Federal District Court Opinions
VAN DRIESSCHE v. OHIO-ESEZEOBOH, (S.D.Tex. 12-12-2006) CHRISTIAN VAN DRIESSCHE, Petitioner, v. BIBIANA OHIO-ESEZEOBOH, a/k/a BIBIANA OHIO, BIBIANA SMITH, VIVIANA O ESEZEOBO, VIVIANA OHIO, BIBIANA ESEZEOBO, Respondent. Misc. Action No. H-06-220, Misc. Action No. 4:06-220.
United States District Court, S.D. Texas, Houston Division. December 12, 2006
Attorney for Plaintiff: Christian Van Driessche, John K. Grubb, Cindy M. Aguirre, John K. Grubb & Associates, Houston, TX.
Attorney for Defendant: Bibiana Ohio-Esezeoboh, Stewart W. Gagnon, Jennifer Lynn Zucker, Fulbright & Jaworski L.L.P., Houston, TX.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
DAVID HITTNER, District Judge
On August 25, 2006 and October 3, 2006, the Court conducted
a non-jury trial on the above-referenced matter. The Court
has reviewed the evidence, the post-trial submissions of
the parties, and the applicable law. The Court now enters
the following findings of fact and conclusions of law. Any
finding of fact that should be construed as a conclusion of
law is hereby adopted as such. Any conclusion of law that
should be construed as a finding of fact is hereby adopted
as such.
FINDINGS OF FACT
1. Petitioner Christian Van Driessche (“Van Driessche”)
filed a petition (“Hague Petition”) for the return of his
child, Melissa, to Belgium pursuant to the Hague Page 2
Convention on the Civil Aspects of International Child
Abduction, October 25, 1980, T.I.A.S. No. 11670, 1988 WL
411501 (“Hague Convention” or “Convention”) reprinted in
51 Fed. Reg. 10,494 (March 26, 1986); and the
International Child Abduction Remedies Act, 42 U.S.C.A.
§ 11601, et seq. (“ICARA”).
2. Van Driessche, a Belgian citizen, alleges his child
Melissa was wrongfully removed from Belgium to Houston,
Texas (“Houston”). He contends she must be returned to
Belgium pursuant to the Hague Convention and ICARA.
3. Respondent Bibiana Ohio-Esezeoboh Smith (“Smith”),
Melissa’s mother, is a Nigerian citizen living in Houston.
Smith contests the applicability of the Convention, denies
she wrongfully removed Melissa from Belgium under the
Hague Convention, asserts affirmative defenses to wrongful
removal, and opposes the petition to remove Melissa to
Belgium.
4. Van Driessche, who is employed by the Belgian government
in the Ministry of Foreign Affairs, was posted to Nigeria
in 1996.
5. At that time, Smith lived in Nigeria and worked as an
actress in TV and radio programs and raised exotic dogs.
6. In February 1999, when Van Driessche was stationed in
Nigeria, Van Driessche and Smith met at a social function.
He was married, but he and his Page 3 wife were
separated.[fn1]
7. In the spring of 1999, Van Driessche and Smith began
dating.
8. During the summer of 1999, Smith abandoned her apartment,
sold her furniture, and began living with Van Driessche,
but maintained her bank accounts and continued working.
9. In September 1999, Smith and Van Driessche discovered
Smith was pregnant.
10. Van Driessche and Smith agreed the child should be born
in the United States.
11. Accordingly, in February 2000, Smith traveled from
Nigeria to Chicago, Illinois (“Chicago”) to visit her
sister, Catherine Albee (“Catherine”), and to await the
infant’s birth.
12. Smith’s delivery due date was April 15, 2000, and Van
Driessche was scheduled to arrive in Chicago on April 12,
2000, to participate in the infant’s birth.
13. Smith paid for insurance in the United States for the
medical costs associated with the birth, and Van Driessche
paid for Smith’s round-trip airfare from Nigeria to
Chicago.
14. The infant, Melissa, arrived several days early, on
April 10, 2000, before Van Driessche arrived in Chicago.
Page 4
15. On April 14, 2000, subsequent to his arrival in Chicago,
Van Driessche signed a Voluntary Acknowledgment of
Paternity.
16. After the infant’s birth, Van Driessche spent two weeks
in Chicago and then returned to Belgium. Smith remained in
Chicago for approximately two more weeks.
17. While in Chicago, Melissa received her current United
States social security number.
18. In May 2000, Smith returned to Nigeria with Melissa.
19. Sometime in July 2000, Smith and three-month-old Melissa
traveled from Nigeria to Chicago to attend Catherine’s
wedding.
20. In October 2000, the Ministry of Foreign Affairs
recalled Van Driessche to Belgium.
21. Consequently, Van Driessche, Smith, and Melissa traveled
to Belgium. Smith traveled there under a tourist visa,
and, as a United States citizen, Melissa did not need a
visa to enter Belgium. Smith testified that, at some point
in their relationship, she and Van Driessche planned to
get married.
22. When Smith left Nigeria with Van Driessche, she retained
her Nigerian bank accounts but sold her car, closed her
business, and gave away most of her dogs.
23. Smith testified that she had to leave Belgium frequently
in order to retain her Page 5 visa.
24. Upon arriving in Belgium, Smith and Melissa lived with
Van Driessche in a smaller apartment inside his larger
home, located at Avenue Georges Henri, 439, 1200 Brussels,
which Van Driessche owned and had been in his family since
the early 1950’s.
25. In January 2001, four months after arriving in Belgium,
Smith alleges she and nine-month-old Melissa left Belgium
and moved to Catherine’s home in Houston due to Van
Driessche’s violent and abusive nature. Catherine had
relocated from Chicago to Houston by this time.
26. In February 2001, Van Driessche flew to Houston, which
Smith alleges was for the purpose of convincing her to
return to Belgium.
27. During his Houston visit, Van Driessche stayed at
Catherine’s home, visited the Galleria Mall, and toured
Galveston, Texas and New Orleans, Louisiana with Smith.
28. In February 2001, Smith and Melissa returned to Belgium
with Van Driessche.
29. After returning to Belgium in February 2001, Melissa
attended a daycare near Van Driessche’s home.
30. Van Driessche testified that Melissa had many relatives
in Belgium, including Van Driessche’s two older sons; his
brother and his family; and his sister and Page 6 her
family.
31. Smith testified that she was held against her wishes in
Belgium from May 2001 through December 2001 because she
had no resources to leave.
32. At some point in 2001, Smith broke off the engagement.
33. By December 2001, when Melissa was almost twenty months
old, the relationship between Van Driessche and Smith had
further deteriorated.
34. On December 10, 2001, Van Driessche sent Smith an email
stating: “Of course I asked [you] to follow me in Belgium
when you had decided to go to the US; I would also prefer
to be in the US and I’m working hard on that; and I know
I’ve done stupid things but this was under particular
circonstances [sic] of stress and drinking.”
35. Van Driessche and Smith disagree about the nature of the
“stupid things” he had done.[fn2]
36. Van Driessche testified that while Smith was in Belgium,
she often went out at night and left nine-month-old
Melissa with him. As a result, Van Driessche had to get
the baby ready for daycare in the morning without Smith’s
help. This was a point of friction between them. Page 7
37. On December 31, 2001, Smith and Van Driessche had an
argument.[fn3]
38. After the argument, Van Driessche drove Melissa to his
sister’s home in Marbais, Belgium, about 40 kilometers (or
25 miles) away.
39. Smith filed a police report, claiming Van Driessche
attacked her while he was drunk and took Melissa away. Van
Driessche also filed a police report.
40. The police required Smith to surrender Melissa’s
passport. The police gave it to Van Driessche, who still
has it.[fn4]
41. After the fight on December 31, 2001, Smith stayed with
a friend because she had no place to live, no money, and
no source of income.[fn5]
42. On December 31, the Belgian juvenile authorities became
involved and allowed Van Driessche to keep the infant for
approximately twenty-five days.[fn6] Page 8
43. In January 2002, Van Driessche instituted proceedings in
the juvenile court for exclusive parental authority over
Melissa and filed custody proceedings in the Brussels
Court of First Instance (“Belgian court”).[fn7]
44. On January 31, 2002, Van Driessche filed a “unilateral
petition” and the judge ordered that Smith could not place
Melissa’s name in her passport, obtain a passport for
Melissa, or leave the Belgian territory with Melissa without
Van Driessche’s consent.[fn8]
45. The Belgian court held a hearing on Van Driessche’s
petition on March 11, 2002, either as a result of the
petition filed in juvenile court or as a result of a
subsequent petition filed in the Court of First Instance.
