Petition for Writ of Certiorari — Heath Richard Douglas, Petitioner v. Nancy Summers Douglas
Supreme Court briefJan 27, 2022
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No. 21-________
================================================================================================================
In The
Supreme Court of the United States
---------------------------------♦--------------------------------HEATH RICHARD DOUGLAS,
Petitioner,
v.
NANCY SUMMERS DOUGLAS,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------LIISA R. SPEAKER*
JENNIFER M. ALBERTS
SPEAKER LAW FIRM, PLLC
Attorneys for Petitioner
819 N. Washington Ave.
Lansing, MI 48906
(517) 482-8933
lspeaker@speakerlaw.com
*Counsel of Record
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
The Hague Convention on the Civil Aspects of
International Child Abduction requires the return of
not only a child who was wrongfully removed from the
child’s habitual residence, but also a child who was
wrongfully retained in a country other than that child’s
habitual residence. The question presented is:
In cases of wrongful retention, must a district
court find a settled purpose to abandon a former habitual residence before concluding that a new habitual
residence has arisen?
ii
RELATED PROCEEDINGS
United States District Court (W.D. Mich.):
Douglas v. Douglas, Case No. 1:20-cv-423, March
22, 2021
United States Court of Appeals (6th Cir.):
Douglas v. Douglas, Case No. 21-1335, September
21, 2021
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED...................................
i
RELATED PROCEEDINGS ................................
ii
TABLE OF CONTENTS ......................................
iii
TABLE OF AUTHORITIES .................................
v
OPINIONS BELOW.............................................
1
JURISDICTION ...................................................
2
TREATY PROVISION INVOLVED .....................
2
STATEMENT OF THE CASE..............................
2
A.
Background ................................................
8
B.
Facts and Procedural History ....................
8
1. The parties’ relationship begins ..........
8
2. Nancy establishes herself in Australia—
the marital home ................................. 10
3. The parties’ child is born in Australia,
but the marriage begins to fall apart .... 13
4. Nancy leads Heath to believe she
seeks reconciliation ............................. 14
5. Heath initiates Hague proceedings after realizing that Nancy and the child
are not returning, but the district
court grants summary judgment......... 18
6. The Sixth Circuit’s decision ................ 19
REASONS FOR GRANTING THE PETITION ..... 20
iv
TABLE OF CONTENTS—Continued
Page
A.
This Court’s guidance is necessary with
regards to the framework applicable in
wrongful retention cases, particularly
ones involving young children, as the
Monasky decision leaves more questions
than answers in this context ..................... 20
B.
The Sixth Circuit’s decision directly conflicts with this Court’s decision in Monasky .......................................................... 30
C.
The factual circumstances of this case justify relief because this is a textbook case
of child abduction through deceit and
avoidance ................................................... 32
CONCLUSION..................................................... 33
APPENDIX
United States Court of Appeals for the Sixth
Circuit, Opinion, September 21, 2021 ............. App. 1
United States District Court for the Western
District of Michigan, Order Granting Motion
for Summary Judgment, March 22, 2021...... App. 16
United States District Court for the Western
District of Michigan, Judgment, March 22,
2021 ................................................................ App. 18
v
TABLE OF AUTHORITIES
Page
CASES
Abou-Haidar v. Vazquez, 945 F.3d 1208 (D.C. Cir.
2019) .............................................................. 3, 21, 29
Darin v. Olivero-Huffman, 746 F.3d 1 (1st Cir.
2014) .............................................................. 3, 21, 28
Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) .... 3, 21, 28, 29
Koch v. Koch, 450 F.3d 703 (7th Cir. 2006) ....... 3, 21, 29
Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012) .... 3, 21, 29
Lozano v. Montoya Alvarez, 572 U.S. 1; 134 S. Ct.
1224; 188 L. Ed. 2d 200 (2014) .................................8
Maxwell v. Maxwell, 588 F.3d 245 (4th Cir.
2009) ............................................................ 3, 21, 29
Monasky v. Taglieri, 140 S. Ct. 719 (2020) ......... passim
Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) .... passim
Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) .......21
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) ....... 3, 29
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) ... 3, 21, 29
Silverman v. Silverman, 338 F.3d 886 (8th Cir.
2003) .............................................................. 3, 21, 29
STATUTES
22 U.S.C. §§ 9001-9011 ............................................. 2, 8
22 U.S.C. § 9003(a) ......................................................18
28 U.S.C. § 1254(1) ........................................................2
28 U.S.C. § 1331 ..........................................................18
1
No. 21-________
---------------------------------♦---------------------------------
In The
Supreme Court of the United States
---------------------------------♦---------------------------------
HEATH RICHARD DOUGLAS,
Petitioner,
v.
NANCY SUMMERS DOUGLAS,
Respondent.
---------------------------------♦---------------------------------
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
---------------------------------♦---------------------------------
PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦---------------------------------
Petitioner Heath Richard Douglas respectfully petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Sixth Circuit in this case.
---------------------------------♦---------------------------------
OPINIONS BELOW
The opinions of the Court of Appeals (App. 1) and
district court (App. 16) are unreported.
---------------------------------♦---------------------------------
2
JURISDICTION
The judgment of the Sixth Circuit Court of Appeals was entered on September 21, 2021. On December 29, 2021, Justice Kavanaugh granted an extension
of time within which to file a petition for a writ of certiorari to and including February 3, 2022. This Court
has jurisdiction pursuant to 28 U.S.C. § 1254(1).
---------------------------------♦---------------------------------
TREATY PROVISION INVOLVED
Article 3 of the Hague Convention on the Civil
Aspects of International Child Abduction, as implemented in the United States through the International
Child Abduction Remedies Act (“ICARA”), 22 U.S.C.
