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noting that "the harm must be a great deal more than minimal" and that "[n]ot any harm will do nor may the level of risk of harm be low"
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3:20-cv-00066
2020-11-30
Denisa BABCOCK, Plaintiff, v. Chad Michael BABCOCK, Defendant.
Eric Steven Mail, Eric David Puryear, Puryear Law PC, 3719 Bridge Avenue, Suite 6, Davenport, IA 52807, 563-265-8344, 866-415-5032 (fax), mail@puryearlaw.com, eric@puryearlaw.com, for Defendant. Nicole D. Driscoll, Molly Marie McDonnell, Iowa Legal Aid (Davenport), 736 Federal Street, Suite 2309, Davenport, IA 52803, 800-532-1275 x1911, 563-884-4461 (fax), ndriscoll@iowalaw.org, mmcdonnell@iowalaw.org, for Plaintiff.
Eric Steven Mail, Eric David Puryear, Puryear Law PC, 3719 Bridge Avenue, Suite 6, Davenport, IA 52807, 563-265-8344, 866-415-5032 (fax), mail@puryearlaw.com, eric@puryearlaw.com, for Defendant.
Nicole D. Driscoll, Molly Marie McDonnell, Iowa Legal Aid (Davenport), 736 Federal Street, Suite 2309, Davenport, IA 52803, 800-532-1275 x1911, 563-884-4461 (fax), ndriscoll@iowalaw.org, mmcdonnell@iowalaw.org, for Plaintiff.
MEMORANDUM AND ORDER
ROBERT W. PRATT, Judge
Plaintiff Denisa Babcock, also known as Denisa Cholasta, a citizen of Canada, filed her Verified Complaint on August 20, 2020, seeking the return of N.J.B., her twelve-year-old child with Defendant Chad Michael Babcock, a citizen of the United States, under the Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 [hereinafter Hague Convention], as implemented through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001 – 9011. ECF No. 1. The Court held a telephonic evidentiary hearing on the merits of the Verified Complaint on November 10, 2020. See ECF No. 45. Prior to the hearing, the Court interviewed N.J.B. in camera via videoconference without the parties or attorneys present. As ordered by the Court, the parties filed posttrial briefs on November 17. ECF Nos. 46, 47. The matter is fully submitted.
N.J.B. was eleven years old at the time Plaintiff filed her Verified Complaint. He turned twelve during the pendency of this action.
I. INTRODUCTION
The Hague Convention "establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained ...." 22 U.S.C. § 9001(a)(4). Its purpose is to "deter parents who are dissatisfied with current custodial arrangements from abducting their children and seeking a more favorable custody ruling in another country." Navani v. Shahani , 496 F.3d 1121, 1124 (10th Cir. 2007). It also serves "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1.
"The Convention and [ICARA] empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims." 22 U.S.C. § 9001(b)(4) ; Stern v. Stern , 639 F.3d 449, 451 (8th Cir. 2011). Indeed, "[i]t is the Convention's core premise that ‘the interests of children ... in matters relating to their custody’ are best served when custody decisions are made in the child's country of ‘habitual residence.’ " Monasky v. Taglieri , ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (2020) (quoting Hague Convention, preamble). Thus, "it is not the duty or province of the Court to determine custodial matters, but instead merely to determine which country's courts have that duty." Id. "It is then up to the courts of the ‘habitual residence’ to decide the substantive merits of the underlying custody issue." Redmond v. Redmond , 724 F.3d 729, 737 (7th Cir. 2013) ; see also Abbott v. Abbott , 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) ("A return remedy does not alter the preabduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence." (citing Hague Convention, art. 19)).
The Court has compiled its findings of fact from the testimony heard in the evidentiary hearing, the Court's interview with the child at issue, the evidence admitted into the record, and the pleadings submitted in this case.
Plaintiff is a citizen of Canada. Defendant is a citizen of the United States. Plaintiff and Defendant were married in Bettendorf, Iowa in March 1996. ECF Nos. 42-4 at 3, 42-16 at 1. They have four children: A.B., born in 1998; M.B., born in 2002; N.D.B., born in 2003; and N.J.B., born in 2008. ECF No. 42-4 at 3. All four children are dual citizens of the United States and Canada. ECF No. 48 at 18. N.J.B. is the only child involved in this matter. ECF No. 1 ¶ 8. The parties lived together with their children in Camanche, Iowa for most of their marriage. See id.
In December 2011, this Court sentenced Plaintiff to sixty-four months’ imprisonment for embezzling funds from the local school district where she worked. United States v. Babcock , No. 3:10-cr-00074 (S.D. Iowa Jan. 23, 2012), ECF No. 84. Plaintiff was released from federal prison in September 2016 and spent the next seven months in U.S. Immigration and Customs Enforcement detention before she was deported to Canada. ECF No. 48 at 18.
As a result of Plaintiff's expected deportation, the parties planned for the whole family to move to Canada and start a new life there. Id. at 17. Plaintiff at first lived with her parents in Toronto but soon found a house for the family in Windsor, Ontario to be closer to Iowa for Defendant's travel back and forth until he could join the family full time. Id. at 29. The four children joined their mother in Windsor on June 28, 2017. Id. at 17. Defendant moved most of the family's possessions from Camanche to their new home in Windsor. Id. at 21–22. All of the children's personal belongings, including toys, games, computers, clothes, and dressers were moved to Windsor. Id. at 22. Plaintiff purchased new bedroom furniture for the children in Windsor. Id. During this time, Defendant could not stay in Canada for more than short visits due to his own criminal history of operating while intoxicated and public intoxication. He could not permanently relocate until his immigration paperwork was complete and he was approved for permanent residence. Id. at 18; 105. Defendant never filed the paperwork and was never approved to live in Canada. Id. at 19.
