Dickbauer v Dickbauer (Fam. Ct. NY 1996) City and County of New York Docket No V-11789/95 ================================================================= FAMILY COURT OF THE STATE OF NEW YORK CITY OF NEW YORK : COUNTY OF NEW YORK In the Matter of MICAH MADDEN : Docket No. V-11789/95 DICKBAUER, an infant : : CADDIE MADDEN DICKBAUER, : Petitioner, : DECISION : - against - : : OTHMAR DICKBAUER, : : Respondent. : RAND, J.: This case came before the Court on November 20, 1995 by the filing of a petition by Cassie Madden Dickbauer (hereinafter referred to as the "mother") for custody of the child Micah Dickbauer (hereinafter referred to as the "child"), date of birth February 5, 1992. The Petitioner mother was granted temporary custody of the child on November 20, 1995. The respondent Othmar Dickbauer (hereinafter referred to as the "father"), brought on by Order to Show Cause an application to stay all Family Court proceedings regarding custody, pending a hearing and determination by thin Court under the Hague Convention on the Civil Aspects of International Child Abduction. Respondent father alleges that the child is being wrongfully retained by the mother in the United States and requests that this Court decline jurisdiction and order said child ho be returned to Austria so that all matters concerning custody be heard there pursuant to the Hague Convention. The father bases this application on the allegation that the child is an habitual resident of Austria. The issue before this Court is whether the child is a habitual resident of either the United States or Austria. If the child is found to be a habitual resident of Austria then by operation of law, the mother will have been deemed to have illegally retained the child in the United Spaces. If, however, the Child is found to be a habitual resident of the United States then the child will not have been illegally retained here, and this court may exercise jurisdiction over the parties and a determination may be made by this Court over the issues of custody and visitation. After a hearing lasting several days, this Court heard testimony by the respondent father, who called no witnesses to support his application before the Court. Petitioner mother testified and on her behalf called the following witnesses: Mariel Madden (petitioner mother's sister), Professor Robert Strange, and Lisa Strong. FACTS The father, a citizen of Austria and the mother, a citizen of the United States, met sometime during the fall of 1990. In or about July of 1991, the respondent father moved from Austria to New York to live with the petitioner mother. The following year, on January 5, 1992, the petitioner gave birth to the child Micah. During the Summer of 1992, the parties mutually agreed to live in Austria, where they were married shortly thereafter on August 19, 1992. While in Austria the parties began living with the father's family (all citizens of Austria). The marriage became strained thereby prompting the parties to begin family therapy and couple therapy. By December 1994, the mother and child left Austria and came to the United States. Respondent admitted char the marriage was troubled. Despite this, he testified that the sole purpose of the mother and child leaving Austria in December of 1994 was for her and the child to visit her family in the United States for two months and then return to Austria. In April of 1995; the petitioner and the child did in fact return to Austria, however within three weeks (early May of 1995) the mother returned to the United States, this time without the child. According to the Respondent father, the mother returned to the United States, with a clear intention that the child remain with him, and that no plan or agreement was made when the mother would see the child again. During the time petitioner mother was in the United States the parties spoke on the telephone, attempting to reconcile. Respondent testified that he decided to travel to the United States with the child at the end of July 1995 because he loved his wife and wanted to reconcile with her and have the entire family to return to Austria. He stated that there was never any intention or agreement to move back to New York with the child but that he came to New York solely to reconcile with his wife and to eventually return to Austria with petitioner and their son Micah. According to the father, the habitual residence of the child had never changed and the child's residence was and had always been Austria. Petitioner testified that the marriage relationship was not good and by 1994 after having attended couple and family therapy, she wanted co return to the United States. Her hope in 1994, was for all three to go back to the United States, for her to study and for the father to support herself and the child. Petitioner mother stared that when she returned to Austria in April of 1995, she clearly intended to return to the United States permanently for a job commitment. After discussing their relationship and petitioner informing respondent that she wanted to live in New York City, respondent agreed; Petitioner asserted that it was respondent's intention to come join her with the child in the United States, apply for permanent status, gain employment, and possibly put their marriage together again. The parties mutually decided that the child would stay with the respondent father in Austria while he made the necessary arrangements for their return to the United States and for that reason alone, she left Austria in early May of 1995 without the child. Following the agreement, steps were taken to sell all their possessions in Austria, i.e. their car, furniture and settle outstanding loans. Ultimately, the father and the child arrived in the United States in August of l995. Petitioner mother stated that the delay in the father's arrival to the United States was due to his immigration status. While in the United States, petitioner assisted respondent in obtaining a permanent visa. However, prior to all immigration matters having being resolved for the father, several months lapsed. Respondent father testified that while in the United States, he interviewed for a job in Milwaukee, Wisconsin. He stated that the purpose of interviewing for employment in the United States was not for the job, but to gain a bargaining position for future negotiations with Austrian based companies when he returned there. The Petitioner contends chat the respondent was seriously searching for a job in order that he could remain in the United Scares, and support himself and his family, Respondent obtained another interview in September of 1995, which ultimately led to a job with an Austrian company located in Meadville, Pennsylvania. Several witnesses testified