46. The proceeding was held in French, which Smith does not
understand, but she was represented by a pro bono
attorney. Smith attended the hearing with a friend who
attempted to translate the proceedings from French to
English for Page 9 her because there was no translator
present at the hearing.
47. The Belgian court stated that parental rights must be
established under Illinois law. Because Van Driessche had
not presented any applicable Illinois law, the Belgian
court deferred adjudicating his parental rights and ordered
that the hearing resume on April 22, 2002.
48. Additionally, the Belgian court provisionally declared
on March 11, 2002 (“March 11 Order”) that Smith would keep
Melissa one week and Van Driessche would keep Melissa the
other week.[fn9]
49. However, the Belgian court also provisionally ordered
that Smith had custody of Melissa, except the time Melissa
was staying with her father, and that Melissa was to be
registered in the population registers at her mother’s
residence.[fn10]
50. The Belgian court also ordered Van Driessche to pay
Smith 165 euros per month for Melissa’s maintenance. Van
Driessche never paid any money for Melissa’s maintenance.
Page 10
51. Smith avers that she cannot understand French and that
she did not know that the Belgian court ordered the
proceedings to resume on April 22, 2002. Moreover, Smith
avers she was never a Belgian resident because she only
entered Belgium on a tourist visa.
52. She further avers that, based on her friend’s
translation, she believed that the court matter was over
and that, because Van Driessche had no parental or custody
rights, she was free to leave Belgium with Melissa.
53. In compliance with the March 11 Order, Van Driessche
kept twenty-three-month-old Melissa for his week. When he
returned Melissa to Smith, she took Melissa out of
Belgium.
54. Smith first went to Italy, where she received assistance
from the International Organization for Migration (“IOM”),
an organization that provides humanitarian assistance to
migrants in need. IOM assisted Smith and Melissa in
returning to her parents’ home in Nigeria, where they
arrived in April 2002.
55. Van Driessche testified that he contacted and
continually worked with the Belgian police to locate
Melissa after Smith left the country.
56. At the Belgian court’s April 22, 2002, hearing, Van
Driessche submitted a copy of the Voluntary Acknowledgment
of Paternity he had signed in Chicago. Having determined
that Van Driessche had parental rights, the Belgian court
Page 11 issued another interim order, granting Van
Driessche “exclusive parental authority.”[fn11] Smith was
not present at the hearing.
57. Additionally, the Belgian court re-urged the prior order
that Smith be banned from placing the name of the child in
her passport, from having a passport issued in Melissa’s
name, and from leaving the Belgian territory with Melissa
without the express consent of Van Driessche.
58. Six months after leaving Belgium, in September 2002,
Smith traveled from Nigeria to Catherine’s Houston home
without Melissa, who was then two and a half years old, in
order to prepare for a permanent move to Houston with
Melissa.
59. In September and October 2002, Smith and Van Driessche
corresponded by email. Based upon Smith’s reference to the
“Galleria on Westheimer,” Van Driessche asked Smith if she
was in Houston and asked if he could see Smith and Melissa
there.
60. Pursuant to the letter rogatory submitted to the United
States government concerning Smith, the parties agreed to
arrange a meeting in Houston on Page 12 October 13, 2002,
but the meeting never took place.[fn12]
61. In November 2002, Smith left Nigeria with Melissa and
traveled to Houston, via Mexico City, Mexico and Laredo,
Texas using Melissa’s Illinois birth certificate to bring
Melissa into the United States.
62. On November 22, 2002, Smith and Melissa moved in with
Catherine, who resided at 21526 Bowcreek Lane, Katy, Texas
77449, where they lived for the next two years.
63. In 2002 or early 2003, Melissa obtained from the Texas
Department of Public Safety an Under 21 Identification
Card (“ID”). The ID card was in the name of Melissa Van
Driessche and reflected her address at 21526 Bowcreek Lane,
Katy, Texas 77449.
64. Smith received a valid Texas driver’s license in 2002
under her correct name and using her correct Bowcreek Lane
address. Sometime in 2002, Smith also began the process of
procuring her green card. Throughout the immigration
process, the Department of Homeland Security, Citizenship
and Immigration Services sent information to Smith at her
correct mailing address.
65. On December 18, 2002, the Belgian court issued a final
default judgment. The judgment awarded Van Driessche sole
custody of Melissa, ordered that her Page 13 main
residence was her father’s home, and ordered her to be
registered in the Belgian population registers at his
address. The Belgian court determined that it had
international jurisdiction over Smith because Smith resided
in Belgium at the time the petition was filed, ordered
Smith to repatriate the child to Belgium, and authorized
Van Driessche to use the police if necessary to effect
Melissa’s return.
66. On March 29, 2003, Smith married Anthony Smith
(“Anthony”), and the couple resided at Bowcreek Lane.
67. Anthony submitted a permanent resident visa petition on
Smith’s behalf on June 10, 2003, but Anthony’s petition
was withdrawn.[fn13] Smith’s marriage to Anthony ended in
divorce, which was final on June 5, 2005.
68. Smith received her green card in March 2006 and is now a
permanent resident of the United States.
69. In emails exchanged in April and June 2004, Smith and
Van Driessche discussed setting up visitation
arrangements, although none took place. By this time,
Smith and Melissa had been gone from Belgium for more than
two years. Page 14
70. In August 2004, Melissa began school at age 4 at Golbow
Elementary School in Katy, Texas, where she was enrolled
using her legal name, Melissa Van Driessche, and her
accurate social security number.
71. In September 2004, two and a half years after Smith and
Melissa left Belgium, Van Driessche’s government submitted
a letter rogatory on his behalf, dated August 30, 2004
(“August 2004 letter”), to the United States Office of
International Affairs. The August 2004 letter, which
outlined the factual history at issue in the case at bar,
requested assistance in the criminal matter of Smith, who
was suspected of child abduction in violation of Article
432, § 1 of the Belgian Penal Code. Moreover, the
August 2004 letter stated that because Smith has close
contacts with her sister in Houston, “it would be
advisable to check whether Ohio Esezeobo Bibiana [Smith] and
her girl would be staying on American soil.” Consequently,
it requested the United States authorities to seek
evidence of Smith’s whereabouts by interviewing her sister
Catherine and searching her home in Houston.[fn14]
72. Although the August 2004 letter requested the
authorities to look for Smith by Page 15 seeking
information from her sister in the Southern District of
Texas, no Hague Petition was filed by Van Driessche
— or by his government on his behalf — at
this time.[fn15]
73. On December 17, 2004, this Court issued an Order (“2004
Order”) directing the United States Attorney’s Office to
execute the Belgian government’s requests that were set
forth in the August 2004 letter. The Federal Bureau of
Investigation (“FBI”) subsequently initiated an
investigation to carry out these requests.[fn16]
74. In February 2005, when Melissa was almost five, Melissa,
Smith, and Catherine moved to 801 Country Place Drive,
Houston, Texas, but Melissa finished the school year at
Galbow Elementary School.
75. On or about March 21, 2005, Smith and Van Driessche
corresponded by email about his sending money to help
support Melissa. In response to a question Page 16 about
where to send the money, Smith responded, “To Houston, you
know how western union works.”
76. On April 20, 2005, four months after the 2004 Order, Van
Driessche was advised by the FBI that it had located Smith
and Melissa. The FBI indicated that the National Center
for Missing and Exploited Children (“NCME”) would help Van
Driessche file a Hague petition and find an attorney.
77. On May 11, 2005, the Belgian Central Authority drafted
documents for Van Driessche to seek Melissa’s return
through a Hague Convention Petition. More than three years
had passed since Smith left Belgium with Melissa.
78. On July 20, 2005, Van Driessche authorized the Belgian
Central Authority to take measures on his behalf to secure
Melissa’s return to Belgium.