Upon his move to Canada, N.J.B. was enrolled in the local public elementary school in Windsor. Id. at 31. N.J.B., who was nine years old at the time, was already a grade behind children his age in Camanche. Id. at 32. Based on his age, N.J.B. should have been entering the fourth grade in Windsor; however, due to his speech and language problems, Plaintiff and the school decided to place N.J.B. in the third grade. Id. The school provided N.J.B. with focused attention on reading and speech, and N.J.B. progressed well. Id. at 33. N.J.B. attended the local school for two years. Id. at 35. Defendant was not involved in working with the local school, and in fact testified he did not even know N.J.B. was having academic problems in Canada. Id. at 35, 100.
N.J.B. also participated in local organized sports such as little league and soccer. Id. at 36–37. He made friends in Windsor and maintained a close relationship with his brothers who all live in Windsor. Id. at 30, 38. N.J.B. is athletic and enjoys being outdoors and playing sports with his friends and brothers. Id. at 36–37. N.J.B. had all of his medical needs met for the two years he lived in Windsor. Id. at 41.
The parties separated in late December 2017. ECF No. 48 at 20. Defendant returned to Camanche while the children remained with their mother in Windsor. Id. Defendant did not see the children again until June 2019. Id. at 22.
In February 2019, Plaintiff filed for divorce with the Ontario Superior Court of Justice and served Defendant with the petition. ECF No. 42-4; see ECF No. 42-5. Plaintiff petitioned for fully custody of their children, id. at 4, which the Ontario court granted on April 26, 2019, ECF No. 42-12. Rather than engaging in the Canadian divorce proceeding, Defendant filed a separate action in Clinton County, Iowa in March 2019 seeking a dissolution of their marriage. ECF No. 1 ¶ 17. That action has been stayed pending resolution of this matter. Id.
At the hearing, Plaintiff testified she had not sought primary care of the children in her divorce application, but rather, she was merely seeking to have a custody order in place so that both the parties and the children knew where the children would be and when they would be there. ECF No. 48 at 24. In her application, however, Plaintiff checked the box for "custody of child[ren]" and left blank the box for "access to child[ren]." ECF No. 42-4 at 4.
Defendant testified the attorney he initially hired to handle his dissolution of marriage advised him that any dissolution and child-custody matters must be addressed in Iowa because that is where the parties were married and the children were born. ECF No. 48 at 83–84. Thus, he did not participate in the Canadian divorce and child-custody action because he believed Canada did not have jurisdiction. Id. at 84. Defendant also testified the attorney advised him incorrectly that "it was not an issue to keep" N.J.B. in August 2019 because he had a custody right to the child, too. Id. Defendant further testified he now understands that this legal advice was incorrect. Id.
In early summer 2019, the parties’ oldest child planned a vacation to visit friends and family in Iowa. ECF No. 48 at 43. The younger children expressed an interest in visiting family and friends in Iowa, too, so Plaintiff asked Defendant if the children could come visit. Id. Defendant agreed, and N.J.B. and the oldest child traveled to Iowa for a ten-day visit starting on June 28. Id. at 43. The day before the children were to return to Canada, their grandmother called Plaintiff to ask if N.J.B. could stay longer. Id. Plaintiff agreed, believing it was best for the child to spend time with Defendant and Defendant's family. Id. at 45. Defendant was reluctant to let the child stay at first, believing it might cause problems between the parties in light of their legal situation. ECF No. 42-13 at 2, 5. At Defendant's request, Plaintiff then gave Defendant express permission for N.J.B. to stay until the end of summer, stating:
At some point, the parties’ other two children traveled to Iowa. Plaintiff testified it was just A.B. who drove to Iowa with his girlfriend and N.J.B. on June 28. ECF No. 48 at 44. Plaintiff further testified, however, that both N.J.B. and N.D.B. were staying at their grandmother's house when the grandmother called Plaintiff to ask whether N.J.B. could stay longer. Id. at 44. Additionally, Defendant's text messages to Plaintiff discuss N.D.B. remaining in Iowa for the school year. ECF No. 42-13 at 3. Plaintiff also testified that Defendant retained N.J.B. at the end of the summer but sent the two middle children—N.D.B. and M.B.—back to Windsor on a bus on August 20, 2019. Id. at 49–50.
I, Denise Babcock give permission for [N.D.B.] and [N.J.B.] to extend their visit until September 1, 2019 so they can visit their father and additional family. [N.J.B.] will be returning to Canada for the 2019 school year. And [N.D.B.] is still deciding where he would like to attend school. The issue with [N.D.B.] will be revisited middle of August to make the final determination about where he will attend school.
Id. at 6. Defendant responded:
I agree with [N.J.B.] staying for the summer as well as [N.D.B.] but as far as [N.D.B.] wants to stay here until he graduates high school as he told me that's what he wants, [N.J.B.] would like to stay here to live as well as I'm concerned for the children living in Canada due to [M.B.] stealing, failing school and hanging out with the wrong crowd, [N.D.B.] failing school out in Canada and not having any friends is another concern of mine, not to mention no structure or guidance for our children out there due to you hardly ever home. Their [sic] are more concerns I have, as far as [N.J.B.] getting back home and possibly [N.D.B.] as agreement in August we will talk about that
Id. at 7.
As his return date approached, N.J.B. began to express to Defendant that he did not want to return to Canada. ECF No. 48 at 85. N.J.B. complained about Plaintiff assigning chores to the children and his older brothers forcing him to do all of the chores and punishing him if he refused. Id. N.J.B. also told Defendant that one of his brothers had pinched his neck so hard that it left a scar on N.J.B.’s neck after N.J.B. refused to do his brother's chore. Id. at 85–86. Also around this time, Defendant purchased N.J.B. a dirt bike. Id. at 47, 89. N.J.B. appeared upset at the idea of returning to Canada. Id. at 86. N.J.B. told Defendant he preferred Camanche because he liked the school better and preferred being in a small town and being able to ride his bike to his grandma's house. Id. N.J.B. also said he had more friends in Camanche. Id.
On August 18, 2019, Defendant informed Plaintiff, "Well [N.J.B.] wants to stay so I'm getting him enrolled at school." Id. at 3. Defendant continued: "His brothers who tease him leave marks on his neck sorry he's not safe there he's begging to stay due to how your [sic] never home and how his brothers treat him." Id. at 6. The conversation continued into the next day with Defendant repeating that N.J.B. wanted to stay in Iowa and that M.B. and N.D.B. would be returning to Canada. See id. at 8–15. Defendant purchased bus tickets for M.B. and N.D.B. to return to Canada on August 20. Id. at 15.
