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Fink v. Walker

January 10, 2007


The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge


On October 19, 2006, Denise Fink (Fink) filed a petition for return of child and motion for issuance of a warrant in lieu of a writ of habeas corpus pursuant to The Convention on the Civil Aspects of International Abduction, done at the Hague on October 25, 1980 (the Convention) and the International Child Abduction Remedies Act (the Act), 42 U.S.C. § 11601 et seq. (Docs. 2, 3). The Court held a hearing on Fink's motion on October 26, 2006, and issued a warrant pursuant to her request. United States Marshals executed the warrant that day and brought Fink's son, Aron James Brent Fink (Aron), before this Court. The Court held another hearing that afternoon, a hearing the next day and a final hearing on October 31. At the conclusion of the hearing on October 31, the Court granted Fink's petition for return of child and allowed Fink to take Aron back to Germany, the country of his birth.*fn1 The Court now states its reasons.


I. The Convention

A. General Provisions

The purpose of the Convention is to implement an effective deterrent to the practice of parental kidnapping. Feder v. Evans-Feder, 63 F.3d 217, 221 (3d Cir. 1995). Its approach to the problem is straightforward; "[i]t is designed to restore the 'factual' status quo which is unilaterally altered when a parent abducts a child and protect the legal custody rights of the non-abducting parent." Id. Principally, it mandates the return of the child "to his or her circumstances prior to the abduction if one parent's removal of the child from or retention in a Contracting state has violated the custody rights of the other." Id. The Convention deprives an abduction of any jurisdictional consequences because its signatories agree to send a child wrongfully removed to the place of removal without making any determinations on the underlying custody of the child. Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).

To succeed on a petition under the Convention, a petitioner must establish by a preponderance of the evidence that the respondent "wrongfully removed or retained" a child within the meaning of the Convention. 42 U.S.C. § 11603(e)(1)(A). The removal or retention of a child is wrongful where: "(a) it is in breach of custody rights attributed to a person . . . 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 the removal or retention those rights were actually exercised . . . or would have been exercised but for the removal or retention." Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10494, 10505 (1986); Koch, 450 F.3d at 712.

The Third Circuit has stated the following working definition of habitual residence: "the place where [the child] has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective." Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004); see also Koch, 450 F.3d at 715-19.*fn2

Once the petitioner meets her initial burden, the burden shifts to the respondent (assuming he wishes to keep the child) to show "by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies" or "by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies." 42 U.S.C. § 11603(e)(2)(A), (B).*fn3

B. Extraordinary Measures: Removal of a Child from Respondent without Notice

Pursuant to 42 U.S.C. § 11604(a), a court having jurisdiction under the Act "may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition." A court cannot order a child removed from the person having physical control of the child unless it does so in accordance with state law. Id. at § 11604(b).

i. Illinois Law

Under 750 ILCS 36/311(a), "[u]pon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this State." If, after hearing testimony from the petitioner, a court is satisfied that the child is "imminently likely to . . . be removed from this State, [that court] may issue a warrant to take physical custody of the child." Id. at 36/311(b). In such cases, "the petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible." Id. (emphasis added).*fn4

The respondent must also be served with the petition, warrant and order immediately after the child is taken into ...

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