79. In August 2005, Melissa enrolled in kindergarten at
Thornwood Elementary School, where she was enrolled using
her correct legal name and accurate social security
number. She is now in first grade at Thornwood.
80. In November 2005, Melissa obtained an identification
card from the NCME.
81. Melissa is now six years old and has been residing in
Houston for the past four years, since November 2002.
82. Melissa attends school in Houston, where she
participates in drama and art classes, and attends church
regularly with her mother. Page 17
83. All of Melissa’s friends are located at her school,
neighborhood, and church in Houston.
84. Melissa’s adult support system includes her mother, her
aunt Catherine, and another adult friend, Rebecca Lopez.
85. Melissa speaks English; she does not speak French.
86. On June 5, 2006, more than a year after he authorized
the Belgian Central Authority to seek Melissa’s return,
Van Driessche filed the instant petition.
87. In July 2006, Smith and Melissa moved to 9850 Meadowglen
Lane, Apartment 188, Houston, Texas 77042.
88. Van Driessche testified that he did not know where
Melissa was at any time after Melissa left, but
acknowledged that he never called Smith’s parents, who
knew where she was. He also never attempted, through public
information channels, to find Catherine’s phone number,
which is not unlisted, but only contacted the local
Belgian police to find Melissa.
89. Van Driessche testified that he thought Melissa was
well-settled in Houston.
90. Adult friends Kimber Kane and Rebecca Lopez testified
Melissa is well-settled in Houston.
91. The parties agree that Smith did not advise Van
Driessche of the address where Smith was living, but that
they only communicated by email. Page 18 CONCLUSIONS OF
LAW
HAGUE CONVENTION AND ICARA
92. “The Hague Convention establishes legal rights and
procedures for the prompt return of children who have been
wrongfully removed or retained.” § 11601(a)(4). It
was implemented into law in the United States by ICARA,
which supplements the Convention rules. §
11601(b)(2).
93. The purpose of the Convention is to protect children
from the harmful effects of wrongful removal, to establish
procedures for their prompt return, and to secure
protection for rights of access. Hague Convention, at
preamble.
94. Although the Convention uses forceful terms like
“abduction,” the drafters were primarily concerned with
securing international cooperation regarding returning
children wrongfully taken by a parent from one country to
another in search of a more sympathetic court. Gonzalez v.
Gutierrez, 311 F.3d 942, 944 (9th Cir. 2002).
95. The Convention and ICARA empower courts to determine
only the merits of a wrongful removal claim under the
Convention, not the merits of any underlying child custody
claims. ICARA § 11601(b)(4); Lops v. Lops, 140 F.3d
927, 936 (11th Cir. 1998).
96. The Convention sets forth the circumstances under which
a petitioner may Page 19 avail himself of its provisions
mandating a child’s return. Furnes v. Reeves, 362 F.3d
702, 710 (11th Cir. 2004) (citing Hague Convention, arts. 3,
5, 12, 13).
97. The general rule under the Convention is that the
child’s return to the country of his habitual residence is
mandatory if the child’s removal was in breach of the
other parent’s custody rights. Hague Convention, art. 12;
Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995).
98. Once the petitioner establishes that the respondent
wrongfully removed the child from his habitual residence,
the child must be returned unless the respondent can
establish one of four defenses. Friedrich v. Friedrich, 78
F.3d 1060, 1067 (6th Cir. 1996).
99. Two defenses must be established by clear and convincing
evidence: (1) there is a grave risk that the return of the
child would expose him or her to physical or psychological
harm; or (2) the return of the child would not be permitted
by the fundamental principles of the requested State
relating to the protection of human rights and fundamental
freedoms. Id. (citations omitted).
100. Two other defenses must be established by a
preponderance of the evidence: (1) the proceeding was
commenced more than one year after the removal of the
child, and the child has become settled in his or her new
environment; or Page 20 (2) the person seeking return of
the child consented to or acquiesced in the removal or
retention. Id. (citations omitted).[fn17]
A. WRONGFUL REMOVAL
101. Initially, a petitioner bears the burden to prove, by a
preponderance of the evidence, that the child’s removal
was wrongful within the meaning of the Hague Convention.
Bader v. Kramer, 445 F.3d 346, 349 (4th Cir. 2006) (citing
42 U.S.C. § 11603(e)(1)).
102. Under the Hague Convention, a petitioner shows that a
child’s removal was “wrongful” by demonstrating that (1)
the child was “habitually resident” in the petitioner’s
country of residence at the time of removal, (2) the removal
was in breach of petitioner’s custody rights under the law
of his home State, and (3) the petitioner had been
exercising those rights at the time of removal.[fn18] Id.;
Humphrey v. Humphrey, 434 F.3d 243, 246 (4th Cir. 2006);
Ruiz v. Tenorio, Page 21 392 F.3d 1247, 1251 (11th Cir.
2004).
103. Thus, the Court must determine whether Van Driessche
has shown by a preponderance of the evidence that Melissa
was wrongfully removed from Belgium.
1. Habitual residence
104. To meet the first element of wrongful removal, Van
Driessche must show Melissa was habitually resident in
Belgium at the time of her removal. Bader, 445 F.3d at
349. A child’s habitual residence is the place where he or
she has been physically present for an amount of time
sufficient for acclimatization and which has a `degree of
settled purpose’ from the child’s perspective. Feder, 63
F.3d at 224.
105. However, when a child is too young to have an intent
regarding habitual residence, the inquiry becomes “shared
parental intent.” In re Application of Adan, 437 F.3d 381,
392 (3d Cir. 2006); Whiting v. Krassner, 391 F.3d 540,
547-48 (3d Cir. 2004).
106. The Court must consider all available evidence to
determine the shared parental intent at the time of
removal.[fn19] Mozes v. Mozes, 239 F.3d 1067, 1076 Page 22
(9th Cir. 2001).
107. The Court notes that the unique circumstances of each
case must be considered when inquiring into a child’s
habitual residence. Holder v. Holder, 392 F.3d 1009, 1016
(9th Cir. 2004); accord Ruiz, 392 F.3d at 1252 (adopting
the court’s analysis of habitual residence in Mozes v.
Mozes, 239 F.3d 1067 (9th Cir. 2001) as its own).
108. To establish a habitual residence, there must be a
settled intention to abandon the residence left behind and
an actual change in geography for a period of time that is
sufficient for acclimatization. Mozes, 239 F.3d at 1078;
Holder, 392 F.3d at 1018.
109. In the instant action, Smith testified that she
abandoned her apartment in Nigeria when she moved in with
Van Driessche at his Nigerian residence and that she sold
her car when they moved to Belgium. She acknowledged that
they intended to get married and that she lived in Van
Driessche’s residence while she was in Belgium. While in
Belgium, Smith and Van Driessche agreed to place Melissa
in a daycare in order for Smith to have more free time and
to Page 23 enable Melissa to develop social skills.
110. Under these circumstances, the Court concludes that
Smith had a settled intention to abandon Nigeria because
she had no residence or car remaining there when she left
for Belgium; she had an actual change in geography by
traveling to Belgium; and the time she spent in Belgium,
from October 2000 until March 2001, was a sufficient
period of time for acclimatization for both Smith and
Melissa. Thus, the Court concludes Smith had a shared
parental intent to habitually reside in Belgium, and
Belgium was Melissa’s habitual residence at the time of
her removal.
2. Breach of Custody Rights
111. In addition to proving that Belgium is the child’s
habitual residence, Van Driessche must prove Melissa’s
removal was in breach of his custody rights under Belgian
law. Bader, 445 F.3d at 349. The Court notes that pursuant
to Belgian law, Van Driessche must prove Melissa’s removal
was in breach of his custody rights under Illinois law.
112. Van Driessche argues the Belgian court ordered Smith to
remain in Belgium and, after she left, the Belgian court
granted him sole custody of Melissa. He argues this Court
must accord full faith and credit to the acts, deeds, and
orders of the Belgian court, pursuant to 42 U.S.C.
§ 11603(g), and return the child. Page 24
113. In contrast, Smith argues the March 11 Order, which was
in effect at the time she left Belgium, supports her
position that Van Driessche has no custody rights under
the Convention because the March 11 Order only granted him
a right of personal relations with Melissa, not a right of
custody. Smith reasons that because Van Driessche had not
established his parental authority over Melissa before she
left Belgium, he could not have custody rights within the
meaning of the Convention, and thus, she did not breach his
custody rights when she removed Melissa from Belgium.
