STATE OF SOUTH CAROLINA ) IN THE FAMILY COURT FOR THE ) FIFTH JUDICIAL CIRCUIT COUNTY OF RICHLAND ) 91-DR-40-0667 ) PATRICIA MARY KEANE, ) ) Plaintiff, ) ) -vs- ) ORDER ) STEPHEN BRADLEY ) COURTWRIGHT, JUDY ) WEESNER AND KATHERINE ) COURTWRIGHT, ) ) Defendants. ) _________________________ ) This matter came to be heard before me on March 29, 1991 for an evidentiary hearing to determine if the minor child Trevor Courtwright has been wrongfully retained in this country and must therefore be returned to his home in London, England pursuant to the Hague Convention on the Civil Aspects of international Child Abduction (hereinafter "the Hague Convention"). For the reasons set forth below, I find and conclude that the Plaintiff-mother is entitled to an Order requiring the child to be returned to the United Kingdom forthwith and also entitled to an award of her reasonable expenses, attorney's fees and other costs. THE ACTION This action, reportedly the first of its kind in South Carolina under the Hague Convention, was commenced on February 19, 1991 by the filing of a Pendente Lite Motion, Summons and Complaint by the Plaintiff-mother seeking an Order requiring Defendants to immediately surrender Trevor to his mother so as to allow his return to Great Britain and for the costs, legal fees and expenses she incurred in having to bring this action. On March 13, 1991, a pendente lite hearing was held at which time Defendants filed a Return to Motion for Immediate Relief requesting that the mother's Motion be denied and that the case be allowed to proceed to an evidentiary hearing on the merits of a legal custody case. At that time, this Court heard argument from counsel for both parties for approximately one (1) hour and thereafter, on March 14, 1991, held an additional conference for 45 minutes in chambers with counsel for all of the parties. Because of the importance of the relief sought, and the fact that this is a case of first impression in this jurisdiction, the parties agreed to reconvene for an evidentiary hearing on March 29, 1991, at which time the parties would be allowed to present testimony and other evidence on the sole issue of whether the child had been wrongfully retained in South Carolina and, if so, whether any of the exceptions to mandatory return listed in the Hague Convention applied. Present in the courtroom at the call of the case were the Plaintiff, Patricia Mary Keane, along with her attorneys Harvey L. Golden, Esq., and J. Michael Taylor, Esq. Defendants Stephen Bradley Courtwright, Judy Weesner and Katherine Courtwright were also present along with their counsel, Francis T. Draine, Esq. FINDINGS OF FACT AND CONCLUSIONS OF LAW After having heard the testimony of the Plaintiff Patricia Keane, the Defendant Stephen Courtwright and the Defendant Judy Weesner as well as having considered all of the exhibits accepted into evidence, I make the following findings of salient fact and conclusions of law: Background Facts 1. Patricia Mary Keane and Stephen Bradley Courtwright were never married to each other but are the natural parents of Trevor Stephen Courtwright, who was born November 15, 1987 in Central Middlesex Hospital, London, England. The minor child was an habitual resident of London, England with his mother from the time of his birth until October 21, 1991. Plaintiff has been a resident of London, England, since before the birth of her son and remained a resident thereof as of the time of the commencement of this action. 2. Defendant Stephen Courtwright was also a resident of London, England prior to the birth of his son and for approximately three years thereafter lived with Trevor and Trevor's mother until he moved out of their home. On October 21, 1990 at a time when the father, Mr. Courtwright was no longer residing with Plaintiff or their son, he asked Ms. Keane for permission to take Trevor with him to the United States for a visit with his family but to be returned prior to Trevor's third birthday, which was November 15, 1990. Upon being shown an airplane ticket indicating that a return flight for Trevor was reserved for November 14, 1990, Ms. Keane agreed to allow Trevor to accompany his father to the United States. 3. Upon his arrival in this country, Trevor was immediately taken to Columbia, South Carolina and remained there since that time. He was not returned, as promised, on his birthday nor, as later promised, by Christmas. Mr. Courtwright himself testified that it was not until he came back to the United States that he decided that the comparative living conditions were such that he decided that the child would have a better life in this country. 