Johnson and Johnson (USA 1996) Note from US Central Authority to Swedish Central Authority 9 International Abduction [USA 1996] =========================================================== United States Department of State Washington, D.C. 20520 OFFICE OF CHILDREN'S ISSUES U.S. CENTRAL AUTHORITY HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION Tel. (202) 647-2688 Fax. (202) 647-2835 DATE: January 30, 1996 TO: Agneta Lundvall Central Authority of Sweden FROM: Leslie Rowe, Director Central Authority of the United States SUBJECT: The Hague Convention on the Civil Aspects of International Child Abduction: Issues Raised By the Case of Amanda Johnson. 001 In the United States, persons not party to a case being considered by our Supreme Court, including foreign governments, may submit relevant information to the court as amici curiae ("friends of the court") in connection with pending cases with potentially broad ramifications. We have been advised that Sweden does not have a similar formal process, but that your office would, if asked, pass to the Regeringsratten a statement by the United States Government in a case raising issues under the Hague Convention on the Civil Aspects of International Child Abduction of possible significance for other international custody cases. 002 The Regeringsratten is now considering whether to permit the return to the United States of Amanda Johnson, as ordered by the Lansratten administrative court on October 6, 1995, and the Kammaratan administrative appeals court on December 19, 1995. After careful review of the Johnson case, we have concluded that it raises issues relevant to the integrity and future success of the Hague Convention. Accordingly, in light of our understanding that the Swedish Central Authority could appropriately make our views known to the court, we have prepared the attached statement addressing the jurisdictional issue presented by the case. We understand that the court will next discuss the Johnson case tomorrow (January 31); we therefore hope that the attached statement can be made available to the court promptly. We regret that, in the interests of providing this statement as soon as possible, we have not yet been able to complete a Swedish translation. We will forward a translation to you as soon as possible. 003 Thank you for your cooperation in this important matter. STATEMENT OF THE UNITED STATES REGARDING HAGUE CONVENTION ISSUES OF GENERAL RELEVANCE PRESENTED BY THE PARTICULAR CASE OF AMANDA JOHNSON Background 004 Mr. Thomas Johnson, a citizen of the United States, seeks the return of his minor daughter, Amanda Johnson, a dual citizen of the United States and Sweden, to his physical custody under the Hague Convention on the Civil Aspects of International Child Abduction. Mr. Johnson also seeks to ensure that any future decisions on custody are resolved by the court of the State of Virginia that entered the custody order under which Amanda came to live in Sweden in 1993. 005 Amanda was born in Switzerland in 1987. Mr. Johnson and his wife, Ms. Anne Franzen-Johnson, a national of Sweden, lived there from the time of their marriage in 1986 until 1990. In 1990, Ms. Franzen, an employee of the Swedish Foreign Ministry, was reassigned to the Swedish consulate in New York City, where she took up residence, and Mr. Johnson, an employee of the U.S. Department of State, was reassigned to Washington. D.C. and took up residence in the State of Virginia. Between 1990 and 1993, Amanda lived alternately with Mr. Johnson in Virginia and Ms. Franzen in Now York. 006 Mr. Johnson and Ms. Franzen decided to divorce and eventually agreed that jurisdiction over their divorce and custody issues should be assumed by the courts of Virginia rather than the courts of New York. Pursuant to an order of a Virginia court that was entered in divorce and custody proceedings that spanned 1991 - 1993, Mr. Johnson and Ms. Franzen now share joint custody of Amanda, with primary physical custody shifting between the father and mother approximately every two years. The parent who does not have primary physical custody is to have significant visitation/access rights during the period that the other parent has primary physical custody. In accordance with this arrangement, Amanda left the United States for Sweden with her mother in June 1993, on the understanding that she would attend school there for two academic years, have significant visitation with Mr. Johnson, and return to Mr. Johnson's physical custody effective August 20, 1995, so that she could then spend two academic years In Virginia. 007 As modified in June, 1993, and finalized in December, 1993, the Virginia custody order includes an agreement by the parties that Virginia is Amanda's place of habitual residence and that the Virginia court will maintain continuing and exclusive jurisdiction to resolve all future custody issues involving her. Ms. Franzen has not asked the Virginia court to modify the December 1993 custody order. In January 1995, however, Ms. Franzen sought to commence new custody proceedings in the courts of Sweden, and asked that she be awarded sale custody of Amanda. Ms. Franzen did not transfer primary physical custody of Amanda to Mr. Johnson nor permit Amanda's return to the United States on August 20, 1995, as provided in the Virginia order. 008 The Lansratten administrative trial court on October 6, 1995, ordered Amanda's return to Mr. Johnson effective November 11 1995. Upon appeal, the Karnmaratan administrative appeals court, on December 19, 1995, similarly ordered that Amanda be returned, to Mr. Johnson, on December 22, 1995. Enforcement of that order has been delayed pending appeal by Ms. Franzen. The question whether to enforce the return order is now before the Regeringsratten. The Nature of the Case as a Precedent 009 The Johnson case presents an important issue under the Hague Convention and its resolution could have significant implications for future international custody disputes. A major achievement of the Convention was the establishment of a rule of jurisdiction to govern responsibility for resolving custody disputes between parents. By determining the appropriate jurisdiction to be responsible for custody matters, the Convention sought to discourage international child abduction; absent the Convention's jurisdictional rule, parents would be free to engage in'"forum shopping" by abducting or wrongfully retaining the child away from the normal country of jurisdiction to some other country, hoping that the second country would be more sympathetic to the abducting (or retaining) parent in a custody proceeding. 