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Sorenson v. Sorenson: US District Court : FAMILY LAW - child's habitual residence in Australia, not U.S.

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
________________________________________________________________
ERIC W. SORENSON,
Plaintiff,
v. FINDINGS OF FACT, CONCLUSIONS
OF LAW & ORDER
Civil File No. 07‐4720 (MJD/AJB)
JANEA M. SORENSON,
Defendant.
________________________________________________________________
Susan Anderson McKay, McKay & Perusse, LLC, for Plaintiff Eric W. Sorenson.
Janea M. Sorenson, pro se.
________________________________________________________________
I. INTRODUCTION
This matter came on for trial before the Court on March 25, 2008 pursuant
to Article 15 of the Convention on the Civil Aspects of International Child
Abduction, done at The Hague on October 25, 1980 (“Convention”) and the
International Child Abduction Remedies Act, 42 U.S.C. § 11601, et seq.,
(“ICARA”) for a determination of whether the minor child of the parties is a
1Defendant submitted multiple affidavits to the Court. [Docket No. 22] In
reaching its decision, the Court has not relied on the unsigned affidavit
submitted by Defendant, filed in the Family Court of Australia on March 6, 2008.
2
habitual resident of the State of Minnesota, United States, and whether Defendant
wrongfully retained the minor child within Australia.
At trial, Plaintiff appeared in person with his counsel, Susan Anderson
McKay of McKay & Perusse, LLC. Plaintiff presented three witnesses: John
Vento, Amy Wickstrom Daly, and Eric W. Sorenson. Defendant appeared pro se,
by telephone from Sydney, Australia. Defendant called in to the Court
proceeding and the Court faxed exhibits to her at an Australian telephone
number, which she received. Defendant presented no witnesses at the trial. The
parties have both also submitted affidavits and exhibits, which the Court has
considered.1
Based upon the presentations of counsel and Janea Sorenson, the
submissions filed in this matter, and the evidence adduced during the trial, the
Court makes the following findings of fact and conclusions of law. To the extent
that findings of fact may be considered conclusions of law, they will be deemed
conclusions of law. Similarly, to the extent that matters expressed as conclusions
of law may be considered findings of fact, they will be deemed findings of fact.
3
II. FINDINGS OF FACT
The Court makes the following findings of fact by a preponderance of the
evidence:
A. Factual Background
1. General Facts Relating to Relocation to Australia
Plaintiff Eric Sorenson (“Father”) and Defendant Janea M. Sorenson
(“Mother”) are citizens of the United States.
Father and Mother were married in Chicago, Illinois, on October 25, 2002.
Their minor daughter, E.S.S., is also a U.S. citizen, and was born in
Woodbury, Minnesota, on [REDACTED] 2002.
In November 2003, Father accepted a position with Secure Computing
Corporation as a Sales Engineer in Secure Computing’s Chatswood, Australia,
office.
Secure Computing’s November 7, 2003, offer letter did not contain a
termination date for Father’s employment or state any particular duration for his
employment in Australia.
Father’s employer helped him to obtain a 457 Long‐Term Business Stay
Visa with a three‐year duration.
4
Mother and E.S.S. obtained three‐year Australian visas that were
dependent upon Father’s visa status.
All of the Sorensons’ visas were set to expire on June 2, 2007.
In preparation for their move to Australia, Mother and Father sold their
house in Minnesota. They also sold their two cars.
The Sorensons shipped almost all of their personal belongs to Australia.
They left some belongings with Father’s parents and some belongings with
Mother’s grandparents.
Father, Mother, and E.S.S. moved to Australia in February 2004.
While in Australia, neither Father nor Mother purchased a home.
Within a few months of moving to Australia, the marital relationship
became strained.
Mother and Father separated in October 2004, but continued to reside in
the same home.
In March 2005, Mother and Father separated their residences.
Despite the separation, Father and Mother determined that they would
both remain in Australia along with E.S.S.
While in Australia, Father did not purchase a car.
5
Neither Father nor Mother obtained Australian drivers licenses.
Father remained on the voter rolls in Minnesota and received and returned
absentee ballots for Minnesota elections while he was in Australia. Father used
the Sorensons’ former Minnesota residence as his address for purposes of voting,
although the Sorensons had sold that house.
Father renewed his Minnesota drivers license in May 2004, during a visit to
Minnesota, after he first moved to Australia. Father used his parents’ address in
Eden Prairie, Minnesota, as his residence listed on his Minnesota drivers license.
Father and Mother shared a joint bank account at U.S. Bank that they
continued to use when they moved to Australia.
