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Mark A. GARNER, Plaintiff-Petitioner, v. Jayne HARRIS, Defendant-Respondent.
ORDER ON FINDINGS OF FACT AND CONCLUSIONS OF LAW
Petitioner Mark A. Garner (“Mr. Garner”) filed a Verified Complaint and Petition on July 22, 2022, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 22514 U.N.T.S. 98 (the “Convention”), and its implementing United States legislation, the International Child Abduction Remedies Act (the “ICARA”). 22 U.S.C. §§ 9001–9011. [Dkt. 1]. Mr. Garner seeks the return of his two minor sons, R.G.H. and H.G.H. (the “Children”), asserting that Respondent Jayne Folsom (“Ms. Folsom”)1 wrongfully removed them from the United Kingdom (“U.K.”) to the United States. Id.
On July 29, 2022, the Court issued a Temporary Restraining Order against Ms. Folsom. [Dkt. 17]. The Court took possession of Ms. Folsom's and the Children's passports and ordered that the Children not be removed from the jurisdiction of the Court. Id. at 9. The Court further ordered that a hearing on the merits of Mr. Garner's Petition be advanced and consolidated with a preliminary injunction hearing pursuant to Federal Rule of Civil Procedure 65(a)(2). Id. at 9–10.
Beginning on September 19, 2022, the Court held a four-day hearing on the merits of Mr. Garner's Petition, during which time the Court received documentary evidence and sworn testimony. [Dkt. 71]. After considering the evidence, weight and credibility of testimony presented,2 and applicable law, the Court DENIES Mr. Garner's Petition. Pursuant to Federal Rule of Civil Procedure 52(a)(1), the Court enters its findings of fact and conclusions of law.3
I. FINDINGS OF FACT
Mr. Garner and Ms. Folsom are U.K. citizens.4 They were unmarried partners for nearly thirty years. During that time, they raised five children. Two of their children, R.G.H. and H.G.H., are the subject of this Petition. Mr. Garner and Ms. Folsom are the biological parents of R.G.H. and H.G.H.5 Both parents are listed on R.G.H. and H.G.H.’s birth certificates.6 R.G.H. is fifteen years old.7 H.G.H. is eleven years old.8 R.G.H. and H.G.H. were born in England and are U.K. citizens.9 Mr. Garner and Ms. Folsom's other three children who are now adults—Luke Garner-Harris (“Luke”), Paige Garner-Harris (“Paige”), and Kruiz Garner-Harris (“Kruiz”)—resided in the same household as R.G.H. and H.G.H. at various points in time.10
B. The Children's Lives in the U.K.
Although Mr. Garner and Ms. Folsom were separated, Mr. Garner continued living in Ms. Folsom's house with their children until June 2021.11 Over the years, Mr. Garner's mental instability, alcohol and drug abuse, anger problems, and suicidal nature frequently materialized into violent outbursts and controlling behavior. Indeed, Mr. Garner subjected his family to a pattern of horrific physical and psychological abuse.
1. Mr. Garner's Mental Instability
Mr. Garner has depression and anxiety.12 His depression is so severe that he cannot work. Instead, Mr. Garner relies on mental disability benefits from the U.K. government as his source of income.13 Mr. Garner is prescribed Venlafaxine and Mirtazapine to help control his depression and anxiety.14 But Mr. Garner, in contradiction with his doctor's instructions, no longer takes his antidepressant, Venlafaxine.15 Despite his mental-health issues, Mr. Garner regularly drinks alcohol and smokes marijuana. In fact, each of Mr. Garner's children testified that while Mr. Garner lived in Ms. Folsom's house, he spent most of the day in his room drinking beer and/or smoking marijuana.16 Several of his children testified that Mr. Garner's alcohol and marijuana use exacerbated his erratic and violent behavior.17 Mr. Garner, who believes drinking alcohol helps him with his mental-health issues, continues to drink beer and smoke marijuana to this day.18 Mr. Garner has not informed his medical providers that he stopped taking his medication and continues to consume alcohol and marijuana.19
Mr. Garner's diary, titled “The Evil Within,” provides clear evidence of his angry, vengeful, and suicidal nature.20 In a series of entries dated March 22, and March 24, 2021, Mr. Garner wrote:
(1) “HATRED FOR EVERYONE→(JAYNE; KRUIZ)”
(2) “I F*CKING HATE KRUIZ! WISH SHE WAS NEVER BORN!! DIRTY TWO FACED B*TCH!! JUST LIKE YOUR MOM! F*CKING HATE HER TOO!!!”
(3) “I AM DRINKING EVERY DAY JUST TO NUMB THE PAIN + THOUGHTS! I GO TO SLEEP HOPING + PRAYING I DON'T WAKE UP. AND THEN I WAKE UP AND THE SUICIDAL THOUGHTS START UP! SHOULD I TAKE AN OVERDOSE? SHOULD I KILL MYSELF IN MY CAR? CARBON MONOXIDE? SHOULD I GO TO THE WOODS AND HANG MYSELF?”
(4) “I CHECKED IF MY MACHETE WAS SHARP LAST NIGHT. IS NOT! I CUT MYSELF.”
