Baxter v. Baxter ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-15-2005
Baxter v. Baxter
Precedential or Non-Precedential: Precedential
Docket No. 04-3228
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3228
HENRY G. BAXTER,
Appellant
v.
JODY AMANDA BAXTER
On Appeal from the United States District Court
for the District of Delaware
D.C. Civil Action No. 04-cv-00308
(Honorable Joseph J. Farnan, Jr.)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 26, 2005
Before: SCIRICA, Chief Judge,
ALITO and GARTH, Circuit Judges
(Filed September 15, 2005)
MATT NEIDERMAN, ESQUIRE
Duane Morris LLP
1100 North Market Street, Suite 1200
Wilmington, Delaware 19801
Attorney for Appellant
GERARD F. GRAY, ESQUIRE
Gray & Associates
13 East Laurel Street
Georgetown, Delaware 19947
GEORGIA L. LEONHART, ESQUIRE
9 McIntosh Court
Lewes, Delaware 19958
Attorneys for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
This is an appeal from the denial of a petition for the
return of a child to Australia under the Hague Convention on the
Civil Aspects of International Child Abduction, Oct. 25, 1980,
19 I.L.M. 1501. The principal issue is whether the District
Court correctly held the petitioner consented to the removal or
retention of the child under article 13(a) of the Hague
2
Convention, defeating his claim for return. See Baxter v.
Baxter, 324 F. Supp. 2d 536, 538 (D. Del. 2004). We will
reverse and remand.
I.
Henry G. Baxter initiated this proceeding on May 13,
2004 by filing a petition in the District Court of Delaware
seeking the expedited return of his five-year old son Torin to
Australia. The petition alleges that his wife, Jody Amanda
Baxter, wrongfully retained Torin in the United States under the
Convention, and that Torin’s custody should be decided by an
Australian court.
Although the parties disagree on the reasons for Mrs.
Baxter and Torin’s trip to Delaware, the factual background is
straightforward. On September 2, 2003, Mrs. Baxter and Torin
traveled to the United States from Australia without Mr. Baxter.
They took up residence at the home of Mrs. Baxter’s mother and
sister in Selbyville, Delaware.1 Within two weeks of her arrival,
Mrs. Baxter commenced a relationship with Kelly Stidham, a
local contractor working on a project at her mother’s house.
Fourteen days later, Mrs. Baxter and Torin moved in with Mr.
Stidham. A few days thereafter, Mrs. Baxter telephoned her
husband in Australia and demanded a divorce. Mrs. Baxter and
Torin have since been living in the home of Mr. Stidham.
1
Mrs. Baxter was born in Selbyville and has dual U.S. and
Australian citizenship.
3
Before September 2003, Torin and his parents lived
together as a family in Australia.2 Their lifestyle was itinerant.
During the first four years of Torin’s life, the family lived in
several remote settlements in the Australian outback, and also
spent a year in Ireland. Mr. Baxter moved from job to job, and
the family moved from place to place. The Baxters’ last home
together was on Bathurst Island, an aboriginal community in the
Tiwi Islands, in Australia’s rugged Northern Territory. By all
accounts, their stay there was short and troubled. The
community was beset with problems, including petrol sniffing
and domestic violence. The couple eventually decided the
environment was unsuitable for their child, and that Mrs. Baxter
and Torin should leave Bathurst Island and travel to the United
States to visit Torin’s grandmother and aunt, whom the child
had never met.
The parties dispute whether the purpose of the trip to
Delaware was to relocate definitively in the United States or to
visit relatives for a time while giving the family an opportunity
to plot a new course. The evidence demonstrates that Mrs.
Baxter and Torin flew to the U.S. on one-way tickets, and that
Mrs. Baxter took with her important personal and family
2
Torin has four older half-siblings (Mr. and Mrs. Baxter had
two children each from prior marriages) who live with their
other parents in Western Australia.
4
documents.3 At the same time, they left behind in Australia with
Mr. Baxter a large number of possessions, including personal
effects and toys.
The District Court conducted a full evidentiary hearing
where the parties and other witnesses testified. Affidavits were
entered into the record without objection. Mr. Baxter testified
that before learning of his wife’s affair with Mr. Stidham, he
had planned to rejoin his family in Delaware for the Christmas
holidays. He sent a letter to his employer on the Tiwi Islands
asking for leave in December, and purchased an airplane ticket
to the United States. Mr. Baxter testified that he was open to the
idea of looking for work in the U.S. during the trip, but that it
might not prove feasible. Otherwise, he claims the plan was that
the family would probably return to Australia, once he found a
new job and a new place for them to live. The parties agree
there was no talk of divorce or separation prior to Mrs. Baxter
and Torin’s departure.