On August 20, M.B. and N.D.B. boarded a bus to Canada. N.J.B. did not return with them. Upon learning this, Plaintiff immediately called law enforcement in Clinton County, Iowa for assistance in returning N.J.B. to Canada. ECF No. 48 at 51–52. An officer conducted a welfare check of N.J.B. at his grandmother's home. Id. at 52–53. Plaintiff also tried other avenues in an attempt to have the child returned. See id. at 51, 53–54. On August 26, Plaintiff filed a Request for Return of Child under the Hague Convention with the Canadian Central Authority. ECF No. 42-16.
N.J.B. has remained in Iowa since the summer of 2019. ECF No. 48 at 56. Defendant enrolled N.J.B. in the fifth grade at the Camanche middle school in August 2019. ECF No. 48 at 91. Plaintiff has maintained communication with N.J.B., talking to him about every two weeks. Id. N.J.B. is doing well in school at Camanche, has received mostly good grades, and received an award "demonstrating GRIT" in December 2019. Id. at 91; ECF No. 43-1; ECF No. 43-2. Due to the current global pandemic caused by the disease COVID-19, N.J.B. has not been participating in any extracurricular activities and has been attending school in a hybrid online/in-person learning format. ECF No. 48 at 94–95. A month and a half before the hearing, Defendant started having N.J.B. participate in weekly mental health counseling sessions to deal with the stress and anxiety of the possibility of returning to Canada. Id. at 97. N.J.B. had attended four sessions by the hearing. Id.
The award appears to be a monthly award given to "a student who has worked very hard" during the previous month and "who puts forth their best effort in each class every day." ECF No. 43-2.
III. CONCLUSIONS OF LAW
ICARA provides that state and federal courts have concurrent original jurisdiction to consider an action under the Hague Convention to recover a child wrongfully retained within the United States. 22 U.S.C. § 9003(a). Both the United States and Canada are signatories to the Convention. See generally Hague Conference on Private Int'l Law, Convention of 25 Oct. 1980 on the Civil Aspects of Int'l Child Abduction, Status Table, https://www.hcch.net/en/instruments/conventions/status-table/?cid=24. Thus, this Court has jurisdiction over this matter.
"The key question under ICARA is ‘whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence.’ " Stern , 639 F.3d at 451 (quoting Barzilay v. Barzilay , 600 F.3d 912, 917 (8th Cir. 2010) ). Article 3 of the Convention provides:
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, an institution[,] or any other body, either jointly or alone, 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, either jointly or alone, or would have been so exercised but for the removal or retention.
Hague Convention art. 3.
In her Verified Complaint, Plaintiff alleges Defendant has wrongfully retained N.J.B. from Canada, the child's place of habitual residence, since August 20, 2019, in violation of her custody rights. ECF No. 1 ¶¶ 1, 26–27. Plaintiff seeks the return of the child under the Hague Convention and pursuant to ICARA.
To establish a prima facie case for return of the child under the Convention, Plaintiff must show, by a preponderance of the evidence, that: (1) immediately prior to retention, N.J.B. habitually resided in Canada; (2) the removal or retention was in breach of Plaintiff's custody rights under Canadian law; and (3) Plaintiff was exercising her custody rights at the time of the wrongful retention. Custodio v. Samillan , 842 F.3d 1084, 1088 (8th Cir. 2016) ; Hague Convention art. 3; see 22 U.S.C. § 9003(e)(1)(A) (burden of proof). "If a petitioner establishes a prima facie case, the child must be ‘promptly returned unless one of the narrow exceptions set forth in the Convention applies.’ " Custodio , 842 F.3d at 1089 (quoting 22 U.S.C. § 9001(a)(4) ).
A. Plaintiff's Prima Facie Case
1. Habitual Residence
"[T]his case turns on the determination of the child[ ]’s habitual residence, for the retention of a child in the state of its habitual residence is not wrongful under the Convention." Barzilay , 600 F.3d at 917. Courts determine the "habitual residence" of a child based "on the totality of the circumstances specific to the case." Monasky , 140 S. Ct. at 723. "The Hague Convention does not define the term ‘habitual residence,’ " but "[a] child ‘resides’ where [he] lives." Id. at 726. A child's residence becomes " ‘habitual’ ... when [his] residence there is more than transitory" and when there is "some degree of integration by the child in a social and family environment." Id. (citation omitted). Because the inquiry is fact driven, "courts must be ‘sensitive to the unique circumstances of the case and informed by common sense.’ " Id. at 727 (quoting Redmond , 724 F.3d at 744 ). When the child is older, whether the child has acclimatized to his surroundings is "highly relevant." Id. The shared intentions of the parents are also relevant. Id. Additional factors courts consider "include: ‘a change in geography combined with the passage of an appreciable period of time,’ ‘age of the child,’ ... ‘academic activities,’ ‘social engagements,’ ‘participation in sports programs and excursions,’ ‘meaningful connections with the people and places in the child's new country,’ ... and ‘location of personal belongings.’ " Id. n.3 (quoting James D. Garbolino, Fed. Jud. Ctr., The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 67–68 (2d ed. 2015)).
"The first step in determining a child's habitual residence is to discern when the alleged wrongful removal or retention took place, for ‘the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time "immediately before the removal or retention." ’ " Barzilay , 600 F.3d at 918 (quoting Silverman v. Silverman , 338 F.3d 886, 897 (8th Cir. 2003) ). As with many wrongful retention cases, determining the actual date of the alleged wrongful retention in this case is not straightforward. The parties here disagree about the date that should be used. Plaintiff alleges the date of wrongful retention is August 20, 2019, when "she realized [N.J.B.] was not returning when her other two children were placed on a Greyhound bus" and she contacted law enforcement for assistance in having N.J.B. returned to her care. ECF No. 48 at 50, 126. Defendant alleges the correct date is August 18, 2019, when he explicitly told Plaintiff in his text message to her on that date that N.J.B. would be staying in Camanche and Defendant would be enrolling him in school there. ECF No. 48 at 129–30. For this part of the analysis, the two days matters little. However, the two days matters greatly when determining whether Defendant can raise the defense of delay, as the Court will discuss below.
