Vela v. Ragnarsson

386 S.W.3d 72, 2011 Ark. App. 566, 2011 Ark. App. LEXIS 608
CourtCourt of Appeals of Arkansas
DecidedSeptember 28, 2011
DocketNo. CA 11-351
StatusPublished
Cited by2 cases

This text of 386 S.W.3d 72 (Vela v. Ragnarsson) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vela v. Ragnarsson, 386 S.W.3d 72, 2011 Ark. App. 566, 2011 Ark. App. LEXIS 608 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

I ¡The Benton County Circuit Court entered an order returning six-year-old G.V. to his father’s residence in Iceland under the terms of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague”). We affirm the court’s order.

The child’s mother, appellant Kolbrun Vela, is a resident of the United States and holds dual citizenship in the United States and Iceland. The father, appellee Isak Ragnarsson, is an Icelandic citizen and resident. Vela became pregnant in Iceland in 2004 and moved to the United States to give birth. Ragnarsson traveled from Iceland and was present at the birth. Afterward, he returned home, and Vela maintained custody of G.V. in the United States.

In early 2005, Vela returned to Iceland with G.V. During the next four-and-a-half years, she and the child intermittently resided in America and Iceland, with the majority of | ¡.their time being spent in Iceland. Ragnarsson saw G.V. on a fairly regular basis while the child was in Iceland and sometimes kept him overnight.

In August 2009, Vela and G.V. left Iceland to reside in Killeen, Texas. When the child began asking about his father, the parties discussed arrangements for him to see Ragnarsson. In one email, Vela proposed the idea of G.V. staying with Rag-narsson and visiting her during summers and vacations. She explained that she had difficulty caring for G.V. and another son (who was not Ragnarsson’s) and had little family help.

According to Ragnarsson, the parties eventually decided that G.V. should return to Iceland and live with him. In January 2010, he traveled to Texas, where he and Vela signed two documents in the presence of a notary. The first document gave Rag-narsson permission to leave the country with G.V. The second, which Vela later denied signing, was a joint-custody agreement. The agreement provided that G.V.’s legal residence would be with Ragnarsson, that Vela would pay child support beginning January 1, 2010, and that the parties wanted the contract approved under Icelandic law.

After the documents were signed, Rag-narsson returned to Iceland with G.V. Upon arriving, he registered the joint-custody agreement with an Icelandic District Commissioner, who confirmed the agreement in accordance with Iceland’s Act in Respect of Children. Act 76/2008, art. 32. G.V. then lived in Iceland exclusively and uninterruptedly over the next six months, and he was scheduled to start school there in August 2010. He communicated with his mother primarily through Facebook and email.

lain June 2010, Vela suggested to Rag-narsson that G.V.. come to the United States for a summer vacation. Ragnars-son agreed and, with Vela’s knowledge, bought the child a three-week, round-trip ticket to America. At the end of the three weeks, however, Vela refused to return G.V. to Iceland. She later admitted that she had no intention of sending the boy back and deliberately misled Ragnarsson into believing that she would do so. Vela retained physical custody of G.V. in the United States and, at some point, moved to Benton County, Arkansas.

On October 18, 2010, Ragnarsson filed a petition in Benton County Circuit Court, seeking G.V.’s return under the Hague. The court conducted an evidentiary hearing and found that the parties had executed a joint-custody agreement; that the child’s legal residence was in Iceland with Ragnarsson; and that the child had been wrongfully detained in the United States. The court then ordered G.V. returned to Iceland as the appropriate forum under the Hague for the parties’ custody and visitation disputes. Vela filed this appeal.

The Hague was adopted in 1980 with the purpose of securing a child’s prompt return to his State of habitual residence if he was wrongfully removed therefrom or wrongfully retained in another State.1 A person seeking a child’s return may file a petition in any court that is authorized to exercise jurisdiction where the child is located, including a state court in the United States. 42 U.S.C. § 11603 (2009). If the court finds that the child was wrongfully removed or retained, and if the judicial proceeding was commenced less than one year after such removal or retention, the court “shall order the return of the child forthwith.” Hague Convention art. 12, T.I.A.S. 11670. A case arising under the Hague is not a custody Uproceeding. Hague Convention arts. 16 & 19, T.I.A.S. 11670; Courdin v. Courdin, 2010 Ark. App. 314, 375 S.W.3d 657. Rather, the court need ascertain only whether the removal or retention was wrongful under the law of the child’s habitual residence and, if so, order the child’s return to his habitual residence, where the courts of that venue can decide the merits of the custody dispute. See Courdin, 2010 Ark. App. 314, 375 S.W.3d 657.

In this appeal, Vela argues that the circuit court erred in applying the Hague’s provisions. She essentially claims that G.V.’s habitual residence was with her and that she did not wrongfully retain the child in the United States. Our review presents a mixed question of law and fact. Courdin, 2010 Ark. App. 314, 375 S.W.3d 657. We accept the circuit court’s factual findings unless they are clearly erroneous, but we exercise de novo review of the court’s application of legal principles to those facts. Id.

We first address G.V.’s habitual residence. The Hague does not define habitual residence but leaves the courts to fashion their own means of analyzing this question. In Courdin, supra, we recognized that determining a child’s habitual residence requires consideration of many factors, including the purpose of the move to a new country from the child’s perspective; parental intent; the change in geography; the passage of time; the parents’ citizenship; and the acclimatization of the child. Federal courts have relied on one or all of these factors. See Barzilay v. Barzilay, 600 F.3d 912 (8th Cir.2010); Robert v. Tesson, 507 F.3d 981 (6th Cir.2007); Kijowska v. Haines, 463 F.3d 583 (7th Cir.2006); Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The consensus among our courts appears to be that a child’s habitual residence is the place where he or she has been physically present for an amount of |fitime sufficient for acclimatization and with a degree of settled purpose. A “settled purpose” does not mean an intent to stay in a location indefinitely; all that is necessary is that the purpose of living at the location have a sufficient degree of continuity to be properly described as settled. See Mozes, 239 F.3d 1067.

Applying these principles to the present case, we conclude that no clear error occurred on the question of G.V.’s habitual residence. The parents agreed that G.V.

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Bluebook (online)
386 S.W.3d 72, 2011 Ark. App. 566, 2011 Ark. App. LEXIS 608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vela-v-ragnarsson-arkctapp-2011.