3
It is unclear why the Baxters decided to purchase one-way
rather than round-trip tickets for Torin and Mrs. Baxter. The
record does not reveal whether the one-way tickets were less
expensive, whether they were chosen because any return date
was uncertain, or because Mrs. Baxter and Torin planned to
remain in the United States indefinitely. One year earlier, the
family had bought round-trip tickets for a one-month stay, but
the trip was cancelled.
5
For her part, Mrs. Baxter testified that the idea of the trip
was to escape the troubled community on Bathurst Island while
Mr. Baxter tried to establish a new business selling solar-
powered water purifiers to remote outback dwellings. She
testified that the move to the United States was “permanent,
because [Mr. Baxter] didn’t want to worry about us.” On the
other hand, she admitted that the plan was for Mr. Baxter to
rejoin her and Torin in Delaware over Christmas. She also
testified that “it wasn’t until [she] met Mr. Stidham that
everything changed and [she] decided to end [her] marriage and
live with Mr. Stidham.”
The testimony from Mrs. Baxter’s family is also
inconclusive about the trip’s purpose. Her sister testified, based
on telephone conversations prior to Mrs. Baxter and Torin’s
arrival, that the primary goal of the trip was to visit family, and
that exploring the possibility of a move to the U.S. was
secondary. Her mother, on the other hand, testified that “[Mrs.
Baxter] and Torin were coming over to live, and to establish a
home, education.” Mrs. Baxter’s mother enclosed a porch in her
house to create a play space for Torin’s benefit, indicating her
expectation that the visit would be long-term.
The District Court found under the Hague Convention
that Australia was the habitual residence of the child until the
time of the move to Delaware. Baxter, 324 F. Supp. 2d at 538.
The court noted that a purpose of the trip was to explore the
possibility of a permanent move, but found there was no intent
to resolve this matter until after Mrs. Baxter and Torin’s arrival.
6
Id. at 539. Nevertheless, the court concluded that Mr. Baxter
had consented to Torin’s removal to the United States, defeating
his claim for return of the child under the Hague Convention.
Id. Mr. Baxter filed this timely appeal.
II.
We have appellate jurisdiction under 28 U.S.C. § 1291.
The District Court had subject-matter jurisdiction under 28
U.S.C. § 1331, as this action arose under the Hague Convention
on the Civil Aspects of International Child Abduction, Oct. 25,
1980, 19 I.L.M. 1501, and its implementing legislation, the
International Child Abduction Remedies Act, 42 U.S.C. § 11601et seq. (“ICARA”). Under ICARA, state and federal district
courts have concurrent original jurisdiction over actions arising
under the Convention. 42 U.S.C. § 11603(a).
We review the District Court’s findings of historical and
narrative facts for clear error, but exercise plenary review over
the court’s application of legal precepts to the facts. Delvoye v.
Lee, 329 F.3d 330, 332 (3d Cir. 2003); Feder v. Evans-Feder, 63
F.3d 217, 222 n.9 (3d Cir. 1995); see also Beta Spawn, Inc. v.
FFE Transp. Servs., 250 F.3d 218, 223 (3d Cir. 2001) (“This
court has plenary review over the district court’s choice and
interpretation of legal standards, and its application of those
standards to the facts of the case.”).
7
III.
The Hague Convention has two main purposes: “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. Any person seeking the return of a
child under the Convention may commence a civil action by
filing a petition in a court where the child is located. 42 U.S.C.
§ 11603(b). More broadly, the Convention’s 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 Feder, 63 F.3d at 221.
The Convention is not designed to settle international custody
disputes, but rather to ensure that cases are heard in the proper
court. See 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.”).
Under article 3 of the Convention, the removal or
retention of a child 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
8
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. To obtain an order for the child’s
return, the petitioner bears the burden of proving by a
preponderance of the evidence that the removal or retention was
wrongful under article 3. 42 U.S.C. § 11603(e)(1)(A). If this
burden is met and the petition is filed within the appropriate
time frame, the Convention requires courts to “order the return
of the child forthwith.” Hague Convention, art. 12.
