States. Affidavit of John Brooke, dated September 8, 1994 ("Brooke Aff."), at pp. 1-2.
Petitioner decided to move back to England permanently in the summer of 1990. Id. at p. 2. Pursuant to the Stipulation and agreed upon timetable, Demelza accompanied Petitioner to England in July, 1990. Demelza lived with Petitioner and his parents in Bradford Yorkshire, England throughout the summer. See Declaration of John Edwin Brooke (Petitioner's father), dated December 9, 1990. In accordance with the custody timetable, Petitioner returned Demelza to Respondent in California on August 28, 1990. See Brooke Aff. at p. 2.
Respondent failed to return Demelza to England in December, 1990 in violation of the Stipulation and Order and the timetable. Id. Petitioner then left England and went to California to contact Respondent and Demelza. At first, Respondent allowed Petitioner to visit with his daughter several times, but she then filed an ex-parte restraining order against him in a California state court. Petitioner claims that before it was time for the parties to appear in court, however, Respondent fled the state with the child. This same series of events later took place in Virginia. See Tel. Conf. at pp. 4-5. As a result of Respondent's evasive behavior, state misdemeanor warrants were issued for her arrest in both California and Virginia. Id. at p. 5. These warrants remain outstanding and Petitioner has been unable to exercise his custody rights since the summer of 1990.
Petitioner last saw his daughter on October 25, 1993 in Virginia. Brooke Aff. at p. 3. He last spoke to his daughter and Respondent in late March or early April of 1994. Around this time, Respondent provided Petitioner with a White Plains, New York address. Tel. Conf. at p. 6.
II. THE PRESENT PETITION
Petitioner first became aware of the Hague Convention on the Civil Aspects of Child Abduction on or about August 30, 1994. Brooke Aff. at p. 1. He claims that had he known about this remedy at the time of the initial abduction in December, 1990, he would have made an application under the Convention at that time. Id. at p. 3.
On October 5, 1994, Petitioner filed a Complaint and Petition under the Hague Convention and ICARA in the United States District Court for the Southern District of New York seeking: 1) a writ of habeas corpus ordering Respondent to appear in court with Demelza to show cause why the child has been kept from Petitioner; 2) a warrant in lieu of a writ of habeas corpus authorizing any United States peace officer to take Demelza into protective custody without the knowledge of Respondent; 3) an order directing the Federal Marshal or other peace officer to enter Demelza's name into the national police computer system (N.C.I.C.) missing persons section; 4) an order giving any United States peace officer the authority to search any place where Demelza is reasonably believed to be present; 5) an order directing the prompt return of Demelza to Petitioner; and 6) an order for a Hague Convention hearing. Petitioner would also like the court to reserve the right to award Petitioner costs, fees, travel expenses and attorney's fees.
Federal Marshals have attempted to personally serve Respondent at both the White Plains address she gave Petitioner and at a Manhattan address furnished to Petitioner by the U.S. State Department, Office of Children's Issues. See Tel. Conf. at pp. 7-8. Petitioner also claims to have verbally informed Respondent of his petition and to have mailed her copies of all relevant papers. Id. at pp. 10-11.
The Hague Convention was adopted in 1980 "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." Hague Convention, Preamble. ICARA, which implements the Convention in the United States, provides that state courts and United States district courts have concurrent original jurisdiction of actions arising under the Convention. See 42 U.S.C. § 11603(a).
Under Article 19 of the Convention, a federal district court may determine the merits of a wrongful abduction claim but may not decide on the merits of the underlying custody dispute. See Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993). Initially, the court must determine whether the petitioner may invoke the protection of the Hague Convention for an alleged wrongful abduction of the child. See Meredith v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991).
As a threshold matter, due process requirements dictate that proper notice of the proceedings be given in order that the other parent can appear or otherwise inform the court of his or her position. Meredith, 759 F. Supp. at 1435. Although the Convention itself does not specify any notice requirements, ICARA provides that notice be given in accordance with the applicable law governing notice in interstate child custody proceedings. See 42 U.S.C. § 11603(c).
In the United States, the Parental Kidnapping Prevention Act ("PKPA") and the Uniform Child Custody Jurisdiction Act ("UCCJA") govern notice in interstate child custody proceedings. See Klam v. Klam, 797 F. Supp. 202, 205 (E.D.N.Y. 1992). Section 4 of the UCCJA and Part (e) of the PKPA provide that reasonable notice and opportunity to be heard must be given to all parties before a custody determination is made. Section 5 of the UCCJA further provides that notice "shall be given in a manner reasonably calculated to give actual notice."
Here, several attempts were made by Federal Marshals and by Petitioner to personally serve Respondent and to mail her the relevant papers at her last two known New York addresses. These attempts were apparently unsuccessful because of Respondent's evasive tactics. In light of the circumstances, it does not appear that Petitioner could have done any more to notify Respondent. Furthermore, Petitioner claims to have given Respondent particular details regarding the proceedings over the phone, including the case number and the location of the Court. See Tel. Conf. at p. 11.
Both state and federal courts have found service to be sufficient and proper under similar circumstances. In an interstate custody case where personal service was impossible due to the flight of the respondent, the court allowed substituted service in any manner "reasonably effective to give the defendant notice of the suit." See Ingram v. Ingram, 463 So. 2d 932, 936 (La. 1985). The court further noted that although there was no personal service, the record reflected the respondent's actual knowledge of the pending litigation. Id. at 934. And in a federal case dealing with a petition under the Hague Convention, the court found service to be proper where the father sent papers to the mother's parents and specifically informed the mother of the proceedings over the phone. See Meredith, 759 F. Supp. at 1433. In light of these precedents, and the history of Respondent's prior conduct, I conclude that here Respondent has received actual notice of Petitioner's application under the Convention.
B. Requirements under the Convention
Several requirements must be met by Petitioner in order to invoke relief under the Convention. First, both countries involved must be signatories to the Convention. See generally Lon Vinion, When Custody Conflicts Cross the Border, 15 Fam. Advoc. 30 (Spring, 1993). Both the United States and England are signatory countries. Second, the child must be under sixteen years of age. See Hague Convention, Article 4. Here, Demelza is eleven years of age. Third, Petitioner must show by a preponderance of the evidence that under the Convention, the child was wrongfully removed or retained from the place of habitual residence. See Wanninger v. Wanninger, 850 F. Supp. 78, 80 (D. Mass. 1994) (emphasis added).
Article 3 of the Convention provides that "the removal or the retention of a child is to be considered wrongful where--
(a) it is in breach of rights of custody attributed to a person...under the law of the State in which the child was habitually resident immediately before the removal or retention; and