There is little authority that clearly addresses the issue of how to determine the date of wrongful retention. See Slagenweit v. Slagenweit , 841 F. Supp. 264, 270 (N.D. Iowa 1993), appeal dismissed , 43 F.3d 1476 (8th Cir. 1994). The official Reporter of the Hague Convention notes that
The fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence.
Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1980), ¶ 108 [hereinafter Pérez-Vera Report]. In Slagenweit , Judge Melloy held "[t]he wrongful retention does not begin until the noncustodial parent ... clearly communicates her desire to regain custody and asserts her parental right to have [the child] live with her." Id.
The Third Circuit, without adopting the Slagenweit holding, applied it in Karkkainen v. Kovalchuk , 445 F.3d 280, 290 (3d Cir. 2006). There, the appellate court concluded the district court had clearly erred in holding that the applicable date of retention was when the petitioning parent filed her petition for the child's return because the parent had "unequivocally communicated" an objection to the child remaining in the United States before that date. Karkkainen , 445 F.3d at 290. In Blackledge v. Blackledge , 866 F.3d 169, 179 (3d Cir. 2017), the Third Circuit held "that the retention date is the date beyond which the noncustodial parent no longer consents to the child's continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof." The Blackledge panel noted that, "in some cases the notice date and actual expiration date will coincide, in other cases the notice will indicate a future date as the date consent will be withdrawn, in which case that latter date, depending on the facts of the case, will constitute ... the retention date." 866 F.3d at 179.
The Blackledge panel held "the District Court erred by looking solely to Petitioner's original consent for [the child] to reside in [the United States] through August 2016 and failing to assess whether Petitioner's subsequent communications, up to and including the filing of his Hague Convention petition [in July 2016], effected a withdrawal of that consent." Id. But the panel "also reject[ed] Petitioner's argument in favor of a June 9, 2016 retention date, as that date reflects Petitioner's notice of a possible expiration of consent on June 19, 2016." Id. The Blackledge panel noted it had "rested on the prospective date of expiration identified in [the] petitioner's notice" in Karkkainen because there the petitioner had taken "the affirmative step of purchasing a ticket, asserted any retention beyond the scheduled return date would constitute ‘kidnapping,’ and did not equivocate as to that retention date." Id. While in Blackledge , the petitioner had "only researched the possibility of purchasing a ticket" and "left open the possibility of further negotiations," and it was the respondent who had raised a concern about "abduct[ion]." Id. The panel ultimately held the retention date was July 2016—the date the petitioner had filed his Hague Convention petition—because there was no prior date on which he had "clearly and unequivocally withdr[awn] his prior consent and sought to reassert his custody rights." Id.
In the Sixth Circuit, district courts have applied two tests, the first being that developed in Slagenweit and applied in Karkkainen. The second test hinges on "when the acts of the abducting parent are so unequivocal that the left-behind parent knows or should know , that the child will not be returned." Diagne v. Demartino , No. 2:18-CV-11793, 2018 WL 4385659, at *11 (E.D. Mich. Sept. 14, 2018) (emphasis added).
In Palencia v. Perez , the Eleventh Circuit held that, "for the purpose of determining the date of wrongful retention, a court should look to the date the abducting parent formed the intent to wrongfully retain the child or to the date the petitioning parent learned the true nature of the situation." 921 F.3d 1333, 1342 (11th Cir.), cert. denied sub nom., Velasquez Perez v. Palencia , ––– U.S. ––––, 140 S. Ct. 533, 205 L.Ed.2d 347 (2019). In that case, the mother told the father she was going to take the child from their home in Guatemala to Mexico for a week to visit family, and the father did not object. Id. at 1336–37. Instead, the mother took the child to the United States and was detained at the border. Id. at 1337. The mother asked the father for help in securing passports for herself and the child, all the while telling the father she had made a mistake and intended to return to Guatemala with the child once they were released from detention. Id. Once the father provided the mother with passports, the mother informed the father she would not be returning to Guatemala with the child and applied for asylum in the United States. Id. The panel concluded the date of retention was the date the father "learned the true nature of the situation." Id. at 1342.
The First and Second Circuits have reached similar conclusions. In Marks ex rel. SM v. Hochhauser , the Second Circuit held that the wrongful retention occurred when the mother, after representing to the father that she wanted to visit a sick parent in the United States and would return three weeks later, informed the father that she and their children would be staying in the United States rather than returning to the children's country of habitual residence. 876 F.3d 416, 417, 420–23 (2d Cir. 2017). Similarly, in Darín v. Olivero-Hoffman , the First Circuit held the date of retention was when one parent informed the other that she intended to remain with their child in the United States and reside here permanently after the parties extended the initial length of their visit with the consent of the other parent. 746 F.3d 1, 10–11 (1st Cir. 2014). In these cases, as in Palencia , the custodial parent traveled to the United States after representing to the noncustodial parent that the travel would be temporary and the parent would return to the country of habitual residence with the children after a finite period of time. It makes sense then in these cases for the date of retention to be when the abducting parent informs the other parent that he or she will be retaining the child, which would likely be the same date the other parent "learn[s] the true nature of the situation." Palencia , 921 F.3d at 1342.
Here, however, the facts are dissimilar. In this case, Plaintiff consented to N.J.B. visiting Defendant in the United States for a period of ten days beginning June 28, 2019. A nonparty to this case asked Plaintiff if the child could extend his visit; Plaintiff agreed and extended her consent to September 1, 2019. Defendant rejected the plan at first, insisting he would send the child back to Canada "and [the] lawyers can handle this." ECF No. 42-13 at 2. Defendant soon acquiesced and agreed N.J.B. could stay for the rest of the summer. On August 18, Defendant informed Plaintiff that he intended to retain N.J.B. in the United States and enroll him in the Camanche schools. Defendant never misrepresented to Plaintiff a true intent to retain the child. Thus, this case is unlike Palencia, Marks ex rel. SM , and Darín.
