STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE HENRY J. TYSZKA, Case No. 90-022578-DM Plaintiff, -V- Hon. Samuel A. Turner MICHELE TYSZKA, (P-21635) Defendant. _______________________/ OPINION REGARDING PENDING MOTIONS _______________________/ OPINION 1. Introduction and Facts This domestic relations case is presently before the Court on various motions of the parties requesting that the Court preserve or vacate the existing interim custody order, dated September 4, 1990, (hereinafter the Custody Order) by which the plaintiff/father Henry J. Tyszka (hereinafter the plaintiff) was awarded custody of the Parties' minor children, Victoria (age 4 1/2) and Aleksander (age 1 1/2). FN1 The dispositive issues relate to whether this Court shall continue or vacate its Custody Order and are: first, whether this Court's jurisdiction was properly invoked by the plaintiff, and second, whether under either the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter the Hague Convention) or equitable considerations the Custody Order should be see aside, and the defendant mother, Michele Tyszka, (hereinafter the defendant) be awarded interim custody of the parties' children. For the reasons stated more fully below the Court finds that plaintiff properly invoked this Court's jurisdiction. The Court further finds, however, that under either the Hague Convention or equitable principles the plaintiff is not presently entitled to custody over the children, and thus the relevant provisions of the Custody Order must be vacated. The relevant facts and allegations appear as follows: Plaintiff and defendant were married an February 15, 1986, in Rennes, France. As noted, they have two minor children. Following the marriage, from March, 1986 until June, 1989, the family resided in Michigan. During this time plaintiff obtained a Michigan drivers' license. He also obtained a Michigan Teacher's Certificate, and apparently obtained at some point a teacher's position. He also acquired property in Michigan. In the summer of 1989 the family took a vacation in France. The plaintiff returned to Michigan with the daughter in July, 1989, and the defendant remained in France with the son. In the fall of 1989 plaintiff returned to France with the daughter where the defendant had secured a job and a house for the family, There is some indication that the plaintiff was unable to secure a job or a house in Michigan. Other indications are that he returned to France on a one year leave of absence. Plaintiff lived in France with defendant until August, 1990. During this time he secured the French permits necessary for him to live and obtain employment in France. He also sought various jobs in France. Finally he applied for admission into a graduate degree program. In August, 1990, plaintiff and the children returned to the United States on a vacation trip. Plaintiff had informed the defendant that they would return from the vacation on September 4, 1990. The airplane tickets obtained by plaintiff show that they were round-trip tickets with a return date of September 4, 1990. At no point immediately prior to his departure did plaintiff indicate to defendant that he would not be returning or otherwise had contemplated filing divorce proceedings upon arriving in Michigan. Yet, on September 4, 1990, the plaintiff, instead of returning to France, filed the instant action for divorce. On that date he also sought and obtained the Custody Order presently at issue. On September 6, 1990, the plaintiff telephoned defendant to inform her that he and the children would not return to France. While defendant disputes whether she received formal notice of the pendency of this action, she ultimately on September 12, 1990, initiated divorce proceedings in France. She, too, obtained an order, dated September 13, 1990, from a French court granting her custody of the children. Nevertheless, defendant appeared in this action end submitted herself to the Court's jurisdiction. 2. Jurisdiction The jurisdictional issue before this Court revolves on whether plaintiff satisfied the residency requirements of MCL 552.9 which states, in pertinent part: "A judgment of divorce shall not be granted by a Court in this state in an action for divorce unless the complainant or defendant has resided in this state 180 days immediately preceding the filing of the complaint ..." In Leader v Leader, 73 Mich App 276 (1977), the court discussed the principles underlying the foregoing statute: Residence in Michigan is defined as a place of abode accompanied with the intention to remain.... Domicile and residence in Michigan are synonymous terms. Today in our mobile society physical presence for a longer period of time is no longer the key factor it once was. FN2 For many purposes, residence must be considered in light of a person's intent.... presence, abode, property ownership and other facts are often considered, yet intent is the key factor. In Leader, id, 280-281 the Court, in applying the foregoing analysis held that a wife did not abandon her Michigan residence when she moved to Kentucky for approximately four months to attempt a reconciliation with her husband who had removed himself to