Thompson v. Gnirk

2012 DNH 142

• Court: District Court, D. New Hampshire
• Decided: August 21, 2012
• Docket: CV-12-220-JL
• Status: Published

Opinion

Thompson v. Gnirk CV-12-220-JL 8/21/12 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jessica Lorraine Thompson

v. Civil N o . 12-cv-220-JL Opinion N o . 2012 DNH 142 Chad Paul Gnirk

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

This is a case between unmarried parents over which nation’s

courts should decide the custody of their child. The question

before the court is where--the United States or Canada--the child

has been “habitually resident” under Article 3 of the Hague

Convention on the Civil Aspects of International Child Abduction

(“Hague Convention”).1 The petitioner, Jessica Lorraine

Thompson, claims that the respondent, Chad Paul Gnirk, has

wrongfully retained custody of their 3-year old daughter, J.G.,

in breach of Thompson’s rights under the laws of Canada, where

she says J.G. was habitually resident at the time of the alleged

wrongful retention, and seeks J.G.’s return. Gnirk maintains

that, at that point, J.G. was habitually resident in the United

States, so that, under Article 3 of the Hague Convention, his

custody rights under American law, rather than Thompson’s custody

rights under Canadian law, govern.

1 International Child Abduction Convention Between the United States of America and Other Governments Done at the Hague October 2 5 , 1980, T.I.A.S. N o . 11670. This court has subject-matter jurisdiction under 42 U.S.C.

§ 11603(a), part of the federal statutory scheme that serves to

implement the Hague Convention in the United States, see id.

§ 11601(b)(1). After denying Thompson’s motion for an ex parte

temporary restraining order awarding her custody of J.G. pending

resolution of this action on the merits, Order of June 1 5 , 2012,

this court approved the parties’ joint proposal for an expedited

discovery and trial schedule, Order of June 2 2 , 2012, and their

subsequent joint motion to extend that schedule, Order of July 9,

2012. The court conducted a bench trial on the merits over the

course of August 2 and 3 , 2012.

Prior to the bench trial, at the court’s direction, the

parties jointly submitted a statement of agreed-upon facts and a

timeline of events, Order of June 2 2 , 2012, and each party

submitted requests for findings of fact and rulings of law, see

L.R. 16.2(b)(2). At trial, each party submitted a number of

exhibits and testified on his or her own behalf, and Thompson

called two other witnesses as well. Due to complications from

her current pregnancy, Thompson was unable to travel to the

courthouse to testify or otherwise participate in the

proceedings, s o , by agreement of the parties, she did so via

videoconference from the office of her counsel in British

Columbia, while her American counsel was present in the courtroom

to conduct her case. Based on the evidence received at trial, and with the

assistance of the parties’ submissions and presentations, the

court makes the following findings of fact and rulings of law.

See Fed. R. Civ. P. 52(a). As explained in detail infra, this

court finds and rules that J.G. was habitually resident in the

United States as of August 2 5 , 2012, when Gnirk’s allegedly

wrongful retention of custody of her began, so that Thompson’s

petition for relief under the Hague Convention must be denied.

The court finds that, prior to that point, Thompson, Gnirk,

and J.G. had lived together in the United States (first in Maine,

and then in New Hampshire) from early December 2009 to late May

2011--a period interrupted only by two visits that Thompson and

J.G. made to Canada to see Thompson’s family, and, finally, when

Thompson and J.G. returned to Canada following the breakup of the

parties’ romantic relationship. The circumstances of this

cohabitation strongly suggest the parties’ “shared intent or

settled purpose” that J.G. reside in the United States and,

therefore, that her habitual residence was in the United States

as of the alleged wrongful retention. Nicolson v . Pappalardo,

605 F.3d 1 0 0 , 103-04 (1st Cir. 2010).

Against this powerful objective proof, Thompson has offered

two principal theories that J.G. was in fact a habitual resident

of Canada. These theories are seemingly in serious tension with

each other, and are ultimately unsupported by any credible evidence as well. First, in Thompson’s testimony, she repeatedly

described the time she and J.G. spent with Gnirk in the United

States as merely “visiting,” while Thompson’s parents’ house in

Canada remained “home” to her and J.G. This description cannot

be squared with either the length or the nature of Thompson’s and

J.G.’s time in the United States. Second, in his closing

argument at trial, Thompson’s counsel ventured that the American

cohabitation was merely a “trial period,” so that it did not in

fact reflect any “settled intent” that J.G. leave her native

Canada to take up residence in the United States. This theory is

also hopelessly at odds with the objective evidence and, for that

matter, Thompson’s own testimony (which, again, was not that J.G.

had accompanied her to the United States for a “trial period” of

living together with Gnirk, but for “visits.”) As fully

explained below, then, the court rejects these post hoc

characterizations of the parties’ actions and intentions prior to

Gnirk’s alleged wrongful retention of J.G. and finds that, by

that point, she was habitually resident in the United States.

Findings of Fact

1. In late February 2007, when Thompson was 19 years old,

she met Gnirk at a pub in Sidney, British Columbia, where she was

working as a waitress. At that point, Thompson still lived with

her parents in their home at 1900 Dickson Avenue in Sidney, where

she had grown u p . Both sets of Thompson’s grandparents, as well as various aunts, uncles, and cousins, live in the area and

regularly get together for family dinners and other visits.

Thompson is a Canadian citizen who has never sought citizenship,

or any other permanent legal status, in the United States. Her

father is a full-blooded member of a “First Nations” tribe of

aboriginal Canadians, and the Canadian government has recognized

her own “Indian” status.

2. When the parties met, Gnirk was around 34 years old and

had been living with a friend and intermittently working at a

restaurant in the Sidney area. Also at this time, Gnirk was

separated from (but still married to) his wife, who lived,

together with their daughter, in British Columbia. Gnirk has

always been a United States citizen and has never had any

permanent legal status in Canada.

3. Thompson and Gnirk soon began a romantic relationship.

Thompson moved in with Gnirk at his friend’s house. In June

2007, Gnirk moved to Washington State to work as the finance

manager at a car dealership, and Thompson accompanied him. They

initially lived together in a house that Gnirk rented, although,

after Gnirk was evicted from there, they lived elsewhere in the

area, including with one of Gnirk’s friends. Gnirk and Thompson

lived together in Washington State until June 2008.

4. While Thompson made occasional trips to British

Columbia during this time, the court does not credit her testimony that, after Gnirk moved to Washington State, she

continued living with her parents in British Columbia and simply

“visit[ed]” him there. Throughout this time, Gnirk was

financially supporting Thompson, who had not worked since March

2007, shortly after the couple had met. Indeed, while Thompson

was in Washington State with Gnirk, he bought her a car and a

dog. Moreover, as already stated, Thompson testified that she

had been living with Gnirk even before he moved to Washington.

