Lyon v. Moreland-Lyon

Filing 23

MEMORANDUM AND ORDER granting Kevin Lyon's Verified Petition for Return of Child to England and Issuance of Show Cause Order. Signed by District Judge J. Thomas Marten on 6/1/2012. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KEVIN LYON,
Plaintiff,

vs.

Case No. 12-2176-JTM

LISA MORELAND-LYON,
Defendant.

MEMORANDUM AND ORDER
This matter comes to the court on petitioner Kevin Lyon’s Verified Petition for Return of
Child to England and Issuance of Show Cause Order (Dkt. No. 1). Mr. Lyon seeks the return of his
three-year-old son, F.M.S.L., to England under the Hague Convention on the Civil Aspects of
International Child Abduction, done Oct. 25, 1980, T.I.A.S. 11670, 1343 U.N.T.S. 89, reprinted in
51 Fed. Reg. 10,494 (1986) made applicable to the United States by the International Child
Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. Mr. Lyon contends the respondent,
Lisa Moreland-Lyon, the child’s mother, unlawfully removed F.M.S.L. from England to Kansas in
August 2011. Ms. Moreland-Lyon contends she did not wrongfully remove the child under the Act,
that Kansas is the child’s habitual residence, and that the Kansas state court has jurisdiction to
determine the child’s custody. She also argues that the well-settled exception applies, or that Mr.
Lyon consented and acquiesced in F.M.S.L.’s removal. She requests this court dismiss the petition
for lack of subject matter jurisdiction.
The court held a hearing on May 18, 2012, in which it announced a preliminary ruling from

the bench. This Memorandum and Order serves to memorialize the court’s earlier findings of fact
and conclusions of law. For the following reasons, the court grants Mr. Lyon’s motion and orders
that F.M.S.L. be returned to England.

I. Factual Background
Mr. Lyon and Ms. Moreland-Lyon met each other while she was on vacation in England in
1995, and he was her tour guide. He is a citizen of the United Kingdom, and she is a citizen of the
United States. They began dating by phone in 1996 and by the end of 1997 or early 1998, Ms.
Moreland-Lyon moved into Mr. Lyon’s home in Prestwich, Manchester, England. After dating for
four years, the couple married on October 28, 1999. For the next ten or eleven years, the couple
lived in Prestwich. But it was normal for Ms. Moreland-Lyon to visit her mother in Kansas annually,
coinciding with the Bonner Springs Renaissance Festival, which lasted for about seven weeks from
early September through October. Ms. Moreland-Lyon worked at the Renaissance Festival as a face
painter. She also sporadically worked at various schools as a substitute teacher. Mr. Lyon would
travel to the United States during this time for shorter visits as his work schedule allowed. While in
England, Ms. Moreland-Lyon upgraded her academic qualifications in a school in the United
Kingdom and obtained residency.
In 2008, they decided to have a child, and Ms. Moreland-Lyon became pregnant with their
son. In March 2009, she gave birth to F.M.S.L. in Manchester. She stayed in the United States for
some of the pregnancy but traveled back to England in January 2009, in part to take advantage of
England’s universal healthcare system and so that F.M.S.L. would be eligible to receive “child
benefit,” which is provided to all children born in England. Half of this child benefit was deposited

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regularly into Ms. Moreland-Lyon’s English bank account for F.M.S.L.’s benefit. Mr. Lyon has also
deposited money in this bank account for F.M.S.L. for the last three years.
Since birth, F.M.S.L. has lived in both the United States and England at various times. In the
fall of 2009, Ms. Moreland-Lyon traveled with F.M.S.L. to the United States to attend the
Renaissance Festival as she had done in the past. During their time in Kansas, they stayed with Ms.
Moreland-Lyon’s mother and stepfather in Overland Park, Kansas. Mr. Lyon visited for about a
week in October. Ms. Moreland-Lyon and F.M.S.L. returned to England in early December. The
couple spent Christmas in Manchester. From December 2009 to August 2010, Mr. Lyon, Ms.
Moreland-Lyon, and F.M.S.L. lived in England in the couple’s home and did typical family things.
In early May 2010, the couple was outbid on a home they were looking at in Prestwich, which upset
Ms. Moreland-Lyon. She was eager to move out of their home in Prestwich to this larger home
nearby.
Ms. Moreland-Lyon and F.M.S.L. traveled back to Kansas for the Renaissance Festival in
August 2010. The plan was for Ms. Moreland-Lyon to remain in Kansas for the duration of the
festival and to return to England by October 28. She did not return by that date and decided to
remain in Kansas longer. Shortly thereafter, Mr. Lyon traveled to Kansas to try and persuade her to
come back to England. Ms. Moreland-Lyon refused to return in November or December and gave
vague answers about her intentions to return to England. Near Christmas, Mr. Lyon traveled back
to Kansas so he could be with his son. He also briefly considered applying for a Green Card so that
he could pass through American airports more quickly. He did not intend to move to the United
States. Mr. Lyon testified that he did not know at the time that there were irreconcilable differences
in the marriage.

