On August 7 of 2017, the Third Circuit Court of Appeals decided a case under the Hague Convention on the Civil Aspects of International Child Abduction.  Since we don’t see much child custody litigation in federal courts nor do we see many Hague cases, this one merits a closer look.

J[ay] Blackledge was born in the Ukraine in 2008 but is a United States citizen.  At the time this litigation was before the courts Mother, a Ukranian citizen, resided in Pittsburgh, Pennsylvania and Father, a U.S. citizen, resided in Germany.  After living in a variety of Eastern European nations, in 2011 Father secured his job in Munich, Germany and Mother became a graduate student in Pennsylvania.  The family continued to live on separate continents with the child being with Mother in Pennsylvania and Father in Germany.  Although Father indicated that the goal was reunification at some place that location was never really agreed upon.

In Summer, 2013 Jay needed surgery in Pittsburgh and Father returned to the U.S. for that event.  While here Father sought stateside employment.  He did not succeed and in August, 2013 Mother and child left for Germany based upon an understanding that she would join Father there unless a mutually beneficial opportunity arose.  This was the child’s first visit to Germany.

Having moved to Germany Mother enrolled the child in an international school and resumed her graduate program via electronic connection. By August, 2015 the marriage had soured and Mother wanted to return to Pennsylvania to complete her Ph. D.  There appears to have been agreement that a return to Pennsylvania until 2018 was the best for Jay.

The child returned to Pennsylvania, excelled at school during the 2015-16 academic year and otherwise integrated well into the community. This opinion from the Third Circuit Court of Appeals of the United States reads like a celebration of how seven year old J[ay] enjoyed everything from his love of Penguins hockey to the sylvan bliss of Frank Lloyd Wright’s masterpiece of architecture at Fallingwater.  While J[ay] was soaking up the culture and other benefits of life in Pennsylvania, his Father was writing from Germany that if he could not secure stateside employment, relocation of the family to another country might need to be considered.  Mother responded that she was not rejecting the idea but that J[ay] seemed well adjusted in Pittsburgh and that other homes might be disruptive or not consistent with what the seven year old “wanted.”  Father’s response is equally naive, suggesting that a child this young might benefit from a one year on/one year off arrangement on two different continents.  Father’s first proposal was that the next academic year be in Germany and he implied this was agreed in his pleadings.  Mother did not openly disagree with this “understanding.”  The couple seemed to clearly understand that living near each other and the child would be best.  But failing that, the proposed solutions ranged narrowly from alternating year to year or accepting Pittsburgh as the primary place of residence.

Mother filed a custody action in Allegheny County which was was granted and the Common Pleas Court held that summers and holidays would be with Father but the academic year would be in Allegheny County.  It is not clear what Father knew about that order a few days later when he proposed that J[ay] come to Germany for the summer and stay to attend school in Germany.  There is a suggestion in the Third Circuit opinion, presented without citation, that Father believed the Pennsylvania Court had no authority to make its interim order.  In early July, 2016 Father filed in the U.S. District Court asking for return of the child under the terms of the Hague Convention.  The Federal District Court held a two day trial in August.  This included an interview of the child and a variety of “best interest” witnesses.  The Trial Court concluded that Mother was the more credible witness.  It ruled against the Hague petition on August 19, 2016.  In so doing it decided that: (1) Pennsylvania was the habitual residence based upon the child’s testimony; and, (2) Mother’s retention was not wrongful.  Accordingly, Pennsylvania would continue to exercise jurisdiction.  Father’s appeal asked that he be awarded custody while proceedings take place in Germany, where he was residing.

The Circuit Court ruled that the issue of habitual residence was a mixed one of law and fact and that there are two sets of inquiries when addressing “habitual residence.” The first was shared parental intention and the second, the child’s acclimatization.  The Court noted that its role is to restore that status quo prior to any wrongful removal or retention.  The stated object is to prevent forum shopping.  Father, as Petitioner, had the burden of showing the child had been wrongfully taken or retained.  To secure relief, he had the burden to show each of these elements:

• When the removal or retention took place
• The child’s habitual residence immediately prior to retention/removal
• Whether retention or removal breached petitioner’s custodial rights under the laws of The habitual residence
• Whether the petitioner was exercising his custodial rights at time of removal or retention

Yang v. Tsui, 499 F.3d 259, 271 (3d Cir. 2007)  https://www.courtlistener.com/opinion/1362349/tsai-yi-yang-v-fu-chiang-tsui/

The Petitioner was exercising rights that he had under German law.  But, the Court decided that the hearing date was the retention date and that Pittsburgh was the habitual residence prior to that date.

