Riley v. Gooch et al

Filing 74

Findings of Fact and Conclusions of Law. Riley established, by a preponderance of the evidence, that ZVG was "wrongfully retained" in the United States. Neither Gooch nor the Duells established an affirmative defense. Thus, under the convention, I ordered ZVG's prompt return to Germany, her country of habitual residence. Please access entire text by document number hyperlink. Signed on 01/29/2010 by Judge Owen M. Panner. (jw)

FILED'10 \.fAt,~ 2916:52uSDC'ORI1

I N THE UNITED STATES D I S T R I C T COURT FOR THE D I S T R I C T OF OREGON STEFANIE RILEY, Civ. No. 09-1019-PA Petitioner, v. J O S E P H DANIEL GOOCH, TED DUELL, a n d BONNIE DUELL, Respondents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PANNER, D i s t r i c t J u d g e :
On D e c e m b e r 1 4 - 1 5 , 2 0 0 9 , above matter. Germany. I held an evidentiary hearing in the I ordered the child returned to

After the hearing,

T h e s e a r e my f i n d i n g s o f f a c t a n d c o n c l u s i o n s o f l a w .

Fed. R. Civ. P. 5 2 ( a ) .

FACTUAL FINDINGS
In January 2005, petitioner Stefanie Riley ("Riley") and

respondent Joseph Daniel Gooch ("Gooch") met in Giessen, Germany where Gooch was s t a t i o n e d in the United S t a t e s m i l i t a r y . 1 - F I N D I N G S OF FACT AND CONCLUSIONS OF LAW Shortly

after m e e t i n g , R i l e y a n d G o o c h b e g a n t o c o h a b i t .

On O c t o b e r 1 8 ,

2005, Gooch f i l e d a p e t i t i o n to dissolve his marriage to Celia Sanchez-Gooch in Klamath County Circuit Court ("Klamath Court") On M a r c h 2 1 , 2 0 0 6 , t h e m a r r i a g e w a s d i s s o l v e d . of Stipulated Facts,
~
1

(Joint Statement

10.)

In December 2005, while the above

d i s s o l u t i o n proceeding was pending, Riley and Gooch p a r t i c i p a t e d in a marriage ceremony in Las Vegas, Nevada. Id. at
~

8.

Because

Gooch was married to Celia Sanchez-Gooch a t the time of his marriage ceremony with Riley, the marriage between Gooch and Riley was void. Id. at
~

12; Nev. Rev. S t a t .

§

125.290.

I reject Gooch's testimony that he and Riley participated in a second wedding ceremony in Denmark. O t h e r t h a n h i s own

testimony, Gooch offered no evidence supporting a second ceremony. To b e l i e v e t h a t G o o c h a n d R i l e y p a r t i c i p a t e d i n a s e c o n d c e r e m o n y , s p e c i f i c a l l y because they both knew t h e f i r s t marriage was invalid, yet failed to keep any documentation confirming the ceremony, strains the limits of belief. Additionally, in Gooch's

divorce proceeding against Riley, Gooch makes no mention of any marriage in Denmark, instead s t a t i n g t h a t he and Riley were legally married in Las Vegas in 2005. Similarly, on ZVG's

Application for Consular Report of Birth Abroad, Gooch l i s t e d the 2005 Las Vegas marriage ceremony. Finally, I find credible

Riley's adamant testimony that they never participated in a second ceremony.

lOn S e p t e m b e r 1 4 , 1 9 9 3 , G o o c h m a r r i e d C e l i a S a n c h e z i n Laguna Nigel, California. 2 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Gooch a n d R i l e y r e t u r n e d t o G e r m a n y a n d ZVG 2 - t h e c h i l d a t issue in t h i s case - was born on July 16, 2007 in Giessen, Germany. Riley has two sons, aged ten and seven, from previous Under the German Civil Code, F i f t h t i t l e , Parental (Joint

relationships.

C u s t o d y § 1 6 2 6 a , R i l e y h a s " r i g h t s o f c u s t o d y " f o r ZVG. 3 Statement of Stipulated facts,
~

30.)

On O c t o b e r 1 , 2 0 0 7 , R i l e y

and Gooch f i l e d an application for a United States ("U.S.") p a s s p o r t f o r ZVG. In December 2007, Gooch received an honorable discharge from the U.S. military. On D e c e m b e r 1 4 , 2 0 0 7 , G o o c h , R i l e y , ZVG, a n d

Riley's two sons flew to the U.S. on one-way t i c k e t s provided by the U.S. government. The government also shipped the majority of Riley l e f t some Although the parties

the family's belongings to the United States. b e l o n g i n g s a t h e r m o t h e r ' s home i n Germany.

dispute the purpose of the trip, I finq that Riley believed the purpose of the t r i p was to help care for Gooch's grandparents. While Gooch may have intended t o permanently s e t t l e i n the U.S., I find t h a t Riley intended to return to Germany with her three c h i l d r e n 90 d a y s a f t e r e n t e r i n g t h e U . S . In making this finding, I note that Riley and her children At the

entered the U.S. through the Visa Waiver Program ("VWP").

t i m e o f t h e t r i p , R i l e y , ZVG, a n d R i l e y ' s s o n s o n l y h e l d G e r m a n

2 B e c a u s e ZVG i s a m i n o r , I u s e o n l y h e r i n i t i a l s . 3Under t h i s code, i f the parents are not married upon the child's birth, the mother has sole custody unless the parents subsequently marry or declare they wish to exercise joint custody. Id. 3 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

passports.

A s t h e n a m e e n t a i l s , t h e VWP a l l o w s f o r e i g n c i t i z e n s T h e VWP r e q u i r e s a l l
4

to enter the U.s. without a visa.

p a r t i c i p a n t s e x i t t h e U . s . w i t h i n 90 d a y s o f e n t r a n c e .

T h e VWP

also requires each entrant possess a return airline ticket as a prerequisite to entering the U.s. Using his grandfather's credit

card, Gooch purchased return t i c k e t s to Germany for Riley and the three children. Prior to December 2007, Riley had v i s i t e d the On e a c h o c c a s i o n ,

U.s. on approximately five previous occasions.

R i l e y r e t u r n e d t o G e r m a n y w i t h i n 90 d a y s o f e n t e r i n g t h e U . s . The finding t h a t Riley intended to return to Germany within 90 d a y s i s c o l l a b o r a t e d b y t h e c r e d i b l e t e s t i m o n y o f R i l e y ' s witnesses. Riley, Riley's s i s t e r Annette Meyer ("Meyer"), Riley's

lifelong friend Jasmin Hoover ("Hoover"), and Justin Flanders ("Flanders") - the American father of Riley's oldest son - a l l t e s t i f i e d convincingly that Riley would never consider living anywhere other than Germany. Other than Gooch, no one t e s t i f y i n g

on behalf of the respondents could speak with personal knowledge as to Riley's intent or actions prior to leaving Germany. Meyer

and Hoover both t e s t i f i e d that Riley stated, prior to leaving Germany in December 2007, t h a t the purpose of the t r i p was to care for Gooch's grandparents and that Riley stated she would return to G e r m a n y i n 90 d a y s .

