Baxter v. Baxter

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

9-15-2005

Baxter v. Baxter

Precedential or Non-Precedential: Precedential

Docket No. 04-3228

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-3228

HENRY G. BAXTER,

Appellant

v.

JODY AMANDA BAXTER

On Appeal from the United States District Court

for the District of Delaware

D.C. Civil Action No. 04-cv-00308

(Honorable Joseph J. Farnan, Jr.)

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 26, 2005

Before: SCIRICA, Chief Judge,

ALITO and GARTH, Circuit Judges

(Filed September 15, 2005)

MATT NEIDERMAN, ESQUIRE

Duane Morris LLP

1100 North Market Street, Suite 1200

Wilmington, Delaware 19801

Attorney for Appellant

GERARD F. GRAY, ESQUIRE

Gray & Associates

13 East Laurel Street

Georgetown, Delaware 19947

GEORGIA L. LEONHART, ESQUIRE

9 McIntosh Court

Lewes, Delaware 19958

Attorneys for Appellee

OPINION OF THE COURT

SCIRICA, Chief Judge.

This is an appeal from the denial of a petition for the

return of a child to Australia under the Hague Convention on the

Civil Aspects of International Child Abduction, Oct. 25, 1980,

19 I.L.M. 1501. The principal issue is whether the District

Court correctly held the petitioner consented to the removal or

retention of the child under article 13(a) of the Hague

2

Convention, defeating his claim for return. See Baxter v.

Baxter, 324 F. Supp. 2d 536, 538 (D. Del. 2004). We will

reverse and remand.

I.

Henry G. Baxter initiated this proceeding on May 13,

2004 by filing a petition in the District Court of Delaware

seeking the expedited return of his five-year old son Torin to

Australia. The petition alleges that his wife, Jody Amanda

Baxter, wrongfully retained Torin in the United States under the

Convention, and that Torin’s custody should be decided by an

Australian court.

Although the parties disagree on the reasons for Mrs.

Baxter and Torin’s trip to Delaware, the factual background is

straightforward. On September 2, 2003, Mrs. Baxter and Torin

traveled to the United States from Australia without Mr. Baxter.

They took up residence at the home of Mrs. Baxter’s mother and

sister in Selbyville, Delaware.1 Within two weeks of her arrival,

Mrs. Baxter commenced a relationship with Kelly Stidham, a

local contractor working on a project at her mother’s house.

Fourteen days later, Mrs. Baxter and Torin moved in with Mr.

Stidham. A few days thereafter, Mrs. Baxter telephoned her

husband in Australia and demanded a divorce. Mrs. Baxter and

Torin have since been living in the home of Mr. Stidham.

1

Mrs. Baxter was born in Selbyville and has dual U.S. and

Australian citizenship.

3

Before September 2003, Torin and his parents lived

together as a family in Australia.2 Their lifestyle was itinerant.

During the first four years of Torin’s life, the family lived in

several remote settlements in the Australian outback, and also

spent a year in Ireland. Mr. Baxter moved from job to job, and

the family moved from place to place. The Baxters’ last home

together was on Bathurst Island, an aboriginal community in the

Tiwi Islands, in Australia’s rugged Northern Territory. By all

accounts, their stay there was short and troubled. The

community was beset with problems, including petrol sniffing

and domestic violence. The couple eventually decided the

environment was unsuitable for their child, and that Mrs. Baxter

and Torin should leave Bathurst Island and travel to the United

States to visit Torin’s grandmother and aunt, whom the child

had never met.

The parties dispute whether the purpose of the trip to

Delaware was to relocate definitively in the United States or to

visit relatives for a time while giving the family an opportunity

to plot a new course. The evidence demonstrates that Mrs.

Baxter and Torin flew to the U.S. on one-way tickets, and that

Mrs. Baxter took with her important personal and family

2

Torin has four older half-siblings (Mr. and Mrs. Baxter had

two children each from prior marriages) who live with their

other parents in Western Australia.

