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Meer v. Hoselton

United States District Court, D. Arizona

March 13, 2018

Thomas Christian von Meer, Petitioner,
v.
Mary Beth Hoselton, Respondent.

          ORDER

          Honorable John J. Tuchi United States District Judge

         Thomas Christian von Meer (“Petitioner”) filed a Verified Petition for Return of Child Under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act (22 U.S.C. § 9003(b)) on February 16, 2018. (Doc. 1.) Mary Beth Hoselton (“Respondent”) filed her Answer on February 27, 2018. (Doc. 17.) The Court held an evidentiary hearing on March 1, 2018. For the reasons set forth below, the Court will grant the Petition.

         I. Factual Background

         Petitioner, a German citizen and resident of Italy, and Respondent, a United States citizen, were involved in a long term romantic and domestic relationship from at the latest 2002 until approximately 2006. Their union produced a child (“N.V.”), who was born in Wangen, Germany in late 2002. N.V. holds both German and United States citizenship. Petitioner, Respondent and N.V. lived together in Germany until early 2004, when the three moved to Italy and lived there together.

         At some point in 2006, Petitioner and Respondent ended their domestic relationship and began maintaining separate households, both in the area of Florence, Italy. For approximately the next ten years, they observed an informal shared custody regimen, wherein N.V. would alternate living with each parent on a weekly basis. This arrangement ended in the autumn of 2016, when Respondent relocated to Arizona for work and to further her education. At that time, N.V. remained in Italy with Petitioner and continued attending the private school in which she had previously been enrolled. No party presented evidence that custody of N.V. had been adjudicated by any tribunal or agency to this point.

         On December 21, 2016, several months after Respondent relocated to Arizona, a judge of the Florence Court entered an order granting Petitioner exclusive custody of N.V. (3/1/18 Hearing Ex. 2.)[1] The Florence Court found that Respondent had personally received service of the custody petition but did not appear or file any defensive brief. The Florence Court made its order immediately enforceable.

         In April 2017, Petitioner bought a round-trip airline ticket for N.V. to spend the summer with her mother in the United States. In June 2017, when N.V. had completed her school year in Florence, Petitioner flew with her from Europe to Las Vegas to meet Respondent. Petitioner returned to Italy. N.V.'s round-trip ticket bore a return date of August 16, 2017, shortly before her school would begin the new academic year.

         Petitioner had provided N.V. with a data-enabled cellular telephone so she could communicate with either parent by voice or text wherever she was. In July 2017, after N.V.'s communications to her father had diminished and Petitioner was unable to reach her on her phone, Petitioner's attorney in Italy, Roberta Ceschini, began communicating with Respondent via email to communicate Petitioner's expectation that Respondent would return N.V. to Italy on the August 16 flight. Ms. Ceschini advised Respondent that if she did not return N.V. timely, Ceschini would file a petition under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”). Respondent acknowledged in a July 27, 2017 email to Ceschini that “it was my understanding [N.V.] is to return in August from the get go, ” but advised that N.V. did not want to return to Italy, and that as N.V's mother, “it is my duty to support and protect her.” (Ex. 15.)

         N.V. did not return to Italy on August 16, 2017, or at any time thereafter.

         II. The Convention, ICARA and Legal Standards

         The Convention seeks “to deter parents from abducting their children across national borders by limiting the main incentive for international abduction-forum shopping of custody disputes.” Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010). The court receiving a petition under the Convention may not resolve the question of which parent is best suited to have custody of the child. Id. With a few narrow exceptions, which are discussed below in relevant part, this Court must order a child delivered to its country of habitual residence so that the courts of that country can determine custody. See id.; 22 U.S.C. § 9001(a)(4). Both the United States and Italy are signatories to the Convention and are Contracting States within its meaning. The United States Congress has enacted the International Child Abduction Remedies Act (“ICARA”) to implement the Convention. 22 U.S.C. §§ 9001 et seq. (formerly 42 U.S.C. §§ 11601 et seq.).

         The Convention identifies as its objectives: 1) securing the prompt return of children wrongfully removed to, or retained in, any Contracting State; and 2) ensuring that rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States. Convention, Arts. 1(a) & (b), 19 I.L.M. 1501. To those ends, the Court shall return a minor child to its country of habitual residence if the child was wrongfully removed from that country or wrongfully retained outside of that country. Convention, Art. 12.

         The removal or retention of a child is to be considered wrongful where-

a) it 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
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised ...

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