Petition for Writ of Certiorari — Heath Richard Douglas, Petitioner v. Nancy Summers Douglas

App. 1

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0438n.06

No. 21-1335

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HEATH RICHARD

DOUGLAS,

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Petitioner-Appellant,

v.

NANCY SUMMERS

DOUGLAS,

Respondent-Appellee.

ON APPEAL FROM

THE UNITED

STATES DISTRICT

COURT FOR THE

WESTERN DISTRICT

OF MICHIGAN

(Filed Sep. 21, 2021)

BEFORE: SUTTON, Chief Judge; McKEAGUE

and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge. PetitionerAppellant Heath Richard Douglas (Heath) appeals the

district court’s grant of summary judgment to his former spouse, Nancy Summers Douglas (Nancy), in this

dispute under the Hague Convention on the Civil Aspects of International Child Abduction, in which the issue is the habitual residence of the parties’ child. We

AFFIRM.

I.

In late October 2017, Heath, an Australian man,

contacted Nancy, an American woman, on a dating

App. 2

website. Heath lived in Curlewis, New South Wales

(NSW), Australia, and Nancy lived in Boston, Massachusetts. Heath and Nancy began communicating via

telephone in November 2017. The same month, the

parties began planning for Nancy to visit Heath. Heath

purchased a roundtrip ticket for Nancy to fly to Australia for “[a] few weeks” beginning in late December.

R. 35-3, PID 285. Nancy left her associate-editor job in

Boston, where she had worked since August 2016. The

same company hired her to work remotely as a freelance editor.

Nancy arrived in Australia on December 21, 2017.

Upon her arrival, Heath gave her an American Express card with $7,000 and told her, “[L]ook, any time

you want to go back, use that, go home, you don’t have

to stay.” R. 35-2, PID 263. When Nancy arrived in Australia, the parties lived separately.

Shortly after Christmas, Heath proposed marriage, and Nancy accepted. The parties were married

on February 10, 2018. Nancy moved into Heath’s home,

and within a month, she became pregnant.

The couple began arguing soon after their marriage. The arguments occurred “[e]very few days” and

were “[s]evere.” R. 35-3, PID 289. Nancy testified that

the “themes” of these arguments were “[t]hat [she] was

disrespecting [Heath] and not submitting to [him].” Id.

Heath threatened to kill himself and told Nancy it

would be “[her] fault if he committed suicide.” Id. at

PID 286. He also “threatened that he is a trained boxer

who can kill someone in one punch and if [Nancy] were

App. 3

a man, he would have hit [her] already.” Id. One night

in August 2018, Heath “suddenly got on top of [Nancy]

and grabbed both of [her] arms to get [her] to stop talking.” Id. at PID 288. Heath also “flipped [Nancy] on the

bed.” Id. According to Nancy, she “was sitting on the

side of the bed . . . talking and [Heath] didn’t like what

[she] was saying and flipped [her] onto [her] back so

that [she] rolled on the bed.” Id.

Despite the parties’ marital strife, they attempted

to build a life together in Australia. On June 6, 2018,

Heath paid $7,000 to the Australian Department of

Home Affairs to sponsor Nancy’s Permanent Partner

Visa. Nancy obtained a debit card linked to Heath’s

National Australian Bank account. On June 29, 2018,

the parties signed a twelve-month lease for an apartment in Merewether, NSW. In September 2018, Nancy

drafted a list of two-year goals. One of her goals was

“baby #2 on the way by 2020/2021?” R. 41-9, PID 446.

On October 31, 2018, Nancy obtained an NSW driver’s

license. The parties also discussed a potential ten-year

commitment to stay in Australia. Heath believed that

the parties “promised ten years [in Australia] and then

[they] would go to America.” R. 41-5, PID 437.

By October 2018, the parties began seeking marriage counseling. They also met with multiple pastors.

Because Heath thought that he might “hit” Nancy, a

pastor advised him to “get [Nancy] out of the house.”