Wrongful removal or retention claims under article 3 of
the Convention typically raise four issues for analysis: when the
removal or retention at issue occurred, the country in which the
child was habitually resident prior to the removal or retention,
whether the removal or retention breached the custody rights of
the petitioner, and whether the petitioner was exercising those
custody rights at the time of the removal or retention. See
Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001); see also
Feder, 63 F.3d at 225 (holding wrongful retention inquiry
centers on whether petitioner’s custody rights under law of
country of habitual residence were breached by the retention,
and whether petitioner was exercising those rights at the time of
the retention). If the court finds wrongful removal or retention,
the burden shifts to the respondent to prove an affirmative
defense to the return of the child to the country of habitual
residence under article 13 of the Convention. The respondent
9
must prove the defense of consent or acquiescence to the
removal or retention by a preponderance of the evidence, or the
defense of a grave risk of harm by clear and convincing
evidence. 42 U.S.C. § 11603(e)(2). The affirmative defenses
are narrowly construed to effectuate the purposes of the
Convention, and even finding an exception under article 13 does
not automatically preclude an order of return. See Hague
International Child Abduction Convention; Text and Legal
Analysis, 51 Fed. Reg. 10,494, 10,509 (Mar. 26, 1986);
Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996).
A.
Mr. Baxter contends on appeal that the District Court
misapplied article 3 of the Convention by failing to give proper
consideration to his wrongful retention claim. The court
terminated its analysis after holding that Mr. Baxter consented
to Torin’s removal from Australia at the time of his departure.
It did not address wrongful retention, even though this was the
principal contention of Mr. Baxter’s petition. The crux of Mr.
Baxter’s appeal is that his consent to Torin’s trip to United
States was conditional – given under the assumption that the
family would reunite at Christmas and then in all likelihood
return to Australia. He contends that his wife’s decision to
retain Torin permanently in Delaware was unilateral and
breached his custody rights.
As a preliminary matter, the District Court ruled that
Torin’s habitual residence prior to the contested removal or
10
retention was Australia. Although not an issue contested on
appeal, the finding is supported by the record. We have defined
a child’s habitual residence as “the place where he or she has
been physically present for an amount of time sufficient for
acclimatization and which has a ‘degree of settled purpose’ from
the child’s perspective.” Feder, 63 F.3d at 224; Delvoye, 329
F.3d at 332-333. The inquiry “must focus on the child and
consists of an analysis of the child’s circumstances in that place
and the parents’ present, shared intentions regarding their child’s
presence there.” Feder, 63 F.3d at 224; Delvoye, 329 F.3d at
332-333. On the facts here, Delaware does not qualify as
Torin’s habitual residence prior to removal.
The District Court found the Baxters disagreed whether
the move to the United States was permanent or merely intended
as a “first step [towards] finding a suitable residence for the
child outside Australia.” Baxter, 324 F. Supp. 2d at 539. The
finding that the Baxters had decided to leave Australia
definitively is unsupported and will be set aside as clearly
erroneous. The finding is belied by the court’s own conclusions
that Australia remained the country of habitual residence at the
time of removal, and that the Baxters were undecided about their
next residence. (The court found: “It is clear from the evidence
that the parties did not intend to resolve this question in any
event until after Respondent and the Child had moved to the
United States.”) Id. The only uncontradicted record evidence
of settled intent by the parties was to move away from the harsh
circumstances of the Tiwi Islands. At the time of Mrs. Baxter
11
and Torin’s departure in September 2003, nothing in the record
indicates that a subsequent return to Australia, to a more
tolerable location for Torin, had been ruled out. The record
establishes that the parties saw the trip in the first instance as an
opportunity to escape from the disagreeable circumstances of
Bathurst Island, to visit family, and to buy time to plan their next
move. This falls short of the “settled purpose” required under
the Convention for a finding that the country of habitual
residence has been abandoned.
After addressing habitual residence, the District Court
proceeded directly to examine Mrs. Baxter’s affirmative defense
of consent without analyzing the remaining elements of Mr.
Baxter’s article 3 claim. See Hague Convention, art. 3; Mozes,
239 F.3d at 1070 (noting that article 3 raises four issues for
courts to determine: when the removal or retention at issue
occurred, the country of habitual residence, whether the removal
or retention breached petitioner’s custody rights, and whether
petitioner was actually exercising those custody rights at the
time of the removal or retention). The District Court’s analysis
focused only on the circumstances of the departure from
Australia (removal), not Mrs. Baxter’s subsequent decision to
remain permanently in Delaware with Torin (retention). The
court’s focus was too narrow. As noted, the crux of Mr.
