Crane v. Merriman

Filing 20

MEMORANDUM OPINION and ORDER that the Verified Complaint and Petition is Granted. The Court directs that A.E.C. and R.F.A.C. be returned forthwith and placed in the physical custody of Plaintiff/Petitioner pending further order, as appropriate, of a New Zealand court or other disposition of the underlying issues. IT IS FURTHER ORDERED that Defendant/Respondent, anyone acting in concert with her and any other person with actual knowledge of this Order are restrained from taking any action that interferes or impedes the timely effectuation of the direction of this Order. Signed by Honorable Timothy D. DeGiusti on 9/14/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
IN RE THE APPLICATION OF

)
)
ROY V. CRANE,
)
)
Plaintiff/Petitioner,
)
)
v.
)
)
MONIKA G. MERRIMAN,
)
)
Defendant/Respondent. )

Case No. CIV-17-849-D

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff/Petitioner Roy V. Crane’s
(“Crane”) Verified Complaint and Petition for Return of the Children [Doc. No. 1]
pursuant to the Convention on the Civil Aspects of International Child Abduction
(the “Hague Convention” or the “Convention”) as implemented by the International
Child Abduction Remedies Act (“ICARA”), 22 U.S.C. §§ 9001 et seq.
Defendant/Respondent Monika G. Merriman (“Merriman”) timely filed an Answer
to the Verified Complaint [Doc. No. 8] and subsequently filed a Trial Brief [Doc.
No. 14]. On September 8, 2017, the Court granted Crane’s Motion for Temporary
Restraining Order [Doc. No. 10], which prohibited Merriman from removing the
couple’s minor children from this district until a determination could be made as to
the appropriateness of any further injunctive relief and the merits of the Petition

[Doc. No. 13]. On September 12, 2017, the Court held an evidentiary hearing on the
matter.
Based on the facts shown by the Verified Complaint, testimony of both
parties, evidence and argument received at the hearing, and the case record, the Court
finds that the Petition must be GRANTED, and the children returned to New
Zealand for the reasons set forth below.
As an initial matter, the Court finds it has subject matter jurisdiction over the
claims at issue. See 22 U.S.C. § 9003(a) (“The courts of the States and the United
States district courts shall have concurrent original jurisdiction of actions arising
under the Convention.”); 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the … treaties of the United States.”);
West v. Dobrev, 735 F.3d 921, 924 (10th Cir. 2013) (“ICARA provides federal
district courts with original jurisdiction (concurrently with state courts) over
petitions seeking the return of children under the Hague Convention.”). Moreover,
the Court finds it has personal jurisdiction over Merriman, who resides in this district
and was served with copies of the Verified Complaint, the Court’s Order granting
Crane’s Motion for Temporary Restraining Order, and other pertinent papers.
Merriman was given appropriate notice of the hearing and afforded the opportunity
to be fully heard. See Order, Sept. 8, 2017 at 3 [Doc. No. 13].

2

The Hague Convention “creates an international legal mechanism requiring
contracting states to promptly return children who have been wrongfully removed
to, or wrongfully retained in, their jurisdiction, without deciding anew the issue of
custody.” Navani v. Shahani, 496 F.3d 1121, 1124 (10th Cir. 2007) (citation
omitted). ICARA states that “[c]hildren 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.” 22 U.S.C. § 9001(a)(4).
“[T]he Convention seeks ‘to prevent parents from abducting children in order to
avoid the jurisdiction of courts with whose [custody] rulings they do not or believe
they will not agree.’” West, 735 F.3d at 929 (quoting Shealy v. Shealy, 295 F.3d
1117, 1121 (10th Cir. 2002)). Stated another way, “[t]he principal aims of the
Convention are to ‘prevent an international version of forum-shopping,’ ‘defeat
attempts to re-litigate custody matters,’ and ‘facilitate custody adjudications,
promptly and exclusively’ in the child’s country of residence[.]” See id. (citing
Navani, 496 F.3d at 1128-29; Chafin v. Chafin, 568 U.S. 165, 180 (2013)).
As indicated above, in addressing actions brought under the Convention, the
Court is not authorized to address the merits of an underlying custody claim. See 22
U.S.C. § 9001(b)(4)(“The Convention and this chapter empower courts in the United
States to determine only rights under the Convention and not the merits of any
underlying child custody claims.”).
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To establish a prima facie case of wrongful retention, Crane must establish:
(1) the children habitually resided in New Zealand at the time of the retention; (2)
the retention breached his custody rights under the law of New Zealand, and (3)
Crane was exercising those rights at the time of retention. West, 735 F.3d at 929; In
re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1033 (D. Colo. 2014).
Crane has the burden to prove the children have been wrongfully retained within the
meaning of the Convention by a preponderance of the evidence. See id. (citing 22
U.S.C. § 9003(e)(1)(A)). To establish something by a “preponderance of the
evidence” means that the evidence, considered in light of all the facts, proves that
something is more likely so than not. Metropolitan Stevedore Co. v. Rambo, 521
U.S. 121, 137 n. 9 (1997).
BACKGROUND
The parties lived together in Auckland, New Zealand, in a domestic
partnership which produced two children, A.E.C. who was born in August 2013, and
R.F.A.C., who was born in September 2016. The children’s birth certificates,
introduced into evidence as Plaintiff’s Exhibits 2 and 3, reflect both of the parties as
the birth parents. Both children are dual citizens of New Zealand and the United
States.1 In April 2016, the parties decided to end their domestic partnership, but
continued to live together as they dealt with issues involved in the dissolution of

