Caton v. Caton

Filing 25

REPORT AND RECOMMENDATION by Magistrate Judge Kimberly E. West (Re: 3 Verified Petition); Objections to R&R due by 1/24/2014(lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TOBY CATON,
Petitioner,
v.
BRANDI NICOLE CATON,
Respondent.

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Case No. CIV-13-547-JHP

FINDINGS AND RECOMMENDATION
This

action

was

commenced

by

Petitioner

Toby

Caton

(“Petitioner”) pursuant to the Hague Convention on the Civil
Aspects of International Child Abduction and the International
Child Abduction Remedies Act.

Petitioner alleges that Respondent

Brandi Nicole Caton (“Respondent”), the mother of their minor son,
P.M.C., wrongfully removed the child from the United Kingdom and
wrongfully retains the child in the United States of America.
Petitioner seeks the return of P.M.C. to the United Kingdom for
adjudication on the issue of custody.
By Order entered January 7, 2014, United States District Judge
James H. Payne, the presiding judge over this case, referred the
Petition to the undersigned for the purpose of entering Findings
and a Recommendation as to the final disposition of the Petition.
To that end, on January 7 and continuing on January 8, 2014, this
Court

conducted

a

hearing

on

the

merits

of

the

Petition.

Petitioner appeared personally and through counsel, Stephen Cullen,
Kelly

Powers,

and

Raymond

Allred,

while

Respondent

appeared

personally and through counsel, Anthony Allen and Geri Wisner.
Based upon the evidence presented at trial and the arguments of
counsel, this Court hereby enters the following findings of fact
and conclusions of law in conformity with Fed. R. Civ. P. 52.
FINDINGS OF FACT
1.

Petitioner is a citizen of the United Kingdom while Respondent

is a citizen of the United States of America.
2.

Petitioner and Respondent were married in La Jolla, California

on January 3, 2010.

At the time of the marriage, Petitioner had

two minor children from a previous marriage, E.V.C. and T.L.C.,
sharing joint custody with his former spouse.

Respondent had one

minor child from a previous relationship, J.A.H.
3. Upon being married, Petitioner and Respondent agreed to live in
Surrey, England, Petitioner’s home residence.

The couple traveled

to England accompanied by J.A.H. as well as E.V.C. and T.L.C. with
the intention that all were to live together under one roof.
Respondent resided in England under a marriage visa, which allowed
her to remain in the country indefinitely for the first two years
and allowed her to work in the United Kingdom.
4. In the marriage, Petitioner was the bread winner, working in IT
sales which required traveling locally and abroad upon occasion.
Respondent remained in the home with the children.
5.

On October 21, 2011, P.M.C., a son, was born to Petitioner and

Respondent in Surrey, England. At the time, P.M.C. began receiving

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a Child Benefit from the government in England, which is a payment
intended to assist in the raising of the child.

Respondent also

received between $1,000.00 and $1,500.00 monthly in child support
from Vance Holmes (“Holmes”), the father of J.A.H., who resided in
the United States.
6.

Problems developed in the marriage almost immediately which

Respondent

contends

led

to

incidents

of

“domestic

violence.”

Respondent testified that on the first night of their marriage, she
decided to get out of bed and find some wine.

Petitioner advised

that no stores would be open but Respondent decided to go out in
any event. A restaurant was near their home and Respondent went in
for a beer.

She was gone for about an hour when Petitioner

appeared “in a rage”, screamed at her, called her names, and pulled
her around until her sweater tore.

Petitioner drove away but

returned to ask the bartender about Respondent’s actions while she
had been in the restaurant.
Arguments continued between the couple primarily concerning
financial

issues

and

Respondent’s

responsibilities

with

the

children such taking the children to school which was some distance
from their home. Respondent cited one “violent incident” involving
Petitioner’s breaking of an air purifier.
7.

Another incident cited by Respondent occurred in December of

2010 when the father of J.A.H. came to England.

Respondent and

Holmes left together for dinner at Holmes’ hotel to discuss issues

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concerning J.A.H..

After dinner, Respondent was waiting on Holmes

and sat down at a table with two gentlemen.

