Watts v. Watts
Opinion of the Court
The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), Oct. 25, 1980, T.I.A.S. No. 11,670.
BACKGROUND
I. The Watts Family Moves to Australia.
Shane Watts is a dual citizen of Australia and the United States. Carrie Watts is a citizen of the United States. In 2005, Shane and Carrie married in Park City, Utah. From December 2006 to June 2016, the couple lived in North Carolina, where they reared their three children-also dual citizens of Australia and the United States-and ran an international dirt-bike-racing school: DirtWise.
In March 2016, the couple learned that their middle child would need specialized medical attention possibly including expensive palate-extension surgery. The family decided to move to Australia to benefit from that country's universal-healthcare system. The couple intended to live in Australia until completion of their son's medical treatment. They estimated this would take about two to two-and-a-half years.
In spring 2016, the family began preparing for the move. Shane and Carrie rented out their home in North Carolina and temporarily moved the family into Carrie's parents' house in Utah. The family lived at this house in Utah from June 2016 to September 2016. While living at Carrie's parents' house, the family traveled around the western United States, in part "to evaluate places where they might choose to live when they returned from Australia." Appellant's App. at 307. During this time, "the parties had many conversations about their intentions to live in Australia only long enough to obtain [their son's] healthcare."
In September 2016, the family moved to Australia. They rented a home in Shane's hometown of Maffra, Victoria and shipped many of their belongings to Australia.
After the rental home proved too small, Shane and Carrie bought a house near Shane's parents' home. Carrie oversaw the renovation of the new home and furnished the home with used furniture that she bought and refurbished. In March 2017, the family moved into this home.
The move to Australia placed additional stress on Shane and Carrie's already-strained marriage. Carrie had developed second thoughts about the move and questioned the sustainability of the stint in Australia. Shane continued to travel overseas for work and, while doing so, rarely spoke with Carrie. Concerned that she would be unable to work if she and Shane later divorced, Carrie applied for a permanent visa.
In April 2017, Carrie called a family meeting, attended by Shane's parents and Carrie's mother. At the meeting's end, everyone agreed that Shane and Carrie needed to remain together so that their child could continue to receive necessary *1142medical care, and so that Carrie could get her permanent visa.
Despite their professed resolve to remain together, Shane and Carrie's relationship continued to deteriorate. From April 20 to May 20, 2017 and again from May 30 to July 13, 2017, Shane traveled to the United States to teach DirtWise classes. The couple barely spoke while Shane was away, and Carrie noticed "irregularities" in their shared bank accounts.
This marked the beginning of the end. About July 13, 2017, Shane returned to Australia, and on July 26, 2017, he tried one last time to persuade Carrie to work on the marriage. When she declined, Shane notified the Australian immigration authorities that they had separated, and he withdrew his sponsorship of Carrie's permanent-visa application. Carrie obtained an "intervention order"-the Australian equivalent of a protection order-against Shane.
On August 17, 2017, about three days after learning that Shane had withdrawn his sponsorship of her permanent-visa application, Carrie took the children and flew to Utah. She did not tell Shane beforehand, and she lied to customs agents that she was traveling to the United States for a short visit. As the district court found,
[before] removing the children and returning to the United States, the parties never had a shared mutual intent to make Victoria, Australia the habitual residence of the children. At no time did Carrie and Shane mutually agree to change their initial plan to be in Australia only long enough for [their son] to receive his medical care-after which they would return to the United States to raise the children.
II. Shane Petitions for the Children's Return to Australia.
Shane petitioned a federal court in Utah for the return of the children. In his petition, Shane claimed that Carrie had wrongfully removed the children from their "habitual residence"-i.e. , Victoria, Australia. Accordingly, Shane argued that the Hague Convention compelled the court to order the children's return to Australia. The district court denied Shane relief and dismissed the petition.
In its order, the district court concluded that Shane had failed to prove by a preponderance that Australia was the children's habitual residence. The district court noted that courts traditionally rely on two factors when determining a child's habitual residence under the Convention. The first factor is the child's acclimatization to the country that the petitioner *1143claims is the habitual residence. As the district court framed it, when determining acclimatization, a court must resolve whether the "children have become so rooted in the new country that" removal "is tantamount to taking the child[ren] out of the family and social environment in which [their] life has developed."
Regarding acclimatization, the district court acknowledged that the children had attended school, made friends, explored Australia, and "interacted somewhat" with Shane's family. Id. at 317. But the court also noted that the children had known that they would be in Australia for a limited time, that they had lived in two different houses while in Australia, and that they had "never considered Australia home." Id. Based on these facts, the court concluded that Shane had failed to prove by a preponderance of the evidence that the children had acclimatized to Australia.