1

The children have New Zealand and United States passports.
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their relationship. Ultimately, and as discussed more infra, the parties agreed that
Merriman would depart New Zealand with the children after Christmas 2016. Until
her departure with both children on December 28, 2016, Merriman had resided in
New Zealand for about fifteen years. In August or September 2016, Merriman
applied for New Zealand citizenship, but did not complete the process before she
departed for the United States.
The children resided with both parents in New Zealand following their births.
The oldest, A.E.C., was three years old when she left for the United States with
Merriman; the youngest, R.F.A.C., was a little over two months old. Between April
2016 and December 2016, the parties agreed to, and executed, an agreement for
property division and an agreement regarding the custody and care of the children.
The Custody and Access Agreement (“Custody Agreement” or “Agreement”),
entered into evidence as Plaintiff’s Exhibit 4, was executed in November of 2016.2
At the time of the execution of the Agreement, the parties intended that it would
control matters of custody, visitation and support of the children. The Custody
Agreement makes clear that the parties would continue to be joint guardians of the
children (¶ 1.2) and share custody (¶ 4.1). The Custody Agreement provides that
Merriman would “initially” have “primary care” of the children (¶ 4.2), subject to a

2

The Custody Agreement is undated, but neither party contests that it was duly
executed, and there is no reason to doubt the allegation in the Petition that it was
executed on November 29, 2016.
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specific plan for visitation by Crane during the period of 2017-2020 (¶ 4.4), as well
as alternating residences over Christmas, with Christmas 2017 to be spent in New
Zealand (¶ 4.6). Further, after each child reaches the age of six, respectively, the
Custody Agreement provides for a “50/50 split of care,” with six months in the
United States with Merriman, and six months in New Zealand with Crane (¶ 5.1).
The Custody Agreement further states that “no attempt will be made to overturn this
agreement in the United States,” (¶ 5.2) and provides that any review of the
Agreement will be subject to “New Zealand law and jurisdiction.” (¶ 5.3).
The Custody Agreement includes a provision reflecting Crane’s consent to the
children relocating to the United States with Merriman (¶ 4.3), this provision
appearing immediately after the provision stating that Merriman will “initially have
primary care of the children ….” (¶ 4.2).
Crane testified that he would not have consented to the removal of the children
from New Zealand without the execution of the Custody Agreement, and such
consent was based on, and subject to, the other provisions of the Agreement.
Merriman acknowledged in testimony that Crane would not have consented to the
children going to the United States absent the Custody Agreement. This testimony
from both parties was corroborated by other evidence, including Plaintiff’s Exhibits
5 and 6.