§§ 9001-9011, provides in relevant part:
The removal or the retention of a child is to be
considered 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; . . .
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
This case concerns an important question of federal law that has not been, but should be, settled by
this Court—namely, the framework a district court
3
should apply when analyzing a wrongful retention
case, as opposed to a wrongful removal case. Such cases
raise questions that do not necessarily exist in wrongful removal cases and are, thus, not resolved by this
Court’s prior decision in Monasky v. Taglieri, 140 S. Ct.
719 (2020).
In Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001),
the Ninth Circuit set forth a detailed framework for
determining whether a habitual residence that has
already been established has been changed—a question that was not before this Court in Monasky. Prior
to this Court’s decision in Monasky, that framework
had been adopted in almost every circuit. Darin v.
Olivero-Huffman, 746 F.3d 1 (1st Cir. 2014) (cited and
followed); Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005)
(found to be “instructive”); Maxwell v. Maxwell, 588
F.3d 245 (4th Cir. 2009) (cited and followed); Larbie v.
Larbie, 690 F.3d 295 (5th Cir. 2012) (cited and followed); Koch v. Koch, 450 F.3d 703 (7th Cir. 2006) (cited
and followed); Silverman v. Silverman, 338 F.3d 886
(8th Cir. 2003) (cited and followed); Ruiz v. Tenorio, 392
F.3d 1247 (11th Cir. 2004) (expressly adopted); AbouHaidar v. Vazquez, 945 F.3d 1208 (D.C. Cir. 2019) (cited
and followed). It appears that the only circuit that
had expressly rejected the Mozes framework, prior to
this Court’s decision in Monasky, is the Sixth Circuit.
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007). It did so
primarily because it believed Mozes placed too much
emphasis on the intent of the parents.
In Monasky, this Court settled the dispute among
the circuits over whether a child’s habitual residence
4
must be determined by shared parental intent or acclimatization by concluding that both factors could be relevant, and a court must instead consider the totality of
circumstances. Monasky, however, was a fairly simple
case. The child had only ever been in one country at the
time of the child’s removal—Italy.
Numerous Hague Convention cases involve children who have lived in multiple different countries at
the time of the alleged wrongful retention or removal.
With the Sixth Circuit’s rejection of Mozes, and this
Court’s decision in Monasky also casting some doubt
on the Mozes framework’s continued viability, there remains no uniform framework for approaching wrongful retention cases, in which a child has generally been
given consent to visit another country for at least a
limited duration. The inconsistencies in the district
court’s summary ruling in the present case shed some
light on why such a framework is needed.
Petitioner Heath Douglas is an Australian citizen
who has never lived in the United States. He married
Respondent Nancy Douglas, a United States citizen, in
Australia, that is where they chose to make their home
together, and that is where their son was born. Unfortunately, shortly after the child’s birth, the parties’ relationship broke down. Nancy wanted to return to the
United States with the child, but Heath refused to consent to the move. Finally, Nancy told Heath that he
needed to let her go and that if he wanted, she would
show him her return ticket. Upon hearing the promise
of Nancy’s return, Heath consented. But after she
5
reached the United States, Nancy ceased all contact
with him. She never returned to Australia.
The district court’s analysis began with the determination of the “wrongful retention date,” which the
district court concluded was when “petitioner knew or
should have known that a child would not return.” According to the district court, the wrongful retention
date was October 3, 2019, when Petitioner was served
with divorce papers. The district court then proceeded
to determine where the child’s habitual residence was
immediately prior to that date.
That is where the district court’s analysis becomes
confusing. The district court made clear that it was not
relying solely on the shared intent of the parties. But
it is unclear what relevance the evidence the court
cited had if not in relation to the parties’ intentions.
For example, the district court noted that Petitioner
wrote “no conditions, no expectations” when he signed
travel documents for the child, that Respondent had
not communicated with Petitioner since leaving Australia, and that there was no evidence in the record
that Respondent gave Petitioner any reason to believe
she intended to return, after she left Australia—but
the district court simultaneously found that Petitioner
did not have reason to know Respondent would not return to Australia until October 3, 2019. Some of the
district court’s analysis appears to conflate the habitual residence determination with the consent or acquiescence defenses.
6
The Ninth Circuit in Mozes observed that, in order
to obtain a new habitual residence, there must be a settled intention to abandon a prior habitual residence. In
cases such as the present case, where the child has
lived in more than one location, the Ninth Circuit divided the many possible factual scenarios into three
broad categories. The first category of cases is those in
which the family as a unit has manifested a settled
purpose to change habitual residence, usually when
both parents and the child relocate to another country
together. The second category of cases is those where
the child’s change of residence is clearly intended to be
for a specific, delimited period. The third category of
cases is those in which the petitioning parent had earlier consented to let the child stay abroad for a period
of ambiguous duration. In the first category of cases,
courts generally find that the child’s habitual residence has changed. In the second, courts generally find
that it has not. In the third category, the courts sometimes find that there was a settled mutual intent that
the stay last indefinitely and sometimes find that there
was not. The Ninth Circuit observed, however, that if
there is a genuine difference of parental intention,
then there is no settled purpose or intention and the
child’s habitual residence does not change.
There is no dispute as to the retention date in this
case. The only dispute is regarding how the district
court determined the child’s habitual residence on that
date. Pursuant to this Court’s decision in Monasky,
Australia was unquestionably the child’s habitual residence at the time Respondent moved to the United
7
States with the child. It was the only country the child
had ever lived in and where the child’s parents had established their home. The district court should have
recognized this and then proceeded to analyze whether
the child’s habitual residence in Australia was abandoned.
