Circuit,
sitting by designation.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Widener joined. Senior Judge Garwood wrote an opinion
concurring in the result.
COUNSEL
ARGUED: Patricia Emily Apy, PARAS, APY, REISS, P.C., Red
Bank, New Jersey, for Appellant. Christian Riley Troy, HELMS,
CANNON, HENDERSON & PORTER, P.A., Charlotte, North Caro-
2 MILLER v. MILLER
lina, for Appellee. ON BRIEF: A. Marshall Basinger, II, Charlotte,
North Carolina, for Appellant. Thomas R. Cannon, Sheila G. Passe-
nant, HELMS, CANNON, HENDERSON & PORTER, P.A., Char-
lotte, North Carolina, for Appellee.
OPINION
KING, Circuit Judge:
William Miller ("Miller") appeals from the decision rendered
against him in the Western District of North Carolina ordering the
return of his infant children to Canada in the custody of their mother,
Doris Miller ("Ms. Miller"). See Memorandum and Order of Novem-
ber 4, 1999 ("District Court Order"). The district court proceeded
under the International Child Abduction Remedies Act ("ICARA"),
42 U.S.C. §§ 11601-11610, which implements the Hague Convention
on the Civil Aspects of International Child Abduction ("Hague Con-
vention"), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501. We
affirm the district court.
I.
In August 1998, Miller forcibly removed the children from their
mother’s home in St. Catharines, Ontario, Canada, and brought them
into the United States to settle with him in Charlotte, North Carolina.
Ms. Miller filed this action pursuant to ICARA and the Hague Conven-
tion,1 seeking the children’s return on the ground that they were ille-
gally abducted by Miller in violation of a valid Canadian custody
order.
A.
The essential facts underlying this dispute are spelled out in the
District Court Order. Ms. Miller is a citizen and resident of Canada,
while Miller is a citizen and resident of the United States. The parties’
1
Both the United States and Canada are signatories to the Hague Con-
vention.
MILLER v. MILLER 3
elder child, Hope Christian Miller, was born in Canada in September
1990. The parties subsequently married in 1993 and separated in
1995, prior to the birth of the younger child, Faith Kendra Taylor
Irwin Miller, who was born in Canada in August 1995. They have
since divorced.
An Ontario court, in an October 3, 1997 decree ("Ontario Order"),
granted permanent custody of the children to Ms. Miller. On August
28, 1998, Miller arrived in Canada — ostensibly for the purpose of
exercising his rights of supervised visitation under the Ontario Order
— and, without Ms. Miller’s consent, took the children from her
home and returned with them to the United States.2 The district court
found that "[b]ased on the amount of time during which the children
lived in Canada during the course of their respective lives, the chil-
dren were habitually resident in Canada as of August 28, 1998." Dis-
trict Court Order, at 4.3 Moreover, the court determined that Ms.
Miller filed her Hague Convention petition less than one year after the
children were taken to the United States,4 and that Hope and Faith had
not become settled in North Carolina within the meaning of the
Hague Convention. Finally, the court ascertained that the return of the
children to Ms. Miller did not "pose a grave risk to the health, safety,
and well-being of the children as defined by the Convention." Id.2
Ms. Miller maintained, in an affidavit to the district court: "That day
Mr. Miller and another man came to my home, assaulted me, and
abducted Hope and Faith." J.A. 183.
3
Ms. Miller submitted, as evidence before the district court, declara-
tions regarding the past residences of the children. According to these
declarations, Hope resided, as of August 1993, in New York with both
parties; as of December 1994, with Ms. Miller in Canada; as of April
1995, under a shared custody arrangement, with Ms. Miller in Canada
and with Miller in New York; and, as of December 1995 until her
removal in August 1998, with her mother in Canada. Prior to her
removal, Faith always lived in Canada with Ms. Miller.
4
The court erroneously recounted the date of the petition as August 20,
1998. The petition actually was filed on August 23, 1999. The court was
correct, however, in finding that the action was commenced less than one
year after the children’s removal from Canada.
4 MILLER v. MILLER
B.