4

documents.3 At the same time, they left behind in Australia with

Mr. Baxter a large number of possessions, including personal

effects and toys.

The District Court conducted a full evidentiary hearing

where the parties and other witnesses testified. Affidavits were

entered into the record without objection. Mr. Baxter testified

that before learning of his wife’s affair with Mr. Stidham, he

had planned to rejoin his family in Delaware for the Christmas

holidays. He sent a letter to his employer on the Tiwi Islands

asking for leave in December, and purchased an airplane ticket

to the United States. Mr. Baxter testified that he was open to the

idea of looking for work in the U.S. during the trip, but that it

might not prove feasible. Otherwise, he claims the plan was that

the family would probably return to Australia, once he found a

new job and a new place for them to live. The parties agree

there was no talk of divorce or separation prior to Mrs. Baxter

and Torin’s departure.

3

It is unclear why the Baxters decided to purchase one-way

rather than round-trip tickets for Torin and Mrs. Baxter. The

record does not reveal whether the one-way tickets were less

expensive, whether they were chosen because any return date

was uncertain, or because Mrs. Baxter and Torin planned to

remain in the United States indefinitely. One year earlier, the

family had bought round-trip tickets for a one-month stay, but

the trip was cancelled.

5

For her part, Mrs. Baxter testified that the idea of the trip

was to escape the troubled community on Bathurst Island while

Mr. Baxter tried to establish a new business selling solar-

powered water purifiers to remote outback dwellings. She

testified that the move to the United States was “permanent,

because [Mr. Baxter] didn’t want to worry about us.” On the

other hand, she admitted that the plan was for Mr. Baxter to

rejoin her and Torin in Delaware over Christmas. She also

testified that “it wasn’t until [she] met Mr. Stidham that

everything changed and [she] decided to end [her] marriage and

live with Mr. Stidham.”

The testimony from Mrs. Baxter’s family is also

inconclusive about the trip’s purpose. Her sister testified, based

on telephone conversations prior to Mrs. Baxter and Torin’s

arrival, that the primary goal of the trip was to visit family, and

that exploring the possibility of a move to the U.S. was

secondary. Her mother, on the other hand, testified that “[Mrs.

Baxter] and Torin were coming over to live, and to establish a

home, education.” Mrs. Baxter’s mother enclosed a porch in her

house to create a play space for Torin’s benefit, indicating her

expectation that the visit would be long-term.

The District Court found under the Hague Convention

that Australia was the habitual residence of the child until the

time of the move to Delaware. Baxter, 324 F. Supp. 2d at 538.

The court noted that a purpose of the trip was to explore the

possibility of a permanent move, but found there was no intent

to resolve this matter until after Mrs. Baxter and Torin’s arrival.

6

Id. at 539. Nevertheless, the court concluded that Mr. Baxter

had consented to Torin’s removal to the United States, defeating

his claim for return of the child under the Hague Convention.

Id. Mr. Baxter filed this timely appeal.

II.

We have appellate jurisdiction under 28 U.S.C. § 1291.

The District Court had subject-matter jurisdiction under 28

U.S.C. § 1331, as this action arose under the Hague Convention

on the Civil Aspects of International Child Abduction, Oct. 25,

1980, 19 I.L.M. 1501, and its implementing legislation, the

International Child Abduction Remedies Act, 42 U.S.C. § 11601

et seq. (“ICARA”). Under ICARA, state and federal district

courts have concurrent original jurisdiction over actions arising

under the Convention. 42 U.S.C. § 11603(a).

We review the District Court’s findings of historical and

narrative facts for clear error, but exercise plenary review over

the court’s application of legal precepts to the facts. Delvoye v.

Lee, 329 F.3d 330, 332 (3d Cir. 2003); Feder v. Evans-Feder, 63

F.3d 217, 222 n.9 (3d Cir. 1995); see also Beta Spawn, Inc. v.