Prior to this Court’s decision in Monasky, nearly
every circuit analyzed the issue of abandonment of a
habitual residence as a matter of parental intent. It
has been recognized that a child could acclimate to the
child’s surroundings in the absence of mutual parental
intent that the child’s habitual residence change, but
in the absence of such intent, a longer time period was
considered to be required in order for that change to
occur. Although this Court held in Monasky that an
actual agreement to raise the child in a particular
country was not required where the parents had established a particular country as their home, the question
is significantly different when the child is moved
from the country where the parents had established
a home to a country where only one parent resides.
There is no joint home in the new country, but nor is
the child old enough to acclimate. Shared parental
intent is practically the only factor that can be looked
to.
Thus, in a case involving young children, where
the habitual residence is alleged to have changed, this
Court should hold that the question a district court
must answer is whether the parents mutually agreed
that the child would live in a new country indefinitely.
In the present case, taking all facts in the light most
8
favorable to Petitioner (because it was decided on summary judgment), the parents did not so agree. The
child’s habitual residence was, thus, still in Australia
at the time of the wrongful retention.
A. Background
The Hague Conference on Private International
Law adopted the Hague Convention in 1980 “[t]o address the problem of international child abductions
during domestic disputes.” Lozano v. Montoya Alvarez,
572 U.S. 1, 4; 134 S. Ct. 1224; 188 L. Ed. 2d 200 (2014).
It has been implemented in the United States through
the International Child Abduction Remedies Act. See
22 U.S.C. §§ 9001–9011.
Article 12 of the Convention requires the prompt
return of a child wrongfully removed or retained away
from the country in which she “habitually resides.” The
threshold inquiry in any Hague case is where the child
is habitually resident.
B. Facts and Procedural History
1. The parties’ relationship begins.
Petitioner Heath Douglas, an Australian citizen,
and Respondent Nancy Douglas, a United States citizen, met through the online dating website, eHarmony,
in late October 2017. (Heath’s Deposition, RE 35-2,
Page ID # 261). At the time, they lived an ocean apart.
Nonetheless, the parties were less concerned with the
9
physical distance between them and were motivated to
find a quality partner.
Within a month of their initial connection on
eHarmony, and after a blessing from Nancy’s father for
Heath to “pursue” his daughter, the couple were already solidifying international travel plans for Nancy
to come to Australia to meet Heath in person in December 2017. (Heath’s Deposition, RE 35-2, Page ID
# 262-263); (Nancy’s Deposition, RE 35-3, Page ID
# 292-294). Heath found Nancy’s father’s verbiage to
“pursue” his daughter uncomfortable. Heath wanted to
court, love, and care for Nancy, not “pursue” her.
(Heath’s Deposition, RE 35-2, Page ID # 263). With so
many shared interests and goals, Nancy was highly receptive of Heath’s e-mails and elected to continue pursuing the relationship. (Heath’s Deposition, RE 35-2,
Page ID # 263-264). Nancy remarked that she “cherish[d]” all of his e-mails and referred to Heath as a
“dream,” and a “gift from God” to her. (E-mail from
Nancy to Heath re: Relationships, RE 41-6, Page ID
# 439).
As the relationship progressed, Nancy took advantage of Heath’s generous offer to fly her to Australia so they could meet. In an e-mail to Heath on
November 25, 2017, Nancy spoke of her upcoming
trip and wrote, “Leaving America and flying to you—I
wouldn’t want it any other way! It’s going to be the best
thing I’ve ever done!” (E-mail from Nancy to Heath re:
Relationships, RE 41-6, Page ID # 439). The winter holiday season was upon the parties as Nancy arrived in
Australia. Nancy spent Christmas with Heath and his
10
family. Shortly after Christmas, Heath proposed to
Nancy, and she enthusiastically accepted his marriage
proposal. (Heath’s Deposition, RE 35-2, Page ID # 263264).
2. Nancy establishes herself in Australia—
the marital home.
Following an engagement of two short months, the
couple married on February 10, 2018, and lived at
Heath’s residence in Curlewis, New South Wales, Australia (“NSW”). Within a month, the couple was surprised to learn that their happy family of two would
soon become a family of three. (Heath’s Deposition, RE
35-2, Page ID # 266). Recently married and now expecting a baby, Nancy established herself in Australia by
applying for an NSW driver’s license, obtaining an
Australian phone number, signing a residential lease
in her name while pregnant, and selecting a hospital
and midwife in anticipation of the birth of the parties’
son. (Handwritten Letter, RE 35-11, Page ID # 320);
(Answer to Verified Petition for Return of Child, RE 11,
Page ID # 158); (Tenancy Agreement, RE 41-10, Page
ID # 447-453). The lease was initially signed by both
Nancy and Heath for a tenancy duration of twelve (12)
months. (Tenancy Agreement, RE 41-10, Page ID
# 447-453).
As the lease was signed by both Heath and Nancy
with the understanding that they would live in the
house during the pregnancy and after the birth of their
child, the couple began to plan for their lives together
11
and thoroughly discussed a ten-year commitment to
residing in Australia before considering a move to the
United States. (Motion for Summary Judgment Transcript, RE 53, Page ID # 523). Nancy applied for the
precursor status to a permanent resident visa in
Australia with the express and implied intent of residing in the country with her growing family.
https://immi.homeaffairs.gov.au/visas/permanent-resident.
In love, trust, and faith, Heath undertook Nancy’s
sponsorship for Australian permanent residency
through initiating a Partner Visa application in the
summer of 2018 as evidenced by the $7000 internet
banking payment made on June 6, 2018 to the Department of Home Affairs. (Respondent’s Answers to Petitioner’s Phase I Requests, RE 41-8, Page ID # 444);
(Answer to Verified Petition for Return of Child, RE 11,
Page ID # 157). By applying for this visa, Nancy was
committing to live in Australia long-term and was subject to a processing time of approximately two years,
which would result in permanent residency status
commencing in or around June 2020. (Respondent’s
Answers to Petitioner’s Phase I Requests, RE 41-8,
Page ID # 444).
