La Salle v. Adams

          ORDER

          DOMINIC W. LANZA UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Kimberly Colin La Salle (“Mother”) and Dominick Johnathan Adams (“Father”) are the parents of two minor children, E.N.A. and M.E.Y.A. (together, “the Children”). On August 19, 2019, Mother filed an amended verified petition under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq., which implements the provisions of the Hague Convention on the Civil Aspects of International Child Abduction. (Doc. 6.) In a nutshell, the petition alleges that the Children were born and raised in Canada, that Mother and Father shared joint custody of the Children pursuant to a divorce decree that was issued by a Canadian court in October 2018, and that Father violated the divorce decree (and the ICARA) by moving to Arizona in February 2019 and taking the Children with him. (Id. ¶¶ 9-15.) The petition requests, among other things, an order “establishing that the Children shall be returned to Alberta, Canada where an appropriate custody determination can be made by a Canadian court under Canadian law.” (Id. at 9.)

         On November 12, 2019, the Court held an evidentiary hearing. As explained below, although the evidence introduced during the hearing shows that Father is a loving parent whose decision to leave Canada was, in some ways, understandable, the evidence easily establishes that Father violated the ICARA. Accordingly, Mother's petition will be granted and Father will be required to return the Children to Canada.

         FINDINGS OF FACT

         During the evidentiary hearing, Mother (who is represented by counsel) called three witnesses: (1) Mother, (2) Giselle Kutrowski, and (3) Michelle Hansen. (Doc. 27.) Additionally, Father (who is proceeding pro se) called three witnesses: (1) Laurel Berg (Mother's mother), (2) Donna Adams (Father's mother), and (3) Father. (Id.) The findings of fact set forth below are based on those witnesses' testimony and the exhibits that were admitted during the hearing:

         I. Background Concerning Mother, Father, And The Children

         In April 2011, Mother and Father were married in Alberta, Canada. (Exhibit 2.) Although Mother is a citizen of Canada, Father is not-he is a citizen of the United States who had status to live and work in Canada because Mother sponsored his application for a visa. (Doc. 6 ¶¶ 12-13; Doc. 21 ¶¶ 3, 12-13, 15.)

         In August 2012, the couple's first child, a boy named E.N.A., was born in Canada. (Exhibit 1.) In January 2014, the couple's second child, a girl named M.E.Y.A., was born in Canada. (Id.) Both Children are dual citizens of Canada and the United States.

         Mother, Father, and the Children lived together in Canada until around March 2017, when Mother and Father's marriage began to deteriorate. (Doc. 21 ¶ 20.) The deterioration was caused by several factors, including Father's failure to provide consistent financial support and Mother's romantic relationship with another man, Howard LaSalle (“LaSalle”), whom she eventually married.

         II. Father's Loss Of Immigration Status In Canada

         In early 2017, as the marriage was falling apart, Mother withdrew her sponsorship for Father's visa. (Exhibit T.) Mother credibly testified during the evidentiary hearing that she did so out of necessity-Canadian law requires the sponsor to be the spouse or significant other of the visa applicant (and the relationship was heading toward a divorce) and Canadian law also obligates the sponsor to provide financial support to the visa applicant (which Mother could not afford to do). As a result, in July 2017, Father received formal notification from the Canadian government that he would be losing his immigration status in Canada. (Id.)

         Father testified during the evidentiary hearing that he made various unsuccessful efforts, after receiving this July 2017 notification, to obtain immigration status in Canada by means other than sponsorship by Mother. However, Father did not introduce any documentary evidence concerning these efforts^[1] and it is unclear to the Court how extensive or sincere those efforts were.

         III. Mother's Temporary Residence In A Maternity Home

         As noted, the marriage between Mother and Father deteriorated in part due to Mother's relationship with another man, LaSalle. In 2017, Mother and LaSalle had a child together (who will be referred to by his first initial, “X”).

         Around the time of X's birth, officials with the Central Alberta Child and Family Services Authority (“CFSA”) received anonymous reports that LaSalle was engaging in verbal abuse toward Mother, ^[2] that drug use had occurred or was occurring in the home, ^[3]and that children were being locked in bedrooms.^[4] As a result, CFSA officials recommended, but did not require, that Mother temporarily move into a maternity home. Mother agreed to follow this recommendation and moved into a nearby facility (the Central Alberta Pregnancy Care Network) in May 2018.

