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A Federal Appellate Court has ruled that the lower court was not wrong in denying Father’s Hague Convention Petition because Mother had no settled purpose to change the parties’ Children’s habitual residence from United States to Australia, and Children had not become acclimated during their brief time in Australia. In the case of Maxell vs. Maxwell, Mother and Father were married in Australia in 1999. They later moved to Massachusetts, where, on January 18, 2004, Mother gave birth to quadruplets, who had developmental disabilities. Mother and Father separated in December of 2005, and Father moved back to Australia. Mother, Children and Mother’s child from her prior marriage moved to North Carolina, where they lived with Mother’s mother.
In 2006, Mother filed for divorce in North Carolina. Father sought physical custody of the Children. After a custody hearing in August of 2007, which Father attended, Mother and Father settled their custody dispute and attempted reconciliation. On August 16, 2007, North Carolina Trial Court issued a memorandum of judgment, signed by Mother and Father in which Mother was granted the primary physical custody of the Children. North Carolina Trial incorporated that memorandum into a consent order issued on December 25, 2007.
Although Mother and Father had "trust issues" regarding each other’s extra-marital relationships, they began making plans for Mother to join Father in Australia. Father promised to stop seeing his girlfriend, and Mother agreed to end her relationship with another man. But Mother suspected that Father made his promise as a ruse to gain custody of Children. Nonetheless, Mother gathered information regarding permanent residency for herself and her other child, gave Father permission to acquire Australian passports for Children, helped Father look for house and buy a minivan, checked out employment opportunities, and told friends that their move will be permanent.
When she learned that Father was still seeing his girlfriend, Mother bought round-trip tickets with return date of March 4, 2008, obtained three-month tourist visas for herself and her other child, and asked the staff at her other child’s school to allow her child to return to class in March of 2008. Mother also maintained the lease and insurance on her car, kept her cell phone and bank accounts, and maintained North Carolina Medicare insurance.
On December 6, 2007, Mother, her other child, and the parties’ Children traveled to Australia, bringing household items, clothing, Father’s power tools, mother’s other child’s school records, and medical and immunization records of her other child and the parties’ Children. After they arrived, marital problems continued, as Mother and Father argued frequently about Father’s girlfriend, and Father became violent toward Mother. When Mother told Father that she would not stay in Australia if he threw her out of house, Father took the Children’s passports, copies of Mother’s and mother’s other child’s passports, and copies of North Carolina Trial Court’s consent order. When Mother sought legal advice, Father took steps to prevent her from leaving Australia.
Told by a U.S. Embassy officer that she could not obtain new passports without Father’s consent or court order, Mother decided to bide her time. She filled out applications for permanent residency for herself and her other child, enrolled her other child in school and the parties’ Children in preschool, and participated in marital counseling with Father. In February of 2008, after U.S. Embassy agreed to issue new passports without Father’s consent, Mother, her other child, and the parties’ Children promptly left for U.S.
After arriving, Mother phoned Father to discuss possibility of living separately in Australia and sharing custody of Children, but those plans came to naught. When Father threatened to kill her and called her a drug addict, Mother obtained a Domestic Violence Prevention Restraining Orders against Father from North Carolina Trial Court.
On June 5, 2008, Father filed a petition in the U.S. District Court for Western District of North Carolina, under the Hague Convention and the International Child Abduction Remedies Act [I.C.A.R.A.; 42 U.S.C. 11601 et seq.], seeking return of the Children to Australia. The District Court found that (1) Mother’s testimony was credible, and Father’s wasn’t; (2) Father failed to present sufficient proof that Children’s habitual residence was Australia; (3) even if Children’s habitual residence was Australia, North Carolina Trial Court order did not give him enforceable custody rights; and (4) Mother’s testimony showed that move to Australia was conditional. Concluding that Mother had not wrongfully removed or retained Children in U.S., the District Court denied Father’s petition.
Father appealed, but now the Fourth Circuit Court of Appeals has affirmed the District Court’s decision. The Court of Appeals has ruled that there is sufficient evidence (a) that Mother intended the move to Australia to be conditional, and (b) that Children never became acclimated to Australia during their stay. Therefore, the District Court did not err in determining that Father failed to carry his burden of proving that Children’s habitual residence was Australia and thus, denying Father’s petition.