In developing a “two-year plan” a mere two
months before JD’s birth, Nancy listed positive
changes she wished to make in her life and was mindful and informed about the impact of good health,
child-rearing, religion, and marriage. This two-year
plan even included the plan to have a second child in
2020 or 2021, indicating the longevity of her plans to
12
remain in Australia and grow their family. (Two-Year
Plan, RE 41-9, Page ID # 446).
As in all relationships between people, not all circumstances were easy. During Nancy’s pregnancy, the
couple experienced challenges in their relationship as
unexpected pregnancies can raise financial, emotional,
and spiritual issues in all couples. Yet, disagreements
were two-sided and often resolved. In June of 2018,
Nancy wrote:
I love you Heath. I’m so so sorry for the way
I’ve treated you when we fight. I hate it so
much when we fight. It hurts my heart and
makes me so sad. I also feel like I turn mean
and ugly, and I’m sorry. Thank you for sticking
by me and calling the sin out. I want it gone.
Please forgive me . . .
(E-mail from Nancy, RE 41-11, Page ID # 455).
In this same e-mail, Nancy remarks that the couple were “one” and promised to stand by him as she is
his wife. (E-mail from Nancy, RE 41-11, Page ID # 456).
Nancy recognized that the fighting between the parties
was mutual and a shared responsibility. (E-mail from
Nancy, RE 41-11, Page ID # 456). Indeed, she enthusiastically remarked, in June 2018, that Heath’s mother
always supports them and that she was “blessed” to be
her daughter-in-law. (E-mail from Nancy, RE 41-11,
Page ID # 457). Although Nancy acknowledged her often volatile behavior towards her husband, Heath testified that he “thought 70 percent of [the marriage] was
great.” (Heath’s Deposition, RE 35-2, Page ID # 267).
13
3. The parties’ child is born in Australia,
but the marriage begins to fall apart.
For Heath, one of the highlights of the marriage
was the birth of the parties’ son, JD, in early November
2018. In a mutual decision, Nancy’s mother came from
the United States on the date of JD’s birth. (Nancy’s
Deposition, RE 35-3, Page ID # 289-290). Nancy and
Heath may have been new parents, but they knew that
they would need some help with a newborn baby. Yet,
Nancy suggested that her mother stay in a nearby
rental property so that her new family of three could
have uninterrupted bonding time together without
needing to host out-of-town relatives. (Nancy’s Deposition, RE 35-3 Page ID # 289).
Shortly following the birth of JD, Nancy decided to
stay with her mother in the rental property, upsetting
the original plans to stay with her husband and child
in their family home. (Nancy’s Deposition, RE 35-3,
Page ID # 289-290). In actions similar to how he would
later respond to Nancy’s abrupt desire to go to the
United States with JD, Heath ultimately chose to support the arrangement that was in JD’s best interests,
which he believed would also preserve the delicate
marriage and familial harmony between the parties.
(Nancy’s Deposition, RE 35-3, Page ID # 289-290).
On November 7, 2018, the sleep-deprived new parents began to argue before Heath’s departure to work
for the day. (Heath’s Deposition, RE 35-2, Page ID
# 270). That evening, the parties picked up where they
left off with the argument and Nancy and Heath used
14
harsh language against each other in the presence of
Nancy’s mother and JD. (Nancy’s Deposition, RE 35-3,
Page ID # 290). In frustration, after a long day at work,
Heath surrendered the fight and pleaded with Nancy
to leave. (Heath’s Deposition, RE 35-2, Page ID # 270).
In response to this call for help, Nancy’s mother offered
that Nancy and JD stay in her rental for three hours
to allow time for reflection and relaxation, to which
Heath graciously accepted. (Heath’s Deposition, RE
35-2, Page ID # 270).
Heath was under the impression that Nancy and
JD would be back to the home in a few hours after everyone had a chance to reflect. (Heath’s Deposition, RE
35-2, Page ID # 270). Even the law enforcement officers
that were directed to assess the situation remarked
that Nancy and her mother could not get “their story
straight” as to the argument. (Heath’s Deposition, RE
35-2, Page ID # 270). In fact, Heath asserts that the
police offered him support. As a result of this confusing
experience, Heath became concerned that Nancy
would try to keep JD from him. As a result of this argument, the parties agree that they have not lived together since November 7, 2018. (Brief in Support of
Respondent’s Motion for Summary Judgment, RE 35,
Page ID # 223).
4. Nancy leads Heath to believe she seeks
reconciliation.
The history of the parties’ relationship involved
times when Nancy would want space and time to
15
herself for a few days, and was thankful when Heath
gave it to her. (Heath’s Deposition, RE 35-2, Page ID
# 263, p. 26). When she left the parties’ apartment on
November 7, 2018, the very next week, she promised
Heath she would come back home. (Heath’s Deposition,
RE 35-2, Page ID # 271, p. 58). The next day, she
changed her mind again. (Heath’s Deposition, RE 352, Page ID # 271, pp. 58-59).
Heath maintains that he always wanted to work
on the marriage and that divorce was not an option due
to his unwavering faith. (Heath’s Deposition, RE 35-2,
Page ID # 270). Staying true to his faith, Heath made
steps to salvage the marriage through continuing
transparent communication with Nancy, seeking advice from trusted community members, and through
purchasing and watching marriage counselling videos.
(Heath’s Deposition, RE 35-2, Page ID # 269).
Despite his efforts, in early December 2018, Heath
was compelled to break the lease for the couple’s
shared apartment in Merewether due to financial and
emotional devastation. (Heath’s Deposition, RE 35-2,
Page ID # 268). On December 3, Nancy’s attorneys
sought, on Nancy’s behalf, to obtain Heath’s permission to relocate the child to the United States, but
Heath declined. (Letter to Appellant re: parenting arrangements, RE 35-7, Page ID # 305-307). In fact, he
reacted by initiating a custody proceeding.