6

The parties’ Custody Agreement further provides for visitation by Crane in
New Zealand for two months in 2017, and that such visit to New Zealand will take
place “as agreed in the period from the end of May to the end of August … or as
mutually agreed by both parties.” (¶ 4.4). This requirement is reflected by the
conduct of the parties at the time Merriman departed New Zealand with the children:
return airfare was booked and paid for with an arrival back in Auckland, New
Zealand on May 2, 2017. See Plaintiff’s Exhibit 8.
In mid-April 2017, Merriman asked Crane to agree to delay the planned
visitation until July, to which he assented. The purpose of the delay was to
accommodate Merriman’s job search in Oklahoma. See Plaintiff’s Exhibit 10.
Merriman changed the previously booked flights to allow for a July 6, 2017 arrival
of her and the children in New Zealand. However, on June 29, 2017, Merriman
caused to be filed in the District Court of Oklahoma County a Petition for Paternity,
Custody, Visitation and Child Support, seeking sole custody of the children. See
Plaintiff’s Exhibit 14. Merriman did not return with the children as previously
agreed, and had Crane served with the Oklahoma state court Petition in early July
2017.
During testimony, Merriman stated various reasons for deciding not to return
the children to New Zealand for the visitation required by the Custody Agreement
and for filing the Oklahoma state court Petition. She stated that she could not
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financially afford to return with the children; that she could not be absent from her
position as a high school teacher for the two months required by the Custody
Agreement; that she wished to work out a more reasonable custody arrangement
with Crane; and that she feared that if she returned to New Zealand without a court
order regarding the children from an Oklahoma court, Crane would be able to take
her to court in New Zealand and prevent her return to Oklahoma with the children
for several months. Merriman also seemed to assert that filing the Oklahoma state
court Petition was an attempt to comply with the Custody Agreement’s provision at
¶ 5.2 which states that the agreement was to be “filed and recognized as the primary
agreement in a United States Court and confirmed as accepted under U.S. law.” All
of the reasons cited by Merriman for her actions are belied by the evidence.
For instance, Merriman’s assertion of financial difficulty in abiding by the
Agreement is undercut by the fact that the return airfare for her and the children was
paid before her initial departure from New Zealand in December 2016. Moreover,
she was able to purchase a new home in Oklahoma, and received a $3,000 gift from
her father to assist her in doing so.3 Merriman also testified about another $3,000
gift from her father to help finance the filing of the Oklahoma state court Petition.

3

The evidence also established that Crane assisted Merriman in the purchase of the
home by advancing $7,000 in connection with their property division agreement.
8

Further, Merriman has obtained full time employment in Oklahoma as a teacher.4
Merriman’s desire to obtain a court order in Oklahoma regarding custody of the
children before returning them to New Zealand illuminates an underlying intent to
avoid the parties’ New Zealand Custody Agreement, and is precisely the type of
conduct the Hague Convention and ICARA seeks to prevent. See Navani v. Shahani,
496 F.3d 1121, 1128 (10th Cir. 2007) (“As we and our sister circuits have repeatedly
explained, the Hague Convention attempts to prevent an international version of
forum shopping, wherein a parent dissatisfied with current custodial arrangements
flees with the child to another country to re-litigate the merits of custody and to
obtain a more favorable custody order.”) (citations omitted). And, the notion that
Merriman’s assertion of the Oklahoma state court Petition was an attempt to comply
with the Custody Agreement is absurd – the state court Petition seeks to nullify much
of what the New Zealand Custody Agreement established.
With the foregoing recitation of the underlying facts, as established by the
record and evidence submitted at the hearing, the Court turns to the elements
required by the Hague Convention as implemented by ICARA.

4

Sadly, teaching is not a high-paying profession in Oklahoma, but Merriman testified
her salary is enough to cover her mortgage and other expense obligations, and the
time off for school breaks and vacations corresponds with the near-term visitation
schedule set forth in the Custody Agreement.
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DISCUSSION
Stated supra, to establish a prima facie case of wrongful retention, Crane must
establish by a preponderance of the evidence that (1) the children habitually resided
in New Zealand at the time of the retention; (2) the retention breached his custody
rights under the law of New Zealand, and (3) Crane was exercising those rights at
the time of retention. West, 735 F.3d at 929.
I.

Habitual Residence
The term “habitual residence” is not defined in the Convention or ICARA.

Stead, 77 F. Supp. 3d at 1034 (citing Holder v. Holder, 392 F.3d 1009, 1015 (9th
Cir. 2004)). Courts in this circuit, adopting the approach implemented by the First,
Fourth, and Fifth Circuits, have stated that “[i]n determining a child’s habitual
residence, [the court] looks first to the shared intent or settled purpose of the persons
entitled to determine the child’s permanent home; as a secondary factor, [it] may
consider the child’s acclimatization to his or her current place of residence.” Mertens
v. Kleinsorge-Mertens, 157 F. Supp. 3d 1092, 1103 (D.N.M. 2015) (citing Mendez
v. May, 778 F.3d 337, 344 (1st Cir. 2015); Smedley v. Smedley, 772 F.3d 184, 186
(2d Cir. 2014); Berezowsky v. Ojeda, 765 F.3d 456, 466 (5th Cir. 2014)).5