Baxter’s claim was wrongful retention, not wrongful removal
(the relevant heading in his petition was titled “The Removal
and Wrongful Retention of Torin”).
12
Nor did the District Court address whether Torin’s
removal or retention breached Mr. Baxter’s custody rights under
Australian law, or whether Mr. Baxter “actually exercised” his
custody rights at the time of the removal or retention.4 Hague
Convention, art. 3. Mrs. Baxter does not dispute that Mr. Baxter
has rights of joint custody over Torin under Australian law.
Furthermore, the record demonstrates that Mr. Baxter “actually
exercised” his custody rights under article 3 at the time of the
removal and retention. Mrs. Baxter alleged in her pre-hearing
submission that after their arrival in Delaware, her husband
“provided no financial support and his only contact with his son
consisted of infrequent phone calls.” But they had only been
gone a few weeks before Mrs. Baxter told her husband she had
decided to remain in Delaware with Torin. Reduced contact or
lack of financial support over such a short period of time is
4
Article 14 of the Convention permits courts to take judicial
notice of the law of the country of habitual residence in
answering these questions. See Hague Convention, art. 14 (“In
ascertaining whether there has been a wrongful removal or
retention within the meaning of Article 3, the judicial or
administrative authorities of the requested State may take notice
directly of the law of, and of judicial or administrative decisions,
formally recognized or not in the State of the habitual residence
of the child, without recourse to the specific procedures for the
proof of that law or for the recognition of foreign decisions
which would otherwise be applicable.”); see also Mozes v.
Mozes, 239 F.3d 1067, 1085 (9th Cir. 2001).
13
insufficient under the Convention to demonstrate that a parent
has ceased exercising custody rights. Prior to their departure,
the Baxters lived together as a family and there was no
allegation of non-support. Moreover, as with the article 13(a)
defenses of consent and acquiescence (discussed in Part III. B,
infra), the test for finding the non-exercise of custody rights
under the Hague Convention is stringent. See Friedrich, 78
F.3d at 1065-1066 (“The only acceptable solution, in the
absence of a ruling from a court in the country of habitual
residence, is to liberally find ‘exercise’ whenever a parent with
de jure custody rights keeps, or seeks to keep, any sort of
regular contact with his or her child . . . . [I]f a person has valid
custody rights to a child under the law of the country of the
child’s habitual residence, that person cannot fail to ‘exercise’
those custody rights under the Hague Convention short of acts
that constitute clear and unequivocal abandonment of the
child.”); see also Sealed Appellant v. Sealed Appellee, 394 F.3d
338, 344-45 (5th Cir. 2004).
In holding that Mr. Baxter consented to Torin’s removal,
the District Court relied on its finding that Mr. and Mrs. Baxter
“agreed it was in the best interests of the Child to remove the
Child to the United States.” Baxter, 324 F. Supp. 2d at 538.
The court pointed to the family’s negative experience in the
Tiwi Islands, the purchase of one-way tickets, taking the family
documents, and hiring the contractor to enclose the porch of the
house in Delaware as facts pointing to consent to removal. Id.
at 538-39. But the court did not address the nature or scope of
14
Mr. Baxter’s consent. Nor did it address whether Mr. Baxter
consented to or even contemplated his wife’s permanent
retention of Torin in Delaware.
Mrs. Baxter contends that under the Convention, once a
court finds the petitioner has consented to the child’s initial
removal, the inquiry ends and there is no need to address
retention. This argument is based on the text of article 13(a)’s
provision that a child need not be returned if the petitioner “had
consented to or subsequently acquiesced in the removal or
retention.” Mrs. Baxter contends that analyzing retention as
well as removal would amount to rewriting article 13(a) to read
“... in the removal and retention.”
This argument misreads the Convention. The words
“removal or retention” refer to whichever may be relevant to
the case at hand, and create a multiple, not alternative,
obligation. In other words, the use of the word “or” in article
13(a) of the Convention is not disjunctive in the sense of
indicating an alternative between mutually exclusive things. See
Wanninger v. Wanninger, 850 F. Supp. 78, 82 (D. Mass. 1994)
(“The Hague Convention covers both wrongful removal and
wrongful retention.”) (emphasis in original).5 Article 13(a) does
5
Wanninger presented facts similar to this case. The
petitioner allowed his children to travel to the United States for
summer vacation and the respondent kept them here once it
became clear their marriage would end. The court held that
“even accepting Catherine’s position that Manfred consented to
15
not provide that if a parent consents to removal of the child for
a period, under certain conditions or circumstances, that
retention of the child beyond those conditions or circumstances
is necessarily permissible. See, e.g., Doudle v. Gause, 282 F.