5. In the spring of 2008, while living with Gnirk in

Washington State, Thompson discovered that she was pregnant. In

June 2008, Thompson and Gnirk returned to British Columbia, where

they initially lived in a structure outside the house of

Thompson’s sister and brother-in-law.2 After a brief time there,

Thompson and Gnirk moved to a basement apartment they rented in

Brentwood Bay, British Columbia, near Sidney. Gnirk worked

sporadically in a restaurant during this time. He tried, but

failed, to find work at a car dealership in the area, stumbling

over the licensing and bonding requirements that he says Canada

imposes on car salesmen. Gnirk also explored the possibility of

obtaining Canadian citizenship, which he discovered would prove

2 The nature of this structure and its suitability for habitation were the subject of conflicting accounts by the parties at trial (and, indeed, even before that) but are ultimately of little consequence to the issues before the court. difficult without a steady job. Thompson testified that, in late

August 2008, she and Gnirk were engaged to be married.

6. On January 1 8 , 2009, J.G. was born at a hospital in

Victoria, British Columbia. She was later issued a British

Columbia birth certificate, a Canadian social insurance card, and

(in April 2010, with Gnirk’s consent) a Canadian passport.

7. After J.G.’s birth, Thompson, Gnirk, and J.G. lived

together for brief periods with both Thompson’s parents and her

sister, and also at a motel, before moving into an apartment in

James Bay, British Columbia. Gnirk’s unsuccessful efforts at

trying to find a job at a car dealership continued. The couple

had no savings. Eventually, Thompson and Gnirk decided that he

should return to northern New England, where he had grown u p , and

where members of his family lived, to try to secure employment.

8. In October 2009, Gnirk moved to Berwick, Maine, where

he initially lived at the home of his brother and his family

while looking for work. Shortly after the move, Gnirk accepted a

job as the finance manager at a car dealership in Portland,

Maine, but the job did not open up as anticipated, so the

dealership allowed him to seek other employment. Gnirk worked

for a few weeks in December 2009 as the sales manager at another

car dealership, in Lebanon, New Hampshire, and then began working

for the dealership in Portland that had initially hired him. 9. In early December 2009, while Gnirk was working at the

dealership in Lebanon, Thompson and J.G. traveled to the United

States, where they began staying with Gnirk. The circumstances

of this trip were the subject of conflicting testimony. Thompson

characterized the trip as a mere “visit,” so that Gnirk could

spend Christmas, and J.G.’s upcoming birthday, with her. But

Gnirk testified that--as he and Thompson had discussed prior to

his own move to Maine--she and J.G. joined him there in December

2009 “to start a new life, get a home, settle down.”

10. On balance, the court finds Gnirk’s account of the

parties’ plans to be more credible. Thompson’s account--that she

and J.G. “would travel back and forth for a period that [Gnirk]

would be living on the east coast until he was able to relocate

back” to British Columbia--seems unrealistic in light of the

parties’ situation at that point. The family’s financial

survival depended on Gnirk’s earning potential,2 which was

severely limited in Canada due to his inability to find a job at

a car dealership there (which, he explained, was due to licensing

and bonding requirements, rather than any lack of experience).

Thompson did not coherently explain how, in light of this

dilemma, working for a period of time in the United States would

have helped Gnirk find better employment in Canada in the future.

2 Jessica testified that she has completed only one year of high school, and her work experience at that point consisted of three months of waitressing. 11. Thompson’s grandparents, at least, believed that she

and J.G. were moving to the United States to live with Gnirk. In

a 2009 Christmas card discussing goings-on in their lives (which

was admitted by agreement as a full exhibit at trial), the

grandparents wrote that she and J.G. had just been staying with

them but that “We sure are going to miss them as she plans on

flying to meet her partner Chad in Boston some time in the middle

of Dec[ember]. Chad has just been offered a finance managerial

job for a big Nissan dealership.”

12. Moreover, the parties’ testimony as to their plans

aside, their actions following Thompson’s and J.G.’s travel to

the United States in December 2009 strongly suggest an intent

that they take up residence there, rather than that they simply

“visit” and return.3 At some point after she arrived in the

United States in December 2009, Thompson, with assistance from

Gnirk, set about trying to find an apartment where she, Gnirk,

3 Thompson testified that she left many of hers and J.G.’s possessions, including furniture, at her parents’ home in British Columbia, while Gnirk testified that he and Thompson had sold nearly all of the furniture from their apartment in James Bay before he moved to Maine. Regardless of how much furniture Thompson owned when she traveled to the United States in December 2009, the fact that she did not bring it (or, as she also testified, clothing that did not fit her or J.G. at the time) with her is unsurprising, in light of the fact that she traveled to the eastern United States by plane from Seattle. It is reasonable to infer that, though she was moving to the United States so that she and J.G. could reside there, she simply left these non-essential items at her parents’ house to avoid the hardship of transporting them herself, or the expense of having them shipped, to the United States. and J.G. could live. In or around June 2010, Thompson and Gnirk

co-signed a lease for an apartment in Westbrook, Maine.4

13. Thompson acknowledged that she helped pick out the

furniture for this apartment and otherwise “set it up to make it

a home.” Gnirk recalled (and Thompson did not dispute) that she

selected a couch, a television, a washer and dryer, and furniture

for J.G.’s room, including a bed and a dresser. Thompson

purchased these items with funds from Gnirk’s checking account.

She also arranged for cable service at the apartment, with the

account in her name, and received mail there (though she also

continued receiving mail at her parents’ house in Canada).

14. In March 2011, Gnirk’s employer offered him a promotion

to the job of sales manager at its location in Berlin, New

Hampshire, and Gnirk accepted. Thompson, Gnirk, J.G., and their

dog stayed in a motel in the Berlin area for several weeks while

Thompson and Gnirk set about finding a more suitable place for

them to live.

4 Thompson testified that she signed the lease because “I was told that as an adult staying there I had to,” presumably by the landlord. The court does not find this testimony credible. First, it begs the question why Thompson did not simply explain to the landlord that she was not in fact “staying” there, but was merely “visiting,” as she now says she was. Second, as noted infra, Thompson testified that she signed the lease for the parties’ second apartment in the United States because the landlord there told her precisely the same thing. This strikes the court as highly unlikely and, moreover, Thompson’s manner and demeanor in delivering the testimony (again, using precisely the same words) undermined her credibility on this point. 15. On March 1 8 , 2011, Thompson and Gnirk co-signed a lease

for a single-family house in nearby Gorham, New Hampshire, The

lease had a term of 18 months, and also gave Thompson and Gnirk

the option to purchase the property. Thompson was aware of both

of these provisions when she signed the lease. She claimed that

she signed it because, just as happened with the parties’

apartment in Maine, she “was told because I’m an adult and would

be staying there that I had to sign the lease.” Again, the court

does not credit this explanation. See note 4 , supra.

