United States District Court, W.D. Pennsylvania
MARK R. HORNAK, District Judge.
Before the Court is Paula Mary Bowen's Verified Complaint/Petition for Return of Child ("Verified Petition"), pursuant to the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention"), T.I.A.S. No. 11, 670, 19 I.L.M. 1501 (Oct. 25, 1980),  in which Ms. Bowen seeks the return of her ten year-old child, Gregory Patrick Bowen ("Patrick"), to Northern Ireland. For the reasons set forth below, this Court will deny Ms. Bowen's Verified Petition.
The saga of the Bowens' marriage is one fraught with turmoil. The following facts are derived from the record in this case, including the Verified Petition, ECF No. 1, Mr. Bowen's Answer, ECF No. 5, the evidentiary hearings, the Guardian ad Litem's reports, ECF Nos. 19 and 26, and the exhibits submitted into evidence. Ms. Bowen, the Petitioner, is Caucasian and a citizen of Northern Ireland, and the Respondent, Mr. Bowen, is an African-American citizen of the United States. Mr. Bowen is unemployed and resides in Pittsburgh, Pennsylvania, where he receives Supplemental Security Income ("SSI") and Patrick's welfare checks. Ms. Bowen lives off welfare and her savings in Northern Ireland. The litigants met in Pittsburgh while Ms. Bowen was working at a Pittsburgh hotel on a visa exchange program. The Bowens married on July 30, 2002, and shortly thereafter moved to Tennessee, where Patrick was born on April 10, 2003.
The parties' marriage was tempestuous from the start, and they separated for a period of time in Tennessee. Upon reconciling, the Bowens moved to Florida, where Mr. Bowen served jail time for cocaine possession. Ms. Bowen testified that while the parties were together in Florida, Mr. Bowen threw an ash tray at her and she obtained a restraining order against him. Then in November of 2005, Ms. Bowen, pregnant with the parties' next child, Chloe, moved back to Northern Ireland, taking Patrick with her. Chloe was then born.
Mr. Bowen traveled to Northern Ireland in 2006, seeking to reconcile with Ms. Bowen, They reconciled and on September 3, 2007, Ms. Bowen gave birth to their third child, Paul. Ms. Bowen testified that the Bowens' marriage was peaceful until 2007, when Mr. Bowen developed an addiction to pain medication and sought out recovery at a methodone clinic. Ms. Bowen testified that Mr. Bowen was abusive towards her, and that during one episode, Mr. Bowen shouted at her and grabbed her arm, such that she left Mr. Bowen, out of fear, to stay at a women's shelter for about a month. She also obtained a restraining order against him. Mr. Bowen, on the other hand, testified that he never hit or threatened to hit Ms. Bowen, and that he witnessed approximately seven (7) occurrences when Ms. Bowen hit Patrick on the head.
While Ms. Bowen was living at the women's shelter, Mr. Bowen applied for and was granted visitation to see the parties' children. Around the summer of 2011, the parties reconciled. Ms. Bowen testified that while the family was together in Northern Ireland, Patrick did not experience any incidents of racism at school. Ms. Bowen also testified that Mr. Bowen exaggerated his experience with racism in Northern Ireland, and explained that she and he conspired with a mutual friend to set up an April 14, 2012 firebombing of Ms. Bowen's vehicle. After she and he executed this plan, Mr. Bowen claimed that the firebombing was a racist attack, when instead it was a ploy to get the insurance proceeds from Ms. Bowen's destroyed car. Ms. Bowen testified that she received approximately 1, 000 Pounds (GBP) in insurance proceeds from her firebombed vehicle, money that she then used for household bills, food, and looking after her children. Mr. Bowen maintained during his testimony that Ms. Bowen's admission under oath was the first he had heard of any firebomb-related insurance fraud plot, and surmised that Ms. Bowen's vehicle was probably firebombed to harass his family.
In May of 2012, Ms. Bowen received inheritance money from her mother. Ms. Bowen used this money to buy five (5) one-way plane tickets for her, Mr. Bowen, and their three children, so that the Bowen family could relocate to the United States. Meanwhile, Ms. Bowen had a ten-year ban on her visa to enter the United States, which she claims was due to her overstaying her visa during her previous visit to this country, and which Mr. Bowen claims was due to her removal of Patrick from the United States in 2005, and the ensuing (but unrelated) legal proceedings at that time. No party presented any documentation or corroborating evidence of their respective "visa explanation."
Ms. Bowen's Verified Petition sets forth that it was the shared intention of her and her husband to relocate their family to the United States. Verified Petition at ¶ 12. Mr. Bowen and Patrick ultimately relocated to the United States. However, Ms. Bowen testified that due to difficulties in her marriage and her visa complications, she ultimately "decided" not to relocate to the United States. Ms. Bowen contends that she never contemplated that Patrick and Mr. Bowen would move to the United States permanently and without her and the remainder of the family. Id. at ¶ 18. Ms. Bowen expanded upon this premise in her testimony, stating that she wanted Mr. Bowen to stay in Northern Ireland until her visa situation was resolved but Mr. Bowen disagreed, and she did not protest because she was afraid of him.
Mr. Bowen testified that on the day that the Bowens were all supposed to leave Northern Ireland, their travel agent informed them that Ms. Bowen's visa problems persisted. Mr. Bowen contends that he and Ms. Bowen agreed that he and Patrick would depart as scheduled for the United States, where Mr. Bowen would work to resolve Ms. Bowen's visa issues so that the family could reunite. Mr. Bowen also stated that he could not stay in Northern Ireland because his legal immigration status there had expired, and he could not obtain his necessary disability benefits.