4. By a letter from the father to the mother, dated January 18, 1991, Mr. Courtwright told Ms. keane that he was "not exactly sure if and when [he would] be able to bring Trevor back." The only reasons cited by Mr. Courtwright in this letter for the change in the plans were (1) the opportunity for Trevor to experience a different lifestyle, (2) that Trevor and Mr. Courtwright "both have so many more possibilities here", including Mr. Courtwright's chances for regular employment, and (3) the opportunity for Trevor to see members of his American family. No fear was expressed that, if he were returned, Trevor would be in danger of physical or even psychological harm nor was there any criticism of the way Trevor had been cared for all his life by his mother prior to his trip to the United States. It was, instead, a unilateral decision made by Mr. Courtwright without consulting the child's mother which represents no more than a difference of opinion as to the child's best interests, one which did not occur to the father until after he had taken the child from his homeland. The Hague Convention 5. On April 29, 1988 the United States Senate ratified the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention"). This international treaty, to which the United Kingdom is also a party, was adopted out of a [d]esir(e) to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. Hague Convention Preamble 6. The United States, as a Contracting State under the Treaty, is required to "take all appropriate measures to secure within [its] territories the implementation of the objects of the Convention" and, for this purpose, " they shall use the most expeditious procedures available. Hague Convention, Article 2. 7. To implement this treaty, Congress passed the International Child Abduction Remedies Act, 42 U.S.C. Secs 11601-11610 (1989). Section 11601(a)(2) of that Act expressly states a Congressional finding that "[p]ersons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." Jurisdiction 8. 42 USC 11603(a) provides that the Courts of the States and the United States District Courts shall have concurrent original jurisdiction over actions arising under the Convention. Subsection (b) of that same section provides that: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing 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 any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. Most importantly, Sec. 11603(d) provides that "the court in which an action is brought under subsection (b) shall decide the case in accordance with the Convention. (emphasis added). Local Law regarding ultimate issues of custody are inappropriate and irrelevant: The basic approach of the Convention is to require the prompt return of a child under sixteen and essentially to restore the status quo before the wrongful removal or retention occurred, thereby making such actions legally fruitless and serving as a deterrent. It does not provide for any judgment on the merits on the conflicting custody claims or for enforcement of a foreign custody decree. It provides for return whether [or not] there is a custody decree in favor of the left-behind parent. In other words, no custody decree need be issued before the abduction/retention, or thereafter, for the return obligation of the Convention to apply. Pfund, "The Hague Convention on International Child Abduction". Family Law Quarterly, Vol. XXIV, Number 1, Spring 1990 at page 39 (emphasis added) (A copy of this article is attached). [SYSOP's Note: This article is no included and is currently not in the data base] Wrongful Retention 9. Whether a child's removal or retention in another country is wrongful is determined by the law of the country where the child is from, not where he has been abducted to. Specifically, the Hague Convention provides that the retention is wrongful where "it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention." Hague Convention, Article 3, Section a.. 10. Here, Trevor Courtwright was born in London, England, where he resided his entire life with his mother prior to his trip to the United States with his father and he therefor must be considered an "habitual resident" of the United Kingdom. 11. Under British common law, it is the mother who had sole custody of an illegitimate child. This principal was codified by the law of England and Wales, Sec. 85(7) of Part V of the Children Act of 1975, which states that, "while the mother of an illegitimate child is living she has the parental rights and duties exclusively." Id.1 Mandatory Return 12. The first issue for this Court to decide is whether Trevor is wrongfully retained within the meaning of the Convention, which issue Plaintiff-mother has the burden of proving by a preponderance of the evidence 42 U.S.C. Sec. 11603(e)(A). As stated above, Trevor is clearly wrongfully retained against the will of the one individual who has the exclusive right to custody of the child: his mother. If return proceedings are commenced within one year of the wrongful removal or retention, the return obligation is absolute: Where a child has been wrongfully removed or retained in terms of Article 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 the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. Hague Convention Article 12 13. There is no question that this is an action in which the minor child, Trevor, has been wrongfully retained after his father brought him to this country ostensibly for a short visit. Stephen Courtwright himself stated in a letter to the child's mother dated January 18, 1991 that "...I'm not sure exactly if and when I'll be able to bring Trevor back". (See Affidavit of Plaintiff-mother). The only reasons given for such "change in the plans" are Defendant's desire for the child to see his grandparents and to allow "Trevor to experience a different lifestyle than he had an opportunity for in England". No life-threatening emergency is cited nor is there any concern voiced about his being mistreated while in his mother's care. The only reason for his retaining the child