Over a week later, and after Heath initiated a custody proceeding, Nancy decided to try a different tactic.
(RE 35-11, Page ID # 316). She deliberately lied to him
16
and told him that she just needed space and had a return ticket, implying that the trip would be temporary.
(RE 35-11, Page ID # 316). Heath agreed to give Nancy
space and dismissed his Australian custody action because she told him she would return. (Heath’s Deposition, RE 35-2, Page ID # 261, pp. 18-19). He believed
she just needed time. (Heath’s Deposition, RE 35-2,
Page ID # 261, pp. 18-19). Heath testified that he expected Nancy to be with her family for three months or
so and then come back. (Heath’s Deposition, RE 35-2,
Page ID # 273, p. 67).
On January 11, 2019, Heath provided Nancy with
a handwritten letter saying that she could go to the
United States with JD. (January 11 Letter, RE 35-11,
Page ID # 318). Less than two weeks later, on January
23, 2019, Heath provided Nancy with a notarized letter
that permitted Nancy to travel outside of Australia
with JD. (Notarized Authorization to Travel, RE 35-14,
Page ID # 340). When he consented to her travel, he
made clear to her attorneys it was to be for a short
while. (Heath’s Deposition, RE 35-2, Page ID # 274, p.
72).
That same day, and without Heath’s knowledge,
JD’s Consular Report of Birth Abroad was granted after having been secretly applied for by Nancy some
time prior. (Passport Application for Minor, RE 35-12,
Page ID # 322). This document affirmed that JD is a
dual United States-Australian citizen. Shortly thereafter, in advance of the February 13, 2019 trip to the
United States, JD was granted an Australian passport.
(Heath’s Deposition, RE 35-2, Page ID # 274). Within
17
less than one week, Nancy departed with JD to the
United States under false pretenses unbeknownst to
Heath at the time. (Hearing on Motion for Summary
Judgment Transcript, RE 52, Page ID # 509). Nancy
did not provide Heath with any way to contact her or
their son. (Hearing on Motion for Summary Judgment
Transcript, RE 52, Page ID # 509). Indeed, Heath was
not even aware of whether or when Nancy left Australia, after he gave her permission. She did not inform
him of her and the child’s departure. (Heath’s Deposition, RE 35-2, Page ID # 275).
After she left Australia, Nancy would not respond
to any of Heath’s e-mails or text messages. (Heath’s
Deposition, RE 35-2, Page ID # 275, p. 78). After almost
a month of not allowing Heath to see the child, Nancy
sought and obtained a temporary restraining order
against Heath (based on his sending e-mails and text
messages seeking the whereabouts of the child), and
he was not legally allowed to contact her until May
2019 when it was dismissed. (Heath’s Deposition, RE
35-2, Page ID # 275, p. 79). When he spoke to the Australian government, they said nothing could be done
until he knew where the child was. (Heath’s Deposition, RE 35-2, Page ID # 275, p. 79). He attempted to
find out where the child was through local law enforcement in Michigan, but Nancy’s parents would not give
them any information. (Heath’s Deposition, RE 35-2,
Page ID # 275, p. 81). Since Nancy would not respond
to messages or e-mails, he could only find out where
the child was once he could afford to fly to the United
States. (Heath’s Deposition, RE 35-2, Page ID # 275,
18
p. 79). Heath realized the full extent of Nancy’s deceit
when she served him with divorce papers on October
3, 2019. It was only after the divorce was filed that the
police finally found the child on another welfare check.
(Heath’s Deposition, RE 35-2, Page ID # 279, pp. 9899).
5. Heath initiates Hague proceedings after realizing that Nancy and the child
are not returning, but the district
court grants summary judgment.
As Heath exhausted all alternative and extrajudicial options to reconcile the marriage and see his son,
he turned to the courts for help. On May 21, 2020,
Heath filed a Verified Petition for Return of the Child.
Within the document, Heath asserted that JD was
taken to the United States and that Nancy wrongfully
retained JD in the United States as of October 3, 2019.
The district court had jurisdiction pursuant to 22
U.S.C. §§ 9003(a) (jurisdiction under the convention)
and 28 U.S.C. §§ 1331 (federal question jurisdiction).
Nearly two months later, Nancy filed an Answer to Verified Petition for Return of Child denying that she
wrongfully retained her son and disputing key material facts.
Nancy moved for summary judgment. Heath filed
a response on January 4, 2021. On March 22, 2021, the
district court granted Nancy’s motion for summary
judgment and dismissed Heath’s complaint. (Order
Granting Motion for Summary Judgment, RE 49, Page
19
ID # 499). The district court expressly found that the
date Heath knew or should have known Nancy and the
child would not return to Australia was October 3,
2019. (RE 56, Page ID # 565). It expressly found that
Nancy had lied to Heath about her intent to return,
and October 3, 2019, was when Heath knew she had
lied. (RE 56, Page ID # 565).
Nonetheless, the district court concluded that on
that date, Michigan was the child’s habitual residence.
(RE 56, Page ID # 565-566). The district court noted
that pursuant to Monasky, the parties’ intent was only
one factor that should be considered in determining
the child’s habitual residence. (RE 56, Page ID # 566).
The court then went on to conclude that because Heath
wrote “no conditions, no expectations” in his response
to Nancy’s request to travel to the United States, he
had “only a subjective hope that the respondent and
their child would return to Australia.” (RE 56, Page ID
# 567). Lastly, the district court found that there was
no evidence Nancy gave Heath any indication she intended to return after she left Australia. (RE 56, Page
ID # 568).
