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Sundberg v. Bailey

United States District Court, W.D. North Carolina, Asheville Division

November 28, 2017




         THIS MATTER is before the Court on the Petitioner's Emergency Motion to Stay State Court Custody-Only Proceedings [Doc. 9].


         The Petitioner Karl Henrik Sundberg (“Petitioner”) initiated this action against Lisa Michelle Bailey (“Respondent”) on November 1, 2017, by filing a Verified Petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 (“the Hague Convention”) and the provisions of the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (“ICARA”), seeking the return of the Parties' four-year-old daughter, L.P.B.S. (“Minor Child”) to Sweden. [Verified Petition, Doc. 1].

         According to the Verified Petition, the Petitioner and the Respondent (collectively, “the Parties”) were married on June 29, 2013, in Sweden. [Id. at ¶ 11]. They were divorced on August 13, 2015, in Uppsala, Sweden. [Id. at ¶ 12]. Attached to the Verified Petition is a copy of a Judgment from a Swedish District Court, entered on August 13, 2015, granting the Parties a divorce and stating that the Parties “still share custody of” the Minor Child. [Divorce Judgment, Doc. 1-5 at 2].

         In August 2016, the Parties entered into a written agreement pursuant to which the Respondent brought the Minor Child to the United States in order “to spend several months.” [Parties' Agreement, Doc. 1-7 at 2]. The Agreement further provides that [i]n May 2017, [the Parties] will determine a future agreement about [the Respondent and the Minor Child's] residence and a plan for continuing shared custody of [the Minor Child].” [Id.].

         The Respondent, by and through counsel, filed a civil complaint for child custody against the Petitioner in the Buncombe County District Court on April 19, 2017. [See Bailey v. Sundberg, No. 17-CVD-1829, Temporary Emergency Custody Order entered Nov. 15, 2016, Doc. 9-1 at 1]. The Petitioner has not filed an answer in the state court case, and has not made an appearance at any hearing in that case, due to his legal contention that the Minor Child has been wrongfully retained by the Respondent in North Carolina, since May 2017.

         The Petitioner sought to vindicate his rights under the Hague Convention by initiating the diplomatic process through the relevant Central Authorities that are part of the Convention's structure. On or around July 6 2017, the state court judge presiding over the Respondent's custody action received a letter from the U.S. Department of State's Office of Children's Issues (“State Department Letter”), advising that the Petitioner had filed an application seeking the return of the Minor Child to Sweden under the Hague Convention and that the application was still pending. [State Dep't Letter dated July 6, 2017, Doc. 1-12]. The State Department Letter was filed in the state court custody case (filed-stamped date illegible). [Id.]. The Respondent was copied on this letter. [Id. at 2].

         The State Department sent another letter to the Respondent on July 21, 2017, requesting that the Respondent voluntarily return the child to Sweden in order to settle the custody issue and setting a deadline of August 4, 2017 to respond. The letter further advised that if she did not respond, the Petitioner might initiate judicial proceedings to determine a return of the minor child. [State Dep't Letter dated July 21, 2017, Doc. 1-13]. No voluntary return occurred, leading the Petitioner to pursue his judicial remedies under the Hague Convention.

         The Petitioner served the Respondent with a summons and a copy of the Verified Petition on November 11, 2017, via Federal Express. [See Affidavit of Service, Doc. 5]. On November 14, 2017, a deputy from the Buncombe County Sheriff's Office served a summons and a copy of the Verified Petition on the Respondent at her home address in Asheville by leaving the documents with the Respondent's adult housemate. [See Executed Summons, Doc. 6].

         On November 15, 2017, as the Petitioner was on his way to North Carolina for a visit with the Minor Child, and unbeknownst to him, the state court issued a “Temporary Emergency Custody Order, ” which purports to award sole legal and physical custody of the Minor Child to the Respondent Mother and to restrict the Petitioner's visitation rights to supervised visits lasting only a few hours at a time. [Temporary Emergency Custody Order entered Nov. 15, 2016, Doc. 9-1].

         The Petitioner now moves for an emergency order to stay the state court custody proceedings initiated by the Respondent and for a declaration that the state court's Temporary Emergency Custody Order is void and of no legal effect. [Doc. 9].


         ICARA provides, in pertinent part, that “[a]ny person seeking to initiate judicial proceedings under the [Hague] Convention for the return of a child ... may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action . . . .” 22 U.S.C. § 9003(b). State courts and United States district courts have concurrent jurisdiction of cases arising under the Hague Convention. 22 U.S.C. § 9003(a). Here, the Petitioner chose to file his petition in the federal court system. Although the state custody proceeding initiated by the Respondent was pending at the time of the commencement of the Petitioner's action in this Court, it does not appear that any issue has been raised before the state court regarding the return of the Minor Child under the Hague Convention. As such, this Court has the exclusive jurisdiction to determine the merits of the Verified ...

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