16. Thompson signed the lease in a signature block for

“Jessica Gnirk” (though she says she actually signed her name as

“Jessica Thompson”). Around that time, though they were not

married, both Thompson and Gnirk were introducing her to others

as “Jessica Gnirk” and his wife and Thompson was referring to

Gnirk as her husband. While she was in Maine, in fact, Thompson

had signed up for an on-line wedding registry. Despite their

engagement, and Thompson’s registration for wedding gifts (at an

American retailer), the parties never got married.

17. When Thompson and J.G. first arrived in the United

States in December 2009, Gnirk told his employer at the time that

Thompson was his wife so that he could obtain health insurance

for her under his employee benefit plan. He also obtained health

insurance for J.G. under that plan. Since December 2009 or

January 2010, Gnirk has provided health insurance for both Thompson and J.G. (though he stopped providing health insurance

for Thompson in or around May 2012 when their romantic

relationship ended and, he says, his employer learned that they

were not in fact married).

18. Thompson and Gnirk moved all of theirs and J.G.’s

furniture and other possessions from their apartment in Maine

into the house in Gorham. Thompson and Gnirk painted most of the

rooms in the Gorham house, with paint colors selected by

Thompson. Thompson transferred the cable service she had ordered

at the Maine apartment to the Gorham house.

19. During their time in Maine and, later, New Hampshire,

Thompson and J.G. would spend their days playing, shopping, and

being outside (though Thompson found the northern New England

climate, with its cold winters and hot summers, to be limiting).

They would also “often,” in Thompson’s words, drive to visit

Gnirk’s mother and sister in Berwick, Maine.

20. On March 1 6 , 2010, before the move from Maine to New

Hampshire, Thompson and J.G. traveled to British Columbia without

Gnirk, and remained there until April 2 2 , 2010, when they

returned to the United States. Thompson and J.G. also traveled

to British Columbia, again without Gnirk, on July 1 3 , 2010,

returning to Maine on September 1 3 , 2010. During these periods,

Thompson and J.G. stayed with her parents, and also at her

grandparents’ vacation camp. They generally spent their time socializing at the pool, park, and other locations with their

family and Thompson’s friends. J.G. received vaccinations and

other medical care during her time in British Columbia.

21. Based largely on the facts just discussed, the court

cannot credit Thompson’s characterization of these trips as her

and J.G.’s “return[ing] home” between “visits” to the United

States and, in fact, adopts the opposite characterization, i.e.,

having moved to the United States to live with Gnirk in December

2009, Thompson and J.G. were simply visiting her family in Canada

between mid-March and mid-April 2010, and again between mid-July

and mid-September 2010.

22. Indeed, two people close to Thompson who concluded as

much were her grandparents, whom she visited during her time in

British Columbia in both early spring and late summer 2010. As

already noted, Thompson’s grandparents believed in late 2009 that

she and J.G. were moving to New England to live with Gnirk. See

¶ 1 1 , supra. In addition, in their 2010 Christmas letter

(admitted without objection as a full exhibit), the grandparents

wrote that, during that summer, they “had lots of company

including visits from Jessica who now lives in Boston and spent a

couple of weeks with us with [J.G.].”

23. Thompson’s characterization of her time in the United

States as “visits” also clashes with the duration and timing of

her stays here. First, while she testified that the purpose of her December 2009 passage to the United States was so that she

and J.G. could spend Christmas and J.G.’s January 2010 birthday

with Gnirk, Thompson told him in an email before the trip that

she did not plan to return to Canada until May 2010. As already

discussed, she ended up traveling back to Canada in March 2010,

but even that was months after she had accomplished what she now

says was the purpose of the December 2009 trip. Second, Thompson

testified that, when she and J.G. traveled to the United States

again in September 2010, she had planned on returning to Canada

in either November 2010 or January 2011, but ended up staying

longer because, in November 2010, Gnirk underwent hip surgery and

was unable to care for himself. It was undisputed, though, that

within six or seven weeks of the surgery, Gnirk had recovered to

the point where he was able to resume driving and working--yet

Thompson remained in the United States. She did not return to

Canada, in fact, until several months later, when the parties

broke off their romantic relationship in late May 2011. 5

24. Furthermore, this court finds that, on the whole,

Thompson did not come across as a credible witness, particularly

in characterizing the time she and J.G. spent in the United

5 Indeed, Thompson states in her proposed findings and rulings that, following the surgery, Gnirk was “unable to drive or care for himself for several weeks, taking more than a month off from work,” but no longer than that. On questioning by the court, Thompson explained that she remained in New Hampshire beyond that point only to help Gnirk move to Gorham, but the court does not find that explanation credible. States and Canada between early December 2009 and late May 2011.

Thompson repeatedly described her travel to Canada in 2010 with

the canned phrase, “I returned to my home at 1900 Dickson Avenue,

Sidney, British Columbia,” and resorted to self-evidently

strained explanations of the various documents (including the

leases, cable bills, and receipts from various retailers)

suggesting that she was in fact living in the United States

during this time. See, e.g., note 4 , supra. Thompson’s tone of

voice and demeanor also noticeably changed when she was giving

testimony she perceived as harmful to her case. Perhaps most

telling, though, was the fact that--as noted supra and discussed

in more detail infra--Thompson’s counsel essentially abandoned

her characterization of her time in the United States in his

closing argument at trial and chose instead to advance a starkly

different theory, i.e., that Thompson was here not to visit

Gnirk, but as part of a “trial period” where they were “trying to

make the relationship work.”

25. In late April or early May 2011, the parties’ romantic

relationship ended. Around this time, Thompson had sex with

another man in the parties’ house while Gnirk was at work, as she

later admitted to him. Thompson testified that this event did

not occur until after she and Gnirk had “broken up.” There was

no evidence that the parties had previously agreed to end their

relationship (Thompson testified that they had begun sleeping in different rooms several months earlier, but were still living

together, while Gnirk said that did not happen until after the

revelation) but ultimately this aspect of the chronology is

unimportant.6 Gnirk reacted angrily to Thompson’s revelation

and, at least initially, believed their relationship was over.

26. Nevertheless, Thompson and Gnirk (and J.G.) continued

living together in the Gorham house until May 2 6 , 2011, when,

with Gnirk’s consent, Thompson and J.G. traveled to British

Columbia. They initially stayed at Thompson’s parents’ house

there. Thompson and Gnirk talked frequently by telephone.

Thompson asked Gnirk to send her money, which he did.

27. The parties’ understanding of their plans for J.G.’s

custody as of her travel to Canada on May 2 6 , 2011 was also the

subject of deeply conflicting testimony. Thompson recalled that,

after the breakup but before traveling to Canada, she and Gnirk

reached an agreement over dinner at a restaurant one night that

J.G. would “return home to Canada with me as she always did and

remain with me as her primary caregiver which had always been and

she would then visit [Gnirk] in the states like she had always

done before. But instead of staying for longer periods of time

since I would not be visiting with her, she would stay for

6 Indeed, the only reason the court is making any findings on how the parties’ relationship ended is to place Thompson’s and J.G.’s subsequent travel to Canada in the proper context. The court is not using these events to draw an inference as to either party’s credibility. shorter periods of time.” Thompson also recalled that Gnirk

agreed to pay her $1,000 in monthly child support.

