United States Court of Appeals
For the First Circuit
No. 10-1125
LUCAS NICOLSON,
Petitioner, Appellee,
v.
ERICA PAPPALARDO,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Lipez and Howard,
Circuit Judges.
Deena Jo Schneider with whom Schnader Harrison Segal & Lewis
LLP, Peter W. Evans and Givertz, Hambley, Scheffee & Lavoie, P.A.
were on brief for appellant.
Stephen J. Cullen with whom Kelly A. Powers, Joshua J.
Gayfield and Miles & Stockbridge P.C. were on brief for appellee.
April 30, 2010
BOUDIN, Circuit Judge. This is an appeal from a
proceeding in the district court under the Hague Convention on the
Civil Aspects of International Child Abduction ("the Hague
Convention"), which governs certain child custody disputes. Hague
Convention on the Civil Aspects of International Child Abduction,
Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501. We begin with
a description of the background events, drawn from the record in
the district court, and of the proceedings that led to the present
appeal.
Erica Pappalardo, an American citizen, and Lucas
Nicolson, an Australian serving as a soldier in his country's armed
forces, began a relationship in Australia when Pappalardo was
traveling there. Pappalardo moved in with Nicolson and became
pregnant. After she returned to the United States, Nicolson
proposed marriage over the telephone, and she accepted and returned
to Australia where the couple was married in August 2008. They
moved to Townsville, where Nicolson was posted for service in the
Australian Defense Force.
In November 2008, when Pappalardo was eight months
pregnant, Nicolson told her he did not love her and was unsure
whether marrying her had been a mistake. Pappalardo, upset, told
Nicolson she wanted to move back to the United States as soon as
she and the child were medically cleared to travel. But the couple
continued to live together in Australia; Pappalardo says they did
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so, despite continuing marital problems, because she was
financially dependent on Nicolson and could not travel with a baby
until the baby was three months old.
Their daughter, S.G.N., was born in December 2008. Until
March 2009, all three resided together in Townsville. That month,
Nicolson and Pappalardo arranged for a U.S. passport for S.G.N.--
Nicolson says merely so S.G.N. could visit Pappalardo's family in
the United States, but Pappalardo says Nicolson knew of and
reluctantly acceded to her plans to move herself and S.G.N.
permanently to the United States.
In exchange for Nicolson's signing for the child's
passport, Pappalardo agreed to give the marriage another chance.
Nicolson says this trial was for three months, but Pappalardo
denies making any duration promises. She also claims that Nicolson
did nothing in the following months to repair the marriage.
The couple made preparations for Pappalardo and S.G.N.'s
travel, packing or shipping a large quantity of belongings
including S.G.N.'s medical records and transferring title to the
couple's car from Pappalardo to Nicolson. On March 29, 2009,
Nicolson drove Pappalardo and S.G.N. to the airport to fly to
Sydney where Pappalardo's mother would assist in their travel to
the United States. The next day, in Sydney, Pappalardo mentioned
to Nicolson's mother and sister that she did not plan to return.
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Nicolson's mother informed Nicolson, who immediately flew
to Sydney and angrily confronted Pappalardo at her hotel about her
intentions; Pappalardo said she was unsure. He met with an
attorney that day but told Pappalardo the next day that he would
not pursue legal action because he wanted her to return with S.G.N.
on her own accord. She said she was open to working on their
relationship. On April 2, 2009, she and S.G.N. flew to the United
States.
At first, the couple communicated regularly via e-mail
and Internet video chat. At Nicolson's request, Pappalardo
reserved a late May 2009 return airline ticket to Australia for
herself, with S.G.N. to sit on her lap. Pappalardo claims Nicolson
began harassing her with profane phone calls, text messages, and
threats. On May 4, after meeting with a counselor, Pappalardo had
an "epiphany" that their marriage would never work and notified
Nicolson that she and S.G.N. would not return to Australia.
On May 14, 2009, Pappalardo filed a complaint in Maine
state court seeking an ex parte temporary order for protection from
abuse ("PFA") against Nicolson, which was granted immediately and
served on Nicolson on June 12. In the meantime, Nicolson filed an
Application for Return--not then disclosed to Pappalardo--with the
Central Authority of Australia, pursuant to the Hague Convention.
The Convention, to which the United States and Australia are
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parties, can result in an order requiring the return to its
habitual residence of a child wrongfully taken or retained.