(5) “YOU ARE ALL AGAINST ME!! EVEN MY BOYS!!!”21
When asked which boys he thought were against him, Mr. Garner testified he was referring to his sons, Luke, R.G.H., and H.G.H.22 Mr. Garner did not limit his suicidal tendencies to diary entries. He told Paige that he would “slice his neck open with the machete that he had in his room.”23 Luke testified that in June 2021, he walked in on Mr. Garner cutting his wrists.24 H.G.H. overheard conversations between the adults in his home about Mr. Garner's suicide attempts.25
2. Mr. Garner's Physical and Psychological Abuse of His Family in the U.K.
Notwithstanding the testimony of Mr. Garner and Deborah Brown (“Ms. Brown”) to the contrary, the Court finds Mr. Garner subjected the Children to physical and psychological abuse. Mr. Garner denies abusing the Children.26 Likewise, Mr. Garner's current girlfriend, Ms. Brown, testified that Mr. Garner has never physically disciplined the Children.27 In its role as factfinder, however, the Court gives Mr. Garner and Ms. Brown's testimony little to no weight for three reasons. First, Ms. Brown did not meet Mr. Garner until October 2021.28 Thus, she has no personal knowledge about abuse that occurred before Mr. Garner moved out of Ms. Folsom's house in June 2021. Second, as explained below, Mr. Garner has a history of violently abusing his adult children and Ms. Folsom. Third, and most importantly, the Court heard direct, consistent testimony that Mr. Garner physically abused the Children.
Indeed, Luke testified that he witnessed Mr. Garner slap H.G.H.29 Luke also testified that Mr. Garner would grab R.G.H. by the face and push his head into the wall.30 The Court heard corroborating testimony from the Children during in-camera interviews.31 R.G.H. stated that Mr. Garner slapped him and his brother.32 R.G.H. also testified that on numerous occasions Mr. Garner would grab him by the face, covering his mouth, and smack his head against the wall.33 Similarly, H.G.H. recalled Mr. Garner slapping the brothers and hitting R.G.H.’s head against the wall.34
Mr. Garner also physically abused the other members of his family. A particularly violent incident occurred in March 2021.35 Mr. Garner and his daughter, Kruiz, were engaged in a verbal argument in the kitchen.36 At some point during the argument, Mr. Garner wrapped his hands around Kruiz's neck and strangled her, toppling her to the floor.37 H.G.H., who was also in the kitchen, watched his sister's face turn purple.38 As the strangling continued, H.G.H. cried and begged Mr. Garner to “stop” and “please leave her.”39 But the strangling did not stop until Luke ran into the kitchen and pulled Mr. Garner off of Kruiz.40 The strangling left marks on Kruiz's neck.41 While R.G.H. did not witness the strangling, he heard Kruiz's screams.42 Given Kruiz, Luke, H.G.H., and Ms. Folsom's consistent testimony about this incident, the Court finds no credibility in Mr. Garner's assertion that he did not strangle Kruiz.43 The other members of the family likewise suffered physical abuse at the hands of Mr. Garner. For instance, Mr. Garner pinned Luke down to the floor and spat in his face.44 And Mr. Garner strangled Ms. Folsom and held swords to her neck.45
In addition to physical violence, Mr. Garner controlled and psychologically abused his family. For example, Mr. Garner, who was unemployed and did not pay any bills, charged his adult children money to use the bathtub and washing machine.46 Mr. Garner communicated his commands to the family by writing messages on the walls of the house. Next to a switch that controlled the shower, Mr. Garner wrote “PUT IT ON. TURN IT OFF!”47 And in reference to an electrical key, Mr. Garner wrote “IF YOU USE EMERGENCY! PUT THE F*CKING KEY ON THE MICROWAVE! PRICKS!!!”48 In addition, Mr. Garner allocated each family member a knife and fork, which he engraved with their names, so he could identify individuals who did not wash their utensils.49 Upon finding dirty dishes, Mr. Garner smashed most of the plates and glasses in the house.50 After that incident, family members were only allowed one plate each.51 Mr. Garner also forbade anyone from entering the garage because that is where he grew marijuana.52
Mr. Garner also verbally abused the family. The Court saw a video recording of Mr. Garner shouting at Ms. Folsom, calling her a “little f*cking d*ckhead.”53 The video shows H.G.H. crying in distress as he watches.54 Mr. Garner also called Ms. Folsom a “b*tch,” “stupid,” and “f*cked up” in the presence of R.G.H. and H.G.H.,55 and told R.G.H. that he was “fat” and “stupid.”56 H.G.H. recalled Mr. Garner screaming “f*ck you” at Ms. Folsom and calling her a “c*nt.”57 This made H.G.H. feel “really sad.”58
Mr. Garner terrorized his family with threats. Several family members testified to Mr. Garner's vengeful nature, explaining that he frequently told them “[e]very action has a reaction” and “[t]here will be consequences.”59 For example, when Paige discovered at age fifteen that she was pregnant, she left the home out of fear that Mr. Garner would kill her.60 Ms. Folsom felt that she was unable to escape out of fear for what Mr. Garner would do R.G.H. and H.G.H. She recalls Mr. Garner threatening to “drive him[self] ․ and the boys off [a] cliff because ․ that was the way he could get at [her].”61
On multiple occasions, Mr. Garner told R.G.H. “I'll burn the house down with everyone in it.”62 These statements caused R.G.H. to suffer from extreme panic and anxiety.63 R.G.H. would retreat to his room and think about how he could rescue his family members if Mr. Garner set the house on fire.64 H.G.H. did not feel safe with Mr. Garner in the House.65 Mr. Garner showed H.G.H. and R.G.H. his machete.66 H.G.H. feared Mr. Garner would use his machete to kill the family in the middle of the night while they slept.67
Beyond the violence, threats, and control, Mr. Garner exhibited a general disregard for R.G.H. and H.G.H.’s welfare. Mr. Garner regularly played loud music late at night that prevented the Children from falling asleep.68 As a result, the Children frequently fell asleep at school.69 In addition, Mr. Garner refused to drive the Children to school unless Ms. Folsom paid him.70 Mr. Garner also engaged in highly inappropriate conduct. While the Children were visiting Mr. Garner at his new apartment, Mr. Garner showed H.G.H. a picture of his girlfriend, Ms. Brown, performing a sexual act on Mr. Garner.71 Mr. Garner told H.G.H. that he had not had sex with Ms. Folsom in six years, but that he had been “keeping [Ms. Brown] wet all week.”72 H.G.H. was hurt by this statement.73 These actions demonstrate Mr. Garner's self-centeredness and lack of concern for the Children.