114. Under 42 U.S.C. § 11603(g), “[f]ull faith and
credit shall be accorded by the courts of the States and
the courts of the United States to the judgment of any
other such court ordering or denying the return of a child,
pursuant to the Convention, in an action brought under
this chapter.” (emphasis added).
115. As a general matter, judgments rendered in a foreign
nation are not entitled to the protection of full faith
and credit. Diorinou v. Mezitis, 237 F.3d 133, 142 (2d
Cir. 2001) (citing Restatement (Second) of Conflict of Laws
§ 98 cmt. b (1971)). Moreover, legislative history
indicates the full faith and credit provision of ICARA
only applies to United States court orders and judgments
regarding a Hague petition. Id. As a result, a Hague
petition adjudication in another country is not entitled
to full faith and credit by a federal or state court Page
25 in the United States. Id.
116. In the instant action, Van Driessche does not allege
there is another Hague petition adjudication in the United
States or in Belgium. Accordingly, there is no other Hague
Petition adjudication to which this Court considers
deferring as a matter of comity. The full faith and credit
provision of ICARA does not require this Court, as a
matter of comity and res judicata, to accord full faith
and credit to the underlying Belgian court interim orders or
its custody determination. See id.
117. Notwithstanding that this Court finds it is not bound
by the Belgian court’s adjudication of custody and that no
other custody determination has been made, the Court
considers whether Van Driessche had merely a right of
access and not a right of custody at the time of Melissa’s
removal under the Convention or ICARA.
118. Smith correctly argues that a parent with a mere right
of access does not have a right of custody to invoke the
Convention protections that require this Court to return
the child. The Convention distinguishes between a right of
custody and a right of access.[fn20] Croll v. Croll, 229
F.3d 133, 137 (2d Cir. 2000). Page 26 Moreover, courts in
the United States have jurisdiction to enforce the
Convention by ordering a child’s return only if it has been
removed in breach of a petitioning parent’s custodial
rights, not in breach of a petitioning parent’s rights of
access. Croll, 229 F.3d at 135. Therefore, the Hague
Convention return remedy is not available to parents who
possess only access rights. Gonzalez, 311 F.3d at 945.
119. However, the distinction between a right of custody and
right of access is generally made after the parents
adjudicated their respective custody rights in a prior
custody proceeding or reached a custody agreement. See
Gonzalez, 311 F.3d at 954 (holding the remedy of return is
not available to a parent who possesses only access rights
where a Mexican court has already decided the rights of
both parents) (emphasis added); Fawcett v. McRoberts, 326
F.3d 491, 499 (4th Cir. 2003) (finding that a divorce
decree giving the father exclusive authority to determine
a child’s residence did not confer a right of custody upon
the mother, but only a right of access) (emphasis added);
Croll, 229 F.3d at 139, 142) (finding a custody order
granting mother sole custody of the child did not confer
custody rights on the father, even when coupled with a ne
exeat clause limiting the mother’s custodial power to
expatriate the child) (emphasis Page 27 added); Furnes,
362 F.3d at 706, 712 (finding that a custody agreement
between the parents providing joint parental responsibility,
under Norwegian law and coupled with a ne exeat right,
gave the father custody rights under the Hague Convention)
(emphasis added). Thus, the Court finds the Hague
Convention distinction between rights of custody and rights
of access is inapplicable to the instant action because
Smith’s and Van Driessche’s parental rights have not been
legally established either by adjudication or by agreement.
120. However, even though the parties have not adjudicated
or agreed to their parental rights, Van Driessche is not
necessarily precluded from asserting that he has custody
rights under the Hague Convention or ICARA, as explained by
51 Fed. Reg. 10,494.
121. Children who are wrongfully removed or retained prior
to entry of a custody order are protected by the
Convention, and under the Convention, a child will be
ordered returned in pre-decree abduction cases as well as in
cases involving violations of existing custody orders. 51
Fed. Reg. at 10,505. A person whose child is abducted
prior to the entry of a custody order is not required to
obtain a custody order in the State of the child’s
habitual residence as a prerequisite to invoking the
Convention’s return provisions. 51 Fed. Reg. at 10,506. In
the United States, generally both parents have equal
rights of custody of their Page 28 children prior to the
issuance of a court order allocating rights between them.
Id.
122. Additionally, a court’s prior order initially setting
forth a visitation schedule does not alter a presumption
of joint custody. Bader, 445 F.3d at 350. Moreover, in the
absence of a custody decree at the time of removal, a
foreign court’s subsequent award of sole custody to the
parent seeking the child’s return suggests the seeking
parent retains some custodial rights under the Hague
Convention. See Bader, 445 F.3d at 351.
123. In the pre-custody decree circumstances of the case at
bar, Van Driessche’s custody rights under Belgian law are
established as a matter of Illinois law. The general rule,
without fully adjudicating the merits of the custody
dispute, is that Smith and Van Driessche have equal rights
of custody prior to a decree adjudicating custody. See 51
Fed. Reg. at 10,506. The Belgian court initially issued a
visitation schedule awarding Van Driessche access to Melissa
one week out of two, but this order did not alter Van
Driessche’s custody rights. See Bader, 445 F.3d at 350.
124. Moreover, even in the absence of a custody decree at
the time Melissa was removed and without relying on the
Belgian court’s March 11 Order, the Belgian court’s
subsequent award of sole custody to Van Driessche suggests
Page 29 that Van Driessche had some custodial rights over
Melissa at the time of her removal. See Bader, 445 F.3d at
351.
125. Additional facts support finding that Van Driessche had
custody rights at the time of Melissa’s removal under the
Hague Convention. Smith and Van Driessche were living
together when Smith became pregnant and when she gave
birth to Melissa. They jointly decided Melissa would be born
in the United States. Van Driessche flew to Chicago to
attend Melissa’s birth, and he signed the Acknowledgment
of Paternity in Chicago. Under general United States law,
both parents have equal rights of custody prior to the
issuance of a court order allocating rights between them.
51 Fed. Reg. at 10,506.
126. Thus, the Court finds that Van Driessche has rights of
custody under the Hague Convention and ICARA in this
pre-custody-decree Hague Petition and that Smith’s removal
of Melissa from Belgium breached his custody rights. 3.
Exercise of Custody Rights
127. Finally, for Melissa’s removal to be wrongful, Van
Driessche must show that he was, or otherwise would have
been, exercising custody rights to the child under Belgian
law at the moment of removal. Bader, 445 F.3d at 349; Ruiz,
392 F.3d at 1251.
128. Melissa was removed from Belgium in March 2001.
Notwithstanding the few Page 30 weeks Smith went to
Houston in January 2001, Smith and Van Driessche lived
together in Van Driessche’s home from October 2000 until
December 2001, shared parental responsibilities, and
enrolled Melissa in a daycare.
129. After the parties’ argument in December 2001 and prior
to March 2002, when Smith left Belgium, Smith did not live
with Van Driessche but remained in Belgium. During this
time, both parents spent time with Melissa, and Van
Driessche filed suit to determine his custody rights.
130. The Court concludes that Van Driessche was exercising
his rights of custody at the time of Melissa’s removal
from Belgium.
131. Based upon the foregoing, the Court concludes Van
Driessche has satisfied his burden by a preponderance of
the evidence that Melissa was habitually residing in
Belgium, he had rights of custody, and he was exercising
those rights at the time of removal. Consequently,
Melissa’s removal from Belgium was wrongful as defined by
the Hague Convention. Bader, 445 F.3d at 349.
B. DEFENSES TO WRONGFUL REMOVAL
132. Although the Hague Convention mandates the return of a
child wrongfully removed, the judicial duty to order
return of a wrongfully removed or retained child is not
absolute. 51 Fed. Reg. at 10,509.
133. Under the Convention, if Smith can establish one of the
four affirmative Page 31 defenses, the Court should not
or need not order that Melissa be returned to Belgium. See
In re DD, 440 F. Supp. 2d 1283, 1293 (M.D. Fla. 2006); see
Silvestri v. Oliva, 403 F. Supp. 2d 378, 387 (D.N.J. 2005).
