United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Petitioner's
Emergency Motion to Stay State Court Custody-Only Proceedings
FACTUAL AND PROCEDURAL BACKGROUND
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].
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].
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.].
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.
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].
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
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].
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,
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].
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