This case is complicated by a series of conflicting custody orders
issued by courts in both New York State and Ontario, both before and
after the children were taken by Miller to North Carolina. The custody
battles began in spring 1995 in a New York family court.5 Ms. Miller
then filed a custody petition in October 1995 in Ontario. The parties
each intermittently appeared in — and failed to appear in — both the
New York and Ontario courts. They each were admonished for violat-
ing various orders, including mandates regarding visitation rights and
payment of child support.
Subsequent to the Ontario Order of October 3, 1997, the New York
court awarded custody of the children to Miller in a March 28, 1998
decree ("New York Order").6 In granting this relief, the New York
family court noted that Ms. Miller had last appeared in person in Sep-
tember 1997, although counsel had appeared on her behalf.7 The court
determined that "[g]iven Mrs. Miller’s failure to appear and to testify
on her own behalf, this Court is permitted to draw, and has drawn the
strongest inference against her that the evidence permits." New York
Order, at 3 (citation omitted). The court then concluded, based on var-
ious findings of fact, that "Mrs. Miller’s actions demonstrate a funda-
mental defect in her understanding of the duties of parenthood." Id.
at 10 (citation and internal quotation marks omitted).
5
It appears from the record that Miller initially filed a petition for cus-
tody of Hope and of Faith (then unborn) in New York in March 1995,
while the parties were separated. See J.A. 130 (June 18, 1999 order of
Court of Appeal for Ontario); J.A. 182 (November 3, 1999 affidavit of
Ms. Miller). Ms. Miller thereafter, in May 1995, initiated divorce pro-
ceedings in New York. See J.A. 28 (April 22, 1998 order of New York
family court).
6
The New York family court, on February 6, 1998 — again, subse-
quent to the Ontario Order — issued a temporary order awarding custody
of Hope and Faith to Miller, with rights of supervised visitation in New
York for Ms. Miller. Prior to this temporary order, Miller never had sole
custody rights under any court order in New York. In fact, since Decem-
ber 1995, Miller had been entitled only to visitation.
7
Though properly served, Miller did not appear — in person or by
counsel — for proceedings in Canada that resulted in the Ontario Order
and a preceding temporary custody order in Ms. Miller’s favor.
MILLER v. MILLER 5
Before removing the children from Canada, Miller twice asked
Ontario courts to set aside the Ontario Order in favor of the New
York Order. Although his first request was rejected, his second, sub-
stantially identical entreaty was granted on September 1, 1998, a few
days after he removed the children to the United States. However, the
Ontario Order was reinstated in a June 18, 1999 order by the Court
of Appeal for Ontario ("Ontario Court of Appeal Order"). The court
of appeal first determined that, in recognizing the New York Order,
the lower court had misapplied Canadian law regarding the recogni-
tion of a foreign custody judgment. The court of appeal also con-
cluded that
[w]hatever rights the husband may have had by reason of
the [New York Order] or otherwise, he had no right either
to assault his wife or to abduct the children. In our view, his
conduct should have been condemned by the application
judge in the strongest possible terms. Whatever the faults of
the wife, the husband had to be made aware that his objec-
tives could not be achieved by violence or other unlawful
conduct. To consider his application in the circumstances,
was to approbate his conduct. . . .
The application judge expressed his "most sincere hope
that upon learning of the outcome of these proceedings the
father will return to the Niagara Falls area and will allow the
children to visit with their mother." That hope has not been
realized.
In our view, the application judge should have refused to
consider the application of the husband until the children
were returned to the custody of their mother. In our opinion
that is still the appropriate position of the court.
Ontario Court of Appeal Order, at 6. Notably, the court of appeal wel-
comed the parties to further litigate the custody issue once the chil-
dren were returned to Canada. Subsequent to this decree, however,
the New York family court issued a modifying order allowing Miller
to retain custody of Hope and Faith and relocate with them to North
Carolina. This modifying order was issued on August 16, 1999,
6 MILLER v. MILLER
nearly a year after Miller had absconded to North Carolina with the
children.
C.