on behalf of the mother, one of whom was John Strange, a former college professor of both petitioner and respondent. Professor Strange testified that respondent told him that he had obtained a supervisory position with a company in Pennsylvania, and that he was very happy with his new position and responsibilities and was looking for a home in Pennsylvania. Petitioner's sister Mariel Madden, testified that she frequently visited the Respondent father and talked with the Respondent about his new job. Respondent stated to her that he was excited about his new job and responsibilities and wanted her to visit him at his new home. Respondent talked about how the child would like it in Pennsylvania. Testimony by Lisa Strong, primarily a friend of the father, confirmed petitioner's testimony that the father stated that the child should be with his mother. Both parties testified that by October of 1995 it became apparent that they were not going to reconcile. Petitioner filed her custody petition in November of 1995 for fear that respondent would leave the United States with the child. Respondent stated that on November 16, less, he only talked about returning to Austria with the child. This prompted Respondent's application to the Court to stay all proceedings pursuant to the Hague Convention, maintaining that he never agreed to stay in the United States, and that the child's habitual residence had always been Austria. LAW The United States Court of Appeals, Third Circuit has held that the "Convention's approach to the phenomenon of international child abduction is straightforward. It is designed to restore the "factual" status quo which is unilaterally altered when a parent abducts a child and aims to protect the legal custody right of the non-abducting parent. FN1 Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986). Thus, the cornerstone of the Convention is the mandated return of the child to his or her circumstances prior to the abduction if one parent's removal of the child from or retention in a Contracting state has violated the custody rights of the other, and is, therefore, "wrongful". Hague Convention". FN 2See Feder v. Evans-Feder , 63 F. 3d 217, 221 (3rd Cir. 1993). As the Convention states, "the objective of the Hague Convention is "to secure the prompt return of children wrongfully removed to or retained in any Contracting State" and "to insure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State." (Hague Convention, Art. 1(a), (b); 42 U.S.C. Sec. 11601(a)(4). The parent petitioning for return of the child to the country pursuant to the Hague Convention bears the. burden of showing by a preponderance of the evidence that the removal or as in this case retention of the child was wrongful. Arts. 3 and 4 of the Convention provides that Respondent in this matter in order to be entitled to relief must establish: (1) that the retention involves a child who was habitually a resident of Austria, the contracting State, and (2) Respondent had lawful rights of custody at the time of the retention. age, See, Matter of David B. v. Helen O.(Fam. Ct. N.Y. Cty., 1995) 164 Misc.2d 566. Again, the issue becomes whether the child Micah was a habitual resident of the United States or Austria. Case law and the Convention fail to set forth a specific definition of "habitual residents but instead leaves the concept "fluid and fact based, without becoming rigid See, Levesque v Levesque, 816 F. Supp. 666. Case law has set forth certain elements to aid the Court in finding habitual residence. There must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All thee the law requires is that there is a settled purpose. Education, business or profession, employment, health, family are common reasons to choose a regular abode. Where one has a sufficient degree of continuity it can properly be described as settled. Feder v. Evans-Feder, 63 F.3d 237 (3rd Cir. 1995). Courts look to the conduct and overtly stated intentions and agreements of the parents during the period preceding the act of abduction (or retention). Id, Feder at 223. Applying the above principles to the facts in this matter, it is this Court's conclusion after hearing all of the testimony that both parties are recognized to have rights of custody, and it was the settled purpose of the parties for the child to reside in the United States and be raised by his mother. This Court credits the petitioner mother's testimony chat in April of 199S there was in fact an agreement that the parties intended co move to the United States. FN3 First of all, the parties overt acts of selling their vehicle in Austria, selling their furniture, securing a sublessor for their apartment, obtaining a permanent visa for the respondent father, supports a clear intent to leave Austria. Secondly, the fact that once in the United States, the respondent secured employment in Meadville, Pennsylvania to support himself and the child confirms that it was the parties settled purpose, intention and agreement thee they would reside in the United States. In addition, the witnesses for petitioner confirmed that respondent was in fact attempting to permanently reside in the United States to be near the child, and even admitted that he had felt the child should be with the mother. CONCLUSION The evidence supports Petitioner's argument that the child is a habitual resident of the United States. Accordingly, this Court assumes Jurisdiction and finds that New York is the proper forum to hear all matters concerning custody and visitation. This matter is adjourned to April 30, 1996 for a hearing on the issue of custody and visitation. So Ordered. Notify parties. ENTER: /s/ RAND _______________________________ Judge of the Family Court Dated: New York New York: 29 Feb 1996 -------------------- 1. The Hague Convention on the Civil Aspects of International Child Abduction does not settle custody disputes, stating that "[a] decision under this convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue". Hague Convention, Article l9. 2. Article 12 provides that .~[w]here a child has been wrongfully removed or retained in terms of Article 3 . . . the authority concerned shall order the return of the child forthwith." The Convention does not require that a child be returned to his or her habitual residence, although in the classic abduction case, this occurs. Where a prevailing party has moved from the child's habitual residence, the child is returned co that party, wherever he or she may be. Pub. Notice 957, 51 Fed. Reg. at 10511. 3. This Court found it highly unlikely, as respondent testified, that in April of 1995, the mother returned to the United States leaving the child in Austria without having agreed as to when she would see the child again.