After Father and Mother separated, Father opened a bank account with a
Minnesota credit union and, later, with Wells Fargo.
Father also opened and used an Australian bank account while living in
Australia.
Upon moving to Australia, Mother and Father surrendered their
Minnesota residency under federal and state tax laws and claimed Australia as
their residence on their tax forms.
During the summer of 2006, due to problems in her romantic relationship,
6
Mother contemplated relocating to California, but not to Minnesota.
In May 2007, Mother again contemplated relocating to the United States
with E.S.S. At that time, Mother and Father exchanged e‐mails regarding
possible flights from Australia to the United States.
Mother did not plan to return to Minnesota, but rather, contemplated
moving to California. The Sorensons had no connection to California.
On May 30, 2007, Mother formally informed Father, through her solicitor,
that E.S.S. would be staying in Australia and that Mother would be obtaining
new Australian visas for Mother and E.S.S.
Beginning on June 2, 2007, after the Sorensons’ three original visas expired,
Mother retained E.S.S. in Australia against Father’s wishes.
Immediately before Mother retained E.S.S. in Australia, in May 2007, all of
E.S.S.’s friends were in Australia.
As of May 2007, E.S.S. had an Australian accent.
E.S.S. has been living in Australia since February 2004, when she was
approximately 14 months old.
Until Father’s visa expired in June 2007, E.S.S. was located in Australia
with the permission of both Father and Mother.
7
Upon the expiration of his visa, Father returned to the Minnesota.
Mother remains in Australia with E.S.S.
Father has returned to Australia to visit E.S.S.
The marital relationship of the parties has not been terminated and there
are no custody orders in place establishing either parent as the legal or physical
custodial parent.
2. The Sorensons’ Intention upon Moving to Australia
At the time of the Sorensons’ relocation to Australia, they did not have a
definite intention to return to the United States, let alone to Minnesota. Their
intention was to live in Australia for an indefinite period of time, lasting at
least three years. The Sorensons intended to make Australia their new home.
The Court bases this finding on various evidence in the record.
This finding is supported by the testimony of John Vento that Father stated
he was going to move to Australia for three years and then, after that, he would
have other opportunities within Secure Computing. Vento further testified that
these other opportunities would not necessarily be in Minnesota, but could be in
another of Secure Computing’s global offices, including offices in Australia,
overseas, or in other U.S. locations. Father did not express an intent to move
8
temporarily to Australia and then return to Minnesota. The Court finds Vento’s
testimony credible and gives it substantial weight.
The Court’s finding is also supported by the February 5, 2008 affidavit of
Janea Sorenson, averring that, at the time of the Sorensons’ move to Australia,
they intended to remain in Australia indefinitely, they had no plans to return to
Minnesota or to the United States in general, and they had no agreement
regarding how long they would remain in Australia. The Court finds these
statements credible, particularly in light of the objective evidence of the
Sorensons’ intentions, and gives it some weight.
The Court’s finding is supported by the fact that Father and Mother
declared that Australia, not Minnesota, was their residence on their tax returns,
and the fact that the family sold its house in Minnesota along with its two cars
and moved most of its personal belongings to Australia. The Court gives strong
weight to these objective indications of the Sorensons’ intentions.
The Court does not find the fact that, while in Australia, Father maintained
a U.S. drivers license listing his parents’ address to weigh heavily in its finding.
Australia recognized Father’s U.S. drivers license and he renewed the license
only three months after leaving the U.S.
9
Nor does the Court find the fact that Father voted by absentee ballot alters
its conclusion. The fact that, while in Australia, Father continued to vote in
Minnesota and was listed as “Temporarily Outside of the U.S.” on his voting
record does weigh towards having an intent to maintain Minnesota as a
residence. However, under the Uniformed and Overseas Citizens Absentee
Voting Act, 42 U.S.C. §§ 1973ff to ff‐6 and the implementing statutes in
Minnesota, a U.S. citizen who has relocated permanently overseas can continue
to vote by absentee ballot using his last legal address in the United States. In this
case, Father admitted that he used the family’s previous legal address for
purposes of absentee voting, although the family had sold the house and no
longer resided there. The Court concludes that Father’s continuing to vote
absentee ballot, using his former address, is not a strong enough factor to
outweigh the other indications that the Sorensons intended to relocate
indefinitely to Australia.
The Court’s finding is also supported by the fact that the November 7,
2003, offer letter from Secure Computing does not state a termination date for
Father’s employment in Australia. The Court awards weight to this fact.
The Court gives little weight to the June 28, 2007, letter from Secure
10
Computing stating that Father’s assignment in Australia was from November 24,
2003, until May 15, 2007, because it was created after Father’s return to the United
States, at Father’s request to be used in this international child custody dispute.