On September 4, 2009, Nicolson's Maine attorney attended
the hearing on the final PFA order, but Nicolson did not attend and
was denied permission to testify telephonically. The court was not
told that Nicolson was pursuing Hague Convention relief because
(Nicolson says) he was so advised by Australian authorities in case
it might prompt Pappalardo to flee with S.G.N. Instead, his
attorney and Pappalardo's lawyer agreed to entry of a PFA order
dated September 4, 2009, which is central to this appeal.
The order recited in a checked box with form language
that "[t]he parties have agreed to the following Order, which is
made without findings of abuse" (the phrase "w/o admission" was
added in handwriting). Further checked boxes limited Nicolson's
contact with Pappalardo save that in the checked box form provision
dealing with "temporary parental rights and responsibilities
(custody) of minor child(ren)," Nicolson was given limited Internet
contact with the child. That checked box reads as follows (the
underlined portion being handwritten):
The plaintiff [Pappalardo] is awarded
temporary parental rights and responsibilities
(custody) of minor child(ren), whose names and
dates of birth are as follows: [S.G.N.] (DOB
12-22-2008) TO BE AMENDED BY COURT OF
COMPETENT JURISDICTION. PA OBO [S.G.N.] TO BE
DISMISSED UPON ISSUANCE OF FINAL FM ORDER.
The defendant's rights of contact are limited
as follows: pending further order in Family
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Matter, Defendant [Nicolson] may have
reasonable contact via Skype or other video
conference system at least once per week and
regular updates about child by regular e-mail
contact. In Emergency phone contact is
permitted. Defendant is granted access to
records of child.
A closing form paragraph, on the second page of the form
order, stated that the order would remain in effect for a specified
period--in this case, a date two years hence was inserted--"unless
earlier modified or vacated by order of court or, with respect to
Child Support or Parental Rights and Responsibilities, by a
Magistrate." On October 2, 2009, Pappalardo filed a suit for
divorce in the state court.
On October 22, 2009, Nicolson filed in federal district
court in Maine a petition seeking return of the child to Australia,
claiming under the Hague Convention that Pappalardo had wrongfully
retained S.G.N. in the United States.1 The Convention provides for
the return of a child whose removal or retention in another country
is "in breach of rights of custody attributed to a person . . .
under the law of the State in which the child was habitually
resident immediately before the removal or retention" and those
custody rights were actually exercised at the time. Art. 3(a).
1
The International Child Abduction Remedies Act, which
implements the Hague Convention, affords the federal district court
jurisdiction over Nicolson's petition. 42 U.S.C. § 11,603(a)
(2006).
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Under the Convention, the petitioner--in this case
Nicolson--bears the burden of proving wrongful removal or retention
by a preponderance of the evidence. 42 U.S.C. § 11,603(e)(1). To
do this, he must show (1) that S.G.N.'s habitual residence was
Australia immediately prior to the retention, (2) that he had
custody rights over S.G.N. at the time, and (3) that he was
exercising those custody rights. Hague Convention art. 3. In this
case, Pappalardo challenged only the first of the three pre-
conditions, but she also claimed that Nicolson had consented to or
acquiesced in the child's retention, two separate exceptions under
the Convention.
The district court, in an extensive decision following
the taking of evidence, concluded that S.G.N.'s habitual residence
was Australia, that Nicolson had possessed and retained joint
custody rights, and that he had not consented or acquiesced to
Pappalardo's permanent retention of S.G.N. in the United States
through the state court proceedings or otherwise. The court
ordered S.G.N.'s return to Australia. Pappalardo appealed to this
court which granted a temporary stay but expedited this appeal.
On this appeal, the issues of habitual residence, consent
and acquiescence require discussion, and we begin with habitual
residence. The Hague Convention does not define "habitual
residence," but the majority of federal circuits to consider it
have adopted an approach that begins with the parents' shared
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intent or settled purpose regarding their child's residence.2 In
an unpublished opinion, this circuit has employed that approach.
Zuker v. Andrews, No. 98-1622, 1999 U.S. App. LEXIS 6964, at *2-3
(1st Cir. Apr. 9, 1999).