III

41 n o t e R i l e y ' s p r e c a r i o u s i m m i g r a t i o n s t a t u s a s i t i s " a highly relevant circumstance where, as here, the shared intent of the p a r t i e s i s in dispute." Mozes, 239 F.3d 1067, 1082 (9th Cir. 2001) .

4 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Additionally, a l t h o u g h R i l e y f i l l e d o u t a n a p p l i c a t i o n f o r a

u.s.

immigrant visa, she never signed or submitted the Riley kept her German bank account open, and never bank account. Riley kept her sons enrolled in

application. opened a

u.s.

Kindergeld - a German equivalent of welfare - receiving a monthly check of approximately 300 d o l l a r s for each enrolled c h i l d . 5 p a y m e n t s e n d e d w h e n R i l e y d i d n o t r e t u r n t o G e r m a n y w i t h i n 90 days. Riley never signed the children up for assistance in the although she did attempt, out of absolute necessity, to That said, Riley's older son That son The

u.s.,

obtain food stamps in August 2008.

attended a California school beginning in January, 2008.

also attended school in Klamath Falls, Oregon from April 4 through May 2 7 , a n d J u n e 3 t h r o u g h 1 2 , 2 0 0 9 . Although Gooch t e s t i f i e d t h a t the family plan was t o move permanently to the

u.s.

and that the family would deal with the I do not find his testimony In making this finding,

9 0 - d a y VWP l i m i t s a f t e r a r r i v a l ,

credible considering the evidence above.

I also considered the evidence supporting Gooch's position, including evidence t h a t : the family ended up staying for eight months; the family shipped most of their personal property to the U . S . ; 6 R i l e y a n d Gooch s i g n e d a o n e - y e a r l e a s e o n a home i n 5 R i l e y n e v e r s i g n e d ZVG u p f o r K i n d e r g e l d , e v e n t h o u g h ZVG was born i n , and spent her f i r s t five months in Germany. 6 Although the family did ship the majority of their belongings to the U.S., I note that the u.s. government provided a strong incentive for the family to do so. Holder, 392 F.3d 1009, 1018 (9th Cir. 2004). Thus, while the shipment of personal property is not dispositive of the parents' intent, I did c o n s i d e r t h a t e v i d e n c e i n my f i n d i n g s .
5-

FINDINGS OF FACT AND CONCLUSIONS OF LAW

California;

and Riley told the Duells and Gooch's grandparents

that she liked living in the U.S. and wanted to bring other family members to the U.S. Upon a r r i v i n g i n the U.S., the family went t o Gooch's g r a n d p a r e n t s ' horne i n Y u c c a V a l l e y , C a l i f o r n i a . Although Riley

believed they would be providing temporary care for Gooch's grandparents, Gooch never relayed t h a t information to h i s grandparents. Riley's actions upon arriving in Yucca Valley For example, Riley told the caretaker her

support this finding.

services were no longer needed, and attempted to cook and clean for the family and Gooch's grandparents. In short, to the

surprise of Gooch's grandparents, Riley acted as though she was their caretaker. This caused some tension between Riley and

Gooch's grandmother. Gooch's grandparents did not have space for the family and on December 21, 2007, Riley and Gooch signed a one-year lease for a r e n t a l horne i n Y u c c a V a l l e y . Riley and Gooch rented appliances Riley and Gooch also

and furniture from a rent-to-own company. purchased a puppy.

Despite the above facts, Riley's testimony

t h a t s h e n e v e r i n t e n d e d t o l i v e i n t h e h o u s e f o r m o r e t h a n 90 d a y s is credible. Quite simply, the family had nowhere else to go, and I also consider the fact that l i t t l e money,

they needed to live somewhere.

Riley was in a foreign country with no friends,

three children, and return t i c k e t s for a f l i g h t to Germany in approximately three months time. Indeed, Hoover t e s t i f i e d that

Riley called her and reported that from her f i r s t day in the U.S.,

6 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Riley w a s v e r y u n h a p p y a n d d i s t r e s s e d w i t h t h e e n t i r e s i t u a t i o n . Further, Riley was, for the most part, economically dependent on Gooch. Finally, Riley t e s t i f i e d that she had previously tried to

end her r e l a t i o n s h i p with Gooch and t h a t Gooch did not r e a c t well. I find c r e d i b l e R i l e y ' s testimony t h a t she was somewhat a f r a i d t o s a y "no" t o Gooch. 7 I also find that perhaps out of politeness,

Riley overstated her happiness at being in the U.S. to Gooch's grandparents and to respondents Ted and Bonnie Duell (the "Duells") . On F e b r u a r y 2 5 , 2 0 0 8 , s h o r t l y b e f o r e t h e 9 0 - d a y VWP t i m e l i m i t expired, Gooch consulted an immigration attorney regarding the procedures for obtaining U.S. passports for Riley and one of her sons. Gooch t e s t i f i e d Riley accompanied him to the attorney.

Riley t e s t i f i e d she never inquired about, and certainly never visited, an immigration attorney. Other than Gooch's testimony,

there i s no evidence suggesting Riley v i s i t e d the immigration attorney. The immigration attorney has no r e c o l l e c t i o n of whether More importantly, Gooch

or not Riley attended the consultation.

found the attorney and f i l l e d out a l l of the intake forms. Considering a l l of the above, and that I generally find Riley more credible than Gooch, I find Riley neither inquired about, nor

attended the consultation. R i l e y , h e r s o n s , a n d ZVG c o u l d n o t l e a v e t h e u . S . a s p l a n n e d because the return tickets were nowhere to be found. Although the

7This finding refers solely to Riley's subjective b e l i e f regarding giving Gooch bad news.
7 -

FINDINGS OF FACT AND CONCLUSIONS OF LAW

evidence r e g a r d i n g w h a t h a p p e n e d t o t h e r e t u r n p l a n e t i c k e t s i s unclear, I find Riley's testimony credible that although she

wanted to return to Germany with her children, she had no means of doing so. Riley t e s t i f i e d t h a t she asked Gooch for the t i c k e t s Hoover t e s t i f i e d that Riley

but he refused to provide them.

c a l l e d her near t h i s time and s t a t e d Gooch would not provide the return tickets. Riley and Gooch both claim they never physically I t i s undisputed t h a t Gooch purchased the Riley did not have

possessed the tickets.

tickets using his grandfather's credit card. the means to purchase t i c k e t s herself.

Neither Gooch nor Riley obtained employment in Yucca Valley. In March 2008, Bonnie Duell flew to Yucca Valley because her mother - Gooch's grandmother - was i l l . Once there, she saw and Bonnie Duell told

spoke to Gooch for the f i r s t time in years.

Gooch t h a t his s t e p - f a t h e r , Ted Duell, might be able to help secure employment for Gooch in Klamath F a l l s , Oregon. Riley and

Gooch had not discussed the p o s s i b i l i t y of moving to Oregon p r i o r to a few days immediately preceding the move. In l a t e March or

e a r l y April 2008, the family moved i n t o the Duell residence in Klamath Falls, Oregon. The family l e f t some belongings i n C a l i f o r n i a and s t o r e d the rest in one section of the Duell garage. On A p r i l 8 , 2 0 0 8 , G o o c h Gooch

began working for the same company the Duells worked for.

l i s t e d the e n t i r e family on his enrollment forms for employee benefits, including health insurance.

