Smith v. Smith

Filing 29

FINDINGS OF FACT, CONCLUSIONS OF LAW & ORDER. NOW THEREFORE IT IS HEREBY ORDERED Petitioner-Plaintiff's Petition for Return of Child Pursuant to the Hague Convention 1 shall be, and the same is hereby, GRANTED. IT IS FURTHER ORDERED that the parties shall attempt to reach agreement on the details of returning DMS to the United Kingdom. IT IS FURTHER ORDERED, that counsel shall notify the Court within 5 days from the date of this decision as to whether an agreement has been reached. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DAVID NEIL SMITH, Mundford, Norfolk,
England, United Kingdom,
Case No. 1:17-CV-489-BLW
Plaintiff-Petitioner,
v.
VICKIE MICHELLE SMITH, Caldwell, Idaho,
United States of America,

FINDINGS OF FACT,
CONCLUSIONS OF LAW
&
ORDER

Defendant-Respondent.

INTRODUCTION
The Court held a bench trial on January 29, 2018, in this matter, and the parties
filed post-trial briefs on February 9, 2018. The matter is now at issue. For the reasons
explained below, the Court finds that the minor child DMS must be returned to the
United Kingdom under Article 12 of the Hague Convention.
FINDINGS OF FACT
The Smiths were married in 1997 and resided in England. Vickie is a citizen of
the United States; David is a citizen of the United Kingdom. While residing in England,
they had two children, DOS. (now age 16) and DMS (now age 15). Nearly twenty years
later, the marriage broke down and David filed for divorce. The court in England granted
primary custody of the children to Vickie while David received visitation rights. Vickie
initially filed a motion with the English court to remove the boys permanently from the
jurisdiction but withdrew that motion, see Order (Dkt. No. 1-5) at p. 3, and represented to
Findings of Fact & Conclusions of Law & Order – p. 1

the court, through her solicitor, that “she will not remove the children from the
jurisdiction without the agreement of [David Smith].” See Order (Dkt. No. 1-6) at p. 2.
On May 30, 2017, Vickie, a United States citizen, absconded with DMS to the
United States without David’s permission, and without approval of the English court,
leaving behind her other child DOS. Vickie and DMS lived briefly in Colville,
Washington, where his mother’s siblings lived, and then moved in with various other
family members, and for a short time, lived in a homeless shelter. Since August of 2017,
Vickie and DMS have lived in Caldwell, Idaho, with a childhood friend of Vickie’s.
Vickie works part-time at a convenience store in Nampa. DMS has completed the first
semester of his sophomore year at Caldwell High School, and recently began his second
semester.
To regain custody of DMS, David initiated proceedings in the English court to
compel Vickie to return DMS to England. The court did not grant the requested relief
because it was unclear whether Vickie had notice of the petition, but the court did grant
leave to David to restore his application once Vickie received notice. See Order (Dkt.
No. 1-10) at p. 2. The court did “note”, however, that (1) in earlier proceedings, Vickie
had “assured the Court (through her instructed solicitor) that she would not remove the
children (or either of them) from the jurisdiction without the agreement of the Applicant
father, such assurance being recorded on the face of the order”; (2) that Vickie was “in
breach” of the custody orders; and (3) that the “removal of [DMS] from the jurisdiction
of England and Wales, and his retention outside the jurisdiction is wrongful within the
meaning of Article 3 of the Hague Convention 1980.” Id. at p. 2.
Findings of Fact & Conclusions of Law & Order – p. 2