FFE Transp. Servs., 250 F.3d 218, 223 (3d Cir. 2001) (“This

court has plenary review over the district court’s choice and

interpretation of legal standards, and its application of those

standards to the facts of the case.”).

7

III.

The Hague Convention has two main purposes: “to

secure the prompt return of children wrongfully removed to or

retained in any Contracting State[,]” and “to ensure that rights

of custody and of access under the law of one Contracting State

are effectively respected in the other Contracting States.”

Hague Convention, art. 1. Any person seeking the return of a

child under the Convention may commence a civil action by

filing a petition in a court where the child is located. 42 U.S.C.

§ 11603(b). More broadly, the Convention’s procedures are

designed to restore the status quo prior to any wrongful removal

or retention, and to deter parents from engaging in international

forum shopping in custody cases. See Feder, 63 F.3d at 221.

The Convention is not designed to settle international custody

disputes, but rather to ensure that cases are heard in the proper

court. See Hague Convention, art. 19 (“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.”).

Under article 3 of the Convention, the removal or

retention of a child is “wrongful” where:

a. it is in breach of rights of custody attributed to

a person, an institution or any other body, either

jointly or alone, under the law of the State in

which the child was habitually resident

immediately before the removal or retention; and

8

b. at the time of removal or retention those rights

were actually exercised, either jointly or alone, or

would have been so exercised but for the removal

or retention.

Hague Convention, art. 3. To obtain an order for the child’s

return, the petitioner bears the burden of proving by a

preponderance of the evidence that the removal or retention was

wrongful under article 3. 42 U.S.C. § 11603(e)(1)(A). If this

burden is met and the petition is filed within the appropriate

time frame, the Convention requires courts to “order the return

of the child forthwith.” Hague Convention, art. 12.

Wrongful removal or retention claims under article 3 of

the Convention typically raise four issues for analysis: when the

removal or retention at issue occurred, the country in which the

child was habitually resident prior to the removal or retention,

whether the removal or retention breached the custody rights of

the petitioner, and whether the petitioner was exercising those

custody rights at the time of the removal or retention. See

Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001); see also

Feder, 63 F.3d at 225 (holding wrongful retention inquiry

centers on whether petitioner’s custody rights under law of

country of habitual residence were breached by the retention,

and whether petitioner was exercising those rights at the time of

the retention). If the court finds wrongful removal or retention,

the burden shifts to the respondent to prove an affirmative

defense to the return of the child to the country of habitual

residence under article 13 of the Convention. The respondent

9

must prove the defense of consent or acquiescence to the

removal or retention by a preponderance of the evidence, or the

defense of a grave risk of harm by clear and convincing

evidence. 42 U.S.C. § 11603(e)(2). The affirmative defenses

are narrowly construed to effectuate the purposes of the

Convention, and even finding an exception under article 13 does

not automatically preclude an order of return. See Hague

International Child Abduction Convention; Text and Legal

Analysis, 51 Fed. Reg. 10,494, 10,509 (Mar. 26, 1986);

Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996).

A.

Mr. Baxter contends on appeal that the District Court

misapplied article 3 of the Convention by failing to give proper

consideration to his wrongful retention claim. The court

terminated its analysis after holding that Mr. Baxter consented

to Torin’s removal from Australia at the time of his departure.

It did not address wrongful retention, even though this was the

principal contention of Mr. Baxter’s petition. The crux of Mr.

Baxter’s appeal is that his consent to Torin’s trip to United

States was conditional – given under the assumption that the

family would reunite at Christmas and then in all likelihood

return to Australia. He contends that his wife’s decision to

retain Torin permanently in Delaware was unilateral and

breached his custody rights.

As a preliminary matter, the District Court ruled that

Torin’s habitual residence prior to the contested removal or

10

retention was Australia. Although not an issue contested on

appeal, the finding is supported by the record. We have defined

a child’s habitual residence as “the place where he or she has

been physically present for an amount of time sufficient for

acclimatization and which has a ‘degree of settled purpose’ from

the child’s perspective.” Feder, 63 F.3d at 224; Delvoye, 329

F.3d at 332-333. The inquiry “must focus on the child and

consists of an analysis of the child’s circumstances in that place

and the parents’ present, shared intentions regarding their child’s

presence there.” Feder, 63 F.3d at 224; Delvoye, 329 F.3d at

332-333. On the facts here, Delaware does not qualify as

Torin’s habitual residence prior to removal.