28. The court cannot credit Thompson’s testimony on this

point either. As was the case with her other characterizations

of the parties’ actions, see ¶ 2 4 , supra, the agreement she

described--that Thompson and J.G. were to live in Canada while

J.G. made “visits” to Gnirk in the United States--was not at all

what the parties had “always done before.” To the contrary, as

just discussed at length, Thompson and J.G. had been living

together with Gnirk in the United States since early December

2009. The agreement Thompson describes, then, would have

radically restructured J.G.’s life (as well as those of her

parents), and the court cannot believe that the parties, while

still in the throes of the dissolution of a five-year

cohabitative relationship, would have entered into such an

agreement so quickly and casually.

29. Instead, the court finds Gnirk’s account of the

parties’ understanding as of late May 2011 to be more believable.

Gnirk testified that, after the break in his romantic

relationship with Thompson, he suggested

a couple alternative paths that we could take, one being that we could rent her apartment locally and we could work through it or not work through it and still be in the same area to raise our child. The other option was if she wanted to go back and visit her family and take some time to think about it I was a hundred percent fine and she decided to go with that option. In short, the court finds that the parties, confronted by serious

and difficult questions about J.G.’s future, as well as their

own, decided only that Thompson and J.G. should return to Canada

while the answers to those questions were worked out.

30. This finding is also consistent with most (though not

necessarily all) of the parties’ actions following Thompson’s and

J.G.’s trip to Canada on May 2 6 , 2011. 7 Roughly one month later,

on June 2 6 , 2011, Thompson and Gnirk met in Seattle, where Gnirk

took J.G. back to New Hampshire with him. The circumstances of

this transfer are also the subject of deeply conflicting

testimony. Thompson testified that, in line with her version of

the parties’ understanding that J.G. would continue “visiting”

7 There was evidence that, on or around May 1 2 , 2011, Gnirk sought to remove J.G. from his employee health insurance plan. This effort generated an email to Gnirk from his employer’s controller stating: “We will have to keep your daughter on the insurance until at least open enrollment which is July 1st . . . because her situation is not a qualifying event to have a child removed.” One reasonable inference to draw from this email is that Gnirk was seeking to have J.G. removed from his employee health insurance plan because he knew she was heading to Canada to live with Thompson on a long-term basis. Gnirk testified, however, that he was trying to remove J.G. from the plan only because he knew rates were about to rise and wanted to find alternative insurance for her. While this explanation is not entirely credible (among other things, it does not explain what the controller could have meant by reference to J.G.’s “situation”), there was no contrary evidence adduced, in the form of testimony from the controller or otherwise. Moreover, it is undisputed that Gnirk continued to maintain health insurance for J.G. even after July 1 (which is when the controller told him he could have cancelled J.G.’s coverage). On balance, then, the email does not seriously undermine the court’s finding that the parties never reached agreement on J.G.’s long-term custody. Gnirk, the parties agreed that J.G. would stay with him in New

Hampshire for two months, then return to live with Thompson in

Canada. Gnirk, however, testified that Thompson had asked him to

take J.G., telling him that she “wasn't in a position at that

point in time” to have J.G. living with her because Thompson

“didn't have money, didn't have a job, [and] was unsure where she

would be living.” Gnirk further testified that, when he and

Thompson met in Seattle, they did not agree on any specific time

frame as to when J.G. would return to Thompson in Canada, but

“went back and forth from two months to three months” as a rough

period of time that Thompson would need to “get set up” with

housing and employment before J.G. would stay with her again.

31. Again, the court finds Gnirk’s version of events more

believable. As of June 2 6 , 2011, when Thompson transferred J.G.

to Gnirk, only one month had passed since he had last seen her,

on May 2 6 , 2011. Before that, of course, J.G. had been living

with him (and Thompson) in New Hampshire for the previous 18

months. In light of this chronology, it is difficult to accept

Thompson’s proferred explanation for the transfer, i.e., that she

wanted J.G. to “visit” Gnirk because Thompson--as she states in

her proposed findings and rulings--“felt it was important for

J.G. to have a good relationship with her father.” At that

point, J.G. had only been physically separated from her father for one of the prior eight months, and four of the prior eighteen

(during her trips to Canada with Thompson).

32. Moreover, as Thompson repeatedly emphasized in her

testimony, she had never been physically separated from J.G. for

more than a night or two prior to June 2 6 , 2011--yet, by her own

account, agreed that J.G. would be apart from her for at least

two months while “visiting” Gnirk. Gnirk, for his part, had not

planned any time off from work to coincide with this lengthy

“visit” and had to hire a babysitter to care for J.G. while he

was at work during the day. These are not the typical

circumstances of a child’s “visit” to her non-custodial parent,

and they (together with the court’s reservations about the

plausibility of Thompson’s recollections in general) undermine

her testimony that she and Gnirk “agreed” that J.G. would stay

with Gnirk in New Hampshire for two months before returning to

live long-term with Thompson in Canada.

33. Thompson also testified that, before she turned J.G.

over to Gnirk, he promised--at Thompson’s insistence--to give her

a letter memorializing this alleged agreement, but, when he

arrived in Seattle, failed to do s o , claiming that the letter had

been lost with his luggage. To corroborate this testimony,

Thompson relied on a message Gnirk had sent her through her

Facebook account on the morning of June 2 6 , 2011, stating:

So the letter says she will be staying here for two months and that we will work out a permanent arraingement [sic] for child support being a thousand a month for her while she is there - but not with me and for a period of time that we agree upon you the same monthly support [sic] . . . . its [sic] at work so i [sic] can’t literally type word for word but thtas [sic] the guts of it[.]

Gnirk never gave any such letter to Thompson.

34. Gnirk did not deny telling Thompson that he would

provide her with a letter, or that it had been lost with his

luggage. He testified, however, that he understood that Thompson

wanted the letter to affirm his commitment to make support

payments to her, rather than any agreement that, following a two-

month visit with Gnirk, J.G. would return to live with Thompson

in Canada on an indefinite basis. This explanation is not

completely satisfactory, but, regardless, the Facebook message is

ambiguous as to any agreement on where J.G. would live in the

future and, as such, does not call into serious question this

court’s view that, when Thompson transferred J.G. to Gnirk on

June 2 6 , 2011, the parties had no such agreement in place.

35. The parties’ subsequent behavior lends further support

to this view. After returning to New Hampshire with J.G., Gnirk

hired a babysitter to care for J.G. while he was at work. (When

that sitter proved irresponsible after a week or s o , Gnirk fired

her and hired a different one.) Thompson frequently communicated

with Gnirk by phone or text to see how J.G. was doing, and spoke

to J.G. by phone as well. On July 2 9 , 2011--in what appears to

be one of a series of text messages between the parties around that time--Thompson wrote, “All I’m saying is I miss her and I

don’t think we can go three months. I’m dying here. I’m sure

she misses me too” (emphasis added). 8 This suggests that,

contrary to Thompson’s testimony, the parties had not already

agreed that J.G. would stay with Gnirk for only two months.