Petitioner drove up to

the hotel, screaming at Respondent. When Respondent returned home,
she discovered Petitioner had broken dishes and jars on the floor.
Although the children were present in the home, Respondent did not
make any allegation that Petitioner had harmed, threatened, or
committed any violence to them.
Respondent testified of a pattern occurring every three to
four weeks whereupon Petitioner and Respondent would fight and then
resolve their differences.

Respondent stated, however, that at no

time did Petitioner engage in physical violence with her while she
was pregnant with P.M.C.
8.

Respondent also testified she vacationed with Petitioner after

P.M.C. was born to Cornwall, England. Respondent had returned from
Texas where she had taken J.A.H. for visitation with Holmes and
P.M.C. had accompanied her.

While in Cornwall in May of 2013,

Petitioner and Respondent discussed Respondent’s desire to return
to live in the United States.

Petitioner allegedly “blew up” and

told Respondent that she would never take P.M.C. to America.
Respondent went for a walk and was gone for two hours.

When she

returned, Petitioner allegedly screamed at Respondent, telling her
he had been looking for her and knocked a beer out of her hand.
Petitioner loaded the car to return to their home but Respondent
would not allow him to drive.

The couple engaged in mutual

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physical “pushing and pulling”.

Respondent pushed Petitioner and

he pushed her back into a picnic table, which injured her back.
Respondent testified she told Petitioner she wanted a divorce. The
family returned to the marital home.

Respondent was attended by a

physician for her injury.
9. After this incident, Petitioner and Respondent became separated
on May 27, 2013.

Respondent then sought services in Surrey,

England for assistance in domestic violence.

Because Respondent

was placed on a list for a place to live, she moved in with a
friend.

In

the

interim,

it

was

determined

by

the

Surrey

governmental agency that Respondent’s visa stated she could have no
access to public funds and all of her requests for assistance were
denied. Additionally, Petitioner states that he began paying child
support to Respondent through a government child support agency at
this time.
10.

Respondent’s and J.A.H.’s visas were also set to expire in

September of 2013.

They did not, however, possess the necessary

funds to pay for the renewal of the visas.

Respondent then

determined that she could obtain temporary access to public funds
due to her condition of financial destitution and allegations of
domestic violence. Respondent received public assistance for three
months.

This assistance did not alter the expiration date of the

visas.
11.

Petitioner and Respondent attempted to go through marriage

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counseling in July of 2013 while they were separated.

Respondent

stated they only attended one session. Respondent attended therapy
and also obtained antidepressants and anti-anxiety medication.
12.

Petitioner also stated that Respondent called the police at

one time in July of 2013 alleging assault.
prosecuted.

No charges were ever

Petitioner testified he was bloody from Respondent

hitting him but lied and explained he was injured playing football.
13.

Respondent testified Petitioner was never violent with P.M.C.

She stated Petitioner was “verbally abusive” to J.A.H. but that
there were no such episodes after P.M.C. was born as he served as
a “pacifier.”
14.

Respondent stated she left the marital home on May 30, 2013

but wanted to return to obtain more of her belongings.

Petitioner

refused her request and changed the locks on the home.

Respondent

obtained access to the home surreptitiously.

She discovered the

floor of J.A.H.’s room was covered with broken Lego toys, a torn
picture, and a destroyed video game.
15.

Respondent stated Petitioner never “connected with” J.A.H.,

used a gruff, angry tone with him, used profanity toward him, and
turned on him when Petitioner and Respondent fought.

Petitioner,

however, never exhibited such behavior or attitude toward P.M.C.
16.

Respondent is currently pregnant with the couple’s second

child with a due date in late January or early February of 2014.
17.

Respondent stated the couple had a conversation concerning

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Respondent’s return to the United States because she was unhappy in
England.
18.

Respondent testified Petitioner “agreed to discuss it.”

After Respondent left the marital home in May of 2013,

Petitioner went to the Guilford County Court and obtained a
prohibitive steps order against Respondent on June 4, 2013.

Both

Petitioner and Respondent appeared at a hearing on the request.
Petitioner stated the judge informed Respondent that she could not
take P.M.C. out of the country without permission and to do so
would constitute child abduction.
P.M.C. from England.

Respondent agreed not to remove

Petitioner testified that he never approved

of Respondent taking P.M.C. out of England to live elsewhere.

On

one occasion, Respondent was required to take J.A.H. back to the
United States for visitation with Holmes and returned to court to
obtain permission.