Kentucky. Sometime after her return to Michigan from Kentucky she filed for divorce. She was not physically present in Michigan for 180 continuous days prior to the filing of the action. Notwithstanding this the Court found that the jurisdictional requirement of the statute was satisfied because of her testimony which indicated that she had never intended to reside in Kentucky or permanently give up her Michigan residence. In the case at bar there is no doubt that plaintiff's physical absence from Michigan, his move to France, his attempts to secure the necessary permits to work or go to school in France, and the various statements he made while in France without more, could lead to the conclusion that plaintiff meant to give up his Michigan residency. However, the Court also notes that plaintiff had property in Michigan, had obtained the necessary certificates to teach in Michigan and testified that he never intended to change his residence. His statements while made in France, he testified, were made as a matter of convenience to enable him to be with his family. From these circumstances, especially plaintiff's testimony concerning his intent, the Court finds that plaintiff did not form an intent to surrender his Michigan residence upon his move to France. Under Leader, therefore, the fact that plaintiff did not physically reside in Michigan for 180 continuous days immediately prior to his filing the instant case does not negate the fact of his "residence" in Michigan for the requisite period. Accordingly the Court finds that plaintiff satisfied MCL 552.9, and thus has properly invoked this Court's jurisdiction. 3. Hague Convention Both the United States and the Republic of France are signatories to the convention. This Court has been given jurisdiction to enforce the Hague Convention under the International Child Abduction Remedies Act, 42 USC 11601 et seq; see 42 USC 11603(a). Under Article 3 of the Hague Convention: "The removal or the retention of a child is to be considered wrongful where - a. it is in breech 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; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State." Further under Article 4, supra, the Hague Convention only applies to a child "who was habitually resident in a Contracting State immediately before any breach of custody or access rights." A court, however, need not order the return of a wrongfully removed or retained child if, pursuant to Article 13(b), supra, 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, The fact that a prior custody order has been entered is not determinative of the issue under the Hague Convention of whether a child should be returned. Article 17, supra. In this, a determination to return the child under the Hague Convention is not to be taken to be a determination on the merits of any custody issue." Article 19, supra. Finally Article 26, supra, provides: "Upon ordering the return of a child or issuing an order concerning rights of access under this convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant and those of returning the child." In applying the foregoing to the case at bar the Court finds that plaintiff did not wrongfully remove the children. Defendant, notwithstanding plaintiff's apparent subterfuge, did in fact consent to have the plaintiff remove the children from France. Because she gave her consent, plaintiff's removal cannot be said to have been in derogation of her parental rights, and thus under Article 3, supra, the removal cannot be said to be wrongful. Nevertheless plaintiff's continued retention of the children appears to have been wrongful. Under the original understanding of the parties, plaintiff would return the children to France on September 4, 1990, That this was the understanding of the parties is clearly evidenced by the fact that round trip tickets with a return date of September 4, 1990 were purchased. Indeed there is no credible evidence before the Court to suggest that defendant consented to the children's absence beyond September 4, 1990. Her prompt filing with a French court, and obtaining a custody order in those proceedings, her prompt appearance in this case are evidence enough and all belie any finding that defendant had consented or would have consented had plaintiff been more forthcoming about his intentions to file for divorce and seek custody over the children. Plaintiff's retention of the children beyond September 4, 1990 therefore was in breach of the defendant's custodial rights, presumably recognized under the laws of France, which rights were actively being exercised at the time. Therefore under Article 3 of the Hague Convention, plaintiff's retention of the children was wrongful and defendant would appear to be entitled to an order directing plaintiff to return the children to plaintiff. [WMH Note 1] As against this result plaintiff argued that the children's "habitual residency" was in Michigan, not in France, and thus the provisions of the Hague Convention do not apply. This Court disagrees. Rather the Court concurs with and adopts the well-reasoned analysis of Referee Broderick who stated in his "Opinion Dated on Record et 3:30 P,M., October 30, 