36. Indeed, in late August 2011, after Gnirk notified

Thompson that he would not be sending J.G. back to Canada,

Thompson does not appear to have invoked the parties’ alleged

agreement in any of her text messages with Gnirk. More

strikingly, she did not even mention it when, on August 2 5 , 2011,

she filed, through counsel, an ex parte application with the

Supreme Court of British Columbia seeking an award of interim

custody over J.G.

37. At any rate, on August 2 5 , 2011, the British Columbia

court issued an order awarding Thompson interim sole custody of

J.G. and directing Gnirk to return her to Thompson’s care. Gnirk

learned of the order after Thompson faxed it to the Gorham Police

Department and an officer brought a copy of it to Gnirk’s home.9

8 In quoting from the parties’ text messages in this order, the court has taken the liberty of correcting the spelling and punctuation. 9 There was conflicting testimony on how the police came to be involved: Gnirk claimed that Thompson had accused him of molesting J.G., while Thompson denied that and described the officer’s visit to Gnirk’s home as a “wellness check.” No police report was offered by either party. Because this factual dispute is ultimately immaterial to the issue of J.G.’s habitual residence, the court declines to resolve i t . 38. That same evening, Thompson sent Gnirk a series of text

messages. These messages including several asking Gnirk to call

her, as well as others expressing warm feelings toward him and

stating, “I want to come home” and “I want our picture perfect

life back.”

39. Over the next several days, the parties continued to

exchange text messages. Thompson repeatedly asked Gnirk to send

her money. Gnirk, for his part, stood by his refusal to send

J.G. to Thompson, telling her, “you don’t have a home or a bed

nor bureau for her, let alone a job. How can you deny you aren’t

set up for this right now? How long before you can find a place

to live and a job so you can take care of her? That would make

it easier for me to relax on all of this.”

40. Thompson responded that she was making her home in the

outbuilding at her sister’s house, and that Gnirk could

financially “support us like you have been for the past five

years.” Thompson also suggested, “We can come to an agreement

and have it signed by a judge.” Again, she never mentioned the

agreement she now claims was already in existence at this point,

at least in the text messages that were entered into evidence.10

10 Gnirk’s cellphone records showed a total of 183 text messages between him and Thompson during the period from August 2 3 , 2012 to September 5 , 2012. Only 90 messages from that period, however, were produced by Gnirk in discovery and were entered into evidence at trial, in the form of screenshots from his cell phone. Gnirk testified that these were messages he had “locked” so that they would not be automatically deleted by his In later text messages, Thompson stated that she missed J.G.,

and, on multiple occasions, asked Gnirk to have J.G. call her.

Gnirk responded that he would try to arrange those calls, and it

appears that he did s o .

41. In the meantime, on August 2 6 , 2011, Gnirk filed an ex

parte motion with the Berlin Family Division of the First Circuit

Court of New Hampshire, seeking to be temporarily awarded sole

decision-making and residential responsibility over J.G. The

court granted that relief the same day. On August 2 9 , 2011,

Thompson filed an application with the British Columbia

authorities for relief under the Hague Convention. In the Berlin

Family Division, she later filed a “Petition to Register a

Foreign Judgment,” namely, the ex parte order awarding her

interim sole custody of J.G.

phone to make room for newer ones. Gnirk’s counsel also represented that, after September 2012 but before the commencement of discovery in this action, Gnirk’s phone was damaged so that he was unable to retrieve any more messages from it and, while he had taken it to have it repaired, the repair had yet to be completed. Thompson’s counsel represented that Thompson no longer possessed the phone she had used to send messages to Gnirk during the relevant time period. Neither party testified, or sought to elicit testimony from the other, as to the content of any of the messages that had been sent but not recovered. Based on this state of affairs, the court does not deem it appropriate to draw an inference against either party based on the missing text messages and, indeed, neither party has sought that relief. The court is nevertheless mindful that the text messages introduced into evidence do not represent the entirety of the parties’ electronic communications during late August and early September 2011. 42. The Family Division held a hearing on Gnirk’s and

Thompson’s petitions in November 2011. Following the hearing,

which both parties attended with counsel, the Family Division

left its order granting temporary custody to Gnirk in place,

dismissed Thompson’s petition to register the British Columbia

court’s contrary order, and directed her to file a petition

requesting Hague Convention relief with the Family Division if

she wished to pursue i t .

43. In February 2011, the Family Division held another

hearing, for the purposes of considering whether it had

jurisdiction to determine custody of J.G. and, if s o , what

further custody orders should issue. Thompson attended the

hearing with counsel, but only to contest the Family Division’s

jurisdiction; she refused to participate as to custody matters.

On March 2 3 , 2012, the Family Division ruled that it had

jurisdiction to determine J.G.’s custody, and approved Gnirk’s

proposed temporary parenting plan.11

44. For its part, the British Columbia court later held a

series of hearings on Thompson’s petition in April and May 2012.

11 Prior to trial in this action, Gnirk filed a motion to dismiss Thompson’s petition on collateral estoppel grounds. He argued that the New Hampshire Family Division’s ruling that it had jurisdiction to decide J.G.’s custody precluded Thompson’s claim that J.G. was habitually resident in Canada. Because this court is ruling in Gnirk’s favor on the merits of that claim, it need not reach his issue preclusion argument, and denies his motion to dismiss as moot. Gnirk did not appear at any of them. On May 1 0 , 2012, the

British Columbia court awarded Thompson permanent sole custody

and permanent sole guardianship of J.G.

45. Thompson commenced this action on June 1 2 , 2012.

Rulings of Law

A. The stated purposes of the Hague Convention are “to

secure the prompt return of children wrongfully removed to or

retained in any” of the signatory nations, and “to ensure that

rights of custody and of access under the law of one [signatory

nation] are effectively respected in the other[s].” Hague

Convention, Art. 1 .

B. As noted supra, the federal statutory scheme

implementing the Hague Convention in the United States allows

“[a]ny person seeking to initiate proceedings under the

Convention for the return of a child” to do so “by commencing a

civil action by filing a petition for the relief sought in any

court which has jurisdiction of such action and which is

authorized to exercise its jurisdiction in the place where the

child is located at the time the petition is filed.” 42 U.S.C.

§ 11603(b). That court must then “decide the case in accordance

with the Convention.” Id. § 11603(d). Importantly, it is the

petitioner bringing such an action who has the burden “to

establish by a preponderance of the evidence in the case of an

action for the return of a child, that the child has been wrongfully removed or retained within the meaning of the

Convention.” Id. § 11603(e)(1)(A) (formatting altered).

C. Under Article 3 of the Hague Convention:

The removal or retention of a child is to be considered wrongful where--

a. it is in breach of 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

b . at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Hague Convention, Art. 3 .