010 The jurisdictional rule of the Convention is that custody disputes should be resolved in the child's place of habitual residence. In the Johnson case, Amanda's habitual residence was indisputably in the United States when the parents divorced and needed to resolve their custody issues. Amanda and both of her parents were residing in the United States. Although they had moved to the United States from Switzerland, there was no plan that they or Amanda would return to Switzerland, and Amanda at that time had visited but never resided in Sweden. 011 The parents and the Virginia court were then faced with the choice common to all custody cases: whether the parents should have joint custody, or whether one parent should have sole custody. An award of sole custody to Mr. Johnson would presumably have meant that Amanda would never have lived in Sweden for any significant period as a child. An award of sole custody to Ms. Franzen would presumably have meant that Amanda would have continued to reside in the United States until Ms. Franzen's assignment to New York ended, and then would have gone with Ms. Franzen to the country to which Ms. Franzen was next assigned (which, in the end, was Sweden). 012 The choice between sole and joint custody was complicated by a factor that will be common to any custody dispute involving parents of different nationalities when one parent explicitly intends to abandon residence in the country of habitual residence; allowing the child to live with the parent who does not intend to remain in the country will create the possibility of a wrongful retention of the child (which is a de facto "abduction") if the child is permitted temporarily to leave the jurisdiction with the parent and the parent then seeks to establish the child's "habitual residence" elsewhere. This was a particularly difficult prospect in the Johnson case because Ms. Anne Franzen-Johnson might have been assigned to Swedish diplomatic posts outside of Sweden, allowing Amanda to reside with Ms. Franzen even temporarily could have created the possibility of competing custody proceedings in several different jurisdictions if each post of assignment could have become Amanda's habitual residence for purposes of the Hague Convention. * * * * * 013 It is apparent from this analysis that, if a child's temporary but extended residence outside the country of habitual residence with original jurisdiction over custody issues could result in a change of habitual residence for Hague Convention purposes, the parents involved would have no incentive to agree amicably to joint custody arrangements or to permit the child to live for substantial periods with each parent, in different countries. The parents then almost certainly would each insist upon sole custody. This would, in the first instance, have the insidious result of substantially prolonging the custody dispute by making it more difficult for the parents to come to agreement. 014 Moreover, and of particular relevance vis-a-vis the Hague Convention, if the locus of habitual residence were permitted to shift each time the child moved to another country to live temporarily pursuant to a court-approved joint custody agreement entered by the court that initially had jurisdiction for Hague Convention purposes, the Hague, Convention's goals of preventing jurisdiction from being established through an unlawful abduction or retention would be thwarted. Indeed, the possibility of shifting habitual residence would increase the possibility that the child would eventually be abducted or wrongfully retained by the parent outside the original jurisdiction. 015 For these reasons, the United States believes that, when a custody order entered in a child's country of habitual residence permits the child temporarily to live in another country, but clearly evidences an intent that the child will return to the country in which the order is entered, it should be understood that the child's habitual residence, for purposes of the Hague Convention, remains in the original country and does not shift to the country of permitted temporary residence. This should be particularly true when one of the parents remains in the place of habitual residence, and when the parents have themselves agreed that the country of the original custody order shall always be the jurisdiction of habitual residence. Adherence to these basic principles will best further the overall goals of the Hague Convention, and will be particularly important in cases of joint custody. 016 As suggested above, any other approach would result in a continual shifting of jurisdiction over custody issues, with all of the uncertainty and instability that such shifting would necessarily engender. It would also create incentives for child abduction and forum shopping and ultimately would encourage consensual custody settlements that seek to ensure that the dual-national child maintains strong ties to both parents and to both countries of its nationality. 017 The United States notes that recognizing habitual residence in the country that originally has custody jurisdiction for Hague Convention purposes and to which the child will return will in no way compromise the best interests of the child. In fact, it will ensure that all custody issues will be heard by a court fully familliar with the history of the parents' custody dispute and the child, and therefore best able to resolve any disputes in the child's best interests. To the extent that psychological or other reasons may be advanced to change a custody arrangement that is in place, the court of habitual residence when the custody arrangement was originally established will be the appropriate forum to consider whether the custody arrangement should be modified. In the Johnson case, for example, Ms. Anne Franzen-Johnson is free to ask the Virginia court to modify its original joint custody decree, and to award her sole custody or other appropriate relief, if it determines that such an arrangement would be in Amanda's best interests. The burden on Ms. Franzen of doing so is no less than the burden would be on Mr. Johnson if he were required to address the custody issues in a Swedish court (in which case neither parent would have the benefit of the Virginia court's prior expertise In the case). What is more important, however, lest the objectives of the Hague Convention be undermined, is to ensure that the jurisdiction of the court of habitual residence is not lost when the court permits a child temporarily to reside in another country on the agreed understanding that the child will return. Otherwise, courts will be unlikely ever to agree to such temporary residence abroad.