Opposition Brief — Minna-Marie Brandt, Petitioner v. Damian Caracciolo

Supreme Court briefMar 26, 2024

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No. 23-932

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MINNA-MARIE BRANDT,

Petitioner,

DAMIAN CARACCIOLO,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

---------------------------------♦--------------------------------BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------JAMES L. EPPERSON

EPPERSON LAW GROUP, PLLC

10851 Sikes Pl., Ste. 100

Charlotte, NC 28277

(704) 321-0031

james@epplaw.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Whether the Fourth Circuit correctly interpreted

the text of the Hague Convention, and in so doing, appropriately used other circumstances in determining

the parties’ custody rights under the laws of that country at the time of an alleged wrongful retention.

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

TABLE OF AUTHORITIES .................................

iii

STATEMENT OF THE CASE..............................

REASONS FOR DENYING THE PETITION ......

Petitioner Failed to Make a Prima Facie

Case of Wrongful Retention.......................

II.

The Fourth Circuit’s Opinion Comports

with the Text of the Hague Convention

and Cases of This Court and Other Circuits ........................................................... 14

III. The District Court Properly Considered

the Practical Impact of a Custody Order

Issued After an Alleged Wrongful Retention ............................................................. 20

CONCLUSION..................................................... 23

APPENDIX

APPENDIX A: Swedish Social Care Letter

dated June 3, 2021 ..................................................1a

APPENDIX B: Transcript of Evidentiary Hearing ............................................................................4a

iii

TABLE OF AUTHORITIES

Page

CASES

Abbott v. Abbott,

560 U.S. 1, 130 S. Ct. 1983,

176 L. Ed. 2d 789 (2010) .........................................18

Abou-Haidar v. Sanin Vazquez,

945 F.3d 1208, 444 U.S. App. D.C. 482,

(D.C. Cir. 2019) ...................................................... 5, 6

Baxter v. Baxter,

423 F.3d 363 (3d Cir. 2005) .......................................5

Blackledge v. Blackledge,

866 F.3d 169 (3d Cir. 2017) .......................................6

Brandt v. Caracciolo,

2022 U.S. Dist. LEXIS 214172

(W.D.N.C., Nov. 29, 2022) ............ 7, 12, 13, 15, 17, 21

Brandt v. Caracciolo,

2023 U.S. App. LEXIS 28367

(4th Cir. Oct. 25, 2023) ......2-4, 7, 8, 10, 15, 16, 18, 21

Custodio v. Samillan,

842 F.3d 1084 (8th Cir. 2016) ....................................5

Darin v. Olivero-Huffman,

746 F.3d 1 (1st Cir. 2014) ..........................................6

Feder v. Evans-Feder,

63 F.3d 217 (3d Cir. 1995) .........................................6

Friedrich v. Friedrich,

938 F.2d 1396 (6th Cir. 1993) (“Friedrich I”) ..........12

Friedrich v. Friedrich,

78 F.3d 1060 (6th Cir. 1996) (“Friedrich II”) ............5

TABLE OF AUTHORITIES – Continued

Page

Garcia v. Pinelo,

808 F.3d 1158 (7th Cir. 2015) ....................................5

Golan v. Saada,

142 S. Ct. 1880, 213 L. Ed. 2d 203 (2022) ...18-20, 22

Gonzalez-Caballero v. Mena,

251 F.3d 789 (9th Cir. 2001) ......................................6

Jenkins v. Jenkins,

569 F.3d 549 (6th Cir. 2009) ......................................9

Karkkainen v. Kovalchuk,

569 F.3d 280 (3d Cir. 2006) .......................................6

Kufner v. Kufner,

519 F.3d 33 (1st Cir. 2008) ........................................5

Larbie v. Larbie,

690 F.3d 295 (5th Cir. 2012) ......................................5

Lozano v. Alvarez,

572 U.S. 1 (2014) ............................................... 21, 22

Miller v. Miller,

240 F.3d 392 (4th Cir. 2001) ............................ 5, 8, 12

Monasky v. Taglieri,

140 S. Ct. 719 (2020) ....................................13, 18-20

Mozes v. Mozes,

239 F.3d 1067 (9th Cir. 2001) ....................................5

Palencia v. Perez,

921 F.3d 1333 (11th Cir. 2019) ..................................5

Redmond v. Redmond,

724 F.3d 729 (7th Cir. 2013) .............................. 12, 19

TABLE OF AUTHORITIES – Continued

Page

Reyes Valenzuela v. Michel,

736 F.3d 1173 (9th Cir. 2013) ..................................12

Royal Borough of Kensington Chelsea,

2023 U.S. App. LEXIS 25141

(2d Cir. Sept. 22, 2023) ..............................................5

Slight v. Noonkester,

No. CV 13-158-BLG-SPW,

2014 U.S. Dist. LEXIS 9133

(D. Mont. Jan. 24, 2014) .................................... 11-13

Smedley v. Smedley,

772 F.3d 184 (4th Cir. 2014) ......................................6

Walker v. Walker,

701 F.3d 1110 (7th Cir. 2012) ..................................12

West v. Dobrev,

735 F.3d 921 (10th Cir. 2013) ....................................5

White v. White,

718 F.3d 300 (4th Cir. 2013) .................................. 5, 8

STATUES

22 U.S.C. § 9003(e)(1)(A) ....................................... 4, 6, 9

OTHER AUTHORITIES

Convention on the Civil Aspects of International

Child Abduction, the Hague, October 25, 1980,

T.I.A.S. No. 11,670, 22514 U.N.T.S., reprinted

in 51 Fed. Reg. 10,493 (1986) .........4-6, 8-9, 15-16, 21

TABLE OF AUTHORITIES – Continued

Page

Elisa Pérez-Vera, Explanatory Report, in 3 Acts

and Documents for the Fourteenth Session,

Child Abduction (1982) .......................... 12, 15-17, 22

STATEMENT OF THE CASE

Respondent disagrees with Petitioner’s incomplete recitation of facts and presents the following additional facts relevant and necessary to this Court’s

consideration of the question presented by Petitioner.

