The Hague Domestic Violence Project

In re Marriage of Zadorozny, 853 P.2d 960, 70 Wash. App. 464 (1993)

Docket Number

11430-9-III

Published

Yes

Decision Date

1993-06-29

Name of Court

Cour of Appeals of Washington, Division 3

Opinion by

Shields, Chief Judge ; Thompson, Judge ; Munson, Judge

Counsel for Petitioner

Keyes, Michael F

Counsel for Respondent

Harkins, Timothy J

Counsel for Court

Requesting State

Canada

Requested State

United States of America

Procedural History

The Petitioner/father filed for divorce in Calgary on October 4, 1989 and received ex parte custody of the child. On October 5, 1989, the Petitioner/father filed for return of the child in accordance with the Hague Convention. On November 13, 1989, the Respondent/mother filed for divorce with a show cause motion in the Stevens County, WA, Superior Court. On November 16, 1989, the State Department sent a letter to the Superior Court notifying it of the existence of The Hague Convention and requested that the child be returned return. On January 1, 1990, the State of Washington filed a motion to dismiss for lack of jurisdiction or motion to stay pending proceedings on whether to return the child under the Hague Convention and then filed a formal petition for return of the child to Canada.

On January 10, 1990, the Petitioner/father moved for an order in the Superior Court for a finding that the Respondent/ mother wrongfully removed the child. On March 1, 1990, the Superior Court held that the children were U.S. citizens, that that court had jurisdiction to determine the parties’ rights and that the children were wrongfully removed but there was a grave risk that return would subject the children to physical or psychological harm. The Superior Court denied the State’s motion to dismiss and motion for return of the child and granted a motion to deny the return of the children. On July 19, 1990, the Petitioner/ father obtained a Calgary court order finding that the court had jurisdiction to decide the divorce and custody issue and granted the Petitioner/ father visitation with the children for the month of August. On July 31, 1990 the Petitioner/ father filed that decision under a new cause number (90-3-00127-1). On October 1, 1990 the Respondent/ mother moved for residential placement of the children with her and the court granted temporary custody on October 12, 1990. On October 15 and 16 of1990, the Canadian court held the divorce proceedings without the Respondent/ mother present and granted a divorce and custody to the Petitioner/ father. On November 29, 1990 the Respondent/ mother filed for a motion for default in the Superior Court, which was granted, and she received custody of the children and the Respondent/ father received supervised visitation in the United States. On December 20, 1990, the Petitioner/ father filed the Canadian divorce decree under the cause he opened on July 31, 1990 and moved for an order to enforce the decree. On January 24, 1991 the Respondent/ mother moved for dismissal and the Superior Court denied the motion to enforce on February 13, 1991 because the Respondent/ mother had not received proper notice, opportunity to be heard, and the jurisdiction issue was not fully and fairly litigated in Canada.

The Petitioner/ father appealed before this court that the Superior Court’s refusal to return the children to Canada was an error, as was the court’s refusal to enforce the Canadian divorce decree. Specifically the Petitioner/ father contended that the court was required to enforce the decree under the provisions of an international treaty and the Uniform Child Custody Jurisdiction Act (UCCJA).

Summary of Facts

The Petitioner/ father is a Canadian citizen and the Respondent/mother is a United States citizen. They were married in Idaho in 1986 and moved to Calgary, Canada after their first son was born in February of 1987. In the fall of 1988, the couple separated and the Respondent/mother filed a petition for divorce and custody of their son. Sometime later, the Respondent/ mother and the Petitioner/ father reconciled and lived together for another year during which time Respondent/ mother became pregnant with a second child. In August of 1989, the Respondent/ mother traveled with their first son to Washington State to visit relatives. While there, the Respondent/ mother wrote to the Petitioner/ father that they would not return to Canada. In October of 1989, the legal battle began and their second son was born in Washington.

Defenses Raised

Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country

Statutes Considered (ICARA)

11601

Articles Considered (Hague Convention)

13(b), 16

Cases Considered

Judicial Outcome or Order

Return Order Denied

Posted

2005-11-04

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