Sealed v. Sealed

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 15, 2004

Charles R. Fulbruge III
Clerk
No. 04-10656

SEALED APPELLANT,

Petitioner-Appellant,

versus

SEALED APPELLEE,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Texas

Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In this expedited appeal, Appellant Father seeks the prompt

return of his two children to Australia, their country of habitual

residence. The relief is sought under the Hague Convention on the

Civil Aspects of International Child Abduction, 25 Oct. 1980,

T.I.A.S. No. 11,670, 19 I.L.M. 1501 (the Convention), implemented

in the United States by the International Child Abduction Remedies

Act, 42 U.S.C. §§ 11601-11611 (ICARA). Applying the Convention,

the district court determined: Father was not exercising his

custodial rights; therefore, Mother did not wrongfully remove their

children from Australia. Accordingly, the district court did not

order the children’s return. VACATED; RENDERED; REMANDED to
district court to determine the details concerning the children’s

prompt return to Australia.

I.

Appellant is the Australian-citizen father of two Australian-

born children, ages two and four. Appellee, the children’s mother,

is an American citizen who lived in Australia for approximately

nine years before returning to the United States in 2003. Father

and Mother have never been married, but lived together with their

elder child for approximately 18 months before Mother and child

moved out. At that time, Mother was pregnant with her second child

with Father. He has never had primary physical custody of either

child.

Both parties agree Father maintained contact with his children

after Father and Mother separated; they disagree, however, about

the amount of contact. Father claims he visited the children

multiple times a week; Mother, only about four or five times a

year. It is undisputed that Father gave Mother money for child

support, although the amount and regularity is unclear. Mother

conceded in district court that she initiated at least some of the

contacts with Father. For example, she and the children sent him

cards for his birthday, Father’s Day, and several other occasions.

In early September 2003, Father, Mother, and their children

had dinner together in Australia, at which time Mother told Father

she planned to take their children on a holiday to visit her

parents in Texas. Father understood the children would be there

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for a month before returning to Australia and believed the trip was

planned for February 2004. Father signed the necessary papers for

the children to receive Australian passports. He did not consent

to the children’s permanent removal from Australia. Mother left

Australia with the children in early September 2003, with no

intention of returning. Several days later, Father discovered

Mother had permanently left the country when he found her telephone

line disconnected and her house vacated.

Father attempted to communicate with Mother in Texas. He was

able to speak with Mother’s parents and ascertain that the children

were staying at their home, but Mother refused to speak to him.

Father contacted a legal aid organization in Australia, and

representatives from that organization informed him this was likely

a parental abduction case under the Convention. With the help of

the Australian International Family Law Section of the Attorney-

General’s Department, Father filed the necessary documents to begin

the process of having the children returned to Australia under the

Convention.

On 27 April 2004, approximately seven months after Mother had

removed the children from Australia, Father petitioned the United

States District Court for the Northern District of Texas to order

the children’s return to Australia, per Convention procedure. The

district court issued a show cause order to Mother that same day,

ordering her to appear for a hearing on 4 May 2004.

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 Father traveled to Texas for the hearing, during which he was

represented by counsel obtained for him by the Australian

authorities. Mother elected to proceed pro se at the district

court hearing, including cross-examining Father. After the first

day of the hearing, she consulted with a lawyer; and, on the second

day of the hearing, she stated she had a meeting scheduled with

another lawyer that afternoon. Mother did not retain counsel until

after the district court proceedings had ended. (Mother is

represented on appeal.)

At the hearing, Mother testified, among other things: Father

is the children’s biological father; Father paid token support for

the children and occasionally visited them; Mother left Australia

with the children less than a year prior to the hearing; Father

agreed to sign the papers necessary for the children to get

Australian passports; and Mother did not tell Father she planned to

stay in the United States permanently. Father testified: he paid

child support to Mother weekly; he visited the children at least

weekly; he did not consent to the children’s permanent removal from

Australia; and the Australian government was financing his legal

efforts. At the close of the hearing, the district court orally

denied Father’s petition and did not order the children’s return to

Australia. It entered an order to this effect on 6 May 2004.

II.

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 The district court’s findings of fact are reviewed for clear

error; its legal conclusions, de novo. E.g., England v. England,

234 F.3d 268, 270 (5th Cir. 2000). “A factual finding is not

clearly erroneous as long as it is plausible in the light of the

record as a whole.” United States v. Powers, 168 F.3d 741, 752

(5th Cir.), cert. denied, 528 U.S. 945 (1999) (internal quotation

and citation omitted).

