Storvik v Storvik (Calif. Superior Court 1995) Santa Clara County No. FL 047219 1 International Abduction [USA 1995] =========================================================== Baard E. Storvik and Pamela Storvik Superior Court of California County of Santa Clara No FL 047219 - o - ARGUMENT MEMORANDUM OF LAW RE: HABITUAL RESIDENCE 23 May 1995 1.0 FACTS 1.1 There is one minor child Christopher A. Storvik, born in Norway on 18 Feb 1989. To date Christopher has spent approximately 86% of his life in Norway and 14% of his life in California. 1.2 Baard E. Storvik came to California as a Visiting Scholar at Stanford University on a J-1 Visa. Pamela Storvik and the minor child accompanied him for this temporary stay on a J-2 Visa. 1.3 The parties separated on or about 11 Jan 1995. Pamela Storvik and their son remained in the place that the family had rented when they came to California for the 1994-1995 Academic Year. Baard E. Storvik moved to a nearby address in Palo Alto, California. 1.4 On 13 Mar 1995 Pamela Storvik brought an action for dissolution and alleged that Baard E. Storvik was not the father of Christopher. 2.0 THE UNILATERAL INTENT OF A PARENT CANNOT CHANGE THE HABITUAL RESIDENCE OF A CHILD. 2.1 Pamela Storvik argues that, since she intended to live in California on a permanent basis, the "Habitual Residence" of Christopher has shifted from Norway to California. 2.2 Pamela Storvik is in the United States on a J-2 Visa which expires on 31 Jul 1995. The terms of a such a visa are set out in 8 U.S.C. 1101(a)(15)(J) which holds that it is issued to ". . . an alien having a residence in a foreign country which he has no intention of abandoning . . ." 2.3 The fact that Pamela Storvik may have intended to remain in California indefinitely does not alter that fact that her present status by which they lawfully reside in California is of a temporary nature. Sukati v Com. Dept. of Public Welfare (Pa.Cmwlth. 1979) 402 A.2d 325, 326 - 327. 2.4 Baard E. Storvik is a graduate student and an instructor at the University of Oslo in Norway. His plans from the outset of his temporary stay in California were to return to Norway about the first week of Jun 1995 to resume his duties as an instructor. 2.5 The unilateral decision of Pamela Storvik to remain in California with Christopher cannot, as a matter of law, change the "Habitual Residence" of Christopher from Norway to California. 2.6 In the case of Application of Ponath (D.Utah 1993) 829 F.Supp. 363 a family left Utah for a "temporary" stay in the Federal Republic of Germany (FRG). After the family had arrived in the FRG the mother and child were prevented from leaving the FRG by the father and his family. After being in the FRG for about 10 months, the same period of time that Christopher has been temporarily in California, the mother and the child left the FRG and returned to their home in Utah. The father in the FRG made an application under The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] and filed an action in the Federal Court in Utah. The Federal Court, in denying his petition, stated the following: "3. For purposes of 42 U.S.C. Sec 11603(e)(1)(A) and Article 3 of the Hague Convention, the habitual residence of the minor child was in Carbon County, Utah. Between petitioner and respondent, the more creditable testimony in the court's view, is that of respondent who testified that she, and the minor child, were detained in Germany against her desires by means of verbal, emotional and physical abuse. The court cannot conclude under such circumstances that respondent and the minor child were habitually resident in Germany within the meaning of the Hague Convention. Although it is the habitual residence of the child that must be determined, the desires and actions of the parents cannot be ignored by the court in making that determination when the child was at the time of removal or retention an infant. The concept of habitual residence must, in the Court's opinion, entail some element of voluntariness and purposeful design. Indeed, this notion has been characterized in other cases in terms of 'settled purpose'. The governing principle for ascertaining the elements of habitual residence is contained in the speech of Lord Scarman in R. v. Barnet London Borough Council ex parte Shah [1983] 2 A.C. 309, where he says, at page 314: "and there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. In re Bates No. CA 122.89 at 10, High Court of Justice, Fam. Div'n Ct. Royal Court of Justice, United Kingdom (1989). In this case, what began as a voluntary visit to petitioner's family in Germany, albeit an extended visit, might be viewed by the court as a change of habitual residence of the minor child but for respondent's intent and desire to return to the United States with the minor child and petitioner's willful obstruction of that purpose. Petitioner's coercion of respondent by means of verbal, emotional and physical abuse removed any element