The District Court found the Baxters disagreed whether

the move to the United States was permanent or merely intended

as a “first step [towards] finding a suitable residence for the

child outside Australia.” Baxter, 324 F. Supp. 2d at 539. The

finding that the Baxters had decided to leave Australia

definitively is unsupported and will be set aside as clearly

erroneous. The finding is belied by the court’s own conclusions

that Australia remained the country of habitual residence at the

time of removal, and that the Baxters were undecided about their

next residence. (The court found: “It is clear from the evidence

that the parties did not intend to resolve this question in any

event until after Respondent and the Child had moved to the

United States.”) Id. The only uncontradicted record evidence

of settled intent by the parties was to move away from the harsh

circumstances of the Tiwi Islands. At the time of Mrs. Baxter

11

and Torin’s departure in September 2003, nothing in the record

indicates that a subsequent return to Australia, to a more

tolerable location for Torin, had been ruled out. The record

establishes that the parties saw the trip in the first instance as an

opportunity to escape from the disagreeable circumstances of

Bathurst Island, to visit family, and to buy time to plan their next

move. This falls short of the “settled purpose” required under

the Convention for a finding that the country of habitual

residence has been abandoned.

After addressing habitual residence, the District Court

proceeded directly to examine Mrs. Baxter’s affirmative defense

of consent without analyzing the remaining elements of Mr.

Baxter’s article 3 claim. See Hague Convention, art. 3; Mozes,

239 F.3d at 1070 (noting that article 3 raises four issues for

courts to determine: when the removal or retention at issue

occurred, the country of habitual residence, whether the removal

or retention breached petitioner’s custody rights, and whether

petitioner was actually exercising those custody rights at the

time of the removal or retention). The District Court’s analysis

focused only on the circumstances of the departure from

Australia (removal), not Mrs. Baxter’s subsequent decision to

remain permanently in Delaware with Torin (retention). The

court’s focus was too narrow. As noted, the crux of Mr.

Baxter’s claim was wrongful retention, not wrongful removal

(the relevant heading in his petition was titled “The Removal

and Wrongful Retention of Torin”).

12

Nor did the District Court address whether Torin’s

removal or retention breached Mr. Baxter’s custody rights under

Australian law, or whether Mr. Baxter “actually exercised” his

custody rights at the time of the removal or retention.4 Hague

Convention, art. 3. Mrs. Baxter does not dispute that Mr. Baxter

has rights of joint custody over Torin under Australian law.

Furthermore, the record demonstrates that Mr. Baxter “actually

exercised” his custody rights under article 3 at the time of the

removal and retention. Mrs. Baxter alleged in her pre-hearing

submission that after their arrival in Delaware, her husband

“provided no financial support and his only contact with his son

consisted of infrequent phone calls.” But they had only been

gone a few weeks before Mrs. Baxter told her husband she had

decided to remain in Delaware with Torin. Reduced contact or

lack of financial support over such a short period of time is

4

Article 14 of the Convention permits courts to take judicial

notice of the law of the country of habitual residence in

answering these questions. See Hague Convention, art. 14 (“In

ascertaining whether there has been a wrongful removal or

retention within the meaning of Article 3, the judicial or

administrative authorities of the requested State may take notice

directly of the law of, and of judicial or administrative decisions,

formally recognized or not in the State of the habitual residence

of the child, without recourse to the specific procedures for the

proof of that law or for the recognition of foreign decisions

which would otherwise be applicable.”); see also Mozes v.

Mozes, 239 F.3d 1067, 1085 (9th Cir. 2001).