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From January 2011 through spring, Mr. Lyon pleaded with Ms. Moreland-Lyon to return to
England, to no avail. With F.M.S.L. still in the United States in early March, Mr. Lyon traveled to
Kansas again to be with him on his birthday. He stayed with Ms. Moreland-Lyon and F.M.S.L. in
an apartment in Overland Park that Ms. Moreland-Lyon was renting. Finally, Mr. Lyon spoke to Ms.
Moreland-Lyon’s mother, who eventually persuaded her to return to England with F.M.S.L. on May
11, 2011.
Mr. Lyon testified that the couple experienced happy times in their marriage during May and
June. By late June, Mr. Lyon informed Ms. Moreland-Lyon that he did not want her to take F.M.S.L.
out of England for the 2011 Renaissance Festival. She refused to leave without him. To try to
improve the situation, the couple attended three counseling sessions with a professional counselor.
The counselor suggested that they consider a family mediation service. After the counseling
sessions, but before the mediation, there was an incident concerning F.M.S.L.’s United States
passport.
One morning in mid July, Ms. Moreland-Lyon began asking Mr. Lyon about his travel times
for the day because he was scheduled to be in Liverpool. He began to feel as though Ms. MorelandLyon was about to take F.M.S.L. back to the United States, so he took F.M.S.L.’s United States
passport. He found the passport in Ms. Moreland-Lyon’s packed suitcase. A few days later, Ms.
Moreland-Lyon called the police to have F.M.S.L.’s passport returned, but Mr. Lyon refused. Soon
thereafter, the couple attended a mediation and reached an agreement on Ms. Moreland-Lyon’s visit
to the United States for the 2011 Renaissance Festival. Generally, the agreement provided that Ms.
Moreland-Lyon would leave for the United States on August 4, 2011, and return to England on
December 11, and that Ms. Moreland-Lyon and F.M.S.L. would return to the United States on

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February 1, 2012, and stay through August 14. Ms. Moreland-Lyon testified that she signed the
agreement under duress because it was the only way she would get F.M.S.L.’s United States
passport returned to her. On August 4, Ms. Moreland-Lyon and the child flew to Kansas. Mr. Lyon
drove them to the airport and paid for the tickets. Mr. Lyon traveled to Kansas in October. During
the visit he met with Barbara Lyons, Director of the Johnson County Montessori Preschool and Day
Care. The child is currently enrolled and attending the preschool.
On December 9, Ms. Moreland-Lyon informed Mr. Lyon that she was not going to return
to England on December 11 unless she had assurances from him that he would abide by the terms
of the mediated agreement. Mr. Lyon provided several written assurances that he would abide by
the agreement, yet Ms. Moreland-Lyon has refused to return to England with F.M.S.L.
At present, the child is located in the District of Kansas, living with Ms. Moreland-Lyon in
Overland Park. As in England, F.M.S.L. has a pediatrician and dentist in Kansas, and is flourishing
in his environment.
In December 2011, Ms. Moreland-Lyon initiated divorce proceedings against Mr. Lyon in
Kansas state court. The court entered Ex Parte Temporary Orders providing for rights of custody and
access to Mr. Lyon and ordered the parties to participate in mediation to come up with a permanent
parenting plan. A Decree of Divorce was entered in the case on April 16, 2012. The court found that
Ms. Moreland-Lyon and the child “have been actual residents of the State of Kansas since August
3, 2010.” The court stayed ruling on the custody of the child pending the outcome of the present
Petition for Return of Child.

II. Conclusions of Law

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Mr. Lyon filed this Petition on March 23, 2012, seeking an order from this court directing
the prompt return of the child to England. He also seeks an order directing Ms. Moreland-Lyon to
pay for his legal costs, fees, and expenses. Ms. Moreland-Lyon requests that the court dismiss the
Petition and argues that Kansas is the child’s habitual residence. The dispute is whether F.M.S.L.
was wrongfully removed from England and whether England is the child’s habitual residence.

