Selo v. Selo

929 F. Supp. 2d 718, 2013 WL 878959, 2013 U.S. Dist. LEXIS 34053
CourtDistrict Court, E.D. Michigan
DecidedMarch 8, 2013
DocketCase No. 12-14251
StatusPublished
Cited by1 cases

This text of 929 F. Supp. 2d 718 (Selo v. Selo) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Selo v. Selo, 929 F. Supp. 2d 718, 2013 WL 878959, 2013 U.S. Dist. LEXIS 34053 (E.D. Mich. 2013).

Opinion

OPINION & ORDER

SEAN F. COX, District Judge.

Petitioner/Father filed this action against Respondent/Mother on September 25, 2012, seeking immediate return of the couple’s minor child to Switzerland, under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. Petitioner contends that Respondent’s retention of the child in the United States is wrongful under the Hague Convention because Switzerland was the site of the child’s habitual residence prior to the time of the wrongful retention, and he seeks an order returning the child to Switzerland. This Court held an evidentiary hearing on February 28, 2013, and heard closing remarks from Counsel on March 1, 2013. As explained below, the Court finds that Petitioner has not established a prima facie case of wrongful retention under the Convention because the retention of JPS in the United States by Respondent did not begin until August 15, 2012, and, by that time, the child’s habitual residence had been altered to the United States. The Court must therefore DENY the Petition.

BACKGROUND

Petitioner/Father Jean-Loic Selo (“Mr. Selo”) filed this action against Respondent/Mother Dawn Michelle Levites Selo (“Mrs. Selo”) on September 25, 2012, seeking immediate return of the couple’s minor child, J.P.S., to Switzerland, under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. Mr. Selo contends that Mrs. Selo’s retention of JP. in the United States is wrongful under the Hague Convention because Switzerland was the site of the child’s habitual residence prior to the time of the wrongful retention, and he seeks an order returning JPS to Switzerland.

On October 2, 2012, this Court held a Status Conference. At that conference, the parties agreed that an evidentiary hearing is needed so that this Court can hear and determine the merits of the Petition. The parties also agreed on the date for the evidentiary hearing. Thus, the Court originally scheduled the evidentiary hearing for November 14, 2012.

At the request of the parties, however, the evidentiary hearing was adjourned until February 28, 2013. The Court ordered the parties to file witness lists, exhibit lists, and a joint statement of undisputed facts prior to the evidentiary hearing.

GENERAL OVERVIEW OF GOVERNING LAW

The Hague Convention seeks to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Maynard v. Maynard, 484 F.Supp.2d 654, 658 (E.D.Mich.2007). A “primary purpose of the Convention is to preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.” Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) (“Friedrich /”). “Additionally, according to the official commentary on the Hague Convention, the Convention should be read to prevent a circumstance where ‘the child is taken out of the family and social environment in which its life has developed.’” Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007) (quoting Elisa Perez-Vera, Explanatory Report ¶ 12, in 3 [721]*721Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 1069 (1982)).

“When faced with a petition for return of a child under the Hague Convention, the courts of signatory nations may only determine the merits of the abduction claim; the merits of the underlying custody claim are not to be considered.” Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007).

Under the Hague Convention, as implemented by the United States Congress in the International Child Abduction Remedies Act, children who are wrongfully removed or retained within the meaning of the convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies. Under Article 3 of the Hague Convention, the removal or retention of a child is “wrongful” where:

a) it is a breach of the 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 of 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 agreement having legal effect under the law of that state.

Hague Convention, Article 3; see also Friedrich I, 983 F.2d at 1400.

The Petitioner has the burden of showing by a preponderance of the evidence that the removal or retention was wrongful. Friedrich I, 983 F.2d at 1400.

If the Petitioner meets that burden, the burden shifts to the Respondent to show that one of the following narrow exceptions applies such that the child should not be returned:

1) that the removal proceeding was commenced more than one year after the removal and the child has become settled in the new environment. Hague Convention, Article 12;
2) the Petitioner had consented or acquiesced in the removal or retention. Hague Convention, Article 13a;
3) there is a grave risk that return of the child would expose the child to physical or psychological harm. Hague Convention, Article 13b;
4) returning the child would violate fundamental principles relating to the protection of human rights and fundamental freedoms. Hague Convention, Article 13b; or
5) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Hague Convention, Article 13b.

Hague Convention, Articles 12, 13a, and 13b; Friedrich I, 983 F.2d at 1400.

EVIDENTIARY HEARING

This Court held an evidentiary hearing in this matter on February 28, 2013, and heard closing arguments from Counsel on March 1, 2013.

The following witnesses testified at the evidentiary hearing: 1) Mr. Selo; 2) Madeleine Selo (Mr. Selo’s mother, the paternal grandmother of JPS); 3) Mrs. Selo; and 4) David Levites (Mrs. Selo’s father, the maternal grandfather of JPS). Several exhibits were also admitted during the evidentiary hearing.

[722]*722FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Cite This Page — Counsel Stack

Bluebook (online)
929 F. Supp. 2d 718, 2013 WL 878959, 2013 U.S. Dist. LEXIS 34053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/selo-v-selo-mied-2013.