against the mother's -------------------- 1. In fact, even under South Carolina law Plaintiff mother has sole custody of an illegitimate child. S.C. Code of Laws, Sec. 20-7-953 (B) (1984). -------------------- objection is "because he and I [Stephen Courtwright] both have so many more possibilities here". Simply put, the child's father has confused his own interests with that of the minor child's and has completely ignored the mother's superior rights under English law by taking unfair advantage of his superior economic position, forcing Ms. Keane to come to this country to fight for her son. Exceptions to Mandatory Return 14. A respondent who opposes the return of the child has the burden of establish that one of the court exceptions to mandatory return, as listed in the Hague Convention, apply. Two of those exceptions, set forth in Article 13b and 20, must be established by a high standard of proof, clear and convincing evidence, that they apply. 42 USC Sec. 1103 (e) (2) (A). Defendants have filed to meet this heavy burden. 15. Specifically, the provision contained in Article 13(b) of the Convention states that the Court is not bound (but may nonetheless choose) to order the return of the child if thee 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. Again, the father's letter of January 18, 1991 fails to even suggest that there is any risk, grave or otherwise, that the child would be exposed to any harm whatsoever if he were returned to his mother. However, by challenging Plaintiff's right to recover Trevor the Defendants caused this Court to set an evidentiary hearing out of an abundance of caution. 16. Further, the provision of Article 20 is equally inapplicable as it states: The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Defendants have not even suggested that this Court should refuse to return this child to Great Britain on the grounds hat Her Majesty's Government could not adequately protect its citizens' human rights and fundamental freedoms. 17. The other exceptions, set forth in Article 12 and Article 13b, are under a lower standard of proof (preponderance of the evidence) but also do not apply to this case. The first, set forth in Article 12, provides that a child who has been wrongfully retained for a period of more than one year shall nonetheless be returned unless it can be demonstrated that the child "is no settled in its new environment". Trevor has been in this country no more than six months. [SYSOP's Note: The reference to Article 13b is in error; Subsection (b) deals only with grave risk and/or intolerable situations. (a) and the other unlettered sections may apply. Further, even though a child has been present for a year or more and has settled in, the court still has the discretion to return the child. It is not mandatory to retain the child under these circumstances.] 18. The other exception, contained in Article 13a, states that the court is not bound to order the return of a child (but may nonetheless do so) if it is established that the Plaintiff-mother was not actually exercising custody rights at the time of removal or that she had subsequently consented or acquiesced in the retention. This exception clearly does not apply here because (1) it is uncontroverted that Ms. Keane had custody of Trevor prior to his trip to the United States, (indeed, Mr. Courtwright specifically asked her permission to take him over here), (2) Ms. Keane adamantly stated in open Court that she wanted her son back, and (3) Ms. Keane acted promptly in contacting the British Central Authority in invoking the protections of the Hague Convention. 19. For the foregoing reasons, I find as a fact that Trevor Courtwright has been wrongfully retained in the United States by his father, aided and abetted by his grandmother, Defendant Judy Weesner, and his Aunt, Defendant Katherine Courtwright, and that no exceptions to mandatory return of the child to England have been established. As a result, this Court is required to order that the child be returned to his mother forthwith. PAYMENT OF FEES AND COSTS 20. 42 U.S.C. Sec. 11607(b) (3) provides: Any court ordering the return of a child pursuant to an action brought under section 4 [11603 of this Title] shall order the Respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. [Emphasis added] Plaintiff-mother has limited financial means and had to borrow funds to obtain possession of her child by this action. Her attorneys have successfully obtained the return of the child and defended against the father's efforts to litigate the underlying custody claim. Further, the Defendant has failed to show that an award of fees and costs would be clearly inappropriate. As a result, this Court is required to Order the payment of all of her fees and expenses, including reasonable attorney's fees and private investigator costs, given the relative financial standing of the parties and the wrongful retention of the child in this country by the father. [SYSOP's Note: An argument can and should be made that these fees are remedial in nature and that ability to pay is not an issue. See file HAGUEFEE.ASC for more information on this point.] 