Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 C 2967--Samuel Der-Yeghiayan, Judge.
The opinion of the court was delivered by: Wood, Circuit Judge.
ARGUED SEPTEMBER 11, 2012
Before BAUER, POSNER, and WOOD, Circuit Judges.
Iain Walker, a citizen of Australia, filed this suit under the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq., in an effort to compel his wife, Norene, a citizen of the United States, to return the couple's three children to Australia. ICARA implements the Hague Convention on the Civil Aspects of International Child Abduction (the Conven- tion), T.I.A.S. No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980).
The Convention, to which both the United States and Australia are parties, "entitles a person whose child has wrongfully been [retained in] the United States . . . to petition for return of the child to the child's country of 'habitual residence,' unless certain exceptions apply." Norinder v. Fuentes, 657 F.3d 526, 529 (7th Cir. 2011).
The district court denied Iain's petition. It found that notwithstanding the fact that the Walker family lived in Australia from 1998 until 2010, the children's habitual residence had become the United States by the time Iain filed his petition. In addition, as the court saw it, Norene's act of keeping the children in the United States could not have been "wrongful" within the meaning of the Convention for two reasons: first, Iain was not exercising his custody rights at the relevant time; and, second, Iain had consented to the children's remaining in the United States permanently. Iain challenges all of these rulings on appeal. We conclude that the record does not support the court's decision and that a remand is neces- sary before the case can be resolved.
Iain and Norene were married in Chicago in 1993.
They lived in Seattle, Washington, until 1998 when they moved to Perth, in Western Australia. The couple's eldest child was born in the United States in 1997, but lived in this country only one year; the two younger children were born in Australia in 1999 and 2001.
Although Norene testified that she and Iain initially intended to stay in Australia for only five years, they ended up spending 12 years there. Over this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children.
In June 2010, the Walkers traveled to the United States. When they left Australia, both Iain and Norene ex- pected that Norene and the children would remain in the United States for six months to one year. There the common ground ends. According to Iain, the plan was for Norene and the children to live with Norene's parents in Chicago while the family demolished its existing house in Perth and built a new one. According to Norene, the trip was intended as an extended prelude to a permanent move to the United States; she testified (a bit inconsistently, it seems to us) that Iain promised to look for a job in Chicago and that they looked at real estate in San Francisco and Seattle. Although both recalled that Norene and the children had concrete plans to return to Australia by June 2011 at the latest, Norene labeled this most likely a temporary visit and Iain under- stood it to be a permanent return. After spending several weeks with Norene and the children in the United States, Iain returned to Australia in late July 2010.
As may be apparent, all was not well with the marriage. In November, Norene filed for divorce in Cook County, Illinois. As of that time, she said, she had not made up her mind whether she (and presumably the children) would remain in the United States permanently or return to Australia.
Upon receiving Norene's petition for divorce, Iain's lawyer in Australia sent a letter to Norene's attorney offering to settle the divorce out of court. The lawyer described the letter, which was transmitted on January 21, 2011, as a "once off attempt to have all outstanding matters resolved." In it he made, "on a without prejudice basis," certain proposals that were expressly conditioned on Norene's acceptance of Iain's offer. For example, in exchange for granting primary custody to Norene and allowing the children to remain in the United States, Iain wanted to be guaranteed custody of the children for the full nine weeks of their summer vacation and for two weeks over the Christmas holidays; he further requested that he be allowed to visit the children in the United States at least twice a year. The letter also dealt with the division of property.
Notably, the letter explicitly referred to the Hague Convention. On Iain's behalf, the lawyer asserted that "[t]he parties' habitual residence is quite clearly Austra- lia," and that Iain "would clearly be entitled to bring an Application under the Hague Convention to have the children returned to Australia." In closing, the letter stated "this offer is open for a period of 7 days . . . and if not accepted [Iain] will then proceed to exercise his full rights pursuant to the Hague Convention, and do all that is required to ensure that proceedings are transferred" to the Family Court of the State of Western Australia.
The January 21 letter marked a turning point for Norene. She regarded it as giving her permission to stay in the United States and indicating that Iain "didn't want the kids." She testified that shortly after receiving the letter, she made up her mind not to return to Austra- lia. Norene did not, however, accept Iain's offer of settlement; after an exchange of several more letters, the negotiations ended without a resolution in mid-February. Iain immediately filed a request for the return of the children with the Australian Central Authority charged with administering the Convention. In May, Iain filed a petition for return in the district court for the Northern District of Illinois.
Following a two-day evidentiary hearing, the district court denied the petition. This appeal followed.
Before discussing the merits of the district court's decision, we must address two preliminary issues. First, Norene argues that this case was mooted by an Illinois state-court judgment awarding sole custody of the children to Norene. According to Norene, the Illinois judgment conclusively resolves the parties' custody dispute in her favor and thus precludes this court from ruling that the Hague Convention requires the custody determination to occur in the courts of Australia.
Norene is mistaken: the case is not moot. Article 17 of the Hague Convention expressly states that "[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention." (Emphasis added.) This treaty provision qualifies the finality of any state-court custody judgment and thus ensures that there is still a live controversy before the federal court.
Norene relies on Navani v. Shahani, 496 F.3d 1121 (10th Cir. 2007), for the proposition that an order granting custody to one or another of the parents can moot a Hague Convention case, but Navani did not speak to this question. Indeed, the issue of habitual resi- dence--and thus the question of which country's courts had the power finally to determine custody under the Convention--was not before the court in Navani; all parties agreed that the child's habitual residence was England. Rather, the question on appeal was whether the U.S. court that adjudicated the father's petition for return erred in concluding that an English custody order granted some custody rights to the father. Id. at 1125-26. While the appeal was pending, an English court entered a new custody order that granted the father sole custody. Id. at 1126. The Tenth Circuit con- cluded that this superseding custody order mooted the appeal--both because any possible error in the inter- pretation of the previous order was no longer of any moment ...