13

insufficient under the Convention to demonstrate that a parent

has ceased exercising custody rights. Prior to their departure,

the Baxters lived together as a family and there was no

allegation of non-support. Moreover, as with the article 13(a)

defenses of consent and acquiescence (discussed in Part III. B,

infra), the test for finding the non-exercise of custody rights

under the Hague Convention is stringent. See Friedrich, 78

F.3d at 1065-1066 (“The only acceptable solution, in the

absence of a ruling from a court in the country of habitual

residence, is to liberally find ‘exercise’ whenever a parent with

de jure custody rights keeps, or seeks to keep, any sort of

regular contact with his or her child . . . . [I]f a person has valid

custody rights to a child under the law of the country of the

child’s habitual residence, that person cannot fail to ‘exercise’

those custody rights under the Hague Convention short of acts

that constitute clear and unequivocal abandonment of the

child.”); see also Sealed Appellant v. Sealed Appellee, 394 F.3d

338, 344-45 (5th Cir. 2004).

In holding that Mr. Baxter consented to Torin’s removal,

the District Court relied on its finding that Mr. and Mrs. Baxter

“agreed it was in the best interests of the Child to remove the

Child to the United States.” Baxter, 324 F. Supp. 2d at 538.

The court pointed to the family’s negative experience in the

Tiwi Islands, the purchase of one-way tickets, taking the family

documents, and hiring the contractor to enclose the porch of the

house in Delaware as facts pointing to consent to removal. Id.

at 538-39. But the court did not address the nature or scope of

14

Mr. Baxter’s consent. Nor did it address whether Mr. Baxter

consented to or even contemplated his wife’s permanent

retention of Torin in Delaware.

Mrs. Baxter contends that under the Convention, once a

court finds the petitioner has consented to the child’s initial

removal, the inquiry ends and there is no need to address

retention. This argument is based on the text of article 13(a)’s

provision that a child need not be returned if the petitioner “had

consented to or subsequently acquiesced in the removal or

retention.” Mrs. Baxter contends that analyzing retention as

well as removal would amount to rewriting article 13(a) to read

“... in the removal and retention.”

This argument misreads the Convention. The words

“removal or retention” refer to whichever may be relevant to

the case at hand, and create a multiple, not alternative,

obligation. In other words, the use of the word “or” in article

13(a) of the Convention is not disjunctive in the sense of

indicating an alternative between mutually exclusive things. See

Wanninger v. Wanninger, 850 F. Supp. 78, 82 (D. Mass. 1994)

(“The Hague Convention covers both wrongful removal and

wrongful retention.”) (emphasis in original).5 Article 13(a) does

5

Wanninger presented facts similar to this case. The

petitioner allowed his children to travel to the United States for

summer vacation and the respondent kept them here once it

became clear their marriage would end. The court held that

“even accepting Catherine’s position that Manfred consented to

15

not provide that if a parent consents to removal of the child for

a period, under certain conditions or circumstances, that

retention of the child beyond those conditions or circumstances

is necessarily permissible. See, e.g., Doudle v. Gause, 282 F.

Supp. 2d 922, 929 (N.D. Ind. 2003) (“[E]ven if the Respondent

intended to remove the children for a maximum of one year, her

actions since 2000 have exceeded the scope of Petitioner’s

consent and she is wrongfully retaining the children in the

U.S.”). Article 3 proscribes wrongful removal and/or wrongful

retention, as applicable. The inquiry does not necessarily end

with the petitioner’s consent to the child’s removal. If the

petitioner agrees to a removal under certain conditions or

circumstances and contends those conditions have been

breached, the court must also examine any wrongful retention

claim.

B.

Mr. Baxter also contends that the District Court erred by

interpreting the Hague Convention’s affirmative defense of

consent in article 13(a) too broadly. The defense provides that

her taking the children to the United States for a limited period,

it does not follow that Manfred acquiesced to the children’s

permanent retention in the United States once he realized that

his marriage was irreconcilable . . . . The sequence of events and

actions taken by Manfred strongly supports the conclusion that

Manfred did not agree that the children remain in the United

States for an indefinite period of time.” 850 F. Supp. at 82.

