IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
_____ *
c/o _____
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England
United Kingdom *
Petitioner, *
v. *
_____ * Civil Case No.: XXXX
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and *
_____ *
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and *
_____ *
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Respondents *
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VERIFIED PETITION FOR RETURN OF CHILD TO PETITIONER
AND FOR ISSUANCE OF SHOW CAUSE ORDER FORTHWITH
The Convention on the Civil Aspects of International Child Abduction, done at The Hague
On October 25, 1980; International Child Abduction Remedies Act, 42 U.S.C. 11601 et seq.
I. Preamble
1. This Petition is brought pursuant to The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980[1] (thereinafter the “Hague Convention" or “Convention"), a copy of which is attached thereto as Exhibit A, and the International Child Abduction Remedies Act [2] (thereinafter "ICARA"). The Convention came into effect in the United States of America on July 1, 1988 and was also ratified between the United States of America and the United Kingdom July 1, 1988.
2. The objects of the Convention are as follows: (1) to secure the immediate return of children wrongfully removed or wrongfully retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States. Convention, art. 1.[3]
II. Jurisdiction
3. This Court has jurisdiction pursuant to 42 U.S.C. § 11603 (1995)[4] and because this case involves the removal and retention of a child under the age of sixteen from her habitual residence of England, United Kingdom to the United States of America.[5]
III. Status of Petitioner and Child
4. The Petitioner, _____ (_____), and the Respondent, _____ (_____), are the parents of _____ (_____ or the “child”). _____ and _____ were divorced in England on September 26, 2000. _____ (_____) and _____ (_____) are the maternal grandparents of the child.
5. _____ is now six (6) years old. A copy of the child’s birth certificate is attached as Exhibit B. The Convention applies to cases where a child under the age of sixteen (16) years has been removed from his or her habitual residence[6] in breach of rights of custody of a petitioner, which the petitioner had been exercising at the time of the wrongful removal[7] or wrongful retention[8] of the child.
6. At the time of _____ wrongful removal and retention of the child (as specifically set forth in Part IV below), _____ was actually exercising custody rights within the meaning of Articles Three and Five of the Convention,[9] in that he is the father of _____ and has exercised custody rights over his daughter since she were born. Furthermore, _____ was habitually resident in England within the meaning of Article 3 of the Convention since her birth until her wrongful removal from England in March 2002.
7. _____ has requested the return of his daughter to England pursuant to his Request for Return, a copy of which is attached hereto as Exhibit C.[10] The Request for Return has been filed with the United States Department of State and the National Center for Missing and Exploited Children, the Central Authority of the United States of America under the Convention.
8. _____ was born on May 6, 1996 in England and will therefore be sixteen (16) years of age on May 6, 2012. At the time immediately before the wrongful removal and wrongful retention of _____, the child habitually resided in England within the meaning of Article 3 of the Convention. At the time of _____ application to the Central Authority of the United States of America, _____ was located in the Contracting State of the United Kingdom .
IV. Wrongful Removal and Retention of Child by Respondent
9. _____ has rights of custody under English law pursuant to Section 2(1) of the Children Act 1989 (the “Act”). A true and correct copy of the aforementioned Act is hereto attached as Exhibit D. Section 2(7) of the Act preserves the operation of other statutory provisions, including Section 1 of the Child Abduction Act 1984, which requires the consent of more than one person in matters affecting the child. Section 1 of the Child Abduction Act 1984 prohibits parents or guardians from taking a child out of the United Kingdom without the appropriate consent. A true and correct copy of the aforementioned Child Abduction Act is hereto attached as Exhibit E. Since removing _____, _____ has wrongfully retained _____ in the United States of America. During this time, _____ has had absolutely no contact with his daughter.
10. On April 4, 2002, _____ failed to appear for a hearing before the Brighton County Court in England, which had been scheduled since December 14, 2001. The hearing was scheduled in order to address questions concerning rights of custody regarding _____. As a result of serious concerns regarding the whereabouts of _____ and _____, _____ was made a Ward of the Court on April 4, 2002.
11. The Court was subsequently advised by _____ maternal grandfather, _____, that he had purchased airline tickets for _____ and _____ to travel to the United States to stay with _____ sister. _____ and _____ left England on March 13, 2002. Upon information and belief, at the time of the removal, _____ never intended returning _____ to England.
12. After _____ abduction, the High Court of Justice, Family Division, ordered that _____ return _____ immediately to the jurisdiction of England. A true and correct copy of the April 18, 2002 Order is attached as Exhibit F.[11]
13. In light of the aforementioned English proceedings, the Act, the Child Abduction Act 1984, and the Convention, the child is currently being illegally held in custody, confinement and/or restraint by _____. Unless this Court takes immediate action to bring _____ and the child before the Court, irreparable harm will occur to the well being of _____ in that the child is being denied all proper access to her father and her home, school, friends and culture, and is being wrongfully detained in South Carolina. Unless a show cause order is issued forthwith, _____ will continue to have no meaningful contact whatsoever with his daughter.
14. _____ has never acquiesced or consented to the removal of _____ from England or the child’s retention outside of England.