134. Courts should narrowly interpret a defense and allow it
to prevent the child’s return only in meritorious cases
when the person opposing return has met the burden of
proof.[fn21] 51 Fed. Reg. at 10,509.
1. Human Rights and Fundamental Freedoms
135. The first defense under the clear and convincing
standard is that, even though Melissa was wrongfully
removed, returning her to Belgium would violate Smith’s
human rights and fundamental freedoms.[fn22] See Friedrich,
78 F.3d at 1067.
136. In the instant action, Smith invokes the human rights
and fundament freedoms exception under the concept that it
“offends all notions of due process.” She Page 32 argues
the Belgian court had no personal jurisdiction over her to
enter an order.[fn23] Moreover, without the March 11
Order, Van Driessche had no parental authority. Therefore,
Smith reasons this Court lacks jurisdiction to apply the
Hague Convention’s return provisions.
137. However, a court in the abducted-to nation has
jurisdiction to decide the merits of the abduction claim.
See Friedrich, 78 F.3d at 1063.
138. Moreover, because a child is protected by the Hague
Convention even before custody rights are determined, Van
Driessche has sufficient custody rights to bring his Hague
Petition. See 51 Fed. Reg. at 10,505. The Court finds that
Van Driessche had sufficient rights to bring his Hague
Petition without the Belgian court’s March 11 Order or
subsequent default custody adjudication.
139. Because this Court has jurisdiction to determine the
merits of Van Driessche’s abduction claim under the Hague
Convention and does not rely on the Belgian court’s
custody determination, the Court need not address whether
the Belgian court’s orders violate Smith’s due process
rights for lack of personal jurisdiction. Thus, Smith has
not shown by clear and convincing evidence that returning
Melissa to Belgium would violate the fundamental principles
of Page 33 human rights and fundamental freedoms.
Friedrich, 78 F.3d at 1067.
2. Grave Risk of Harm
140. The second defense under the clear and convincing
standard is that returning Melissa to Belgium would expose
her to physical or psychological harm. See Friedrich, 78
F.3d at 1067.
141. This exception requires the alleged physical or
psychological harm to be “a great deal more than minimal.”
Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000).
142. In order to invoke this exception, the Respondent must
show by clear and convincing evidence that returning the
child would place the child in an intolerable situation.
England v. England, 234 F.3d 268, 270 (5th Cir. 2000).
143. Van Driessche took an active role in Melissa’s care
while she was in Belgium, and there is no evidence in the
record that he mistreated Melissa either physically or
psychologically. The Court notes that the Belgian court
indicated that allegations of Van Driessche’s drinking
problems did not warrant depriving him of his rights of
access to Melissa.
144. Moreover, although Smith alleges Van Driessche was
abusive to her, she does not allege he was abusive to
Melissa. For these reasons, the Court finds that returning
Melissa to Belgium would not expose her to a grave risk of
physical Page 34 or psychological harm.
3. Acquiescence
145. Smith does not assert the third defense that Van
Driessche acquiesced to Melissa’s removal from Belgium.
See Friedrich, 73 F.3d at 1067. The parties do not dispute
that Van Driessche did not consent to Melissa’s removal
from Belgium.
4. One Year/Well-Settled Defense
146. The fourth defense, which Smith must establish by a
preponderance of the evidence, is that Van Driessche filed
his Hague Petition more than one year after Melissa’s
removal, and Melissa has become settled in her new
environment in Houston. Friedrich, 73 F.3d at 1067. If the
defense is established, a court is not obligated to return
the child. 51 Fed. Reg. at 10,509; In re DD, 440 F. Supp.
2d at 1293.
147. If those two elements are established, the Court next
considers whether the one-year limitation period should be
equitably tolled. Equitable tolling would apply, even if
Melissa is well-settled, in the event that Smith took
significant, active steps to conceal Melissa from her
father while Van Driessche was actively seeking Melissa’s
whereabouts. Furnes, 362 F.3d at 723-24; Lynch v. Lynch,
220 F. Supp. 2d 1347, 1363 (M.D. Fla. 2002). Page 35
A. One-Year Limitation
148. Melissa was removed from Belgium in March 2002, and Van
Driessche filed his Hague Petition on June 5, 2006.
149. The parties do not dispute that Van Driessche did not
timely file his Hague Petition seeking Melissa’s return.
150. Because more than four years elapsed between Melissa’s
removal from Belgium and the filing of the Hague Petition,
the Court finds Smith has met the first element of this
defense.
B. Well-Settled
151. In determining whether the child is well-settled,
courts consider the following factors: (1) the age of the
child; (2) the stability of the child’s new residence; (3)
whether the child attends school or daycare consistently;
(4) whether the child attends church regularly; (5) the
stability of the mother’s employment; and (6) whether the
child as friends and relatives in the area. In re Ahumada
Cabrera v. Lozano, 323 F. Supp. 2d 1303, 1314 (S.D. Fla.
2004).
152. Additionally, for the child to be well-settled, the
court should consider more than whether he or she has a
comfortable material existence, taking into consideration
the child’s living environment and any active measures taken
to conceal a child. Lops, 140 F.3d at 946. Page 36
153. Melissa is now six years old and has been continually
residing in Houston for two-thirds of her life. She lived
with her mother and her aunt at one location for more than
two years, lived in another location for a short time, and
recently moved to a third location as her mother has
become more independent and able to live on her own with
Melissa.[fn24]
154. Van Driessche concedes that Melissa is well-settled in
Houston.
155. Accordingly, there is nothing in the record to suggest
that Melissa is not well-settled in Houston. To the
contrary, the Court finds there is substantial evidence
that Melissa is well-settled in Houston within the meaning
of the Hague Convention’s one year/well-settled defense.
Thus, Smith has met her burden to prove by a preponderance
of the evidence that the Hague Petition seeking Melissa’s
return was filed more than one year after Melissa was
removed from Belgium, and Melissa is well-settled in
Houston. Page 37
C. Equitable Tolling
156. Even if the Hague Petition was filed more than one year
after the child was removed and the child is well-settled,
the court should determine whether equitable
justifications exist for tolling the one-year limitation
period.[fn25] Furnes, 362 F.3d at 723-24; Belay v.
Getachew, 272 F. Supp. 2d 553, 562 (D. Md. 2003); Lynch,
220 F. Supp. 2d at 1363.
157. The purpose of equitable tolling is to ensure that a
parent who takes intentional and significant steps to
conceal his or her children for more than one year will
not be rewarded for that misconduct by creating eligibility
for an affirmative defense not otherwise applicable.
Furnes, 362 F.3d at 723 (citing Lynch, 220 F. Supp. 2d at
1363); accord Lops, 140 F.3d at 946.
158. In those circumstances in which the abducting parent
has concealed the child, the one-year limitation period
has been tolled until the parent seeking the child has
located him or her. Furnes, 362 F.3d at 723; Belay, 272 F.
Supp. 2d at 564-65. Page 38
159. In considering all the circumstances regarding the one
year/well-settled defense, courts have also examined
whether a parent who wrongfully removes a child will be
prosecuted for concealment of the child. Lynch, 220 F.
Supp. 2d at 1363-64; In re Ahumada Cabrera, 323 F. Supp. 2d
at 1314 (citing Lops, 140 F.3d at 946).
160. Thus, to determine whether equitable tolling applies in
the instant petition, the Court considers: 1) Van
Driessche’s efforts to locate Melissa, 2) the criminal
proceeding filed against Smith, and 3) the length of time
the limitation period should be equitably tolled.[fn26]
See Furnes, 362 F.3d at 723-24; Lynch, 220 F. Supp. 2d at
1363.
