In re Lewin, No. 03-04-00229-CV, 2004 WL 1193951 (Tex. App. May 27, 2004)
- Docket Number
- 03-04-00229-CV
- Published
- No
- Decision Date
- 2004-05-27
- Name of Court
- Court of Appeals of Texas, Austin
- Opinion by
- Smith, Bea Ann
- Counsel for Petitioner
- Campbell, John F
- Counsel for Respondent
- Lance, Charles E
- Counsel for Court
- Requesting State
- United States of America
- Requested State
- Canada
- Procedural History
-
Petitioner/mother filed Hague petition on September 1, 2003. After an evidentiary hearing, a Canadian court ordered the return of the child to Petitioner/mother, and awarded Petitioner/mother attorney's fees. The Respondent/father fled and filed a motion in the Texas court to modify the SAPCR alleging the Petitioner/mother Canadian court found that Respondent/father unlawfully refused to return the child to Petitioner/mother and that Respondent/father's evidence of abuse was inconclusive and insufficient grounds for failing to order return of child in accordance with a suit affecting the parent-child relationship (SAPCR). The Canadian court ordered the Respondent/father to return the child to Petitioner/mother. Respondent/father did not do so and an arrest warrant was issued; however, Respondent/father fled back to Texas. Respondent/father filed suit in a Texas district court to modify the custody order alleging that the child had been neglected by Petitioner/mother and physically and sexually abused. Respondent/father requested that he be given the right to designate the child's primary residence and sought a temporary order restricting the Petitioner/mother's right to visitation in only Milam County, Texas. Petitioner/mother filed a motion to vacate citing Hague Convention and Canadian court's findings. Texas district court found for Respondent/father. Petitioner/mother's motion for rehearing was denied and this petition for writ of mandamus under the Hague Convention followed.
- Summary of Facts
-
Petitioner/mother and Respondent/father lived in New Jersey when the child was born in 1998, moved to Florida and eventually settled in Texas in 2000. Petitioner/mother took the child from Texas to New Jersey in October 2002 and obtained a restraining order, alleging domestic violence. A New Jersey court dissolved the restraining order at a custody hearing. The following day, Respondent/father asked permission to take the child to breakfast. Instead of taking her to breakfast, Respondent/father drove her back to Texas. Respondent/father filed a SAPCR suit in a Texas court seeking exclusive right to decide the child's primary residence. Petitioner/mother filed an answer and counter-petition seeking appointment as sole managing conservator. The Texas court granted joint managing conservatorship and gave Petitioner/mother exclusive right to determine child's primary residence if she fulfilled specific residence conditions, which she did. The original SAPCR order set out a visitation schedule that the parents followed until the summer of 2003. In July 2003, Respondent/father violated SAPCR order by removing child to Canada. On September 1,2003, Respondent/father filed suit in Canada to modify the custody order and alleged Petitioner/mother abused the child. In November the Canadian court found that the Respondent/father unlawfully refused to return the child to the Petitioner/mother and that the Respondent/father evidence of possible abuse was inconclusive and not sufficient grounds for failing to order the return of the child. The Canadian court ordered return of the child and payment of the Petitioner/mother's attorney fees.
- Defenses Raised
-
Hague Article 13a: Acquiescence or consent to the removal of the child by the requesting party
Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country
- Statutes Considered (ICARA)
- 11602, 11603, 11604, 11605, 11606, 11607, 11608, 11609, 11610
- Articles Considered (Hague Convention)
- 3, 13, 16
- Cases Considered
- Becker v. Becker , FD-14-14-90 LEXIS 538 (N.J. Super.Ct. App. Div. 1989); Cunningham v. Cunningham, 719 S.W.2d 224 (Tex. App. 1986); Duquette v. Tahan, 252 N.J.Super. 554 (App. Div. 1991); England v. England , 234 F.3d 268 (5th Cir. 2000); Flores v. Contreras, 981 S.W.2d 246 (Tex. App. 1998); Holder v. Holder, 305 F.3d 854 (8th Cir. 2002); In the Interest of Carpenter, 835 S.W.2d 760 (Tex. App. 1992); In the Interest of S.L.P., 123 S.W.3d 685 Tex. App. 2003); In re Barnes, 127 S.W.3d 843 (Tex. App. 2003); In re Brilliant, 86 S.W.3d 680 (Tex. App. 2002); In re K.L.V., 109 S.W.3d 61 (Tex. App. 2003); In re McCoy, 52 S.W.3d 297 (Tex. App. 2001); In re Oates, 104 S.W.3d 571 (Tex. App. 2003); In re Southwestern Bell Tel. Co., 35 S.W.3d 602 (Tex. 2000); In re Vernor, 94 S.W.3d 201 (Tex. App. 2002); Lemley v. Miller, 932 S.W.2d 284 (Tex. App. 1996); Little v. Daggett, 858 S.W.2d 368 (Tex. 1993); Maqsudi v. Maqsudi, 363 N.J.Super. 53 (Ch. Div. 2002); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Proffer v. Yates, 734 S.W.2d 671 (Tex. 1987); Saavedra v. Schmidt, 96 S.W.3d 533 (Tex. App. 2002); Sheikh v. Cahill, 145 Misc.2d 171 (N.Y.Sup.Ct. 1989); Siler v. Storey, 677 S.W.2d 504 (Tex. 1984)
- Judicial Outcome or Order
- Dismissed
- Posted
- 2004-11-12
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.
