Conway v Dosen (Dist. Mont. 1995) CV 95-32-H-CCL ================================================================= IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION ******* IN RE THE APPLICATION OF CV 95-32-H-CCL TOPAZ CONWAY Petitioner, -v- ORDER STEVEN A. DOSEN, Respondent. ******* Before the court is Petitioner Topaz Conway's Petition for Return of Children to Their Habitual Residence (Australia) and Motion for Summary Judgment, and Respondent's Motion to Dismiss for lack of jurisdiction. Respondent filed Objections to Entry of Summary Judgment, but failed to file a brief in support of his motion to dismiss, which pursuant to Local Rule 220-1, Rules of Procedure of the United States District Court for the District of Montana, is deemed an admission that the motion is without merit. Petitioner has not responded to the motion to dismiss. This court has jurisdiction over the matter pursuant to 28 U.S.C.  1331 (federal question). Petitioner brings her application for return of children under the International Child Abduction Remedies Act (ICARA), 42 U.S.C.  11601-610, which codifies the Hague Convention on the Civil Aspects of International Child Abduction, as adopted by twenty-nine countries in 1980. Both the United States and Australia are signatories to the Convention. Two of the goals of ICARA are to ensure the prompt return of wrongfully removed or retained children to the country of their habitual residence and to ensure that countries mutually respect their decisions regarding custody of and access to children. See 42 U.S.C.  11601; Hague International Child Abduction Convention: Text & Legal Analysis, 51 Fed.Reg. 10,494 (1986); H.R. Rep. No. 525, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 386. Courts are not required or permitted to determine custody, but rather are to determine whether a child has been wrongfully removed from, or retained in a country other than, their place of habitual residence. See 42 U.S.C.  11601(b)(4). Habitual residence has been defined as the child's usual place of residence and primary home immediately before he or she was removed to a foreign country. See State Department Legal Analysis, 51 Fed. Reg. 10504 (1980). Courts should not interpret the term "habitual residence" technically or restrictively but should examine the facts of each case without presupposition. See Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 1995). This court has subject matter jurisdiction over the petition to return children to their habitual residence pursuant to ICARA, which provides that: The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention. 42 U.S.C.  11603(a). There are four requirements that must be met for the convention to apply: (1) the countries must be signatories; (2) the petitioner must show that the children were "habitual residents" of petitioner's country prior to being wrongfully removed to or retained in a foreign country; (3) the child or children must be under age sixteen; and (4) the convention applies only when there has been a wrongful removal or retention. See generally Lon Vinion, "When Custody Conflicts Cross the Border," 15 Fam. Advoc. 30 (Spring, 1993). On May 18, 1995, nine months after sending her children to visit Respondent and four months after failing in an attempt to compel the return of her children through state court litigation, Petitioner Topaz Conway applied to this court for the return of her two minor children, ages eight and eleven, to their habitual residence in Australia. When the petition was filed the children were visiting their father, Respondent Steven A. Dosen, in Helena, Montana. Six years earlier, on January 9, 1989, Petitioner Conway had been granted sole custody of the children by the Eighteenth Judicial District Court, Gallatin County, Montana, Cause No. DR- 88-800. Petitioner subsequently moved to the State of Washington, and ultimately emigrated to Australia with her children, with Respondent's written consent, on July 1, 1993. At the time she obtained Respondent's consent to emigrate, Petitioner promised to return the children to Respondent for a visit, and did return the children for a visit on August 23, 1994. The date the visit was to be concluded is the central dispute between the parties. In late December, 1994, an attorney not of record in this case filed on Petitioner's behalf a Motion for Order Compelling Visitation Transfer before the Eighteenth Judicial District Court, Gallatin County, in Cause No. DR-88-800. In January, 1995, after denying Petitioner the right to participate in a hearing by telephone from Australia, the state trial court ruled that the visitation agreement between Petitioner and Respondent was an oral contract. Dosen v. Dosen, Cause No. DR-88-800, slip op. at 3 (Eighteenth Judicial District Court, Gallatin County, Montana, Jan. 6, 1995). The court found that the oral contract had been partially performed and would be fully performed on June 19, 1995, which the state court found to be the date that Respondent should return the children to Petitioner's custody in Australia. Id. at 4. As ordered by the state court, Respondent did return the children to Petitioner on June 19, 1995. The children currently reside with their mother in Australia. Petitioner acknowledges in her motion for summary judgment that the children have been returned to her. However, Petitioner remains anxious about her custodial rights because Respondent filed a Petition for Modification of Custody Decree in the Eighteenth Judicial District, Gallatin County, Montana, in Cause No. 88-800, in April, 1995. Apparently that proceeding has been stayed during the pendency of this case. In her motion for summary judgment, Petitioner states that she now seeks a permanent stay of the state court custody proceedings. The court notes that Congress has found that "[p]ersons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C.  11601(a)(2). However, I do not find a permanent stay of the custody modification proceedings to be necessary or appropriate. While I agree that, for purposes of applying ICARA, the children's habitual residence is Australia, and while the record indicates that there may have been a wrongful retention of the children in Montana, the children are now residing again with the custodial parent in Australia. Under these circumstances, this court's jurisdiction under ICARA is weak, if it exists at all, and certainly this court is not willing to become involved in Respondent's quest for custody, both because ICARA does not contemplate resolution of underlying custody disputes and also because federal trial courts traditionally abstain from such family law issues. Additionally, Respondent may seek relief under ICARA from a court having jurisdiction where the children now reside, i.e., in Australia, in organizing and arranging an appropriate visitation schedule for the children and Respondent: Any person seeking to initiate judicial proceedings under the Convention . . . for arrangements for organizing . . . the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought . . in the place where the child is located at the time the petition is filed. 42 U.S.C.  11603(b). Finally, the Convention provides that "[w]here the judicial . . . authority in the requested State has reason to believe that the child has been taken to another State, it may . . . dismiss the application for the return of the child." Hague Convention, Article 12. The court has reviewed the Respondent's motion to dismiss, which is not supported by a brief, and is not persuaded by Respondent's argument that this court lacked jurisdiction over the matter on the date Petitioner filed the application for return of the children. The Findings of Fact, Conclusions of Law and Order Re Visitation entered by the Eighteenth Judicial District on January 6, 1995, is but one piece of evidence bearing upon the factual and legal question of whether or not Petitioner's children were wrongfully retained by Respondent within the meaning of ICARA. Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED: 1. Respondent's motion to dismiss is DENIED. 2. Petitioner's motion for summary judgment is DENIED. 3. The Petition for Return of Children to Their Habitual Residence (Australia) is DISMISSED as being moot and all relief is denied, each party to bear the party's own costs and fees. The Clerk is directed forthwith to notify the parties of entry of this order. Done and dated this 14 day of August, 1995. /s/ Charles C. Lovell _______________________________ CHARLES C. LOVELL United States District Judge