Ms. Miller filed this action pursuant to the Hague Convention,
T.I.A.S. No. 11,670, 19 I.L.M. 1501, as implemented in the United
States by ICARA, 42 U.S.C. §§ 11601-11610. The petition was ini-
tially submitted to the United States District Court for the Western
District of New York on August 23, 1999. The action was thereafter
transferred to the Western District of North Carolina, where venue
properly lies. See § 11603(b) (permitting Hague Convention petitions
to be filed "in any court which has jurisdiction of such action and
which is authorized to exercise its jurisdiction in the place where the
child is located at the time the petition is filed").
The district court treated Ms. Miller’s petition as an application for
a writ of habeas corpus. See, e.g., Zajaczkowski v. Zajaczkowska, 932
F. Supp. 128 (D. Md. 1996). Notice of the proceeding was properly
given to the parties, see § 11603(c), and, as we explain below, the
case was appropriately determined by the district court in accordance
with the Hague Convention, see § 11603(d).
II.
A.
In adopting the Hague Convention, the signatory nations sought "to
protect children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual residence, as well as
to secure protection for rights of access." Hague Convention, pmbl.,
T.I.A.S. No. 11,670, at 2, 19 I.L.M. at 1501. That is, the primary pur-
pose of the Hague Convention is "to preserve the status quo and to
deter parents from crossing international boundaries in search of a
more sympathetic court." Friedrich v. Friedrich, 983 F.2d 1396, 1400
(6th Cir. 1993) ("Friedrich I"). Consequently, the scope of a court’s
inquiry under the Hague Convention is limited to the merits of the
abduction claim. See 42 U.S.C. § 11601(b)(4). As the district court
MILLER v. MILLER 7
correctly recognized in this action, "The merits of any underlying cus-
tody case are not at issue." District Court Order, at 3 (emphasis
added); see also Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999);
Friedrich v. Friedrich, 78 F.3d 1060, 1063-64 (6th Cir. 1996)
("Friedrich II").
In this case, Ms. Miller, as petitioner, was required to establish, by
a preponderance of the evidence, that her children were "wrongfully
removed or retained within the meaning of the Convention." 42
U.S.C. § 11603(e)(1)(A). Thus, Ms. Miller had to prove that: (1) the
children were "habitually resident" in Canada at the time Miller
removed them to the United States; (2) the removal was in breach of
Ms. Miller’s custody rights under Canadian law; and (3) she had been
exercising those rights at the time of removal. See Hague Convention,
art. 3, T.I.A.S. No. 11,670, at 2, 19 I.L.M. at 1501.8
Upon substantiation by Ms. Miller that removal of her children
from Canada was wrongful, Hope and Faith’s return was required
unless Miller, as respondent, established one of four available
defenses. See § 11603(e)(2)(A) (requiring proof, by clear and con-
vincing evidence, that one of the exceptions set forth in article 13b or
20 of the Hague Convention applies); § 11603(e)(2)(B) (commanding
proof, by a preponderance of the evidence, that some other exception
set forth in article 12 or 13 of the Hague Convention applies). In order
8
This article defines a "wrongful" removal or retention of a child as
one 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 imme-
diately before the removal or retention; and
b at the time of removal or retention those rights were actu-
ally exercised, either jointly or alone, or would have been so
exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may
arise in particular by operation of law or by reason of a judicial
or administrative decision, or by reason of an agreement having
legal effect under the law of that State.
Hague Convention, art. 3, T.I.A.S. No. 11,670, at 2, 19 I.L.M. at 1501.
8 MILLER v. MILLER
to prevail, therefore, Miller could show, by clear and convincing evi-
dence, that: (1) there was a grave risk that the children’s return to Ms.
Miller would expose them to physical or psychological harm or other-
wise place them in an intolerable situation, see Hague Convention,
art. 13b, T.I.A.S. No. 11,670, at 4-5, 19 I.L.M. at 1502, or (2) the
return of the children to Canada would not be permitted by the funda-
mental principles of the United States "relating to the protection of
human rights and fundamental freedoms[,]" Hague Convention, art.