III

8 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

The r e l a t i o n s h i p b e t w e e n R i l e y a n d t h e D u e l l s w a s acrimonious. Among a v a r i e t y o f i s s u e s , t h e D u e l l s c l a i m e d R i l e y Their

drank too much beer while consuming pain medication. testimony was not persuasive.

Although Riley drank and took pain

medication prescribed by her doctors, the evidence does not suggest she abused alcohol or drugs. her use of pain medication. and the Duells. Further, Riley did not hide

This was only one issue between Riley

Generally, a l o t of tension arose from the fact

that Riley and the Duells simply did not care for each other. After approximately two months, the Duells asked the family t o move out. of the Duells. In June 2008, t h e f a m i l y r e n t e d a home from a f r i e n d In exchange for one month of free rent, Riley and Specifically, in addition to a

Gooch performed work on the home.

substantial amount of cleaning, Riley chose the colors, and then painted the i n t e r i o r of the home. I find that the family had very

l i t t l e money and these improvements were motivated by a desire to save on rent. monthly rent. Bonnie Duell agreed t o pay 25 percent of the While looking a t the house, Gooch, and perhaps

R i l e y , s p o k e i n v a g u e t e r m s a b o u t p o s s i b l y p u r c h a s i n g t h e home a t a later date. In June, Gooch's grandparents brought the personal

property and furniture l e f t in California to Klamath Falls. On J u l y 1 6 , 2 0 0 8 , ZVG s p e n t h e r f i r s t b i r t h d a y w i t h t h e D u e l l s . On J u l y 2 7 , B o n n i e D u e l l r e q u e s t e d , a n d R i l e y a n d G o o c h agreed, that the children should temporarily stay with the Duells. This request was in response to a v i s i t by Bonnie Duell to the family home. The children had no food and very l i t t l e

9 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

supervision.

The understanding between a l l the p a r t i e s was t h a t

while the children were a t the Duell home, Riley and Gooch would attempt to work out the problems in t h e i r relationship. After

t h a t p o i n t , a l l p a r t i e s u n d e r s t o o d t h e D u e l l s w o u l d r e t u r n ZVG t o Riley and Gooch. Although Gooch v i s i t e d the children every day,

Riley did not visit the children at the Duell residence. On A u g u s t 3 , 2 0 0 8 , w h i l e t h e c h i l d r e n w e r e w i t h t h e D u e l l s , police were called to an a l t e r c a t i o n between Riley and Gooch. a r e s u l t of t h i s incident, Gooch moved out of the family home. Riley called Meyer and informed her the Duells would not return ZVG. Meyer instructed Riley to contact the a u t h o r i t i e s . On As

August 5 or 6, Riley requested help from the authorities in securing ZVG's r e t u r n . The a u t h o r i t i e s informed Riley t h a t since

ZVG w a s c u r r e n t l y w i t h G o o c h , t h e y w e r e u n a b l e t o o r d e r Z V G ' s return to Riley. This testimony i s collaborated by Bonnie Duell's

testimony that the authorities called her and informed her that Riley stated the Duells had kidnaped the children and demanded "her boys back." The a u t h o r i t i e s arranged for Bonnie Duell to

drop Riley's sons off at the s h e r i f f ' s station, where they would be returned to Riley. ZVG r e m a i n e d w i t h G o o c h a n d t h e D u e l l s .

On A u g u s t 7 , 2 0 0 8 , G o o c h f i l e d a n a c t i o n f o r d i s s o l u t i o n o f marriage against Riley in Klamath Court. Bonnie Duell paid for

the divorce, and attended the i n i t i a l consultation with Gooch and the attorney. Gooch f i l e d f o r divorce even though he knew h i s In making this finding, I

marriage to Riley was not v a l i d .

s p e c i f i c a l l y find t h a t Gooch i n t e n t i o n a l l y l i e d to the Klamath

1 0 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Court w h e n h e s t a t e d , i n h i s P e t i t i o n f o r D i s s o l u t i o n o f M a r r i a g e , that he and Riley "were duly and legally married at Las Vegas, Nevada, on December 20, 2005. 8 As a r e s u l t o f t h i s f i l i n g , ( P e t ' r ' s Ex. 9, 3.) the court issued a temporary

r e s t r a i n i n g o r d e r , p r e v e n t i n g R i l e y f r o m r e m o v i n g ZVG f r o m e i t h e r t h e D u e l l home o r t h e s t a t e o f O r e g o n . Id. at 12-18. Although

Gooch t e s t i f i e d t h a t h i s motivation for f i l i n g for divorce was to protect his assets, I do not find his testimony credible. As

s t a t e d above, Riley and Gooch both knew t h e 2005 Las Vegas marriage was not v a l i d . I find Gooch's motivation in filing for

divorce was to obtain the temporary r e s t r a i n i n g order preventing R i l e y f r o m r e m o v i n g ZVG f r o m e i t h e r t h e D u e l l r e s i d e n c e o r t h e state of Oregon. In short, I find t h a t Gooch wanted to begin the

c u s t o d y b a t t l e o v e r ZVG i n t h e U n i t e d S t a t e s , a s o p p o s e d t o Germany. Through a server of process, Gooch served Riley on Id. at 19-20. Id. Included in the service was the Riley never responded to the

August 14, 2008.

temporary restraining order. divorce proceedings.

On O c t o b e r 3 , 2 0 0 8 , K l a m a t h C o u r t e n t e r e d a

G e n e r a l J u d g e m e n t o f D i s s o l u t i o n , g i v i n g G o o c h c u s t o d y o f ZVG. On A u g u s t 8 , 2 0 0 9 , t h e l a n d l o r d g a v e R i l e y n o t i c e t h a t r e n t was seven days p a s t due. financially independent. As s t a t e d a b o v e , R i l e y w a s n o t The monthly Kindergeld payments ended Riley's only

w h e n R i l e y d i d n o t r e t u r n t o G e r m a n y a f t e r 90 d a y s .

source of income was i n t e r m i t t e n t c h i l d support payments from

80 n c r o s s e x a m i n a t i o n , Gooch a d m i t t e d t o n o t b e i n g completely honest with the Klamath Court.

1 1 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Flanders a v e r a g i n g $ 2 5 0 p e r m o n t h . food for herself and her sons.

Riley had to ask neighbors for

Throughout her time in the U.S.,

Riley repeatedly asked friends and r e l a t i v e s for money, with l i t t l e success. On, o r s h o r t l y a f t e r A u g u s t 8 , R i l e y a n d h e r s o n s moved i n t o t h e home o f Chuck Polson ( " P o l s o n " ) . Near this time, Riley On A u g u s t

learned her mother's cancer had progressively worsened. 1 2 , ZVG b e g a n a t t e n d i n g d a y c a r e .