1990," p 3: Now these children resided in the Commonwealth of France for a period, of one child, for a period of nine months, and the other child, for up to twenty months. A month in the life of a child, nine months in the life of a child, twenty months in the life of the child, is a long time. I think they were, indeed, habitual residents of France. They attended school in France. They had a doctor and health reports that exist in the State of France. FN3 [WMH Note 2] Plaintiff also argues that return under the Hague Convention is not warranted because, pursuant to Article 13(b), supra, upon return, the children will be presented with "immediate and grave danger." The United States State Department has provided some analysis of this section. As stated in 14 FLR 2073 (July, 1988): "this provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests. Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court's determination. The person opposing the child's return must show that the risk to the child is grave, not merely serious." Plaintiff, as evidence of his contention under Article l3(b), alleges that defendant suffers from "psychiatric" and "drug and alcohol" problems, and that defendant is "unable to care" for the children. In addition, plaintiff testified to specific incidents in support of his allegations. The Court, however, upon review of those allegations, does not find that they establish that the children would be subjected to immediate and grave danger. This is so in light of credible testimony which shows that during substantial periods of time defendant was the primary care taker of the children, during which plaintiff voiced no objections to her care of the children. Further defendant spent substantial sums of money for the children's support. The fact that defendant may be under psychiatric care in France shows, if anything that while she may have some psychiartic problems, she has sought treatment for them. For all of the above reasons the Court finds that the children would not and grave risk of harm if the children were returned to the defendant. Plaintiff's objections under Article 13(b) supra, are thus without merit. [WNH Note 3] For all the foregoing reasons the Court will grant an order providing for the return of the children to the defendant pursuant to the Hague Convention. The provisions of the Custody Order to the contrary must be vacated. 4. Equitable Consideration In entertaining actions for divorce and entering or setting aside orders in divorce actions, this Court sits as a court of equity, MCL 552,12. Thus equitable considerations, also apply to whether the Court should continue in effect or vacate its Custody Order. Ordinarily equity will not aid a fraud and will refuse to enforce any purported rights obtained by fraud or misrepresentation, and the courts have authority to set aside orders or decrees in domestic relations actions opened on the basis of fraud or misrepresentation. See generally, Berg v Berg, 336 Mich 284, 208 (1953); DeHaan v DeHaan (1957) 348 Mich 199. In the case at bar the Court finds that plaintiff obtained physical custody over the children essentially by perpetrating a fraud on the defendant by concealing from her any hint that he was not going to return with the children after September 4, 1990. Moreover, his non-disclosure of his breach of his agreement with defendant to the Court upon seeking an ex parte application for the Custody Order constituted a material misrepresentation to the Court, in that, it would have been material to the Court's determination of whether plaintiff was entitled to retain custody of the children whether plaintiff, in good faith, had retained custody of them. Given the circumstances of how plaintiff retained physical custody over the children and how he solicited the Court's assistance through the issuance of the Custody Order, the Court is persuaded that equitable considerations dictate that the Custody Order be modified such that those provisions relating to the custody of the children, and providing that defendant pay child support will be vacated. 5. Other Matters Article 16 of The Hague Convention states in pertinent part: "After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention .... As observed by Referee Broderick in his opinion, supra, "Under the Hague Convention, this Court is making no ruling as to who is the better custodian of these two children. The Hague Convention does not allow this forum to make this determination. In fact, that is the reason for the Hague Convention, is that the proper forum would be the forum of habitual residence of the children ... I think the court in France can accomplish their investigation, and by their taking of testimony in this regard, what is in the best interest of these children. Whether they should indeed reside with their mother or their father. Under Article 16, supra the Court agrees with the Referee's assessment of the limitation of its power to determine the custody issue. Therefore this Court will hold in abeyance any consideration of the custody issue beyond ordering that the children be returned to their mother in France, until such time as the appropriate French court