20, T.I.A.S. No. 11,670, at 5-6, 19 I.L.M. at 1503. Miller also could
prevail if he established, by a preponderance of the evidence, that: (1)
this action was not commenced within one year of the abduction, and
the children were now well-settled in North Carolina, see Hague Con-
vention, art. 12, T.I.A.S. No. 11,670, at 4, 19 I.L.M. at 1502, or (2)
that Ms. Miller "was not actually exercising the custody rights at the
time of removal . . . or had consented to or subsequently acquiesced
in the removal[,]" Hague Convention, art. 13a, T.I.A.S. No. 11,670,
at 4, 19 I.L.M. at 1502.
Because of the competing New York and Ontario custody orders
in this case, it is significant to recognize that "the Convention was
meant, in part, to lend priority to the custody determination hailing
from the child’s state of habitual residence." Ohlander v. Larson, 114
F.3d 1531, 1541 (10th Cir. 1997). Thus, upon establishment of Can-
ada as the children’s "habitual residence," the mere existence of the
New York Order granting permanent custody of the children to Miller
was not in itself a defense for wrongful removal, though it would be
an appropriate — albeit discretionary — judicial exercise to "take
account of the reasons" for that decree in appraising the merits of this
abduction claim. See Hague Convention, art. 17, T.I.A.S. No. 11,670,
at 5, 19 I.L.M. at 1503.9
9
Article 17 of the Hague Convention provides, in full, the following:
The sole fact that a decision relating to custody has been given
in or is entitled to recognition in the requested State [here, the
United States] shall not be a ground for refusing to return a child
under this Convention, but the judicial or administrative authori-
ties of the requested State may take account of the reasons for
that decision in applying this Convention.
Hague Convention, art. 17, T.I.A.S. No. 11,670, at 5, 19 I.L.M. at 1503.
MILLER v. MILLER 9
B.
After setting forth its findings of fact, see supra Part I.A, the dis-
trict court concluded that Miller’s removal of Hope and Faith to the
United States was a breach of Ms. Miller’s custody rights under the
law of Canada, which was the habitual residence of the children at the
time of their abduction. Thus, the court determined, Miller’s "removal
of the children from Canada was wrongful and his present retention
of them in the United States is wrongful." District Court Order, at 5.
Moreover, the court concluded that the defenses raised by Miller were
inapplicable in this action. Accordingly, the court ordered that the
children be placed in Ms. Miller’s custody for their return to Canada,
and that law enforcement officers provide any necessary assistance to
ensure a safe homecoming. That order was carried out and the chil-
dren returned to Canada with their mother.
III.
In an action pursuant to ICARA and the Hague Convention, we
review the district court’s findings of fact for clear error, while its
conclusions regarding principles of domestic, foreign, and interna-
tional law are reviewed by us de novo. See Friedrich II, 78 F.3d at1064 (citing Fed. R. Civ. P. 44.1) (other citations omitted); accord
Shalit, 182 F.3d at 1127.
IV.
On appeal, Miller asserts that the district court erred in concluding
(1) that Ms. Miller proved the wrongful removal of her children from
Canada, within the meaning of the Hague Convention, and (2) that
Miller failed to establish any of the four available defenses. We
address these arguments in turn.
A.
First, Miller insists that because he had been granted permanent
custody of the children pursuant to the New York Order of March 24,
1998, the district court erred in concluding that Canada was the "ha-
bitual residence" of the children as of August 28, 1998 (the day he
10 MILLER v. MILLER
removed them to the United States) and that Ms. Miller was exercis-
ing valid custody rights under Canadian law on that day.
1.
The Hague Convention does not define "habitual residence." How-
ever, in ascertaining how to make this determination, we are guided
by the precedent of our sister circuits in concluding that "there is no
real distinction between ordinary residence and habitual residence."