D. As Thompson acknowledges, to prevail on her claim

seeking J.G.’s return under Article 3 , she must show by a

preponderance of the evidence “(1) that [J.G.]’s habitual

residence was [Canada] immediately prior to the retention,

(2) that [she] had custody rights over [J.G.] at the time, and

(3) that [she] was exercising those rights.” Nicolson, 605 F.3d

at 103. Here, Thompson argues that Gnirk’s “retention” of J.G.

began on August 2 5 , 2011, when the British Columbia court issued

its initial order awarding Thompson interim sole custody of her.

While Gnirk disputes that Thompson was actually exercising her

custody rights at that time--he argues that she had effectively

abandoned custody of J.G. to him by then--the crucial issue in

dispute in this case is whether J.G.’s habitual residence was

Canada or the United States as of August 2 5 , 2011. E. “The Hague Convention does not define ‘habitual

residence,’ but the majority of federal circuits to consider it

have adopted an approach that begins with the parents’ shared

intent or settled purpose regarding their child’s residence.”

Id. at 103-04 (footnote omitted). As Thompson herself argues in

her proposed findings and rulings, “this inquiry should be guided

by an ‘objective observer’ standard. Therefore, the objective

manifestations of parental intent . . . should trump any

subsequent, subjective arguments” (quoting Nicolson, 605 F.3d at

104). The court agrees with this view of the law. See, e.g.,

Gitter v . Gitter, 396 F.3d 1 2 4 , 134 (2d Cir. 2005) (holding that,

in deciding the parents’ intended residence for the child under

the Hague Convention, “the court should look, as always in

determining intent, at actions as well as declarations”). Here,

though, the “objective manifestations of parental intent” point

overwhelmingly to the conclusion that the parties’ shared intent,

at least until their romantic relationship ended in May 2011, was

that J.G. reside in the United States.

F. By the time Thompson and J.G. first traveled to the

United States, in December 2009, Thompson and Gnirk had been

living together since shortly after they first met in February

2007. This includes, of course, the ten or so months they had

lived together with J.G. after she was born. The first time this

period of cohabitation was interrupted, at least for any significant duration, was when Gnirk returned to his native New

England to try to find work in October 2009. It is undisputed

that Thompson and Gnirk had agreed on this course of action in

advance, and that Gnirk’s earning potential was the family’s only

realistic shot at long-term financial survival. Shortly after

Gnirk returned to New England, he secured a managerial position

at a car dealership, the very type of job that had eluded him for

the prior fifteen months or so in Canada. In light of this

history, an objective observer would have to conclude that, when

Thompson and J.G. subsequently traveled to the United States and

began living with Gnirk in early December 2009, it was the

parties’ shared intent that they reside--together with J.G., of

course--in this country together as a family.

G. This conclusion finds further support in the parties’

actions after Thompson and J.G. arrived in the United States.

Within six months or s o , Thompson and Gnirk had co-signed a lease

for an apartment in Maine and the family had moved in there

together. Thompson proceeded to select and purchase furniture

for this apartment, including for J.G.’s room, and, as she

acknowledged in her testimony, otherwise “set it up to make it a

home.” Furthermore, when Gnirk’s employer later transferred him

from its dealership in Maine to its dealership in New Hampshire

in March 2011, the family moved to New Hampshire together,

initially living in a motel while looking for more suitable housing. By the middle of that month, Thompson and Gnirk had co-

signed an 18-month lease, with an option to purchase, for a house

in New Hampshire. After moving in all of the furniture and other

belongings from the Maine apartment, the parties repainted nearly

the whole house. They also held themselves out, and referred to

each other, as husband and wife (though they were not married,

they had, by Thompson’s account, been engaged since August 2008,

and she had signed them up for a wedding registry with an

American retailer after moving to the United States).

H. As a leading case on the concept of habitual residence

has observed, courts “[m]ost commonly” conclude “that the family

as a unit has manifested a settled purpose to change habitual

residence . . . when both parents and the child translocate

together under circumstances suggesting that they intend to make

their home in the new country.” Mozes v . Mozes, 239 F.3d 1067,

1076-77 (9th Cir. 2001). The circumstances just outlined

strongly suggest--if not outright compel--that conclusion here.

Indeed, Thompson and Gnirk “did what parents intent on making a

new home for themselves and their child do,” including finding

stable employment and housing in the place where they moved.

Feder v . Evans-Feder, 63 F.3d 2 1 7 , 224 (3d Cir. 1995); see also

Koch v . Koch, 450 F.3d 703, 714 (7th Cir. 2006) (upholding

finding that children’s habitual residence was Germany where “the

entire family moved to Germany because that is where [the father] found work. They took all of their possessions except for a few

large items and established a life in Germany where [the father]

worked and [the mother] cared for the children”).

I. In addition to this strong circumstantial evidence that

the parties intended for J.G. to reside in the United States,

there is also direct evidence to that effect. Gnirk testified

that he and Thompson had discussed in advance that, after he

moved to Maine, she and J.G. would join him there “to start a new

life, get a home, settle down.” The court credits this testimony

not only because it makes sense in light of the parties’

situation in Canada prior to the move and their actions in the

United States afterwards, but also because Thompson--who, again,

has the burden of proving that J.G.’s habitual residence was

Canada--has not come forward with any plausible theory of what

else the parties could possibly have been planning. See ¶ 1 0 ,

supra. Again, she claimed that the parties intended that she and

J.G. remain in Canada and occasionally visit Gnirk in the United

States until he could return to Canada, but it is not clear how

that would have been possible in light of Gnirk’s lack of job

prospects or legal immigration status in Canada. Moreover, there

is no credible evidence that the parties did anything to put such

a plan into effect at any point after moving to the United

States. To the contrary, as just discussed, nearly everything they did manifested their shared intentions that J.G. reside,

together with her parents, in the United States.

J. Perhaps Thompson never stopped subjectively thinking of

British Columbia as her “home,” or even her daughter’s “home.”

After all, Thompson grew up there, her parents, sister, and

extended family lived there, and J.G. was born there. Perhaps

she even subjectively thought of the time she and J.G. spent with

Gnirk in the United States as “visits.” Again, everything but

Thompson’s trial testimony suggests that she did not in fact see

things that way, at least contemporaneously, see supra at ¶¶ 21-

2 5 , but, as she acknowledges, her subjective feelings as to where

J.G. was living carry little if any weight in the habitual

residence analysis in any event, see ¶ E , supra.