The Court gives little weight to the fact that Father maintained a U.S. bank
account while in Australia because he also admittedly opened and used an
Australian bank account while there. Additionally, there is incomplete evidence
regarding all of Mother’s bank accounts and when she maintained them.
In light of the other evidence and having observed Father’s testimony, the
Court does not find credible Father’s testimony that Father and Mother explicitly
agreed that they would return to Minnesota after three years. The Court gives
little weight to that testimony.
The Court finds that, in combination, the foregoing facts establish that
the Sorensons intended to abandon Minnesota as their habitual residence and
to establish Australia as their new habitual residence.
B. Procedural Background
1. State Court Proceedings
On May 18, 2007, Father served Mother with a Summons and Petition for
dissolution of marriage, venued in Hennepin County District Court, Minnesota.
11
Father filed the Summons and Petition on May 25, 2007. In the Petition,
Father asked the state court to determine dissolution and child custody issues.
On September 19, 2007, the Hennepin County District Court filed its Order
holding that it did not have jurisdiction to address the petition for dissolution
because Father was not domiciled in Minnesota for 180 days before filing his
Petition.
As to the child custody determination, the state court held that it was
without jurisdiction to address that issue because Minnesota was not E.S.S.’s
home state.
2. Article 15 Proceedings
On July 16, 2007, Father filed a request for return of E.S.S. under the
Convention with the U.S. Department of State.
On October 10, 2007, Rachel Hackwill of the Australian Government
Attorney‐General’s Department, the Australian Central Authority, requested that
the U.S. Department of State provide an Article 15 Declaration from a Minnesota
court to her.
On November 29, 2007, Father filed a Verified Petition for a Determination
Pursuant to Article 15 in this Court.
12
His claim is brought under the Convention, implemented by the ICARA.
Father requests that this Court issue an order determining
1. That the State of Minnesota, United States is the habitual
residence of the minor child, E.S.S., within the meaning of Article 4
of the Convention, 19 I.L.M. 1501, et. seq.
2. That the Defendant has wrongfully retained the minor
child, E.S.S., within Australia, within the meaning of Article 3 of the
Convention, 19 I.L.M., et seq.
(Verified Compl. at 5.)
The United States and Australia are both Contracting States to the
Convention.
E.S.S. is below the age of 16.
On January 14, 2008, having had no further contact or submissions from
Plaintiff, the Court ordered that Plaintiff file proof of notice of the action to
Defendant and then contact the Court to schedule a hearing date in order to
expeditiously resolve the Petition.
Mother was personally served in this matter on December 18, 2007. Father
has filed proof of personal service.
After being contacted by Plaintiff, the Court set a bench trial for March 25,
2008.
13
Mother filed responsive documents and appeared telephonically for the
entire bench trial.
3. Australian Proceedings
Proceedings in Australian Family Court, in Sydney, are ongoing.
On March 19, 2008, the Australian court issued an order denying Mother’s
request to enjoin Father from pursuing his Petition in this Court.
The Australian court is awaiting the Article 15 determination from this
Court and any subsequent action by the Australian Central Authority before
making a custody decision.
III. CONCLUSIONS OF LAW
A. Jurisdiction
Article 15 of the Convention provides that the
judicial or administrative authorities of a Contracting State may,
prior to the making of an order for the return of the child, request
that the applicant obtain from the authorities of the State of the
habitual residence of the child a decision or other determination that
the removal or retention was wrongful within the meaning of Article
3 of the Convention.
As explained in the Court’s March 19, 2008 Order, this Court does not have
subject matter jurisdiction to order return of E.S.S.; however, the Court does have
14
jurisdiction to make an Article 15 determination for the benefit of the Australian
Central Authority. See, e.g., Morton v. Morton, 982 F. Supp. 675, 688 (D. Neb.
1997) (holding that Utah court had jurisdiction to decide the “wrongfulness” of
removal of child the Germany under Hague Convention, although child was
located in Germany).
B. Notice
Mother has received proper notice of this action.
Under the ICARA, “[n]otice of an action . . . shall be given in accordance
with the applicable law governing notice in interstate child custody
proceedings.” 42 U.S.C. § 11603(c).
The applicable Minnesota statute provides:
a) Notice required for the exercise of jurisdiction when a person is
outside this state may be given in a manner prescribed by the law of
this state for service of process or by the law of the state in which the
service is made. Notice must be given in a manner reasonably
calculated to give actual notice but may be by publication if other
means are not effective.
