Miller v. Miller, 240 F.3d 392 (4th Cir. 2001)
- Docket Number
- 99-2630
- Published
- Yes
- Decision Date
- 2001-02-16
- Name of Court
- United States Court of Appeals
- Opinion by
- King
- Counsel for Petitioner
- Apy, Patricia E
- Counsel for Respondent
- Troy, Christian R
- Counsel for Court
- Requesting State
- Canada
- Requested State
- United States of America
- Procedural History
-
New York Family Court awarded custody of children to Appellant/father. Appellee/mother filed suit seeking return of child to Canada in the Western District Court of North Carolina. The court granted the petition. Appellant/father appealed.
- Summary of Facts
-
In August 1998 Appellant/father forcibly brought the children from Ontario, Canada to North Carolina, United States. Appellant/father is a citizen of the United States and Appellee/mother is a citizen of Canada. Both children were born in Canada. The couple separated in 1995, and have since divorced. In Spring of 1995 custody battles began in both Ontario and District Court, and both parties violated various orders and failed to appear. In October 1997 New York Family Court granted custody to Appellant/father because of Appellee/mothers failure to appear. In October 1997 an Ontario, Canada court granted permanent custody to Appellee/mother. On August 28 1998 Appellant/father went to Ontario and, without consent of Appellee/mother, took the children to the United States. Appellant/father twice asked Ontario courts to set aside the judgment in favor of the New York judgment. One request was denied, and one granted, two days after Appellant/father took the children to the United States. However, the Ontario Order was reinstated in June 1999.
- Defenses Raised
-
28 U.S.C. § 1738A Hague Article 3a: The childs habitual residence is not the requesting state Hague Article 13a: The requesting party was not exercising custodial rights at the time of the childs removal
- Statutes Considered (ICARA)
- 11601(a), 11601(b), 11603(b), 11603(c), 11603(d), 11603(e)
- Articles Considered (Hague Convention)
- 3, 12, 13(a), 13(b), 17, 20
- Cases Considered
- Diorinou v. Mezitis, 237 F.3d 133 2001; Feder v. Evans-Feder, 63 F.3d 217 1995; Friedrich v. Friedrich, 983 F.2d 1396 1993; Friedrich v. Friedrich, 983 F.2d 1060 1993; Friedrich v. Friedrich, 78 F.3d 1060 1996; Ohlander v. Larson, 114 F.3d 1531 1997; Rydder v. Rydder, 49 F.3d 369 1995; Shalit v. Coppe, 182 F.3d 1124 1999; Zajaczkowski v. Zajaczkowksi, 932 F.Supp. 128 1996
- Judicial Outcome or Order
- Return Order Affirmed (for appellate cases)
- Posted
- 2006-09-21
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.