Modeling its own analysis on the holdings of Slagenweit , Karkkainen, and Blackledge and the Pérez-Vera Report, the Court concludes the applicable retention date in this case is August 20, 2019. N.J.B. was originally to return to Canada with his brother in early July 2019. Just before his return, Defendant's step-mother contacted Plaintiff and asked if N.J.B. could stay a week longer to go camping. Plaintiff agreed, believing it would be good for the child to spend more time with his friends and family in Iowa and decided he could stay the rest of the summer. Plaintiff expressly communicated to Defendant the new expiration date of her consent for the child to remain in the United States: September 1, 2019. See In re Cabrera , 323 F.Supp.2d 1303, 1312–13 (S.D. Fla. 2004) (holding that, when a parent consents to an extension of a child's stay in a country other than the child's habitual residence, retention becomes wrongful at the conclusion of that extension). Applying the Third Circuit's reasoning in Karkkainen , September 1 would be the date of retention if it were not for Plaintiff's filing of a Request for Return of Child under the Hague Convention on August 26. 445 F.3d at 290. But, under the circumstances of this case, the Court concludes not even August 26 is the applicable date of retention because Plaintiff took an affirmative step on August 20 to "clearly and unequivocally withdr[aw] [her] prior consent and ... reassert [her] custody rights" when she contacted local law enforcement in Clinton County for assistance in returning the child to Canada. Id. ; Slagenweit , 841 F. Supp. at 270. This date also satisfies the second test utilized in the Sixth Circuit as the date Plaintiff knew or should have known N.J.B. would not be returned. Diagne , 2018 WL 4385659, at *11. Thus, the Court concludes the applicable date of retention in this case is August 20, 2019, as the date Plaintiff "refused to agree to an extension of the child's stay in a place other than that of its habitual residence." Pérez-Vera Report, ¶ 108.
Having fixed the date of retention as August 20, 2019, the Court now turns to the question of which country was N.J.B.’s habitual residence immediately prior to that date. Plaintiff presented evidence that she and Defendant originally intended to move the whole family to Canada indefinitely in 2017 when N.J.B. was nine years old. Plaintiff testified Defendant moved all of the children's personal belongings to Canada. Plaintiff also presented evidence that during the two years N.J.B. resided in Canada, he attended school, made friends, participated in sports, and had his medical needs met. His siblings, with whom he shares a close relationship, also reside in Canada. These facts show there was a clear intent to abandon the United States as the child's country of habitual residence, see Karkkainen , 445 F.3d at 294 ("[I]t does seem implicit in the concept of acquiring a new ‘habitual’ residence that the previous ‘habitual’ residence has been left behind or discarded." (citation omitted)), and that N.J.B. acclimatized to his surroundings in Canada and his residence there was not merely "transitory," Monasky , 140 S. Ct. at 726. See also Cohen v. Cohen , 858 F.3d 1150, 1154 (8th Cir. 2017) (concluding the child's habitual residence was the United States after the family moved here indefinitely and the child had lived here for two years and "attended school and speech-therapy classes, had a pediatrician, socialized with friends, and had extended family in the area"); Sorenson v. Sorenson , 559 F.3d 871, 873–74 (8th Cir. 2009) (concluding the child was a habitual resident of Australia when the child moved to Australia with her family and their possessions, lived there for three years, and attended preschool and had friends in Australia).
Additionally, N.J.B. did not become a habitual resident of the United States when he came to visit family and friends in Iowa in June 2019, as his visit then was only transitory. Presumably, N.J.B. packed only enough for a ten-day stay when he visited Camanche in the summer of 2019, and the rest of his personal belongings remained behind in Windsor. Further, although N.J.B.’s stay in Iowa ended up being extended to about two months, the parties intended for N.J.B.’s residence in Iowa to be temporary and for N.J.B. to return to Canada, as evidenced by his grandmother's request to Plaintiff for him to stay longer and the parties’ text messages discussing N.J.B.’s return. Specifically, Defendant texted Plaintiff initially insisting that N.J.B. would be returning at the end of the ten-day period unless Plaintiff gave express, written consent for N.J.B. to extend his visit. ECF No. 42-13 at 7. Only after Plaintiff provided her consent did Defendant "agree with [N.J.B.] staying for the summer." Id. And although Defendant mentioned "[N.J.B.] would like to stay here to live as well," he then proceeded to express concerns about "[N.J.B.] getting back home" to Canada. Id. N.J.B. staying in Iowa indefinitely was not truly contemplated until Defendant informed Plaintiff on August 18 of his intent to retain N.J.B. Two days is not sufficient time to acquire a new habitual residence. See Silverman , 338 F.3d at 898 ("Habitual residence may only be altered by a change in geography and passage of time."). Although N.J.B. has many friends in Camanche and a close relationship with his extended family there, Canada remained his country of habitual residence because there was no clear intent by the parties or the child to abandon Canada as the child's habitual residence. See Karkkainen , 445 F.3d at 294.
Accordingly, under the totality of the circumstances in this case, the Court concludes N.J.B. was a habitual resident of Canada immediately prior to August 20, 2019. The Court now turns to the question whether Defendant's retention of the child from his country of habitual residence was wrongful.
2. Custody Rights
The next step in determining if Defendant's retention of N.J.B. was wrongful is to consider whether Plaintiff had custody of N.J.B. and whether she was exercising her right of custody at the time of the retention. See Hague Convention, art. 3. Under the Convention, custody rights are "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, art. 5(a). Custody rights "may arise ... by operation of law or by reason of a judicial or administrative decision." Hague Convention, art. 3. Courts must "carefully examine ‘the country of origin's custody laws to determine whether the party seeking the child's return had custody rights in that country ... at the time the child was [retained].’ " Tsai-Yi Yang v. Fu-Chiang Tsui , 499 F.3d 259, 275 (3d Cir. 2007) (alteration in original) (citation omitted); see also Hague Convention, art. 3 (requiring consideration of "the law of the State in which the child was habitually resident immediately before the removal or retention"). When the country "has more than one territorial unit, the custody rights laws of the territorial unit apply." Feder v. Evans-Feder , 63 F.3d 217, 221–22 (3d Cir. 1995) (citing Hague Convention, art. 31).