A. Wrongful Removal and Habitual Residence
The Hague Convention, as implemented by both the United States Congress through ICARA
and by the United Kingdom, was adopted by the signatory nations “to protect children
internationally from the harmful effects of their wrongful removal or retention and to establish
procedures to ensure their prompt return to the State of their habitual residence.” Hague Convention,
preamble. The Hague Convention is meant to provide a mechanism for the child’s prompt return
once it has been shown that the child was wrongfully removed to or retained in an affiliated state.
Id., art. 1. If a court finds a child has been wrongfully removed, the court must order that the child
be returned. Id., art. 12.
Under the Hague Convention, a removal or retention 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 removal or retention.
Id., art. 3; see also In re Hague Child Abduction Application, No. 08-2030, 2008 WL 913325, at *7
(D. Kan. Mar. 17, 2008). The petitioner bears the burden of showing by a preponderance of the
evidence that the removal or retention was wrongful. 42 U.S.C. § 11603(e)(1)(A); see also Shealy

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v. Shealy, 295 F.3d 1117, 1122 (10th Cir. 2002). Specifically, the petitioner must show (1) that the
child was a habitual resident in a given state at the time of the removal or retention, (2) that the
removal or retention was in breach of the petitioner’s custody rights under the laws of that state, and
(3) that the petitioner was exercising those rights at the time of the removal or retention. Hague
Convention, art. 3; see also Shealy, 295 F.3d at 1122.

1. Habitual Residence
As noted above, Mr. Lyon must first show that the child was a habitual resident of the United
Kingdom at the time of the removal. Neither the Hague Convention nor ICARA define the term
“habitual residence.” Rather, “courts have been instructed to interpret the expression ‘habitual
residence’ according to ‘the ordinary and natural meaning of the two words it contains [, as] a
question of fact to be decided by reference to all the circumstances of any particular case.’” Mozes
v. Mozes, 239 F.3d 1067, 1071 (9th Cir. 2001) (quoting C v. S, (minor: abduction: illegitimate
child), [1990] 2 All E.R. 961, 965 (Eng. H. L.)). The court’s determination of the child’s habitual
residence is a mixed question of law and fact. Stern v. Stern, 639 F.3d 449, 451 (8th Cir. 2011).
Article 3 of the Hague Convention mentions the period immediately before an alleged wrongful
removal or retention as the relevant time to be considered. The determination requires consideration
of where the child lived before the removal, the parents’ conduct, their intentions, and any
agreements made by the parents during that time. In re Hague Child Abduction Application, 2008
WL 913325, at *7 (citing Ruiz v. Tenorio, 392 F.3d 1247, 1251-52 (11th Cir. 2004)). Further, a
determination of which state is a child’s habitual residence must focus on the child and must
consider the child’s circumstances in that state and the parents’ present, shared intentions regarding

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the child’s presence in that state. Id. (citing Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)).
The Ninth Circuit, in Mozes, has concluded that for a state to gain habitual-residence status
there must be a “settled purpose.” 239 F.3d at 1074. “The purpose may be one or there may be
several. It may be specific or general. All the law requires is that there is a settled purpose.” Id.
Essentially, settled purpose means a “settled intent” to abandon a previous habitual residence. Id.
at 1075. The settled intent is determined by looking at the intent of the parties, and “courts must
determine from all available evidence whether the parent petitioning for return of the child has
already agreed to the child’s taking up habitual residence where it is.” Id. at 1076. When a child’s
removal was initially intended to be for a specific limited period, “courts have refused to find that
the changed intentions of one parent led to an alteration in the child’s habitual residence.” Id. at
1077.
Here, F.M.S.L. has traveled back and forth from England to Kansas several times. Since birth
he has lived in England for approximately 16 months and Kansas for 14 months, not including the
last 10 months since he was removed from England. The total number of months F.M.S.L. has spent
in each country is not determinative of the habitual residence issue. As such, the court must look to
the parents’ conduct, intentions, and any agreements they may have made regarding the child’s
living arrangements before and after removal. The court finds the following facts persuasive. It is
clear from the testimony that England was the couple’s home throughout their marriage. Ms.
Moreland-Lyon lived in England throughout the marriage except during her trips to the United
States to work at the Renaissance Festival and to substitute teach. But those trips were relatively
short in duration. Mr. Lyon continued to live and work in England full-time and only traveled to the
United States for brief vacations. Additionally, F.M.S.L. was born in England. He lived in England