5

“Courts have widely recognized that the term should therefore be interpreted
according to the ordinary and natural meaning of the two words it contains, as ...
decided by reference to all the circumstances of any particular case.” Stead, 77 F.
Supp. 3d at 1034 (quoting Guzzo v. Cristofano, 719 F.3d 100, 106 (2d Cir. 2013)
(paraphrasing in original)). Thus, “habitual residence” must be determined in every
10

This approach is consistent with a prior unpublished decision from the Tenth
Circuit, which states: “[a]lthough it is the child’s habitual residence that the court
must determine, in the case of a young child the conduct, intentions, and agreements
of the parents during the time preceding the [retention] are important factors to be
considered.” Kanth v. Kanth, No. 99-4246, 2000 WL 1644099, at *1 (10th Cir. Nov.
2, 2000) (unpublished) (citing Feder v. Evans-Feder, 63 F.3d 217, 223 (3d Cir.
1995); Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1285 (S.D. Fla. 1999)).6
The Court finds that, prior to their retention in the United States, the children
habitually resided in Auckland, New Zealand. It is undisputed that, at birth, both
children resided with the parties in New Zealand. It is also undisputed that A.E.C.

case “by examining specific facts and circumstances” and “should not [be]
interpret[ed] technically or restrictively.” Mertens, 157 F. Supp. 3d at 1103 (quoting
Avendano v. Smith, 806 F. Supp. 2d 1149, 1164 (D.N.M. 2011)).
6

In this regard, sister courts have specifically cautioned that “shared intentions
should be the primary focus in the habitual residence inquiry” particularly when the
minor is of a young age. Larbie v. Larbie, 690 F.3d 295, 311 (5th Cir. 2012). This is
because “[t]o focus on a young child’s experience encourages ‘future [parties] to
seek unilateral custody over a child in another country’ or to delay returning to the
child’s original habitual residence as long as possible.” See id. (quoting Mozes v.
Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001)). In essence, “[t]he greater the ease with
which habitual residence may be shifted without the consent of both parents, the
greater the incentive to try.” Mozes, 239 F.3d at 1079. The Sixth Circuit recently
cited Kanth in support of its statement that, with respect to “especially young
children,” “[e]very circuit to have determined whether a country constituted a
habitual residence considers both the acclimatization and shared parental intent
standards.” Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017).
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resided with the parties for over three years in New Zealand; R.F.A.C. was a little
more than two months old when he departed New Zealand with Merriman. The
children have New Zealand and United States citizenship. Although it is true that the
children have now been in Oklahoma for nine months, had Merriman abided by the
Custody Agreement, two out of the nine months would have been spent in New
Zealand. Moreover, it is a stretch to contend, as Merriman does, that the Custody
Agreement reflects a mutual intent to permanently relocate the children to
Oklahoma, and thus establish Oklahoma as the place where they habitually reside as
those terms are used in the Convention. A more consistent and sensical reading of
the Custody Agreement is that it seeks to preserve the children’s ties to New
Zealand, in that it acknowledges the children’s strong ties to that country, and
establishes a 50/50 residential regime as between Oklahoma and New Zealand for
each child beginning at age six – two years from now for A.E.C. In any event, the
Court finds that, absent an expression of mutual intent to establish Oklahoma as their
new permanent residence, presence here for nine months, under the circumstances
of this case, is insufficient to support a finding that the children have acclimatized
here and habitually reside in Oklahoma as opposed to New Zealand. Thus, the Court
finds that Crane has established the first element of his prima facie case by a
preponderance of the evidence.

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II.

Breach of Custodial Rights
Under this factor, the Court finds the retention of the children in Oklahoma

by Merriman breached Crane’s custody rights under the law of New Zealand and the
Custody Agreement and, thus, was wrongful. Under New Zealand law, the parties
are joint guardians of the children. See Verified Compl. at Ex. 5 (attaching excerpts
from the New Zealand Care of Children Act (“CCA”) §§ 15-18). The Custody
Agreement, similarly, provides at ¶ 1.2 that Crane and Merriman “shall continue to
be joint guardians” of the children. As such, Crane has the right, inter alia, to
“determine[] for or with the child, or help[] the child to determine, questions about
important matters affecting the child.” “Important matters” include, but are not
limited to, changes in the child’s place of residence that may affect the child’s
relationship with his or her parents and guardians; where and how the child is to be
educated; and the child’s culture, language, and religious denomination and practice.
Verified Compl. at Ex. 5 (citing CCA § 16). The legitimacy of the negotiation and
execution of the Custody Agreement was not challenged by Merriman, nor has there
been a challenge to its efficacy under New Zealand law.
Merriman argued at the hearing that, although visitation did not occur as
required by the Custody Agreement, visitation could technically still be
accomplished during 2017 upon agreement of the parties. However, Merriman
admitted in testimony that, because of her employment, she is not in a position to
13

