Dick Malmgren v. Lisha Malmgren ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2200
DICK GORAN MALMGREN,
Petitioner - Appellant,
v.
LISHA CHEVONNE MALMGREN,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-cv-00287-BO)
Submitted: December 28, 2018 Decided: January 16, 2019
Before KING and HARRIS, Circuit Judges, and SHEDD, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Derrick J. Hensley, LAW OFFICE OF DERRICK J. HENSLEY, PLLC, Chapel Hill,
North Carolina, for Appellant. Lisha Chevonne Malmgren, Raleigh, North Carolina, Pro
Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dick Goran Malmgren (“the father”) filed a petition for the return of his daughter
under the Hague Convention on the Civil Aspects of International Child Abduction
(“Hague Convention” or “Convention”), and the International Child Abduction Remedies
Act, 22 U.S.C. §§ 9001 et seq. (2012), against Lisha Chevonne Malmgren (“the mother”).
The district court determined that the child had been wrongfully removed from Sweden,
her country of habitual residence, but because she was well settled in the United States,
the court denied the petition and did not order that the child be returned to Sweden. On
appeal, the father argues that the court erred as a matter of law in finding that it could
apply the “well-settled” defense under Article 12 of the Hague Convention. The father
also contends that, even if the court retained discretion to consider the defense, the court
abused its discretion in weighing the equities. We vacate and remand for further
proceedings consistent with this opinion.
“The goals of the Hague Convention are ‘to secure the prompt return of children
wrongfully removed to or retained in any Contracting State; and . . . to ensure that rights
of custody and of access under the law of one Contracting State are effectively respected
in the other Contracting States.’” Smedley v. Smedley, 772 F.3d 184, 186 (4th Cir. 2014)
(quoting Convention, art. 1, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98). The
primary purpose of the Hague Convention is to “preserve the status quo and to deter
parents from crossing international boundaries in search of a more sympathetic court.”
Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (internal quotation marks omitted).
While the Convention does not permit courts to consider underlying custody claims,
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courts can consider whether the removal of the child is wrongful because it breaches a
parent’s right of custody. Smedley, 772 F.3d at 186. If the removal or retention of the
child “is found wrongful . . . the child must be returned unless certain defenses apply.”
Id. at 186-87; see also Convention, arts. 12, 13, 20.
We review the district court’s factual findings for clear error and review de novo
the court’s conclusions regarding principles of domestic, foreign, and international law.
Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). Article 12 of the Convention directs
that when a child has been wrongfully removed or retained, the Contracting State shall
order the prompt return of a child to his or her country of habitual residence if less than a
year has elapsed between the wrongful removal or retention and the commencement of
the proceeding, unless one of the enumerated exceptions applies. Convention, art. 12. If
the petition is not filed within one year of the child’s removal, the court “shall also order
the return of the child, unless it is demonstrated that the child is now settled in its new
environment.” Id. “[F]or a child to be settled within the meaning of the Convention, the
child must have significant connections demonstrating a secure, stable, and permanent
life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir.
2016).
The “well-settled” defense, however, is not applicable if the petition was filed
within one year after the wrongful removal or detention. Article 12 states “[t]he general
rule that when a court receives a petition for return within one year after the child’s
wrongful removal, the court shall order the return of the child forthwith.” Lozano v.
Alvarez, 572 U.S. 1, 5 (2014) (internal quotation marks omitted); see also Miller, 240
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F.3d at 402 n.14 (finding that “the ‘well-settled’ defense [] has no application” because
“the petition was filed within a year of the wrongful removal”).
Here, the district court found that the father established that the child was
wrongfully removed from her habitual place of residence in violation of his custody
rights. See Bader v. Kramer, 445 F.3d 346, 349 (4th Cir. 2006) (in order to secure return
of child, petitioner must prove child was wrongfully removed). Nevertheless, the court
allowed the mother to establish that the child is now well settled in the United States,
reasoning that it could consider this defense because the father unreasonably delayed in
filing the petition for return even though it was filed within the one-year period. Finding
that it had equitable discretion to consider the mother’s “well-settled” defense even when
the petition was filed within one year of the wrongful removal, the court determined that
the mother established this defense and thereby denied the father’s petition.
The district court’s finding that it could consider the “well-settled” defense even if
the petition was filed within the one-year timeframe is not supported by the Convention
or case law analyzing the relevant articles. See Convention, art. 12; Lozano, 572 U.S. at
5. It is mandatory under Article 12 that if the court determines that the petition for return
is filed within one year of removal, with exceptions that are not relevant here, the child
must be returned to her country of habitual residence. Miller, 240 F.3d at 402 n.14.
Accordingly, we vacate the district court’s order denying the petition for return and direct
the district court on remand to expeditiously grant the petition for return and order the
prompt return of the child to Sweden, her country of habitual residence.
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We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED
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