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In re Application of Stead

United States District Court, D. Colorado

December 29, 2014

IN RE THE APPLICATION OF ANTHONY LEIGH STEAD, Plaintiff/Petitioner
v.
DAVINA MENDUNO, Defendant/Respondent

Page 1030

[Copyrighted Material Omitted]

Page 1031

For Anthony Leigh Stead, actually named as In Re the Applications of Anthony Leigh Stead, Petitioner: Jeffrey Matthew Connor, John David Cadkin, Miranda C. Rogers, Kristopher L. Reed, Kilpatrick Townsend & Stockton, LLP-Denver, Denver, CO.

For Davina Menduno, Respondent: Andrew John Helm, Charles Goldberg, Nathaniel Scott Barker, Lewis Roca Rothgerber LLP-Denver, Denver, CO.

Page 1032

ORDER

PHILIP A. BRIMMER, United States District Judge.

This matter comes before the Court on Petitioner Anthony Leigh Stead's Petition for Return of the Child (the " petition" ) brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the " Convention" )[1] and

Page 1033

the International Child Abduction Remedies Act (" ICARA" ), 22 U.S.C. § 9001 et seq. The Court held an evidentiary hearing on the petition on December 18-19, 2014. Both parties presented testimony and tendered exhibits. The Court has jurisdiction pursuant to 22 U.S.C. § 9003(a) and 28 U.S.C. § 1331. For the reasons outlined at the hearing, the Court granted the petition. The Court makes the following supplemental findings.

A.C.S. was born to petitioner, a New Zealand citizen, and respondent, a United States citizen, on October 21, 2011. Petitioner Ex. 4. Petitioner and respondent lived together during respondent's pregnancy, but separated shortly after A.C.S.'s birth, after which time respondent served as A.C.S.'s primary caretaker. After petitioner and respondent separated in early 2012, petitioner provided approximately $200 per week in financial support for respondent and A.C.S. until approximately October 2012. After October 2012, petitioner ceased providing financial support and instead began caring for A.C.S. during much of the day so that respondent could work.

In May 2013, respondent brought A.C.S. to the United States with petitioner's consent so that A.C.S. could meet respondent's family. Respondent bought a round-trip ticket with a return date of September 29, 2013. Before giving his consent to the overseas trip, petitioner demanded assurances that respondent would return to New Zealand with A.C.S. no later than September 2013. Respondent gave such assurances.

Between May and September 2013, petitioner had no contact with A.C.S., though respondent remained in contact with petitioner's family and provided periodic updates on their trip. On September 23, 2013, respondent informed petitioner's mother that she and A.C.S. would not be returning to New Zealand as she originally promised. On November 4, 2013, petitioner filed in New Zealand an Application in Accordance with the Hague Convention on the Civil Aspects of International Child Abduction for the Return of Child Abducted from New Zealand. Petitioner's Ex. 1 at 27-31. Subsequently, petitioner retained counsel in the United States and brought this action.

I. ANALYSIS

A. Petitioner's Prima Facie Case

As a preliminary matter, the parties stipulate that A.C.S. is under the age of sixteen and that both New Zealand and the United States are signatories to the Convention. Thus, there is no dispute that the Convention applies in this matter.

ICARA provides that " [c]hildren who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies." 22 U.S.C. § 9001(a)(4). To establish wrongful removal, " [p]etitioner's prima facie case consist[s] of three elements[:] (1) the child[] habitually resided in [New Zealand] at the time of the[] retention, (2) such retention breached petitioner's custody rights under the law of [New Zealand], and (3) [p]etitioner was exercising those rights at the time of retention." West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). Petitioner has the burden to prove that ...


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