Respondent pleaded with Petitioner to allow

P.M.C. to travel with her to the United States and promised not to
take P.M.C. to live in the United States.
cancelled the prohibitive steps order.

Petitioner agreed and
Respondent went to the

United States for approximately six weeks but returned to England
in August of 2013 and lived in a flat down the street from the
marital home.
19.

Upon Petitioner’s return from a business trip in August of

2013, Respondent informed Petitioner that she was pregnant with
their second child and the couple agreed to reconcile.

Respondent

returned to the marital home on September 27, 2013.

Petitioner

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testified that the couple did not discuss any further separation
but

did

begin

discussions

concerning

the

children

and

their

activities.
20. On October 9, 2013, Petitioner returned home from work to find
Respondent’s car keys pushed through the letter box and furniture
missing from the marital home.

Petitioner found a letter on the

bed from Respondent which informed him that she had left with
J.A.H., P.M.C., and, of course, their unborn child to go “home.”
Petitioner telephoned a friend to discover Respondent had taken a
flight to Dallas, Texas.

He also telephoned the police.

He

retained the services of solicitors within days of Respondent
leaving to being the process of seeking the return of P.M.C.
21. Petitioner states that he only recently discovered that P.M.C.
was at Respondent’s parents’ home in Durant, Oklahoma, although he
had regularly utilized Skype to visit with P.M.C. since November of
2013.
22. On October 21, 2013, Petitioner filed an application under the
Hague Convention.

On December 20, 2013, Petitioner filed the

subject Verified Petition for Return of Child to the United Kingdom
and requested a show cause order.

A show cause order was entered

by District Judge Payne on December 27, 2013 which prohibited
Respondent from removing P.M.C. from the jurisdiction of this
Court.
23.

This Order remains in effect.

No divorce or custody proceedings have yet been initiated by

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either Petitioner or Respondent in the United Kingdom or United
States.
CONCLUSIONS OF LAW
A.

Petitioner brings this action under the auspices of the Hague

Convention on the Civil Aspects of International Child Abduction
(“Hague Convention”) and as implemented in the United States by the
International Child Abduction Remedies Act (“ICARA”).

This Court

possesses the requisite jurisdiction to determine whether P.M.C.
was wrongfully removed from the United Kingdom and wrongfully
retained in the United States.
determine

which

of

these

In so doing, this Court must also

two

countries

represent

“habitual residence” under the Hague Convention.

P.M.C.’s

42 U.S.C. §

11603(b).
B.

The Hague Convention “. . . establishes legal rights and

procedures

for

the

prompt

return

of

wrongfully removed or retained . . . .”

children

who

have

been

42 U.S.C. § 11601(a)(4);

Lops v. Lops, 140 F.3d 927, 935 (11th Cir. 1998).

The United

States became a signatory to the Hague Convention in 1988.

42

U.S.C. § 11601(b).

The United Kingdom is also a signatory to the

Hague Convention.

The primary purpose of the Hague Convention on

Civil Aspects of International Child Abduction “is to preserve the
status

quo

and

to

deter

parents

from

crossing

international

boundaries in search of a more sympathetic court.”

Freidrich v.

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

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C.

The Hague Convention strives “to secure the prompt return of

children wrongfully removed to or retained in any Contracting
State” and “to insure that rights of custody and of access under
the law of one Contracting State are effectively respected in the
other Contracting States.”

Hague Convention, Art. 1(a) and (b).

Article 3 of the Hague Convention defines the “wrongful retention”
of a child under its terms as follows:
a)

it is in breach of rights of custody attributed to
a person, . . . under the law of the State in which
the child was habitually resident immediately
before the . . . retention; and

b)

at the time of the . . . retention these rights
were actually exercised, either jointly or alone,
or would have been so exercised but for the . . .
retention.

51 Fed. Reg. 10,493 at 10,506 (1986).
It is not this Court’s function to delve into the merits of
the underlying custody dispute.

Friedrich, 983 F.2d at 1400.

Rather, this Court’s purpose in this Order is to determine whether
P.M.C. has been “wrongfully retained” in a country different from
his “habitual residence” and, if so, whether any of the Hague
Convention’s defenses apply to bar P.M.C.’s return to his habitual
residence, as that term is defined by the Hague Convention as
codified in the statutes of the United States.
D.