16

“the judicial or administrative authority of the requested State is

not bound to order the return of the child if the person,

institution or other body which opposes its return establishes

that . . . the person, institution or other body having care of the

person of the child . . . had consented to or subsequently

acquiesced in the removal or retention[.]” Hague Convention,

art. 13(a). As noted, the District Court ruled that Mrs. Baxter

proved by a preponderance of the evidence that Mr. Baxter

consented to Torin’s removal to Delaware, defeating his claim

for return. Baxter, 324 F. Supp. 2d at 538. We believe the court

misconstrued the consent defense in this case.

Although analytically distinct, the defenses of consent

and acquiescence under article 13(a) of the Hague Convention

are both narrow. See 42 U.S.C. § 11601(a)(4); 51 Fed. Reg. at

10,509; Feder, 63 F.3d at 226. The consent defense involves

the petitioner’s conduct prior to the contested removal or

retention, while acquiescence addresses whether the petitioner

subsequently agreed to or accepted the removal or retention.

See Gonzalez-Caballero v. Mena, 251 F.3d 789, 794 (9th Cir.

2001). Although the law construing the consent defense under

the Convention is less developed, the defense of acquiescence

has been held to require “an act or statement with the requisite

formality, such as testimony in a judicial proceeding; a

convincing written renunciation of rights; or a consistent attitude

of acquiescence over a significant period of time.” Friedrich,

78 F.3d at 1070 (internal footnotes omitted). Courts have held

the acquiescence inquiry turns on the subjective intent of the

17

parent who is claimed to have acquiesced. See Pesin v. Osorio

Rodriguez, 77 F. Supp. 2d 1277, 1288 (S.D. Fla. 1999) (citing

Friedrich, 78 F.3d at 1060, Wanninger, 850 F.Supp. at 81-82,

and cases from the high courts of the United Kingdom and

France).

Consent need not be expressed with the same degree of

formality as acquiescence in order to prove the defense under

article 13(a). Often, the petitioner grants some measure of

consent, such as permission to travel, in an informal manner

before the parties become involved in a custody dispute. The

consent and acquiescence inquiries are similar, however, in their

focus on the petitioner’s subjective intent. In examining a

consent defense, it is important to consider what the petitioner

actually contemplated and agreed to in allowing the child to

travel outside its home country. The nature and scope of the

petitioner’s consent, and any conditions or limitations, should be

taken into account. The fact that a petitioner initially allows

children to travel, and knows their location and how to contact

them, does not necessarily constitute consent to removal or

retention under the Convention. See Fabri v. Pritikin-Fabri,

221 F. Supp. 2d 859, 871-72 (N.D. Ill. 2001) (“Many cases

begin with a parent’s taking the child away from home for a

vacation or visit with the consent of the other parent, but

nevertheless result in a Hague Convention order compelling the

child’s return”); see also Ciotola v. Fiocca, 86 Ohio Misc. 2d

24, 29 (Ct. Com. Pl. 1997) (ordering return of child to Italy after

petitioner allowed respondent to take child to family wedding in

18

Ohio); Renovales v. Roosa, 1991 WL 204483, at *1-2 (Conn.

Super. Ct. Sep. 27, 1991) (ordering return of child to Spain after

petitioner allowed respondent to take child to her parents’ home

in Connecticut for summer vacation).

Mrs. Baxter argues this case more closely resembles

Gonzalez-Caballero v. Mena, where the Court of Appeals for

the Ninth Circuit upheld a finding of consent under the

Convention and denied a petition for return. See 251 F.3d at

794. But its facts are inapposite. In Gonzalez-Caballero, it was

clear that petitioner had consented to her child’s removal and

retention. The parents had concluded the child “would have a

better life in the United States” and should immigrate to be with

respondent, an American citizen. Id. at 791. The petitioner had

told respondent that she could no longer care for the child

because she was pregnant and her boyfriend had left her. Id.