Based on the foregoing, the Court finds that returning the Children to live with Mr. Garner in the U.K. would expose them to a grave risk of physical and psychological harm.
C. Ms. Folsom and the Children's Departure to the United States
In June 2021, Mr. Garner moved into an apartment approximately one mile away from Ms. Folsom and the Children.74 After moving out of Ms. Folsom's house, Mr. Garner continued to exercise his custody rights. He took the Children to school daily, and they spent weekends together at Mr. Garner's apartment.75 On November 12, 2021, Ms. Folsom informed Mr. Garner that she was taking the Children to the United States for a three-week holiday.76 On November 15, 2021, Ms. Folsom and the Children flew from the U.K. to the United States.77 Upon arrival in the United States, Ms. Folsom and the Children traveled to Newton, Texas, where they have remained since.78 On January 7, 2022, Ms. Folsom married James Folsom (“Mr. Folsom”).79
The Court finds that Mr. Garner consented to the Children coming to the United States.80 The Court, however, finds that Mr. Garner did not consent to the Children remaining in the United States for longer than three weeks.81 Indeed, Ms. Folsom admitted Mr. Garner never gave her permission to retain the Children in the United States beyond December 2021.82
After the Children arrived in the United States, Mr. Garner primarily communicated with the Children by messaging R.G.H. on WhatsApp. In early December 2021, Mr. Garner grew suspicious that the Children would not be returning to the U.K. as originally planned. On December 4, 2021, R.G.H. messaged Mr. Garner that their flights home were delayed due to COVID-19.83 On December 9, 2021, Mr. Garner replied: “F*cking lying again to me!!! you know your not coming back till after Christmas!!!! your just like the rest of them!!! ․ there will be consequences!!!” and “Maybe file a missing person report with the feds!!!”84
Later that day, Mr. Garner sent R.G.H. a series of threatening and inappropriate messages. When R.G.H. asked his father why he was acting hostile, Mr. Garner replied: “Because you have betrayed me!!!”85 R.G.H. then expressed his frustration with Mr. Garner, to which Mr. Garner responded: “Looks like a warrant!!!” and “This is going to be fun!!!”86 At the hearing, Mr. Garner explained that he meant that he was going to have the U.K. authorities issue a warrant for Ms. Folsom's arrest.87 When R.G.H. explained to his father that he was happy with his current living situation, Mr. Garner replied “I'm glad your happy in the knowledge you deceived me!!! ․ you cant say holiday!when your in a trailer!!! ․ Bet kray is still helping his self to Ruby.”88 When asked about the last message, Mr. Garner admitted he was insinuating to R.G.H. that R.G.H.’s cousins in the United States, Kray and Ruby, were having an incestuous relationship.89 These messages made R.G.H. feel unsafe.90
On January 5, 2022, Mr. Garner told R.G.H. that he had the information necessary to pursue legal action against Ms. Folsom.91 He messaged R.G.H.: “I could continue to fight for your return and this would involve your mother being taken to court in the states,” but that “after a lot of thought and taking into consideration what you have told me about being happy over there I have decided to not Pursue it further for now.”92 Three days later, R.G.H. responded that he and H.G.H. loved Mr. Garner and were happy.93 The next day, Mr. Garner messaged: “I've decided to continue with my case! ․ so I hope that mother of yours has money as I'm going to take her to court ․ this is going to be fun ․ and I am seeking criminal charges against her!”94 In a follow-up message, Mr. Garner stated: “She's been reported to the UK police ․ thought she would get away with this ․ not on my watch!!!”95
On March 12, 2022, Mr. Garner messaged R.G.H.: “My time left will be destroying you hillbillies!and I'm going to enjoy this!and jayne!!!your f*cked!!!d*ck head did not expect me !!! my goal is just to pay you back in firstname.lastname@example.org*nt!!!”96 Mr. Garner followed up with “Bad boys bad boys watcha gona do watcha gona do when they come for you!!!” and “Knock knock f*cker.”97 The last two messages were references to the television show “Cops.”98 Mr. Garner also messaged: “You were living your life until your c*nt of a mother f*cked it up for all of her so called family!!!” and “I'm not fighting for custody!!! I'm fighting for justice!!!!!!!”99 On March 26, 2022, Mr. Garner messaged: “As my sons you've treated me without any respect or love ․ I cannot forgive that. I definitely cannot forget that.”100
Mr. Garner's statements were not empty threats. He did in fact report Ms. Folsom to the U.K. police.101 As a consequence, Ms. Folsom currently has a warrant out for her arrest in the U.K.102 Mr. Garner also contacted Reunite International, a charity that provides assistance in cases of child abduction.103 Reunite International connected Mr. Garner with his attorneys and the Hague Convention.104 Over the next several months, Mr. Garner took steps to initiate the instant proceeding against Ms. Folsom.
