Court Revives Dad’s Bid for Custody in Australia

CHICAGO (CN) - A man can keep fighting for the return of his children to Australia from his wife who is trying to keep them in the United States, the 7th Circuit ruled.

Iain and Norene Walker got married in Chicago in 1993. Five years later, the couple moved to Perth, a city in Western Australia. Though the move was supposed to be temporary, the Walkers ended up staying for 12 years, during which time their three children grew up and attended Australian schools.

In June 2010, the family traveled back to the U.S. while their Perth house was being renovated. Iain returned to Australia a month later, while Norene and the children stayed with her parents.

Four months later, Norene filed for divorce in Cook County.

Iain's attorney made several offers, but when it became clear that no settlement would be possible, Iain filed a request for return of his children under the Hague Convention in Australian court. He then sued Norene in the United States under the International Child Abduction Remedies Act.

The act, based on the Hague Convention on the Civil Aspects of International Child Abduction, entitles a person whose child has been wrongfully retained in the U.S. to petition for the child's return to his "country of habitual residence."

U.S. District Judge Samuel Der-Yeghiayan dismissed the petition, however, finding that the U.S. had become the children's country of habitual residence and that Iain had abandoned his custodial rights.

Central to the dispute was whether the June 2010 move represented an extended vacation or permanent relocation. Norene considered the move permanent, saying that Iain had planned to get a job in the U.S. and purchase a new house. Iain maintained that the plan had been to return to Australia, pointing out that their home had been remodeled and most of the family's possessions had been left behind.

The 7th Circuit reversed Friday, rejecting the majority of the lower court's analysis and calling for further development of the record with respect to the couple's initial plans when moving to the U.S.

Der-Yeghiayan's decision had relied in part on a settlement letter that Iain's lawyer sent Norene on Jan. 21. The letter contemplated allowing the children to live in the U.S., provided that they visit Iain in Australia over their summer and Christmas breaks. Norene rejected the offer, but interpreted it as providing consent for the children to remain with her.

But the federal appeals court Der-Yeghiayan should not have considered the letter under a circuit rule that prohibits the admission of settlement offers in parallel proceedings. Allowing consideration of such offers in court could chill contemplation of settlement offers. Furthermore, the judges determined, Iain's offer in no way indicated his consent to the children's relocation.

The District Court should have also probed further into the couple's original intentions in moving to the U.S.

"The evidence that Iain and Norene mutually intended to abandon Australia and take up residence in the United States is simply too contradictory and underdeveloped to support the district court's habitual residence finding," Judge Diane Wood wrote for the three-judge panel.

"Nor were the children in the United States for so long prior to the filing of the petition for return that their lives 'became so firmly embedded in the new country as to make [them] habitually resident' in the United States regardless of their parents' lack of mutual intent to establish a habitual residence here."

The 7th Circuit remanded the case for further fact finding.

"In returning this case to the District Court, we emphasize again that this is a dispute about which court system should resolve the underlying issue of child custody; it is not a dispute about which parent is preferable or the terms under which custody will be granted," Wood concluded. "We are confident that either the courts of Western Australia or the courts of Illinois are fully capable of resolving these matters."

International custody suits under the Hague Convention have proven difficult for federal courts. The Supreme Court recently granted certiorari in one such case to address a circuit split over whether parents can appeal a decision under the International Child Abduction Remedies Act once the child has left the country.

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