Additionally, the court concluded that Shane and Carrie had never shared an intent to settle in Australia. The court found that Shane and Carrie had moved to Australia for one reason-their child's expensive orthodontic needs. The couple kept their home in North Carolina and left many of the family's sentimental items in Utah. Moreover, the couple left their bank accounts open in the United States, and Shane continued to operate DirtWise primarily in North America.
DISCUSSION
To award relief under the Hague Convention, a district court must find that a child's removal from a country was "wrongful." Shealy v. Shealy ,
On appeal, Shane attacks the district court's ruling on several fronts. All of Shane's challenges claim legal error. Thus, we review de novo Shane's claims that the district court applied the wrong legal standard when it determined that Australia was not the children's habitual residence. See
I. The District Court Did Not Require Permanency as a Prerequisite to a Habitual-Residency Finding.
Shane first argues that the district court erred by conflating the habitual-residence standard with the domicile standard that traditionally governs jurisdiction over American child-custody disputes.
In deciding this case, the district court relied in part on our unpublished opinion in Kanth ,
The problem with Shane's argument is that the district court did not require permanency. In its order dismissing Shane's petition, the district court cited our unpublished order in Kanth and recognized that permanency is not necessary to establish habitual residency. The district court considered the "specific facts and circumstances" surrounding the Watts' move to Australia and, in doing so, looked to the length of the family's intended stay as one factor among many. Appellant's App. at 316 (citing Kanth ,
II. The District Court Did Not Ignore Shane and Carrie's Present, Shared Intent.
Next, Shane argues that the district court erred by failing to consider his and Carrie's "present, shared intentions regarding their child[ren]'s presence" in Australia. Appellant's Op. Br. at 33-34 (emphasis omitted). Shane's argument has two parts. First, Shane argues "[a] child's habitual residence is generally the last place that the child lived per the parents' most recent agreement." Id. at 33. Thus, Shane claims that Australia was the children's habitual residence because Shane and Carrie's last shared intent was to live in Australia. But a court must consider all the facts and circumstances concerning the couple's intended stay in the country. Here, the court found that the shared intent "was to remain in Australia for a highly specific purpose which by its nature had a limited duration." Appellant's App. at 218. The court properly considered all the factors embedded in Shane and Carrie's decision to live in Australia. See Whiting v. Krassner ,
Second, Shane cites cases in which courts have found that a shared intent to remain in a location for two to four years was sufficient to sustain a habitual-residence finding. Appellant's Op. Br. at 35 (citing Whiting ,
As noted above, when determining habitual residency, courts must consider all the facts and circumstances surrounding the family's life in a given location. Under some facts and circumstances, two years may suffice to establish habitual residency. See Whiting ,
III. The District Court Did Not Misconstrue Kanth .
Shane next argues that the district court has run afoul of Kanth ,
In its order dismissing Shane's petition, the court found that "under the totality of the evidence before it ... the children did not acclimatize to Australia." Appellant's App. at 317. The court considered acclimatization from the children's perspective and relied on evidence demonstrating that the children's family and social environment had not sufficiently developed in Australia.
IV. The District Court Applied the Correct Acclimatization Standard.
Shane argues that the district court legally erred by not fully crediting how long the children had been in Australia. To that end, Shane argues that "nearly one year spent living in a country in which the children believed they would spend at least a few more years of their lives is indeed a sufficient amount of time to acclimatize." Appellant's Op. Br. at 40. In support, Shane claims that "the plain text of the Hague Convention acknowledges that one year is long enough for a child to become settled in a new environment." Id. at 41-42 (citing Hague Convention, art. 12). While Shane's legal foundation is firm, his conclusion is unstable.
Indeed, a child may acclimatize to a new location in a year; however, it is equally true that a year might be an insufficient amount of time for acclimatization. We acknowledge that courts have found a child to have acclimatized in as little as six months. See Feder ,
To keep a court's habitual-residence determination free from technical restrictions, we will not read into the term "habitual residence" any conclusive time frame. Though the length of time a child lives somewhere matters in determining *1147whether the child has acclimatized there, it is merely one factor among many. Thus, the court applied the correct legal standard by considering the totality of the circumstances-not just the amount of time spent in Australia-when determining whether the children had acclimatized.
V. The District Court Did Not Need to Consider Article 31(a) of the Convention.
Shane's last claim of legal error is that the district court failed to determine which state-Utah or North Carolina-was the children's habitual residence. Shane relies on Article 31(a) of the Convention and claims that after the court determined that Australia was not the children's habitual residence, the court needed to decide which state within the United States was the children's habitual residence.