On appeal Pappalardo argues only that S.G.N. never formed
an initial habitual residence in Australia. Sensibly, she does not
claim that, assuming S.G.N.'s habitual residence was Australia
prior to the move back to Maine, merely retaining the child in
Maine without Nicolson's consent or acquiescence would establish a
new habitual residence. So we are not concerned with the standards
for evaluating such a claim. Cf. Robert v. Tesson, 507 F.3d 981,
990-91 (6th Cir. 2007) (concerning differing tests on change of
habitual residence).
Pappalardo's thesis is that she never shared Nicolson's
intent for S.G.N. to reside habitually in Australia because the
couple's marital relationship broke down and Pappalardo formed the
intent to leave with S.G.N. before the child was born. The
district court, however, found that while their marriage was
"fraught with difficulties from the beginning" and "[t]here were
numerous conversations about the viability of the marriage, both
2
Barzilay v. Barzilay, No. 09-2358, 2010 U.S. App. LEXIS 6918,
at *13 (8th Cir. Apr. 2, 2010); Maxwell v. Maxwell, 588 F.3d 245,
251 (4th Cir. 2009); Koch v. Koch, 450 F.3d 703, 715 (7th Cir.
2006); Gitter v. Gitter, 396 F.3d 124, 131-32 (2d Cir. 2005); Mozes
v. Mozes, 239 F.3d 1067, 1076-81 (9th Cir. 2001); Feder v. Evans-
Feder, 63 F.3d 217, 224 (3d Cir. 1995).
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before and after S.G.N. was born," "[t]hey lived together as a
married couple . . . from the time of their marriage until March
29, 2009" and "shared responsibilities for S.G.N." until that time,
when she was over three months old.
Knowing nothing of private reservations, an objective
observer would view S.G.N. as an Australian resident: her father
was a citizen of the country and obliged to stay there during his
term of service; her mother, being pregnant, had returned to
Australia to marry him; they had married there and were living
together there at the time of S.G.N.'s birth; and S.G.N. was born
there and lived there for several months with both her parents.
Judged by Nicolson's actions incident to Pappalardo's departure,
Pappalardo's intent to move permanently to the United States
seemingly became manifest and definitive only at that time.
As against this, Pappalardo's position rests centrally on
her earlier pre-birth declaration to Nicolson that she would move
back to the United States and her testimony that her subjective
intent at the time of the birth was not to remain in Australia.
She relies on the proposition that "[w]here the parents'
relationship has broken down . . . . contemporaneous[ly] with the
birth of the child, no habitual residence may ever come into
existence." Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). But
the circumstances in that case were strikingly different.
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In Delvoye, the mother had traveled to a foreign country
merely to save expenses by giving birth there instead of in her
home country and with the intention from the outset of staying only
a short time. Id. at 334. Here, the marriage was certainly
troubled at the time of S.G.N.'s birth, but the evidence did not
require, and the district judge did not make, a finding that a
definitive breakdown had occurred before or at the time of the
child's birth. Pappalardo's behavior even after the birth remained
equivocal as to her ultimate plans.
Although Pappalardo told Nicolson's mother that she was
not going to return from Maine, she was apparently willing to
consider a reconciliation even after her arrival in the United
States. In fact, she agreed before leaving to give the marriage a
further trial and, in Maine, reserved a May 2009 ticket to return
to Australia. By her own testimony, it was after she returned to
the United States--and seemingly in part because of Nicolson's
alleged abusive behavior--that she reached an "epiphany" that the
marriage was over.
Pappalardo assumes that, if she were credited with a
fixed subjective intent to take her daughter permanently to the
United States, then all other circumstances would be irrelevant.
But "[s]tanding alone, of course, the mother's intent that the
child should one day live in the United States could not support a
finding of habitual residence." Ruiz v. Tenorio, 392 F.3d 1247,
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1253 n.3 (11th Cir. 2004). Ruiz accords with our own view that the
law is less rigid than Pappalardo assumes and that tests of
habitual residence must be applied to the circumstances of the
case.3
It is not easy here to attach an abstract label to a
complex of discrete facts, some of which push each way, especially
as we are concerned with the subjective intent of two individuals
and the objective circumstances of three. The district judge's raw
fact findings can be reversed only for clear error, Whallon v.
Lynn, 230 F.3d 450, 454 (1st Cir. 2000), and in this circuit some
deference might also be given to his application of the standard.
E.g., Bolton v. Taylor, 367 F.3d 5, 7-8 & n.1 (1st Cir. 2004). We
think the district court's decision on this issue must stand.
