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Sundberg v. Bailey

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

December 29, 2017

KARL HENRIK SUNDBERG, Petitioner,
v.
LISA MICHELLE BAILEY, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on the Petitioner's Verified Petition for Return of a Minor Child [Doc. 1] brought 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”). The Court held a hearing on the Petition on December 20, 2017.

         I. PROCEDURAL BACKGROUND

         The Petitioner Karl Henrik Sundberg (“Petitioner) commenced this action on November 1, 2017, against the Respondent Lisa Michelle Bailey (“Respondent”), claiming that the Respondent had wrongfully retained the parties' four-year-old daughter, L.P.B.S. (“Child”), in the United States and seeking the Child's return to Sweden. [Doc. 1]. On November 22, 2017, the Court entered an Order setting this matter for hearing on December 20, 2017. [Doc. 8]. On November 28, 2017, the Court entered another Order, upon motion of the Petitioner, staying the state court custody proceedings that had been initiated by the Respondent and declaring the state court's emergency custody order to be void and of no legal effect. [Doc. 11].

         On December 4, 2017, the Respondent filed a verified Answer to the Petitioner's Petition, denying that she had wrongfully removed or retained the Child and asserting various affirmative defenses under the Hague Convention. [Doc. 15].

         The Court conducted an evidentiary hearing on December 20, 2017, at which time the Court heard testimony from the parties as well as several of the parties' relatives. The Court allowed the parties a brief opportunity following the hearing to submit written briefs on the issues raised at the hearing. The parties filed their respective briefs on December 22, 2017. [Docs. 18, 19].

         II. FINDINGS OF FACT

         Based on the verified pleadings filed by the parties, as well as the testimony and exhibits introduced and admitted into evidence at the evidentiary hearing, the Court makes the following findings of fact.

         The Petitioner is a citizen and resident of Sweden. He currently has no immigration status in the United States, but has the ability to travel to the United States for short periods as a tourist. The Respondent is a citizen and resident of the United States. Immediately prior to coming to the United States in September 2016, the Respondent had resided in Sweden for four years with legal immigration status.

         The Petitioner and the Respondent were in a domestic relationship in Sweden from May 2012 until August 2015. The Petitioner and the Respondent were married on June 29, 2013, in Sweden. The Child was born to the Petitioner and Respondent in 2013, in Uppsala, Sweden. The Child is a citizen of both Sweden and the United States.

         The Petitioner and the Respondent were divorced on August 13, 2015, in Uppsala, Sweden. Following their divorce, the Petitioner and the Respondent exercised joint custodial rights over the Child, pursuant to Swedish law. The Child resided with the Respondent on most weekdays and with the Petitioner on most weekends and holidays. The Child resided exclusively in Sweden for the first three years of her life and made occasional visits to see family in the United States. She was able to speak both Swedish and English.

         In the summer of 2016, the Respondent asked the Petitioner for his permission to take the Child for an extended period to the United States. The parties discussed the possibility of all three (the Petitioner, the Respondent, and the Child) moving to the United States, if the Petitioner could obtain legal immigrant status through a work visa or some other means but no such legal status was then pursued. As a product of these discussions, on August 14, 2016, the parties signed an agreement, drafted by the Respondent, which provides, in pertinent part, as follows:

The purpose of this letter is to state a mutual agreement between Lisa Michelle Bailey and Karl Henrik Sundberg. Lisa and Karl have shared custody of their daughter, [Child].
Lisa and Karl agree to the following:
1. Lisa will leave Sweden and the European Union, with [Child], to spend several months in USA, where Lisa and [Child] are both citizens. Lisa and [Child] will depart from Sweden on 20 Sept. 2016, and their destination is Asheville, North Carolina, USA.
2. In May 2017, Lisa and Karl will determine a future agreement about Lisa and [Child's] residence and a plan for continuing shared custody of [Child].

[Doc. 1-7] (emphasis added). The parties discussed the possibility that the Respondent might return to Sweden sooner than May 2017. Specifically, the Respondent expressed concern that if she were not able to find employment, she would likely run out of money by February 2017.

         Six days later, on August 20, 2016, the Petitioner and the Respondent executed a Tenancy Agreement, under which terms the Respondent agreed to rent two rooms from the Petitioner in his home, for a term beginning on September 30, 2016 and ending on September 30, 2017. The Petitioner testified that the parties entered into this agreement so that the Respondent would have a place to live with the Child upon her anticipated return to Sweden. The parties concede that the Respondent did not pay any rent called for under this agreement. The Respondent testified that she executed the Tenancy Agreement simply so that she could apply for a housing allowance from the Swedish government to subsidize her rent, but that she never received this subsidy.

         The Respondent maintains a Swedish bank account, into which a monthly child benefit from the Swedish government is deposited. The Respondent and the Child's mail regarding bank accounts, doctor's appointments, and other business continues to be delivered to the Petitioner's residence. The Child is still considered a patient of the Swedish healthcare system, and the Petitioner has had to reschedule several of the Child's doctor's appointments and other matters, due to the Child's absence. Prior to the Child's departure to the United States, the parties enrolled the Child in the Swedish school system and made arrangements for the Child to attend preschool in Uppsala, Sweden, upon her return. Both the Petitioner and the Respondent talked to the Child about the impending trip beforehand, referring to it as an “adventure.”

         The Respondent left some of her belongings in a storage unit in the basement of the Petitioner's apartment building. Additionally, the Child has a fully furnished room in the Petitioner's apartment and still has toys and other belongings there.

         The Respondent and the Child came to the United States on September 20, 2016, using one-way airline tickets. The Respondent rented a room in a house in West Asheville for herself and the Child, and the Respondent soon found employment. The parties continued to discuss the possibility of the Petitioner seeking employment in the United States and relocating there, but ...


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