Ontario's Children's Law Reform Act (CLRA) provides
Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody ... is suspended until a separation agreement or order otherwise provides.
R.S.O. 1990, c. C.12, s. 20(4) (Can.). Here, the parties separated in late December 2017. Defendant returned to Iowa and left N.J.B. in Plaintiff's care in Canada. Under the CLRA, Defendant's right of custody was therefore "suspended," and Plaintiff assumed custody of N.J.B. until April 26, 2019, when the Ontario Superior Court of Justice granted her full custody of the parties’ children. ECF No. 42-12. Furthermore, nothing in the record indicates Plaintiff was not exercising her custody rights at the time of the child's retention in August 2019. See Tsai-Yi Yang , 499 F.3d at 277 ("[T]he test for finding the non-exercise of custody rights under the Hague Convention is stringent.... Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights." (citation omitted)). Plaintiff has proved by a preponderance of the evidence that she had custody of N.J.B. and was exercising her right of custody at the time of the alleged wrongful retention in August 2019.
Upon consideration of all the relevant factors, the Court concludes Canada is N.J.B.’s habitual residence and Defendant wrongfully retained N.J.B. in violation of Plaintiff's custody rights. The burden now shifts to Defendant to prove an affirmative defense for why N.J.B. should not be promptly returned to Canada.
B. Defendant's Affirmative Defenses
ICARA requires children who have been wrongfully removed or retained to be "promptly returned." § 9001(a)(4). However, "[t]he Convention recognizes certain exceptions to the return obligation." Monasky , 140 S. Ct. at 724. A parent who is alleged to have wrongfully removed or retained a child has the following available defenses found in Articles 12, 13, and 20: delay, custody rights, grave risk, human rights, and objection of the child. Rydder v. Rydder , 49 F.3d 369, 372 (8th Cir. 1995). These defenses are subject to narrow interpretation. Id. Furthermore, even if an affirmative defense is proved, the Court still has discretion to return the child. Hague Convention, art. 18 ("The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."); Lozano v. Montoya Alvarez , 572 U.S. 1, 20, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (Alito, J., concurring) ("A court thus has power to order the child's return in the exercise of its sound discretion even where Article 12's obligation to order such return no longer applies."); Walker v. Walker , 701 F.3d 1110, 1123 (7th Cir. 2012) ("It is also worth remembering that the Article 13 exceptions are permissive: a court may order return even if it finds that the parent opposing the petition has established that one of the exceptions applies.").
Defendant asserts the affirmative defenses of delay, objection of the child, and grave risk of harm. Defendant bears the burden of proving his defenses of delay and objection of the child by a preponderance of the evidence and his defense of grave risk of harm by clear and convincing evidence. § 9003(e).
1. Delay
Defendant asserts a defense of delay under Article 12 of the Convention. The first two paragraphs of Article 12 provide the following:
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement
of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Hague Convention, art. 12.
Defendant contends Plaintiff filed her Verified Complaint for the return of the child more than a year after the wrongful retention began and the child is now well-settled in Camanche. Defendant presented evidence the child is enrolled in and thriving in school, is living in the same home where he was raised, is physically close to most of his extended family and friends, and is receiving appropriate counseling and attention for his mental and physical well-being.
As the Court determined above, the wrongful retention occurred in this case on August 20, 2019. Plaintiff filed her Verified Complaint seeking the return of the child on August 20, 2020. See Fed. R. Civ. P. 6(a) (computing time). Therefore, Plaintiff filed her Verified Complaint within the one-year period provided for in Article 12 and Defendant is foreclosed from asserting a delay defense.
However, even if the Court were to conclude Plaintiff had filed the action more than a year after the wrongful retention occurred, the Court would still grant Plaintiff's request for the child's return. Plaintiff "was not resting on [her] rights but [was] instead acting in good faith and with reasonable diligence." Blanc v. Morgan , 721 F. Supp. 2d 749, 764–65 (W.D. Tenn. 2010). Plaintiff presented evidence that upon realizing Defendant had not sent N.J.B. back to Canada with his brothers, she immediately contacted law enforcement in Clinton County to locate the child and attempt to have him returned to her care. A mere six days later, Plaintiff filed a Request for Return of Child under the Hague Convention. "Under the Hague Convention, it is of paramount concern that courts prevent a party in a custody dispute from deriving a benefit through wrongdoing." Id. at 765 ; Friedrich v. Friedrich , 78 F.3d 1060, 1067 (6th Cir. 1996) ("In fact, a federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention."). Returning N.J.B. to Canada "further[s] the aims of the Convention." Friedrich , 78 F.3d at 1067. Not doing so would allow Defendant to benefit from wrongfully retaining N.J.B.
Defendant has not met his burden of establishing a defense of delay by a preponderance of the evidence.
2. Child's Objection to Return
Defendant raises the mature child defense under Article 13 of the Convention. Article 13 provides that a court "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13. With regard to this defense, the Pérez-Vera Report provides the following guidance:
[T]he Convention also provides that the child's views concerning the essential question of its return or retention may be conclusive, provided it has, according to the competent authorities, attained an age and degree of maturity sufficient for its views to be taken into account. In
this way, the Convention gives children the possibility of interpreting their own interests. Of course, this provision could prove dangerous if it were applied by means of the direct questioning of young people who may admittedly have a clear grasp of the situation but who may also suffer serious psychological harm if they think they are being forced to choose between two parents. However, such a provision is absolutely necessary given the fact that the Convention applies, ratione personae , to all children under the age of sixteen; the fact must be acknowledged that it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.
Pérez-Vera Report, ¶ 30.