A child retained abroad over objection must be returned
to his or her state of habitual residence unless the respondent can
establish one of the provided-for defenses or exceptions. Hague
Convention arts. 12, 13; Friedrich v. Friedrich, 78 F.3d 1060, 1067
(6th Cir. 1996). Pertinently, the district court is not bound to
order the return of S.G.N. if Pappalardo establishes by a
3
Having moved back to Australia to live with Nicolson,
arguably Pappalardo's own habitual residence became Australia,
notwithstanding her later developed intention to relocate at a
future point to Maine. Cf. Holder v. Holder, 392 F.3d 1009, 1020
(9th Cir. 2004) ("[I]f a child is born where the parents have their
habitual residence, the child normally should be regarded as a
habitual resident of that country."); Cooper v. Casey, (1995) 18
Fam. L.R. 433 (Austl.) (same). We need not pursue the point.
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preponderance of the evidence that Nicolson "had consented to or
subsequently acquiesced in [Pappalardo's] removal or retention" of
S.G.N. Hague Convention art. 13(a); 42 U.S.C. § 11,603(e)(2)(B).
The exceptions are "narrow" and must be narrowly construed. 42
U.S.C. § 11,601(a)(4); State Department Text and Legal Analysis of
the Hague International Child Abduction Convention, 51 Fed. Reg.
10,493, 10,509 (Mar. 26, 1986).
We begin with consent, an inquiry that focuses on
Nicolson's intent prior to the child's retention, Baxter v. Baxter,
423 F.3d 363, 371 (3d Cir. 2005); Pappalardo's acquiescence claim
on appeal rests on the consent order entered after the retention.
Consent may be evinced by the petitioner's statements or conduct,
which can be rather informal. Id.; Gonzalez-Caballero v. Mena, 251
F.3d 789, 793-94 (9th Cir. 2001). Pappalardo claims that a variety
of conduct and circumstances establish that Nicolson both knew and
consented to S.G.N.'s permanent departure from Australia.
Pappalardo points to several facts already mentioned--
Nicolson's participation in extensive preparations for her and
S.G.N.'s trip and the transfer of the car's title--and to others:
Nicolson's invitation to a male friend to move into the house after
his family's departure, Nicolson's mother's e-mails expressing
sadness at losing the child, Nicolson's Internet posts on
Facebook.com that described S.G.N.'s departure as "my loss of my
family" and "his baby girl ha[ving] been ripped from him" and his
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change of status on that website from "married" to "single" (which
he quickly changed back), and various other statements.4
But Nicolson can also point to circumstances in his favor
consistent with his testimony that he believed Pappalardo and
S.G.N. would return to Australia and did not consent to more than
a temporary stay for S.G.N. in the United States. These include
his immediate arrangement for leave to fly to Sydney to confront
Pappalardo and seek legal advice after his mother informed him of
Pappalardo's intentions, Pappalardo's statements that she was open
to continuing to work on their marriage, his efforts to persuade
her to return thereafter and her reservation of a ticket to return.
Nowhere is it claimed that Nicolson expressly agreed that
the child could move permanently to the United States. His
behavior is at least as consistent with that of a man who wanted to
continue the marriage and, therefore, to avoid forcing a final
choice on his wife. If the district court had found consent, it
might not have been easy to find this clear error or an
unreasonable assessment; but, in finding that Pappalardo has not
carried her burden to show consent to a permanent relocation of the
child, the finding is no less protected against reversal.
4
Pappalardo highlights Nicolson's admissions that he told
Pappalardo he would "never keep [her in Australia] against [her]
will," that they had talked about S.G.N. leaving with her, and--
after their confrontation in Sydney--that he told her he "wasn't
going ahead with the lawyer because [he] wanted her to come back
with [S.G.N.] on her own accord."
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The outcome of the case, therefore, turns finally on
acquiescence--an issue that the district court, in a generally
thorough opinion, moved past rather quickly (perhaps reasonably so
given the general language of American cases on the issue). But we
view most of the cases as distinguishable and not directly
answering the question whether Nicolson acquiesced to Pappalardo's
retention of S.G.N. in the United States by agreeing--through his
attorney--to the Maine state court's entry of the PFA order.
The district court concluded that the PFA order could not
bar Nicolson's petition because the Hague Convention takes
precedence over state custody determinations. True, under the
Convention "[t]he sole fact that a decision relating to custody has
been given in or is entitled to recognition in the requested State
shall not be a ground for refusing to return a child under this
Convention." Art. 17 (emphasis added). The Convention, after all,
confers the privilege of deciding custody on the state of habitual
residence. Arts. 1(b), 16, 19.