K. Indeed, the court of appeals has squarely rejected the

notion that, “if [one parent] were credited with a fixed

subjective intent to take her daughter permanently to [one

country], then all other circumstances would be irrelevant” in

deciding habitual residence, because “‘[s]tanding alone, of

course, [one parent’s] intent that the child should one day live

in [that country] cannot support a finding of habitual

residence.’” Nicolson, 605 F.3d at 105 (quoting Ruiz v . Tenorio,

392 F.3d 1247, 1253 n.4 (11th Cir. 2004)). Instead, as Thompson

also acknowledges, whether the parents have arrived at a settled

intent as to the child’s habitual residence “should be guided by an objective observer standard.” See ¶ E , supra. Based on the

facts and circumstances just discussed, any objective observer

would have to conclude that, in early December 2009, Thompson and

J.G. had moved to the United States to live with Gnirk, and

continued living there with him until late May 2011--a situation

that clearly reflects the parties’ settled intent that J.G.

reside in the United States with her family as a unit.

L. It is true, as Thompson emphasizes, that the parties

never sought legal immigration status in the United States for

either her or for J.G., both of whom are Canadian citizens.12

While some courts have treated this fact as tending to negate any

shared intent for the child to reside in the country in question,

see, e.g., Ruiz, 392 F.3d at 1256, none appears to have relied

exclusively on the child’s (let alone a parent’s) lack of legal

status in a country to reject it as the child’s habitual

residence, and that fact certainly cannot bear such significance

here. To the contrary, it is reasonable to infer that the

parties never sought lawful permanent residency or citizenship in

the United States for Thompson or J.G. because they were

12 Thompson also emphasized that she never filed a tax return in the United States, but did file in Canada for both the 2009 and 2010 tax years. This is unsurprising, considering that Thompson--who was a full-time mother during that time--did not report any income on those returns aside from benefits from the Canadian government, but, in any event, the court is at a loss to see what Thompson’s filings of Canadian tax returns says about the intended residence of J.G. preoccupied with the day-to-day issues that preoccupy many young

working families, such as employment, housing, and financial

stability, and not because they never intended that J.G. should

habitually reside in the United States.13

M. Thompson also argues that, prior to the move to the

United States in December 2009, J.G.’s habitual residence was

Canada, so that the court can find that her habitual residence

later became the United States only if the “objective facts point

unequivocally to a new habitual residence.” As support for this

view of the law, Thompson relies on a statement from the Eleventh

Circuit’s decision in Ruiz, with which she claims the First

Circuit has said, in Nicolson, it is “in accord.” There are

several problems with this argument.

N. First, Nicolson does not say that it is “in accord”

with this aspect (or claimed aspect) of Ruiz. Instead, Nicolson

states that “Ruiz accords with our own view that the law is less

rigid than [the respondent in that case] assume[d] and that tests

of habitual residence must be applied to the circumstances of the

13 It is important to note that courts have considered a child’s immigration status as part of the habitual residence inquiry because of what it says about the parents’ intent on that score, rather than because the Hague Convention expresses any preference for returning children to their countries of citizenship (as opposed to habitual residence) in cases of international custody disputes. Thus, the testimony of Elizabeth May, a member of the Canadian Parliament whom Thompson called as a witness at trial, that “the substance of this case is basically the wrongful retention of a Canadian citizen” was not only wildly improper, but legally immaterial (if politically prudent). case.” 605 F.3d at 105 (footnote omitted). It is difficult to

read this statement as an endorsement of the very sort of rigid

test that this court understands Thompson to propose, i.e., so

long as a child was habitually resident in some other country at

some prior point--irrespective, it would appear, of how long ago

that was at the time of the alleged abduction or retention--a new

habitual residence can be shown only by “unequivocal” evidence.14

O. Second, Ruiz does not stand for that proposition

anyway. Ruiz says “that when there is no shared settled intent

on the part of the parents to abandon the child’s prior habitual

residence, a court should find a change in habitual residence if

the objective facts point unequivocally to a new habitual

residence.” 392 F.3d at 1254 (discussing Mozes, 239 F.3d at

1081) (emphasis added). Here, for the reasons just discussed at

length, the court finds that the parties had the “shared settled

intent” to abandon J.G.’s habitual residence in Canada and move

her habitual residence to the United States (even assuming,

14 Indeed, this view of the law would appear inconsistent with 42 U.S.C. § 11603(e)(1)(A) which, as already discussed, requires a petitioner to show, and to show by a preponderance of the evidence, that the child has been wrongfully removed or retained under the Hague Convention, including that the child’s habitual residence was elsewhere at that time. See ¶¶ B-C, supra. Under Thompson’s view, a respondent could raise the petitioner’s burden to “unequivocal” proof--or, as would seem to be the effect of adopting Thompson’s view in this case, a petitioner could shift the burden of persuasion to the respondent on the issue of habitual residence at the time of the wrongful removal or retention--merely by showing that the child was habitually resident in a different country during some prior period. without deciding, that the parties had previously formed a shared

settled intent that J.G. reside in Canada, a point on which there

was conflicting trial testimony and circumstantial evidence that

is ambiguous at best, see ¶ 7 , supra). Ruiz, then, does not

support Thompson’s view that J.G.’s habitual residence was

Canada, rather than the United States, at the time of Gnirk’s

alleged wrongful retention of her on August 2 5 , 2011.15

P. Prior to that point, of course, J.G. had briefly

traveled to Canada with Thompson, following the dissolution of

the parties’ romantic and cohabitative relationship in late May

2011. But “the mere fact that conflict has developed between the

parents does not ipso facto disestablish a child’s habitual

residence, once it has come into existence.” Delvoye v . Lee, 329

F.3d 3 3 0 , 333 (3d Cir. 2003). To the contrary, to show that

15 Whether the parties have reached a shared, settled intent for their child’s habitual residence prior to the alleged wrongful abduction or retention is a different question, of course, from whether they agree at trial on what the child’s habitual residence was at the relevant time. See Mozes, 239 F.3d at 1076 (“Difficulty arises . . . when the persons entitled to fix the child’s habitual residence no longer agree on where it has been fixed . . . . In these cases, . . . courts must determine from all available evidence whether the parent petitioning for return of the child has already agreed to the child’s taking up habitual residence where it i s . ” ) . Contrary to Thompson’s suggestion, then, the fact that the parties disagreed at trial on J.G.’s habitual residence at the time of the alleged wrongful retention does not mean that the court could resolve that issue in Gnirk’s favor only if the evidence was “unequivocally” in that direction. Again, such an approach would plainly contradict the statutory allocation of both the burden and quantum of proof. See note 1 4 , supra. Canada became J.G.’s new habitual residence following the

parties’ breakup in May 2011, Thompson would have to show by a

preponderance of the evidence--according to the very standard

that she advances--either a “shared settled intent on the part of

the parents to abandon the child’s prior habitual residence” or

that the “objective facts point unequivocally to a new habitual

residence.” Ruiz, 392 F.3d at 1254 . 1 6

P. For the reasons discussed supra at ¶¶ 27-41, the court

cannot find, by a preponderance of the evidence, that, following

the end of the parties’ romantic relationship in May 2011, they

ever shared any “settled intent” that J.G. reside in Canada going

forward. To the contrary, the court finds that the parties had

not decided where J.G. would live in the future, either before

Thompson and J.G. traveled to Canada on May 2 6 , 2011, see ¶ 3 0 ,

supra, or before Thompson transferred J.G. to Gnirk on June 2 6 ,

2011, see ¶¶ 30-34, supra. Nor can the court find

“unequivocally”--or, for that matter, by a preponderance of the

16 Ruiz held that, in the absence of shared settled intent to abandon a prior habitual residence, or unequivocal objective evidence of a new habitual residence, a court can still find a new habitual residence if it “could ‘say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring a return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed.’” 392 F.3d at 1254 (quoting Mozes, 239 F.3d at 1081 (further quotation marks omitted)). The court cannot say that J.G.’s “relative attachments to the two countries” changed so dramatically as a result of the month or so she spent in Canada in 2011, and Thompson does not argue otherwise. evidence--that J.G.’s habitual residence became Canada as of May

2 6 , 2011. To the contrary, J.G. had spent only about a month

there before returning to New Hampshire in late June 2011.