"The Convention does not set an age at which a child is automatically considered to be sufficiently mature, rather the determination is to be made on a case-by-case basis." Tsai-Yi Yang , 499 F.3d at 279. A child's "generalized desire ... to remain in the United States ... [is] not necessarily sufficient to invoke the exception." Id. ; see also Gonzalez Locicero v. Nazor Lurashi , 321 F. Supp. 2d 295, 298 (D.P.R. 2004) ("The fact that the [thirteen-year-old] child prefers to remain in Puerto Rico, because he has good grades, has friends and enjoys sports activities and outings, is not enough for this Court to disregard the narrowness of the age and maturity exception to the Convention's rule of mandatory return."). Instead, the child must state "particularized objections to returning to" the country of his habitual residence. Id. ; see also Custodio , 842 F.3d at 1091 (concluding the district court did not clearly err in crediting the child's objection because the child had stated "particularized objections to returning to" his country of habitual residence). Likewise, "a child's ‘preference for one parent over another is insufficient.’ " Forcelli v. Smith , No. 20-699 (JRT/HB), 2020 WL 5015838, at *10 (D. Minn. Aug. 25, 2020) (quoting Vite-Cruz v. Sanchez , 360 F. Supp. 3d 346, 360 (D.S.C. 2018) ). Indeed, "[c]onsidering such a preference would place the Court in the position of deciding parental custody, which is ... explicitly not the mandate of a court hearing a wrongful retention case under the Hague Convention." Vite-Cruz , 360 F. Supp. 3d at 360 (citation omitted). Courts also must consider whether a child's views are " ‘the product of undue influence,’ in which case the ‘child's wishes’ should not be considered." Id. (citation omitted). "The child's objections can be the sole reason that a court refuses to order return, but when they are, the ‘court must apply a stricter standard in considering a child's wishes.’ " Custodio , 842 F.3d at 1089 (quoting Tsai-Yi Yang , 499 F.3d at 278 ).
Defendant contends the child, who just turned twelve last month, is of a sufficient age and maturity and objects to being returned to live with Plaintiff in Canada. In the Court's interview with N.J.B., N.J.B. stated he likes living in Camanche. He stated he does not want to live in Windsor because his brothers pick on him and make him do all of the chores. He further stated Camanche is "way better" because there are more things for him to do there, more things to learn at school, more friends in Camanche, and he is able to participate in more sports. However, N.J.B. admitted he forgot he played baseball in Windsor. N.J.B. also acknowledged he had friends in Windsor. N.J.B. said school in Windsor was "hard," and that he is "not really a city person" so living in Windsor "was difficult" for him. N.J.B. further stated he feels safe with both parents but that he feels safer with Defendant because Defendant took care of him while Plaintiff was in prison.
N.J.B. did not appear stressed or anxious about returning to Canada. He did, however, appear to have been coached. N.J.B. repeatedly stated Camanche provides him with a "better opportunity." N.J.B. also methodically covered the points of Defendant's arguments to why the child should remain here. And at the end of the interview, when the Court asked N.J.B. whether there was anything else the Court should know, N.J.B. stated that was all, but then quickly added that his brother was "failing in school" and that he was doing well in school in Camanche and could "really see a difference with [his] grades." See Watts v. Watts , No. 2:17-CV-1309-RJS, 2018 WL 10808728, at *16 (D. Utah Feb. 7, 2018), aff'd , 935 F.3d 1138 (10th Cir. 2019) (declining to conclude that the child "was coached" but nevertheless noting that "the particular idiomatic use of language and similar arguments calls in question whether [the child]’s preference to remain in the United States is her own, or whether it has been cemented by others"). The Court also believes there may be undue influence at play in this case. The parties discussed Defendant's purchase of a dirt bike for N.J.B. a few weeks before he was to return to Canada in August 2019. Defendant attempted to explain the purchase as "a good deal" to buy the bike for approximately $200, even though the bike "was garbage" and had "already broken." ECF No. 48 at 89. The Court is not persuaded by Defendant's explanation, especially considering his complaints about having to help pay smaller amounts to send the children back to Canada. ECF No. 42-14 at 1.
Plaintiff testified she did not believe N.J.B. was mature enough to make decisions affecting his future. ECF No. 48 at 77. She testified his priorities included friends and playing on the computer and that he is easily swayed by material items. Id. Plaintiff further testified she believed N.J.B. was very conflicted about his decision to stay and that part of the reason was that he felt guilty Defendant would be alone because his brothers returned to Windsor. Id. at 120. Defendant testified N.J.B. was highly mature and that N.J.B. knows right from wrong, he knows to stay on Defendant's property with the dirt bike, he completes his schoolwork on time, and he shows a lot of responsibility. Id. at 98. N.J.B.’s grandma testified N.J.B. is very mature and polite, id. at 112, and his great-grandma testified N.J.B. is smart, id. at 117.
The Court was impressed with N.J.B. He is bright, articulate, and friendly. On balance, however, the Court concludes it cannot give substantial weight to N.J.B.’s wishes. N.J.B.’s reasons for staying in Iowa were more generalized rather that particularized. He focused on school, friends, and sports. He has all of those things in Canada. He feels safe with both parents. Thus, to the extent it is appropriate to consider N.J.B.’s views, they do not foreclose his return to Canada. See Gonzalez Locicero v. Nazor Lurashi , 321 F. Supp. 2d at 298.
Defendant has failed to prove this defense by a preponderance of the evidence.
3. Grave Risk of Harm or Intolerable Situation
Defendant also contends there is a grave risk of physical and psychological harm should N.J.B. be returned to Canada. Article 13 of the Convention provides that a court "is not bound to order the return of the child if the person ... [who] opposes [the child's] return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). "There are two types of grave risk that are appropriate under Article 13(b): sending a child to a ‘zone of war, famine, or disease,’ or in cases of serious abuse or neglect." Silverman , 338 F.3d at 900 (quoting Friedrich , 78 F.3d at 1069 ). "Under Article 13(b), ‘grave’ means more than serious risk." Danaipour v. McLarey , 286 F.3d 1, 14 (1st Cir. 2002). Indeed, "[t]he bar for proving the ‘grave risk’ exception is set exceptionally high." Krefter v. Wills , 623 F. Supp. 2d 125, 135 (D. Mass. 2009). "[T]he harm must be a great deal more than minimal.... Not any harm will do nor may the level of risk of harm be low." Walsh v. Walsh , 221 F.3d 204, 218 (1st Cir. 2000) (citation omitted). "[I]n order to apply the Article 13(b) exception, the court would need to cite specific evidence of potential harm to the individual child[ ]." Silverman , 338 F.3d at 900.