David filed a complaint against Vickie in this Court on November 30, 2017,
alleging that her removal of DMS was wrongful under Article 3 of the Hague
Convention, and asking for an Order that DMS be returned to England. On December 6,
2017, this Court issued an ex parte temporary restraining order (TRO) enjoining Vickie
from removing DMS from Idaho pending a hearing on the complaint’s request to return
him to England. That evidentiary hearing has now been held, and the case is ready to be
resolved.
CONCLUSIONS OF LAW
The United States and the United Kingdom are signatories to the Hague
Convention on the Civil Aspects of International Child Abduction. The goal of the
Convention is “to secure the prompt return of children wrongfully removed to or retained
in any Contracting State; and . . . to ensure that rights of custody and of access under the
law of one Contracting State are effectively respected in the other Contracting States.”
See Hague Convention, art. 1. The Signatories perceived that parents were wrongfully
taking their children across international lines “in search of a more sympathetic court” for
custody proceedings. Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1181 (9th Cir. 2002).
The Convention sought to eliminate this motivation by allowing for the prompt return of
abducted children. Id. at 1182. Congress implemented the Convention through the
International Child Abduction Remedies Act (ICARA).
Wrongful Removal
To prevail under ICARA, David must show that DMS was “wrongfully removed”
by Vickie “within the meaning of the [Hague] Convention.” See 22 U.S.C. § 9003
Findings of Fact & Conclusions of Law & Order – p. 3

(e)(1)(A). Generally, a court must return a wrongfully abducted child. Von Kennel, 282
F.3d at 1182. The Convention does not extend to custody determinations but simply
restores the pre-abduction status quo by allowing for the return of a wrongfully abducted
child. Id. The Convention, in Article 3, states that a child’s removal is “wrongful” if “it
is in breach of rights of custody” under the law of the jurisdiction where “the child was
habitually resident immediately before the removal . . . .” See Hague Conv. Art. 3. In
determining whether Article 3 applies, the Ninth Circuit has held that a court must
answer four questions: “(1) When did the removal or retention at issue take place? (2)
Immediately prior to the removal or retention, in which state was the child habitually
resident? (3) Did the removal or retention breach the rights of custody attributed to the
petitioner under the law of habitual residence? (4) Was the petitioner exercising those
rights at the time of the removal or retention?” Papakosmas v. Papakosmas, 483 F.3d
617, 622 (9th Cir. 2007).
David has carried his burden of proving that (1) DMS was removed in May of
2017; (2) at that time, DMS was habitually residing in England; (2) the removal breached
Vickie’s assurance to the court that she would not remove DMS without David’s consent;
and (3) David was exercising his custodial rights at the time of the removal.
To put a finer point on item (2) above, Vickie deliberately violated the child
custody arrangement set forth in the United Kingdom court by bringing DMS to the
United States without permission and without any notice to either the court or David.
Vickie’s claim that an unnamed policeman told her she was excused from complying
with the London court custody order by a domestic violence law is not credible. It is
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highly unlikely that any policeman would give complex legal advice that might expose
the recipient to the serious consequences of violating a court order. Surely any police
officer giving such advice would have made some record of it, but a search of police
records revealed nothing. Moreover, any reasonable person receiving such advice would
get it in writing, given the serious consequences that follow from violating a court order.
But Vickie – who compulsively ensured that other matters were confirmed in writing –
never had the police memorialize this crucial advice. While she did proffer an email
from an Officer Green, he was not the officer who had earlier provided the advice, and in
the email he neither repeats the advice nor confirms that it was earlier given. See Exhibit
2007.
With regard to item (3) above, the Court finds that David was exercising his
custodial rights at the time of removal. The English law does not use the word “custody”
but instead speaks of “parental responsibility,” which is defined as “all the rights, duties,
powers, responsibilities, and authority which by law a parent of a child has in relation to
the child and his property.” See Haimdas v. Haimdas, 720 F.Supp.2d 183, 202 (E.D.N.Y.
2010) (quoting the United Kingdom Children Act of 1989). A finding that a parent
exercised parental responsibility under this English law has been deemed to support a
finding that he has exercised his custodial rights under the Hague Convention. Id. Here,
David was current in his child support payments, provided a home for DMS, and cooked
meals during the times he had contact periods. He was exercising his parental
responsibilities.