But it remains a defense to the Convention's requirement
of return to show that the party invoking a right to have the child
returned "acquiesced" in retention; and it is hard to think of a
more formal acquiescence than entering into a consent order
providing that the other parent be awarded custody. The consent
order in this case provided only for temporary custody but, if it
were read as agreeing to let the Maine courts determine final
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custody (as Pappalardo claims), we would think that this was an
acquiescence or, alternatively, a waiver of Hague Convention
rights. Cf. Journe v. Journe, 911 F. Supp. 43, 47-48 (D.P.R. 1995)
(voluntary dismissal of custody action treated as waiver).
The district court cited federal cases, and others exist,
that treat acquiescence as a pure subjective intent inquiry,5 and
surely Nicolson had no subjective intent in the state court
proceeding to have S.G.N. remain in the United States or to confer
final authority to decide her custody on an American court. After
all, he was privately seeking Hague Convention relief through the
Australian Central Authority at the very time he participated in
the state court proceeding, and he began his federal district court
case shortly afterwards.
But the federal cases mostly involve attempts to
characterize ambiguous conduct as a basis for inferred
acquiescence; by contrast, a clear and formal consent order by the
non-U.S. parent agreeing to let a state court decide final custody
would, both linguistically and for policy reasons, warrant
treatment as acquiescence under the Hague Convention. In fact,
American case law seems to recognize the need for exceptions to the
subjective intent standard and some American cases (in dictum) and
a United Kingdom case (as a direct holding) strongly support our
5
E.g., Baxter, 423 F.3d at 371; Antunez-Fernandes v. Connors-
Fernandes, 259 F. Supp. 2d 800, 813 (N.D. Iowa 2003); Pesin v.
Osorio Rodriquez, 77 F. Supp. 2d 1277, 1288 (S.D. Fla. 1999).
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view that a clear-cut formal consent order would be sufficient for
acquiescence.
Importantly, in Re: D (Abduction: Acquiescence), (1998)
1 Fam. 686 (Fam. Div.), aff'd, (1998) 2 F.L.R. 335 (C.A.) (U.K.),
a United Kingdom judge found acquiescence in a father's agreement,
through his attorney, to a Welsh custody court's making of a
residence order from which he did not appeal. See In re H. and
Others, [1998] A.C. 72 ("[T]he wronged parent may sign a formal
agreement that the child is to remain in the country to which he
has been abducted."); Friedrich, 78 F.3d at 1070 (stating that
acquiescence includes "a convincing written renunciation of
rights").6
However, we think that it remained Pappalardo's burden to
show that an unambiguous consent order did exist in this case. As
already explained, the policy of the Convention is return to the
child's habitual residence, the burden is Pappalardo's to prove a
defense, and the exceptions are to be narrowly construed. In this
instance we think the consent order is not the unequivocal
"acquiescence" or waiver that it might first appear; at best, the
order is, on the point in question, a cryptic collection of printed
6
See also In re H. and Others (Minors) (Abduction:
Acquiescence), [1998] A.C. 72 (H.L. 1997) (appeal taken from Eng.)
(U.K.) (stating general rule of subjective intent but recognizing
"strictly exceptional cases" in which a petitioner's words or
actions might constitute acquiescence regardless of his intent
because they show "clearly and unequivocally" that the wronged
parent is not insisting on the child's summary return).
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and handwritten phrases that yields no single answer as to who is
to decide on permanent custody.
This not surprising. A protection from abuse order is
primarily concerned with dealing with an immediate threat of abuse
and, where there are minor children, making arrangement for
temporary custody. This order addressed both of those issues and,
after providing for temporary custody, incorporated this
handwritten language: "TO BE AMENDED BY COURT OF COMPETENT
JURISDICTION. PA OBO [S.G.N.] TO BE DISMISSED UPON ISSUANCE OF
FINAL FM ORDER." The abbreviations can be deciphered--although not
with perfect assurance7--but how to read the sentences in relation
to a final custody determination is even less clear.