She only petitioned for the child’s return after “regretting her

decision” to allow her daughter to be removed to the United

States. Id. at 793. The Gonzalez-Caballero court parsed

through eight separate factual grounds evidencing consent, id.,

of which only one (taking the child’s personal documents) is

present in this case.

There is no similar factual basis for finding consent here.

As noted, it is clear that Mr. Baxter consented to Torin’s visit to

Delaware for a limited period of time, under certain

circumstances and conditions. But nothing in the record

demonstrates that he consented to the child’s permanent

retention in the United States, or to Mrs. Baxter making

19

unilateral decisions regarding Torin’s future. Nor is there

evidence that Mr. Baxter acquiesced to the present arrangement.

Record testimony from both parties supports Mr. Baxter’s

contention that his consent was limited and conditional. Both

parties testified the marriage was intact when Mrs. Baxter and

Torin left Australia, and that the plan was for Mr. Baxter to

rejoin them in Delaware for a visit at Christmas. Both parties

testified they contemplated the possibility of relocating to the

United States together as a family at some point, depending on

Mr. Baxter’s job prospects and other factors, but agree that no

firm plan was in place as of September 2003. Since learning of

Mrs. Baxter’s decision to retain Torin in the Delaware and raise

him with Mr. Stidham, Mr. Baxter has vigorously objected and

pursued his rights under the Convention. In sum, the record

demonstrates that Mr. Baxter agreed to Torin staying at his

grandmother’s house in Delaware for a few months while the

family figured out its next move, but it is unclear that he agreed

to anything beyond that. This intent falls short of the standard

for finding consent under article 13(a) of the Convention.

The record demonstrates that Mrs. Baxter did not decide

to stay in Delaware until she arrived there and met Mr. Stidham.

Mrs. Baxter testified that “it wasn’t until [she] met Mr. Stidham

that everything changed and [she] decided to end [her] marriage

and live with Mr. Stidham.” The District Court described this

central development merely as “an intervening event . . .

affect[ing] the amicable resolution of this question,” but that

“for purposes of the legal issue presented, cannot alter

20

Petitioner’s consent to the removal of the Child from Australia

to the United States.” Baxter, 324 F. Supp. 2d at 539. We

disagree. Mrs. Baxter’s decision represented a change in plan

from what she and Mr. Baxter had agreed upon before departing

to Delaware. It was clear error for the District Court to find

otherwise.

C.

As an alternative holding, the District Court concluded

that ordering Torin’s return to Australia would expose him to

the risk of physical or psychological harm or otherwise place

him in an intolerable situation under article 13(b) of the

Convention. 6 Id. at 539-40. The District Court found the

parties’ testimony established that the living environment in

Australia was intolerable. Id. at 539. The District Court took

into account the fact that Mr. Baxter established a new home in

Perth, a major city, but found “this evidence is insufficient to

persuade me that returning the Child to Australia at this time

would not expose the Child to the grave risk of physical or

6

Article 13(b) provides: “Notwithstanding the provisions of

the preceding Article, the judicial or administrative authority of

the requested State is not bound to order the return of the child

if the person, institution or other body which opposes its return

establishes that there is a grave risk that his or her return would

expose the child to physical or psychological harm or otherwise

place the child in an untolerable situation.”

21

psychological harm that lead to the decision to move the Child

to the United States.” Id. at 539-40.

The affirmative defense of grave risk of harm requires

proof by clear and convincing evidence. 42 U.S.C. §

11603(e)(2)(A); see also Silverman v. Silverman, 338 F.3d 886,

900 (8th Cir. 2003). The exception has been held to apply in at

least two sets of cases: “when return of the child puts the child

in imminent danger . . . e.g., returning the child to a zone of war,

famine, or disease . . . [and in] cases of serious abuse or neglect,

or extraordinary emotional dependence, when the court in the

country of habitual residence, for whatever reason, may be

incapable or unwilling to give the child adequate protection.”