Findings of Fact & Conclusions of Law & Order – p. 5

David has carried his burden of showing each of the elements necessary for a
finding that DMS was wrongfully removed under the Hague Convention and the ICARA.
The Court now turns to the two defenses raised by Vickie.
Mature Child Defense
Upon a showing of wrongful removal, the child shall be returned to his habitual
residence unless the removing parent carries her burden of proving an affirmative defense
under Article 13 of the Convention. Here, Vickie Smith has raised the mature child
defense. To prevail on this defense, she must establish by a preponderance of the
evidence that (1) the child has “attained an age and degree of maturity at which it is
appropriate to take account of its views” and (2) “the child objects to being returned.”
See Hague Convention art. 13; Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir.
2016). “[T]he courts must narrowly interpret the exceptions lest they swallow the rule of
return.” Asvesta v Petroutsas, 580 F.3d 1000, 1003-04 (9th Cir. 2009).
The policy behind the mature child defense was explained in the official Hague
Conference Explanatory Report, which is recognized “as the official history and
commentary on the Convention and is a source of background on the meaning of the
provisions of the Convention.” Mozes v. Mozes, 239 F.3d 1067, 1069 n. 3 (9th Cir. 2001).
The Report provides this guidance to the Court:
[T]he Convention also provides that the child’s views concerning the
essential question of its return or retention may be conclusive, provided it
has, according to the competent authorities, attained an age and degree of
maturity sufficient for its views to be taken into account. In this way, the
Convention gives children the possibility of interpreting their own interests.
Of course, this provision could prove dangerous if it were applied by means
of the direct questioning of young people who may admittedly have a clear
Findings of Fact & Conclusions of Law & Order – p. 6

grasp of the situation but who may also suffer serious psychological harm
if they think they are being forced to choose between two parents.
However, such a provision is absolutely necessary given the fact that the
Convention applies, ratione personae, to all children under the age of
sixteen; the fact must be acknowledged that it would be very difficult to
accept that a child of, for example, fifteen years of age, should be returned
against its will.
Pérez-Vera, Explanatory Report: Hague Convention on Private International Law at ¶ 30
(1981). However, “a child’s objection to being returned may be accorded little if any
weight if the court believes that the child’s preference is the product of the abductor
parent's undue influence over the child.” See 51 Fed. Reg. at 10,510. Such influence
need not be intentional or sinister; it may simply result from the child’s retention by one
parent. Zaragoza Gutierrez v. Juarez, 2017 WL 3215659 (D. Ariz. July 28, 2017).
Even if Vickie Smith meets her burden of proving the mature child defense, the
Court has the discretion to refuse to apply the defense and “order the return of the child if
it would further the aim of the Convention which is to provide for the return of a
wrongfully removed child.” Asvesta, 580 F.3d at 1004; see also Hague International
Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. at 10,509 (“The
courts retain the discretion to order the child returned even if they consider that one or
more of the exceptions applies.”).
In this case, the Court asked DMS a lengthy series of questions designed to
determine his maturity level and his desires. The Court was impressed with his
intelligent and articulate answers. On the basis of that colloquy, the Court finds (1) that
DMS is mature enough that the Court should take his desires into account, and (2) that
DMS desires to remain in the United States. Given these findings, and the authority
Findings of Fact & Conclusions of Law & Order – p. 7

