Court: Superior Court of Dekalb County, State of Georgia, USA Number: Civil Action No. 90-2603-1 Applicant: Andrea Anne Vorpe Moore and Respondent: Robert James Moore Date: 20 Mar 1990 ================================================================= IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA ANDREA ANNE VORPE MOORE * * Petitioner, * CIVIL ACTION NO. 90-2603-1 * v. * * ROBERT JAMES MOORE, * ORDER * Respondent. * Petitioner has filed a writ of habeas corpus challenging the respondent's custody of the parties' child. The court held an expedited evidentiary hearing on the issue. The court has reviewed the documentary evidence, the applicable legal authorities and argument of the parties. After considering the matter, the court denies relief to petitioner at this time. Petitioner proceeds under the Convention on the Civil Aspects of International Child Abduction done at the Hague on October 25, 1980 (Hague Convention) and the International Child Abduction Remedies Act. 42 U.S.C. Sec. 11601 et seq. Petitioner sought an emergency ex parte hearing with the court and requested custody be immediately returned to her. After that hearing, the court made arrangements for the child to be taken into the custody of the local department of family and children services and be placed in a foster home until the court could hold an expedited hearing on the issue. Petitioner alleged she feared the respondent would flee if he had notice of the hearing. However, before the sheriff obtained custody of the child, the parties reached a temporary consent order under which the respondent would maintain custody while allowing petitioner to have daily visitation with the child at a local child care center. Because petitioner has insisted on an expedited hearing, the court denied respondent's request for a continuance. The respondent had approximately 2 1/2 weeks notice of the hearing date, but contends he was unable to locate and retain an attorney who was versed in international law. For the reasons set out below, the court will retain jurisdiction over the custody issue between these parties and it may be appropriate in the future to reconsider petitioner's request for relief on this issue. The parties met in the United States and were married in the United States on October 2, 1986. Petitioner is a citizen of Switzerland and respondent is a citizen of the United States. Except for occasional visits to Switzerland, the parties have resided in the United States during their marriage prior to the dispute in issue. The minor child of the parties was born in the United States on April 13, 1988 and was undoubtedly a resident of Georgia until petitioner mother took the child with her to visit Switzerland at the end of August, 1989. The court finds from the evidence that the mother told father she only intended to visit Switzerland and in fact had purchased return tickets. However, once the mother arrived in Switzerland she advised the father she did not intend to return and suggested he join her there to attempt a reconciliation. The mother advised the father he must be physically present in Switzerland before he could attempt to locate a job. She told him her father would assist him in finding a job. He expressed reluctance because he could not speak the language and had no means of support while living in Switzerland. However, in an effort to seek reconciliation and be with his child, the father did travel to Switzerland. The father testified he never intended to live permanently in Switzerland. The mother has produced documents signed by the father which suggest otherwise. The father stated he only signed the documents to authorize him to search for work and remain in the country while he sought reconciliation of the parties. Based on the evidence before the court at this time, the court will find the father never intended a permanent residence in Switzerland. Shortly after the father arrived in Switzerland, the mother filed for divorce and obtained temporary custody of the child. The father was not aware of the law, language or procedures in Switzerland. He continued to stay with his wife's parents. The father contends he never knew or understood that the Swiss courts had given custody of the child to his wife. The court must determine whether or not the child was a habitual resident of Switzerland at the time of the Swiss decree which gave temporary custody to the mother. If the child was a habitual resident of Switzerland, then this court must return the child to the mother and relegate respondent to any rights he might have in Switzerland. However, if the child was not a habitual resident of Switzerland, then this court is not bound by the prior Swiss court order. This court finds the child at the time of the Swiss custody order was in fact habitually resident in Georgia. The child was taken to Switzerland by the mother on the pretense of visiting the mother's parents. This court finds as a matter of fact that the father never would have allowed the child to be taken to Switzerland if he understood the mother was going to file a divorce action in Switzerland and seek custody there. Further, no matter what the parties' intentions were in this case, the court believes under all applicable law the Georgia courts have jurisdiction over the child. The court treated this matter on an expedited basis because of the intense dispute between the parties and the strain, both financial and emotional, being placed on the parties. The court only expresses an opinion that the child should not be immediately returned to Switzerland. The court expresses no opinion on what the ultimate disposition of the case may be as to the child's custody situation in the event the parties are divorced. Because this court has Jurisdiction over the divorce action presently pending by the respondent against petitioner, the court will also retain jurisdiction over the habeas corpus action to make any further findings as the court deems appropriate. For these reasons, the court declines to grant immediate habeas corpus relief. SO ORDERED this 20th day of March, 1990. /s/ Robert J. Castellani ROBERT J. CASTELLANI, JUDGE STONE MOUNTAIN JUDICIAL CIRCUIT Copies to: Robert James Moore George S. Stern Susan Hurst R. Scott Tobin ================================================================= Counsel: Applicant: Respondent Susan A. Hurst Andrew Bips, Attorney At Law Attorney At Law Box 420202 90 Fairlie St. N.W., No. 850 Atlanta, Georgia 30342 Atlanta, GA 30303 (404) 256-0010 FAX (404) 851-9081 ================================================================= WMH COMMENTS: The Brief In Support of Petition (not shown) argued that the test should be the domicile of the parties rather than the actual residence. This seems contra to the various notes taken at meetings implementing the Convention where the general thrust was that actual residence was desired. The court found that actual contact with the forum was the test. Compare 9 Uniform Laws Annotated 3(a)(2), "Significant Contacts". =================================================================