I note t h a t Gooch f i l l e d out

the day care enrollment forms, and although Gooch and the Duel1s w e r e a u t h o r i z e d t o p i c k ZVG u p f r o m d a y c a r e , R i l e y w a s n o t authorized to do so. (Resp't's Ex. 124, 1.) Polson stated

I found Polson's testimony extremely credible.

Riley t o l d him, a t the time, t h a t Gooch and the Duells were not a l l o w i n g h e r t o s e e ZVG. greatly. Polson said this distressed Riley

Polson t e s t i f i e d Riley did not want to return to Germany

w i t h o u t ZVG, b u t t h a t R i l e y ' s p o s i t i o n o n l e a v i n g c h a n g e d w h e n h e r mother's condition worsened. Maria Clagett ("Clagett") also

t e s t i f i e d t h a t Riley was very d i s t r e s s e d , and t h a t Riley s t a t e d s h e h a d t o r e t u r n t o G e r m a n y b u t w o u l d r e t u r n l a t e r f o r ZVG. On

o n e o c c a s i o n , P o l s o n d r o v e R i l e y t o s e e ZVG b u t G o o c h d i d n o t l e t R i l e y s e e ZVG. Polson advised Riley to return to Germany to get After that, Polson told Riley she could

closure with her mother. c o m e b a c k a n d g e t ZVG.

Eventually, Polson bought Riley plane t i c k e t s to Germany for herself and her sons. As s t a t e d a b o v e , R i l e y d i d n o t h a v e t h e On A u g u s t 2 7 , 2 0 0 8 , R i l e y

means to purchase the t i c k e t s h e r s e l f .

1 2 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

returned t o G e r m a n y w i t h h e r t w o s o n s w h i l e ZVG s t a y e d w i t h G o o c h and the Duells. Riley's mother passed away six days l a t e r .

Although Riley had contact information for Gooch and the Duells, she did not contact them for nearly three months. On

November 21, 2008, Riley sent an email to Bonnie Duell, inquiring a b o u t ZVG. A f t e r r e c e i v i n g a b r i e f u p d a t e o n ZVG, R i l e y w r o t e , I truly miss her with "I

am g l a d t o h e a r t h a t [ZVGJ i s d o i n g f i n e . a l l o f my h e a r t . i

I t hurts alot [sicJ to think about the fact that Bonnie Duell responded:

[sicJ will never see her again."

W e l l , n e v e r i s a v e r y l o n g t i m e . [J Just remember, Ted a n d I w i l l d o w h a t e v e r i t t a k e s t o p r o t e c t [ZVGJ f r o m any harm ever. Ted and I w i l l always t r y and make sure s h e h a s t h e v e r y b e s t o f e v e r y t h i n g we c a n p o s s i b l e g i v e her. [ . . . JPlease, just always remember, she i s in a very s a f e and happy home w i t h u s . Our whole l i v e s have been p u t o n h o l d i n o r d e r t o c a r e f o r [ZVG . . . . J I am s o p r o u d of you, t h a t you had the courage to do the right thing for the baby. How a r e t h e b o y s d e a l i n g w i t h n o t h a v i n g her there with you. I hope they understand t h a t i t was s o m e t h i n g y o u h a d t o d o . [J ( P e t ' r ' s Ex. 21, p 1) Riley responded by writing: O f c o u r s e , t h e b o y s t a l k a b o u t [ZVGJ e v e r y d a y , t h e y d o not understand the whole thing, but that i s ok, they dont need to worry. i am s u r e t h a t w h e n [ZVGJ g e t s t o a certain age that i will talk to her. and her brothers w i l l t a l k t o her as well. but for the moment t h e r e i s n o t h i n g i w a n t t o do t h a t c o u l d r i p h e r o u t o f h e r home r i g h t now. Id. (unless noted, original spelling and punctuation) . Riley t e s t i f i e d that she took a friendly tone in the above e m a i l s b e c a u s e s h e d i d n o t w a n t t o a n g e r B o n n i e D u e l l , a s ZVG w a s l i v i n g with Gooch and the Duells. Additionally, Riley was going

through a very d i f f i c u l t period - economically and emotionally -

1 3 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

and w a s e v a l u a t i n g h e r o p t i o n s o n s e c u r i n g Z V G ' s r e t u r n . Considering the circumstances, I find Riley's testimony credible. Despite what Riley t o l d Bonnie Duell, Riley was exploring her l e g a l options to secure ZVG's r e t u r n . appointed a German l e g a l aid lawyer. In January 2009, Riley was On J a n u a r y 2 7 , 2 0 0 9 , R i l e y ' s

attorney sent a l e t t e r to Gooch and the Duells, written in German, demanding ZVG's r e t u r n . (Resp't's Ex. 144,1.) While that

attorney i n i t i a t e d custody proceedings in a German court, he did not file a petition under the Convention. On A p r i l 2 9 , 2 0 0 9 , t h e D u e l l s p e t i t i o n e d f o r g u a r d i a n s h i p o v e r ZVG i n K l a m a t h C o u r t . Although never served, Riley did have

notice of the guardianship proceedings as evidenced by the chain of emails between Riley and Bonnie Duell on April 1 and 2, 2009. The emails also demonstrate the change in R i l e y ' s tone upon securing legal representation. favor to ask of you. g u a r d i a n s h i p o f [ZVG] Bonnie Duell wrote, "I have a huge

Ted and I would l i k e to get legal In order to do t h i s , you would need to Id. at 4. Riley responded by writing:

sign legal authorization."

A c o u p l e d a y s a g o J o e w r o t e me a n E m a i l t e l l i n g me t h a t i t i s H I S d a u g h t e r a n d t h a t h e h a s c u s t o d y o f h e r . S o my q u e s t i o n i s , w h a t d o y o u w a n t f r o m me n o w ? N o b o d y a s k e d me t o s i g n a n y t h i n g , y o u p e o p l e j u s t s t o l e h e r . A n d n o w y o u w a n t my s i g n a t u r e ? I t h i n k i t w o r k e d o u t v e r y w e l l f o r y o u g u y s , w i t h o u t my s i g n a t u r e . Why d o n ' t y o u a s k your l i t t l e sunshine Joe for the signature, since he has c u s t o d y ? ? You k n o w i t i s a l l b a d e n o u g h how i t i s w i t h my b a b y g i r l , b u t o n e d a y t h e t r u t h w i l l corne o u t , n o m a t t e r how m a n y l i e s y o u g u y s s p r e a d a b o u t m e . Id. (unless noted, original spelling and punctuation) Bonnie Duell responded: I am s o r r y , [Gooch] i s s t i l l very angry and b i t t e r