V. Provisional Remedies[12]
15. _____ requests that the Court issue a show cause order and direct that the order be served immediately by a United States Marshal on _____, _____, and _____ and that they be brought before this Court with the child forthwith.[13] Section 5(b) (Provisional Remedies) of ICARA provides, inter alia, that, in a proceeding under Section 4(b) for the return of a child, “No court exercising jurisdiction . . . may . . . order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.” 42 U.S.C. § 11604. In this case, the State law referred to in Section 5(b) is that of South Carolina. In South Carolina, the Uniform Child Custody Jurisdiction Act (“UCCJA”) is the source for statutory law governing, inter alia, the resolution of both domestic and international child custody disputes. S.C. Code Ann. §20-7-782 et seq. (2001). South Carolina law addresses the appearance of the parties and the child in such cases in section 20-7-804 of the UCCJA. That section authorizes this Court to order the appearance of the child and custodian or custodians together. Id. This Court therefore has the authority to order the immediate appearance of _____, _____, _____ and the child together.
16. _____ requests, for the well being of _____, that he be given immediate access to his daughter, pending further hearing in this Court.
17. Pending further hearing in this Court, it is requested that this Court issue an immediate order prohibiting the removal of _____ from the jurisdiction of this Court, taking into safe-keeping all of the child’s travel documents, and setting an expedited hearing on the Petition for Return of Child to Petitioner.[14]
VI. Relief Requested
18. WHEREFORE, _____ respectfully requests the following relief:
a. an Order directing that the name of the child be entered into the national police computer system (N.C.I.C.) missing person section;
b. an Order directing a prompt return of the child to her habitual residence of England;
c. the issuance of an Order directing that the child, together with _____, _____ and _____, be brought into this Court by any United States Marshal, federal officer or police officer;
d. the issuance of an immediate Order prohibiting the removal of the child from the jurisdiction of this Court;
e. an Order commanding _____, _____, and _____ to appear in this Court with the child to show cause why the child has been kept from her father;
f. an Order directing _____, _____ and _____ to pay _____ legal costs and fees; and
g. any such further relief as justice and its cause may require.
VII. Notice of Hearing
19. Pursuant to 42 U.S.C. § 11603(c), _____ will be given notice of any hearing in accordance with S.C. Code Ann §20-7-790 of the UCCJA.[15] Additionally, _____ counsel in South Carolina will also be given the appropriate notice of any hearing.
VIII. Attorneys’ Fees and Costs Including Transportation Expenses Pursuant to
Convention Article 26 and U.S.C. 11607
20. _____ has incurred substantial expenses as a result of the wrongful removal and retention of the child by _____. _____ will submit a copy of all expenditures as soon as practicable and possible and will amend these costs, from time to time, according to proof and in light of further expenditures required because of this wrongful removal and retention.
21. _____ respectfully requests that this Court award all legal costs and fees incurred to date as required by 42 U.S.C. 11607, reserving jurisdiction over further expenses.
IX. Declaration Pursuant to Uniform Child Custody Jurisdiction Act[16]
22. The details regarding _____ that are required to be provided under the UCCJA are as follows:
· The present address of _____ is believed to be _____ .
· In the last five (5) years, _____ has lived at the following address: ______.
· _____ has participated as a party in the English litigation set forth in the attached Exhibits concerning the custody of _____.
· Other than the English litigation set forth above, _____ does not have information of any custody proceeding concerning the child pending in any other court of this or any other state.
· _____ does not know of any person or institution not a party to the proceedings who has physical custody of the child or claims to have rights of parental responsibilities or legal custody or physical custody of, or visitation or parenting time with, the child other than the aforementioned High Court of Justice, Family Division.
VERIFICATION
I, _____, solemnly declare and affirm under the penalties of perjury and the laws of the United States of America, that the contents of the foregoing Petition are true to the best of my knowledge, information and belief.
______
Date _____
______
_____, Esquire
______
_____, Esquire
_____, Esquire
Attorneys for Petitioner,
_____
10
[1] T.I.A.S. No. 11,670, at 1, 22514 U.N.T.S. at 98, reprinted in 51 Fed. Reg. 10493 (1986).
[2]
42 U.S.C. 11601 et seq. (1995). ICARA was created to deal with the sudden abduction of children and to allow a petitioner to assert his or her rights in exigent circumstances. See Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998).
[3] The Fourth Circuit has previously noted that American courts will normally accord considerable deference to foreign adjudications as a matter of comity and that, indeed, comity is at the heart of the Hague Convention. Miller v. Miller, 240 F.3d 392, 400 (2001) Furthermore, the Fourth Circuit has stated that a court’s inquiry under the Hague Convention is limited to the merits of the abduction claim, and that the merits of any underlying custody case are not at issue. Id. at 398. As has been stated by other courts addressing Hague cases, the Convention therefore authorizes a federal district court to determine the merits of the abduction claim but does not allow it to consider the merits of any underlying custody dispute. Fawcett v. McRoberts, 168 F.Supp.2d 595 (W.D. Va. 2001); see also Morris v. Morris, 55 F. Supp. 2d 1156, 1160 (D. Colo. 1999) (recognizing that “[p]ursuant to Article 19 of the Convention, [this Court has] no power to pass on the merits of custody”); see also Currier v. Currier, 845 F. Supp. 916 (D. N.H. 1994) citing Friedrich v. Friedrich, 983 F.2d 1396, 1399 (6th Cir. 1993); Meredith v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991). The court’s role is not to make traditional custody decisions but to determine in what jurisdiction the children should be physically located so that the proper jurisdiction can make those custody decisions. Loos v. Manuel, 651 A.2d 1077 (N.J. Super. Ct. Ch. Div. 1994).
[4] A court considering an ICARA petition has jurisdiction to decide the merits only of the wrongful removal claim, not of any underlying custody dispute. The Hague Convention is intended to restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court. Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998) (citations omitted).