As noted, to obtain relief under the Convention, a petitioner must establish that "(1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of petitioner's rights under the laws of that state; and (3) petitioner was exercising those rights at the time of removal or retention." Shealy ,
In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units -
(a) Any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;
(b) Any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in the State where the child habitually resides.
Hague Convention, art. 31. When, as here, the petitioner fails to establish habitual residence, Article 31 is not implicated. See Feder ,
Shane argues that the "children's prior habitual residence before moving to Victoria, Australia was North Carolina, not Utah", because "the parents never agreed that the children would live in Utah," and that Carrie generally planned to relocate only somewhere in the United States. Appellant's Op. Br. at 45. Shane notes that "the only state that the children were settled and habitually resident in prior to moving to Victoria, Australia was North Carolina" and that "the children had only ever visited their maternal grandparents in Utah for short periods of time." Id. at 44-45. True as this may be, it has no bearing on his claim.
The Convention does not require a district court to determine where a child *1148habitually resides. Instead, the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. If the child habitually resides there, the Convention demands that the court determine whether the child's removal from that location was wrongful. See Shealy ,
In any event, the district court had no occasion to apply Article 31 here, because it found that Shane failed at the first step-that is, he did not show that Australia was the children's habitual residence. Cf. Shalit v. Coppe ,
CONCLUSION
For the foregoing reasons, we affirm the district court's order dismissing Shane's petition.
Congress implemented the Convention through the International Child Abduction Remedies Act (ICARA),
But as the district court found, the family also left several sentimental items behind in Utah. Items left behind included "bikes, holiday decorations, and sentimental items such as family 'memory boxes' and ashes of cremated pets." Appellant's App. at 307.
On September 7, 2017, Shane filed a lawsuit in Australia seeking child custody and visitation. That litigation was still ongoing at the time the district court denied Shane's petition.
Regarding finances, the district court found that though the parties had moved their banking from a local North Carolina bank to Wells Fargo "to make international banking more convenient," they kept open "existing bank accounts and credit card accounts in the United States." Appellant's App. at 307. The couple left the "DirtWise operating account open in North Carolina" and only made a temporary "$200,000 fund investment in Australia in connection with the move."
The Supreme Court recently granted a writ of certiorari in Monasky v. Taglieri ,
Monasky likely will not impact this case. After all, Shane does not argue that the district court erred in its application of the facts to an agreed-upon legal standard, but, instead, argues that the district court applied the wrong legal standard. This court, and the Supreme Court, have been clear that such legal questions are subject to de novo review. See Pierce v. Underwood ,
At oral argument, we asked how the parties could agree to jurisdiction in Australia for custody proceedings while simultaneously debating that Australia was the children's habitual residence. As Shane's first argument demonstrates, the answer to this inquiry is simple: The Convention's habitual-residency standard could of course differ from the standard for determining jurisdiction over child-custody disputes. Guzzo v. Cristofano ,
The court interviewed the two older children in camera but gave little weight to their spoken views because their answers "appeared rehearsed and possibly coached." Appellant's App. at 301-04. But the court did credit Carrie's testimony that the children did not consider Australia home.
Shane claims that there is a "nuanced" circuit split regarding the weight to assign the two relevant factors: acclimatization and shared parental intent. Appellant's Op. Br. at 49. Shane argues that this court should adopt the approach which emphasizes acclimatization from the child's perspective over the parents' shared intent. To the extent that there is such a circuit split, this case can be resolved without choosing a side. The district court considered each factor independently and held that under either one Shane had failed to prove by a preponderance of the evidence that Australia was the children's habitual residence. Thus, it is immaterial which factor-if either-carries more weight.
Shane also argues that the district court's dismissal of his petition contravenes the Convention's underlying goals. Shane claims that the district court "condoned [Carrie's] wrongful actions and rewarded her scheme of lying to the Australian authorities and removing the children in violation of Shane's custody rights." Appellant's Op. Br. at 48-49. This is not true. The court did not condone Carrie's conduct but instead found that the Convention did not provide Shane relief. The Convention applies only when a child is removed from his or her habitual residence, and Shane has failed to prove that Australia was the children's habitual residence. By the Convention's own terms, it did not apply to Shane.
We agree with Carrie that requiring her to prove which state in the United States was the children's habitual residence would improperly shift the burden of proof from Shane to her. Shane bears the burden to prove that the children's habitual residence was Australia, but Carrie does not bear the burden to prove that the children habitually reside in the United States.
Reference
- Full Case Name
- Shane WATTS v. Carrie WATTS
- Cited By
- 15 cases
- Status
- Published