Mr. Garner's vengeful statements and actions reinforce the Court's finding that returning the Children to the U.K. would expose them to a grave risk of physical and psychological harm. Furthermore, the Court notes that all three of Mr. Garner's adult children—Luke, Paige, and Kruiz—testified that the Children would face such a risk if returned to live with Mr. Garner in the U.K.105
D. Ameliorative Measures
The Court now briefly addresses Mr. Garner's assertion that the Children, if returned to the U.K., could live with their brother, Luke. At one point in time, Ms. Folsom and Luke discussed the possibility of the Children living with Luke in the U.K.106 Luke, however, explained that such an arrangement is no longer feasible because he is moving into a two-bedroom apartment with his daughter.107 Furthermore, Luke's work schedule would prevent him from staying home to protect the Children from Mr. Garner.108 Therefore, the Court finds there are no ameliorative measures that could be undertaken to sufficiently reduce the grave risk of harm the Children face if returned to the U.K.
E. The Children's In-Camera Interviews
During the hearing, the Court conducted separate, in-camera interviews with R.G.H. and H.G.H. Neither Mr. Garner nor Ms. Folsom were in chambers during the interview. Counsel for Mr. Garner and Ms. Folsom were present and asked the Children questions. After learning of the Children's in-camera testimony, Mr. Garner stipulated that the Children were of a sufficient age and maturity to object to their return and that the Court should take account of their wishes.109 As explained below, the Court finds that the Children were old and mature enough to object to their return, regardless of Mr. Garner's stipulation.
1. R.G.H.’s Interview
R.G.H. is fifteen years old.110 Ms. Folsom stipulated that R.G.H. was at one point in time diagnosed with autism and dyslexia.111 However, on February 26, 2022, Dr. Julie Makdsi conducted a psychological evaluation of R.G.H. and determined that he does not have autism.112 The Court found that R.G.H. was calm, bright, thoughtful, and understood the matter surrounding him. R.G.H. was articulate and able to explain his answers. Further, the Court found that R.G.H. understood the difference between truth and falsehood, and his obligation to tell the truth. There was also no evidence that R.G.H.’s answers were the product of undue influence or coercion.
When asked whether he wanted to return to the U.K. to live with Mr. Garner, R.G.H. explicitly objected, stating: “Please don't send me back. I don't want to go back. I don't want to see him ever again.”113 R.G.H. expressed concern about Mr. Garner's assertion that the Children betrayed him.114 R.G.H. fears Mr. Garner would abuse him if he were returned to the U.K.115 Moreover, R.G.H. prefers living in Newton, Texas. R.G.H. has family in Texas, friends at school, attends church, feels safe at home, and enjoys fishing with his stepfather, Mr. Folsom.116 Thus, the Court finds that R.G.H. is of sufficient age and maturity to object to returning to the U.K., explicitly made such an objection, and that his decision was not the product of undue influence.
2. H.G.H.’s Interview
H.G.H. is eleven years old.117 While H.G.H. is younger than R.G.H., the Court also found that he was exceptionally composed and intelligent, and that he understood the Court's questions. H.G.H. understood the difference between truth and falsehood, and his obligation to tell the truth. The Court found no reason to believe H.G.H.’s answers were the product of undue influence or coercion.
When asked whether he wanted to return to the U.K. to live with Mr. Garner, H.G.H. said: “No.”118 He also begged to the Court: “Please don't send me back ․ I'm not going to feel safe with [Mr. Garner].”119 Like his brother, H.G.H. fears Mr. Garner would abuse him if he were returned to the U.K.120 H.G.H. emphasized his anxiety about Mr. Garner's contention that the Children had betrayed him.121 Moreover, H.G.H. wants to live in Newton, Texas.122 He has friends at school, enjoys fishing with Mr. Folsom, and feels that he has a more loving family in Texas.123 Thus, the Court finds H.G.H. is of sufficient age and maturity to object to returning to the U.K., explicitly made such an objection, and that his decision was not the product of undue influence.
F. Restatement of Findings
For clarity, the Court states and restates its more salient findings here. The Court stresses the importance of the live testimony to its determinations.
Mr. Garner, Ms. Folsom, and the Children are U.K. citizens. Mr. Garner and Ms. Folsom are R.G.H. and H.G.H.’s biological parents. Both parents are listed on their birth certificates.
Mr. Garner is mentally unstable, suicidal, violent, and controlling—especially while intoxicated. While living in Ms. Folsom's house, Mr. Garner physically abused not only R.G.H. and H.G.H., but also the other members of his family. He also verbally abused the family. Both R.G.H. and H.G.H. either witnessed or were aware of Mr. Garner's abuse to their mother and siblings. Mr. Garner exercised rigorous control over the daily lives of his family. Mr. Garner threatened to kill the entire family. R.G.H. and H.G.H. fear Mr. Garner will kill them. After Ms. Folsom and the Children departed the U.K., Mr. Garner engaged in a pattern of behavior demonstrating his desire to exact revenge for what he perceives as a betrayal by R.G.H. and H.G.H. Each of Mr. Garner's adult children testified that it would not be safe for the Children to return to Mr. Garner. Accordingly, the Court finds that returning the Children to the U.K. would expose them to a grave risk of physical and psychological harm. The Court also finds that there are insufficient ameliorative measures to mitigate the risks involved with returning the Children to the U.K.
In the months leading up to Ms. Folsom and the Children's departure from the U.K., Mr. Garner continued to exercise his custody rights by taking the Children to school and spending weekends with them. Thus, the Court finds that Mr. Garner did not abandon the Children. Ms. Folsom told Mr. Garner that she was taking the Children on a three-week holiday to the United States. The Court finds that Mr. Garner consented to the Children traveling to the United States but did not consent to them remaining there beyond December 2021.
