Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004)
- Docket Number
- 03-12826
- Published
- Yes
- Decision Date
- 2004-03-10
- Name of Court
- United States Court of Appeals
- Opinion by
- Hull
- Counsel for Petitioner
- Luckett Lee, Robert
- Counsel for Respondent
- Manely, Michael E
- Counsel for Court
- Requesting State
- Norway
- Requested State
- United States of America
- Procedural History
-
On August 25, 1999, a Norway court granted the Petitioner/father custody of the couple's daughter. The Respondent/mother appealed the decision and the parties came to a settlement agreement on February 28, 2001, which provided that the parties maintain "joint parental responsibility" of the child; it gave the Respondent/mother custody of the child and the Petitioner/father access to the child. On March 27, 2002, the Petitioner/father filed the Hague petition with the Norwegian Ministry of Justice. On November 2, 2002, the Petitioner/father filed a petition under ICARA in district court. The district court concluded that Petitioner/father was exercising mere access rights, not custody rights, over the child at the time of removal. On that basis, the district court decided that it was not authorized to order the return of the child pursuant to the Convention and ICARA, and denied the petition. On March 7, 2003, the Petitioner/father sought clarification of his rights from a Norway court. The Norway court determined that Petitioner/father had joint custody of his daughter and that the Respondent/mother's emigration was in violation of Petitioner/father's custody rights. The Petitioner/father filed for reconsideration with the federal district court on the basis of the Norway court's ruling, and the district court denied the motion. Petitioner/father appealed.
- Summary of Facts
-
The parties married in 1994 and resided in Norway. Their daughter was born in 1996, and resided with both parents until they separated in January of 1998. During their separation the parties could not agree on the division of assets or the custody of their daughter. The Respondent/mother made serious allegations of domestic violence that the Norwegian courts found later to be groundless. The Respondent/mother was found to be the instigator of most disputes, evasive of Norwegian visitation orders, and ordered to pay a large civil judgment in connection with charges (which were ultimately acquitted) relating to arson of the family home and insurance fraud. Thus, the Norwegian courts granted the Petitioner/father custody of their daughter despite the fact that Respondent/mother had been the primary caretaker until then. Respondent/mother appealed the decision and in 2001 parties reached a settlement agreement allowing "joint parental responsibility" for their child. In May 2001, the Respondent/mother approached the Petitioner/father with a modification to the schedule. She requested that the Petitioner/father have the child for a longer period in May and a longer period in the fall 2001 in exchange for consent to take the child to the U.S. for the entire summer 2001. The Petitioner/father agreed with the expectation that the child would return to Norway in the fall to start school. According to the Petitioner/father, the Respondent/mother did not inform him of her whereabouts. When the Respondent/mother did not return in the fall, Petitioner/father began writing, calling, searching, and filing police reports. In August 2002, Petitioner/father traveled to the United States in search of Respondent/mother and child and filed the Hague petition in district court on November 4, 2002.
- Defenses Raised
-
Hague Article 12: Waiver and/or 1 year had elapsed since the child had been removed from the petitioning state
Hague Article 13a: Acquiescence or consent to the removal of the child by the requesting party
Hague Article 13a: The requesting party was not exercising custodial rights at the time of the child's removal
- Statutes Considered (ICARA)
- 11601, 11603(b), 11603(e)(1)(A), 11603(e)(2)(A), 11603(e)(2)(B), 11607
- Articles Considered (Hague Convention)
- 1(b), 3(a), 13(b), 5(a), 12, 13(a), 13(b), 20
- Cases Considered
- Air France v. Saks, 470 U.S. 392 (1985); B v. B., 3 W.L.R. 865 (Eng. C.A. 1993); Bocquet v. Ouzid, 225 F.Supp.2d 1337 (S.D. Fla. 2002); C. v. C., 1 W.L.R. 654 (Eng. C.A. 1989); Croll v. Croll, 229 F.3d 133 (2nd Cir. 2000); D.S. v. V.W, 2 S.C.R. 108 (1996); Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703 (11th Cir. 1998); Fawcett v. McRoberts, 326 F.3d 491 (2003); Foxman v. Foxman, 2898 C.C. (T.A.) 92 (1992) (H.C.) (Isr.); Friedrich v. Friedrich, 78 F.2d 1060 (6th Cir. 1996); Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002); In the Marriage of: Jose Garcia Resina Appellant/Husband and Muriel Ghislaine Henriette , 52 Austl. Fam. Paragraph 26 (1991); Iraola & CIA, S.A. v. Kimberly-Clark Corp.,, 232 F.3d 854 (11th Cir. 2000); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (2000); Lops v. Lops, 140 F.3d 927 (11th Cir. 1998); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347 (M.D. Fla. 2002); Ministere Public v. Mme. Y., D.S. Jur. T.G.I Periguex (1992) (Fr.); Ostevoll v. Ostevoll, 1611123 W.L. 161112 (S.D. Ohio 2000); Russello v. United States, 464 U.S. 16 (1983); Sonderup v. Tondelli, 25 Constitutional Court of South Africa 1171 (2000); Thomson v. Thomson, 3 S.C.R. 551 (Can. 1994); United States v. Gonzales, 520 U.S. 1 (1997); United States v. McPhee, 336 F.3d 1269 (11th Cir. 2003); Young v. United States, 535 U.S. 43 (2002)
- Judicial Outcome or Order
- Return Order Affirmed (for appellate cases)
- Posted
- 2005-01-10
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.