Friedrich I, 983 F.2d at 1401 (citing In re Bates, No. CA 122.89,
High Court of Justice, Family Div’n Ct. Royal Court of Justice,
United Kingdom (1989)); accord Rydder v. Rydder, 49 F.3d 369, 373
(8th Cir. 1995). As the Sixth Circuit explained: "A person can have
only one habitual residence. On its face, habitual residence pertains
to customary residence prior to the removal. The court must look back
in time, not forward." Friedrich I, 983 F.2d at 1401. This is a fact-
specific inquiry that should be made on a case-by-case basis. See id.(citing Bates). Moreover, of potential import in this action, a parent
cannot create a new habitual residence by wrongfully removing and
sequestering a child. See Diorinou v. Mezitis, No. 00-9501, 2001 WL
20835, at *7 (2d Cir. Jan. 9, 2001) (citations omitted).
In this case, the evidence shows that both children were born in
Canada and resided there with their mother for a substantial portion
of their lives — in Faith’s case, for her entire life — until they were
removed by their father to the United States. Accordingly, the district
court determined that the children’s habitual residence at that time
was Canada. Miller maintains that this was error and that the United
States was their habitual residence, because Ms. Miller wrongfully
retained the children in Canada as of March 24, 1998, in violation of
the New York Order. (Miller does not, however, appear to dispute the
evidence as to the amount of time the children lived in Canada nor
assert that their Canadian residence began as a result of Ms. Miller
wrongfully moving them there.)
Because Miller’s argument presumes that the New York Order
superseded the earlier Ontario Order granting custody of the children
to Ms. Miller, we turn to the Ontario Court of Appeal Order uphold-
ing this custody award in the face of the New York Order. See
Diorinou, 2001 WL 20835, at *7-8 (in Hague Convention action
MILLER v. MILLER 11
where father insisted children were not habitual residents of Greece
because mother had wrongfully retained them there, the Second Cir-
cuit looked to prior Hague Convention action between same parties
in which Greek courts concluded that children’s retention in Greece
was not wrongful).10 In determining the amount of deference due to
the Canadian decision, we acknowledge that "judgments rendered in
a foreign nation are not entitled to the protection of full faith and
credit." Id. at *8 (quoting Restatement (Second) of Conflict of Laws
§ 98 cmt. b (1971)). We note, however, that "American courts will
normally accord considerable deference to foreign adjudications as a
matter of comity." Id. (citations omitted). Indeed, "comity is at the
heart of the Hague Convention." Id. (citations and internal quotation
marks omitted).
After reviewing the complex history of litigation in this case, the
Ontario Court of Appeal upheld the validity of the Ontario Order —
at least pending further proceedings — and denied recognition of the
New York Order based on Canadian conflict of law principles.11 In
10
Miller asks us, instead, to look to the New York Order. He contends
that, under the full faith and credit provisions of the Parental Kidnapping
Prevention Act ("PKPA"), 28 U.S.C. § 1738A, the New York Order
supersedes the Ontario Order. Miller’s reliance on the PKPA is mis-
placed, however, because it applies only to determinations by courts
within the United States and its territories.
11
Our distinguished colleague Judge Garwood, in his concurring opin-
ion, maintains that the Ontario Court of Appeal merely sought to restore
the pre-removal status quo without concluding that Ms. Miller was ulti-
mately entitled to custody. Moreover, he says that "[t]he court of appeal
cast no doubt on the trial court’s September 1, 1998 finding that Doris
Miller ‘flagrantly has been holding the children in direct contravention
of a [March 28, 1998] court order issued by a Niagara Falls, New York
court,’ in the proceeding which Doris Miller instituted, awarding custody
to William Miller." Post, at 17. With all respect to our good friend, we
perceive the circumstances somewhat differently, for three reasons.
First, the court of appeal’s decision was based not only on its objective
to restore the status quo, but also on its conclusion that the lower court
committed legal error in applying Canadian conflict of law principles.
Thus, it does not follow that the court of appeal agreed with the lower
court that Ms. Miller was "flagrantly" defying the foreign judgment.