R. 35-2, PID 269. At the end of October, Heath told

Nancy that he “[couldn’t] handle this” and stayed at a

motel for the night. Id. Around the same time, he told

Nancy to “get the F out” of the apartment. R. 35-3, PID

App. 4

290. He then ran after her and she returned, telling

him that she wanted a divorce. However, the couple did

not divorce at that time.

Nancy and Heath’s son, J.D., was born in Australia

on November 4, 2018. Nancy’s mother flew to Australia

for J.D.’s birth.

On the morning of November 7, 2018, Heath and

Nancy got into an argument. When Heath returned

home from work, he told Nancy to “get out” of the

apartment. Id. He also threatened to take J.D. to western Australia. Police were summoned to the apartment.

For the next three months, Nancy, her mother, and

J.D. moved between rentals and other temporary housing. Heath and Nancy have not lived together since November 7, 2018.

On November 21, 2018, Nancy sent an e-mail to

Heath stating:

The marriage is over.

I would like to return to America with [J.D.]

Will you agree to this and sign his [Australianpassport application]?

There can still be ways to see and spend time

with [J.D.]. . . .

This email confirms that we have officially

separated as of today, 21/11/18.

R. 35-5, PID 300. After separating from Heath, Nancy

applied for child support. On December 3, 2018, a law

firm representing Nancy wrote a letter to Heath

App. 5

informing him that Nancy “wishes to return to Michigan . . . to live with her parents . . . and seeks to also

relocate [J.D.’s] residence to the United States.” R. 357, PID 305. On December 7, 2018, Heath sent Nancy

an e-mail stating, “I understand that you really do not

want me in your life anymore, and this really hurts.”

R. 35-8, PID 309. On December 9, 2018, Heath wrote

Nancy another e-mail stating, “you obviously aren’t

coming back to me.” R. 35-9, PID 311. Sometime between December 2018 and January 2019, Heath left

the parties’ Merewether apartment and moved over

three hours away, back to Curlewis.

On December 13, 2018, Heath commenced a custody proceeding in federal circuit court in Australia.

On December 15, 2018, Nancy wrote a letter to

Heath:

please sign [J.D.’s Australian-passport application] 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.

R. 35-11, PID 316. As it turns out, Nancy had not purchased a return ticket to Australia, and Heath did not

ask to see a return ticket.1

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On December 20, 2018, Nancy contacted police about the

volume of text messages she was receiving from Heath. R. 35-13,

PID 337. She obtained a provisional “Apprehended Domestic Violence Order” (ADVO) against Heath. Id. at PID 333–38. The ADVO

prohibited Heath from directly contacting Nancy. Id. at PID 334.

App. 6

On December 24, 2018, Heath responded:

OK nancy,

Merry Christmas

Please take care of our little man.

Id. On the back of his letter, Heath wrote:

No conditions

No expectations

I will provide,

love heath xo

Id. at PID 317. Heath signed J.D.’s Australian-passport

application. Also on December 24, 2018, Heath dismissed the custody proceeding he initiated earlier that

month. In January 2019, Heath paid a child-support

assessment.

On January 11, 2019, Heath wrote a letter to

Nancy stating:

You are free to go home now. I am sorry for not

getting these through to you earlier, but

maybe the timing is just right? I don’t know.

I want the best for you and [J.D.] and if that

is back in America with your folks, then you

have my blessing!

Thanks for your patience with me as I learnt

what it is to be a good Dad and friend.

I have never had to sacrifice so much!

Be blessed nancy!

Id. at PID 318. On January 30, 2019, Heath signed a

letter authorizing J.D. to travel with Nancy to the

United States. The next month, Nancy unilaterally

withdrew her Permanent-Partner-Visa application.

App. 7

While in Australia, Nancy maintained American

bank accounts, filed U.S. tax returns, and maintained

a mailing address in the United States. After separating from Heath, she opened an Australian bank account to facilitate her receipt of financial assistance.

