Maria L. Cole v. Peter G. Cole

Indianapolis, IN - Divorce lawyer represented Appellant with appealing the court's determination that her children should reside in Germany.

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The facts before the trial court were based only on a paper record.2 According to

the parties' submissions, Peter G. Cole ("Father”) is a citizen of the United

Kingdom. Mother is a citizen of the United States. In 2016, they were married.

Mother gave birth to J.M.C. in August 2017, and she gave birth to L.R.C. in

January 2019. The Children are both citizens of the United States. From 2017

to December 2020, the family lived together in an apartment in Germany.

[3] According to Father, in 2019 and 2020, he and Mother "had a number of

conversations about a trip to the United States and even the possibility of

moving there.” Appellant's App. Vol. 2 p. 198. Father "agreed” with Mother

that the family would take an indefinite, "'extended' vacation” to the United

States "to get a better idea about whether an actual move to the United States

1 The United States and Germany are both parties to the Hague Convention. Appellant's App. Vol. 2 p. 39.

Further, there is no dispute that the St. Joseph Circuit Court had subject matter jurisdiction over this cause

and personal jurisdiction over Mother, Father, and the Children for the purposes of determining the

Children's place of habitual residency. See Chafin v. Chafin, 568 U.S. 165, 169 (2013).

2 As the Supreme Court of the United States has stated, "whether at the [trial] or appellate court level, courts

can and should take steps to decide these cases as expeditiously as possible . . . .” Id. at 179. Indeed, the

United States Department of State filed a letter with the St. Joseph Circuit Court advising the court that the

Department "may inquire about delays in proceedings where judicial authorities have not reached a decision

within six weeks of the initiation of the proceedings.” Appellant's App. Vol. 2 p. 40 n.4.

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was something that might work.” Id. Mother and Father agreed that they would

live with Mother's mother in South Bend, Indiana, at least when they initially

came to the United States.

[4] Thus, in the summer of 2019, Father began the application process for a United

States Permanent Resident Card. In October 2019, Father emailed the United

States Consulate General's office in Frankfurt, Germany, with questions he had

while filling out the application. In his email, Father stated that the family was

"planning to move all together to Indiana in the USA as soon as we can, which

is where [Mother's] family lives.” Id. at 91. He asked if his German "pension

entitlement” would "transfer.” Id. He also asked if he needed a sponsor for his

application since his "wife and our children are in Germany with me and we all

will be moving back when I'm allowed to do so[.]” Id.

[5] In late October 2020, Father obtained his Permanent Resident Card. Mother

and Father then began to implement their agreement to move in with Mother's

parents in South Bend. Specifically, about one week after receiving his

Permanent Resident Card, Father terminated the lease for the family's

apartment in Germany. Between October and December, Mother and Father

liquidated numerous assets and arranged to have a significant portion, if not all,

of their remaining personal property shipped from Germany to South Bend. In

late November, Mother and Father further agreed to transfer more than

$94,000, the entirety of their financial savings less $20,000 in cash, to an

account in Mother's name at a bank in South Bend. Id. at 59, 198.

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[6] In mid-December, the family moved to South Bend. In a supplemental customs

declaration, Mother stated that the family's reason for entry into the United

States was "[m]oving back.” Appellant's App. Vol. 4 p. 186. In late December,

Mother and Father deposited the $20,000 in cash into the South Bend account.

Appellant's App. Vol. 2 p. 97. That same day, Father purchased a 2020

Chevrolet Tahoe for $43,388.38 in cash. Id. at 100. And, about one week later,

Father spent more than $3,000 on a new king-sized bed frame and mattress. Id.

at 107.

[7] Prior to leaving Germany, Mother and Father purchased eight weeks' worth of

travel health insurance to cover any medical needs the family might have upon

initially coming into the United States. Still, Mother and Father registered with

the German government a new apartment in Monheim am Rhein, Germany, as

their home address, and "[a]ll four members” of the family continued to have

valid, and, later, renewed, health insurance when in Germany. Id. at 198. In the

United States, however, Mother and Father held out Mother's parent's address

in South Bend as their home address. Id. at 59. As Mother explained, "[t]his

allowed us time to obtain jobs and purchase or lease a home without a rent or

mortgage payment.” Id.

[8] After moving to the United States, Father encountered difficulties with

obtaining a Social Security card and, relatedly, employment. In January 2021,

the local Social Security office "asked [Father] to mail his passport and

[Permanent Resident Card] to verify his identity since physical offices were

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closed.” Id. at 60. Father "refused to send his passport, causing the process to

stall” and rendering him unable "to seek employment.” Id.