The relevant time frame in this matter regarding

an alleged wrongful retention of the minor children is

April 2021 through July 2021. Pet. 20a.

On December 30, 2020, the Oreboro Social Welfare

Committee began a Social Care investigation into the

safety of Petitioner’s home and the children’s welfare.

Pet. 3a. The investigation by Sweden’s Social Welfare

Committee continued through at least March of 2022.

Pet. 17a. Petitioner testified that the parties then discussed Respondent taking the children to the United

States for a three-month trip. Pet. 145a. Respondent

testified that the parties agreed the entire family

would move to the United States and Respondent

would obtain citizenship for the minor children. Opp’n

11a–12a; Pet. 90a, 94a. On April 16, 2021, Respondent

and the children travelled to North Carolina, where

they have remained. Pet. 3a. Respondent brought most

of the children’s clothing and toys, as well as the children’s population registration certificates, which were

provided to Respondent by Petitioner. Id.

On June 3, 2021, the Swedish Social Welfare Committee sent a letter to the parties stating that “[s]ocial

services were planning to place the children in temporary care,” but that the parties had “finally came to

the agreement that the children could live with you

(Respondent) and your (Respondent’s) family in the US

for some time.” Opp’n 2a. The letter went on to state

that it was the opinion of social services that the minor

children residing with Respondent in the United

States “appears to be the best option for the children.”

Id. Further, the letter also stated, “it is concluded that

there are several serious risk factors for the children

in their situation in Sweden.” Id. The letter was based

in part on several conversations with the parties together and separately.

No later than June 29, 2021, Petitioner filed a custody action in the Swedish District Court resulting in

an interim custody hearing. On July 6, 2021, as part of

the ongoing custody dispute, the Swedish District

Court entered an “interim decision” confirming the

parties’ joint custody. Pet. 115a. While acknowledging

that the children were at that time with Respondent in

the United States, the Court did not require Respondent to return the children to Sweden. Pet. 4a, 115a.

A report authored by the Swedish Social Welfare

Committee on September 27, 2021, and considered by

the North Carolina District Court, substantiated Respondent’s testimony that he brought the children to

the United States pursuant to an agreement between

the parties with social services that “the best thing for

the children would be for [Respondent] to go the

United States with [the children] and that if the parties had not so agreed, foster care would have been considered.” Brandt v. Caracciolo, 2023 U.S. App. LEXIS

28367 at *4 (4th Cir. Oct. 25, 2023); Pet. 5a, 17a, 108a.

The March 31, 2022, Swedish District Court Order

awarded Respondent the sole custody of the children,

and to Petitioner a right of contact in the form of

weekly calls. Pet. 131a. The Swedish court stated in its

assessment, inter alia, that “[Respondent] is in any

case more suitable as a guardian than [Petitioner]” and

that “[g]iven the conditions [the children] previously

lived under, it would not be good for them to be uprooted and have to move again.” Pet. 130a. Also “[w]ith

regard to physical contact between [Petitioner] and the

children, the district court believes that in view of the

uncertainty factors that still exist regarding her abuse

and the relationship she now lives in, it is too early to

decide on this.” Pet. 131a.

Petitioner appealed the March 31, 2022, custody

order but was denied. Pet. 18a. Her attempts to hold

Respondent in contempt for violating the July 6, 2021,

interim decision and the March 31, 2022, custody order

were denied. Id. Petitioner never attempted to modify

the order. Opp’n 9a.

During the evidentiary hearing before the District

Court on November 10, 2022, Petitioner testified that

the parties had not agreed on a specific departure or

return date of the children and that “it was up to [Respondent] to decide [the departure and return dates]

himself.” Brandt, 2023 U.S. App. LEXIS 28367 at *5;

Opp’n 5a; Pet. 5a. The District Court made findings

consistent with Petitioner’s testimony.

---------------------------------♦---------------------------------

REASONS FOR DENYING THE PETITION

Petitioner Failed to Make a Prima Facie

Case of Wrongful Retention.

A. Petitioner failed to establish a wrongful retention by a preponderance of the

evidence as required by the Hague

Convention.

Far from being an easy case as asserted by Petitioner, the facts are atypical for a child abduction proceeding. Brandt, 2023 U.S. App. LEXIS 28367 at *12;

Pet. 11a. Per Article 3 of the Convention and 22 U.S.C.

§9003(e)(1)(A), Petitioner bore the burden to show by a

preponderance of the evidence that the children were

wrongfully removed or retained. Hague Convention,

Art. 3; 22 U.S.C. §9003(e)(1)(A); Pet. 26a, 49a. Petitioner’s overly simple three-step analysis disregards

Petitioner’s factual burden and the District Court’s

conclusion that Petitioner simply failed to meet that

burden. Petitioner’s incorrect assertion that the panel

majority adopted a “new approach” fails to acknowledge

the Convention’s text and the application of that text

as well as relevant case law.

1. Establishing a date of retention is a

required element to prove wrongful

retention.

Article 3 of the Hague Convention states, “The . . .

retention of a child is to be considered wrongful where

. . . (b) at the time of . . . retention those rights were

actually exercised, either jointly or alone. . . .” Hague

Convention, Art. 3; Pet. 26a. (emphasis added). This requirement has been confirmed by all twelve Federal

Circuit Courts.1 Under the Hague Convention, wrongful retention occurs when one parent “retains the child

abroad against the petitioning parent’s will.” White v.

