Adkins v. Adkins

Background

Artemiz Adkins petitioned for the return of her daughter, A.F.A., to Switzerland under the Hague Convention on the Civil Aspects of International Child Abduction, as implemented by the International Child Abduction Remedies Act. Garrett Adkins was the respondent. The court held an evidentiary hearing and considered testimony, declarations, exhibits, the verified petition, the response, and the parties’ trial briefs.

The parties married in 2005 and lived together in Scottsdale, Arizona. A.F.A. was born in 2014. In 2016, the parties decided to move to Switzerland after researching employment, education, healthcare, pensions, and quality of life there. Artemiz sold her Arizona dental practice, accepted a full-time position with the Straumann Group in Basel, and moved with Garrett and A.F.A. to Switzerland in late October 2017.

The family obtained Swiss residence permits and initially lived in temporary corporate housing. In January 2018, they signed an ongoing lease for a home in Basel. A.F.A. lived in Switzerland continuously from November 2017 through December 2018, attended daycare there, developed social connections, and was expected to attend a German-speaking kindergarten in Basel.

The parties separated in December 2018. They agreed that A.F.A. would live with Artemiz in Switzerland and attend school there, while Garrett planned to return to California. Garrett left Switzerland voluntarily on January 31, 2019, helped register A.F.A. for kindergarten, and shared temporary parenting time with Artemiz while A.F.A. traveled between Switzerland and the United States. In July 2019, A.F.A. went to visit Garrett in the United States. In August, Garrett informed Artemiz through his attorney that he would not return A.F.A. unless Artemiz agreed not to enroll her in formal schooling in Switzerland.

Legal standard

The Hague Convention generally requires a child under 16 to be promptly returned to the child’s country of habitual residence when the child was wrongfully removed or retained, unless a recognized exception applies. The proceeding does not decide which parent should have custody. Instead, custody issues are left to the courts of the child’s habitual residence.

To obtain a return order, a petitioner must prove by a preponderance of the evidence that the child was wrongfully removed or retained. The court applied the Ninth Circuit’s four-part inquiry: when the retention occurred; where the child was habitually resident immediately beforehand; whether the retention breached the petitioner’s custody rights under that country’s law; and whether the petitioner was exercising those rights.

Habitual residence

The court identified A.F.A.’s habitual residence as the central issue. Under the Ninth Circuit’s framework, the court looked primarily for the parents’ last shared, settled intent to abandon the prior habitual residence. The court also considered whether objective facts showed that A.F.A. had become acclimatized to the United States so firmly that her habitual residence had changed.

The court found that Artemiz and Garrett shared a settled intent to abandon the United States when they moved to Switzerland. The court relied on the sale of Artemiz’s dental practice, the cancellation of her professional liability insurance, the parties’ employment searches in Switzerland, Artemiz’s continuing job with the Straumann Group, the family’s Swiss residence permits, their indefinite-term Basel lease, and their efforts to establish A.F.A.’s daycare and kindergarten arrangements there.

The court rejected Garrett’s testimony that the move was only a temporary trial or depended on his finding employment in Switzerland. It found that he had actively sought Swiss employment and had told prospective employers that he was living with his family in Switzerland on a permanent basis. The court found that the parties intended to raise A.F.A. in Switzerland and live there for the foreseeable future. It determined that January 2019 was the last point at which the parties had a shared, settled intent about A.F.A.’s habitual residence, and that they then intended for her to live and attend school in Switzerland.

The court also rejected the argument that A.F.A. had become habitually resident in the United States through acclimatization. Although Garrett testified that A.F.A. was thriving in the United States and was close to his family there, the court found that the months she spent in the United States and her positive experiences there did not establish unequivocally that her habitual residence had changed from Switzerland.

Wrongful retention and custody rights

The court found that Garrett retained A.F.A. in the United States during her August 2019 visit. Because Switzerland was A.F.A.’s habitual residence, the court concluded that the retention was wrongful. The court found no basis to conclude that Artemiz and Garrett did not have joint custody at the time of the retention. It also found that Artemiz was exercising her custody rights because she stayed in contact with A.F.A. and urged Garrett to return her for kindergarten, which was scheduled to begin on August 12, 2019.

Disposition

The court GRANTED the petition. It ordered that A.F.A. be returned to Switzerland within 14 days of the order and remain there until Swiss courts could resolve the custody issues. The court also stated that Artemiz could file a motion to recover fees and costs incurred in bringing the petition. The Clerk was directed to enter judgment for Artemiz and close the case.