1. Active Concealment
161. The one-year limitation period to file a Hague Petition
has been tolled because the abducting parent took
significant, active steps to conceal the child from the
parent seeking his return. Furnes, 362 F.3d at 723-24
(tolling the limitation period four to six months due to
respondent’s concealment of the child and Page 39
petitioner’s extensive efforts to locate them); Lops, 140
F.3d at 933, 946 (finding that respondent and his mother
took significant measures to conceal the child, including
purchasing a home but keeping it in the seller’s name,
transacting business only in cash, refraining from taking a
job that required disclosing a social security number, not
paying taxes, not obtaining a driver’s license, and
essentially avoiding any electronic identity); Lynch, 220
F. Supp. at 1363 (tolling limitations period six to nine
months because respondent concealed the child by living
with friends of others or in public abuse shelters,
telling her husband she was on vacation but would return,
threatening to go underground with the children or take
radical steps to change her identity, using a commercial
post office box, and numerous other steps to conceal her
location); In re Ahumada Cabrera, 323 F. Supp. 2d at 1309
(tolling limitations period because respondent promised to
come back at a future date, threatened to “get lost” if
petitioner insisted the child be returned, and threatened
to deprive petitioner of all communications with his
daughter if he initiated proceedings against them through
the Central Authority).
162. In the instant action, Smith left Belgium with Melissa
in March 2002. She traveled back to her home country,
Nigeria, where she arrived a few weeks later. There is no
evidence in the record to indicate that Smith communicated
Page 40 with Van Driessche during this time.
163. Smith lived in Nigeria from approximately April 2002
until November 2002. Eight months after leaving Belgium,
in November 2002, Smith arrived in Houston with Melissa.
164. Smith applied for a driver’s license and permanent
resident visa using her correct address shortly after she
arrived in Houston. She also applied for Melissa’s
identification card using Melissa’s real name and their
address. In August 2004, Smith registered Melissa in
school under her correct name.
165. Although Smith openly used valid legal names and
addresses in Houston, Smith testified, and the record
reflects, that she did not tell Van Driessche where she
was living after she left Belgium.
166. Accordingly, the Court concludes that although Smith
did not actively conceal her whereabouts, she did not
reveal to Van Driessche that she and Melissa were living
in Houston.
167. The Court notes that the Convention provides no
guidance about whether Smith has an affirmative duty to
reveal her location or whether Van Driessche has an
affirmative duty to seek his child in order to invoke
equitable tolling.
168. However, in order to be consistent with the purposes of
the Convention, the Court finds that some period of
equitable tolling should apply because Smith Page 41 did
not reveal her location in Houston to Van Driessche, which
could have precluded him from filing his Hague Petition.
Hague Convention, at preamble; Furnes, 362 F.3d at 723.
169. Thus, the Court considers equitable tolling of Smith’s
defense in light of Van Driessche’s overall conduct in
seeking Melissa’s return.
2. Efforts to Locate the Child
170. In determining the application of equitable tolling, a
petitioner’s efforts to seek the child’s return are also
considered. Furnes, 362 F.3d at 708-09 (applying tolling
after the father began ceaseless efforts to locate his child
and her mother by contacting the landlord of the mother’s
home, contacting the local post office to find a
forwarding address, contacting her relatives both at home
and work, begging them to reveal her whereabouts, and
traveling to Florida and Georgia in the United States
after having been informed that they might be living
there); Lynch, 220 F. Supp. 2d at 1352-53 (applying tolling
after the father sought his child’s location by
“bombarding” his friends and acquaintances with calls,
contacting the International Police (Interpol), and
calling every Vazquez in Miami, Florida trying to locate
them); Wojcik v. Wojcik, 959 F. Supp. 413, 420-21 (E.D.
Mich. 1997) (finding no reason to apply equitable tolling
because the mother did not hide the children, and the Page
42 father did not take any actions to seek their return
other than filing for divorce).
171. Van Driessche testified he contacted the Belgian police
after Smith left Belgium with Melissa. He avers he has
taken continuous efforts to find them with help from
investigators, the Belgian Police, and the FBI.
172. The record reflects that after Smith left Belgium with
Melissa, Van Driessche did not call Smith’s parents in
Nigeria, her sister Catherine in Houston, or any of
Smith’s other family and friends.
173. Van Driessche testified that he did not use any public
or internet informational resources to inquire about
Catherine’s Houston phone number, although he told Smith
that he did not have her current number.
174. Although Van Driessche contacted the Belgian police at
some point after Smith left in March 2002, there is no
evidence in the record to suggest that Van Driessche
personally took any other steps to seek Melissa’s return
until he authorized the Belgian Central Authority to seek
Melissa’s return on July 20, 2005. Although Van Driessche
avers he was continually seeking to locate Smith and
Melissa with help from investigators and the FBI, there is
no evidence in the record to suggest that the FBI began
looking for Smith until after this Court’s December 2004
Order.
175. Consequently, the record reflects Van Driessche’s
personal efforts to find Page 43 Melissa include
contacting the local Belgian police in March 2002 shortly
after Smith left and authorizing the Belgian Central
Authority on July 20, 2005, to seek Melissa’s return more
than three years after she was removed from Belgium.
176. The Court also notes that based on the international
nature of their relationship, the past experiences of both
parties traveling to the United States, having their child
in the United States, and the fact that Smith had no job or
means of supporting herself in Belgium, it was obvious
that Smith was unlikely to stay in Belgium and could
relocate to the United States.
177. Furthermore, Van Driessche, who is still employed by
the Belgian Ministry of Foreign Affairs, would have far
greater experience, government connections, and
familiarity with international affairs than the average
citizen seeking a child who apparently disappeared across
a country’s borders. His employment would have made him
either personally familiar with or have access to
professional advice concerning available legal remedies and
governmental procedures which could be utilized to find
Melissa.
178. Rather than pursue available legal remedies through the
Belgian Central Authority or pursue Melissa’s return by
making a concerted personal effort to find her in 2002
after Melissa was removed, Van Driessche merely contacted
Page 44 the local Belgian police.
179. Thus, the Court finds Van Driessche’s contention that
he made continuous efforts to find Melissa after she was
removed in March 2002, either personally or with help from
investigators and the FBI, is not credible.
3. Criminal Proceedings
180. Courts also look at possible criminal proceedings and
their potential effect on the child in determining a
tolling of the one-year limitation period. Lynch, 220 F.
Supp. 2d at 1363-64 (noting there was little likelihood the
respondent would be prosecuted for concealment because
petitioner had promised to dismiss any criminal
proceedings and believed the children needed their mother);
In re Ahumada Cabrera, 323 F. Supp. 2d at 1314 (citing
Lops, 140 F.3d at 946 for the proposition that courts
should consider the possibility of prosecution for conduct
concealing the child).
181. Although Van Driessche alleges he was unaware of
Melissa’s general whereabouts until April 2005 and her
address in May 2006, the Belgian government, on his
behalf, submitted the August 2004 letter to the United
States seeking information in Houston concerning Smith’s
whereabouts in an effort to pursue a criminal abduction
action against her. As a result, a criminal Page 45
action was filed in the United States District Court for the
Southern District of Texas on December 17, 2004, and this
Court’s 2004 Order effecting that request was issued. The
FBI subsequently initiated an investigation to carry out
the Belgian government’s request.
182. Van Driessche did not inform the Court of this criminal
action begun and filed in 2004. He avers his government
made a plea to a foreign government to seek Smith, which
he believes supports his contention that he did not know
they were in Houston.
183. The Court notes that Van Driessche does not aver that
he was unaware that his government filed the August 2004
letter seeking information from Smith’s sister in Houston.
184. Smith contends that Van Driessche’s email showing that
the FBI had located them by April 2005 supports her
position that Van Driessche’s Hague Petition is untimely
because Van Driessche did not file his Hague Petition until
June 2006, more than a year after he knew Melissa’s
whereabouts. Furthermore, Smith points out that the FBI
quickly located them after they began searching because
she was not concealing her location.
185. Thus, the Court must determine whether possible
criminal proceedings impact Page 46 the period of
equitable tolling to apply to Van Driessche’s untimely
filing of his Hague Petition in light of the Convention’s
goals of protecting Melissa from another removal and
restoring the pre-abduction status quo. Furnes, 362 F.3d
at 710; Belay, 272 F. Supp. 2d at 558, 561.
186. Additionally, the Court considers whether the criminal
action shows that Van Driessche had sufficient information
that Smith was located in Houston such that he would have
known where to file his Hague Petition seeking Melissa’s
return to Belgium.
187. First, in considering the Convention goals of
protecting Melissa, the Court notes that Van Driessche
does not indicate that he will not continue to pursue
criminal actions against Smith and does not express any
interest in protecting Melissa from being deprived of her
mother as a possible result of a criminal conviction.