Through its in-camera interviews with R.G.H. and H.G.H., the Court finds that the Children are both of sufficient age and maturity to object to returning to the U.K. to live with Mr. Garner, that the Children both explicitly made such an objection, and that the Children's decisions were not products of undue influence.
II. CONCLUSIONS OF LAW
The Convention was adopted to address the problem of international child abductions in connection with domestic disputes. Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Both the United States and U.K. are signatories to the Convention. The purpose of the Convention is twofold: (1) “to secure the prompt return of children wrongfully removed to or retained in any Contracting State;” and (2) “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Id. (quoting Convention, Art. 1). Under the Convention, “a child abducted in violation of ‘rights of custody’ must be returned to the child's country of habitual residence, unless certain exceptions apply.” Id. at 5, 130 S.Ct. 1983 (quoting Convention, Art. 1).
The United States implemented the Convention by enacting the ICARA. Id.; 22 U.S.C. §§ 9001–9011. Federal district courts and state courts have concurrent original jurisdiction over actions arising under the Convention. 22 U.S.C. § 9003(a). Specifically, the ICARA provides that “[a]ny person seeking ․ the return of a child ․ may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” Id. § 9003(b). Congress has expressly declared that the provisions in the ICARA “are in addition to and not in lieu of the provisions of the Convention.” Id. § 9001(b)(2). In this case, it is undisputed that R.G.H. and H.G.H. were located in Newton, Texas, a city within the jurisdiction of this Court, when Mr. Garner filed his Petition. Thus, the Court has jurisdiction.
B. Mr. Garner's Prima Facie Case for Wrongful Retention
“When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must ‘order the return of the child forthwith,’ unless certain exceptions apply.” Abbott, 560 U.S. at 9, 130 S.Ct. 1983 (citing Convention, Arts. 4, 12). A removal or retention is wrongful when: (1) “it is in breach of rights of custody attributed to a person ․ either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;” and (2) “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Convention, Art. 3.
Therefore, to establish a prima facie case for wrongful removal or retention, a petitioner must prove three elements by a preponderance of the evidence: (1) “the respondent removed or retained the child somewhere other than the child's habitual residence;” (2) “the removal or retention violated the petitioner's ‘rights of custody’ under the habitual-residence nation's laws;” and (3) “at the time of removal or retention, those rights were actually [being] exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012) (internal citations omitted); 22 U.S.C. § 9003(e)(1).
1. The Children's Habitual Residence
A child's habitual residence is determined by examining the totality of the circumstances. Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (2020). Here, however, the Court need not engage in such an inquiry because Ms. Folsom admitted that the Children were habitual residents of the U.K. before they were removed to the United States. [Dkt. 95 at 6]. Mr. Garner has proven the first element by a preponderance of the evidence.
2. Violation of Mr. Garner's Rights of Custody
The Convention defines “rights of custody” to “include rights relating to the care of ․ the child and, in particular, the right to determine the child's place of residence.” Convention, Art. 5(a). A parent is not required to have sole or exclusive custody over the child—the Convention recognizes that custody rights can be “decreed jointly or alone.” Abbott, 560 U.S. at 11, 130 S.Ct. 1983. Whether rights of custody have been breached is determined “under the law of the State in which the child was habitually resident immediately before the removal or retention.” Convention, Art 3(a). Accordingly, the Court analyzes U.K. law.
Under U.K. law, a person registered as the father on their child's birth certificate has “parental responsibility” over the child. Children Act 1989, c.41, § 4(1)(a) (Eng.). “[P]arental responsibility means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child ․” Id. § 3(1). U.K. courts have emphasized that this includes the right to determine where the child shall live. RE M (Minors) (Residence Order: Jurisdiction)  1 FLR 495, 499.
Mr. Garner is registered as the father on the Children's birth certificates. Therefore, under U.K. law, he has parental responsibility over the Children. This includes the right to determine where they shall live. Ms. Folsom retained the Children in the United States beyond December 2021 against the wishes of Mr. Garner. She therefore breached Mr. Garner's rights under U.K. law to determine the Children's place of residence—i.e., Mr. Garner's rights of custody. The Court concludes that Mr. Garner has established by a preponderance of the evidence that Ms. Folsom's retention of the Children in the United States violated his rights of custody.
3. Mr. Garner's Exercise of Custody Rights at the Time of the Children's Removal
A parent's “occasional contact” with a child constitutes an exercise of custody rights over the child. Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 345 (5th Cir. 2004). “To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child.” Id. (ruling that a father who visited his child five times a year and paid child support had not abandoned the child).
The Court found that Mr. Garner did not abandon the Children. After moving out of Ms. Folsom's house in June 2021, Mr. Garner took the Children to school each day. And the Children spent weekends with Mr. Garner at his apartment. This contact with the Children continued until Ms. Folsom removed the Children to the United States. Thus, Mr. Garner has proven by a preponderance of the evidence that he was exercising his custody rights at the time of the Children's removal.
In sum, Mr. Garner has established all three elements of his prima facie case for wrongful retention by a preponderance of the evidence.
C. Applicable Exceptions
Once a petitioner shows by a preponderance of the evidence that the removal or retention of a child was wrongful, the burden shifts to the respondent to prove that an exception applies. 22 U.S.C. § 9003(e); Abbott, 560 U.S. at 9, 130 S.Ct. 1983 (citing Convention, Arts. 4, 12). The Convention recognizes several narrow exceptions whereby a court may refuse to order the return of a child. Convention, Arts. 12, 13, 20.
Ms. Folsom asserts that three exceptions apply: (1) Mr. Garner consented to the Children's removal and retention; (2) the Children object to being returned and have reached an age and degree of maturity at which it is appropriate to take account of their views; or (3) returning the Children would expose them to a grave risk of physical or psychological harm.