Pappalardo would read the sentences as reflecting an
agreement that a final custody determination be made only by the
Family Division of the Maine state court. On this reading, the
reference to a "court of competent jurisdiction" in the former
sentence might refer merely to the possibility of amending the
temporary custody order by order of any of several deciders
7
Read in conjunction with the caption, "PA OBO [S.G.N.]"
appears to be "protection from abuse on behalf of" the child in the
case. "FM" appears to mean "family matter" and is likely a
shorthand reference to an action over which the Family Division of
the Maine District Court has jurisdiction and which is governed by
the Family Division's procedural rules, Me. Rev. Stat. Ann. tit. 4,
§ 183 (2009); Me. R. Civ. P. 100A (2009), but the Maine statute and
rules seem to use "family matter" as a generic term for the nature
of the proceeding and conceivably the order here is using the
phrase generically, that is, without referring to a specific court.
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(judges, magistrates) who under Maine law might be empowered to
adjust temporary custody. See Me. Rev. Stat. Ann. tit. 4, §
183(1)(D)(2-A) (authorizing family law magistrates to modify the
custody and contact provisions of protection from abuse orders in
certain circumstances). And the latter sentence might mean that
the protection from abuse order would end when final custody was
resolved by the Maine state court.
Yet "court of competent jurisdiction" does not by its
terms refer only to Maine courts, and there are other reasons to
think it is not so limited.8 And while "final FM order" might
refer to a permanent custody order in the Maine state court, the
phrase does not expressly say so and may be a generic reference to
the type of matter rather than one to a Maine proceeding (see note
7, above). In any event--given that the prior sentence may
contemplate changes in temporary custody by a non-Maine court--it
is hard to read this second sentence as requiring that final
custody only be determined in Maine.
8
Maine has enacted the Uniform Child Custody Jurisdiction and
Enforcement Act, which conceives that courts elsewhere may modify
or override a Maine state court's custody order under at least
certain circumstances. See Me. Rev. Stat. Ann. tit. 19, §§ 1735-
1736, 1746-1747 (providing that custody determinations may be
modified and that Maine courts' jurisdiction to do so ceases to be
exclusive when "a court of another state," which includes a foreign
country's court, "determines that the child, the child's parents
and any person acting as a parent do not presently reside in
[Maine]").
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Above all, the provision in which the quoted language
appears is directed to temporary custody for what, as the order
elsewhere makes clear, was a limited period. Permanent custody is
a different subject almost certainly of great importance to the
parents and not one that would necessarily be addressed in any way
in a consent order providing for temporary protection and custody.
Whatever the language may mean, it is impossible to read it as an
unequivocal agreement by Nicolson that permanent custody be
determined in a Maine court and nowhere else.
In sum, we do not have here a "clear[] and unequivocal[]"
expression of an agreement by Nicolson to have final custody
determined in a Maine court, In re H. and Others, [1998] A.C. 72,
nor "a convincing written renunciation of rights" to this effect,
Friedrich, 78 F.3d at 1070. What Pappalardo obtained by consent
was full temporary custody of the child at present with limited
rights of contact by Nicolson. Nicolson might have forestalled
even a temporary custody order by his Hague Convention proceeding
because the Convention itself provides,
After receiving notice of a wrongful . . .
retention of a child . . . the judicial or
administrative authorities of the Contracting
State . . . in which [the child] 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 or unless an application under
this Convention is not lodged within a
reasonable time following receipt of the
notice.
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Art. 16 (emphasis added). But he chose for tactical reasons not to
notify the state court of his Hague Convention petition before the
state court order issued. This does not defeat his right under the
Hague Convention to have permanent custody determined in Australia.
Because of the consent order, Pappalardo retains full
temporary custody of the child even upon its return to Australia
unless and until custody rights are adjusted by a court of
competent jurisdiction. Indeed, Nicolson himself is subject under
the protective order to stringent conditions which prevent him from
direct contact with the child other than that allowed for by the
order. The complications thus entailed provide further reason for
the parties to seek, in their own interest and that of their child,
a private resolution; but that is in their hands.
In fairness to Pappalardo, we note that there was no
wrongful removal of the child and that Pappalardo's arguments in
favor of retention are far from frivolous. On habitual residence
and consent, she had reasonable evidence and arguments on her side;
and the acquiescence issue turns on ambiguous language in a cryptic
order. Counsel on each side presented arguments of the highest
quality for which the court is duly grateful.
The judgment of the district court is affirmed. Each
side shall bear its own costs on this appeal.
It is so ordered.
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