6. The Sixth Circuit’s decision
Heath filed a timely notice of appeal with the district court on April 6, 2021. (Notice of Appeal, RE 51,
Page ID # 501). The Sixth Circuit, however, affirmed
the district court’s ruling. (App. 1). It is worth noting
that despite the fact that this case was decided on summary judgment, and all facts were to be taken in the
20
light most favorable to Heath, the Sixth Circuit set forth
the facts from Nancy’s perspective in its opinion—
“facts” that portrayed Heath in a negative light, and
which the district court never found or cited. (App. 2-4).
The Sixth Court accepted Heath’s contention that
when he wrote “no conditions, no expectations,” he
meant that he did not want to put any expectations or
conditions on Nancy’s travel if she needed to go anywhere to see friends or family. (App. 13-14). It instead
found that Heath’s January letters and the parties’
conduct established that by October 3, 2019, the parties intended for the child to live in the United States.
(App. 14). The Sixth Circuit found that the child was
“at home” in Michigan because the child lived there for
seven months by the time of the wrongful retention
date. (App. 14). The Sixth Circuit did not discuss the
age of the child, or elaborate on the January letters or
parties’ conduct that it believed indicated the parties
intended for the child to live in Michigan.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
A. This Court’s guidance is necessary with
regards to the framework applicable in
wrongful retention cases, particularly
ones involving young children, as the
Monasky decision leaves more questions than answers in this context.
“Wrongful retentions typically occur when a parent takes a child abroad promising to return with the
21
child and then reneges on that promise[.]” Redmond v.
Redmond, 724 F.3d 729, 738 n.5 (7th Cir. 2013). Prior
to this Court’s decision in Monasky v. Taglieri, 140
S. Ct. 719 (2020), nearly every circuit followed the
Ninth Circuit’s seminal case of Mozes v. Mozes, 239
F.3d 1067 (9th Cir. 2001), when it came to the determination as to whether a child’s habitual residence had
changed after the child was moved from one location to
another. Darin v. Olivero-Huffman, 746 F.3d 1 (1st Cir.
2014) (cited and followed); Gitter v. Gitter, 396 F.3d 124
(2d Cir. 2005) (found to be “instructive”); Maxwell v.
Maxwell, 588 F.3d 245 (4th Cir. 2009) (cited and followed); Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012)
(cited and followed); Koch v. Koch, 450 F.3d 703 (7th
Cir. 2006) (cited and followed); Silverman v. Silverman,
338 F.3d 886 (8th Cir. 2003) (cited and followed); Ruiz
v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) (expressly
adopted); Abou-Haidar v. Vazquez, 945 F.3d 1208 (D.C.
Cir. 2019) (cited and followed).
The Ninth Circuit wrote that “the first step toward
acquiring a new habitual residence is forming a settled
intention to abandon the one left behind.” Mozes, 239
F.3d at 1075. But because young children “normally
lack the material and psychological wherewithal to
decide where they will reside,” the Ninth Circuit concluded that “in those cases where intention or purpose
is relevant—for example, where it is necessary to decide whether an absence is intended to be temporary
and short-term—the intention or purpose which has to
be taken into account is that of the person or persons
22
entitled to fix the place of the child’s residence.” Id. at
1076.
The Ninth Circuit surveyed many cases—specifically, cases where the question was whether the child’s
habitual residence had been changed by a move consented to by both parents—and divided them into
three categories. On one side of the spectrum were
cases where the family as a unit had manifested a settled purpose to change habitual residence permanently—usually “when both parents and the child
translocate together under circumstances suggesting
that they intend to make their home in the new country.” Id. In those cases, courts tend to find that the
child’s habitual residence has changed, even where one
parent later claims he or she had reservations about
the move. Id. at 1076-1077.
On the other side of the spectrum were cases in
which “the child’s initial translocation from an established habitual residence was clearly intended to be of
a specific, delimited period.” Id. at 1077. In those cases,
courts have generally refused to allow the changed intentions of one parent (to make the stay permanent,
rather than temporary) to lead to an alteration in the
child’s habitual residence. Id.
In between these two extremes are “cases where
the petitioning parent had earlier consented to let the
child stay abroad for some period of ambiguous duration.” Id. The outcomes of those cases are very fact dependent. Id. at 1077-1078. If the court finds that the
parents shared a settled mutual intent that the stay
23
last indefinitely, then the child’s habitual residence has
changed. Id. at 1077. However,
If . . . there is a genuine difference [of parental
intention] then the conclusion must be that
there is no settled purpose or intention. The
position is like that of an adult who cannot decide whether a move is short-term or longterm. In such a case the habitual residence
would not be changed until a lengthy period
of time had elapsed.
Id. at 1078 n. 29.
The Ninth Circuit’s framework did not hinge
solely on parental intent. In order for a child’s habitual
residence to change, for example, there must be an actual change of geography, coupled with that intent, and
passage of “an appreciable period of time.” Id. at 1078.
“When the child moves to a new country accompanied
by both parents, who take steps to set up a regular
household together, the period need not be long.” Id.
But, “[o]n the other hand, when circumstances are
such as to hinder acclimatization, even a lengthy period spent in this manner may not suffice.” Id.
The Ninth Circuit also provided for the possibility
of a child’s habitual residence changing as the result
of acclimatization only, in the absence of a shared
mutual intent. However, it concluded that “in the absence of settled parental intent, courts should be slow
to infer from [contacts such as a child’s performance in
school, new friends, and so on] that an earlier habitual
residence has been abandoned.” Id. at 1079. This is
24
primarily because the Hague Convention “is designed
to prevent child abduction by reducing the incentive of
the would-be abductor to seek unilateral custody over
a child in another country.” Id. Thus, “[t]he greater the
ease with which habitual residence may be shifted
without the consent of both parents, the greater the incentive to try.” Id.
