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
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.
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].
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.
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].
FINDINGS OF FACT
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.
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.
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.
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.
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.
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.
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.”
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
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 ...