Supp. 2d 922, 929 (N.D. Ind. 2003) (“[E]ven if the Respondent
intended to remove the children for a maximum of one year, her
actions since 2000 have exceeded the scope of Petitioner’s
consent and she is wrongfully retaining the children in the
U.S.”). Article 3 proscribes wrongful removal and/or wrongful
retention, as applicable. The inquiry does not necessarily end
with the petitioner’s consent to the child’s removal. If the
petitioner agrees to a removal under certain conditions or
circumstances and contends those conditions have been
breached, the court must also examine any wrongful retention
claim.
B.
Mr. Baxter also contends that the District Court erred by
interpreting the Hague Convention’s affirmative defense of
consent in article 13(a) too broadly. The defense provides that
her taking the children to the United States for a limited period,
it does not follow that Manfred acquiesced to the children’s
permanent retention in the United States once he realized that
his marriage was irreconcilable . . . . The sequence of events and
actions taken by Manfred strongly supports the conclusion that
Manfred did not agree that the children remain in the United
States for an indefinite period of time.” 850 F. Supp. at 82.
16
“the judicial or administrative authority of the requested State is
not bound to order the return of the child if the person,
institution or other body which opposes its return establishes
that . . . the person, institution or other body having care of the
person of the child . . . had consented to or subsequently
acquiesced in the removal or retention[.]” Hague Convention,
art. 13(a). As noted, the District Court ruled that Mrs. Baxter
proved by a preponderance of the evidence that Mr. Baxter
consented to Torin’s removal to Delaware, defeating his claim
for return. Baxter, 324 F. Supp. 2d at 538. We believe the court
misconstrued the consent defense in this case.
Although analytically distinct, the defenses of consent
and acquiescence under article 13(a) of the Hague Convention
are both narrow. See 42 U.S.C. § 11601(a)(4); 51 Fed. Reg. at
10,509; Feder, 63 F.3d at 226. The consent defense involves
the petitioner’s conduct prior to the contested removal or
retention, while acquiescence addresses whether the petitioner
subsequently agreed to or accepted the removal or retention.
See Gonzalez-Caballero v. Mena, 251 F.3d 789, 794 (9th Cir.
2001). Although the law construing the consent defense under
the Convention is less developed, the defense of acquiescence
has been held to require “an act or statement with the requisite
formality, such as testimony in a judicial proceeding; a
convincing written renunciation of rights; or a consistent attitude
of acquiescence over a significant period of time.” Friedrich,
78 F.3d at 1070 (internal footnotes omitted). Courts have held
the acquiescence inquiry turns on the subjective intent of the
17
parent who is claimed to have acquiesced. See Pesin v. Osorio
Rodriguez, 77 F. Supp. 2d 1277, 1288 (S.D. Fla. 1999) (citing
Friedrich, 78 F.3d at 1060, Wanninger, 850 F.Supp. at 81-82,
and cases from the high courts of the United Kingdom and
France).
Consent need not be expressed with the same degree of
formality as acquiescence in order to prove the defense under
article 13(a). Often, the petitioner grants some measure of
consent, such as permission to travel, in an informal manner
before the parties become involved in a custody dispute. The
consent and acquiescence inquiries are similar, however, in their
focus on the petitioner’s subjective intent. In examining a
consent defense, it is important to consider what the petitioner
actually contemplated and agreed to in allowing the child to
travel outside its home country. The nature and scope of the
petitioner’s consent, and any conditions or limitations, should be
taken into account. The fact that a petitioner initially allows
children to travel, and knows their location and how to contact
them, does not necessarily constitute consent to removal or
retention under the Convention. See Fabri v. Pritikin-Fabri,
221 F. Supp. 2d 859, 871-72 (N.D. Ill. 2001) (“Many cases
begin with a parent’s taking the child away from home for a
vacation or visit with the consent of the other parent, but
nevertheless result in a Hague Convention order compelling the
child’s return”); see also Ciotola v. Fiocca, 86 Ohio Misc. 2d
24, 29 (Ct. Com. Pl. 1997) (ordering return of child to Italy after
petitioner allowed respondent to take child to family wedding in
18
Ohio); Renovales v. Roosa, 1991 WL 204483, at *1-2 (Conn.
