[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 19, 2009
No. 09-10563 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-02313-CV-T-27-TBM
PENELOPE SEWALD,
Plaintiff-Appellee,
versus
JOHN RESINGER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 19, 2009)
Before EDMONDSON, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Respondent-Appellant John Reisinger appeals the district court’s grant of
Petitioner-Appellee Penelope Sewald’s petition for the return of her child, AR,
pursuant to the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et
seq. (“ICARA”), which implements the Hague Convention on the Civil Aspects of
International Child Abduction (the “Hague Convention”). No reversible error has
been shown; we affirm.
The facts largely are uncontested.1 Petitioner is a United States citizen born
in Germany in 1969. Petitioner spent her first year of life in the United States but
then returned to Germany where she remained until she traveled to the United
States in 2003. During this trip -- which lasted about 18 months -- Petitioner and
Respondent developed a relationship. Even though Petitioner returned to
Germany, the two remained in contact. Petitioner returned to the United States in
May 2005 and married Respondent in August 2005. At the time of the marriage,
the couple resided in Tampa, Florida, with Petitioner’s son “J”; it was their
understanding that Petitioner would return occasionally to Germany to visit her
oldest son who remained in Germany with his father. In December 2005,
Petitioner and J returned to Germany ostensibly for a visit; but Petitioner decided
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An evidentiary hearing was conducted on the petition before a magistrate judge.
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unilaterally to remain in Germany and so notified Respondent.
Petitioner was pregnant at the time of her return to Germany; the couple’s
child, AR, was born in Germany in May 2006. Respondent was present at his
child’s birth and thereafter visited regularly with AR.2 The testimony shows that
Respondent was in close contact with AR, tried continuously to convince Petitioner
to return to the United States and to reconcile with him, and sent Petitioner
financial support. Testimony also shows that Respondent purchased two vehicles
for Petitioner’s use in Germany, accompanied Petitioner and AR on a visit to AR’s
German doctor, accompanied Petitioner on visits to review potential pre-schools
for AR in Germany, and agreed with Petitioner on the school in which AR would
enroll in Germany. AR -- except for visits to the United States to see his father --
has spent his entire life in Germany.
In August 2008, at Respondent’s expense, Petitioner brought AR, his two
older half-brothers and a friend of one of the older boys to the United States on
round-trip tickets from Germany to Tampa. The day before Petitioner was
scheduled to return to Germany, she discovered that AR’s passport was missing.
Respondent refused to surrender AR’s passport to Petitioner. Petitioner initiated
these Hague Convention proceedings to allow her to return to Germany with her
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Respondent traveled to Germany to see his son and also financed visits to the United
States by Petitioner, AR and AR’s half-brothers.
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sons.
Under ICARA, a person may petition a court in the jurisdiction where a
child is located for the return of the child to the child’s “habitual residence” in
another signatory country. See 42 U.S.C. § 11603. The focus of a court
entertaining an ICARA and Hague Convention petition is on the merits of the
abduction and/or retention claim; the merits of the underlying custody battle are no
part of the inquiry. See 42 U.S.C. § 11601(b)(4); Ruiz v. Tenorio, 392 F.3d 1247,
1250 (11 th Cir. 2004).
To prevail on a claim for relief under the Hague Convention and ICARA, the
petitioner must establish by a preponderance of the evidence that the child was
“wrongfully removed or retained within the meaning of the Convention.” 42
U.S.C. § 11603(e)(1)(A). So Petitioner had to prove that: (1) AR was “habitually
resident” in Germany at the time Respondent seized his passport and thereby
caused him to remain in the United States; (2) the retention constituted a breach of
Petitioner’s custody rights under German law; and (3) Petitioner had been
exercising her custody rights at the time of the retention. See Hague Convention,
art. 3; Ruiz, 392 F.3d at 1251. If a Hague Convention petitioner carries the initial
burden of proving a wrongful removal or retention, the child must be returned
unless one of the Convention’s defenses applies. Defenses must be shown by clear
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and convincing evidence. See Hague Convention art. 13(b) and art. 20; 42 U.S.C.
§ 11603(e)(2)(A).
The magistrate judge issued a report and recommendation (“Report”)
concluding that (1) AR’s habitual residence was in Germany with the Petitioner;
and (2) Respondent’s seizure of AR’s passport constituted a wrongful retention of
AR. The Report also rejected the two defenses advanced by Respondent: (1)
returning AR to his mother would pose a grave risk of exposing the child to
physical or psychological harm, and (2) returning AR would violate fundamental
principles relating to the protection of human rights. The district court, after a de
novo review, adopted, confirmed and approved the Report in all respects.
In our review of Hague Convention cases, “we accept the district court’s
finding of historical facts unless clearly erroneous.” Ruiz, 392 F.3d at 1252. But
the ultimate issue of “habitual residency” -- a concept key to Hague Convention
suits but undefined in the Hague Convention and the ICARA -- is reviewed “de
novo, considering legal concepts in the mix of facts and law and exercising
judgment about the values that animate legal principles.” Id. (internal quotation
and citation omitted).
That Petitioner and Respondent entertained different ideas initially about
where AR should be raised is clear. But the district court found and concluded that
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the objective evidence revealed that Petitioner and Respondent, over time, came to
share the intention that -- absent the couple’s reconciliation -- AR would reside in
Germany with his mother. In the light of the historical facts found by the district
court, our de novo review confirms that Germany was AR’s habitual residency
immediately before Respondent seized the child’s passport.
Respondent argues that irrespective of AR’s habitual residency, no wrongful
retention and no Hague Convention or ICARA violation could be shown. In
support of this argument, Respondent cites Pielage v. McConnell, 516 F.3d 1282
(11th Cir. 2008). In Pielage, we had occasion to consider whether a ne exeat order
issued by an Alabama court prohibiting the removal of a child from the state
court’s jurisdiction during the pendency of a custody dispute constituted an
“unlawful retention” for Hague Convention and ICARA purposes. We concluded
that it did not: under the facts of Pielage, no change in the child’s usual family and
social environment was effected by the ne exeat order.
The facts and context here are markedly different. AR’s retention was
caused by the surreptitious seizure of his passport, not by a lawful state court order.
And the retention of AR in the United States disrupted and otherwise altered
significantly the family and social environment to which he was accustomed.
Although language in Pielage suggests that the Hague Convention has no
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application when physical care of the child is unchanged, the Pielage court was
deciding the case before it; it could not and did not make binding law beyond the
factual basis of the case before it. Pielage says little about the application of the
Hague Convention to the materially distinguishable facts presented here. In the
light of the wrongful retention effected by the seizure of AR’s passport,
Petitioner’s petition for the return of AR was due to be granted unless Respondent
showed by clear and convincing evidence that a defense applied.
The district court concluded that Respondent failed to present clear and
convincing evidence that a defense applied. About Respondent’s claim that AR’s
return to Germany would expose him to a grave risk of physical or psychological
harm, no evidence was proffered that Petitioner ever harmed her children.
Although Petitioner suffered some mental health problems, we see no error in the
district court’s conclusion that insufficient evidence supported the assertion that
Petitioner’s mental health presented a current grave danger to AR. And we agree
with the district court that Respondent’s human-rights-based claim is without
merit.
AFFIRMED.
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