Q. As Thompson acknowledges, deciding a child’s habitual

residence under the Hague Convention is usually a “task to

determine the intentions of the parties as of the last time their

intentions were shared.” Gitter, 396 F.3d at 134. As just

discussed, the parties did not share an intent to transfer J.G.’s

habitual residence to Canada at any point after they had settled

on an intent that she habitually reside in the United States. It

follows that the last time the parties shared an intent that J.G.

habitually reside in any country, it was the United States.

R. Finally, there is no merit to Thompson’s argument,

raised for the first time in her counsel’s summation at the close

of trial, that J.G.’s habitual residence reverted to Canada when

the parties’ romantic relationship ended because it marked the

end of a “trial period” where they were “trying to make the

relationship work.” It is true that some courts have found that,

under such circumstances, a family’s move to a different country

does not reflect their “shared settled intent” that it serve as

their habitual residence going forward. See Ruiz, 392 F.3d at

1258-59; Mikovic v . Mikovic, 541 F. Supp. 2d 1264, 1281 (M.D.

Fla. 2007). Unlike in those cases, however, there is no evidence

here that Thompson “agreed to move to [the United States] and that [Gnirk] had promised her that if things did not work out,

she could [go] back to” Canada. Mikovic, 541 F. Supp. 2d at 1281

(citing Ruiz, 392 F.3d at 1258-59)).

S. Indeed, Thompson never testified to even her own

understanding of the time she and J.G. spent living with Gnirk in

the United States as a “trial period” such that they would return

to Canada if Thompson’s relationship with Gnirk failed--let alone

that Gnirk had “promised her” she and J.G. could do so “if things

did not work out.” To the contrary, as already discussed at

length, Thompson testified (against the overwhelming weight of

the objective evidence) that the periods she and J.G. spent with

Gnirk in the United States were merely “visits,” such that

Thompson had never agreed to “move” to the United States at all.

Furthermore, there was no evidence that Thompson and Gnirk,

unlike the unhappy couples in Ruiz and Mikovic, were experiencing

difficulties in their relationship around the time they moved to

the United States such that they even had occasion to discuss

what they would do “if things did not work out” between them.

Happy couples ordinarily do not make “contingency plans” for

matters such as the custody of their children just in case the

parents happen to split and, again, there is no evidence

whatsoever that the parties did so here. In light of this

inarguable reality, Gnirk testified quite credibly, when he was

asked on cross-examination whether “when [he] moved to the United States [he] assume[d] that if [he] broke up with [Thompson] that

[J.G.] would return to Canada,” that he “didn’t really assume

that we would break u p . We were fine. I didn’t put any thought

into what would happen if we broke up.”

T. When confronted with this utter lack of evidence for

his “trial period” theory, counsel for Thompson pointed to the

fact that, when the parties did in fact break u p , Thompson and

J.G. returned to Canada. The fallacy in this argument is

obvious: the mere fact that parties take some action upon the

happening of an event does not prove a previous agreement to take

that action upon the happening of that event. Even putting that

aside, however, the court has already found that J.G.’s travel to

Canada in May 2011 did not reflect any agreement the parties

reached after they broke up that J.G. reside in Canada

habitually, see ¶ 3 0 , supra, so it would seem impossible to

conclude that the parties had reached such an agreement even

before they split. It bears repeating that, even if Thompson’s

“subjective intent” was that she would return to Canada with J.G.

to live if the parties’ relationship ended--and, again, she never

testified to having such an intent--that still would not show

that J.G.’s habitual residence was Canada. See ¶ K , supra; see

also Feder, 63 F.3d at 224 (“That Mrs. Feder did not intend to

remain in Australia permanently and believed that she would leave

if her marriage did not improve does not void the couple’s settled purpose to live as a family in the place where M r . Feder

had found work.”)

U. Accordingly, the court finds and rules that, as of

Gnirk’s allegedly wrongful retention of J.G. on August 2 5 , 2011,

J.G. was habitually resident in the United States. It follows

that Thompson has not carried her burden of proof for relief

under Article 3 of the Hague Convention. See ¶ D, supra.

V. In reaching this conclusion, the court has repeatedly

found that Thompson’s testimony was not credible, both as to

larger matters such as whether she was simply “visiting” the

United States and as to more minute details. The court stresses

that it does not view Thompson as an inherently untrustworthy

person, or as a witness bent on misleading the trier of fact.

Instead, the court suspects that Thompson, like many parties who

testify on their own behalf--particularly those who bear the

burden of proof--was struggling to square prior events, including

her own behavior, with the necessary showing (in this case, that

she and Gnirk never shared an intent for J.G. to reside anywhere

but Canada). This tendency is even more understandable in light

of the very high stakes of this particular proceeding. The court

wishes to emphasize that, consistent with the limited inquiry

here, it has no opinion on either party’s fitness as a parent,

whether as a result of credibility as a witness or otherwise. Order for Judgment

The clerk of court shall enter judgment for Gnirk and close

the case. Gnirk’s motion to dismiss17 is DENIED as moot. Gnirk

asks for payment of his “costs, including reasonable attorney’s

fees,” but he does not offer any basis on which the court can

award him attorneys’ fees. While 42 U.S.C. § 11607(b)(3) directs

that “[a]ny court ordering the return of a child pursuant to

[§ 11603] shall order the respondent to pay necessary expenses

incurred by or on behalf of the petitioner, including court costs

[and] legal fees,” it makes no such provision for a prevailing

respondent like Gnirk. Gnirk’s request for attorneys’ fees is

therefore denied. He may, however, seek his other costs in

accordance with Rule 54(d)(1) of the Federal Rules of Civil

Procedure and Local Rule 54.1.

SO ORDERED.

Joseph N . Laplante United States District Judge

Dated: August 2 1 , 2012

cc: Christopher G. Green, Esq. Cori A . Lable, Esq. Edward K. Sebelius, Esq. Kristen A . Fiore, Esq. Lauren A . Graber, Esq. David P. Eby, Esq. Heidi A . Ames, Esq.

17 Document n o . 1 9 .