In the United States, the ICARA establishes the procedures for

the implementation of the Hague Convention by defining the burdens
of proof for the various claims and defenses recognized under the

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Hague Convention.

42 U.S.C. § 11601 et seq.

Specifically, the

ICARA requires the petitioner under the Hague Convention establish,
by a preponderance of the evidence, that the child whose return is
sought has been “wrongfully removed or retained within the meaning
of the Convention.”

42 U.S.C. § 11603(e)(1)(A).

The Hague

Convention reflects a “strong presumption favoring the return of a
wrongfully removed [or retained] child.” Danaipour v. McLarey, 286
F.3d 1, 13 (1st Cir. 2002)(bracketed information added by this
Court).
E.

If a petitioner establishes by a preponderance of the evidence

that a respondent’s removal or retention of a child was wrongful
within the meaning of the Hague Convention, the child’s return is
required unless the respondent can establish one of the Hague
Convention’s affirmative defenses by clear and convincing evidence.
42 U.S.C. § 11603(e)(2); Nunez-Escudero v. Tice-Menley, 58 F.3d
374, 376 (8th Cir. 1995).

These defenses include: (1) the person

seeking return of the child consented to or subsequently acquiesced
in the removal or retention; (2) the proceeding was commenced more
than one year after the removal of the child; (3) the child has
become settled in his new environment; (4) there is a grave risk
that the return of the child would expose him to physical or
psychological harm.

See, Hague Convention Art. 13.

A court

applying these exceptions is compelled to construe them narrowly.
Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995).

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“In fact, a

federal

court

retains,

and

should

use

when

appropriate,

the

discretion to return a child, despite the existence of a defense,
if return would further the aims of the Convention.”

Miller v.

Miller, 240 F.3d 392, 402 (4th Cir. 2001).
F. While the Hague Convention does not itself define what it means
to be an "habitual resident," courts have concluded that the term
refers to a child's customary residence prior to his removal. See
Miller, 240 F.3d at 400 (citing Friedrich v. Friedrich, 983 F.2d
1396, 1401); Rydder, 49 F.3d at 373.

Although this inquiry

necessarily proceeds on a case-by-case basis, see Id. (citations
omitted),

it

focuses

not

upon

a

child's

domicile,

or

legal

residence, but where the child physically lived for "an amount of
time sufficient for acclimatization and which has a 'degree of
settled

purpose'

from

the

child's

perspective."

Silverman

v.

Silverman, 312 F.3d 914, 916 (8th Cir. 2002)(citing Feder v. EvansFeder, 63 F.3d 217, 224 (3rd Cir. 1995)).
G.

Clearly, a parent cannot create a new habitual residence by

wrongfully removing and sequestering a child.

Miller, 240 F.2d at

400; Diorinou v. Mezitis, 237 F.3d 133, 142 (2nd Cir. 2001); NunezEscudero v. Trice-Menley, 58 F.3d 374, 379 (8th Cir. 1995);
Freidrich, 983 F.2d at 1402. The preponderance of the evidence has
unequivocally established that Respondent wrongfully removed P.M.C.
from his habitual residence in the United Kingdom when she departed
and took the child to the United States on October 9, 2013.

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She

continues to wrongfully retain P.M.C. in the United States in
violation of the Hague Convention.

Since Petitioner established a

prima facie case for the return of P.M.C. under Art. 3 of the Hague
Convention, this Court is obligated to determine whether Respondent
has sustained her burden of establishing any of the affirmative
defenses to the Hague Convention.

42 U.S.C. § 11601(a)(4).

H. Respondent has obliquely implicated the defense that Petitioner
consented to or acquiesced in the removal of P.M.C. to the United
States in agreeing to discuss the matter at one time.

Nothing in

the evidence indicates that Petitioner agreed to the removal of the
child from the United Kingdom. Indeed, Petitioner took legal steps
on at least two occasions to insure that Respondent did not take
P.M.C. to live in the United States - first, in obtaining the
prohibitive steps order and, second, in filing the Hague Convention
application.

An agreement to discuss Respondent living in the

United States certainly does not represent and expression of
consent or acquiescence.
I.