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for the first five months of his life, and returned to the United States only for the Renaissance
Festival in 2009, 2010, and 2011. During those three years the plan was that Ms. Moreland-Lyon
would reside in the United States with F.M.S.L. during the Renaissance Festival as she had done in
the past before he was born. Each year, Ms. Moreland-Lyon unilaterally extended those stays in the
United States without Mr. Lyon’s consent. Ms. Moreland-Lyon’s changed intentions were the sole
reason F.M.S.L. was away from England for long periods of time, and this court finds that her
unilateral actions did not change F.M.S.L.’s habitual residence. See Mozes, 239 F.3d at 1077.
Therefore, England is F.M.S.L.’s habitual residence.
In order to establish that Ms. Moreland-Lyon wrongfully removed F.M.S.L., Mr. Lyon must
also show that the removal was in breach of his custody rights under the laws of England and that
he was exercising those rights or that he would have exercised those rights absent the removal.

2. Breach of Custody Rights
It is undisputed (1) that the parties were married when Ms. Moreland-Lyon removed
F.M.S.L. from England, (2) that Mr. Lyon is F.M.S.L.’s father, (3) that the parties divorced on April
16, 2012, (4) that no court has ordered custody in this matter, and (5) that the parties had an informal
agreement regarding visitation. Mr. Lyon has rights of custody under English law under the Children
Act 1989 and the Child Abduction Act 1984. Both acts provide that couples married at the time of
a child’s birth have joint parental responsibility for the child. Ms. Moreland-Lyon does not contest
that her removal breached these custody rights. Therefore, Mr. Lyon has custody rights to F.M.S.L.,
and Ms. Moreland-Lyon’s removal of the child to the United States violated those rights.

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3. Exercising Custody Rights
It is also uncontested that Mr. Lyon was exercising his custody rights. In addition to his
personal interaction with his son, he remitted monthly sums to Ms. Moreland-Lyon’s bank account
for the benefit of F.M.S.L., he communicated with F.M.S.L. by video over the internet, and he gave
F.M.S.L. a book of pictures, which they called a “daddy book.” Thus, it is clear that Mr. Lyon has
exercised his custody rights.

B. Affirmative Defenses
Even though Mr. Lyon has proved that Ms. Moreland-Lyon wrongfully removed F.M.S.L.
from his habitual residence, she may avoid removal to England if she can show that an exception
provided in Article 13 of the Hague Convention applies. The affirmative defenses in the Hague
Convention are construed narrowly, and Ms. Moreland-Lyon has the burden of proving that an
exception applies. 42 U.S.C. § 11601(a)(4) (“Children who are wrongfully removed or retained
within the meaning of the Convention are to be promptly returned unless one of the narrow
exceptions set forth in the Convention applies.”). Even if one of the affirmative defenses applies,
whether to return the child remains in the discretion of the trial court. Hague Convention, art. 18.
There are several affirmative defenses under the Hague Convention. Ms. Moreland-Lyon has
alleged two of them: (1) that Mr. Lyon has known for over a year that Ms. Moreland-Lyon intended
to reside with the child in Kansas and that the child is well settled in Kansas; and (2) that Mr. Lyon
acquiesced and consented to the child’s residence in Kansas. Both of these defenses must be
established by a preponderance of the evidence.

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1. Well-Settled Exception
The well-settled exception provides that if proceedings are commenced more than one year
after a wrongful removal, the child should not be returned if he has become well settled in and
accustomed to the new surroundings. Hague Convention, art. 12. Here, F.M.S.L. was removed from
England to Kansas on August 4, 2011. Proceedings were commenced less than a year after that date.
Thus, this exception does not apply. Ms. Moreland-Lyon attempts to avoid the one-year barrier by
arguing that the actual removal date was August 2010, or that Mr. Lyon was on notice that she did
not intend to return to England with F.M.S.L. by December 2010. However, the facts at the hearing
do not show that F.M.S.L. was removed from England permanently until August 2011. It may have
been Ms. Moreland-Lyon’s unilateral intent in August 2010 that the child would not return to
England, but the facts show that he did return to England in 2011. And Mr. Lyon did not have reason
to believe Ms. Moreland-Lyon intended to remove their son from England in August or December
2010.
Regardless, the court is not persuaded that F.M.S.L. is well settled in Kansas simply because
he has a doctor, dentist, a preschool, and people looking after him in Kansas. The facts indicate
F.M.S.L. had those things in England too. There is no dispute that F.M.S.L. was doing well in
Kansas or that he was acclimated to living there. But he also had acclimated to life in England, and
he is young enough that he could grow accustomed to nearly any location within a short period of
time. “[I]n the abscence of settled parental intent, courts should be slow to infer from [the contacts
noted above] that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. For
these reasons, the court finds that the well-settled exception does not apply.