12 MILLER v. MILLER
light of this reasonable disposition, we see no reason not to defer to
the court’s decision. Therefore, we reject Miller’s contentions that
Ms. Miller wrongfully retained the children in Canada upon issuance
of the New York Order.12 Furthermore, we agree with the district
court that Canada was the children’s "habitual residence" at the time
Miller absconded with them to the United States.
2.
Miller’s related argument — that, because of the New York Order,
Ms. Miller was not exercising valid custody rights on August 28,
1998 — similarly fails. Indeed, because we agree that Canada was the
children’s "habitual residence" for purposes of the abduction claim,
we look to Canadian law to determine whether Ms. Miller was exer-
cising valid custody rights in that country at the time of the children’s
removal. See Friedrich I, 983 F.2d at 1402 ("Under the Convention,
whether a parent was exercising lawful custody rights over a child at
the time of removal must be determined under the law of the child’s
habitual residence." (citation omitted)); Shalit, 182 F.3d at 1128-29(holding that this determination "is not limited to internal or domestic
Second, at most, the court of appeal left open the possibility that Miller
might later be found to have custody rights under the New York Order.
See Ontario Court of Appeal Order, at 6 ("Whatever rights the husband
may have had by reason of the [New York Order] or otherwise . . . ."
(emphasis added)). Indeed, the court of appeal observed that the parties
could elect to pursue further custody determinations in Canada once the
children were returned there — precisely the result allowed by the dis-
trict court’s decision in this Hague Convention action.
Third, it is unclear that it was Ms. Miller — rather than Miller — who
initiated the custody proceedings in New York. See supra note 5. We
doubt, however, the relevance of this detail to our limited inquiry under
the Hague Convention, though it might be pertinent in any future pro-
ceedings in other, appropriate courts concerning the underlying merits of
this unfortunate dispute.
12
Even if we agreed with Miller that his ex-wife wrongfully retained
the children in Canada in violation of the New York Order, it would not
necessarily follow that the children’s habitual residence was the United
States.
MILLER v. MILLER 13
law but includes the conflict of law rules of the state of habitual resi-
dence").
As previously discussed, the Ontario Court of Appeal — by all
accounts, a competent judicial body — determined that Ms. Miller
was entitled to custody of Hope and Faith, despite the New York
Order to the contrary. Miller failed to provide any authority from
Canada undermining this decision or any other reason to question the
Ontario court’s interpretation of the law of its own country. Thus, we
are compelled to agree with the district court that Ms. Miller was
exercising valid custody rights in Canada when her children were
removed from that country.13
13
Moreover, the Hague Convention was intended to give priority to a
custody decision issued in Canada, as the country of habitual residence,
see Ohlander, 114 F.3d at 1541, and the sole fact that a custody decision
was rendered in New York is not in itself a ground for refusing to return
the children to Canada, see Hague Convention, art. 17, T.I.A.S. No.
11,670, at 5, 19 I.L.M. at 1503. Furthermore, during the district court
hearing on November 4, 1999, Miller’s counsel conceded that Miller had
no valid order from any court allowing him to remove the children from
Canada to the United States without Ms. Miller’s consent.
I think the only thing petitioner [Ms. Miller] can really argue is
we maintain a fallacious argument and that is that when my cli-
ent went to Canada in August of 1998 to visit his children, he
took them and he brought them across the line to — border to
Buffalo and at that time he and his mother had moved to Char-
lotte and brought them on down here and that that was a wrong-
ful removal, and I’ve already expressed our position that we
don’t contend that’s a wrongful removal under the statute, but
obviously he did not have an order of the Canada court — or an
order of the United States court in his hand that says you can go
in the house and you can take the children and bring them back
....
....
[P]etitioner would argue to the court that although his taking the
children may be a technical trespass or violation of some Cana-
dian law, which I understand there’s some warrants outstanding
for him, that that is likewise a wrongful removal under Hague.
And I submit to Your Honor that common sense dictates that that
is not what is intended by Hague.
14 MILLER v. MILLER
B.