In Mozes, the children had lived in Israel with
their parents for their entire lives. Id. at 1069. The husband consented to the wife living in the United States
with the children for at least fifteen months. Id. A year
after she moved to the United States, however, she filed
for divorce in the United States. Id. The Ninth Circuit
concluded that the parents had no settled mutual intent to change the children’s habitual residence and,
thus, it could only have been altered if “the United
States had supplanted Israel as the locus of the children’s family and social development.” Id. at 1084.
In Monasky v. Taglieri, 140 S. Ct. 719 (2020), this
Court held that courts should consider the totality of
the circumstances when determining the habitual residence of a child. One of the specific questions this
Court chose to address was whether an “actual agreement” between the parents to raise their child in a
country was required, in order for that country to become the child’s habitual residence. Id. at 723. In that
case, the parents married in the United States, but
they moved to Italy together without definite plans to
return to the United States, and both found work in
Italy. Id. at 724.
25
About one year later, the wife became pregnant.
Id. The parties inquired about childcare options in
Italy, made purchases for their baby to live in Italy,
and found a larger apartment in Italy. Id. Unbeknownst to the husband, however, the wife also looked
into returning to the United States. Id. She asked
about United States divorce attorneys, applied for jobs
in the United States, and determined what it would
cost her to move. Id. Shortly after the child was born,
the wife told the husband she wanted a divorce, and
two months later, she left for the United States with
the child. Id.
The wife argued that the child’s habitual residence
was not Italy because she never agreed to raise the
child in Italy. Id. at 725. This Court, however, rejected
her assertion that an actual agreement between parents as to where to raise their child was required in
order for the child to obtain a habitual residence. Id. at
726. This Court acknowledged that the intentions and
circumstances of a child’s parents are relevant considerations, especially when the child is too young to acclimate. Id. at 727. But this Court also noted that when
a child has only ever lived in one place, that place is
likely to be the child’s habitual residence. Id. And the
fact that the child’s parents have made their home in
a particular place is a fact that can enable a trier of
fact to determine the residence is “habitual.” Id. at 719.
The Mozes Court would have come to the same
conclusion under the facts of Monasky. The case falls
squarely under the Ninth Circuit’s first category of
cases, where a family, as a unit, moves to another
26
country and makes their home in that new country.
The husband and wife chose to move to Italy together,
and never formed a mutual settled purpose to change
that residence thereafter.
The instant case, however, presents a different
question. The parties’ home together was in Australia,
and the question is whether that is the child’s habitual
residence (as in Monasky), or whether the child’s habitual residence was changed when the mother, Nancy,
traveled to the United States with the child. Although
this Court rejected an “actual agreement” requirement
in Monasky, here, there is essentially nothing to look
to other than the parties’ mutual intent. The child was
an infant at the time he traveled to the United States
and the time of wrongful retention and was not capable
of acclimatization. The only home the parties had
made together with the child was in Australia. The
Mozes framework makes sense in this case, and all
cases in which a child, particularly an infant, has lived
in more than one home.
The district court cited this Court’s decision in
Monasky as a counterpoint to Heath’s arguments that
Heath did not intend for the child to live permanently
in the United States. Although the district court did
make some statements that seemed to indicate it believed the parties intended the child to live in the
United States, its opinion was contradictory on that
point. For example, the district court found that Heath
knew or should have known Nancy would not return to
Australia on October 3, 2019, when he was served divorce papers. If he had intended the child to live in the
27
United States permanently, he would have known
Nancy would not return to Australia before that date.
The district court also did not analyze this case
under the framework most circuits apply when considering whether a child’s habitual residence has
changed. That is, it did not acknowledge that the
child’s habitual residence at the very least was Australia, and then consider whether the child’s parents
formed a mutual settled purpose to abandon that residence in favor of the United States. This case would
have been simple if Heath and Nancy had moved to the
United States together, as a family. But they did not.
There was significant discord in their relationship already at the time of Nancy’s trip to the United States.
Heath clearly intended to remain in Australia, while
Nancy secretly intended to live in the United States.
But did Heath intend for his child to live permanently
in a country separate and apart from him?
Because the district court decided this case on
summary judgment, it was required to construe all
facts in the light most favorable to Heath. There are
several facts that indicate that Heath never intended
for the child to live permanently in the United States.
First, Nancy had to lie to Heath to obtain his permission for the child to visit the United States. There is no
dispute that after Heath initially refused to give permission for Nancy and the child to travel to the United
States, she wrote the following letter:
28
Dear Heath,
Please sign so I can go somewhere where I
have support and people I know and a free
place to stay. I need the space. If you want, I
can show you my return ticket.
If you really love me, you’ll let me go.
Nancy
(RE 35-11, Page ID # 316; RE 35, Page ID # 235-236).
Second, although Heath did ultimately grant
Nancy permission to travel to the United States with
the child, she ceased all contact with him after departing Australia and obtained a restraining order to prevent him from contacting her. When Heath spoke to the
Australian government, they said nothing could be
done until he knew where the child was. (Heath’s Deposition, RE 35-2, Page ID # 275). He attempted to find
out where the child was through local law enforcement
in Michigan, but Nancy’s parents would not give the
officers any information. (Heath’s Deposition, RE 35-2,
Page ID # 275). It was only after Nancy filed for divorce
on October 3, 2019, that Heath discovered where the
child was even located. Heath’s conduct amply demonstrated that he did not intend for the child to remain
in the United States indefinitely.
As noted above, nearly every circuit has found the
Mozes framework instructive for cases in which the
question is whether a child’s habitual residence has
changed. Darin v. Olivero-Huffman, 746 F.3d 1 (1st Cir.