[9] Near the end of January, Father stated that he wanted to return the family to

Germany. Mother disagreed and asked him "to give this relocation a real

chance.” Id. Father believed that he and Mother had agreed that the family's

indefinite "vacation” to the United States would end if "either one of us wished

to return to Germany,” in which case Father thought "the family would do

that.” Id. at 198. Mother did not share Father's understanding of their

agreement.

[10] In mid-February, Father returned to Germany. According to Father, his

February return to Germany "was planned before” the family left for the

United States in December because Father knew he would have to attend to

"legal matters that required [his] return.” Id. at 198-99. While Father was in

Germany in February and March, the Children remained with Mother in South

Bend, and Mother and Father continued to discuss, and disagree, on whether to

return the family to Germany. Id. at 199.

[11] Father returned to the United States in early April. He rented his own

apartment in South Bend. Id. at 112. He then resumed his attempts to obtain a

new Social Security card and employment in the United States. Id. However,

his attempts continued to be unsuccessful, and in late May, after Father had

"stayed . . . for as long as [he could] financially afford to,” he returned to

Germany. Id. at 61, 199.

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[12] Meanwhile, Mother obtained employment in South Bend teaching third grade.

J.M.C. is enrolled in full-day preschool where Mother teaches, and L.R.C.

attends daycare near where Mother teaches. In June 2021, Father petitioned for

divorce in a German court and Mother petitioned for dissolution of the

marriage in an Indiana court.

[13] On July 15, 2021, more than seven months after the Children had moved to

South Bend, Father filed his complaint and petition for the return of the

Children to Germany under the Hague Convention and ICARA in the St.

Joseph Circuit Court, which petition Father later amended. After receiving the

parties' evidentiary submissions, the trial court concluded that the Children's

place of "habitual residence” was Germany and that Mother had wrongfully

retained the Children in the United States. Id. at 10. In reaching its conclusion,

the trial court relied significantly on Father's return to Germany in February

2021, and the court found that a determination of the Children's habitual

residence was "not so much” concerned "with the intent of the parties.” Id. at

12, 15.

[14] The trial court stayed its judgment pending appeal, and this appeal ensued.

Standard of Review

[15] Although the trial court entered findings of fact and conclusions thereon, the

court's judgment is based entirely on a paper record. "We review de novo a trial

court's ruling” where "the facts before the court are disputed and the trial court

rules on a paper record.” Pilkington v. Pilkington, 71 N.E.3d 865, 868 (Ind. Ct.

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App.), adopted, 80 N.E.3d 886, 888 (Ind. 2017). "Under such circumstances[,] a

court of review is in as good a position as the trial court to determine” the facts.

Id.

[16] Further, Father has not filed an Appellee's Brief in response to Mother's

arguments on appeal. Accordingly, "the trial court's judgment will be reversed”

if Mother establishes "prima facie error.” In re Paternity of B.Y., 159 N.E.3d 575,

578 (Ind. 2020). "Prima facie error in this context is defined as, 'at first sight, on

first appearance, or on the face of it.'” Trinity Homes, LLC v. Fang, 848 N.E.2d

1065, 1068 (Ind. 2006) (citation omitted).

Discussion and Decision

[17] Under the Hague Convention, "a child wrongfully removed from her country

of 'habitual residence' ordinarily must be returned to that country.” Monasky v.

Taglieri, 140 S. Ct. 719, 723 (2020). The Hague Convention, as implemented in

the United States through ICARA, seeks to address "the problem of

international child abductions during domestic disputes,” and it operates on the

"core premise that the interests of children in matters relating to their custody

are best served when custody decisions are made in the child's country of

habitual residence.” Id. (cleaned up).

[18] The Supreme Court of the United States recently clarified the standard to be

used in determining a child's place of habitual residence:

The Hague Convention does not define the term "habitual

residence.” A child "resides” where she lives. See Black's Law

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Dictionary 1176 (5th ed. 1979). Her residence in a particular country

can be deemed "habitual,” however, only when her residence there is

more than transitory. "Habitual” implies "[c]ustomary, usual, of

the nature of a habit.” Id., at 640. The Hague Convention's text

alone does not definitively tell us what makes a child's residence

sufficiently enduring to be deemed "habitual.” It surely does not

say that habitual residence depends on an actual agreement

between a child's parents. But the term "habitual” does suggest a

fact-sensitive inquiry, not a categorical one.

* * *

Because locating a child's home is a fact-driven inquiry, courts

must be "sensitive to the unique circumstances of the case and

informed by common sense.” Redmond[ v. Redmond], 724 F.3d

[729,] 744[ (7th Cir. 2013)]. For older children capable of

acclimating to their surroundings, courts have long recognized,

facts indicating acclimatization will be highly relevant. Because

children, especially those too young or otherwise unable to

acclimate, depend on their parents as caregivers, the intentions and

circumstances of caregiving parents are relevant considerations. No

single fact, however, is dispositive across all cases. Common

sense suggests that some cases will be straightforward: Where a

child has lived in one place with her family indefinitely, that

place is likely to be her habitual residence. But suppose, for

instance, that an infant lived in a country only because a

caregiving parent had been coerced into remaining there. Those

circumstances should figure in the calculus. See Karkkainen[ v.