         During her stay in the maternity home, Mother successfully participated in and completed various courses on parenting skills. (Exhibits 10, 11.) Separately, LaSalle successfully participated in and completed a course on anger management. (Exhibit 12.) And Mother and LaSalle jointly worked together with a counselor to develop a “safety plan” intended to create strategies for LaSalle to control his temper. (Exhibit 9.) The author of the safety plan concluded that “[e]ngagement and insight provided by [LaSalle and Mother] was beyond my expectations. It is my opinion that they both contributed and were actively involved in process.” (Id.)

         During the initial part of her stay in the maternity home, Mother was not allowed to keep the Children for overnight visits. As a result, she only saw the Children periodically. However, after displaying improvement to the satisfaction of Ms. Kutrowski, the maternity home's director, Mother was allowed to resume overnight custodial visits with the Children.

         Ms. Kutrowski credibly testified that she has observed Mother and LaSalle interact with X on multiple occasions and that their parenting skills and behavior were always appropriate. Ms. Kutrowski also credibly testified that LaSalle displayed “significant improvement” in his anger management skills during the course of Mother's stay in the maternity home.

         In February 2019, Mother began meeting with Ms. Hansen of Turning Point, a support group for women. Ms. Hansen, like Ms. Kutrowski, credibly testified that she has seen Mother and LaSalle interact with X on multiple occasions and has no concerns about their parenting skills.

         In July 2019, Mother moved out of the maternity home. She currently resides in a three-bedroom home in Canada with LaSalle, X, and LaSalle's child from a previous relationship.

         IV. The Divorce Decree

         Although Mother and Father stopped living together in 2017, they did not finalize their divorce until October 2018. The divorce decree, which was issued by a Canadian court on October 2, 2018, specifically provides that Mother and Father “have joint custody of the children of the marriage.” (Exhibit 2 at 2. See also Doc. 21 ¶ 21 [Father's answer, not disputing the contention in the amended petition that the divorce decree awarded “joint custody”].)

         The divorce decree provides that Father is responsible for providing the Children's “primary residence” and “day to day care and control” but clarifies that Mother is entitled to “access with the children every other weekend commencing September 1, 2017 and continuing thereafter until further Order of the Court, ” with Mother “responsible for picking the children up at the commencement of her access and dropping the children off at the end of her access at [Father's] residence.” (Exhibit 2 at 2.) Additionally, the divorce decree provides that Mother and Father must “equally share all school vacations and holidays” and that each parent must “have direct or indirect access to education, counselling, therapy, daycare services, and any other information regarding the welfare of the children.” (Id. at 3.) Finally, the divorce decree provides that each parent may “travel with the children within Canada and outside of Canada without the written consent of the other party provided the person travelling with the children provides the non-travelling party with a travel itinerary and contact information.” (Id.)

         V. The Incidents Offered To Illustrate “Grave Risk”

         During the evidentiary hearing, Father elicited testimony concerning an array of incidents that were apparently offered to show that returning the Children to the care of Mother and LaSalle in Canada would expose them to a “grave risk” of harm. The legal significance of these incidents is addressed in the Conclusions of Law section of this order, infra. Here, the Court simply provides its factual findings concerning the incidents.

         On one occasion in 2017, Mother went to the residence she had previously shared with Father to see the Children. Father was not present at the residence but his mother (the Children's grandmother), Donna Adams, was there. When Mother arrived, the door was locked. Mother tried to force her way into the residence, became angry when she couldn't enter, and eventually retrieved a baseball bat from her car and began banging on the door.

         The Children became anxious and frightened during this episode and Ms. Adams eventually called Mother's mother, Laurel Berg, to come to the residence and help settle things down.

         In or around July 2018, E.N.A. broke his arm while in Mother's custody. (Exhibit 20.) The injury was accidental and likely occurred when E.N.A. slipped while getting off a bus.^[5]

         At some point in 2017 or 2018, after Mother had separated from Father and started living with LaSalle, Father passed by LaSalle's home. When LaSalle saw Father, LaSalle became angry and had to be held back by Mother. (Exhibit R.)

         Mother did not have consistent access to a car after separating from Father. As a result, she was sometimes required to transport the Children via public transportation- specifically, the bus. This sometimes caused the Children to have to wait, outside, at the bus stop during very cold Canadian winters. The Children were not always properly clothed to protect themselves from the cold.

         Sometimes, after the Children were returned to Father's care after spending time with ...