2014) (cited and followed); Gitter v. Gitter, 396 F.3d 124
29
(2d Cir. 2005) (found to be “instructive”); Maxwell v.
Maxwell, 588 F.3d 245 (4th Cir. 2009) (cited and followed); Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012)
(cited and followed); Koch v. Koch, 450 F.3d 703 (7th
Cir. 2006) (cited and followed); Silverman v. Silverman,
338 F.3d 886 (8th Cir. 2003) (cited and followed); Ruiz
v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) (expressly
adopted); Abou-Haidar v. Vazquez, 945 F.3d 1208 (D.C.
Cir. 2019) (cited and followed). Only the Sixth Circuit
has expressly rejected the Mozes framework, and it did
so primarily because it believed Mozes placed too much
emphasis on the intent of the parents. Robert v. Tesson,
507 F.3d 981 (6th Cir. 2007).
But when the child is an infant, and the habitual
residence alleged by one parent is not a place in which
both parents have made a home together, there is no
other basis to look to in order to determine the child’s
habitual residence. In wrongful retention cases, the
first question that must be asked is the date of the
wrongful retention. That is, however, undisputed here.
The wrongful retention date is October 3, 2019.
Second, this Court should hold, in accordance with
Mozes, the court must determine whether the child’s
habitual residence was ever the country to which the
petitioner seeks to have the child returned. Pursuant
to Monasky, the child’s habitual residence in the present case at least was Australia. This will be discussed
in more detail in Part B.
Third, a court must determine whether there was
a settled purpose to abandon that habitual residence
30
in favor of a new one. When all of these steps are taken,
it is clear that in the tumultuous period of the parties’
relationship that occurred just after the child was
born, Heath did not manifest an intent that the child
reside permanently in the United States. Thus, there
was never a settled purpose to abandon the child’s habitual residence, even though he consented to the child
traveling to give Nancy “space.”
This Court should reverse the Sixth Circuit’s decision and establish a clearer framework for use in
wrongful retention cases, where a child has been
moved from one residence to another.
B. The Sixth Circuit’s decision directly
conflicts with this Court’s decision in
Monasky.
The Sixth Circuit cited “the degree of integration
by the child in a social and family environment” as one
relevant consideration when determining the child’s
habitual residence. (App. 14). The Court went on to
note that the child was three days old when he left the
apartment in which Heath and Nancy resided and was
not “meaningfully integrated in any social or family
environment in Australia.” (App. 14). Thus, his residence there was “merely transitory.” (App. 14).
These conclusions were erroneous for two significant reasons. First, this Court acknowledged in
Monasky, as most circuits have, that an infant is “unable to acclimate.” 140 S. Ct. at 727. Thus, whether the
child had “meaningfully integrated into any social or
31
family environment in Australia” was not the appropriate inquiry. The child was too young to do so.
Second, the facts of this case prior to Nancy’s departure from Australia were nearly identical to the
facts of Monasky in all relevant ways. There, the
mother left the country with the child when the child
was two months old. Id. at 724. Here, Nancy went to
the United States with the child when the child was
around three months old. But this Court in Monasky
did not determine that the child’s presence in Italy was
“merely transitory” because the child was there for
only two months. Instead, this Court expressed concern that if it accepted the mother’s arguments, there
would be “a presumption of no habitual residence for
infants, leaving the population most vulnerable to abduction the least protected.” Id. at 728. This Court held
that the district court correctly found Italy to be the
child’s habitual residence, in part because the parents
had made their home together in Italy before the
child’s abduction. Id. at 729.
Here, similarly, the parties made their home together in Australia. When Nancy took the child to the
United States, she did so alone. There was only one
country in which the family resided as a family: Australia. Under Monasky, Australia was not merely a
“transitory” residence but was clearly the child’s first
habitual residence. It was the country in which the
parties resided, the country in which the child was
born, and the country in which they intended to raise
the child. The Sixth Circuit incorrectly determined
32
that Australia was never the child’s habitual residence.
C. The factual circumstances of this case
justify relief because this is a textbook
case of child abduction through deceit
and avoidance.
As this Court noted in Monasky, the purpose of
the Hague Convention is to stop child abductions and
unilateral decisions to relocate the child to another
country. 140 S. Ct. at 728. The Convention should be
construed in a way that accomplishes that purpose. In
the instant case, however, the Sixth Circuit essentially
allowed just that.
Nancy obtained Heath’s permission to travel only
by lying to him, pretending that she intended to return. After she tricked him into signing the travel documents, she ceased all contact with him. Heath was
not aware of whether or when the child actually traveled to the United States, whether he arrived safely, or
where he was living in the United States. Nancy completely ghosted him and prevented him from knowing
anything about the child’s well-being or her intentions.
The district court expressly found that Heath only
“knew or should have known” about Nancy’s true intention to remain in the United States on the date of
wrongful retention, October 3, 2019. Before then,
Heath had no way of ascertaining Nancy’s plans because she would not respond to any of his attempts at
communication.
33
This is a textbook case of child abduction, where
one parent obtains the other parent’s permission to
visit another country by lying about his or her intent
to remain there, and then never comes back. The lack
of communication as soon as Heath signed the travel
documents belies any assertion that there was a mutually settled purpose in this case.
This Court should clarify the framework for addressing wrongful retention cases so that the Hague
Convention’s purposes may better be served in cases
like this one.
---------------------------------♦---------------------------------
CONCLUSION
Petitioner respectfully requests that this Court
grant his petition for certiorari.
Respectfully submitted,
LIISA R. SPEAKER*
JENNIFER M. ALBERTS
SPEAKER LAW FIRM, PLLC
819 N. Washington Ave.
Lansing, MI 48906
(517) 482-8933
lspeaker@speakerlaw.com
*Counsel of Record
January 27, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.