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BROOKE v. WILLIS

August 2, 1995

John Brooke, Petitioner,
v.
Terry Willis, Respondent.



The opinion of the court was delivered by: SHIRA A. SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.

 Petitioner John Brooke ("Petitioner") has filed this Complaint and Petition under the Hague Convention on the Civil Aspects of Child Abduction ("the Convention") and its implementing legislation, the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq., against his ex-wife Terry Willis ("Respondent"). Petitioner seeks to compel Respondent to appear in court with their daughter Demelza to show cause for the alleged wrongful retention of the child in the United States. Pursuant to the goals of the Convention, Petitioner then seeks a court decision ordering the immediate return of Demelza to England. For the reasons set forth below, the petition is granted.

 I. FACTUAL BACKGROUND

 Petitioner was born in England and is a British citizen. Respondent was born in China but is a naturalized citizen of the United States. See Child Abduction and Custody Act Questionnaire, dated September 9, 1994 ("Questionnaire"), at pp. 1-2. Although the facts regarding family history are somewhat sketchy, the parties were married in Wheaton, Illinois and Willis later gave birth to Demelza on May 22, 1984. See Telephone Conference, dated June 16, 1995 ("Tel. Conf."), at p. 7. *fn1" In 1987, the parties were formally divorced. See Questionnaire at p. 4. Although it is not stated in the record, it appears from later court documents that the parties were residing in California at the time of their divorce.

 On July 9, 1990, the Superior Court of California, County of Marin, executed a Stipulation and Order Regarding Child Custody and Visitation. The Order provided for joint legal and physical custody of Demelza and stated that the child should spend fifty percent of her time with each parent. See Stipulation and Order at PP 3,4. In addition, paragraph 4 pronounced that "the parties intend that half of Demelza's education be in the United Kingdom and the remaining amount in the United States of America." Both parties stipulated that this agreement would be effective in all countries, including the United States and the United Kingdom. Id. at P 8. At this time, the parties also signed an agreement specifying the time periods Demelza would spend with each parent and in school in England and the United 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 ...


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