Super. Ct. Sep. 27, 1991) (ordering return of child to Spain after
petitioner allowed respondent to take child to her parents’ home
in Connecticut for summer vacation).
Mrs. Baxter argues this case more closely resembles
Gonzalez-Caballero v. Mena, where the Court of Appeals for
the Ninth Circuit upheld a finding of consent under the
Convention and denied a petition for return. See 251 F.3d at
794. But its facts are inapposite. In Gonzalez-Caballero, it was
clear that petitioner had consented to her child’s removal and
retention. The parents had concluded the child “would have a
better life in the United States” and should immigrate to be with
respondent, an American citizen. Id. at 791. The petitioner had
told respondent that she could no longer care for the child
because she was pregnant and her boyfriend had left her. Id.She only petitioned for the child’s return after “regretting her
decision” to allow her daughter to be removed to the United
States. Id. at 793. The Gonzalez-Caballero court parsed
through eight separate factual grounds evidencing consent, id.,of which only one (taking the child’s personal documents) is
present in this case.
There is no similar factual basis for finding consent here.
As noted, it is clear that Mr. Baxter consented to Torin’s visit to
Delaware for a limited period of time, under certain
circumstances and conditions. But nothing in the record
demonstrates that he consented to the child’s permanent
retention in the United States, or to Mrs. Baxter making
19
unilateral decisions regarding Torin’s future. Nor is there
evidence that Mr. Baxter acquiesced to the present arrangement.
Record testimony from both parties supports Mr. Baxter’s
contention that his consent was limited and conditional. Both
parties testified the marriage was intact when Mrs. Baxter and
Torin left Australia, and that the plan was for Mr. Baxter to
rejoin them in Delaware for a visit at Christmas. Both parties
testified they contemplated the possibility of relocating to the
United States together as a family at some point, depending on
Mr. Baxter’s job prospects and other factors, but agree that no
firm plan was in place as of September 2003. Since learning of
Mrs. Baxter’s decision to retain Torin in the Delaware and raise
him with Mr. Stidham, Mr. Baxter has vigorously objected and
pursued his rights under the Convention. In sum, the record
demonstrates that Mr. Baxter agreed to Torin staying at his
grandmother’s house in Delaware for a few months while the
family figured out its next move, but it is unclear that he agreed
to anything beyond that. This intent falls short of the standard
for finding consent under article 13(a) of the Convention.
The record demonstrates that Mrs. Baxter did not decide
to stay in Delaware until she arrived there and met Mr. Stidham.
Mrs. Baxter testified that “it wasn’t until [she] met Mr. Stidham
that everything changed and [she] decided to end [her] marriage
and live with Mr. Stidham.” The District Court described this
central development merely as “an intervening event . . .
affect[ing] the amicable resolution of this question,” but that
“for purposes of the legal issue presented, cannot alter
20
Petitioner’s consent to the removal of the Child from Australia
to the United States.” Baxter, 324 F. Supp. 2d at 539. We
disagree. Mrs. Baxter’s decision represented a change in plan
from what she and Mr. Baxter had agreed upon before departing
to Delaware. It was clear error for the District Court to find
otherwise.
C.
As an alternative holding, the District Court concluded
that ordering Torin’s return to Australia would expose him to
the risk of physical or psychological harm or otherwise place
him in an intolerable situation under article 13(b) of the
Convention. 6 Id. at 539-40. The District Court found the
parties’ testimony established that the living environment in
Australia was intolerable. Id. at 539. The District Court took
into account the fact that Mr. Baxter established a new home in
Perth, a major city, but found “this evidence is insufficient to
persuade me that returning the Child to Australia at this time
would not expose the Child to the grave risk of physical or
6
Article 13(b) provides: “Notwithstanding the provisions of
the preceding Article, the judicial or administrative authority of
the requested State is not bound to order the return of the child
if the person, institution or other body which opposes its return
establishes that there is a grave risk that his or her return would
expose the child to physical or psychological harm or otherwise
place the child in an untolerable situation.”
21
psychological harm that lead to the decision to move the Child
to the United States.” Id. at 539-40.