Father maintains Mother wrongfully removed the children from

Australia because she left the country with the children in

violation of Father’s custody rights, which he was exercising at

the time of removal. Mother testified as an affirmative defense

that Father was not exercising his custody rights, so the removal

was not wrongful. For the first time on appeal, Mother asserts:

returning the children to Australia would pose a grave risk to

their well-being; and, at oral argument, she seemed to further

assert that removal was not wrongful because no custody proceeding

is pending in Australia. Before addressing these issues,

examination of the Convention is necessary.

This case is controlled by the Convention, to which both

Australia and the United States are signatories. In 1988, the

United States ratified the Convention and enacted ICARA, the

implementing legislation. Pursuant to ICARA, state and federal

district courts have concurrent original jurisdiction of actions

arising under the Convention. 42 U.S.C. § 11603(a). A person

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seeking a child’s return under the Convention may commence a civil

action by filing a petition in a court in the jurisdiction where

the child is physically located. Id. § 11603(b). The petitioner

bears the burden of showing, by a preponderance of the evidence,

that the removal or retention was wrongful, id. § 11603(e)(1)(A);

the respondent, of proving any affirmative defenses, id. §

11603(e)(2).

Under the Convention, courts in contracting countries must

return a wrongfully-removed child to his country of habitual

residence. Convention, art. 12; 42 U.S.C. § 11601(a)(4). For

purposes of the Convention, it is irrelevant whether there is a

custody dispute concerning that child pending at the time of

removal. Convention, art. 4 (“The Convention shall apply to any

child who was habitually resident in a Contracting State

immediately before any breach of custody rights....”; emphasis

added). A parent wrongfully removes a child when he or she removes

or retains the child outside the child’s country of habitual

residence, and this removal: breaches the rights of custody

accorded to the other parent under the laws of that country; and,

at the time of removal, the non-removing parent was exercising

those custody rights. Convention, art. 3.

The Convention provides several narrow affirmative defenses to

wrongful removal. See Convention, arts. 12, 13, 20. A child may

not be returned to his country of habitual residence if the

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removing party can show, by a preponderance of the evidence, that:

the non-removing party was not exercising custody rights at the

time of the child’s removal; or, the child is of proper age and

maturity and has decided he does not want to return. Convention,

arts. 12, 13(a); 42 U.S.C. § 11603(e)(2)(B). A removing party also

may prevent the child’s return if she can show, by clear and

convincing evidence, that: principles relating to the protection

of human rights and fundamental freedoms do not permit the return

of the child; or, the return would cause grave risk to the child’s

mental or physical well-being. Convention, arts. 20, 13(b); 42

U.S.C. § 11603(e)(2)(A).

A.

Concerning Mother’s affirmative defense that Father was not

exercising his “rights of custody”, each child was in Australia and

had not left the country prior to their removal. There is no

dispute that Australia is their country of habitual residence.

Mother and Father have never been married to each other and

have never executed a formal custody agreement. When there is no

such agreement between parents, courts must apply the laws of the

country of the child’s habitual residence to determine if the non-

removing parent had “rights of custody” within the meaning of the

Convention. Convention, art. 3; see also Whallon v. Lynn, 230 F.3d

450, 455 (1st Cir. 2000); Feder v. Evans-Feder, 63 F.3d 217, 225

(3d Cir. 1995); Elisa Perez-Vera, Explanatory Report: Hague

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Convention on Private International Law, ¶¶ 67-68, in 3 Acts and

Documents of the Fourteenth Session 426, 446 [hereinafter

Explanatory Report] (The Explanatory Report is recognized as the

official history, commentary, and source of background on the

meaning of the provisions of the Convention. See Pub. Notice 957,

51 Fed. Reg. at 10503). The Convention defines “rights of custody”

as “rights relating to the care of the person of the child and, in

particular, the right to determine the child’s place of residence”.

Convention, art. 5(a).

It was uncontested in district court that Father has “rights

of custody” under the Convention, as evidenced by Australian law.