quoted above, it would be “very difficult” to return a child the age of DMS against his
will.
At the same time, DMS has not acquired close friendships here, and spends much
of his free time doing solitary indoor activities, which is what he did in the United
Kingdom. There is no evidence that he is having unique experiences here that he could
not have in the United Kingdom. He had no strong pre-removal desire to come to the
United States, but testified that he made up his mind to leave with his mother just prior to
coming here. Importantly, he testified that if he was returned to the United Kingdom, he
was not sure whether he would return to the United States when he turned sixteen.
DMS’s desire to remain here has been powerfully influenced by Vickie’s very
strong desire to remain here, as is discussed further below. While the Court cannot find
that Vickie has unduly influenced DMS, the Court finds that his desire to remain here is
largely tied to Vickie’s desire and is not a strongly held independent desire.
These findings mean either that (1) the mature child defense has not been proven;
or (2) the bare minimum elements of the mature child defense have been proven, but
DMS’s tepid and dependent desire cannot override the transcendent aim of the Hague
Convention to return a minor child wrongfully removed. Either way, the Court finds that
the mature child defense does not prevent removal.
Grave Risk Defense
Vickie argues that sending DMS back to the United Kingdom would create a
grave risk to him. Article 13(b) contains an exception to return when “there is a grave
risk that [the child's] return would expose the child to physical or psychological harm or
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otherwise place the child in an intolerable situation.” This defense is to be interpreted
narrowly, and even if proven, “a federal court retains, and should use when appropriate,
the discretion to return a child . . . if return would further the aims of the Convention.”
Asvesta v Petroutsas, 580 F.3d 1000, 1003-04 (9th Cir. 2009). Moreover, in considering
the grave risk defense, the Court “should not consider matters relevant to the merits of the
underlying custody dispute such as the best interests of the child, as these considerations
are reserved for the courts of the child's habitual residence.” Id.
Under this defense, Vickie Smith must show, by clear and convincing evidence,
that DMS, if returned to London, would experience “something greater than would
normally be expected on taking a child away from one parent and passing him to
another.” Id.; Cuellar v. Joyce, 596 F.3d 505, 509 (9th Cir. 2010). A grave risk of harm
under The Hague Convention occurs when the child faces “a real risk of being hurt,
physically or psychologically, as a result of repatriation.” Id. (quoting Blondin v. Dubois,
238 F.3d 153, 162 (2d Cir.2001)).
The Court finds no evidence of a grave risk. If the Court orders DMS returned to
the United Kingdom, and Vickie accompanies him, the custody order would remain in
effect, granting primary custody to Vickie. In that case, the issue becomes whether
David’s visitation rights will create a grave risk to DMS. After nearly twenty years of
marriage, nothing was presented to the London court to dissuade it from allowing David
those visitation rights. This narrows the issue even further: Has a grave risk arisen in the
months since that order? While David did have a physical altercation with his other son,
it was limited to a single incident, and they have since reconciled.
Findings of Fact & Conclusions of Law & Order – p. 9

Even if Vickie chooses to remain here and not accompany DMS, the Court cannot
find a grave risk is posed by David having sole custody. Vickie has claimed abuse but
several investigations by the police and military officials found no evidence to support
those claims. If David was abusive, why did Vickie agree to leave DOS with David, and
why did DOS, even after the single scuffle with David, express his desire to stay with
David? It is telling that DOS has positive views of David. See Exhibit 1010 at pg. 8.
Dr. Sheila Sturgeon Freitas, a licensed clinical psychologist, did testify that she
had a reasonable suspicion that DMS’s interactions with his father rose to the level of
psychological maltreatment. But she interviewed DMS for less than an hour – roughly
the same amount of time the Court spent with him – and did not do a formal assessment,
which would typically involve interviewing the parents. Moreover, Dr. Freitas was not
aware of the grave risk standard the Court must apply, and so did not evaluate the
severity of the maltreatment she suspected. Indeed, her evaluation seemed to be focused
on determining the best interests of DMS, an inquiry forbidden to the Court and
unhelpful to the grave risk analysis.
A more detailed assessment was done by CAFCASS, a social services agency
appointed by the UK court to evaluate the children’s living situation. The Family Court
Advisor who prepared the report, was “struck by the vehement hostility that [DMS]
displayed about this father” and noted that DMS “used the same language and gave me
the same examples of what he considered to be his father’s inappropriate behavior as his
mother had.” See Exhibit 1010 at p. 7. In another section of the report, the Advisor
returns to this observation: “[T]he narrative that [DMS] has used when describing his
Findings of Fact & Conclusions of Law & Order – p. 10

father . . . is almost word for word what his mother had told me and the same examples
were used in order to demonstrate [David’s] negative attitudes and behavior.” Id. at p.
18. The Advisor was concerned that DMS “is becoming overly involved and responsible
for how his mother feels and that this in turn is further damaging his relationship with his
father.” Id. While the Advisor ultimately concludes that it would be “harmful” to
consider DMS living with David, it appears that conclusion is based in large part on
Vickie having influenced DMS against David, not on misconduct on David’s part toward
DMS. Indeed, in a separate letter to the court, an Advisor concludes that there are “no
significant safeguarding concerns in relation to the parties.” See Exhibit 1006 at p. 4.
The Court can find no evidence of grave risk in the CAFCASS reports or in the
testimony of Dr. Freitas and Vickie. Accordingly, the Court rejects the grave risk
defense.
Conclusion
The Court finds that DMS, a minor child, was wrongfully removed from the
United Kingdom under the terms of the Hague Convention and the International Child
Abduction Remedies Act. The Court will grant the petition seeking to have DMS
returned to the United Kingdom.
An agreement between the parties on the details of DMS’s return is obviously the
best solution. Counsel for the parties shall contact the Court (by contacting Law Clerk
Dave Metcalf at 208-334-9025 or [e-mail]) within five (5) days
from the date of this decision about whether they were able to reach such an agreement.
In the absence of an agreement within that five-day period, a compulsory remedy is set
Findings of Fact & Conclusions of Law & Order – p. 11

