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In re Application of Crane

United States District Court, W.D. Oklahoma

September 14, 2017

MONIKA G. MERRIMAN, Defendant/Respondent.



         This matter comes before the Court on Plaintiff/Petitioner Roy V. Crane's (“Crane”) Verified Complaint and Petition for Return of the Children [Doc. No. 1] pursuant to the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention” or the “Convention”) as implemented by the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001 et seq. Defendant/Respondent Monika G. Merriman (“Merriman”) timely filed an Answer to the Verified Complaint [Doc. No. 8] and subsequently filed a Trial Brief [Doc. No. 14]. On September 8, 2017, the Court granted Crane's Motion for Temporary Restraining Order [Doc. No. 10], which prohibited Merriman from removing the couple's minor children from this district until a determination could be made as to the appropriateness of any further injunctive relief and the merits of the Petition [Doc. No. 13]. On September 12, 2017, the Court held an evidentiary hearing on the matter.

         Based on the facts shown by the Verified Complaint, testimony of both parties, evidence and argument received at the hearing, and the case record, the Court finds that the Petition must be GRANTED, and the children returned to New Zealand for the reasons set forth below.

         As an initial matter, the Court finds it has subject matter jurisdiction over the claims at issue. See 22 U.S.C. § 9003(a) (“The courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the Convention.”); 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the … treaties of the United States.”); West v. Dobrev, 735 F.3d 921, 924 (10th Cir. 2013) (“ICARA provides federal district courts with original jurisdiction (concurrently with state courts) over petitions seeking the return of children under the Hague Convention.”). Moreover, the Court finds it has personal jurisdiction over Merriman, who resides in this district and was served with copies of the Verified Complaint, the Court's Order granting Crane's Motion for Temporary Restraining Order, and other pertinent papers. Merriman was given appropriate notice of the hearing and afforded the opportunity to be fully heard. See Order, Sept. 8, 2017 at 3 [Doc. No. 13].

         The Hague Convention “creates an international legal mechanism requiring contracting states to promptly return children who have been wrongfully removed to, or wrongfully retained in, their jurisdiction, without deciding anew the issue of custody.” Navani v. Shahani, 496 F.3d 1121, 1124 (10th Cir. 2007) (citation omitted). ICARA states that “[c]hildren who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” 22 U.S.C. § 9001(a)(4). “[T]he Convention seeks ‘to prevent parents from abducting children in order to avoid the jurisdiction of courts with whose [custody] rulings they do not or believe they will not agree.'” West, 735 F.3d at 929 (quoting Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir. 2002)). Stated another way, “[t]he principal aims of the Convention are to ‘prevent an international version of forum-shopping, ' ‘defeat attempts to re-litigate custody matters, ' and ‘facilitate custody adjudications, promptly and exclusively' in the child's country of residence[.]” See id. (citing Navani, 496 F.3d at 1128-29; Chafin v. Chafin, 568 U.S. 165, 180 (2013)).

         As indicated above, in addressing actions brought under the Convention, the Court is not authorized to address the merits of an underlying custody claim. See 22 U.S.C. § 9001(b)(4)(“The Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.”).

         To establish a prima facie case of wrongful retention, Crane must establish: (1) the children habitually resided in New Zealand at the time of the retention; (2) the retention breached his custody rights under the law of New Zealand, and (3) Crane was exercising those rights at the time of retention. West, 735 F.3d at 929; In re Application of Stead v. Menduno, 77 F.Supp.3d 1029, 1033 (D. Colo. 2014). Crane has the burden to prove the children have been wrongfully retained within the meaning of the Convention by a preponderance of the evidence. See id. (citing 22 U.S.C. § 9003(e)(1)(A)). To establish something by a “preponderance of the evidence” means that the evidence, considered in light of all the facts, proves that something is more likely so than not. Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 137 n. 9 (1997).


         The parties lived together in Auckland, New Zealand, in a domestic partnership which produced two children, A.E.C. who was born in August 2013, and R.F.A.C., who was born in September 2016. The children's birth certificates, introduced into evidence as Plaintiff's Exhibits 2 and 3, reflect both of the parties as the birth parents. Both children are dual citizens of New Zealand and the United States.[1] In April 2016, the parties decided to end their domestic partnership, but continued to live together as they dealt with issues involved in the dissolution of their relationship. Ultimately, and as discussed more infra, the parties agreed that Merriman would depart New Zealand with the children after Christmas 2016. Until her departure with both children on December 28, 2016, Merriman had resided in New Zealand for about fifteen years. In August or September 2016, Merriman applied for New Zealand citizenship, but did not complete the process before she departed for the United States.

         The children resided with both parents in New Zealand following their births. The oldest, A.E.C., was three years old when she left for the United States with Merriman; the youngest, R.F.A.C., was a little over two months old. Between April 2016 and December 2016, the parties agreed to, and executed, an agreement for property division and an agreement regarding the custody and care of the children. The Custody and Access Agreement (“Custody Agreement” or “Agreement”), entered into evidence as Plaintiff's Exhibit 4, was executed in November of 2016.[2]At the time of the execution of the Agreement, the parties intended that it would control matters of custody, visitation and support of the children. The Custody Agreement makes clear that the parties would continue to be joint guardians of the children (¶ 1.2) and share custody (¶ 4.1). The Custody Agreement provides that Merriman would “initially” have “primary care” of the children (¶ 4.2), subject to a specific plan for visitation by Crane during the period of 2017-2020 (¶ 4.4), as well as alternating residences over Christmas, with Christmas 2017 to be spent in New Zealand (¶ 4.6). Further, after each child reaches the age of six, respectively, the Custody Agreement provides for a “50/50 split of care, ” with six months in the United States with Merriman, and six months in New Zealand with Crane (¶ 5.1). The Custody Agreement further states that “no attempt will be made to overturn this agreement in the United States, ” (¶ 5.2) and provides that any review of the Agreement will be subject to “New Zealand law and jurisdiction.” (¶ 5.3).

         The Custody Agreement includes a provision reflecting Crane's consent to the children relocating to the United States with Merriman (¶ 4.3), this provision appearing immediately after the provision stating that Merriman will “initially have primary care of the children ….” (¶ 4.2).

         Crane testified that he would not have consented to the removal of the children from New Zealand without the execution of the Custody Agreement, and such consent was based on, and subject to, the other provisions of the Agreement. Merriman acknowledged in testimony that Crane would not have consented to the children going to the United States absent the Custody Agreement. This testimony from both parties was corroborated by other evidence, including Plaintiff's Exhibits 5 and 6.

         The parties' Custody Agreement further provides for visitation by Crane in New Zealand for two months in 2017, and that such visit to New Zealand will take place “as agreed in the period from the end of May to the end of August … or as mutually agreed by both parties.” (¶ 4.4). This requirement is reflected by the conduct of the parties at the time Merriman departed New Zealand with the children: return airfare was booked and paid for with an arrival back in Auckland, New Zealand on May 2, 2017. See Plaintiff's Exhibit 8.

         In mid-April 2017, Merriman asked Crane to agree to delay the planned visitation until July, to which he assented. The purpose of the delay was to accommodate Merriman's job search in Oklahoma. See Plaintiff's Exhibit 10. Merriman changed the previously booked flights to allow for a July 6, 2017 arrival of her and the children in New Zealand. However, on June 29, 2017, Merriman caused to be filed in the District Court of Oklahoma County a Petition for Paternity, Custody, Visitation and Child Support, seeking sole custody of the children. See Plaintiff's ...

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