Next, Miller asserts that he established two defenses that should
have prevented the reunion of Hope and Faith with their mother in
Canada — that the return posed a grave risk of harm to the children,
and that they had been well-settled in North Carolina.14 As addressed
in Part II.A, supra, the defense of "grave risk" must be proven by
clear and convincing evidence. As with each of the other three excep-
tions, this defense is a narrow one. See 42 U.S.C. § 11601(a)(4); Frie-
drich II, 78 F.3d at 1067 (instructing that these defenses "are not a
basis for avoiding return of a child merely because an American court
believes it can better or more quickly resolve a dispute"). In fact, "the
courts retain the discretion to order return even if one of the excep-
tions is proven." Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir.
1995) (citing Pub. Notice 957, 51 Fed. Reg. 10,494, 10,509 (1986)).
As the Sixth Circuit explained with respect to the "grave risk" excep-
tion in particular:
“In thinking about these problems, we acknowledge that
courts in the abducted-from country are as ready and able as
we are to protect children. If return to a country, or to the
custody of a parent in that country, is dangerous, we can
expect that country’s courts to respond accordingly. . . .
When we trust the court system in the abducted-from coun-
try, the vast majority of claims of harm — those that do not
rise to the level of gravity required by the Convention —
evaporate.
J.A. 201-03 (emphasis added). These assertions about "common sense"
aside, the Hague Convention is clearly intended to prevent exactly what
occurred in this case: "self-help," or "the law of grab and run."
14
The latter of these two exceptions — the "well-settled" defense —
has no application here. As discussed in Part II.A, supra, this defense
requires proof by a preponderance of the evidence that the Hague Con-
vention action was not commenced within one year of the abduction and
that "the child is now settled in its new environment." Hague Conven-
tion, art. 12, T.I.A.S. No. 11,670, at 4, 19 I.L.M. at 1502. In this case,
the petition was filed within a year of the wrongful removal.
MILLER v. MILLER 15
Friedrich II, 78 F.3d at 1068 (internal citation omitted).
In this case, Miller asserts that the district court was required to
adopt the factual findings in the New York Order with regard to Ms.
Miller’s parental fitness and, accordingly, should have declined to
return the children to her under the "grave risk" exception. Such def-
erence to the New York family court was not, in fact, required,
though the district court possessed discretion to "take account of the
reasons" for the New York Order in appraising the merits of Miller’s
asserted defense. See Hague Convention, art. 17, T.I.A.S. No. 11,670,
at 5, 19 I.L.M. at 1503. The findings of fact in the New York Order
— if true — raise serious questions about Ms. Miller’s fitness to raise
Hope and Faith. However, we recognize that the family court drew
the strongest inferences against her that the evidence permitted, due
to her decision not to testify in her own behalf or even attend the New
York proceedings following issuance of the Ontario Order. Without
more evidence than the findings in the New York Order, we agree
with the district court that Miller failed to meet his burden in proving
the "grave risk" defense. See Diorinou, 2001 WL 20835, at *11
(where competing custody decrees were issued in New York and
Greece, the Second Circuit endorsed the district court’s refusal to
enforce the order from the abducted-to country (the United States)
because it resulted from "a one-sided and defective presentation"
(citation omitted)). Moreover, we are confident that if Ms. Miller
truly poses a danger to her children, the Ontario courts are ready and
able to take every step to protect them. See Ontario Court of Appeal
Order, at 6 (remarking that "the parties are entirely free to request"
a full hearing of the custody question).
V.
Pursuant to the foregoing, we agree with the district court’s dispo-
sition of this dispute. We therefore affirm the court’s ruling, as
embodied in its Memorandum and Order of November 4, 1999.
AFFIRMED
GARWOOD, Senior Circuit Judge, concurring in the result:
Despite Judge King’s cogent opinion, I remain troubled by this
case.
