England v. England, 234 F.3d 268 (5th Cir. 2000)
- Docket Number
- No. 00-20008
- Published
- Yes
- Decision Date
- 2000-11-27
- Name of Court
- United States Court of Appeals
- Opinion by
- Duhe; DeMoss
- Counsel for Petitioner
- Grubb, John K; Smith, Jacqueline
- Counsel for Respondent
- Jefferson, Jr., Andrew L
- Counsel for Court
- Requesting State
- Australia
- Requested State
- United States of America
- Procedural History
-
In 1999, the Petitioner/father filed a Hague petition requesting the return of his children to Australia from the U.S. After an Australian court determined that Australia was the habitual residence of his two children, the District Court heard the case and denied the Petitioner/father's Hague petition finding one of the parties child would face grave risk of psychological harm if separated from the Respondent/mother. The Petitioner/father appealed this ruling.
(The Respondent/mother also alleged domestic violence in her brief to the court).
- Summary of Facts
-
The Petitioner/father and the Respondent/mother lived in Texas with their two children until 1997. At this time, the family moved to Australia incident to Petitioner/father's job transfer. All parties were citizens of the United States of America. In 1999, the family took an extended vacation to the U.S. They were scheduled to return to Australia on July 15, 1999. The Petitioner/father returned to Australia at this time and the Respondent/mother and the two children stayed behind to be with the Respondent/mother's father because he had cancer. A few weeks later, the Respondent/mother filed for divorce. She phoned the Petitioner/father and informed him that neither she, nor the children, would be returning to Australia. The Respondent/mother argued that grave risk to the couple's adopted daughter would occur based on the child's turbulent history in orphanages, foster care, and the difficulties of the adoption proceedings. The Respondent/mother further argued the child would suffer grave risk of psychological harm if she were separated from her mother or were to have endured another move soon after re-settling in Houston.
- Defenses Raised
-
Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country.
Hague Article 13b: The court should find that the child has attained an age and degree of maturity at which it is appropriate to take into account the child's views, and the child objects to return to the requesting state.
- Statutes Considered (ICARA)
- 11601(a)(4), 11603(e)(2)(A)
- Articles Considered (Hague Convention)
- 12, 13
- Cases Considered
- Friedrich v. Friedrich , 78 F.3d 1060 (6th Cir. 1996); Nicholson v. Nicholson , No. 97-1273-JTM WL 446432 (D.Kan. July 7, 1997); Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995); Sweatman v. Commercial Union Ins. Co., 39 F.3d 594 (5th Cir. 1994); Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000)
- Judicial Outcome or Order
- Reversed and Remanded
- Posted
- 2005-01-11
Why this Project?
We are a team of individuals from various professional backgrounds who are dedicated to creating a comprehensive resource that will enable mothers, domestic violence advocates, attorneys and judges to better prepare themselves for Hague Convention cases in the United States' legal system.