1. Consent Exception
The Convention provides that a child may not be ordered to return to their country of habitual residence if the removing parent establishes that the petitioner “consented to or subsequently acquiesced in the removal or retention.” Convention, Art 13(a). The removing parent must prove that the petitioner consented or acquiesced by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). When examining this exception, courts consider what the petitioner actually agreed to when allowing the child to travel outside of its country of residence and the scope of the petitioner's consent. Larbie, 690 F.3d at 309.
The Court found that Mr. Garner consented to the Children coming to the United States. The Court also found, however, that Mr. Garner did not consent to the Children remaining in the United States for longer than three weeks. Indeed, Ms. Folsom admitted that Mr. Garner did not give her permission to keep the Children in the United States beyond December 2021. Ms. Folsom's retention of the Children in the United States exceeded the scope of what Mr. Garner agreed to. Thus, the Court concludes Ms. Folsom has failed to establish that this exception applies.
2. Mature Child Exception
The Convention establishes that a court “may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Convention, Art. 13. The party opposing the child's return must establish the child's maturity by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B).
This exception is to be applied narrowly. England v. England, 234 F.3d 268, 272 (5th Cir. 2000). “The Convention does not set an age at which a child is automatically considered to be sufficiently mature, rather the determination is made on a case-by-case basis.” Vasconcelos v. Batista, 512 F. App'x 403, 405 (5th Cir. 2013) (quoting Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3rd Cir. 2007)). Courts have found that children as young as ten, with dyslexia, were of sufficient age and maturity to make an objection. Smith v. Smith, No. 4:19-cv-00784-O, 2019 WL 13201172, at *5 (N.D. Tex. Nov. 20, 2019), aff'd, 976 F.3d 558 (5th Cir. 2020). The Convention also requires an objection, “not a mere preference.” Rodriguez v. Yanez, 817 F.3d 466, 467 (5th Cir. 2016). A child's objection should be afforded little weight if a court believes that the objection is the product of undue influence by the removing parent. Dietz v. Dietz, 349 F. App'x 930, 935 (5th Cir. 2009). The Fifth Circuit has recognized that findings from in-camera interviews—regarding the age and maturity exception—are “perfectly reasonable.” Vasconcelos, 512 F. App'x at 406.
The Court conducted separate, in-camera interviews with R.G.H. and H.G.H. On the fourth day of the hearing, after learning of the Children's in-camera testimony, Mr. Garner stipulated to the mature child exception. Regardless of Mr. Garner's stipulation, the Court, in its role as factfinder, found that both Children were of sufficient age and maturity to object to returning to the U.K. to live with Mr. Garner. Further, expressing fear of abuse at the hands of Mr. Garner, both R.G.H. and H.G.H. unequivocally objected to returning. Finally, the Court found that neither of the Children's decisions were the product of undue influence and that both Children understood their obligation to tell the truth. In light of these findings, the Court concludes that the Children should not be returned to the U.K. Even if the Court did not so conclude, it would still not order the return of the Children because, as explained below, a second exception applies.
3. Grave Risk of Physical or Psychological Harm Exception
Under the Convention, courts are not bound to order the return of a child if “there is a grave risk” that returning the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, Art. 13(b). A parent who opposes the return of a child must establish the “grave risk” exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). This exception is construed narrowly. England, 234 F.3d at 270.
Fifth Circuit precedent affirmatively defining what constitutes a grave risk of physical or psychological harm is sparse. In fact, most of this circuit's jurisprudence explores the circumstances that do not amount to a sufficiently grave risk of harm. See England, 234 F.3d at 270–72 (reversing the district court's finding that separating a child from her mother presented a grave risk of psychological harm); Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (holding that a grant of asylum based on a child's “well-founded fear of persecution does not substitute for or control” a district court's finding about whether returning the child would expose them to a grave risk of harm). In Madrigal v. Tellez, the Fifth Circuit upheld the district court's ruling that a woman's receipt of an anonymous email stating that her husband would kill her did not establish a grave risk of harm to their children. 848 F.3d 669, 676–77 (5th Cir. 2017). The Madrigal court noted, however, that threats against a parent could, in some instances, create a grave risk of harm to their children. Id. at 676. Similarly, in Soto v. Contreras, the Fifth Circuit suggested that spousal abuse can, in certain circumstances, create a grave risk of harm to a child, but declined to establish a bright-line rule requiring a finding of grave risk to a child when their parent is abused. 880 F.3d 706, 712–13 (5th Cir. 2018).
Other courts have found that a range of conduct can constitute a grave risk of harm to a child. Oftentimes, it is the totality of a parent's actions that rise to the level of presenting a sufficiently grave risk. See, e.g., Walsh v. Walsh, 221 F.3d 204, 210–12, 218–20 (1st Cir. 2000) (holding that the grave risk exception applied when a father hit, spanked, and spit on his children, beat the children's mother in their presence, and forced one of the children to look at their bloodied older brother after the father assaulted the brother); Van De Sande v. Van De Sande, 431 F.3d 567, 569 (7th Cir. 2005) (ruling that two children faced a grave risk of harm if returned to their father who abused their mother in their presence, called their mother a “c*nt” and “lazy f*cking b*tch,” spanked and hit the children, and threatened to kill everyone in the family); Application of Blondin v. Dubois, 78 F. Supp 2d 283, 285, 295 (S.D.N.Y. 2000) (finding grave risk of harm where the father beat and threatened to kill his child), aff'd sub nom. Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001); Holmes v. Holmes, 887 F. Supp. 2d 755, 760–61 (E.D. Mich. 2012) (applying the grave risk exception where a father was “controlling, obsessive, and angry” and while drinking alcohol became “impulsive, violent, and unstable”); Didur v. Viger, 392 F. Supp 2d 1268, 1272–73 (D. Kan. 2005) (considering a parent's mental instability and alcoholism in conjunction with other factors), rev'd on other grounds, 197 F. App'x 749 (10th Cir. 2006).