White, 718 F.3d 300, 304, n.3 (4th Cir. 2013). Without

an established date of retention an applicant for

Hague Convention relief cannot establish if there was

a retention at all, let alone the wrongfulness of the alleged retention.

2. Petitioner failed to establish a date of

retention.

Petitioner incorrectly asserts that the District

Court and Fourth Circuit Court of Appeals evaluated

the alleged wrongful retention based on factors other

than the parties’ home country custody rights at the

time of the allegedly wrongful retention. Pet. 2. Petitioner further argues the ungrounded position that

the lower courts applied what they thought should be

Petitioner’s rights under Swedish law. Pet. 10. This

Kufner v. Kufner, 519 F.3d 33, 39 (1st Cir. 2008); Royal

Borough of Kensington Chelsea, 2023 U.S. App. LEXIS 25141 at

*5 (2d Cir. Sept. 22, 2023); Baxter v. Baxter, 423 F.3d 363, 367 (3d

Cir. 2005); Miller v. Miller, 240 F.3d 392, 398 n.8 (4th Cir. 2001);

Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012); Friedrich v.

Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996) (“Friedrich II”);

Garcia v. Pinelo, 808 F.3d 1158, 1162 (7th Cir. 2015); Custodio v.

Samillan, 842 F.3d 1084, 1088 (8th Cir. 2016); Mozes v. Mozes,

239 F.3d 1067, 1070 (9th Cir. 2001); West v. Dobrev, 735 F.3d 921,

929 n.7 (10th Cir. 2013); Palencia v. Perez, 921 F.3d 1333, 1338

(11th Cir. 2019); Abou-Haidar v. Sanin Vazquez, 945 F.3d 1208,

1215, 444 U.S. App. D.C. 482, 489 (D.C. Cir. 2019).

position misstates what the District Court and Fourth

Circuit Court of Appeals evaluated and found, as well

as disregards ICARA’s requirement that Petitioner

bears the burden to establish wrongful retention by a

preponderance of the evidence. 22 U.S.C. § 9003(e)(1)(A);

Pet. 49a.

The Hague Convention is “designed to restore the

‘factual’ status quo which is unilaterally altered” when

a parent wrongfully removes or retains a child. Karkkainen v. Kovalchuk, 445 F.3d 280, 286 (3d Cir. 2006)

(quoting Feder v. Evans-Feder, 63 F.3d 217, 221 (3d. Cir.

1995) (emphasis added)); Smedley v. Smedley, 772 F.3d

184, 186 (4th Cir. 2014); Hague Convention, Art. 1; Pet.

25a. The Third Circuit has held that the date of wrongful retention is the “date beyond which the noncustodial parent no longer consents to the child’s continued

habitation with the custodial parent. . . .” Abou-Haidar v. Sanin Vazquez, 945 F.3d 1208, 1216, 444 U.S.

App. D.C. 482, 490 (D.C. Cir. 2019) (quoting Blackledge

v. Blackledge, 866 F.3d 169, 179 (3d Cir. 2017)). A parent’s actions that “serve to identify such date” can be

communicated formally or informally. Id. However, per

Article 13 of the Hague Convention’s plain and unambiguous text, “consent before the removal and retention or subsequent acquiescence extinguishes the right

of return.” Gonzalez-Caballero v. Mena, 251 F.3d 789,

794 (9th Cir. 2001); Hague Convention, Art. 13; Pet.

31a. The consent does not have to be formal but can be

“evidenced by the petitioner’s statements or conduct.”

Darin v. Olivero-Huffman, 746 F.3d 1, 15 (1st Cir.

2014).

Petitioner claims that Respondent “unilaterally”

changed the children’s residence, despite the District

Court’s finding that it was the intent of both parties

that the children should live with Respondent in the

United States, or otherwise face being put into foster

care in Sweden. Brandt v. Caracciolo, 2022 U.S. Dist.

LEXIS 214172 at *8; Pet. 22a. The Court further found

that Respondent did not remove the children to seek a

more sympathetic forum or to disrupt the status quo,

and due to the involvement of Swedish Social Welfare,

Respondent “became the primary physical custodian of

the children.” Id. at *7–8; Pet. 21a.

In making findings, the District Court relied on

Petitioner’s own testimony that she “consented to the

children taking an indeterminate trip to the United

States to live with [Respondent].” Brandt, 2023 U.S.

App. LEXIS 28367 at *5. Petitioner further testified

that she agreed that the children should come to the

United States with Respondent. Id.; Opp’n 2a. Petitioner’s true intent was clear based upon her agreement and consent, informal as they may be.

The parties had conflicting testimony about a date

of return, and Petitioner was unable to establish an

agreed upon date in which the children would be returned. By her own admission, at the time of any alleged retention, Respondent had the authority to

determine if and when the children would be returned

to Sweden. Pet. 10a. In neither the Swedish interim

custody order nor the final custody order did the Swedish court find that Respondent’s retention of the minor children was wrongful, nor did the orders require

Respondent to return the children to Sweden. Brandt,

2023 U.S. App. LEXIS 28367 at *3–4; Pet. 115a–119a,

120a–132a. Moreover, it was only after the Swedish

court granted Respondent sole custody of the children

that Petitioner filed and followed through with a petition to the Hague for the return of the minor children

to Sweden.

