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Media Alerts - Charles Blackledge v. Olga Blackledge - Third Circuit
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August 7, 2017
  Charles Blackledge v. Olga Blackledge - Third Circuit
Headline: The Third Circuit held that shared parental intent of a settled purpose is sufficient to constitute a habitual residence; split custody should be considered as one factor in determining habitual residence

Area of Law: Custody; Hague Convention on Child Abduction

Issue(s) Presented: Is a retention date determined by the original date of consent? Is a "settled purpose" enough to demonstrate habitual residence? Does split custody give rise to alternating habitual residences?

Brief Summary:

Petitioner filed a petition under the Hague Convention, seeking the return of his son, J.B., to Germany. J.B. and Respondent had been residing in Pittsburgh for a year at the time the petition was filed. The District Court denied the petition, finding that retention was not wrongful under the Hague Convention. The Third Circuit ultimately affirmed, while clarifying some minor errors in the District Court's reasoning. The Court found that the District Court determined an incorrect retention date by focusing on the original consent given by the Petitioner. When Petitioner filed the petition under the Hague Convention, he sufficiently withdrew his consent. The Third Circuit further found error in the District Court's determination that there was no evidence of an agreement between Respondent and Petitioner. However, the Court concluded that even though there was an agreement, the shared parental intent factor still demonstrated that the United States was the appropriate habitual residence. After clarifying these errors, the Third Circuit affirmed, finding that denial of Petitioner's petition was appropriate.

Extended Summary:

Petitioner filed a petition alleging that his wife, the Respondent, was acting in violation of the Hague Convention on the Civil Aspects of International Child Abduction by retaining their son in the United States. Petitioner, Respondent, and their son, J.B., lived in various countries during his childhood. In Spring 2011, Petitioner moved to Germany to work as a patent agent. During this same time, Respondent and J.B. moved to Pittsburgh, where they lived for two years. In August 2013, Respondent and J.B. returned to Germany, where J.B. attended school and Respondent was working on a Ph.D. program. In August 2015, Petitioner and Respondent were having difficulties in their marriage and Respondent and J.B. returned to Pittsburgh, with Petitioner's agreement, to finish her Ph.D. While in Pittsburgh, J.B. attended second grade, where he succeeded academically and he was very involved in extracurricular activities as well. In February 2016, Petitioner and Respondent corresponded through email about the living status of J.B. These emails discussed an agreement that J.B. was to return to Germany for the following school year. However, Respondent insisted that their son should not be changing schools each year. During this ongoing dispute, Respondent filed for divorce and received an interim custody order. With no resolution as to whether J.B. would return to Germany, Petitioner filed a petition under the Hague Convention, seeking J.B.'s return.

The District Court held a bench trial and used the email correspondence, testimony from Petitioner and Respondent, as well as testimony from J.B.'s school, to determine the appropriate retention date to be August 2016. Based on this, the District Court found that J.B.'s habitual residence was in Pittsburgh and therefore, retention was not wrongful under the Hague Convention. The District Court denied the petition.

The Third Circuit determined that the August retention date adopted by the District Court was inappropriate. The Court found that the District Court erred by focusing on the Petitioner's original consent and not focusing on the subsequent communications between Petitioner and Respondent. The Third Circuit concluded that the appropriate retention date was July 6, when Petitioner filed his Hague Convention petition and fully withdrew his prior consent.

The Third Circuit held that the District Court erred in determining that there was no credible evidence that the parties had an agreement that J.B. remain in Pittsburgh for a specific duration. The Court found that there was specific evidence on record that showcased an agreement of this nature. Habitual residence is determined by the parents' shared intent as to a settled purpose for the child's move to Pittsburgh and the child's acclimatization to the claimed residence. The Third Circuit concluded that both factors still favored the United States as J.B.'s habitual residence. Petitioner and Respondent intended J.B.'s stay in Pittsburgh to have a settled purpose. He resumed a normal and routine life in Pittsburgh. The Court determined that parties' agreement for J.B. to return to Germany did not diminish the parties' intention for J.B. to live a settled life in Pittsburgh. J.B. was also acclimatized to his life in Pittsburgh. For these reasons, the Third Circuit found that the District Court was ultimately correct in deciding that the United States was J.B.'s habitual residence at the time.

The Third Circuit further addressed the idea of "shuttle custody," where a child splits time between his parents' countries of residence. The Court determined that an agreement to alternate custody in different countries does not necessarily equate to alternating habitual residences. Instead, the Court held that this type of agreement should be considered as a factor in determining whether the parents intended the child's move to have a degree of settled purpose. The Court found that the totality of the circumstances, including the retention date, degree of settled purpose, and shared parental intent, supported the finding that J.B.'s habitual residence was the United States.

Petitioner argued that, due to the District Court's error on the retention date, certain evidence regarding J.B.'s acclimatization should be inadmissible. In response, the Third Circuit determined that this error was harmless and the record regarding acclimation was sufficient based on the correct retention date. The District Court's determination that J.B. had acclimated to the United States was still appropriate.

The Third Circuit affirmed the District Court's decision to deny the petition.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/163667p.pdf

Panel: Ambro, Krause, and Nygaard, Circuit Judges

Argument Date: May 19, 2017

Date of Issued Opinion: August 3, 2017

Docket Number: No. 16-3667

Decided: Affirmed

Case Alert Author: Kristina Flatley

Counsel: James Martin and Michael Yingling, Counsel for Appellant; Barbara Ernsberger, Counsel for Appellee.

Author of Opinion: Circuit Judge Krause

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 08/07/2017 09:43 AM     3rd Circuit  

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