Even if a removing parent establishes the grave risk exception, courts may still order the child's return if the court finds “ameliorative measures” can be undertaken that sufficiently mitigate the risk. Golan v. Saada, ––– U.S. ––––, 142 S. Ct. 1880, 1887, 213 L.Ed.2d 203 (2022). District courts “may decline to consider ameliorative measures that ․ are unworkable ․” Id. at 1895.
In its capacity as factfinder, this Court found that returning the Children to live with Mr. Garner would expose them to a grave risk of physical and psychological harm. Indeed, Mr. Garner's mental instability, alcohol and drug abuse, anger problems, and suicidal nature often manifested into violent outbursts and controlling behavior. He physically and verbally abused the Children. He did the same to other family members in the Children's presence. Mr. Garner controlled the daily lives of his family in minute detail. And he threatened to kill his family, including the Children, on multiple occasions. Moreover, Mr. Garner demonstrated an unrelenting desire to seek revenge on Ms. Folsom and the Children after they departed to the United States. Importantly, each of Mr. Garner's adult children testified that R.G.H. and H.G.H. face a grave risk of harm if returned to the U.K. Finally, the Court found that there were no ameliorative measures that could sufficiently mitigate the risk of harm to the Children if they were returned.
After assessing the totality of Mr. Garner's conduct, the Court concludes that Ms. Folsom established by clear and convincing evidence that returning the Children to live with Mr. Garner in the U.K. would expose them to a grave risk of physical and psychological harm.
Based on the foregoing, the Court concludes that: (1) Mr. Garner established his prima facie case that Ms. Folsom wrongfully retained the Children; (2) Ms. Folsom failed to establish by a preponderance of the evidence that Mr. Garner consented to the Children remaining in the United States; (3) Ms. Folsom established by a preponderance of the evidence that R.G.H. and H.G.H. were of sufficient age and maturity to object to being returned, did in fact explicitly object, and were not unduly influenced (Mr. Garner also stipulated to this exception); (4) Ms. Folsom established by clear and convincing evidence that returning the Children to the U.K. to live with Mr. Garner would expose the Children to a grave risk of physical and psychological harm; and (5) no ameliorative measures exist to mitigate the risks inherent in returning the Children.
It is therefore ORDERED that Mr. Garner's Verified Complaint and Petition [Dkt. 1] is DENIED. The Court will enter a separate order dissolving the Temporary Restraining Order [Dkt. 17] and denying Mr. Garner's request for a preliminary injunction.
It is further ORDERED that Ms. Folsom keep a copy of this order with her if she travels to the U.K.124
1. Jayne Harris changed her name to Jayne Folsom after her marriage to James Folsom. [Dkt. 64-1 at 2].
2. The record contains transcripts of the hearing. See Trial Tr. vol 1–4. [Dkts. 87–90]
3. To the extent that any finding of fact should be construed as a conclusion of law, the Court adopts it as such and vice versa.
4. Dkt. 64-1 at 2.
7. Dkt. 64 at 2.
9. Dkt. 64-1 at 2.
10. Luke Trial Tr. vol 2, 156; Paige Trial Tr. vol 4, 59–64; Kruiz Trial Tr. vol 4, 94–105. The Court found Luke, Paige, and Kruiz's testimony throughout the hearing to be highly credible.
11. Dkt. 64-1 at 2.
12. Garner Trail Tr. vol 1, 107.
13. Id. at 176–77.
14. Id. at 138.
15. Id. at 176–77.
16. Luke Trial Tr. vol 2, 159; Paige Trial Tr. vol 4, 61; Kruiz Trial Tr. vol 4, 95; R.G.H. Trial Tr. vol 3, 169–70; H.G.H. Trial Tr. vol 3, 221. Mr. Garner drinks “Kestrel,” a “strong” beer containing 9% alcohol. Garner Trial Tr. vol 1, 162–63.
17. Luke testified that when Mr. Garner drank and smoked, he was “more violent,” and that “if something went wrong ․ his punishment would be ․ ten times worse.” Luke Trial Tr. vol 2, 159. Kruiz recalled the family feeling “dread if [they] saw the Kestrels in the fridge” because that meant they would get “the nasty version” of Mr. Garner. Kruiz Trial Tr. vol 4, 90–91.
18. Garner Trial Tr. vol 1, 177–78.
19. Id. at 181.
20. Pet'r’s Ex. 135.
22. Garner Trial Tr. vol 1, 139.
23. Paige Trial Tr. vol 4, 76.
24. Luke Trial Tr. vol 2, 166–67.
25. H.G.H. Trial Tr. vol 3, 234.
26. Garner Trial Tr. vol 1, 80.
27. Brown Trial Tr. vol 2, 205.
28. Id. at 221.
29. Luke Trial Tr. vol 2, 165.
30. Id. at 198.
31. For reasons explained below, the Court finds the Children's testimony during their in-camera interviews to be of the utmost credibility.