As concluded by the panel majority, quoting White

(“And since a primary purpose of the Hague Convention is to ‘preserve the [pre-removal or pre-retention]

status quo’ ”), “the children indefinitely staying with

the joint custodial father, in the United States, was the

status quo.” Brandt, 2023 U.S. App. LEXIS 28367 at

*11–12 (quoting White, 718 F.3d at 306 (quoting Miller

v. Miller, 240 F.3d 392, 398 (4th Cir. 2001))). The Fourth

Circuit also noted the District Court’s reliance on Petitioner’s own testimony, that she consented to the children taking an indeterminate trip to the United States

to live with Respondent, affirming the District Court’s

conclusion that Petitioner failed to meet her burden of

proof to establish a wrongful retention (“Appellant

bore the burden of proving that Appellee wrongfully

retained the children. She failed to do so.”). Brandt,

2023 U.S. App. LEXIS 28367 at *11.

There was no specific date agreed upon by the parties in which Respondent would return the children to

Sweden, and no date established after which Respondent refused to return the children to Sweden. As a result, Petitioner failed to establish a date in which the

children were wrongfully retained.

3. When Petitioner failed to establish a

date of wrongful retention by a preponderance of the evidence, her

claim was properly denied.

When it is concluded that a petitioner has failed to

establish by a preponderance of the evidence, as required by 22 U.S.C. § 9003(e)(1)(A) that there is a

wrongful retention, the “Abduction Convention cannot

be successfully invoked” and the review of the petition

is effectively ended. Jenkins v. Jenkins, 569 F.3d 549,

552 and 556 (6th Cir. 2009). The District Court’s denial

of Petitioner’s petition and the Fourth Circuit’s subsequent affirmation were proper and ended the matter.

4. The Court of Appeals did not require

Petitioner to prove she did not consent to Respondent relocating the

children to the United States permanently.

Petitioner’s statement that “[t]he majority appears to have believed that Brandt had to prove that

she did not consent” disregards Article 12 of The Hague

Convention. Pet. 7. Article 12 requires return if there

has been wrongful removal or retention. Hague Convention, Art. 12; Pet. 30a. Article 13 then clarifies that

in such a situation, the requested State is not bound to

order the return if the person opposing return establishes the affirmative defense of consent to the removal

or retention. Hague Convention, Art. 13; Pet. 31a.

In this case, Petitioner failed to show a wrongful

removal or retention and her case failed. At no time did

the District Court, nor the Fourth Circuit, require her

to disprove consent, nor was a finding of consent even

necessary. The panel majority correctly placed the issue of Petitioner’s consent in the proper context when

it stated, “[i]n reaching its conclusion that Appellant

ha[s] failed to meet her burden to demonstrate wrongful retention, the district court relied on Appellant’s

own testimony that she, as a joint custodian, had consented to the children taking an indeterminate trip to

the United States to live with [Respondent].” Brandt,

2023 U.S. App. LEXIS 28367 at *11. Petitioner’s consent found at trial was not an affirmative defense to a

properly established prima facie case; it was evidence

that Petitioner failed to prove a wrongful removal or

retention. Although she testified the parties had an

agreement on return, Petitioner’s own testimony, the

testimony of Respondent, as well as other evidence considered, rebutted this assertion, and thus, Petitioner

could not establish a wrongful retention. Petitioner’s

statement that “[t]he Fourth Circuit’s improper burden-shifting warrants reversal” is incorrect, in that the

Court’s decision was not based on burden-shifting at

all.

5. The panel did not incentivize people

to thwart home-country custody proceedings.

Petitioner asserts that the majority’s decision incentivizes people to thwart home-country custody

proceedings by bringing children to the United States,

and that “the majority below should have viewed this

case as a “normal wrongful detention case.” Pet. 16. Petitioner further claims the panel majority’s approach

“licenses United States courts to settle foreign custody

disputes.” Id. at 17.

a. This was not a “normal” wrongful retention case.

Petitioner cites the Court’s statement in Slight v.

Noonkester describing how “normal” wrongful detention cases “usually happen.” Slight v. Noonkester, No.

CV 13-158-BLG-SPW, 2014 U.S. Dist. LEXIS 9133,

2014 WL 282642, at *14 (D. Mont. Jan. 24, 2014). Unlike the present case, that definition does not include

the existence of home state custody litigation initiated

prior to removal and subsequently completed in the

home state, nor the existence of social welfare committee decisions and reports, nor conflicting testimony of

parties on whether removal was temporary. This case

varies considerably from the simple definition provided by Petitioner, and thus viewing it as “normal”

would be improper under the definition cited by Petitioner.

The 1980 Explanatory Report on the HCCH Child

Abduction Convention provides some guidance on typical, or “normal” cases. “It frequently happens that the

person retaining the child tries to obtain a judicial or

administrative decision in the State of refuge, which

would legalize the factual situation which he has just

brought about.” 1980 Conférence de La Haye de droit

international privé, L’enlèvement des faits, E. PérezVera, Explanatory Report in 3 Actes et documents de

la Quatorzième session, p. 429, ¶ 14.

The Seventh Circuit has noted that “[t]he Convention aims ‘to deter parents from absconding with their

children and crossing international borders in the

hopes of obtaining a favorable custody determination

in a friendlier jurisdiction.’ ” Redmond v. Redmond, 724

F.3d 729, 737 (7th Cir. 2013) (quoting Walker v. Walker,

701 F.3d 1110, 1116 (7th Cir. 2012)). The Ninth Circuit

was even more to the point, stating that “[t]he central

purpose of the Convention is to prevent forum shopping in custody battles.” Reyes Valenzuela v. Michel,

736 F.3d 1173, 1176 (9th Cir. 2013); Pet. 16. The District Court spoke to this when citing Miller v. Miller,

quoting Friedrich I stating, “[t]he primary purpose of

the Hague Convention is ‘to preserve the status quo

and to deter parents from crossing international

boundaries in search of a more sympathetic court.’ ”

Brandt, 2022 U.S. Dist. LEXIS 214172 at *5 (quoting

Miller v. Miller,240 F.3d 392, 398 (4th Cir. 2001) (quoting Friedrich v. Friedrich, 938 F.2d 1396, 1400 (6th Cir.