Here, only the risk of serious abuse or neglect is at issue. Defendant argues the child was not appropriately supervised in Canada, he lacks friends in Canada and was becoming depressed, and the parties’ older children physically abuse and bully the child and Plaintiff has failed to prevent the abuse, creating a grave risk of harm or an intolerable situation. Defendant also seems to suggest Plaintiff's financial problems cause an intolerable situation.
The allegation of physical abuse stems from an incident in which Plaintiff assigned chores to all of the children, and one of the older children forced N.J.B. to do his chore of washing dishes. When N.J.B. refused, the older child pinched N.J.B.’s neck hard, purportedly leaving a scar. Defendant testified he was not aware of the abuse until summer 2019 when N.J.B. arrived in Iowa and told Defendant about the scar on his neck. ECF No. 48 at 107. Plaintiff testified she did not know about N.J.B.’s scar until Defendant raised allegations of abuse in this case. Id. at 121. Plaintiff also described another incident in which an older sibling threw a book at the door when N.J.B. tried entering his room without knocking. Id. at 73. She testified the incident involving chores was an isolated altercation and that generally, the children's behavior is that of normal siblings. Id. at 121. She further testified the children are all very close and enjoy spending time together. Id. In his interview with the Court, N.J.B. told the Court about the incident and his resulting scar, but he also stated he felt safe with both Defendant and Plaintiff. The Court acknowledges that sibling relationships can be difficult at times, but "[t]he gravity of risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes." Acosta v. Acosta , 725 F.3d 868, 876 (8th Cir. 2013) (quoting Van De Sande v. Van De Sande , 431 F.3d 567, 570 (7th Cir. 2005) ). Defendant has failed to prove that any harm his older children pose to N.J.B. is serious harm.
The Court also concludes Defendant's allegation that Plaintiff will not adequately supervise N.J.B. once he is returned has not been established. At the hearing, Plaintiff testified she currently spends every other weekend at the home of her significant other. Id. at 74. But she also testified she would never leave N.J.B. alone and that she would take him with her. Id. There is no grave risk of harm presented by this allegation either.
Regarding Defendant's allegation that N.J.B. was becoming depressed in Canada due to a lack of friends there, Defendant failed to enter into the record any such evidence. Instead, at the hearing Defendant testified he had enrolled N.J.B. in counseling only a month and a half before the hearing to help him deal with the anxiety and stress associated with returning to Canada. Id. at 97. In his interview with the Court, N.J.B. did not mention being depressed when he lived in Canada nor did he mention having high stress or anxiety caused by the thought of returning to Canada. There is no grave risk of psychological harm presented here.
Finally, the Court concludes there is no merit to Defendant's allegation that Plaintiff cannot financially afford to care for N.J.B. resulting in an intolerable situation. "Generally speaking, a mere shortage of money is not, on its own, sufficient to establish an ‘intolerable situation.’ " Krefter , 623 F. Supp. 2d at 136–37 (citing Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg. at 10,510 ("A review of deliberations on the Convention reveals that ‘intolerable situation’ was not intended to encompass return to a home where money is in short supply .... An example of an ‘intolerable situation’ is one in which a custodial parent sexually abuses a child.")); see also Munoz v. Ramirez , 923 F. Supp. 2d 931, 954 (W.D. Tex. 2013) ("[P]overty and economic hardship are not relevant factors to use when determining whether a court should use its discretionary power in not returning a child to his or her country of habitual residence."). There is no grave risk of harm presented here either.
Accordingly, Defendant has failed to prove by clear and convincing evidence that a grave risk of harm exists.
IV. CONCLUSION
The Court concludes Defendant has wrongfully retained N.J.B. in the United States since August 20, 2019, in violation of Plaintiff's custody rights. The Court further concludes Defendant has failed to prove any affirmative defenses preventing the child's return. Accordingly, N.J.B. shall be promptly returned to Canada.
It is obvious both parties care deeply about N.J.B. and his welfare. The Court cannot emphasize enough that this holding is not a custody determination. This Court's decision orders only that the child be returned to the country of his habitual residence—that is, Canada—for the Canadian courts to examine the issue of custody. It is the Court's hope that the parties will work together to ensure that N.J.B. is safely returned within a reasonable time.
V. ORDER
Based on the foregoing, it is the Order of this Court that:
1. Plaintiff Denisa Babcock's Verified Complaint seeking the Return of Minor Child (ECF No. 1) is hereby GRANTED.
2. The parties’ minor child, N.J.B., shall be RETURNED to Canada, at Defendant's expense, at a date and time mutually agreed upon by the parties. Defendant shall deliver N.J.B. to Plaintiff by personal vehicle at the Port of Entry between the United States and Canada that is closest to Windsor, Ontario.
3. Defendant is ordered to make all necessary arrangements associated with returning the child to Canada. If Defendant is unable or unwilling to accompany the child in keeping with this order, Defendant shall make other appropriate arrangements for the child to be safely accompanied during his return to Canada. However, N.J.B. may not be placed in the care or control of a third party for his return without the Court's express permission.
4. Defendant shall not—absent leave of the Court—remove N.J.B. from the Southern District of Iowa pending his return to Canada.
5. Counsel for Defendant shall file a notice with the Clerk of Court immediately upon N.J.B.’s arrival in Canada indicating that Defendant has fully complied with the terms of this Order.
6. No award of attorneys’ fees or other costs, apart from the aforementioned transportation costs associated with the child's return, will be made at this time. The Court will consider any separate petition regarding this issue that Plaintiff may file, upon motion properly made.
7. The Court will retain jurisdiction to enforce this order.
8. The Clerk of Court shall enter judgment accordingly. The Clerk shall release the minor child's passport to Defendant in preparation for the child's return to Canada.
IT IS SO ORDERED.