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MCCULLOUGH v. MCCULLOUGH

May 12, 1998

In re: Application of: Randy Blake McCullough, on behalf of Zachary Blake McCullough and Victoria Sharon Louise McCullough, RANDY BLAKE McCULLOUGH, Petitioner
v.
MARY ANN McCULLOUGH, Respondent



The opinion of the court was delivered by: SMITH

MEMORANDUM ORDER

 D. BROOKS SMITH, District Judge

 This memorandum order is issued in support of the Order And Warrant Of Arrest, docket no. 4, which I issued in this matter yesterday, May 11, 1998. That morning, Randy Blake McCullough (hereinafter "petitioner"), filed a Petition and Complaint for Return of Child to Petitioner and For a Warrant in Lieu of a Writ of Habeas Corpus, docket no. 1, pursuant to The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 October 1980 (hereinafter "the Convention"), and the International Child Abduction Remedies Act (hereinafter "ICARA"), 42 U.S.C. § 11601 et seq. Petitioner sought, inter alia, extraordinary ex parte relief.

 Petitioner averred that his wife, Mary Ann McCullough (hereinafter "respondent"), wrongfully removed their children, Zachary Blake McCullough and Victoria Sharon Louise McCullough, from their residence at 66 Stanley Avenue, Kitchener, Ontario, Canada, and that she was wrongfully retaining them in her parents' home located in Barnesboro, Cambria County, Pennsylvania. Petitioner, appearing ex parte with his counsel, testified that he lived with respondent and their children in Kitchener, Ontario until Monday, March 23, 1998. On Sunday, March 22, 1998, petitioner, a self-employed truck driver, left for his usual weekly trucking run which lasts two to three days. He telephoned home that evening, spoke with respondent and said "goodnight" to the children. On the evening of Monday, March 23, 1998, petitioner again telephoned home to talk with his wife and children, but his telephone calls went unanswered.

 The next morning, on Tuesday, March 24, 1998, at 7:43 A.M., petitioner telephoned the home of Gloria and Leroy Keith, respondent's parents, to inquire if they knew the whereabouts of their daughter. Petitioner was advised that respondent was at the Keith residence with the children. During a brief telephone conversation with the respondent, petitioner was advised that the "end time" was near and that she and their children would not be returning to Canada.

 Petitioner understood the reference to the "end time" as a statement which related to his wife's religious beliefs as a member of the Philadelphia Church of God. It is petitioner's understanding that respondent, as a member of that sect, must be ready to flee to Petra, Jordan if and when the church's leader directs. Apparently, adherents believe that only by escaping to Petra will God save them from an apocalyptic event. According to petitioner, respondent considers such a directive from the leader as tantamount to a command from God. It is also petitioner's understanding that some members of the church have already traveled to Jordan.

 Because the petitioner feared that respondent might flee with their children, he contacted an attorney in Canada. Based on the advice of his Canadian counsel, petitioner filed a petition with the Attorney General in Canada under the Convention in the hope of regaining physical custody of the children, thereby enabling him to proceed with a custody case in Ontario. Petitioner filed the instant proceeding after seeking relief under the Convention and ICARA.

 Only a handful of courts have been confronted with cases arising under the Convention and ICARA. Fortunately, the Court of Appeals for the Third Circuit has decided one such case of first impression. In Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995), the Third Circuit was presented with a petition under the Convention for the return of a child wrongfully retained in the United States. The court noted that:

 
The Convention's approach to the phenomenon of international child abduction is straightforward. It is designed to restore the "factual" status quo which is unilaterally altered when a parent abducts a child and aims to protect the legal custody rights of the non-abducting parent. Thus the cornerstone of the Convention is the mandated return of the child to his or her circumstances prior to the abduction if one parent's removal of the child from or retention in a Contracting State has violated the custody rights of the other, and is therefore, "wrongful."

 Id. at 221 (citing Hague Convention, Article 12). The removal or retention of a child is "wrongful" under the Convention if it breaches the "rights of custody attributed to a person . . .either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention" and such custody rights were actually being exercised. Hague Convention, Article 3. "For purposes of the Convention, "'rights of custody' shall include rights relating to the care of the person of the child, and in particular, the right to determine the child's place of residence." Feder, 63 F.3d at 221 (quoting Hague Convention, Article 5a).

 In Feder, the threshold question facing the court was the situs of the minor child's habitual residence. The mother had removed the child from Australia and had retained him in her new home in Jenkintown, Pennsylvania, causing the father to petition under the Convention for the return of the child. The district court concluded that the child's habitual residence was Jenkintown, Pennsylvania and that the mother's retention of the child there was not wrongful. Accordingly, the district court concluded that the Convention was inapplicable and denied the father's petition.

 After reviewing the few cases which have construed the term "habitual residence of a child," the Third Circuit defined this term to mean "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Id. at 224. The court concluded that the child's habitual residence was Australia, contrary to the district court's adjudication. Accordingly, the Feder court, in applying the Convention, had to decide whether the father had custody rights which were breached by the mother's retention of the child in Pennsylvania and, if so, whether the father had actually been exercising those rights at the time of the wrongful retention. Id. at 225. The court answered those questions in the affirmative and vacated the district court's denial of the father's petition, remanding the matter for a determination of whether any exceptions to mandatory return applied. Id. at 226.

 In Feder, the petition for the return of the child was served upon the mother before any hearing was held. In the case before me, however, petitioner did not serve his initial pleading upon the respondent because he contended that notice would only serve as an impetus for her to flee to Jordan. Consequently, petitioner requested that this court: (1) issue a "warrant of arrest" for the two children, Zachary and Victoria McCullough; (2) order that physical custody be given to petitioner; (3) give respondent notice of a hearing to be held promptly on the merits of petitioner's petition seeking the return of the children to Ontario; and (4) order the return of the children to Canada.

 Accordingly, this court had to promptly determine an issue not addressed in Feder : the propriety of an ex parte request to seize children who were alleged to have been wrongfully removed from their "habitual residence." Under the ICARA, which implements the Convention, any court exercising jurisdiction of an action seeking the return of a child "may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a). At the same time, the Act prohibits a court from granting a provisional remedy pursuant to § 11604(a) which would remove a child from "a person having physical control of the child unless the applicable requirements of state law are satisfied." 42 U.S.C.A. § 11604(b). ...


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