Sundberg v. Bailey

Filing 11

MEMORANDUM OF DECISION AND ORDER granting Petitioner's 9 Emergency Motion to Stay of State Court Custody-Only Proceedings; FURTHER ORDERED that Temporary Emergency Custody Order, issued by the Buncombe County District C ourt on 11/15/2017, is void and has no legal effect; FURTHER ORDERED that the Clerk is directed to forward a copy of this Order to the Clerk of Superior Court of Buncombe County, NC for filing in the Court File of Lisa M. Bailey v. Karl H. Sundberg, File No. 17-CVD-1829. (See Order For Further Details.) Signed by District Judge Martin Reidinger on 11/28/17. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00300-MR-DLH

KARL HENRIK SUNDBERG,

)
)
Petitioner,
)
)
vs.
)
)
LISA MICHELLE BAILEY,
)
)
Respondent.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Petitioner’s Emergency
Motion to Stay State Court Custody-Only Proceedings [Doc. 9].
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Petitioner Karl Henrik Sundberg (“Petitioner”) initiated this action

against Lisa Michelle Bailey (“Respondent”) on November 1, 2017, by filing a
Verified Petition pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M.
1501 (“the Hague Convention”) and the provisions of the International Child
Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (“ICARA”), seeking the
return of the Parties’ four-year-old daughter, L.P.B.S. (“Minor Child”) to
Sweden. [Verified Petition, Doc. 1].

According to the Verified Petition, the Petitioner and the Respondent
(collectively, “the Parties”) were married on June 29, 2013, in Sweden. [Id.
at ¶ 11]. They were divorced on August 13, 2015, in Uppsala, Sweden. [Id.
at ¶ 12]. Attached to the Verified Petition is a copy of a Judgment from a
Swedish District Court, entered on August 13, 2015, granting the Parties a
divorce and stating that the Parties “still share custody of” the Minor Child.
[Divorce Judgment, Doc. 1-5 at 2].
In August 2016, the Parties entered into a written agreement pursuant
to which the Respondent brought the Minor Child to the United States in order
“to spend several months.”

[Parties’ Agreement, Doc. 1-7 at 2].

The

Agreement further provides that [i]n May 2017, [the Parties] will determine a
future agreement about [the Respondent and the Minor Child’s] residence
and a plan for continuing shared custody of [the Minor Child].” [Id.].
The Respondent, by and through counsel, filed a civil complaint for child
custody against the Petitioner in the Buncombe County District Court on April
19, 2017.

[See Bailey v. Sundberg, No. 17-CVD-1829, Temporary

Emergency Custody Order entered Nov. 15, 2016, Doc. 9-1 at 1]. The
Petitioner has not filed an answer in the state court case, and has not made
an appearance at any hearing in that case, due to his legal contention that

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the Minor Child has been wrongfully retained by the Respondent in North
Carolina, since May 2017.
The Petitioner sought to vindicate his rights under the Hague
Convention by initiating the diplomatic process through the relevant Central
Authorities that are part of the Convention’s structure. On or around July 6
2017, the state court judge presiding over the Respondent’s custody action
received a letter from the U.S. Department of State’s Office of Children’s
Issues (“State Department Letter”), advising that the Petitioner had filed an
application seeking the return of the Minor Child to Sweden under the Hague
Convention and that the application was still pending. [State Dep’t Letter
dated July 6, 2017, Doc. 1-12]. The State Department Letter was filed in the
state court custody case (filed-stamped date illegible). [Id.]. The Respondent
was copied on this letter. [Id. at 2].
The State Department sent another letter to the Respondent on July 21,
2017, requesting that the Respondent voluntarily return the child to Sweden
in order to settle the custody issue and setting a deadline of August 4, 2017
to respond.

The letter further advised that if she did not respond, the

Petitioner might initiate judicial proceedings to determine a return of the minor
child. [State Dep’t Letter dated July 21, 2017, Doc. 1-13]. No voluntary return

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occurred, leading the Petitioner to pursue his judicial remedies under the
Hague Convention.
The Petitioner served the Respondent with a summons and a copy of
the Verified Petition on November 11, 2017, via Federal Express. [See
Affidavit of Service, Doc. 5]. On November 14, 2017, a deputy from the
Buncombe County Sheriff’s Office served a summons and a copy of the
Verified Petition on the Respondent at her home address in Asheville by
leaving the documents with the Respondent’s adult housemate.

[See

Executed Summons, Doc. 6].
On November 15, 2017, as the Petitioner was on his way to North
Carolina for a visit with the Minor Child, and unbeknownst to him, the state
court issued a “Temporary Emergency Custody Order,” which purports to
award sole legal and physical custody of the Minor Child to the Respondent
Mother and to restrict the Petitioner’s visitation rights to supervised visits
lasting only a few hours at a time.

[Temporary Emergency Custody Order

entered Nov. 15, 2016, Doc. 9-1].
The Petitioner now moves for an emergency order to stay the state
court custody proceedings initiated by the Respondent and for a declaration
that the state court’s Temporary Emergency Custody Order is void and of no
legal effect. [Doc. 9].
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II.