1 4 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

toward y o u . B u t , t h a t i s b e t w e e n y o u a n d h i m . . T r u e e n o u g h , [ZVGJ i s J o e ' s d a u g h t e r , b u t a l t o t r u e e n o u g h , [ZVGJ i s y o u r d a u g h t e r a s w e l l . A l s o , t r u e , J o e d o e s have f u l l custody of her, by default, because you did n o t c o n t e s t t h e d i v o r c e . I am s o s o r r y t h a t y o u f e e l we s t o l e [ZVGJ f r o m y o u . . I h a v e t o d i s a g r e e , b u t t h a t i s n e i t h e r here nor t h e r e . . [ . . JWhat I would l i k e from you/ b e c a u s e s h e i s l i v i n g w i t h me a n d T e d [ . . . J i s t o s i g n g u a r d i a n s h i p p a p e r s f o r u s [ s o we c a n g e t m e d i c a l a n d d e n t a l c a r e f o r ZVG . . . . J I t i s n o t l i k e a n a d o p t i o n , [ . . . J i t i s o n l y s o we c a n k e e p J o e f r o m r e m o v i n g h e r f r o m o u r home when h e g e t s mad a t me. [ . . . JHe h a s m o v e d o u t f r o m o u r h o u s e , b u t we s t i l l h a v e [ZVGJ . . We a r e o n l y t r y i n g t o d o w h a t we t h i n k i s b e s t f o r n o w f o r [ZVG . . . . J I t i s n ' t n e c e s s a r i l y forever/ . . . i t i s j u s t for now. I dont' think I have ever spread any l i e s about you Stefanie, w h a t h a p p e n e d w a s b e t w e e n y o u a n d J o e a n d I am s o s o r r y t h a t a l l o f i t h a p p e n e d . [ . . . J I k n o w y o u l o v e [ZVGJ / a n d i t w a s v e r y d i f f i c u l t f o r y o u t o l e a v e h e r , b u t we b o t h know t h a t a t t h e t i m e i t w a s t h e b e s t t h i n g t o d o , a n d i will always admire you for having the inner strength to do t h a t . Id. at 3 (unless noted, original spelling and punctuation) . Riley responded by writing: d i d n ' t c o n t e s t w h a t ? a d i v o r c e ? Do n o t f o r g e t B o n n i e , t h a t I w a s n e v e r m a r r i e d t o h i m . He w a s s t i l l m a r r i e d a t t h e t i m e we w e n t t o V e g a s . He d i d n ' t t e l l y o u that? . . Well well, i f you r e a l l y i n s i s t of getting an address you can send those papers to/ what about an a d d r e s s o f o n e o f my l a w y e r s ? Id. (unless noted, original spelling and punctuation) . In mid 2009/ Riley obtained a new German a t t o r n e y . E v e n t u a l l y , R i l e y w a s r e f e r r e d t o a n O r e g o n a t t o r n e y , who f i l e d Riley's Hague p e t i t i o n on August 27/ 2009. Riley testified that As o f t h e

she f i r s t learned of the Convention in August 2009.

date of the e v i d e n t i a r y hearing, the Duells were ZVG's r e s i d e n t i a l custodians and primary caregivers. ZVG r e s i d e d w i t h t h e D u e l l s Gooch lived with

from July 27/ 2008 through December 15/ 2009.

t h e D u e l l s a n d ZVG f r o m a p p r o x i m a t e l y A u g u s t 3 / 2 0 0 8 t h r o u g h M a r c h

1 5 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

2009. ZVG.

After moving out, Gooch maintained his r e l a t i o n s h i p with The Duells provided a l l of ZVG's day-to-day needs except

d u r i n g t h e h o u r s ZVG s p e n t i n a l i c e n s e d c h i l d c a r e f a c i l i t y .
CONCLUSIONS OF LAW

Adopted on October 25, 1980, the Hague Convention on the C i v i l Aspects of I n t e r n a t i o n a l Child Abduction, 19 I.L.M. 1501 (the "Convention") is an international treaty establishing procedures for "the prompt return of children wrongfully removed or retained in any Contracting State." I.L.M. at 1501. Convention, Art. l ( a ) , 19

Congress enacted the International Child

Abduction Remedies Act, 24 U.S.C. §§ 11601-11610 t o implement the Convention.
§ 11601(b).

Germany and the United States are both Holder, 392 F.3d a t 1013.

signatories to the Convention.

The Convention aims to discourage forum shopping in international custody disputes. Id. The r o l e of the court

applying the Convention is solely to determine the rights available under the Convention, as opposed to the merits of the underlying child custody claim. Id. at 1013-14;
§

11601 (b) (4) .

In other words, the court does not "determine whether a child is happy where i t currently i s , but whether one parent i s seeking u n i l a t e r a l l y to a l t e r the status quo with regard to the primary locus of the child's life."
I.

Mozes, 239 F.3d a t 1079.

Wrongful Removal or Retention

The Convention only requires the return of a c h i l d whose removal or r e t e n t i o n was "wrongful": The removal or the r e t e n t i o n i s to be considered wrongful where 1 6 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

a) i t i s i n b r e a c h o f r i g h t s o f c u s t o d y a t t r i b u t e d t o a person . . . under the law of the state in which the child was h a b i t u a l l y r e s i d e n t immediately before the removal or retention; and b) a t the time of removal or r e t e n t i o n those r i g h t s were actually exercised, . . . or would have been so exercised but for the removal or retention. Convention, Art. 3, 19 I.L.M. a t 1501. In determining whether the removal or r e t e n t i o n was "wrongful" under the Convention, courts answer four questions: when did the removal or r e t e n t i o n take place? (2) Immediately (1)

p r i o r to the removal or r e t e n t i o n , in which s t a t e was the c h i l d habitually resident? (3) Did the removal or retention breach the

custody rights of the petitioner under the laws of the child's habitual residence? (4) was the p e t i t i o n e r e x e r c i s i n g those r i g h t s Mozes, 239 F.3d a t 1070.

at the time of the removal or retention?

The p e t i t i o n e r must e s t a b l i s h t h a t the removal or r e t e n t i o n was "wrongful" by a preponderance of the evidence.
A. Date of Retention
§

1 1 6 0 3 ( e ) ( 1 ) (A)

When o n e p a r e n t c o n s e n t s t o t h e c h i l d s t a y i n g w i t h a n o t h e r , and that other person l a t e r refuses to return the child, the date of r e t e n t i o n i s t h a t point when the noncustodial parent knows the custodial parent will not return the child. See Zuker v. Andrews,

2 F . S u p p . 2 d . 1 3 4 , 1 3 9 (D. MA. 1 9 9 8 ) ( r e t e n t i o n o c c u r r e d w h e n custodial parent clearly communicated her intention of not returning the child to the noncustodial parent); see also Mozes, 239 F.3d a t 1070-71 (date of retention c l e a r l y the date the mother i n i t i a t e d custody proceedings, even though t h i s date was p r i o r to the end of the agreed-upon stay abroad); see also Slagenweit v. 1 7 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Slagenweit, 8 4 1 F . S u p p . 2 6 4 , 2 6 8

(N.D. IA 1993) (date of r e t e n t i o n

was date c u s t o d i a l parent f i l e d for divorce because on t h a t date i t was c l e a r to a l l t h a t the c u s t o d i a l parent did not intend to return the child to the noncustodial parent); see also Schroeder v. V i g i l - E s c a l e r a Perez, 76 Ohio Misc.2d, 25, 33-34, 664 N.E.2d 627, 632 (1995) (citing Slagenweit in holding date of retention i s

date custody becomes an issue) . Thus, the date of retention i s August 14, 2008, the date Gooch served Riley with the p e t i t i o n for d i s s o l u t i o n of marriage. On t h a t d a t e , d u e t o t h e t e m p o r a r y r e s t r a i n i n g o r d e r , R i l e y c l e a r l y k n e w r e s p o n d e n t s w o u l d n o t r e t u r n ZVG.
B. I m m e d i a t e l y P r i o r t o t h e R e t e n t i o n , I n W h i c h s t a t e Was ZVG H a b i t u a l l y R e s i d e n t ?