The second and more developed argument concerns the defense

that a grave risk exists that the return of P.M.C. to the United
Kingdom will expose him to physical or psychological harm or abuse.
A “grave risk” requires that “the ‘potential harm to the child must
be severe, and the level of risk and danger . . . very high.’” West
v. Dobrev, 735 F.3d 921, 931 (10th Cir. 2013) quoting Souratgar v.
Lee, 720 F.3d 96, 103 (2nd Cir. 2013).

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The Tenth Circuit in West

discussed that in three circuit courts, it has been determined that
a “grave risk” of harm within the meaning of Art. 13(b) of the
Hague Convention occurs in at least two instances.

The return

should not be ordered in cases where it would be to a zone of war,
famine, or disease.

Additionally, a child is in “grave risk” and

should not be returned when the country of habitual residence may
be incapable or unwilling to give the child adequate protection.
Id. at 931, n.8.

Nothing in the record indicates the United

Kingdom meets either of these criteria to prevent the return of
P.M.C. to its borders.

The United Kingdom has many resources

available to provide assistance to and protection for P.M.C.
In this case, Respondent has wholly failed to meet her burden
of proving by clear and convincing evidence that P.M.C. would be
subjected to a grave risk of physical or psychological harm if
returned to the United Kingdom.

By her own admission, P.M.C. has

never been subjected to such harm by Petitioner and, in fact, he
has acted as a pacifier to the tumultuous familial environment.
Other than limited disciplinary action, none of the other children
have

been

subjected

to

physical

harm.

While

the

poisoned

atmosphere which existed in the home created less than desirable
verbal assaults upon at least J.A.H., none of the conduct by
Petitioner rises to the level of “grave risk” required under this
restricted defense to the Hague Convention’s mandate of the return
of the child to his habitual residence.

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Moreover, the apparent

cause of the tense atmosphere existing in this family has now been
removed - Petitioner and Respondent living under the same roof.
All evidence indicates that the situation will be considerably
calmer with this condition removed.
J.

This Court specifically concludes Respondent has failed to

prove by clear and convincing evidence that any of the defenses
contained in Art. 13 of the Hague Convention as codified in the
United States apply to this case.
K.

This Court must address at least two of Respondent’s counsel’s

arguments made in closing and intimated in the presentation of
evidence.

The contention that the return of the child would

violate his human rights under the Hague Convention is roundly
rejected.
contention.

Neither the evidence nor the law supports such a
Additionally,

Respondent

frequently

referred

to

P.M.C.’s status as a citizen of the Choctaw Nation, suggesting that
this citizenship somehow precluded P.M.C.’s return to the United
Kingdom. District Judge Payne has determined that the Indian Child
Welfare

Act

did

not

apply

because

implicate an issue of child custody.

this

proceeding

does

not

His tribal citizenship does

not affect his status under the Hague Convention.
L. The parties and counsel have suggested many conditions proposed
undertakings which might be better the circumstance of P.M.C. upon
his return to the United Kingdom, including permitting Respondent
to return with him when she is physically able mindful of her

15

pregnancy and be maintained in that country which issues of divorce
and custody are adjudicated.

This Court charges both the parties

and counsel to do all within their power to make this already
difficult and chaotic situation progress with the least amount of
disruption and stress to P.M.C.

While the marriage between

Petitioner and Respondent might be considered at an unfortunate
end, this Court has no doubt that both Petitioner and Respondent
desire nothing but the best for P.M.C., regardless of their
feelings for one another.

They should conduct themselves to

achieve that end.
CONCLUSION
Based upon the evidence presented in light of the governing
law, this Court concludes P.M.C. was wrongfully removed from the
United Kingdom by Respondent at time when that country represented
his habitual residence.

As a result, it is the recommendation of

this Court that Petitioner’s Verified Petition for Return of Child
to the United Kingdom be GRANTED and that the minor child should be
returned to the United Kingdom forthwith pending the resolution of
custodial issues with the appropriate court in that country.
The parties are herewith given fourteen (14) days from the
date of the service of these Findings and Recommendation to file
with the Clerk of the court any objections, with supporting brief.
Failure

to

object

to

the

Findings

and

Recommendation

within

fourteen (14) days will preclude appellate review of the judgment

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of the District Court based on such findings.
IT IS SO ENTERED this 10th day of January, 2014.

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