(b) Proof of service may be made in the manner prescribed by the
law of this state or by the law of the state in which the service is
made.
Minn. Stat. § 518D.108.
15
A process server in Australia personally served Mother with the relevant
documents.
Personal service was reasonably calculated to give actual notice.
Father’s personal service on Mother conforms to Minnesota’s notice
requirements, and, therefore, with the ICARA’s notice requirements.
C. Article 15 Determination
1. Legal Framework
Plaintiff must prove wrongful removal and habitual residence by a
preponderance of the evidence. 42 U.S.C. § 11603(e).
Authentication of documents is not required. 42 U.S.C. § 11605.
“[H]abitual residence determinations raise mixed questions of fact and law
and therefore should be reviewed de novo.” Silverman v. Silverman, 338 F.3d
886, 896 (8th Cir. 2003) (en banc) (citation omitted).
Article 3 of the Convention provides:
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,
an institution or any other body, 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
removal or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the removal
16
or retention.
Generally speaking, ‘wrongful removal’ refers to the taking of a
child from the person who was actually exercising custody of the
child. ‘Wrongful retention’ refers to the act of keeping the child
without the consent of the person who was actually exercising
custody. The archetype of this conduct is the refusal by the
noncustodial parent to return a child at the end of an authorized
visitation period.
Dept. of State, Hague Int’l Child Abduction Convention; Text & Legal Analysis
(Mar. 26, 1986), 51 Fed. Reg. 10494, quoted in Silverman, 338 F.3d at 897.
A petitioner cannot claim that the removal or retention of a
child is ‘wrongful’ under the Hague Convention unless the child to
whom the petition relates is ‘habitually resident’ in a State signatory
to the Convention and has been removed to or retained in a different
State. Determination of a child’s habitual residence immediately
before the alleged wrongful removal or retention is therefore a
threshold question in deciding a case under the Hague Convention.
Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006) (citations omitted).
Therefore,
wrongful removal or retention claims under Article 3 of the
Convention typically raise four questions: (1) When did the removal
or retention at issue take place? (2) Immediately prior to the removal
or retention, in which state was the child habitually resident? (3) Did
the removal or retention breach the rights of custody attributed to
the petitioner under the law of the habitual residence? (4) Was the
petitioner exercising those rights at the time of the removal or
retention?
17
Id. (citation omitted).
2. When Did the Removal or Retention Take Place?
Until Father’s visa expired on June 2, 2007, E.S.S. was located in Australia
with the permission of both Father and Mother. When Father’s visa expired, he
sought E.S.S.’s return to the United States and, against his wishes, Mother
retained E.S.S. in Australia. Therefore the relevant retention occurred in June
2007.
The Court must next determine in which State E.S.S. was a habitual
resident in May 2007.
3. Immediately Prior to the Removal or Retention, in which
State Was the Child Habitually Resident?
a. Eighth Circuit Case Law: Silverman
‘Habitual residence’ is not defined in the language of the
Hague Convention or by ICARA. However, the text of the
Convention directs courts to only one point in time in determining
habitual residence: the point in time ‘immediately before the
removal or retention.’ Art. 3. Additionally, the text of the
Convention points to the child’s, not the parents’, habitual residence.
Id. A person may have only one habitual residence, and it should
not be confused with domicile. [T]he court must focus on the child,
not the parents, and examine past experience, not future intentions.
Habitual residence may only be altered by a change in geography
and passage of time.
18
Federal courts are agreed that habitual residence must
encompass some form of settled purpose. This settled purpose need
not be to stay in a new location forever, but the family must have a
sufficient degree of continuity to be properly described as settled.
Additionally, the settled purpose must be from the child’s
perspective, although parental intent is also taken into account.
Silverman v. Silverman, 338 F.3d 886, 897‐98 (8th Cir. 2003) (en banc) (citations
omitted).
In Silverman, the Eighth Circuit held that the district court erred in
determining that children were habitual residents of the United States rather than
Israel and stated:
The court should have determined the degree of settled purpose
from the children’s perspective, including the family’s change in
geography along with their personal possessions and pets, the
passage of time, the family abandoning its prior residence and
selling the house, the application for and securing of benefits only
available to Israeli immigrants, the children’s enrollment in school,
and, to some degree, both parents’ intentions at the time of the move
to Israel. Fairly assessing these facts, there is only one acceptable
legal conclusion regarding the childrenʹs habitual residence: they
were habitual residents of Israel.
338 at 898‐99 (8th Cir. 2003) (footnote omitted). The Eighth Circuit concluded
that “one spouse harboring reluctance during a move does not eliminate the
settled purpose from the childrenʹs perspective.” Id. at 899.