Riley must establish, as a threshold matter, that as of August 14, 2008, ZVG's h a b i t u a l residence was Germany. 392 F.3d a t 1014-15. Holder,

Otherwise, the Convention does not apply as

ZVG i s n o t r e t a i n e d i n a s t a t e o t h e r t h a n h e r s t a t e o f h a b i t u a l residence. Id.; see also Elisa Perez-Vera, Explanatory Report
~

58, i n 3 Hague Conference on P r i v a t e I n t e r n a t i o n a l Law, Acts and Documents of the Fourteenth Session, Child Abduction 426 (1982) ("Perez Vera Report").9

III

9The P e r e z - V e r a R e p o r t i s w i d e l y k n o w n a s " t h e o f f i c i a l history and commentary on the Convention and i s a source of background on the meaning of the provisions of the Convention . . . " Mozes, 239 F.3d a t 1070 (internal c i t a t i o n s omitted). The f u l l text of the Perez-Vera Report is available online at http://www.hcch.net/index_en.php?act=pub1ications.details&pid=2779. 1 8 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Because " c h i l d r e n . . . n o r m a l l y l a c k t h e m a t e r i a l a n d psychological wherewithal to decide where they will reside[,]" courts look to the intentions of those entitled to fix the child's residence when determining the h a b i t u a l residence of a c h i l d . Mozes, 239 F.3d at 1076. A young c h i l d may a c q u i r e a new h a b i t u a l (1) through the p a r e n t s ' shared

residence in one of two ways:

settled intention to abandon the i n i t i a l habitual residence; or (2) i f "the o b j e c t i v e f a c t s p o i n t unequivocally t o a p e r s o n ' s ordinary or habitual residence being in a particular place." Mozes, 239 F.3d a t 1081 ( i n t e r n a l c i t a t i o n s omitted). Prior t o December 14, 2007, ZVG's h a b i t u a l residence was c l e a r l y Germany. A s d e s c r i b e d i n my F i n d i n g s o f F a c t a b o v e , R i l e y

i n t e n d e d t o r e t u r n w i t h ZVG t o G e r m a n y 9 0 d a y s a f t e r l e a v i n g . Thus, Riley and Gooch did not have the shared p a r e n t a l i n t e n t to abandon Germany as ZVG's h a b i t u a l residence. Additionally, the facts here do not demonstrate acclimatization sufficient to overcome the lack of shared parental intent. In Holder, the court concluded that a five-year-old child

who " a t t e n d e d k i n d e r g a r t e n , p a r t i c i p a t e d i n s p o r t s p r o g r a m s , a n d accompanied his parents on various excursions" over eight months had not developed "deep rooted t i e s " to Germany. at 1020-21. Holder, 392 F.3d

Younger children have an even more d i f f i c u l t time See Holder, 392 F.3d a t 1021-22 (recognizing t h a t

acclimatizing.

absent a shared parental intent to abandon the child's established habitual residence, " i t i s practically impossible for a newborn c h i l d , who i s e n t i r e l y d e p e n d e n t o n i t s p a r e n t s , t o a c c l i m a t i z e

1 9 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

independent o f t h e i m m e d i a t e horne e n v i r o n m e n t o f t h e p a r e n t s . " ) . L i k e t h e c h i l d r e n i n H o l d e r , ZVG w a s i n t h e U n i t e d s t a t e s f o r exactly eight months prior to the wrongful retention. ZVG l a c k e d t h e s t a b i l i t y o f t h e H o l d e r c h i l d r e n . m o n t h s , ZVG m o v e d o n f i v e s e p a r a t e o c c a s i o n s . However,

During the eight

At less than 13-

m o n t h s - o l d , ZVG c l e a r l y c o u l d n o t d e v e l o p t h e d e e p - r o o t e d t i e s t o the United States necessary to overcome her parents' lack of shared i n t e n t to abandon Germany. Thus, Germany remained ZVG's

habitual residence as of August 14, 2008.
C. Did the Removal or Retention Breach the Custody Rights o f the P e t i t i o n e r Under the Laws o f the Child's Habitual Residence?

The p a r t i e s s t i p u l a t e d t h a t Riley had r i g h t s of custody under German law. (Joint Statement of Stipulated Facts,
~

30.)

Under

the Convention, "rights of custody" specifically include "the right to determine the child's place of residence." Art. 5(a), 19 I.L.M. a t 1501. Convention,

When G o o c h s e r v e d R i l e y w i t h t h e

temporary restraining order, he breached Riley's custody rights.
D. Was t h e P e t i t i o n e r E x e r c i s i n g T h o s e R i g h t s A t t h e T i m e o f the Removal or Retention?

If a petitioner has valid custody rights under the laws of the c h i l d ' s habitual residence, he or she will exercise those rights with nearly any act "short of acts that constitute clear and unequivocal abandonment of the child." 580 F.3d 1000, 1018 (9th Cir. 2009) Asvesta v. Petroutsas,

(internal citation omitted)

U n d e r t h e C o n v e n t i o n , a n d i n a c c o r d a n c e w i t h common s e n s e , a p a r e n t who v o l u n t a r i l y s e n d s a c h i l d t o l i v e w i t h a n o t h e r h a s n o t relinquished custody rights. Baxter v. Baxter, 423 F.3d 363, 371

2 0 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

(3rd C i r . 2 0 0 5 ) ; 5 1 F e d . R e g . a t 1 0 5 0 6 . As s t a t e d a b o v e i n my F i n d i n g s o f F a c t , R i l e y , G o o c h , a n d t h e Duells intended ZVG's s t a y with the Duells to be temporary. Thus,

Riley was exercising her custody r i g h t s a t the time of r e t e n t i o n .
II. Affirmative Defenses

If the petitioner establishes the wrongful removal or retention of a child, the child must be promptly returned to the country of habitual residence unless the respondent establishes an affirmative defense. Convention, Art. 12, 13;
§

11603 (e) (2).

As

d e s c r i b e d a b o v e , R i l e y e s t a b l i s h e d a p r i m a f a c i e c a s e t h a t ZVG w a s wrongfully retained in the United States.
A. T h e Now S e t t l e d D e f e n s e

The court i s not required t o order the r e t u r n of the c h i l d i f the p e t i t i o n for r e t u r n was f i l e d more than one-year from the date of wrongful removal or retention and the respondent demonstrates t h a t t h e c h i l d i s now s e t t l e d i n t h e n e w e n v i r o n m e n t . Convention,

A r t . 12; In r e B. Del C . S . B . , 559 F.3d 999, 1002-3 (9th C i r . 2009). T h e r e s p o n d e n t m u s t p r o v e t h e c h i l d i s now s e t t l e d b y a
§

preponderance of the evidence.

1 1 6 0 3 ( e ) ( 2 ) (B) .