The affirmative defense of grave risk of harm requires
proof by clear and convincing evidence. 42 U.S.C. §
11603(e)(2)(A); see also Silverman v. Silverman, 338 F.3d 886,
900 (8th Cir. 2003). The exception has been held to apply in at
least two sets of cases: “when return of the child puts the child
in imminent danger . . . e.g., returning the child to a zone of war,
famine, or disease . . . [and in] cases of serious abuse or neglect,
or extraordinary emotional dependence, when the court in the
country of habitual residence, for whatever reason, may be
incapable or unwilling to give the child adequate protection.”
Friedrich, 78 F.3d at 1069. The Court of Appeals for the
Second Circuit has characterized the exception as follows:
At one end of the spectrum are those situations
where repatriation might cause inconvenience or
hardship, eliminate certain educational or
economic opportunities, or not comport with the
child’s preferences; at the other end of the
spectrum are those situations in which the child
faces a real risk of being hurt, physically or
psychologically, as a result of repatriation. The
former do not constitute a grave risk of harm
under Article 13(b); the latter do.
22
Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).7
The facts of this case fall short of demonstrating a clear
and grave risk of harm. For the grave harm exception to apply,
7
The United States Department of State has offered similar
guidance about the exception, also construing it narrowly:
A review of deliberations on the Convention
reveals that “intolerable situation” was not
intended to encompass return to a home where
money is in short supply, or where educational or
other opportunities are more limited than in the
requested State. An example of an “intolerable
situation” is one in which a custodial parent
sexually abuses a child. If the other parent
removes or retains the child to safeguard it against
further victimization, and the abusive parent then
petitions for the child’s return under the
Convention, the court may deny the petition.
Such action would protect the child from being
returned to an “intolerable situation” and
subjected to a grave risk of psychological harm.
51 Fed. Reg. at 10,510. Although not conclusive, the meaning
attributed to treaty provisions by the government agencies
charged with their negotiation and enforcement is entitled to
great weight. United States v. Stuart, 489 U.S. 353, 369 (1989).
23
the respondent must cite specific evidence of potential harm to
the child upon his return. See Silverman, 338 F.3d at 900.8
None has been presented here. There are no allegations of abuse
by either parent. The only record testimony supporting the
grave risk of harm exception involves the unpleasant
experiences the family endured on Bathurst Island before Mrs.
8
The Court of Appeals for the First Circuit addressed the
quantum of proof required:
To meet her burden under the article 13(b)
exception, the respondent must establish that the
alleged physical or psychological harm is “a great
deal more than minimal.” Indeed, the harm must
be “something greater than would normally be
expected on taking a child away from one parent
and passing him to another.” Courts are not to
engage in a custody determination or to address
such questions as who would be the better parent
in the long run.
Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000) (quoting
Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000)). Walsh held
that the standard for proving grave risk had been set too high in
a case involving a pattern of violence by the petitioner, and his
chronic disobedience of court orders in the home country. There
is no evidence of any such pattern of conduct by Mr. Baxter in
the present case.
24
Baxter and Torin left for Delaware. These included run-ins with
hostile residents, and the stress of living in a community
troubled by racial and domestic violence and petrol sniffing.9
But this testimony is of limited relevance here because Mr.
Baxter no longer resides on Bathurst Island, or anywhere near
the Tiwi Islands – he now lives in Perth, a major city on
Australia’s southwestern coast. The inquiry into grave risk of
harm focuses on the present living situation to which the child
would be returned. The living situation prior to the removal or
retention may of course be relevant, but not where the family
decided jointly to leave, and the petitioner has since relocated.
IV.
We conclude the District Court erred by applying the
Hague Convention’s exceptions under articles 13(a) and 13(b)
on the facts of this case. We will reverse the order denying Mr.
Baxter’s petition, and remand for entry of an order granting the
9
The record also includes several unsupported allegations
between the parties regarding their respective fitness as parents.
Mrs. Baxter claims that Mr. Baxter is an alcoholic who was once
involved with an illegal mercenary army in Papua New Guinea,
while Mr. Baxter disparages Mrs. Baxter as “a first-nighter.”
The District Court made no findings with respect to these
allegations. Assessment and disposition of these kinds of
allegations are normally reserved for a custody proceeding. As
noted, the Convention addresses jurisdiction and not the merits
of custody disputes. See Hague Convention, art. 19.
25
petition for return to the country of habitual residence. We
leave it to the sound discretion of the District Court to decide the
details of that return, including costs.
26