abide by the terms of the Agreement this year. Moreover, her filing of the Oklahoma
state court Petition, seeking relief directly contrary to the custody and visitation
provisions of the Agreement, indicates an intent not to abide by the Custody
Agreement. Therefore, the Court finds that Crane has established the second element
of his prima facie case – wrongful retention of the children in Oklahoma in violation
of his custodial rights.
III.

Exercise of Custodial Rights
Finally, the evidence clearly shows Crane was exercising his joint guardian

rights – within the parameters of the Custody Agreement – at the time of the
wrongful retention. Therefore, the Court finds by a preponderance of the evidence
that Crane has established his prima facie case under the Hague Convention and
ICARA.
IV.

Affirmative Defenses
Upon Crane’s showing of a prima facie case, return of the children is required

unless Merriman can establish one of the four exceptions, or defenses, as set forth in
the Hague Convention. Two of these defenses can be established by a preponderance
of the evidence: (1) the proceeding was commenced more than one year after the
removal of the children and the children have become settled in their new
environment (Hague Convention, Art. 12) or (2) the person seeking return of the
children either consented to or subsequently acquiesced in the retention (Hague
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Convention, Art. 13). The other two defenses must be shown by clear and convincing
evidence: (1) there is a grave risk that the return of the child would expose it to
physical or psychological harm (Hague Convention, Art. 13b) or (2) the return of
the child would not be permitted by the fundamental principles of the requested State
relating to the protection of human rights and fundamental freedoms (Hague
Convention, Art. 20). See 22 U.S.C. § 9003(e).
“All four of these exceptions are ‘narrow.’ They are not a basis for avoiding
return of a child merely because an American court believes it can better or more
quickly resolve a dispute. 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.” Friedrich v. Friedrich, 78 F.3d
1060, 1067 (6th Cir. 1996) (internal citations omitted).
The only recognized defense advanced by Merriman is that Crane consented
to the relocation of the children in ¶ 4.3 of the Custody Agreement, and otherwise
acquiesced in the relocation by agreeing to delay the visitation called for in the
Agreement and assisting Defendant in the purchase of her home in Oklahoma.
Merriman’s contentions are unavailing. It is curious that Merriman points to ¶ 4.3 of
the Custody Agreement in an attempt to establish her defense, when she has failed
to abide by the requirements of the Agreement and has repudiated it by filing the

15

Oklahoma state court Petition. In any event, she has failed to establish the defense
by a preponderance of the evidence.
The evidence is clear that Crane’s agreement to include relocation of the
children to Oklahoma in the Custody Agreement was made in the context of the
Agreement as a whole, which provides for extensive involvement and visitation by
Crane until the children reach the age of six, and then requires a 50/50 residential
split between New Zealand and Oklahoma. Indeed, Merriman admitted during
testimony that Crane would not have consented to the children going to Oklahoma
but for the New Zealand Custody Agreement. Although Merriman argues that the
parties agreed to a permanent relocation of the children to Oklahoma, the Custody
Agreement itself belies that assertion.
Having found that Merriman failed to establish a defense by a preponderance
of the evidence, return of the children to New Zealand is required by the Hague
Convention and ICARA.
IT IS THEREFORE ORDERED that the Verified Complaint and Petition
for Return of the Children [Doc. No. 1] is GRANTED. The Court directs that A.E.C.
and R.F.A.C. be returned to New Zealand forthwith and placed in the physical
custody of Plaintiff/Petitioner pending further order, as appropriate, of a New
Zealand court or other disposition of the underlying custody issues.

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IT IS FURTHER ORDERED that Defendant/Respondent, anyone acting in
concert with her, and any other person with actual knowledge of this Order are
restrained from taking any action that interferes with or impedes the timely
effectuation of the directions of this Order.
A judgment shall be issued forthwith.
IT IS SO ORDERED this 14th day of September 2017.

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