188. Second, Van Driessche recited to the Belgian government
the facts used to file the criminal action in Houston. The
government’s August 2004 letter, the impetus to the 2004
Order, recites nearly all the underlying facts used by Van
Drissche to file the instant action. Van Driessche does not
explain why, if the government knew to file a criminal
action against Smith in Houston in 2004, Page 47 Van
Driessche, or the government on his behalf, did not
concurrently file a Hague Petition in Houston seeking
Melissa’s return.
189. Third, these facts suggest that in 2002, 2003, and
2004, Van Driessche was more motivated to seek criminal
charges against Smith than to seek Melissa’s return.
190. Thus, the Court finds that Van Driessche had sufficient
information to file his Hague Petition in the Southern
District of Texas in August 2004, because the underlying
facts he recited to his government in the August 2004 letter
were used by the Belgian government to file a criminal
action against Smith in Houston on December 17, 2004, and
were subsequently used to file the instant petition in
2006.
191. Moreover, criminal proceeding against Smith would not
restore the pre-abduction status quo and could deprive
Melissa of her mother for up to five years under Article
432, ? 1 of the Belgian Penal Code.
192. Therefore, possible future criminal proceedings against
Smith and the past filing of a criminal action without
filing a Hague Petition weigh against this Court
precluding Smith from asserting her one year/well-settled
defense under the Hague Convention. Page 48
4. Length of Tolling
193. Having found that some period of equitable tolling
applies because Smith did not inform Van Driessche of her
whereabouts, the Court must determine how long to toll the
one-year limitation period.[fn27]
194. When the abducting parent has concealed the child, the
one-year limitation period has been tolled until the
parent seeking the child has located him or her. Furnes,
362 F.3d at 723; Belay, 272 F. Supp. 2d at 564.
195. Even if an abducting parent does not provide an address
or phone number to the seeking parent, a petitioner can
file a petition with the Central Authority to implement a
Hague Convention proceeding. See generally Lynch, 220 F.
Supp. 2d at 1354 (noting that when the respondent, who lived
in an abuse shelter, did not provide her address or phone
number to petitioner, he filed a petition with the Central
Authority to implement Hague Convention proceedings).
196. Moreover, although courts consider equitable tolling of
the one-year limitation period if the child has been
concealed, courts have denied a petition under the Hague
Convention filed after one year even when one parent
wrongfully Page 49 removed or retained the children. See
Silvestri, 403 F. Supp. 2d at 388 (finding that even
though the children were wrongfully retained in the United
States, they were settled under the Hague Convention
exception, despite petitioner’s argument that their
relatives lived in Argentina); Zuker v. Andrews, 2 F.
Supp. 2d 134, 142 (D. Mass. 1998) (finding that the children
were settled in their new environment, which precluded
their return); Wojcik, 959 F. Supp. at 421 (finding that
even though father contacted the United States Central
Authority within a year, the children were settled in
their new environment after eighteen months); In re
Robinson, 983 F. Supp. at 1342, 1346 (finding the children
were settled in the United States after living in the same
area for twenty-two months and were not required to be
returned despite their wrongful removal).
197. Contrary to Van Driessche’s position that he did not
know where Smith had gone after she left Belgium, the
Court notes that the following facts, taken together,
indicate Van Driessche had ample evidence to suggest Smith
was specifically in Houston and no evidence that she would
be anywhere else, other than perhaps at her parents’ home
in Nigeria:
? In January 2001, Smith traveled to Houston as a result of
her difficulties with Van Driessche, and the next month
Van Driessche followed her to Page 50 Houston and
convinced her to return to Belgium with him.
? Within six months of Smith’s leaving Belgium, in October
2001, Van Driessche asked Smith if she was in Houston.
Moreover, they agreed to meet in Houston on October 13,
2002 even though the meeting did not take place.[fn28]
? As of August 30, 2004, Van Driessche and/or his
government drafted a letter rogatory instituting a
criminal proceeding against Smith and asked the United
States to seek information about Smith from her sister
Catherine in Houston. Based upon the information supplied to
the government by Van Driessche, the August 2004 letter
specifically requested information from Catherine in
Houston and stated “it would be advisable to check whether
Ohio Esezeobo Bibiana [Smith] and her girl would be
staying on American soil.”
? In March 2005, Smith told Van Driessche in an email that
he should send money for Melissa’s support to Houston.
Page 51
? In April 2005, Van Driessche was informed that the United
States FBI had located Smith.
198. Thus, the Court finds Van Driessche had ample evidence
that Smith would be found not only in the United States,
but specifically in Houston, well before May 2006.
199. Moreover, Van Driessche could have contacted the
Belgian Central Authority to seek Melissa’s return under
the Hague Convention, regardless whether he had an exact
address in the United States. See Lynch, 220 F. Supp.2d at
1354. However, it was not until July 2005, three years
after Melissa’s removal, that Van Driessche authorized the
Belgian Central Authority to take action on his behalf.
200. Based upon the foregoing facts and equitable
considerations, the Court concludes that the limitations
period should be tolled until August 2004, the date of the
letter submitted by the Belgian government to the Southern
District of Texas. Van Driessche, or the government on his
behalf, could have concurrently filed a Hague Petition
seeking Melissa’s return based upon the same information
contained in the August 2004 letter.
201. Alternatively, the Court finds that if Van Driessche
did not have sufficient Page 52 knowledge that Smith was
in Houston in August 2004 to file his Hague Petition, the
limitations period should be tolled until April 2005 when
the FBI indicated to Van Drissche that it had located
Smith. Knowing that Smith was in the United States, and
based upon Smith’s prior visits to her sister’s home in
Houston and her March 2005 email telling Van Driessche to
send money to Houston, Van Driessche could have filed his
Hague Petition in Houston at this time.
202. Thus, even if the Court finds the limitations period
tolled until April 2005, Van Dreissche’s Hague Petition is
untimely filed, and Smith is not precluded from asserting
her defense.
ATTORNEY FEES
203. Under ICARA, the Court may award attorney fees to a
parent who successfully invokes his Hague Petition remedy.
204. The purpose of the fee-shifting provision is to restore
the petitioner to the financial position he or she would
have been in had there been no removal and to deter such
conduct from happening in the first place. 51 Fed. Reg. at
10,511.
205. However, Van Driessche has not prevailed on his Hague
Petition seeking Page 53 Melissa’s return, and the Court
declines to award expenses or costs to either party.
CONCLUSION
206. The Court finds Smith took no active steps to conceal
Melissa, and the circumstances of the case at bar do not
warrant either depriving Smith of the one
year/well-settled defense or uprooting Melissa from her home
in Houston, where she has lived most of her life.
207. Moreover, the Court finds that because Smith did not
take intentional and significant steps to conceal Melissa,
Smith is not being rewarded for her misconduct by creating
eligibility for an affirmative defense not otherwise
applicable. Furnes, 362 F.3d at 723 (citing Lynch, 220 F.
Supp. 2d at 1363); accord Lops, 140 F.3d at 946.
208. The Court finds Melissa is well-settled in Houston, and
it is in Melissa’s best interest to deny Van Driessche’s
Hague Petition in support of the Convention’s goal of not
only protecting children from wrongful removal but also
protecting children from a second removal from a new
environment to which they have become connected or
settled. Belay, 272 F. Supp. 2d at 561; In re Robinson,
983 F. Supp. at 1345. Page 54
209. The Court finds that Van Driessche’s petition is not
timely filed because equitable tolling applies only
through August 2004, and the Petition was filed in June
2006. Even if equitable tolling applies through April 2005,
the Hague Petition is still filed outside the one-year
limitation period.
210. Moreover, the Court finds that Van Driessche’s limited
efforts to locate Melissa support the Court’s conclusion
that denying the petition is in Melissa’s best interest.
211. Based upon the foregoing, the Court finds Smith is not
equitably estopped from asserting her defense.
212. Consequently, the Court denies Van Driessche’s Hague
Petition. According to the foregoing, the Court hereby
[fn1] Van Driessche and his wife officially divorced in
2002.
[fn2] Smith testified his stress related to an investigation
in Belgium concerning his involvement in human trafficking
and money laundering.