adjudicates the issue. FN4 [WMH Note 4] Also, consistent with Referee Broderick's Opinion, supra, pp 3-4, the Court will, however, order the plaintiff to pay through the Office of the Wayne County Friend of the Court interim child support of $50.00 per week per child until further order of the Court. Also pursuant to Article 26, supra, the Court will enter an order directing plaintiff to pay defendant's hotel bill, her air fare and her air fare for the return of the children to France. Further plaintiff's request for attorney fees shall be decided while that of defendant's be taken under advisement. [WMH Note 5] Finally because the custody issue will be decided in France, and there is an indication that some testimony as to the psychological makeup , of both parties will be available in France, plaintiff's request for a psychological evaluation will be denied. FN5 Defendant's counsel is to prepare an order which conforms to this Opinion. /s/ Samuel Turner _____________________ Circuit Judge Dated: 21 Feb 1991 ----------------- Comments and Notes by William M. Hilton (WMH) 1. The judge in this case used ordinary acts of the parties to show that no consent to the retention had been made by the mother: The Round Trip Airline tickets, the prompt action by the mother in France to obtain a custody determination, etc. When pleading these cases and the issue of acquiescence by the left behind parent is raised, ordinary events such as used by the court are very useful as a "tie breaker" in an evidentiary hearing. On the other hand the parent arguing that the consent was there may state, for example, that the tickets were purchased on a Round Trip basis simply because that was the lowest cost way to obtain tickets. 2. Here the court adopts the position that it is the physical and not the legal presence of the child that is significant. Compare this to 9 Uniform Laws Annotated (ULA) 2(5) which defines an analogous term: "Home State". The practitioner should refer to the Uniform Child Custody Jurisdiction Act (UCCJA) in explaining the Hague Convention but with the caveat that the UCCJA is only similar and is not identical to the Hague Convention. When the child travels frequently and has not lived in any one place for a significant period of time, then it may be that the domicile is of significance. See High Court of Justice, Family Division, Royal Courts of Justice, London WC2, United Kingdom, CA 122/89, 23 Feb 1989 for an example of this. 3. The court's referal to the language of the analysis is to be noted. The court approves the concept that there must be immediate danger and that the matter must be more than serious. The court also approves of the higher burden required to prove this. For similar findings see the cases cited in 9 ULA 3(a)(3), the "Emergency" section of the UCCJA. 4. Article 16 is not to be ignored. Its implementation can cause the court to focus on the matter before it: The determination of whether or not there has been a wrongful removal/retention. The invoking of Article 16 is a significant step in that direction as it stops the court dead in its tracks on its normal "best interests" routine. 5. No mention was made of 42 USC 11607(b)(3) which requires the payment of fees, costs, travel expenses, etc., unelss it can be shown to be clearly inappropriate. Note that the court did include travel costs, hotel, etc., in the amount to be paid by the abducting parent. Foot Notes -------------------- 1. Plaintiff's motion is entitled "Emergency motion for stay" so as to preserve the existing custody order; motion for immediate psychiatric evaluation, and for release of defendant's existing and past psychiatric records, and motion for reasonable protective visitation for defendant, bond and related relief." Defendant's motions are entitled "Amended motion to modify the September 4, 1990 Ex Parte Interim Order and return children to the mother" and an "emergency motion to enforce the Hague Convention," For simplicity's sake plaintiff's motion will be referred to as his "motion to preserve" and defendant's motions will collectively be referred to as her "motions to modify." 2. "Domicile is the union of residence and intention, and residence without intention, or intention without residence, is of no avail. Mere change of residence, although continued for a long time, does not effect a change of domicile.... Moreover, a domicile, once shown to exist, is presumed to continue until the contrary is shown. 3. The Court would also observe that in the case of the minor children, not of the age of reason, physical presence must be weighed especially heavily since, of course, they cannot have been deemed to have made a conscious decision concerning their residency, Leader's analysis of residency which focuses on intent, and not physical presence, is thus largely inapplicable. 4. The Friend of the Court will therefore not be required to undertake an investigation into the custody issue. 5. Any other relief sought in plaintiff's "Motion to Preserve" is denied as being mooted by the foregoing findings. To the extent that defendant's "Motions to Modify" seek relief that is inconsistent with the foregoing they too are denied.