16 MILLER v. MILLER
It is abundantly clear that appellee Doris Miller has willfully
flouted the valid orders of the New York court issued in the divorce
proceedings she instituted there against appellant William Miller,
including unappealed orders awarding custody of the children to Wil-
liam Miller issued after the February 12 and October 3, 1997 orders
of the Ontario court (awarding her custody of the children). Those
Ontario court orders were issued (without William Miller being pres-
ent in person or through counsel at any hearing) in custody proceed-
ings Doris Miller instituted there over a year after she filed the New
York proceedings. Indeed, Doris Miller personally participated in the
New York proceeding evidentiary hearings in September 1997 which
ultimately led to the later New York court orders awarding custody
to William Miller. And in September 1998 Doris Miller sought an
order from the New York court granting her custody which relief was
ultimately denied, and the award of custody to William Miller reaf-
firmed, in the New York court’s unappealed order entered August 16,
1999. The New York court award of custody to William Miller has
never been modified.
When William Miller forcibly removed the children from Doris
Miller in Canada on August 28, 1998, the last decree outstanding was
that of the New York court awarding him custody. The New York
court undoubtedly had jurisdiction for that purpose and Doris Miller,
the sole petitioner in this case, was bound by that decree notwith-
standing the earlier February and October 1997 Ontario court orders.
See, e.g., Restatement (2nd) Conflict of Laws §§ 34, 70, 71, 79 &
comments a ("a state has power to determine a child’s custody or
guardianship as between persons (normally the parents) who are com-
peting for it and over whom it has personal jurisdiction") and c ("so
long as it remains unmodified either at home or abroad, a custody
decree rendered by a court having jurisdiction under the rules stated
in this section will be recognized in other states"), and 114; Restate-
ment (2nd) Judgments § 15.
I do not understand the June 1999 decision of the Ontario Court of
Appeal to hold otherwise. Rather, as I read it, that decision held that
the Ontario trial court erred in its September 1, 1998 decision, which
set aside the October 3, 1997 Ontario court decision awarding Doris
Miller custody, because the trial court "should have refused to con-
sider the application of the husband until the children were returned
MILLER v. MILLER 17
to the custody of their mother." (emphasis added). This followed the
appellate court’s reference to the trial court’s having "deal[t] with the
wife’s disobedience with respect to the New York court orders
regarding custody of the children," after which the appellate court
went on to say:
"Whatever rights the husband may have had by reason of the
orders of Judge Crapsi [judge of the New York court] or
otherwise, he had no right either to assault his wife or to
abduct the children. In our view, his conduct should have
been condemned by the application judge in the strongest
possible terms. Whatever the faults of the wife, the husband
had to be made aware that his objectives could not be
achieved by violence or other unlawful conduct. To consider
his application in the circumstances, was to approbate his
conduct." (emphasis added)
The Court of Appeal made it clear that it was not ultimately ruling on
who was legally entitled to custody, but rather was holding that that
should not be decided until the status quo, as it existed before William
Miller’s resort to violent self-help, was restored. The Court of Appeal
cast no doubt on the trial court’s September 1, 1998 finding that Doris
Miller "flagrantly has been holding the children in direct contraven-
tion of a [March 24, 1998] court order issued by a Niagra Falls, New
York court," in the proceeding which Doris Miller instituted, award-
ing custody to William Miller. Thus, I am unable to agree with the
statement in this Court’s opinion that "[w]e reject Miller’s contentions
that Ms. Miller wrongfully retained the children in Canada upon issu-
ance of the New York [March 1998] order."
Nevertheless, I would not attempt to grant William Miller relief in
the present appeal (assuming any is now practically available). He did
resort to violent and unlawful self-help, the custody issue has been
left open both in these Hague Convention proceedings and by the
Ontario Court of Appeal, and, most importantly, the children have for
well over a year now been returned to their mother in Canada. As
directed by the district court, the children were put on an airplane for
Canada on November 4, 1999. Apparently no stay was sought from
18 MILLER v. MILLER
this Court. Cf. Diorinou v. Mezitis, No. 00-9501, 2001 WL 20835 at
*3 (2d Cir. Jan. 9, 2001).*
*A week’s stay was orally requested in the district court, but not to
allow an application for stay to this Court but rather to get the children
ready and to gather more evidence to present to the district court. Had
a brief stay been requested to allow a stay application to this Court to be
presented and acted on it seems a fair assumption that such relief would
(and should) have been granted.