In the absence of any orders of court, each Australian parent of a

child has custody rights as to the child. Family Law Act, 1975, §

111B(4)(a) (Austl.). Thus, each parent is a joint guardian and a

joint custodian of the child, and guardianship and custody rights

involve essentially the right to have and make decisions concerning

daily care and control of the child. Id. §§ 63(E)(1)-(2), (F)(1).

No court order has stripped Father of those custody rights.

The only issue before the district court was whether Father

exercised those rights. At the district court hearing, Mother

testified in support of the affirmative defense that her removal of

the children was not wrongful because a preponderance of the

evidence showed Father did not exercise his custody rights. In

this regard, she testified Father rarely visited the children, and,

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despite his protests otherwise, gave very little money toward their

support. She stated such sporadic contact does not constitute the

requisite “exercise”.

Father disputed this contention. He testified he visited the

children at least weekly and regularly deposited child support into

Mother’s bank account. He maintained such contact and financial

support constituted an exercise of his custody rights under the

Convention.

The Convention’s purpose is 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 ...”. Convention,

Preamble. The Convention was designed to “restore the pre-

abduction status quo”. Friedrich v. Friedrich, 78 F.3d 1060, 1064

(6th Cir. 1996) (Friedrich II). The Explanatory Report to the

Convention instructs:

[F]rom the Convention’s standpoint, the
removal of a child by one [parent with
custody] without the consent of the other, is
... wrongful, and this wrongfulness derives
... from the fact that such action has
disregarded the rights of the other parent
which are also protected by law, and has
interfered with their normal exercise....
[The Convention] is not concerned with
establishing the person to whom custody of the
child will belong at some point in the future
.... It seeks, more simply, to prevent a
later decision on the matter being influenced
by a change of circumstances brought about
through unilateral action by one of the
parties.

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Explanatory Report, ¶ 71, at 447-48 (emphasis added).

To this end, the Convention dictates: when a child has been

wrongfully removed from his country of habitual residence, the

“judicial or administrative authority of the Contracting State

where the child is ... shall order the return of the child

forthwith”. Convention, art. 12 (emphasis added). Further, the

Convention prohibits courts in countries other than that of the

child’s habitual residence from “adjudicating the merits of the

underlying custody dispute”. Nunez-Escudero v. Tice-Menley, 58

F.3d 374, 376 (8th Cir. 1995); see also 42 U.S.C. § 11601(b)(4);

Convention, art. 19. The district court properly acknowledged

this, stating that “all custody matters relating to the children

... are subject to the exclusive jurisdiction of the Australian

courts and must be decided there”.

The determination whether a party is exercising custody rights

closely parallels the determination of the nature and dimension of

those rights. Courts charged with deciding “exercise” under the

Convention must not cross the line into a consideration of the

underlying custody dispute. To avoid this possibility, American

courts have interpreted “exercise” broadly. See Friedrich II, 78

F.3d at 1063; Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603 (E.D.

Va. 2002); Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996);

Sampson v. Sampson, 975 P.2d 1211 (Kan. 1999). Friedrich II held:

“The only acceptable solution, in the absence of a ruling from a

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court in the country of habitual residence, is to liberally find

‘exercise’ whenever a parent with de jure custody rights keeps, or

seeks to keep, any sort of regular contact with his or her child”.

Id. 1065.

[I]f a person has valid custody rights to a
child under the law of the country of the
child’s habitual residence, that person cannot
fail to “exercise” those custody rights under
the Hague Convention short of acts that
constitute clear and unequivocal abandonment
of the child. Once it determines that the
parent exercised custody rights in any manner,
the court should stop—completely avoiding the
question whether the parent exercised the
custody rights well or badly. These matters
go to the merits of the custody dispute and
are, therefore, beyond the subject matter
jurisdiction of federal courts.

Id. 1066 (footnote and citation omitted; emphasis added).

In the light of the Convention’s objectives and in

consideration of the proper role in the return of children played

by courts in contracting countries under the Convention, we adopt

this reasoning from Friedrich II. Accordingly, in the absence of

a ruling from a court in the child’s country of habitual residence,

when a parent has custody rights under the laws of that country,

even occasional contact with the child constitutes “exercise” of

those rights. To show failure to exercise custody rights, the

removing parent must show the other parent has abandoned the child.