32. R.G.H. Trial Tr. vol 3, 172.
34. H.G.H. Trial Tr. vol 3, 231–32.
35. Kruiz Trial Tr. vol 4, 105.
36. Id. at 86.
37. Id. 85–86.
38. H.G.H. Trial Tr. vol 3, 226–28.
39. Kruiz Trial Tr. vol 4, 87.
40. Luke Trial Tr. vol 2, 164.
41. Kruiz Trial Tr. vol 4, 86.
42. R.G.H. Trial Tr. vol 3, 175.
43. Garner Trial Tr. vol 1, 109–11.
44. Luke Trial Tr. vol 2, 162.
45. Folsom Trial Tr. vol 4, 43–46. The Court found Ms. Folsom's testimony throughout the hearing to be credible.
46. Garner Trial Tr. vol 1, 199–200; Paige Trial Tr. vol 4, 66.
47. Resp't’s Ex. 32.
49. Folsom Trial Tr. vol 4, 42.
50. Id. at 42–43; Paige Trial Tr. vol 4, 65.
51. Folsom Trial Tr. vol 4, 42.
52. Luke Trial Tr. vol 2, 160–61. Marijuana is illegal in the U.K.
53. Resp't’s Ex. 46.
55. Luke Trial Tr. vol 2, 173.
56. Id. at 165.
57. H.G.H. Trial Tr. vol 3, 229.
58. Id. at 230.
59. Folsom Trial Tr. vol 4, 41; Luke Trial Tr. vol 2, 178.
60. Paige Trial Tr. vol 4, 62.
61. Folsom Trial Tr. vol 4, 43.
62. R.G.H. Trial Tr. vol 3, 192.
64. Id. at 193.
65. H.G.H. Trial Tr. vol 3, 234.
68. R.G.H. Trial Tr. vol 3, 173; H.G.H. Trial Tr. vol 3, 223.
69. R.G.H. Trial Tr. vol 3, 174; H.G.H. Trial Tr. vol 3, 223–24.
70. Garner Trial Tr. vol 1, 163.
71. H.G.H. Trial Tr. vol 3, 260.
72. Id. at 261. Again, the Court notes it finds H.G.H.’s testimony to be of the highest credibility. The Court rejects Mr. Garner's contention that he did not intend for H.G.H. to see the photograph. See Garner Trial Tr. vol 1, 148.
73. H.G.H. Trial Tr. vol 3, 262.
74. Dkt. 64-1 at 2–3.
75. Garner Trial Tr. vol 1, 67.
76. Id. at 94; Folsom Trial Tr. vol 4, 49.
77. Folsom Trial Tr. vol 4, 49.
78. Dkt. 64-1 at 3.
79. Folsom Trial Tr. vol 3, 19–20. Ms. Folsom had been in communication with Mr. Folsom in the months leading up to her departure with the Children from the U.K. Resp't’s Ex. 15.
80. Garner Trial Tr. vol 1, 94.
81. Dkt. 95 at 7.
83. Resp't’s Ex. 31.
87. Garner Trial Tr. vol 1, 224-25.
88. Resp't’s Ex. 31.
89. Garner Trial Tr. vol 1, 227–28.
90. R.G.H. Trial Tr. vol 3, 192.
91. Resp't’s Ex. 31.
98. Garner Trial Tr. vol 1, 240.
99. Resp't’s Ex. 31.
101. Garner Trial Tr. vol 1, 100.
102. Folsom Trial Tr. vol 3, 112.
103. Garner Trial Tr. vol 1, 100–01.
105. Luke Trial Tr. vol 2, 178; Paige Trial Tr. vol 4, 67; Kruiz Trial Tr. vol 4, 100–01. When asked whether he would feel comfortable with the Children living with Mr. Garner, Luke replied: “No. Not at all. Not now. He's after revenge and vengeance. Everything is about revenge and vengeance. It always has been. For every action, there's a reaction. It's always the way it was ․ If they're coming back, they will go through emotional hell, most likely physical. Because he'll feel like they betrayed him.” Luke Trial Tr. vol 2, 178.
106. Luke Trial Tr. vol 2, 189.
108. Id. at 178.
109. Trial Tr. vol 4, 6-7.
110. Dkt. 64 at 2.
111. Dkt. 64-1 at 3.
112. Resp't’s Exs. 9–10. Dr. Makdsi is a psychologist at Southeast Texas Behavioral Solutions. Rep't’s Ex. 9.
113. R.G.H. Trial Tr. vol 3, 196.
114. Id. at 190.
115. Id. As previously detailed, R.G.H. testified to the physical abuse he suffered at the hands of Mr. Garner, id. at 172, and Mr. Garner's threats that he would burn the family's house down with everyone inside. Id. at 192–93.
116. Id. at 160-66, 189, 193–94.
117. Dkt. 64 at 2.
118. H.G.H. Trial Tr. vol 3, 236.
119. Id. at 240.
120. Id. at 237. As explained above, H.G.H. testified to Mr. Garner's physical abuse, id. at 231–32, and his fears that Mr. Garner would use his machete to kill the family while they slept. Id. at 234.
121. Id. at 237.
122. Id. at 236.
123. Id. at 216, 219, 256.
124. This Court requests that any U.K. court or government entity that might seek to enforce a warrant or other criminal sanction against Ms. Folsom please give comity to this order—specifically, the finding that Ms. Folsom is not in violation of the Convention by virtue of the mature child exception and the grave risk of harm exception. See Hilton v. Guyot, 159 U.S. 113, 163–64, 16 S.Ct. 139, 40 L.Ed. 95 (1895) (discussing comity). The Court hopes and prays that Ms. Folsom will be allowed to return to the U.K. without fear of arrest or loss of liberty.
Michael J. Truncale, United States District Judge
Response sent, thank you
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Docket No: Civil Action No. 1:22-CV-00293
Decided: November 18, 2022
Court: United States District Court, E.D. Texas, Beaumont Division.
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