Kovalchuk], 445 F.3d [280,] 291[ (3d Cir. 2006)] ("The inquiry

into a child's habitual residence is a fact-intensive determination

that cannot be reduced to a predetermined formula and

necessarily varies with the circumstances of each case.”).

Id. at 726-27 (emphases added; footnote omitted). The Court added:

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Facts courts have considered [in determining a child's habitual

residence] include: "a change in geography combined with the

passage of an appreciable period of time,” "age of the child,”

"immigration status of child and parent,” "academic activities,”

"social engagements,” "participation in sports programs and

excursions,” "meaningful connections with the people and places

in the child's new country,” "language proficiency,” and

"location of personal belongings.”

Id. at 727 n.3 (quoting Federal Judicial Center, J. Garbolino, The 1980 Hague

Convention on the Civil Aspects of International Child Abduction: A Guide for

Judges 67-68 (2d ed. 2015)). The Court further noted the likely importance of

"facts indicating that the parents have made their home in a particular place.”

Id. at 729.

[19] We conclude that the parties' evidentiary submissions demonstrate that, by the

time of Father's July 15, 2021, petition under the Hague Convention and

ICARA, the Children's place of habitual residence was South Bend. The

Children moved to South Bend in December 2020 by agreement of both Mother

and Father. While Mother and Father may have not seen eye-to-eye with

respect to the circumstances under which the family might return to Germany,

the facts are clear that Mother and Father both saw the family's move to the

United States as indefinite and at least possibly permanent. After discussing the

possibility of moving permanently to the United States with Mother in 2019,

Father engaged in a more-than-one-year-long process of obtaining a Permanent

Resident Card to live in the United States with his citizen-wife and Children.

Within about one week of obtaining his Permanent Resident Card, Father

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terminated the lease to the family's apartment in Germany; he agreed to

liquidate a substantial portion of the family's assets; he agreed to ship, at

significant cost, the vast majority of the family's remaining personal property

from Germany to the United States; and he agreed to deposit the entirety of the

family's financial assets into an account in South Bend. And, shortly after

arriving in the United States, Father purchased a vehicle for more than $43,000

in cash and spent more than $3,000 on a new bed frame and mattress. These are

not actions one typically takes when he sees his or his family's residence in a

location as transitory.

[20] Likewise, while Father might have believed the family would return to

Germany upon the sudden wish of either parent despite the substantial

investments the family had made in moving to the United States, Mother and

Father had no definite plan to ever return the family to Germany when they left

for the United States. While they may have kept an apartment in Germany and

German benefits, they actively held themselves out as residents of South Bend.

Father admitted that his return to Germany in February 2021 had been planned

well before the family left Germany in December 2020. He admitted that, while

in Germany in February and March 2021, he and Mother continued to discuss

whether to move the family back to Germany. He admitted that he returned to

the United States in April 2021, obtained an apartment, and resumed his

attempts to obtain a Social Security card and employment in the United States.

These circumstances reflect that the parties intended to make the United States

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their home when they moved in December 2020, and only afterward did Father

change his mind about it.

[21] Additional undisputed facts support the conclusion that the Children's place of

habitual residence is South Bend. The Children lived in South Bend, with their

Mother and their maternal grandmother, for more than seven months before

Father filed his petition under the Hague Convention and ICARA. Mother is

now employed in South Bend, teaching third grade. J.M.C. is currently four

years old and goes to preschool where Mother teaches. L.R.C. is currently three

years old and goes to daycare near Mother's school. And most of the family's

personal belongings are in South Bend with Mother and the Children.

[22] In its order, the trial court minimized the intent of the parties in moving to the

United States in December 2020 and unduly emphasized Father's wishes in

January and February 2021. The trial court failed to consider Father's

undisputed evidence that his return to Germany at that time had been longplanned; that Father returned to the United States in April 2021 and resumed

his attempts to obtain a Social Security card and employment; and that the

Children had been in the United States, as intended by both parties, for more

than seven months at the time of Father's filing and with no definite end-date in

mind by the parties when they moved the Children here.

[23] Accordingly, we conclude that Mother has demonstrated prima facie error in the

trial court's judgment. We hold that the parties' evidentiary submissions

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establish that the Children's place of habitual residence is South Bend, Indiana,

and not Germany.

We therefore reverse the trial court’s judgment.