DISCUSSION
ICARA provides, in pertinent part, that “[a]ny person seeking to initiate

judicial proceedings under the [Hague] Convention for the return of a child ...
may do so by commencing a civil action by filing a petition for the relief sought
in any court which has jurisdiction of such action . . . .” 22 U.S.C. § 9003(b).
State courts and United States district courts have concurrent jurisdiction of
cases arising under the Hague Convention. 22 U.S.C. § 9003(a). Here, the
Petitioner chose to file his petition in the federal court system. Although the
state custody proceeding initiated by the Respondent was pending at the time
of the commencement of the Petitioner’s action in this Court, it does not
appear that any issue has been raised before the state court regarding the
return of the Minor Child under the Hague Convention. As such, this Court
has the exclusive jurisdiction to determine the merits of the Verified Petition.
See Friedrich v. Thompson, No. 1:99CV00772, 1999 WL 33954819, at *3-4
(M.D.N.C. Nov. 26, 1999) (finding that federal court had exclusive jurisdiction
over wrongful removal of child despite ongoing child custody action in state
court).
Article 16 of the Hague Convention provides, in pertinent part, as
follows:
After receiving notice of a wrongful removal or
retention of a child . . . , the judicial or administrative
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authorities of the Contracting State to which the child
has been removed or in which it has been retained
shall not decide on the merits of rights of custody until
it has been determined that the child is not to be
returned under this Convention or unless an
application under this Convention is not lodged within
a reasonable time following receipt of the notice.
Hague Convention, art.16, T.I.A.S. No. 11,670, at 5, 19 I.L.M. at 1503. Thus,
the Convention requires that the merits of any ongoing custody dispute be
stayed pending the outcome of the application for return. Here, the state
court received notice of the Petitioner’s claim that the Minor Child was
wrongfully retained by the July 6, 2017, State Department Letter directed to
the state court. [See State Dep’t Letter, Doc. 1-12]. The state court was also
aware at the time of the entry of the Temporary Emergency Custody Order
that the Petitioner had initiated judicial proceedings under the Hague
Convention and ICARA against the Respondent, as evidenced by the fact
that the state court judge referenced the ongoing federal proceeding in her
order. [Temporary Emergency Custody Order, Doc. 9-1 at 3 ¶ 9]. Having
received notice of the Petitioner’s claim of wrongful removal and the
proceedings undertaken pursuant to the Hague Convention, the state court
lacked authority to enter an order affecting the parties’ “rights of custody”

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within the meaning of Article 16.1 Accordingly, the Court concludes that the
state court’s Temporary Emergency Custody Order awarding the Respondent
sole legal custody is void and is of no effect, as required by Article 16.
The Parties shall continue to exercise their rights of custody as
determined by the courts of Sweden pending the final determination of the
Petitioner’s application for return. See Miller v. Miller, 240 F.3d 392, 398 (4th
Cir. 2001) (noting that “the 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.’”) (quoting Friedrich v.
Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993)). Either party may petition this
Court for such interim measures, as appropriate, to protect the well-being of
the Minor Child or to prevent the Minor Child’s further removal or concealment
pending the final disposition of the Petition pending before this Court. See
22 U.S.C. § 9004(a).

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Under Article 16, the only exception to the prohibition on rendering a custody
determination is when “an application under this Convention is not lodged within a
reasonable time following receipt of the notice.” Id. The state court in the present case,
however, made no findings regarding the timeliness or untimeliness of the Petitioner’s
petition, and therefore, this exception does not appear to be applicable .
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ORDER
IT IS, THEREFORE, ORDERED that the Petitioner’s Emergency
Motion [Doc. 9] is GRANTED, and the action now pending before the District
Court Division of the General Court of Justice, State of North Carolina, County
of Buncombe, captioned Lisa M. Bailey v. Karl H. Sundberg, File No. 17-CVD1829, regarding the Minor Child L.P.B.S., is hereby STAYED pending the
determination of the instant action. In accordance with this Order, the abovereferenced State Court is not to hold any further hearings regarding custody
of the Minor Child until the instant action is resolved. More particularly, the
State Court shall not hold the hearing presently scheduled for December 11,
2017.
IT IS FURTHER ORDERED that the Temporary Emergency Custody
Order, issued by the Buncombe County District Court on November 15, 2017,
is void and has no legal effect. Consequently, the status quo ante regarding
the Parties’ custody rights is hereby restored, to wit: Lisa M. Bailey and Karl
H. Sundberg share joint custodial rights over the Minor Child, L.P.B.S. Either
party may petition this Court for such interim measures, as appropriate, to
protect the well-being of the Minor Child or to prevent the Minor Child’s further
removal or concealment pending the final disposition of the Petition pending
before this Court.
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IT IS FURTHER ORDERED that the Clerk is directed to forward a copy
of this Order to the Clerk of Superior Court of Buncombe County, North
Carolina for filing in the Court File of Lisa M. Bailey v. Karl H. Sundberg, File
No. 17-CVD-1829.
IT IS SO ORDERED.
Signed: November 28, 2017

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