of choice and settled purpose which earlier may have been present in the family's decision to visit Germany. The aim of the Hague Convention is to prevent one parent from obtaining an advantage over the other in any future custody dispute. Friedrich v Friedrich (6th Cir. 1993) 983 F.2d 1396, 1402. For the court to grant petitioner's motion, and thereby sanction his behavior in forcing continued residence in Germany upon respondent, and through her, the minor child, would be to thwart a principle purpose of the Hague Convention. In the court's view, coerced residence is not habitual residence within the meaning of the Hague Convention. As noted earlier, the concept of habitual residence, for purposes of the Hague Convention, is viewed to be fluid and fact based. Given the specific facts of this case, the court can draw no conclusion other than that the habitual residence of the child was in Carbon County, Utah. Accordingly, pursuant to 42 U.S.C. Sec. 11603(e)(1), the petitioner has failed to show by a preponderance of the evidence that the minor child has been wrongfully removed or retained within the meaning of the Hague Convention." 2.6.1 In Ponath the court held that there must be an element of voluntariness and settled purpose in the establishing of a new "Habitual Residence" of the child and that the unilateral act of a parent cannot be used to change the child's "Habitual Residence". 2.6.2 In this case Pamela Storvik has unilaterally decided that Baard E. Storvik is not the father of their child, that she is to be the custodial parent and that the child is to live with her where ever that may be. This view is contra to the intent of The Convention and to permit her view to prevail would make The Convention a dead letter. 3.0 CONCLUSIONS 3.1 The "Habitual Residence" of Christopher has been and continues to be Norway. 3.2 The objective intent of the parties when they came to California was that it was a temporary stay that would end about the first week of Jun 1995. 3.3 The unilateral acts of Pamela Storvik cannot be used to change the "Habitual Residence" of Christopher. 3.4 The expressed intent of Pamela Storvik to remain in California with Christopher is a "Wrongful Retention" within the meaning of Art. 3 of The Convention. 4.0 SUBMISSION 4.1 Respectfully submitted on 23 May 1995. /s/ Wm. M. Hilton, CFLS END OF ARGUMENT - o - RESULTING ORDER ORDER AFTER TELEPHONE HEARING 26 Jul 1995 1.0 STATUS 1.1 This matter was continued from 21 Jul 1995. 1.2 This matter was heard by telephone on 26 Jul 1995. 1.3 Baard E. Storvik was represented by William M. HILTON, CFLS. 1.4 Pamela Storvik was represented by Blair R. Smith, Esq. 1.5 The matter was submitted on its pleadings and by argument of counsel. 2.0 FINDINGS 2.1 Based upon the record before the court, the court finds that Norway is the "Habitual Residences' of the minor child within the Meaning of Art. 3 of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 20 Oct 1980 [The Convention]. 2.2 The court has not determined whether or not there has been a "Wrongful Retention" within the meaning of Art. 3 of The Convention. 2.3 The court has not determined whether or not Pamela Storvik's exception to the mandatory return under Art. 12 of Thg Convention is well founded within the meaning of Art. 13(b) of The Convention. 3.0 JURISDICTION 3.1 This court retains provisional jurisdiction to determine if it has jurisdiction over this matter. 4.0 CHILD'S TRAVEL TO NORWAY 4.1 Pending further hearing on this matter on 29 Aug 1995 at 1:30 p.m., the minor child shall be taken to Norway by Pamela Storvik or an agreed upon alternate, on 12 Aug 1995. 4.2 Pending further order of this court, the minor child shall be in the interim care of Baard E Storvik in Norway for the period from 12 Aug 1995 through 29 Aug 1995. 4.3 The minor child shall travel from San Francisco Interna- tional Airport to Helsinki, Finland where he will be met by Baard E Storvik who shall travel to Norway with the minor child. 4.4 The parents are to share equally the costs of transporting the minor child to Norway. 4.5 Travel documents for Pamela Storvik and/or the minor child may be obtained from the clerk of the court by showing the clerk a ticket for herself and the minor to Helsinki, Finland. 5.0 FURTHER HEARING 5.1 All matters not decided by this court are continued to 1:30 p.m. on 29 Aug 1995. 6.0 INTERCOURT COMMUNICATION 6.1 Counsel for Baard E. Storvik shall proivde this court wiht a proposed draft of a letter from this court to the Central Authority of Norway for the purpose of having this court communicate with the appropriate court in Norway that would or could have jurisdictin over this matter. 7.0 ORDER 7.1 The court has read the above, finds that it is in accord with the pronouncement of the court on 26 Jul 1995 and heereby ORDERS that all parties are to carry out each and every one of its terms. /s/ Hon. Jeremy D. Fogel Judge of the Superior Court State of California