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2. Acquiescence and Consent Exception
Under this exception, the court is not required to return the child if it finds that the
respondent has established that the petitioner consented to or acquiesced in the removal. The consent
defense requires that the respondent show that the petitioner consented to the removal before the
removal. Acquiescence focuses on the petitioner’s conduct after removal.
Here, Ms. Moreland-Lyon argues that Mr. Lyon consented to the removal in August 2011
because he drove her and F.M.S.L. to the airport when they left England. These actions do not
indicate that Mr. Lyon consented to F.M.S.L.’s permanent removal from England. Rather, Mr. Lyon
did not really have a choice in the situation. Under the mediation agreement, Ms. Moreland-Lyon
and F.M.S.L. were scheduled to leave for the United States. Mr. Lyon merely did what was in his
nature—he drove his son and wife to the airport because he believed it was the right thing to do.
Ms. Moreland-Lyon argues that Mr. Lyon acquiesced in the removal by meeting with the
Montessori school in Johnson County. Yet this does not indicate Mr. Lyon’s acquiescence to
F.M.S.L. living permanently in Kansas. Mr. Lyon testified that he looked at the school and
ultimately enrolled his son there so that he could benefit from the opportunities the school provided.
Enrollment in the school only shows that Mr. Lyon was trying to do the best for his son despite the
couple’s marital problems. Thus, the acquiescence argument fails.

C. Attorney’s Fees
Last, Mr. Lyon has requested attorney’s fees and costs from Ms. Moreland-Lyon. ICARA
provides that “[a]ny court ordering the return of a child pursuant to an action brought under section
11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of

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the petitioner, 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 the child, unless the
respondent established that such an order would be clearly inappropriate.” 42 U.S.C. § 11607(b)(3).
At present, the parties have not presented any evidence regarding expenses or attorney’s fees.
Therefore, the court will await further briefing on this issue to determine whether an award of
attorney’s fees in this matter is appropriate.

III. Conclusion
Mr. Lyon has presented facts showing that England was F.M.S.L.’s habitual residence, that
the removal violated his custody rights, and that he was exercising those custody rights. The wellsettled exception does not apply because a year has not passed since the wrongful removal.
Additionally, the consent and acquiescence exception does not apply. Therefore, the court grants Mr.
Lyon’s petition. The court refrains from issuing an order regarding attorney’s fees at this time.
IT IS ACCORDINGLY ORDERED this 1st day of June 2012, that Kevin Lyon’s Verified
Petition for Return of Child to England and Issuance of Show Cause Order (Dkt. No. 1) is granted.
IT IS FURTHER ORDERED that neither party shall remove F.M.S.L. from Kansas until he
is returned to England. If either party removes the child in violation of this Order, the court shall
issue a warrant for the arrest of the removing party and appearance for a contempt hearing.
IT IS FURTHER ORDERED that F.M.S.L. shall be promptly returned to England. By
agreement of the parties, Mr. Lyon shall pay for the airline tickets for F.M.S.L. and for Ms.
Moreland-Lyon.
IT IS FURTHER ORDERED that Mr. Lyon’s counsel shall coordinate all other aspects of

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F.M.S.L.’s return to England with Ms. Moreland-Lyon’s counsel. The Clerk of the Court is directed
to release F.M.S.L.’s United Kingdom passport in order to facilitate his return to England.
IT IS FURTHER ORDERED that Mr. Lyon shall report F.M.S.L.’s arrival to the appropriate
United Kingdom and United States Central Authorities.
IT IS FURTHER ORDERED that the parties’ parental access to F.M.S.L. in England shall
be as agreed between the parties and their counsel pending any orders made by a court with
jurisdiction in England. Neither party shall unreasonably withhold his or her agreement to access.
IT IS FURTHER ORDERED that all issue regarding Ms. Moreland-Lyon’s living
arrangements in England shall be determined by agreement of the parties or by order of an
appropriate English court.
IT IS FURTHER ORDERED that this Order is not a determination of the merits of any
custody issue within the meaning of Article 19 of the Hague Convention.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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