[fn3] Smith contends Van Driessche came home drunk,
attacked her, beat her, and smeared dog excrement on her. In
opposition, Van Driessche testified Smith did not keep the
house as clean as he liked it, and he confronted Smith
about dog excrement that he found on the bed sheets,
telling her that it was unacceptable.
[fn4] Van Driessche contends the police gave Melissa’s
passport to him because they feared Smith would flee Belgium
with Melissa. The Belgian court subsequently noted that
both sides filed complaints relating to fears of parental
seizure, child abduction, and refusal to present the child.
[fn5] Smith testified that none of Van Driessche’s
relatives offered to provide her with a place to stay or any
other assistance.
[fn6] From the December 31, 2001 argument until the March
11, 2002 hearing, Melissa spent some time with each parent.
However, this period of time was acrimonious, with both
parents accusing the other of secreting Melissa. Smith
contends that when Melissa was returned to her, Melissa had
developed a fear of abandonment, which provoked screaming,
crying spells, panic and vomiting every time Smith left the
room. Van Driessche claims Smith took Melissa from him on
January 30, 2002, in spite of the Juvenile Public
Prosecutor’s entrusting Melissa to her father.
[fn7] The record is unclear whether Van Driessche filed one
petition in juvenile court and another in the Brussels
Court of First Instance, or whether the subsequent hearings
held in the Brussels Court of First Instance were a
continuation of the juvenile court proceedings.
[fn8] A subsequent court order states that Van Driessche
filed the unilateral petition on January 31, 2002, but does
not indicate whether Smith was served with process, had
notice of any proceedings prior to the subsequent March 11,
2002 hearing, or had notice of the Belgian court’s January
31, 2002, order.
[fn9] Although Smith alleged Van Driessche had a drinking
problem, the Belgian court found that Smith’s allegations
that Van Driessche had a drinking problem were “not
compatible with his personality, his professional career,
and the care given to the child.”
[fn10] Apparently, because the Belgian court granted Van
Driessche a “right of personal relations,” he had visitation
rights rather than custody rights. On the other hand,
because Melissa was “entrusted to” her mother and was to be
“registered in the population registers at her mother’s
residence,” Smith had custody rights.
[fn11] Apparently, the Belgian court granted Van Driessche
sole custody of Melissa at the April 22, 2002 hearing.
[fn12] See infra notes 14, 16.
[fn13] Smith testified that Anthony was abusive to her and
had a drinking problem. In addition, she testified that
after she was married, she and Anthony applied to change
her resident status. However, because Anthony withdrew her
application for permanent resident status, Smith sought and
was granted her permanent residence status under the
provisions of the Violence Against Women Act.
[fn14] The Belgian Court sent the letter rogatory, dated
August 30, 2004, to the United States Office of
International Affairs in Washington, D.C. Thereafter, the
United States government filed an Ex Parte Application for
Order Pursuant to 28 U.S.C. § 1782 (“Ex Parte
Application”) under seal on December 17, 2004, in the
Southern District of Texas. It is Miscellaneous Action
H-04-406.
[fn15] Van Driessche is still employed by the Belgian
Ministry of Foreign Affairs.
[fn16] The August 2004 letter and this Court’s
corresponding 2004 Order were specifically brought to the
attention of the Court after the October 3, 2006 hearing.
Because the Ex Parte Application was filed under seal and
this information was not disclosed at any time during the
instant Hague Petition proceedings, the Court, sua sponte,
provided Notice of the August 2004 letter and 2004 Order to
both parties on October 13, 2006 (Document No. 16). Neither
party subsequently requested a hearing or any other
additional proceedings in connection with the Belgian
government’s letter rogatory, this Court’s 2004 Order, or
the FBI’s subsequent investigation. However, Van Driessche
requested that the Court supplement his exhibits in the
instant action with any documents on file that were
obtained as a result of the Ex Parte Application.
[fn17] All four defenses are narrow and are not a basis for
avoiding return of the child merely because an American
court believes it can better or more quickly resolve a
dispute. Friedrich, 78 F.3d at 1067. Furthermore, a court
should exercise its discretion to return the child despite
a defense if the return would further the aims of the
Convention. Id. (citations omitted).
[fn18] Article 3 provides in relevant part: 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 (b) at the time of removal or
retention those rights were actually exercised, . . . or
would have been so exercised but for the removal or
retention. Hague Convention, art. 3.
[fn19] Courts refined their initial approach of looking at
habitual residence from the child’s perspective, because
children “normally lack the material and psychological
wherewithal to decide where they will reside.” Mozes, 239
F.3d at 1076. In these cases, it is the intent of the
person or persons entitled to fix the child’s place of
residence that the court should consider, rather than the
degree of settled purpose from the child’s perspective. Id.
However, an analysis of shared parental intent, in
hindsight, is difficult because the persons who were
entitled to fix the child’s residence at the time of the
removal often no longer agree on the locus of the child’s
habitual residence. See id.
[fn20] Hague Convention, art. 5, defines a right of custody
as “rights relating to the care of the person of the child,
and in particular, the right to determine the child’s place
of residence.” In contrast, a right of access is defined as
“the right to take a child for a limited period of time to
a place other than the child’s habitual residence.”
[fn21] The exceptions are narrow because the whole structure
of the Convention seeking to promote mutual confidence in
alternate forums would collapse if parents who wrongfully
remove children from their habitual residence are allowed
to broadly invoke exceptions. See Blondin v. Dubois, 189
F.3d 240, 246 (2d Cir. 1999).
[fn22] The human rights and fundamental freedoms exception
utilizes a broad phrase that could encompass extreme
circumstances not covered by the exceptions. See 51 Fed.
Reg. at 10,510. Although the countries negotiating the
Hague Petition desired to prevent a broad “public policy”
type of exception because it would undermine the fabric of
the Convention, this exception could be invoked if
returning a child would shock the conscience of the court
or offend all notions of due process. See id.
[fn23] Smith also alleges she could not understand French,
the language used at the March 11 hearing. Consequently, she
did not know that the Belgian court ordered a resumption of
the proceedings to determine Van Driessche’s custody
rights.
[fn24] Moving several times may indicate that a child is not
well-settled. See generally In re Ahumada Cabrera, 323 F.
Supp. 2d at 1314 (noting that a child, who had changed
residences five times in two and one-half years, was not
well-settled). However, the In re Ahumada Cabrera court
found that, in addition to moving five times, the mother had
an uncertain immigration status that weakened the mother’s
prospects of long term job stability. In the instant
action, Smith has a permanent resident visa, apparently
stable employment, and has been able to leave her sister’s
residence to establish her own residence. Accordingly,
living in three places in four years, under the
circumstances, does not warrant a finding that Melissa is
not well-settled.
[fn25] Neither the Convention nor ICARA specify that Article
12 should be subject to equitable tolling; rather, the
drafters of the Hague Convention decided that after the
passage of a year, it became a reasonable possibility that
the child could be harmed by its removal from an
environment into which the child has become settled, and
that a court ought to be allowed to consider this factor in
making the decision whether to order the child’s return.
Belay, 272 F. Supp. 2d at 562-63.
[fn26] Additionally, in determining whether equitable
tolling applies to this instant petition for Melissa’s
return, which was filed four years after her removal from
Belgium, the Court considers the Convention’s goals: 1)
protecting children from a second removal from the new
environment and 2) precluding an abducting parent who
secretes a child from claiming the child has become
well-settled precisely because the child was being secreted
from the parent seeking the child’s return. See Belay, 272
F. Supp 2d at 561, 563; see In re Robinson, 983 F. Supp.
1339, 1345 (D. Colo. 1997).
[fn27] Van Driessche seeks tolling through May 2006.
[fn28] See supra para. 60 and notes 14, 16. Because Van
Driessche requested the Court to consider the documents in
the Ex Parte Application and because the Court considers any
relevant factor to determine if equitable tolling applies
to the merits of the well-settled defense, the Court
incorporates the facts set forth in the August 2004 letter.
See Lynch, 220 F. Supp. 2d at 1363 (citing Lops, 140 F.3d
at 946 for the proposition that the Court should look at a
number of relevant factors to determine whether children
are well-settled).
ORDERS that Van Driessche’s Petition for Return of Child
under the Hague Convention (Instrument No. 1) is DENIED.
Page 1