On February 13, 2019, Nancy and J.D. flew to the

United States. Nancy ended Heath’s child-support assessments. Since their arrival, Nancy and J.D. have

lived with Nancy’s parents in Michigan.

Heath traveled to the United States in August

2019. Security footage from August 22, 2019 captured

Heath appearing without notice at Nancy’s home. He

left within five minutes. Heath also appeared with luggage and flowers at Nancy’s father’s workplace.

Nancy filed for divorce in September 2019 and

served Heath with divorce papers in Australia on October 3, 2019.

Heath filed this petition for return of J.D. on May

14, 2020. Following discovery on the issue of J.D.’s habitual residence, Nancy filed a motion for summary

judgment, arguing that there is no genuine dispute

that J.D.’s habitual residence was the United States.

The district court granted Nancy’s motion, concluding

that immediately before the alleged wrongful retention, J.D.’s “habitual residence” was Michigan, not Australia. Heath appealed.

App. 8

II.

This court reviews de novo a grant of summary

judgment, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor. Fisher v.

Nissan N. Am., Inc., 951 F.3d 409, 416 (6th Cir. 2020).

Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A fact is “material”

if it “might affect the outcome of the suit under the governing law,” and a factual dispute is “genuine” if “the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

A. Habitual Residence

Under the Hague Convention

In 1980, the Hague Conference on Private International Law adopted the Hague Convention on the

Civil Aspects of International Child Abduction (Hague

Convention) “[t]o address the problem of international

child abductions during domestic disputes.” Monasky

v. Taglieri, 140 S. Ct. 719, 723 (2020) (quotation omitted). “The goal [of the Hague Convention] is to prevent

a child from being ‘taken out of the family and social

environment in which its life has developed.’ ” Ahmed

v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017) (quoting

Robert v. Tesson, 507 F.3d 981, 991–92 (6th Cir. 2007)).

“The Hague Convention is also meant to deter parents

App. 9

from crossing borders in search of more favorable forums.” Id. (citing Friedrich v. Friedrich, 78 F.3d 1060,

1064 (6th Cir. 1996)).

The Hague Convention “ordinarily requires the

prompt return of a child wrongfully removed or retained away from the country in which she habitually

resides.” Monasky, 140 S. Ct. at 723 (citing Hague Convention, Article 12). Under the Hague Convention, the

removal or retention of a child is wrongful if

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

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.

Robert, 507 F.3d at 988 (quoting Hague Convention,

Article 3).

The United States and Australia are signatories to

the Hague Convention. Hague Conference on Private

Int’l Law, Convention of 25 Oct. 1980 on the Civil Aspects of Int’l Child Abduction, Status Table, https://

www.hcch.net/en/instruments/conventions/status-table/

?cid=24 (last updated July 19, 2019). The International

Child Abduction Remedies Act (ICARA) implements

the Hague Convention in the United States. See 22

U.S.C. § 9001 et seq.

App. 10

“Under the ICARA, a petitioner seeking the return

of a child under the Hague Convention must prove by

a preponderance of evidence that the child was wrongfully retained or removed from her habitual residence.”

Ahmed, 867 F.3d at 686. The burden then shifts to

the respondent to establish one of the Hague Convention’s “exceptions.” 22 U.S.C. § 9003(e)(2); Friedrich v.

Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993).

“[A] court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but not

the merits of the underlying custody dispute. If the petitioning party shows that the Hague Convention requires return to the abducted-from nation, the child is

returned there to determine custody. . . .” Ahmed, 867

F.3d at 687 (citations omitted).

“[A] child’s habitual residence depends on the

totality of the circumstances specific to the case.”

Monasky, 140 S. Ct. at 723. “A person can have only

one habitual residence.” Simcox v. Simcox, 511 F.3d

594, 602 (6th Cir. 2007) (quotation omitted). In

Monasky, the Supreme Court articulated several principles for determining habitual residence. The term

“habitual” “suggest[s] a fact-sensitive inquiry, not a

categorical one.” Monasky, 140 S. Ct. at 726. Habitual

residence does not turn on the existence of an actual

agreement or on any other categorical requirement. Id.

at 726, 728. “The place where a child is at home, at the

time of removal or retention, ranks as the child’s habitual residence.” Id. at 726. A child’s residence in a

particular country can only be considered “habitual”

when “her residence there is more than transitory.” Id.

