Fjeldheim v Fjeldheim (W.Dist.Mich. So.Div. 1996) No. 1:95-CV-394, 29 Apr 1996 ================================================================= UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: File No. 1:95-CV-394 The Application of TERJE BYE Hon. Richard Alan Enslen FJELDHEIM, Petitioner, OPINION v. SARA MARIE ANDERSON FJELDHEIM, Respondent. This matter is before the Court on the Petitioner's motion for partial reconsideration of its previous January 19, 1996 Opinion and Order denying summary judgment and setting this matter for trial. This lawsuit concerns a petition for return of a child who was allegedly retained in violation of the Hague Convention on Civil Aspects of International Child Abduction and Title 42 United States Code Sections 11601 et seq. FN1 This motion asks that the Court reconsider two aspects of its ruling so as to foreclose certain issues from being determined at trial. First, Petitioner asks that the Court determine that the abduction/wrongful retention of the child did not occur until after July 1, 1994. This date is important because the action was filed on June 15, 1995. The Hague Convention provides in pertinent part: Where a child has been wrongfully removed or retained in terms of Art. 3, and at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of wrongful removal or retention, the authority concerned shall order the return the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Art. 12. Petitioner's claim is that since the child's scheduled return date was July 1, 1994 that the retention did not occur until that date and, therefore, the Court cannot consider whether or not the child is settled in a new environment. This position is supported by law to the effect that ordinarily the retention does not occur until the date at which the child~s return failed to occur. It is also supported by the fact that prior to July 1, 1994 the Petitioner did not take action to procure the return of Tove and that his later correspondence is consistent with him not reaming of a problem until the July 1, 1994 date. However, while most of Petitioner's legal assertions are true, they ignore other circumstances that have been alleged by the Respondent. According to Respondent, she notified the Petitioner almost immediately upon the child's arrival on April 3, 1994 that she was retaining the child in the United States. According to her, she placed the child with Petitioners knowledge in school and otherwise began to establish a home for the child in the United States with the Father's knowledge. Therefore, there is an issue of fact that must be determined at trial concerning whether the date of the wrongful retention occurred prior to June 15, 1994. If it did, then the Court can also consider at trial evidence relating to whether the child is settled in her new environment. Second, Petitioner requests that the Court determine as a matter of law that there is no issue of "grave risk" to the child under Article 13 of the Convention. This Article provides in pertinent pad that: 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 . . . which opposes its return establishes that-- (b) 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 intolerable situation. Art. 13. Petitioner asserts that this Article does not allow, despite its wording, a consideration of whether the Petitioner is likely to abuse the child. Petitioner bases this interpretation on other international decisions which have interpreted this Article as applying only when the country of habitual residence does not have a welfare system to protect the child from abuse. See Evans v. Evans, [1989] Fam. Law. 105 (Ct. App. United Kingdom 1989). Indeed, this interpretation has been accepted in part by the Sixth Circuit's recent holding in Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996). Therein, the Sixth Circuit confined consideration of abuse to instances in which the court of the country of habitual residence may be incapable or unwilling to give the child adequate protection. Id. Therefore, the Court determines that the trial of the Article 13 issue of abuse will be determined in accordance with Friedrich and that the evidence submitted on this Article 13 issue should be confined to whether the Norwegian Court is unable or unwilling to provide the child protection from abuse. Accordingly. the motion for reconsideration is granted in part and denied in part. Dated in Kalamazoo, Ml: /s/ Richard Alan Enslen _______________________ April 29, 1996 RICHARD ALAN ENSLEN Chief Judge -------------------- 1. Ordinarily, the Court reviews a motion requesting a reconsideration of a summary judgment motion based on the standards applicable to summary judgment motions. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). However, in this case, the motion is premised on assertions that the Court made errors of law relating to its interpretation of the Hague Convention such that the Court need only determine whether those interpretations of law were mistaken.