Similar to the habitual residence analysis, the court i n q u i r e s as t o "the c h i l d ' s r e l a t i v e attachments" t o the new country and then determines i f those attachments are so s i g n i f i c a n t as t o r e q u i r e keeping t h e c h i l d i n t h e new country. In r e B. Del C.S.B., 559 F.3d a t 1011 (quoting Mozes, 239 F.3d a t 1081). Respondents must demonstrate "nothing less than

substantial evidence of the child's significant connections to the

2 1 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

new c o u n t r y [ . ] "

I n r e B. D e l C . S . B . , 5 5 9 F . 3 d a t 1 0 0 3 ( q u o t i n g

Public Notice 957, Hague I n t e r n a t i o n a l Child Abduction Convention; Text and Legal A n a l y s i s , 51 Fed.Reg. 10494, 10509 (U.S. D e p ' t o f State, March 26, 1986). In determining whether a child has "significant connections t o t h e new c o u n t r y , " t h e c o u r t c o n s i d e r s a number o f f a c t o r s including: (1) the c h i l d ' s age; (2) the s t a b i l i t y and d u r a t i o n of (3) whether t h e (4) whether the (5) the c h i l d ' s

t h e c h i l d ' s r e s i d e n c e i n t h e new environment; child attends school or day care consistently;

c h i l d has f r i e n d s and r e l a t i v e s i n t h e new a r e a ;

p a r t i c i p a t i o n i n community or e x t r a c u r r i c u l a r a c t i v i t i e s ; and (6) the respondent's employment and financial s t a b i l i t y . C.S.B., 559 F.3d a t 1009. In re B. Del

The c h i l d ' s s t a b i l i t y and duration in Id.

t h e new environment i s g e n e r a l l y t h e most i m p o r t a n t f a c t o r .

A l t h o u g h ZVG a p p e a r s t o b e a v e r y h a p p y t w o - y e a r - o l d , t h e fact remains that she i s only two years old. According to Ted

D u e l l ' s t e s t i m o n y , a s o f t h e h e a r i n g d a t e , ZVG c o u l d a l m o s t m a k e i t t h r o u g h t h e ABCs. Respondents did not cite, and I could not

find, a case in which a court refused to order the return of a t w o - y e a r - o l d c h i l d b e c a u s e t h e c h i l d w a s now s e t t l e d i n h e r n e w environment. Respondents cite Wojcik v. Wojcik, 959 F.Supp. 413 However,

( E . D . MI 1 9 9 7 ) i n s u p p o r t o f t h e i r a r t i c l e 1 2 d e f e n s e . Wojcik involved two children, aged five and eight.

Id. at 421.

Indeed, the court in Wojcik specifically compared the result reached there with another case, involving a three-year-old and a one-year-old, in which that court suggested very young children

2 2 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

have t r o u b l e d e v e l o p i n g s i g n i f i c a n t t i e s t o t h e c o m m u n i t y a n d developing meaningful friendships. See Id. (comparing David S. v.

Zamira S . , 151 Misc.2d 630, 574 N.Y.S.2d 429, 433 (N.Y.Fam.Ct. 1991) ) . Since Zamira, other courts have noted difficulties in determining whether very young children are s e t t l e d . M a r t i n , 2 0 0 8 WL 4 7 1 6 9 5 8 a t * 2 1
fortiori,

In Moreno v.

(S.D. FL), the court concluded, a

" t h a t a t h r e e - y e a r - o l d c h i l d who h a s m o v e d f i v e t i m e s i n (emphasis in

just one and a half years i s not well s e t t l e d . " original).

Although that child attended day care, the court noted [three-year-old child] has the

that " i t is questionable whether a

developmental capacity to engage meaningfully in [regular social, community, or extracurricular a c t i v i t i e s ] and be considered s e t t l e d due to them." Id.

A n o t h e r c o u r t c o n c l u d e d a n i n e - y e a r - o l d who c o m p l e t e d t h r e e years in the same school and had many f r i e n d s both i n and out of school, was "now old enough to experience meaningful t i e s with the United States." 2003). Belay v. Getachew, 272 F.Supp.2d 553, 562 (D. MD

Another court noted that while an eleven-year-old and a

six-year-old were old enough to "allow meaningful connections to t h e new environment t o evolve . . . . c h i l d r e n o f a very young age a r e not." In re Robinson, 9 8 3 F . S u p p . 1 3 3 9 , 1 3 4 5 - 4 6 (D. CO. In

1997) ( c i t i n g Zamira, 151 Misc.2d a t 636, 574 N.Y.S.2d a t 433).

In re Robinson, the c h i l d r e n l i v e d i n t h e same area for 22 months, had active involvement with respondent's extended family, were doing well i n school, had made friends i n and out of school, and

2 3 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

were " a c t i v e p a r t i c i p a n t s i n e x t r a c u r r i c u l a r a c t i v i t i e s s u c h a s Cub S c o u t s , Kampus C l u b , h o c k e y a n d s o c c e r . " 983 F.Supp. a t 1346.

In Zuker, the court concluded the child, four years and two m o n t h s o l d w h e n t h e p e t i t i o n w a s f i l e d , w a s now s e t t l e d . 2 F.Supp.2d at 141. That child had lived in the United States for Id. at 140.

15 months p r i o r t o the f i l i n g of the p e t i t i o n .

However, the respondent i n Zuker submitted much more evidence than r e s p o n d e n t s h e r e i n d e m o n s t r a t i n g t h a t t h e c h i l d w a s now s e t t l e d . Significantly, the Zuker court noted an affidavit from the Executive Director of the child's day care center, stating the child "has grown and thrived academically and s o c i a l l y , " "attends b i r t h d a y p a r t i e s a n d p l a y d a t e s a t h i s home a n d a t t h e homes o f h i s friends[,]" and had "established relationships with teachers, children and other s t a f f . " Id. at 141. This sort of evidence,

c r u c i a l in a case with such a young c h i l d , was e n t i r e l y lacking h e r e . 10 M o r e i m p o r t a n t l y , ZVG w a s o n l y h a l f t h e a g e o f t h e c h i l d

in Zuker at the filing of the respective petitions.

As s t a t e d a b o v e i n my F i n d i n g s o f F a c t , ZVG a t t e n d e d d a y c a r e consistently since August 2008. day care and has some f r i e n d s . same residence since July 2008. walks with the Duells. R e s p o n d e n t s t e s t i f i e d ZVG e n j o y s ZVG l i v e d w i t h t h e D u e l l s , i n t h e ZVG e n j o y s g o i n g o n n e i g h b o r h o o d

ZVG s p e a k s E n g l i s h , b u t n o t G e r m a n .