1993) (“Friedrich I”))).

In addition to forum shopping, the Explanatory

Report pointed to another common scenario, “ . . . if he

is uncertain about the way in which the decisions will

go, he is just as likely to opt for inaction, leaving it up

to the dispossessed party to take the initiative.” PérezVera 429, ¶14. The Slight court provided an example of

this by discussing the obtaining of a “chasing order” by

a party in the home state after children are removed.

Slight, 2014 U.S. Dist. LEXIS 9133 at *14.

In the case at hand, neither of these typical scenarios were present. Petitioner filed her custody claim

in Sweden prior to removal and did not obtain a chasing order. As Respondent continued to litigate the custody case in Sweden and never sought custody in the

United States, there was no issue of forum shopping.

The District Court correctly stated that “Respondent

had no need to remove the children from Sweden and

seek a more sympathetic court in order to obtain custody. Initially, through the involvement of Swedish Social Welfare, he became the primary physical custodian

of the children.” Brandt, 2022 U.S. Dist. LEXIS 214172

at *7.

b. Home-country custody proceedings were not thwarted by the

lower court’s decisions in this

matter.

As stated by this Court in Monasky, “The Convention’s return requirement is a ‘provisional’ remedy that

fixes the forum for custody proceedings.” Monasky, 140

S. Ct. 719, 723, 206 L. Ed. 2d 9, 16. In the matter at

hand, the forum deciding the custody issue was already fixed prior to removal and remained so. The

proper forum for the custody issue was never challenged.

As the present case involved no chasing order, no

forum shopping, and a custody case that proceeded to

completion in the home state, Petitioner’s argument

that the majority panel’s decision incentivizes people

to bring children here to gain the upper hand in foreign

custody proceedings fails.

c. The panel did not settle a foreign

custody dispute nor license other

courts to do so.

Far from settling a foreign custody dispute, the

panel merely affirmed the District Courts conclusion

that Petitioner failed to meet her burden of proof. The

Swedish custody dispute, initiated by Petitioner, was

settled in Sweden. For this reason, Petitioner’s argument that the lower court licensed other courts to settle foreign custody disputes has no merit.

II.

The Fourth Circuit’s Opinion Comports

with the Text of the Hague Convention and

Cases of This Court and Other Circuits.

A. In applying the Convention’s text and

case law, the District Court was not

precluded from taking into account

facts and circumstances surrounding

the March 31, 2022, Custody Order from

the Swedish Court, as well as that

Court’s reasons for its decision that

were related to custody.

Plaintiff incorrectly suggests that the lower courts

could only consider The Swedish Children and Parent’s

Code in determining whether an alleged retention of

the children was wrongful. Contrary to Petitioner’s position, multiple articles of the Hague Convention, as

well as case law, allow for the consideration of numerous factors over a dry and limited application of The

Swedish Children and Parent’s Code.

Article 13 of the Convention states that “[i]n considering the circumstances referred to in this Article,

judicial and administrative authorities shall take into

account the information relating to the social background of the child. . . .” Hague Convention, Art. 13;

Pet. 31a (emphasis added). The District Court held

that the custody orders as well as The Social Welfare

Committee’s report were “compelling evidence” on the

properness of the children’s removal and retention.

Brandt, 2022 U.S. Dist. LEXIS 214172 at *9. The panel

majority found that “[h]ere, the parties both presented

evidence that a Swedish custody dispute and child welfare investigation was ongoing during the time period

preceding the purported retention.” Brandt, 2023 U.S.

App. LEXIS 28367 at *11. Further, of the circumstances referred to in Article 13, the establishment of

consent to retention is an affirmative defense. Hague

Convention, Art. 13; Pet. 31a. Petitioner’s consent in

this matter was established even though the case was

decided on the ground that Petitioner failed to meet

her burden of proof.

The Explanatory Report further states that “ . . .

the very nature of these exceptions [Articles 13 and 20]

give judges a discretion – and does not impose upon

them a duty – to refuse to return a child in certain circumstances.” Pérez-Vera 460, ¶113. “Such information,

emanating from either the Central Authority or any

other competent authority, may be particularly valuable in allowing the requested authorities to determine

the existence of those circumstances which underlie

the exceptions contained in the first two paragraphs of

this article.” Id. at 461, ¶117. Article 13 and the Explanatory Report emphasize the ability of a court to

examine other circumstances and facts and to use its

discretion in evaluating the affirmative defense of consent to both removal and retention, as well as the appropriateness of an ordered return.

Article 14 of the Convention states that “[j]udicial

or administrative authorities of the requested State

may take notice directly of the law of, and of judicial

and administrative decisions, formally recognized or

not in the State of the habitual residence of the child.”

Hague Convention, Art. 14; Pet. 32a. The Explanatory

Report adds “[t]here is no need to stress the practical

importance this rule may have in leading to the speedy

decisions which are fundamental to the working of the

Convention.” Pérez-Vera 463, ¶119. As clarified by the

majority’s opinion, the United States is the “requested

State” in this case, and Sweden was the habitual residence of the children. Brandt, 2023 U.S. App. LEXIS

28367 at *9 n.7.

Article 17 forbids the court of a requested State to

ground its decision on the sole fact that a decision relating to custody was given, but further states that the

court “may take account of the reasons for that decision in applying this Convention.” Hague Convention,

Art. 17; Pet. 33a. The Explanatory Report adds that

“[t]he solution contained in this article accords perfectly with the object of the Convention, which is to discourage potential abductors . . . ”, and “[m]oreover,

since the decision on the return of the child is not concerned with the merits of custody rights, the reasons

for the decision which may be taken into consideration

are limited to those which concern ‘the application of

the Convention.’ ” Pérez-Vera 464, ¶123.