App. 11

“What makes a child’s residence ‘habitual’ is . . . ‘some

degree of integration by the child in a social and family

environment.’ ” Id. (quotation omitted). Moreover,

[b]ecause locating a child’s home is a factdriven inquiry, courts must be “sensitive to

the unique circumstances of the case and informed by common sense.” For older children

capable of acclimating to their surroundings,

courts have long recognized, facts indicating

acclimatization will be highly relevant. Because children, especially those too young or

otherwise unable to acclimate, depend on

their parents as caregivers, the intentions and

circumstances of caregiving parents are relevant considerations. No single fact, however,

is dispositive across all cases. Common sense

suggests that some cases will be straightforward: Where a child has lived in one place

with her family indefinitely, that place is

likely to be her habitual residence. But suppose, for instance, that an infant lived in a

country only because a caregiving parent had

been coerced into remaining there. Those circumstances should figure in the calculus.

Id. at 727 (citations omitted). And “[a]n infant’s ‘mere

physical presence’ . . . is not a dispositive indicator of

an infant’s habitual residence[,] . . . [b]ut a wide range

of facts[,] . . . including facts indicating that the parents have made their home in a particular place, can

enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ”

Id. at 729.

App. 12

B.

Date of Wrongful Retention

Heath’s complaint alleges that Nancy’s retention

of J.D. became wrongful on October 3, 2019. At the

summary-judgment stage, Heath sought to amend his

petition to allege that the retention became wrongful

on May 14, 2019. The district court denied Heath’s request to amend. Heath does not challenge the wrongful-retention date on appeal. See generally Appellant’s

Br. Accordingly, we adopt October 3, 2019 as the operative wrongful-retention date. See Carvajal Vasquez

v. Gamba Acevedo, 931 F.3d 519, 524 (6th Cir. 2019)

(adopting the district court’s determination regarding

the wrongful-retention date where the parties did not

challenge the date on appeal).

C.

J.D.’s Habitual Residence

One factor informing a young child’s habitual

residence is the caregiving parents’ “intentions and

circumstances.” Monasky, 140 S. Ct. at 727. Some evidence suggests that before J.D. was born, the parties

may have intended to raise him in Australia: Nancy

obtained a debit card linked to Heath’s National Australian Bank account; the parties signed a twelvemonth lease for an apartment in Merewether; Nancy

obtained an NSW driver’s license; the parties contemplated a ten-year plan to live in Australia; and Nancy

applied for a Permanent Partner Visa.

Other evidence, however, more strongly indicates

that by the wrongful-retention date, the parties intended for J.D. to live in the United States. In October

App. 13

2018, the parties got into an argument in which Heath

told Nancy to “get the F out” of their apartment and

Nancy told Heath that she wanted a divorce. R. 35-3,

PID 290. Three days after J.D. was born, Heath exiled

Nancy from the apartment again. The parties lived

separately after that point. On December 3, 2018, a law

firm representing Nancy informed Heath that Nancy

wished to return to Michigan and relocate J.D.’s residence there. Heath’s e-mails from December 7 and 9,

2018 stated, “I understand that you really do not want

me in your life anymore” and “you obviously aren’t

coming back to me.” R. 35-8, PID 309; R. 35-9, PID 311.

On December 24, 2018, in response to Nancy’s request

for Heath to sign J.D.’s passport application, Heath replied, “OK nancy, . . . Please take care of our little man.”

R. 35-11, PID 316. On the back of the letter, Heath

wrote, “No conditions / No expectations.” Id. at PID

317. On the same day, Heath signed J.D.’s passport application and dismissed the custody proceeding he had

initiated eleven days earlier. On January 11, 2019,

Heath sent a letter to Nancy stating, “You are free to

go home now. . . . I want the best for you and [J.D.] and

if that is back in America with your folks, then you

have my blessing!” Id. at PID 318. In a letter dated

January 30, 2019, Heath authorized J.D. to travel with

Nancy to the United States.