In denying the children’s return to Australia, the district

court discounted Father’s credibility and adopted Mother’s version

of the facts. We defer to the district court’s credibility

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determinations and will not disturb them unless a review of the

evidence leaves us with “the definite and firm conviction that a

mistake has been made”. Tulia Feedlot, Inc. v. United States, 513

F.2d 800, 806 (5th Cir.), cert. denied, 423 U.S. 947 (1975); see

also FED. R. CIV. P. 52(a). Based on our review of the record, the

district court did not clearly err in its factual determinations.

Upon de novo review of the district court’s application of

law, however, we hold the district court erred in its conclusion

that Mother showed, by a preponderance of the evidence, that Father

was not exercising his custody rights. At the district court

hearing, Mother conceded Father visited the children about five

times a year and paid child support to her. At oral argument here,

Mother conceded: Father’s contacts with the children would

constitute “exercise” under the Friedrich II standard, if

applicable; and there is no evidence in the record showing Father

completely abandoned his children. As noted above, the Friedrich

II standard applies in this case. Father did not abandon his

children. By visiting his children and contributing to their

financial support, Father was exercising his custody rights at the

time Mother removed the children from their country of habitual

residence.

B.

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 Mother raises two issues for the first time on appeal. No

authority need be cited for the rule that, generally, we do not

review an issue not presented in district court.

1.

Mother raises the “grave risk” affirmative defense to removal,

described supra. She contends returning the children to Australia,

specifically in the custody of Father, would constitute a “grave

risk” to the children’s physical or psychological well-being. (As

discussed infra, Father does not seek custody for their return.)

At the district court hearing, Mother presented some testimony

related to this affirmative defense, but she did not raise the

defense. The testimony by both parents was conflicting and

acrimonious, especially when Mother cross-examined Father. Each

accused the other of improper conduct toward Mother’s child by

another man. That child resides with her father in Australia.

Although Father is on probation for that conduct, Australia

permitted him to travel to Texas.

As discussed supra, whether the children face grave risk upon

return to Australia must be proved by clear and convincing

evidence. This affirmative defense is necessarily a fact-intensive

determination which we, as an appellate court, cannot undertake.

2.

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 Mother also seems to contend her removal of the children was

not wrongful because there is no pending custody matter concerning

them in Australia. She raised this point for the first time at

oral argument here. Our usual refusal to review an issue not

raised in district court is especially true for issues raised for

the first time at oral argument. In any event, as discussed supra,

the Convention does not require a pending custody suit for removal

to be wrongful.

C.

In sum, Father exercised his Australian custody rights.

Mother wrongfully removed the children from their country of

habitual residence. The Convention and United States law mandate

the children’s being returned to Australia “forthwith”.

Convention, art. 12. The details for that return must be

finalized.

1.

As Father stipulated at oral argument here, he does not

request the children be returned in his care or physical custody;

nor does he object to the children being returned to Australia in

Mother’s care and custody. Thus, Mother is to have primary

physical custody of the children at all times during the return to,

and while in, Australia, pending any custody determination by

Australian courts.

2.

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 The district court ordered Father to pay the travel expenses

of both children, as well as those of Mother, should any of them be

required to return to Australia for court proceedings. The

Convention, on the other hand, contains an “optional provision”

which states that the court “may, where appropriate” direct the

removing parent (here, Mother) to cover all legal and travel

expenses of the non-removing party. See Convention, art. 26;

Explanatory Report, ¶ 136, at 468. ICARA more strongly states the

court “shall order the [removing parent] to pay necessary expenses

incurred by or on behalf of the petitioner, including court costs,

legal fees ... and transportation costs related to the return of

the child, unless the [removing parent] establishes that such order

would be clearly inappropriate”. 42 U.S.C. § 11607(b)(3) (emphasis

added).

Accordingly, we remand to the district court for a

determination of the logistics of the children’s prompt return to

Australia. According to Father, the Australian government has been

financing his legal efforts. He also states Australia is prepared

to pay for the children’s airfare on return to that country, as

well as Mother’s, should she choose to accompany them. If

Australian authorities will not pay for the return, the district

court must decide who is to pay these costs in its determination of

the details of the children’s return.

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 III.

For the foregoing reasons, we VACATE the district court’s

Order on Petition to Return Children to Habitual Residence and

RENDER judgment in favor of Father. Accordingly, the children must

be returned forthwith to Australia. We REMAND to the district

court for it to decide the details of that prompt return, including

the financial considerations.

VACATED; RENDERED; REMANDED

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