III
10

1 must note t h a t the p a r t i e s did not conduct much b r i e f i n g or discovery on the w e l l - s e t t l e d issue. This is in large part due to the fact that respondents did not assert t h i s affirmative defense until three days prior to the hearing. 2 4 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

However, d u r i n g h e r t w o y e a r s i n t h e U n i t e d S t a t e s , ZVG h a s moved on five separate occasions. her half-brothers in 16 months. She has not seen her mother or Although Gooch has a close

r e l a t i o n s h i p w i t h ZVG, h e m o v e d o u t o f t h e D u e l l h o m e i n M a r c h 2009. As o n e w o u l d e x p e c t o f a t w o - y e a r o l d , ZVG d o e s n o t p a r t a k e

in any community or extracurricular a c t i v i t i e s , clubs, or sports. I conclude t h a t Gooch and the Duells f a i l e d to e s t a b l i s h t h a t ZVG h a d d e v e l o p e d s u c h s i g n i f i c a n t c o n n e c t i o n s t o t h e U n i t e d States t h a t ordering her return to Germany would be disruptive, with likely harmful effects. Rather, I conclude respondents

d e m o n s t r a t e d t h a t ZVG i s , l i k e m o s t t w o - y e a r - o l d s , v e r y a d a p t a b l e .
B. Consent and Acquiescence

The court i s not required to order the return of the c h i l d i f the respondent establishes, by a preponderance of the evidence, that the petitioner either consented to the removal or retention, or subsequently acquiesced to the prior interference with her custody r i g h t s . Convention, Art. 13(a), 19 I.L.M. a t 1502;
§

11603 (e) (2) (B).

Obviously, one may consent t o a l i m i t e d v i s i t

without relinquishing the future r i g h t to demand the c h i l d ' s return. Wanninger v. Wanninger, 850 F.Supp. 78, 82 (D. M a s s .

1994); Baxter v. Baxter, 423 F.3d 363, 371-72 (3rd Cir. 2005). Thus, the scope, terms, and conditions of an agreed upon v i s i t are relevant to the consent inquiry. Baxter, 423 F.3d a t 371-72.

As s t a t e d a b o v e i n my F i n d i n g s o f F a c t , a l l o f t h e p a r t i e s involved believed the Duells would watch the children for a short time only, a f t e r which the children would be returned to Riley and

2 5 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

Gooch.

A d d i t i o n a l l y , a s s t a t e d a b o v e i n my F i n d i n g s o f F a c t ,

Meyer, Polson, and Clagett t e s t i f i e d Riley's actions at the time w e r e n o t c o n s i s t e n t w i t h t h e a c t i o n s o f o n e who h a d c o n s e n t e d . To d e m o n s t r a t e p e t i t i o n e r ' s s u b s e q u e n t a c q u i e s c e n c e , t h e respondent must demonstrate "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a

convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Baxter, 423 F.3d a t 371. This defense requires an inquiry into Id.

the petitioner's subjective intent.

The Duells point to the email exchange between Riley and Bonnie Duell on November 21, 2008 as objective evidence demonstrating Riley's acquiescence. 'and Bonnie Duell, 20.) (Trial Brief for Resp'ts Ted

A s I s t a t e d i n my F i n d i n g s o f F a c t a b o v e ,

I found credible Riley's testimony concerning her subjective intent in the emails. Considering that intent, the circumstances

involved in the retention, Riley's relationship with Bonnie Duell, and the fact t h a t Riley was s t i l l looking for l e g a l a s s i s t a n c e to secure ZVG's r e t u r n , the emails are not evidence of acquiescence. For similar reasons, I conclude that Riley's silence for nearly three months after the wrongful retention i s understandable. Gooch and the Duells t e s t i f i e d t h a t p r i o r to leaving the U . S . , R i l e y n e v e r s p e c i f i c a l l y r e q u e s t e d t h a t t h e y r e t u r n ZVG. However, a f t e r being rebuffed by the local authorities and subsequently served with a restraining order issued by the s t a t e of Oregon, Riley had no f u r t h e r reason t o request ZVG's r e t u r n

2 6 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

from G o o c h o r t h e D u e l l s d i r e c t l y .

Riley's relationship with the For

Duells, always acrimonious, had completely deteriorated.

example, although by t h i s time Riley knew the Duells would not r e t u r n ZVG, s h e a s k e d B o n n i e D u e l l t o p u r c h a s e p l a n e t i c k e t s t o Germany for h e r s e l f and her sons. Bonnie Duell refused, stating

that she could not afford to pay for the divorce and the plane tickets. Further, Riley was in the country i l l e g a l l y and was Considering the

worried about the state taking her sons.

circumstances, I do not consider the above evidence of acquiescence. I also considered the testimony of Polson, Meyer, Hoover, and Flanders. Their testimony demonstrates that rather than

a c q u i e s c i n g t o ZVG s t a y i n g w i t h G o o c h a n d t h e D u e l l s , R i l e y w a s distressed with the situation and actively attempted to secure ZVG's r e t u r n . Additionally, the fact that Riley obtained an

a t t o r n e y i n January 2009 to secure ZVG's r e t u r n i s compelling evidence t h a t Riley did not acquiesce. ll F i n a l l y , a s s h o w n i n my

Findings of Fact above, Riley's tone in her emails with Bonnie Duell changed dramatically after Riley secured an attorney. Thus,

although Riley did not f i l e the petition for return until one year and 13 days a f t e r the wrongful r e t e n t i o n , I conclude that Riley

clearly did not exhibit a "consistent attitude of acquiescence over a significant period of time."

III

llAs noted above, t h a t a t t o r n e y f a i l e d t o advise Riley o f the Convention. 2 7 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

c.

G r a v e R i s k o f P h y s i c a l o r P s y c h o l o g i c a l Harm

A court shall not order the return of a child i f respondent establishes, by clear and convincing evidence, that there i s a grave risk of physical or psychological harm i f the child i s returned. Convention, Art. 13(b), 19 I.L.M. a t 1502. A serious

risk of harm i s not enough to prevent the prompt return of a wrongfully removed or retained child; the risk must be grave. See

Gaudin v. Remis, 415 F.3d 1028, 1036-37 (9th. Cir. 2005) (quoting 51 Fed.Reg. a t 10509). Although the living situation prior to

removal may be r e l e v a n t , the focus i s on the s i t u a t i o n i n t o which the child would be returned. Baxter, 423 F.3d a t 374.

To t h e e x t e n t r e s p o n d e n t s a t t e m p t e d t o e s t a b l i s h t h i s affirmative defense, they failed to meet the stringent burden that r e t u r n i n g ZVG t o R i l e y p r e s e n t s a g r a v e r i s k o f i m m e d i a t e h a r m t o ZVG. Although respondents presented evidence that Riley abused

alcohol and p r e s c r i p t i o n pain medication approximately 16 months ago, I do not find t h a t to be t r u e .

III III III III III III III III III
2 8 - FINDINGS OF FACT AND CONCLUSIONS OF LAW

CONCLUSION

Riley established, by a preponderance of the evidence, that ZVG w a s " w r o n g f u l l y r e t a i n e d " i n t h e U n i t e d S t a t e s . nor the Duells established an affirmative defense. Neither Gooch Thus, under

the Convention, I ordered ZVG's prompt r e t u r n to Germany, her country of habitual residence.

DATED t h i s

Day o f J a n u a r y , 2010.

OWEN M. PANNER U . S . D I S T R I C T JUDGE

& ~ & f ~ -"

2 9 - FINDINGS OF FACT AND CONCLUSIONS OF LAW