Heath argues that he wrote “No conditions / No

expectations” “after Nancy’s promise to return,” and

that this context creates an issue of fact as to the parties’ intent. Appellant’s Br. at 32–33. Heath testified

that “No conditions / No expectations” meant he “didn’t

App. 14

want to put any expectation or conditions on her travel

if she needed to go anywhere to see friends [or] family,”

he “[did not] want to be a controlling husband[,] and

[he did not] want to hold her back if she need[ed] to go

anywhere.” R. 35-2, PID 274. Because we must draw

all reasonable inferences in Heath’s favor, we take this

testimony as true. See Fisher, 951 F.3d at 416. But even

accepting this interpretation of the December 24th correspondence, other evidence in the record, including

Heath’s January letters and the parties’ conduct, establish that by the wrongful-retention date, the parties

intended for J.D. to live in the United States.

Another relevant consideration is the “degree of

integration by the child in a social and family environment.” Monasky, 140 S. Ct. at 726 (quotation omitted).

When Heath directed Nancy to leave their apartment,

J.D. was three days old. For three months afterward,

Nancy, her mother, and J.D. moved between rentals

and other temporary housing. Heath moved over three

hours away from the Merewether apartment. J.D. was

not meaningfully integrated in any social or family environment in Australia; his residence there was merely

transitory. In contrast, J.D. had lived in Michigan with

his mother and maternal grandparents for over seven

months by the wrongful-retention date. Thus, as of

October 3, 2019, J.D. was “at home” in Michigan, not

Australia. See id.

No reasonable jury, considering the totality of

the circumstances, could conclude that Heath demonstrated by a preponderance of the evidence that J.D.’s

App. 15

habitual residence was Australia as of the operative

wrongful-retention date.

III.

For the foregoing reasons, we AFFIRM the district

court’s judgment.

App. 16

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HEATH RICHARD DOUGLAS,

Petitioner,

-vNANCY SUMMERS DOUGLAS,

Respondent.

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No. 1:20-cv-423

Honorable

Paul L. Maloney

ORDER GRANTING

MOTION FOR SUMMARY JUDGMENT

(Filed Mar. 22, 2021)

Petitioner Heath Douglas filed this lawsuit under

the Hague Convention and the International Child Abduction Remedies Act seeking the return of his child to

Australia. According to Petitioner, custody determinations should be made in the Australian courts.

Respondent Nancy Douglas filed a motion for summary judgment. (ECF Nos. 34 and 35.) Included in his

response, Petitioner requests leave to amend the complaint to change the date of wrongful removal. The parties completed their briefs and the Court held oral

argument on the motion on Monday, March 22, 2021.

For the reasons provided on the record, the Court

GRANTS Respondent’s motion. The Court also DENIES Petitioner’s motion for leave to the amend the

complaint as futile. The Court concludes that the date

of wrongful retention is October 3, 2019. The Court

App. 17

finds that on October 2, 2019, the infant’s habitual residence was Michigan.

IT IS SO ORDERED.

Date: March 22, 2021

/s/ Paul L. Maloney

Paul L. Maloney

United States

District Judge

App. 18

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HEATH RICHARD DOUGLAS,

Petitioner,

-vNANCY SUMMERS DOUGLAS,

Respondent.

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No. 1:20-cv-423

Honorable

Paul L. Maloney

JUDGMENT

(Filed Mar. 22, 2021)

The Court has resolved all pending claims in this

lawsuit. As required by Rule 58 of the Federal Rules of

Civil Procedure, JUDGMENT ENTERS.

THIS ACTION IS TERMINATED.

IT IS SO ORDERED.

Date: March 22, 2021

/s/ Paul L. Maloney

Paul L. Maloney

United States

District Judge