Addressing Petitioner’s trial briefs, the District

Court specifically noted that “[t]he March 2022 custody order is not dispositive as a matter of law on the

issue of wrongful retention. . . . But the Court may consider that order as evidence.” Brandt, 2022 U.S. Dist.

LEXIS 214172 at *9. The District Court took further

note that “each party agrees that the Court should consider certain factual findings in that order.” Id. Petitioner wanted the Court to approve certain factual

findings in the Swedish custody orders, and implicitly

agreed the District Court could, and should adopt findings from that order. She cannot now argue that the

Swedish custody orders could not be considered as evidence.

The District Court further found, based on the evidence and testimony presented, that the parties

agreed the children would go to the United States with

Respondent, that it would not be good for the children

to be uprooted and moved again, that the parties disagreed as to the duration of the children’s stay in the

United States, and that no retention date was established. The District Court did not rely solely on the

Swedish’s Court’s March 2022 Order to make its

decision. The court also reviewed the Swedish interim

custody order, documents from Swedish Social Welfare,

the Social Welfare letter, and the parties’ testimony in

determining whether Respondent’s retention of the

minor children was wrongful and whether Petitioner

established her case by a preponderance of the evidence.

The majority’s opinion confirmed the appropriateness of the District Court’s findings in light of Article

17 and further noted the lack of precedent keeping

courts from considering the “full panoply of circumstances surrounding the alleged retention.” Brandt,

2023 U.S. App. LEXIS 28367 at *9.

Petitioner’s reliance on Golan and Monasky is misplaced, in that Petitioner ignores the plain text of Articles 13, 14 and 17 of the Hague Convention, with which

the court’s complied. In Golan, the court considered the

“grave risk” affirmative defense wherein a court has

discretion to determine whether to deny return. Golan

v. Saada, 142 S. Ct. 1880, 213 L. Ed. 203 (2022). The

Golan court acknowledged the holding in Abbott that,

“[t]he interpretation of a treaty, like the interpretation

of a statute, begins with its text.” Id. at 1891, 213 L. Ed.

at 216 (quoting Abbott v. Abbott, 560 U.S. 1, 10, 130

S. Ct. 1983, 176 L. Ed. 2d. 789). This Court noted that

“nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion.” Id. at 1892, 213 L. Ed. at 216. In

overruling the Second Circuit, the Court noted that the

lower court imposed a “categorical requirement” to

consider all ameliorative measures, which was

inconsistent with the test and other express requirements of the Hague Convention. Id. at 1893, 213 L. Ed.

at 217. No such categorical requirements were presented by Petitioner in this case.

In Monasky, this Court noted that the language in

the Hague Convention does not define the term “habitual residence” and that the inquiry into the question of

habitual residence begins with the Hague Convention’s text “and the context in which the written words

are used.” Monasky, 140 S. Ct. at 726, 206 L. Ed. at 19.

The Court characterized the inquiry into the question

of habitual residence as fact-driven, and that it must

be “sensitive to the unique circumstances of the case

and informed common sense.” Id. at 727, Id. (quoting

Redmond, 724 F.3d at 744). Further, the Court noted

that “no single fact is dispositive across all cases.” Id.,

206 L. Ed. at 20. In Monasky, this Court rejected the

argument there must be an actual agreement between

the parties about where a child will reside in determining the habitual residence, and that “a child’s habitual

residence depends on a totality of circumstances specific to the case.” Id. at 723, 206 L. Ed. at 15. The Court

noted that an actual agreement requirement is not in

the Convention’s text, and that the Convention’s Explanatory Report refers to a child’s habitual residence

in fact-focused terms. Id. at 726, 206 L. Ed. at 19. This

is akin to the Court’s rejection of a “categorical requirement” not stated in the Hague Convention’s text as discussed in Golan. Golan, 142 S. Ct. at 1892, 213 L. Ed.

at 216.

In the present case, neither the District Court nor

the Fourth Circuit imposed a requirement that a court

must base, or even consider in its decision, circumstances other than Swedish law, nor did either court

find that it could not do so. This comports with the text

of the Convention and case law, especially in light of

the totality of circumstances, fact-driven inquiry informing a court’s discretion as shown in Golan and

Monasky. Petitioner’s insistence that per Monasky a

court must adhere only to the Convention’s text is undercut by the Court’s actual application of “a fact-sensitive inquiry, not a categorical one.” Monasky, 140

S. Ct. at 726, 206 L. Ed. at 19. Nothing in Golan or

Monasky suggest that a Court is limited to the Convention text of the Swedish Parent’s Code without regard to other circumstances, or sources, as set forth in

Articles 13, 14 and 17 of the Convention. Petitioner’s

extreme narrowing of how a court may review a Hague

petition is off the mark and merely hampers a District

Court’s exercise of discretion.

III. The District Court Properly Considered

the Practical Impact of a Custody Order Issued After an Alleged Wrongful Retention.

The March 2022 custody order was the result of

ongoing custody litigation initiated by Petitioner in

June of 2021 and prior to the alleged date of wrongful

retention. As acknowledged by the Fourth Circuit’s dissent in this case, the order directly related to the effects of an ordered return “does not mean the March

31, 2022 order has no bearing on what happens after

the children are returned to Sweden.” Brandt, 2023

U.S. App. LEXIS at *16. The District Court, Fourth Circuit and Petitioner herself acknowledged that even

with a return to Sweden, it would not be improper for

Respondent to then take the children and immediately

board a plane back to the United States based on Respondent being granted sole custody of the minor children. Id. at 16–17; Brandt, 2022 U.S. Dist. LEXIS

214172 at *8; Opp’n 9a.