The appeal challenged both the retention date and the finding of habitual residence.  Father suggested that the date was June 9, 2016 when he informed Mother he wanted J[ay] to be with him.  Mother suggested the trial date was the correct one.  The Third Circuit rejected both stating the retention date is the date beyond which the noncustodial parent no longer consents to the primary custody of the custodial parent. The retention date was deemed to be the date when Father filed his Hague action because the prior verbal exchanges between the parties were equivocal.

Hard facts do make for bad law and it would appear from the opinion of the three judge panel that little Jay’s parents never really formed a definitive plan for the child.  The purpose of a Hague Convention is to arrest the scourge of trial abduction where it is employed to secure a jurisdictional advantage.  Before Mother filed in Common Pleas the parties never committed to any form of writing that would set forth a plan for where Jay would spend the year following his sojourn to Pittsburgh.  It seems that Father hoped to find a job in the United States but, failing that, it was his “expectation” that if the family could not reunite under a single roof, he would have custody for the year following that in Pittsburgh.  It also seems that when she first left for Pittsburgh, Mother was not adverse to Jay’s return to live with Father.  But, once here, she thought less and less of sending her son back to Germany and when it finally came to decision time, she filed in Pennsylvania asserting this was the home state.  That prompted Father to remove the case to Federal Court and rely upon the Hague Convention to support his position.  Abduction is a serious word and the disagreement between these two parents scarcely merits such a strong term.  The Circuit decision notes that both Germany and the United States could claim status as this child’s habitual residence.  So, there would have been justification for the District Court to have abstained from this conflict, although that may have necessitated a look at German laws regulating custody jurisdiction.

As noted above, what is lamentable about the federal opinions and procedures on display in Blackledge is the unflinching chauvinism displayed by the presiding jurists.  The goal of the Hague and its federal analogue, the Parental Kidnapping Prevention Act “PKPA”, is to insure that local courts do not engage in “we are better” analyses in deciding custody jurisdiction.  Federal courts are supposed to leave family law matters to state courts.  PKPA and the Hague are there so that when state courts start to “homer” for the local parent, there is a forum intended to protect the parent who lives far away.

In Blackledge, the District Court conducted a two day trial. That, alone is no offense because issues of wrongful retention and habitual residence are certainly fact specific.  But when the evidence adduced includes teachers, coaches, neighbors and interview of the child, one questions whether the District Court had chosen to function as a best interests court instead as a jurisdictional court.  The Third Circuit discusses J.B.’s many friends, sleepovers and other outings as if these could not occur or in some way be equaled by residents of Germany.  J.B. “bonded” with Pittsburghers at dinners, attending university events and theater festivals. His coach opined as the quality of his breast stroke while swimming and his interest in diving.  All of us know just how much eight year olds enjoy dinner parties, theater festivals and “university events.”  The opinion also reminds us of the merits of Fallingwater and the Four Carnegie Museums.  You won’t find much said about the 36 museums, 61 theaters and four orchestras that are located in Munich.  Father had since moved on to Berlin, another city that could shame any cultural resources found in Pennsylvania.

The Hague Convention is testing habitual residence, not evaluating the cultural, economic or social merits of a community.  Had J.B.’s parents been living in Ghana before he moved with his Mother to Pittsburgh, the Convention would seem to imply that a child can be just as “habituated” to rural African villages that lack swimming coaches or a robotics club.

The Hague and PKPA are about an exercise to assure fairness and not an invitation for displays of chauvinism.  The Federal Courts missed that point.  The record was sufficient once it established that Jay lived in Pittsburgh and participated in local activities typical of a Pittsburgh resident during the time he was here.  Those are the jurisdictional facts.  To wax on about his excellent grades and the great fun he had visiting a local mattress factory denigrates what the Hague is about.  Once we ascertain that there was no wrongful retention, the question does not graduate to the merits of the residence but the reality of that residence.  Federal courts do not belong in the merits of a custody case and should not devote time to extolling the virtues of the Pittsburgh life, no matter how grand it may be.

Blackledge v. Blackledge, 16-3667 US. Third Circuit Court of Appeals (Aug. 3, 2017)  http://caselaw.findlaw.com/us-3rd-circuit/1869777.html

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