forth in the Order section below. The Court will issue a separate Judgment as required by
Rule 58(a).
ORDER
In accordance with the Findings of Fact and Conclusions of Law set forth above,
NOW THEREFORE IT IS HEREBY ORDERED Petitioner-Plaintiff’s Petition for
Return of Child Pursuant to the Hague Convention (Docket No. 1) shall be, and the same
is hereby, GRANTED.
IT IS FURTHER ORDERED that the parties shall attempt to reach agreement on
the details of returning DMS to the United Kingdom.
IT IS FURTHER ORDERED, that counsel shall notify the Court within five (5)
days from the date of this decision as to whether an agreement has been reached.
IT IS FURTHER ORDERED, that if no agreement is reached, the Court will
impose the following requirements on the parties to govern the return of DMS to the
United Kingdom.
IT IS FURTHER ORDERED, that DMS shall be returned to England, United
Kingdom, to the temporary care of his father, David Neil Smith, pursuant to the Child
Arrangements Orders previously entered by Family Court Norwich Sitting at King’s
Lynn on October 12, 2016 and March 30, 2017, FORTHWITH. To facilitate this return,
Ms. Vickie Michelle Smith is ordered to bring DMS before the Court at a time and place
to be determined by the Court. At that time, custody of DMS for purposes of the return
will be transferred to counsel for Mr. David Smith. Ms. Vickie Michelle Smith is ordered
to bring the British and United States passports for DMS and provide them to counsel for
Findings of Fact & Conclusions of Law & Order – p. 12

Mr. David Smith to facilitate DMS’s return to England. Counsel for Mr. David Smith
shall proceed to place DMS on the next reasonably available commercial air flight from
Boise to London, England, making appropriate arrangements for DMS to travel as an
unaccompanied minor.
IT IS FURTHER ORDERED that Ms. Vicki Michelle Smith is directed to
cooperate in the coordination and return of DMS to England.
IT IS FURTHER ORDERED that within 14 days after DMS has been returned to
England, Mr. David Smith may submit a motion for costs and fees, accompanied by a
final list of his incurred expenses, including court costs, legal fees, foster home or other
care during the course of proceedings in the action, and transportation costs related to the
return of DMS
IT IS FURTHER ORDERED that within 14 days after Mr. David Smith files his
motion for costs and fees, Ms. Vickie Michelle Smith may file a response brief.
IT IS FURTHER ORDERED that the United States Marshals service is directed to
assist in the execution of this Order as necessary, and the United States Marshals Service
may enlist the assistance of other law enforcement authorities, including the local police,
as necessary to aid in any aspect of securing the safe return of DMS to England.
IT IS FURTHER ORDERED that should Ms. Vickie Michelle Smith fail to
produce DMS for the transfer of physical custody for return purposes as directed in this
Order, Mr. David Smith is authorized to arrange for the pick-up of the child at the child’s
residence or school, using the assistance directed in the previous paragraph. Following
such pick-up, DMS should be returned as directed in paragraph 2 of this Order.
Findings of Fact & Conclusions of Law & Order – p. 13

IT IS FURTHER ORDERED that this Order supersedes the Court’s December 6,
2018 Memorandum Decision and Order (Docket No. 4) and the Parties’ Stipulation
(Docket No. 6) that DMS not be removed from the District of Idaho pending a
determination on the merits of the Petition.

DATED: February 20, 2018

_________________________
B. Lynn Winmill
Chief U.S. District Court Judge

Findings of Fact & Conclusions of Law & Order – p. 14