Friedrich, 78 F.3d at 1069. The Court of Appeals for the

Second Circuit has characterized the exception as follows:

At one end of the spectrum are those situations

where repatriation might cause inconvenience or

hardship, eliminate certain educational or

economic opportunities, or not comport with the

child’s preferences; at the other end of the

spectrum are those situations in which the child

faces a real risk of being hurt, physically or

psychologically, as a result of repatriation. The

former do not constitute a grave risk of harm

under Article 13(b); the latter do.

22

Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).7

The facts of this case fall short of demonstrating a clear

and grave risk of harm. For the grave harm exception to apply,

7

The United States Department of State has offered similar

guidance about the exception, also construing it narrowly:

A review of deliberations on the Convention

reveals that “intolerable situation” was not

intended to encompass return to a home where

money is in short supply, or where educational or

other opportunities are more limited than in the

requested State. An example of an “intolerable

situation” is one in which a custodial parent

sexually abuses a child. If the other parent

removes or retains the child to safeguard it against

further victimization, and the abusive parent then

petitions for the child’s return under the

Convention, the court may deny the petition.

Such action would protect the child from being

returned to an “intolerable situation” and

subjected to a grave risk of psychological harm.

51 Fed. Reg. at 10,510. Although not conclusive, the meaning

attributed to treaty provisions by the government agencies

charged with their negotiation and enforcement is entitled to

great weight. United States v. Stuart, 489 U.S. 353, 369 (1989).

23

the respondent must cite specific evidence of potential harm to

the child upon his return. See Silverman, 338 F.3d at 900.8

None has been presented here. There are no allegations of abuse

by either parent. The only record testimony supporting the

grave risk of harm exception involves the unpleasant

experiences the family endured on Bathurst Island before Mrs.

8

The Court of Appeals for the First Circuit addressed the

quantum of proof required:

To meet her burden under the article 13(b)

exception, the respondent must establish that the

alleged physical or psychological harm is “a great

deal more than minimal.” Indeed, the harm must

be “something greater than would normally be

expected on taking a child away from one parent

and passing him to another.” Courts are not to

engage in a custody determination or to address

such questions as who would be the better parent

in the long run.

Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000) (quoting

Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000)). Walsh held

that the standard for proving grave risk had been set too high in

a case involving a pattern of violence by the petitioner, and his

chronic disobedience of court orders in the home country. There

is no evidence of any such pattern of conduct by Mr. Baxter in

the present case.

24

Baxter and Torin left for Delaware. These included run-ins with

hostile residents, and the stress of living in a community

troubled by racial and domestic violence and petrol sniffing.9

But this testimony is of limited relevance here because Mr.

Baxter no longer resides on Bathurst Island, or anywhere near

the Tiwi Islands – he now lives in Perth, a major city on

Australia’s southwestern coast. The inquiry into grave risk of

harm focuses on the present living situation to which the child

would be returned. The living situation prior to the removal or

retention may of course be relevant, but not where the family

decided jointly to leave, and the petitioner has since relocated.

IV.

We conclude the District Court erred by applying the

Hague Convention’s exceptions under articles 13(a) and 13(b)

on the facts of this case. We will reverse the order denying Mr.

Baxter’s petition, and remand for entry of an order granting the

9

The record also includes several unsupported allegations

between the parties regarding their respective fitness as parents.

Mrs. Baxter claims that Mr. Baxter is an alcoholic who was once

involved with an illegal mercenary army in Papua New Guinea,

while Mr. Baxter disparages Mrs. Baxter as “a first-nighter.”

The District Court made no findings with respect to these

allegations. Assessment and disposition of these kinds of

allegations are normally reserved for a custody proceeding. As

noted, the Convention addresses jurisdiction and not the merits

of custody disputes. See Hague Convention, art. 19.

25

petition for return to the country of habitual residence. We

leave it to the sound discretion of the District Court to decide the

details of that return, including costs.

26