Contrary to Petitioner’s arguments, the Convention provides explicit opportunities for a court to evaluate factors and interests other than the law of a

child’s country of residence, even where it finds wrongful retention. For example, Article 12 allows a court to

evaluate how settled a child is in their new environment. Hague Convention, Art. 12; Pet. 31a. Article 13

allows a court to take into account the information relating to the social background of the child. Hague

Convention, Art. 13; Id. Article 17 explicitly allows a

court to take into account of the reasons for a custody

decision entitled to recognition in the requested State

in applying the Convention. Hague Convention, Art.

17; Pet. 33a.

Further, as stated by this Court in the context of

the one-year period set forth in Article 12, “ . . . opening

the door to consideration of the child’s attachment to

the new country does not mean closing the door to evaluating all other interests of the child and the nonabducting parent.” Lozano v. Alvarez, 572 U.S. 1, 19, 134

S. Ct. 1224, 1237, 188 L. Ed. 2d. 200, 217 (2014). Moreover, “[n]othing in Article 12 prohibits courts from

taking other factors into account.” Id. at 20. The Convention text simply did not limit the Courts’ consideration to only Swedish law as posited by Petitioner.

In Golan, this Court further clarified that

“[r]eturn of the child is, however, a general rule, and

there are exceptions,” and that “ . . . return is merely a

‘provisional’ remedy that fixes the forum for custody

proceedings.” Golan, 142 S. Ct. at 1888, 213 L. Ed. 2d

at 212. While the maintenance of a bright-line rule has

simplicity, it ignores the very real practical effects related to a court’s decision and eliminates what Article

13 explicitly allows a Court to consider, thus unduly

limiting the trial judge’s discretion referenced in the

Explanatory Report. Pérez-Vera 460, ¶113.

The March 31, 2022, order very clearly stated

what would happen upon a return of the children if

they were placed in Petitioner’s custody, and that order

was therefore particularly relevant to the issue of the

children’s return. Consideration of that order and the

practical effects of a return was not an abuse of the

Court’s discretion.

---------------------------------♦---------------------------------

CONCLUSION

For the aforementioned reasons, the Petition for

Writ of Certiorari should be denied.

Respectfully submitted,

JAMES L. EPPERSON

EPPERSON LAW GROUP, PLLC

10851 Sikes Pl., Ste. 100

Charlotte, NC 28277

(704) 321-0031

james@epplaw.com

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Swedish Social Care Letter

dated June 3, 2021 ..................................................1a

APPENDIX B: Transcript of Evidentiary Hearing ............................................................................4a

APPENDIX A

[LOGO]

Laxá, 21-06-03

Dear Mr Caracciolo,

Attached is the investigation/assessment that has

been carried but regarding you children Sxxxxxxxx and

Jxxxx. I have also sent it to their mother Minna-Mari.

It is in Swedish and I hope you can understand parts

of it or alternatively seek help to have it translated. I

will here summarize the general content. The information is gathered through several conversations that

I have had with you and Minna-Mari, together and separetly. I have also had conversations with Sxxxxxxxx

and observed both children. Furthermore, I have obtained information from the childrens pre-school teachers and BVC (childrens nurse). I have also received

information from several reports that I received during

the corse of the investigation (such as police and health

care professionals) The information has resulted in a

number of identified risk factors and protectiv factors

for the children.

Risk factors:

violence and conflicts between parents/caregivers

and between parents and others

* Minna-Mari has a problem with substance abuse

both parents have different degrees of mental

health problems

* financial difficulties/Minna-Mari is unemployed

and has no other income

the family has no stable accomondation in Sweden

Protective factors:

* pre-school/day care is working well for both children

* existing social/family network in both Sweden and

the US

* Damian has employment in the US and thus financial stability

* the family has accomondation in the US

Considering the above risk and protective factors it is

concluded that there are several serious risk factors for

the children in their situation in Sweden. It was clear

to me that you and Minna-Mari were not able to come

to an agreement about how to make the necessary

changes to ensure that the children were safe. Therefore, social services were planning to place the children

in temporary care. You, Damian and Minna-Mari finally came to the agreement that the children could

live with you and your family in the US for some time.

The social service is of the opinion that it appears to be

the best option for the children, given the situation as

it was in Sweden with ongoing arguments and violence

that the children had been exposed to, in addition to

the other risk factors.

The social services’ investigation is now closed, as it

is only allowed to be carried out for a maximum of

four months according to the Swedish law (Socialtjänstlagen). A

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Laxá kommun

Pestgatan 2–4

Besokaadress

Postgatan 2 – 4

Telefon

0584-47 31 00

Fax

Mejladress

0584-107 41 kornmun@laxa.se

Org.nr

Bankgiro

212000-1918 5195-6027

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF NORTH CAROLINA

CHARLOTTE DIVISION

MINNA-MARIE BRANDT,

Petitioner,

vs.

DAMIAN CARACCIOLO,

Respondent.

)

DOCKET NO.

3:22-CV-304

TRANSCRIPT OF EVIDENTIARY HEARING

BEFORE THE HONORABLE DAVID S. CAYER

UNITED STATES MAGISTRATE JUDGE

THURSDAY, NOVEMBER 10, 2022 AT 9:30 A.M.

APPEARANCES:

On Behalf of the Petitioner:

NATALIA L. TALBOT, ESQ.

KELLY A. CAMERON, ESQ.

Waldrep Wall Babcock & Bailey PLLC

70 Knollwood Street, Suite 600

Charlotte, North Carolina 27103

On Behalf of the Respondent:

JAMES L. EPPERSON, ESQ.