In its analysis the Court follows the majority opinion in Silverman. In this
19
case, there are no issues of domestic violence and the Court is not being called
upon to determine whether or not there are affirmative defenses to retention or
removal. If those issues were before the Court, the Court would agree with the
dissenting opinion in Silverman.
b. Application of Silverman to this Case
Applying the Silverman factors to this case, the Court concludes that,
E.S.S. was a habitual resident of Australia immediately before the retention.
One factor mentioned by the Silverman court weighs in favor of the United
States being E.S.S.’s habitual residence just prior to the time of retention: there is
no evidence that either parent attempted to emigrate to Australia or attempted to
obtain any type of benefit only available to Australian immigrants. However, the
Court finds that the other relevant factors all weigh in favor of finding that
E.S.S.’s habitual residence was Australia at the time immediately prior to
retention.
After examining and weighing all of the relevant facts, the Court concludes
that E.S.S.’s habitual residence was Australia at the relevant time.
As the Court has previously found, at the time of the Sorensons’ relocation
to Australia, they did not have a definite intention to return to the United States,
20
let alone Minnesota. Their shared intention was to live in Australia for an
indefinite period of time, lasting at least three years. This shared intent weighs
towards finding that Australia was E.S.S.’s habitual residence. See Koch v. Koch,
450 F.3d 703, 718 (7th Cir. 2006) (holding that parents’ shared intention to live in
Germany for at least three years supported finding that children’s habitual
residence became Germany); Shalit v. Coppe, 182 F.3d 1124, 1128 n.5 (9th Cir.
1999) (noting that “[t]hree years is certainly enough time for [the child] to be
considered ‘settled’ in Israel, regardless of [the mother’s] claimed intention to
have him return permanently to Alaska at some point in the future.”), quoted in
Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004). Cf. In re Morris, 55 F. Supp.
2d 1156, 1161 (D. Col. 1999) (“Where the duration of a stay in a foreign country is
intended to be indefinite, the habitual residence of a child is usually in that
foreign country. However, where the stay is intended for a limited, distinct
period of time, especially for less than one year, courts have been reluctant to
find that new habitual residence has been established.”) (citations omitted)
(emphasis added).
Father testified that he did not intend the move to Australia to be
“permanent,” but a change in habitual residence does not require a “permanent”
21
move. As the Silverman court explained, the settled purpose required for a
change in habitual residence “need not be to stay in a new location forever, but
the family must have a sufficient degree of continuity to be properly described as
settled.” Silverman, 338 F.3d at 898 (citation omitted).
Immediately before the retention, E.S.S. was settled in and acclimatized to
Australia.
E.S.S. was enrolled in preschool in Australia and had spent the majority of
her life in Australia. She spoke with an Australian accent and all of her friends
were in Australia.
Immediately before the retention, the Sorensons had lived in Australia for
three years – a significant period of time – and had all remained in Australia
despite the breakdown in the family unit and the parents separating to live in
separate apartments.
When they moved to Australia, the Sorensons sold their house and cars in
Minnesota and transported most of their personal goods to Australia.
By the time that Father’s visa expired, he had a definite plan to return to
the United States, but, as the Court previously found, this was not Father’s set
intention at the time the family moved to Australia.
22
While, at various times, Mother evinced a desire to relocate to the United
States, these temporary and unformed plans did not alter E.S.S.’s habitual
residence or affect E.S.S.’s daily life. Additionally, Mother contemplated moving
to California, not returning to Minnesota, which further supports the conclusion
that Minnesota was not the family’s continued habitual residence while the
family was in Australia.
Weighing all of these facts, from E.S.S.’s perspective, the Sorensons had a
settled purpose to remain in Australia, not the United States. To E.S.S., Australia
was home. At the time immediately before retention, Australia was E.S.S.’s
habitual residence.
4. Conclusion
Because the Court concludes that Australia, not the United States, was
E.S.S.’s habitual residence immediately before the retention, the Court does not
reach the questions of whether the retention breached Father’s custody rights
under the law of the habitual residence and of whether Father was exercising
those rights at the time of retention.
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
23
1. The minor child, E.S.S. was a habitual resident of Australia at the
time immediately prior to her retention in Australia.
2. Plaintiff’s Verified Petition for a Determination Pursuant to Article
15 [Docket No. 1] is DISMISSED.
3. A copy of this decision is to be furnished to the United States Central
Authority and it may be used in Australia under Article 15 of the
Hague Convention.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: April 9, 2008 s / Michael J. Davis
Judge Michael J. Davis
United States District Court
 

 
 
 

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