21. I find the nature, extent and difficulty of the services rendered by Plaintiff's counsel to have been considerable. This was a case of first impression in this jurisdiction and involved novel issues including the application of international, British and American Federal law in a South Carolina State Family Court setting which included defending the position that this Court should not determine the underlying merits of the custody dispute. [SYSOP's Note: See Article 16 which prohibits a court from litigating on the merits while this matter is before the court.] 22. I further find the time and labor devoted to the case by Plaintiff's counsel t have been appropriate given the fact this case involve two separate hearings totaling more than four hours of in-court time, as well as pre-trial conferences with this Court with opposing counsel as well as with the American and British authorities, including Plaintiff's counsel in London and the United States Department of State, which requested the help of the Golden Law Firm in bringing this action without advance retainer. Also, it was necessary for them to prepare their case at long-distance, acquire affidavits to proffer to the Court, and prepare their client on short notice to testify and fact Defendant's lawyer's cross-examination. In light of these factors,I find it reasonable for Plaintiff's attorneys t have spent 36.45 hours up to the day before trial, as reflected in the detailed accounting presented to the Court, as well as an additional six (6) hours for each attorney on the day of trial for trial preparation and given to the Court in evidence, without objection. 23. I find the professional standing of Plaintiff's counsel to be high. Mr. Golden is immediate past national chairman of the Family Law Section of the American Bar Association, is listed "a.v." in the Martindale Hubbell directory and he teaches CLE seminars throughout the State and country in Family Law matters to lawyer, judges, educators and laymen, and is current Treasurer of the International Academy of Matrimonial Lawyers. Mr. Taylor has practiced law since 1980, has been editor of the Family Lawyer, the Newsletter of the South Carolina Bar Family Law Section, is a form Special Assistant United States Attorney and since 1987, has devoted approximately ninety-five (95%) percent of his time to practicing domestic relations law with Mr. Golden. I find the Two Hundred Twenty Five ($225.00) Dollar per hour rate for Mr. Golden and One Hundred Twenty ($120.00) Dollar per hour rate for Mr. Taylor to be reasonable and appropriate to those fees customarily charged in this locality for similar legal services. 24. Defendant's financial declaration shows he earns over $1,000 per month in net income and was able to pay his own attorney a retainer of $1,000.00 prior to his testimony in Court. Given Plaintiff's poverty at the time of the trial, as shown by her financial declaration filed with the Court, and as emphasized by the Defendants themselves, it is very doubtful Plaintiff's counsel will be compensated at all, if not by Mr Courtwright. Given the fat that Mr Courtwright must pay his own expenses, as well as Ms. Keane's, the Court feels that some adjustment in attorney's fees is appropriate. [SYSOP's Note: One might wish to consider joining others, here the grandparents and the Aunt, pursuant to 9 Uniform Laws Annotated 10, which requires joinder whenever there are others who claim custody. Once joined they could be available for attorney fees and costs. One wonders why, in this case, the court did not order fees against the other defendants.] 25. Based upon the foregoing, I find and conclude that Defendant, Stephen Courtwright, should be required to contribute Two Thousand Five Hundred ($2,500.00) Dollars towards Plaintiff's attorneys' fees, to be paid within sixty (60) days from the date of this order. 26. Further, as of March 29, 1991, expenditures have been made by or on behalf of the Plaintiff as follows: Airline Ticket $564.00 Hotel (10 days @ $35/day) 350.00 Meals (10 days @ $10/day) 100.00 Filing Fee 50.00 Service of Process 609.25 2 -------------------- 2. According to the Affidavit of the private investigators submitted at the first hearing o this matter, most of these expenses were incurred in locating Mr. Courtwright after his sister, the person with whom he testified he and Trevor resided, told the private investigator that neither Mr. Courtwright nor Trevor lived at her address. Mr. Courtwright was, in fact, served with process at that location and later testified that both he and Trevor lived at that address with that sister, who is the third named Defendant herein. -------------------- TOTAL: $1,673.25 Such expenses and costs shall, together with the attorney's fees set forth, shall be paid directly to the Law Offices of Harvey L. Golden, P.A., counsel for Plaintiff, within sixty (60) days from the date of this Order, as herein expressed. DISPOSITION Base don the foregoing Findings of Fact and Conclusions of Law, IT IS ORDERED that Defendant Stephen Bradley Courtwright shall forthwith surrender the minor child Trevor to Plaintiff Patricia Mary keane, along with his passport, return airplane ticket and clothing for his return to the United Kingdom. AND IT IS FURTHER ORDERED that Defendant Stephne Bradley Courtwright shall pay the costs and expenses set forth above. AND IT IS SO ORDERED /s/ Jamie F. Lee JAMIE F. LEE, PRESIDING JUDGE THE FAMILY COURT OF THE FIFTH JUDICIAL CIRCUIT AT CHAMBERS Bennettsville, South Carolina April 16, 1991.