Epperson Law, PLLC

13657 Providence Road

Weddington, North Carolina 28104

Minna-Marie Brandt – Appearing virtually via Teams

JILLIAN M. TURNER, RMR, CRR, CRC

Official U.S. District Court Reporter

United States District Court

Charlotte, North Carolina

[17] M. BRANDT – DIRECT

remain there until the beginning of July; is that correct?

Yes. Yes, that is correct.

Q. But just to clarify, you did not have exact departure and return dates?

A. No, we had not. It was up to Damian to decide

that himself.

Q. What is your understanding of when Mr.

Caracciolo left for the U.S. with the children? What

date?

The 7th.

The 7th of what month?

Of April 2021.

2021. Okay.

Yes.

Q. And do you know where he brought them in

the U.S.?

A. I – I – I believe he took them to his parents’,

the children’s grandparents in North Carolina.

Q. It’s your understanding that they were living

with him and his parents or the children’s grandparents in North Carolina?

ents?

Yes.

Okay. And who are the children’s grandparLouis Caracciolo and Wendy Caracciolo.

Q. What was your understanding of who was

providing daily care for the children while they were

in the U.S.?

That is Wendy.

[23] M. BRANDT – DIRECT

So if the children return, you said you will file.

When they return, will you have custody of the

children?

No. No. No.

And why is that?

A. Because Damian – because we have already

had custody – a custody battle, and Damian was

granted custody because the children cannot be forced

back here through Swedish law.

So you said –

Honor.

MR. EPPERSON:

THE COURT:

I’m going to object, Your

Sustained.

BY MS. TALBOT:

Q. So you said that if the children returned you

will file. Can you explain what you mean by that? What

are you going to file?

The Swedish law is that during –

MR. EPPERSON:

Objection.

THE WITNESS:

– a custody battle –

THE COURT:

Sustained.

THE WITNESS:

THE COURT:

– a child can live –

I’ll sustain the objection.

Hold on until the next question, ma’am.

THE WITNESS:

Okay.

BY MS. TALBOT:

Q. Ms. Brandt, what is your intent to file? What

do you plan to file?

[24] M. BRANDT – CROSS

A custody order.

Do you mean a petition or a custody order?

Oh, yeah, a petition.

Okay. A petition for what?

For custody.

Okay.

MS. TALBOT:

moment.

Your Honor, if I may have a

THE COURT:

Yes, ma’am.

MS. TALBOT:

Thank you.

Your Honor, I have no further questions at this

time.

THE COURT:

Mr. Epperson.

MR. EPPERSON:

Thank you.

CROSS-EXAMINATION

BY MR. EPPERSON:

Ms. Brandt, I’m James Epperson.

Before today, you and I have never met. Is that fair

to say?

Yes, it is.

Q. If I – I apologize. If you can’t hear me correctly

or if I – if I say something that you don’t understand,

just let me know. Okay?

Yes, I will.

Q. All right. And you met my client approximately 2015; is that correct?

[31] M. BRANDT – CROSS

waiting.

Q. All right. And you’ve never asked the Court in

Sweden to modify its order, have you?

sorry.

I don’t understand what that means. I’m

Q. So you have a permanent custody order, but

have you petitioned the Court in Sweden to modify

their order in any way?

A. I – I don’t – I can’t answer that. I know I made

a petition against the actual court order that on March,

but they responded I would have to wait until I had the

Hague Convention ready and done. But I have not gone

against it or tried to change it in any way. I have got

Damian, though, into enforcement of the custody order

because it provides him sole custody and it provides

the children with the right to see and talk to me.

Damian has only chosen the good part is and leave the

lesser out.

So that –

That is what I was trying to enforce.

Q. Is it your testimony that you filed a contempt

case in asking the Swedish court to punish my client

for not giving you your videos?

10a

A. I – I – I don’t know the exact words for it, but

it would be an enforcement to actually make him follow it.

Q. Okay. And you filed – you filled out a petition

with the Hague Convention on or about July 21st of

2021; is that

[50] D- CARACCIOLO – DIRECT

Yes.

Okay. And what happened to that appeal?

A. It got denied, and she had to pay for my lawyer because it was a waste of everybody’s time.

Q. Okay. And did you, in fact, get a copy of the

Hauge petition?

Yes, I did. I was served.

How were you served?

A. Somebody showed up on my front door and

mostly told me I was served.

Okay. When were you served?

I would say around May this year.

Of what year?

Of this year.

Q. Okay. Is that after she filed the documents

here in the United States in North Carolina?

11a

I can’t really remember.

Q. All right. Do you recall ever getting a petition

under the Hague Convention in the year 2021?

ment?

Yes.

Okay. Tell me, when did you get that docu-

A. That was – I think it was around S.’s birthday.

So it was either September, very early September or

before that.

Q. Was there an agreement that you-all – that

you would apply for citizenship for the children here in

the [51] United States?

Yes.

What was the agreement with mother?

A. That is the main reason why I went back the

last time.

When did you go back to the last time?

That was in – I went there for Christmas.

Of what year?

A. Of 2020. Because she sent my mom pictures

of the documents that we needed to go to the Embassy

with.

Okay.

Because she was agreeing.

12a

Q. And that was part of the overall agreement to

move the whole family to the United States?

Yes.

Q. Had the children ever visited the United

States before you moved them here?

Yes.

Okay. When was the first time?

When S. was about three months. 2016.

Q. When was the last time? Before you did your

move to the United States in April of ’21.

The last time that they came?

Uhm-hum.

A. When S. was about three months, yeah. No.

She was maybe six months – or no. Maybe close to a

year. I can’t

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.