Bolton v Bolton (Parish Fam.Ct. 1994) East Batton Rouge, LA No. 110163, Div. "D" ================================================================ ELIZABETH BOLTON : NUMBER 110,163, DIVISION "D" : THE FAMILY COURT VERSUS : PARISH OF EAST BATON ROUGE KARL P. BOLTON : STATE OF LOUISIANA EXCEPTION OF SUBJECT MATTER JURISDICTION This matter came on for hearing on an exception of subject matter jurisdiction and a Petition for Return of Children under the Hague Convention. WMH FN01 At issue is whether or not this Court has jurisdiction to determine custody matters and whether or not the law set forth under the Hague Convention applies herein. Carl and Elizabeth Bolton were married in 1986 in England. For a short period of time they resided in the United States where their first child was born. They subsequently returned to England where they have lived up until a short time ago. Their second child was born there. Carl is a citizen of England and Elizabeth is a citizen of the United States. The testimony of the parties indicated that during the Fall of 1993, the parties discussed a move to the United States. Although there is some disagreement over the exact decision, generally it appears that the parties agreed that Carl would come to the United States to seek employment. Elizabeth would follow thereafter and the children would move if a decision was made to stay in the United States permanently. Carl made the necessary applications on his behalf and submitted passport applications on behalf of the children. It is undisputed that the parties were having financial difficulties and that their home was in the process of being repossessed during this time. On Dec. 26, 1993, Elizabeth left the matrimonial home for approximately 10 days leaving the children with Carl. Elizabeth then moved back into the home and Carl went to live with his father. At some time in Jan. Carl went to the home, but Elizabeth refused to let him in. He broke into the home and was charged with a breach of the peace. In February, Carl left for the U.S. to seek employment. He testified that he decided to go forward with this plan because he would not be able to get a green card in the event he and Elizabeth divorced. During this time period, Carl remained in contact with Elizabeth and with his mother. Elizabeth and the children were staying with his mother since their home had been repossessed. On Feb. 17th, Carl was informed by his mother that Elizabeth was packing and planning to leave for the United States with the children. Carl contacted his father who obtained, through the English courts, a Prohibited Steps Order which would prevent Elizabeth from leaving the country with the children. However, she was unable to be located prior to her departure. Carl later learned that Elizabeth and the children were in Baton Rouge staying with her sister. A Request for Return was then filed in England along with a divorce proceeding. Carl then filed this Petition for Return of the Children under the Hague Convention. The United States has ratified and implemented the Hague Convention on the Civil Aspects of International Child Abduction, as has England. The purpose of the international law on this subject is to secure the prompt return children wrongfully removed to or retained in any Contracting State. It requires that a custody determination be made by a court in the child's habitual residence. Elizabeth has argued that the children's removal was not wrongful because at the time of the removal Carl was not exercising rights of custody over the children over the children. WMH FN02 Rather, Elizabeth claims that she had the sole physical custody of them for over one month prior to their arrival in the United States. In addition, she argues that since she and Carl are both in the United States with the intent to remain, the Hague Convention is not applicable. In addition, Elizabeth sets forth that since their home was re-possessed there is no place in England to return. Finally, Elizabeth argues that Carl concurred in their removal since he prepared their passport applications and that returning the children to him will expose them to physical or psychological harm. WMH FN03 Carl testified that the plans to come to the United States as a family were modified after their separation at Christmas time. At that point, he decided to come to the United States to obtain his green card. Carl indicated that the earlier discussed plan to bring the children to the United States was no longer a consideration due to their marital problems. Therefore, he submits that he did not concur in Elizabeth's decision to bring the children here. WMH FN04 Although there is no case law directly on point, one United States Federal Court of Appeals decision discusses the Hague Convention law at length. In Friedrich vs. Friedrich (6th Cir. 1993) 983 F.2d 1396, a United States citizen based in the military in Germany left Germany with the child and returned to the United States. Her husband, a German citizen, attempted to have the child who had always lived in Germany returned there. The Court looked at whether or not the child was an habitual resident of the United States giving the United States court jurisdiction over a custody dispute. In Friedrich, the mother had left the matrimonial home a few days prior to her return to the United States after her husband expelled her from their home. The Court found that under the Hague Convention the father had the burden of proving by a preponderence of the evidence that the removal was wrongful. In order to do this, he must show that Mrs. Friedrich removed the child from his habitual residence and that he was exercising his parental custody rights over the child at the time of the removal. The trial court held that the child's habitual residence had been altered from Germany to the United States when Mr. Friedrich removed his wife's and child's belongings, including the child's toys, from their home during a marital dispute. In addition, they found that the father had terminated his custody rights when he expelled them from their home. The Court, in overruling the trial court's decision, discussed the term "habitual residence" and stated ". . . habitual residence must not be confused with domicile. To determine habitual residence, the Court must focus on the child, not the parents, and examine past experience, not future intentions." The Court found that a person can have only one habitual residence and that it pertains to customary residence prior to removal. "The Court must look back in time not forward." The Court found that although Mrs. Friedrich intended for the child to live in the United States in the future, prior to this he had lived only in Germany. Although Mr. Friedrich may have forced his wife to leave their matrimonial domicile, he did not force her to leave the country. With regard to the issue of termination of custody rights, the Court found that Mr. Friedrich continued to have contact with his wife and child despite their separation. 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. After review of the evidence and law, this Court is of the opinion that the Hague Convention is applicable and that there was a wrongful removal of the children from their habitual residence. The Court finds the language in the Friedrich case regarding habitual residence to be of great influence in making this decision. In addition, the Court in England should be the Court to decide the issue of whether Carl was exercising custodial rights at the time of their removal. It would appear that he was since he remained in frequent contact with them despite his absence from the country. Also of importance is the fact that an English court had attempted to prohibit the children's removal by issuing the Prohibited Steps Order. WMH FN05 In addition, the Bolton's divorce proceeding is pending in England. WMH FN06 The Court, however, believes that it is in the best interest of the children for them to return to England with their mother, rather than being returned to their father prior to their return trip. Judgment to be signed accordingly. THUS DONE, READ AND SIGNED at Baton Rouge, Louisiana, this 4th day of May, 1994. /s/ [Signature Illegible] _______________________________ JUDGE, The Family Court FOOTNOTES BY WILLIAM M. HILTON -------------------- 1. The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] 2. Art. 13(a): 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--(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention[.] 3. An effort is made here to show that because of the intent of the parties to move to the US, there was acquiescence on the part of the Father to the removal of the children to the US. This defense was not allowed by the court which is in keeping with with the US view that mere intent is not enough, there must also be an act on the part of the "acquiescing" parent. Just what that "act" would be is not clear, but it seems to require more than the mere utterence of the words. 4. This case is in line with the US cases that allow a party to change their mind as to acquiescence. This differs somewhat from the UK view which does not seem to permit this. 5. This highlights the effect of promptly initiating an action in the Habitual Residence...it goes towards the intent of the party to not have agreed to the removal. 6. See 9 Uniform Laws Annotated (ULA) 6 (Simultaneous Proceedings) of the Uniform Child Custody Jurisdiction Act (UCCJA). Contributed by: Thomas F. Wade, Esq. Box 44463 Baton Rouge, LA 70804 TEL: (504) 343-4872 FAX: (504) 336-4439 Dated: 13 May 1994