On July 20, 2012, Mr. Bowen and Patrick left Northern Ireland for the United States, where they moved in with Clara Jones, Mr. Bowen's ex-sister-in-law, and her husband Ricky Jones, in Pittsburgh, Pennsylvania. After arriving in Pittsburgh, Mr. Bowen swiftly made inquiries about legal representation to resolve Ms. Bowen's visa issue. He paid $500.00 to Attorney Mark A. Goldstein and signed a July 24, 2012 representation agreement with Goldstein and Associates for immigration legal services. See Resp.'s Answer, ECF No. 5, at 9.
In November of 2012, Ms. Bowen wrote a letter to Mr. Bowen asking that he "do the right thing" and return Patrick to Northern Ireland. However, from the time of Mr. Bowen and Patrick's arrival in Pittsburgh until Mr. Bowen was served with Ms. Bowen's Verified Petition, Mr. Bowen spoke on a weekly basis with Ms. Bowen, and Mr. Bowen testified that he was under the impression that Ms. Bowen and their other children still planned to move to the United States after Ms. Bowen's visa issues were straightened out.
Mr. Bowen testified that in late May of 2013, he learned that Child Protective Services in Northern Ireland had allegedly removed the parties' two other children from Ms. Bowen's care and custody as a result of their youngest child's claims that Ms. Bowen pushed him down a flight of stairs. On May 24, 2013, Ms. Bowen filed a Verified Petition in this case, seeking the return of Patrick to Northern Ireland, Patrick's alleged habitual residence, pursuant to the Hague Convention. On June 11, 2013, Mr. Bowen was served with Ms. Bowen's Verified Petition.
On September 20, 2013, this Court appointed Patricia L. Dodge, an attorney admitted to practice law in Pennsylvania and before this Court, as Guardian ad Litem for Patrick, to represent his interests as a citizen of the United States in this action. On December 12, 2013, Ms. Dodge (hereinafter "GL") filed a Summary Report of Guardian ad Litem ("Summary Report"), in which she set forth her assessment of Patrick and Patrick's interests after meeting with him on two occasions at his current residence in Pittsburgh, Pennsylvania.
On December 16 and 17, 2013, this Court held an evidentiary hearing on Ms. Bowen's Verified Petition. During this two-day hearing, Ms. Bowen testified from Northern Ireland via video conference, and Mr. Bowen testified before this Court. At the hearing, the GL stated that Patrick had been told, since the GL's last visit, that Ms. Bowen would not be moving to the United States with his siblings. The GL explained that she would visit Patrick again and evaluate the minor child's interests in light of this development in the case. On January 21, 2014, the GL filed a Supplemental Report of Guardian ad Litem ("Supplemental Report"), in which she set forth her impressions and conclusions regarding Patrick's interests after meeting with him again and reviewing his school records that she obtained from Fairless Intermediate School (which she subsequently filed under seal with this Court).
A. Legal Framework
1. Hague Convention
The Hague Convention is a multilateral treaty on parental kidnapping to which the United States and the United Kingdom are signatories. See 53 Fed. Reg. 23843-01. The federal International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq. ("ICARA"), implements the Hague Convention and entitles a person whose child has been wrongfully removed to the United States to petition a federal court to order the child returned. 42 U.S.C. § 11603(b); see Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3d Cir. 2007) ("A person claiming that a child has been wrongfully removed to or retained in the United States can commence judicial proceedings under the Hague Convention by filing a petition for the return of the child in a state or federal court which has jurisdiction where the child is located.") (citing 42 U.S.C. § 11603(b)).
The Hague Convention reflects a universal concern about the harm done to children by parental kidnapping, the belief that persons "should not be permitted to gain custody of children by virtue of their wrongful removal or retention, " and that "only concerted cooperation pursuant to an international agreement can effectively combat" the problem of the increase in international abductions and retentions of children. 42 U.S.C. § 11601(a)(1)-(4). Indeed, the two main objects of the Hague Convention are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State, " and "to ensure 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.
Importantly, the Convention's procedures are not designed to settle international custody disputes, but rather, to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases. Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005); see also Hague Convention, art. 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."); id. at art. 16 (providing that "until it has been determined that the child is not to be returned under the Convention, " the state to which the child has been removed or in which the child has been retained "shall not decide on the merits of rights of custody"). Ultimately, "the Hague Convention is designed to put all participants in a custody dispute back into the positions they would have been in but for one parent's wrongful removal of the child. It is not, and was never meant to be, a vehicle for determining custody rights." Carrascos v. McGuire, 520 F.3d 249, 260 (3d Cir. 2008).
2. Wrongful removal.
To secure the return of an abducted child under the Hague Convention, the petitioner must first prove by a preponderance of the evidence that "the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1). Under Article 3 of the Convention, removing a child from a country is wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph [a] above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Hague Convention, art. 3. Our Court of Appeals has enunciated four questions that must be answered in a wrongful removal or retention case: (1) when the removal or retention took place; (2) the child's habitual residence immediately prior to such removal or retention; (3) whether the removal or retention breached the petitioner's custody rights under the law of the child's habitual residence; and (4) whether the petitioner was exercising his or her custody rights at the time of removal or retention. Tsui, 499 F.3d at 270-71.
A child's habitual residence is "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." Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995). "This approach considers a child's experiences in and contacts with her surroundings, focusing on whether she developed a certain routine and acquired a sense of environmental normalcy by forming meaningful connections with the people and places she ...