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Ester Ellen Nelson v. Joseph Petterle

March 18, 2011

ESTER ELLEN NELSON,
PETITIONER,
v.
JOSEPH PETTERLE,
RESPONDENT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A bench trial was held in this action on March 15, 2011. Petitioner seeks the return of her 11 year old son to Iceland under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"). Respondent is the child's father, who lives in California.

The following witnesses testified: Petitioner, Respondent, and Respondent's father, Joseph E. Petterle. The parties stipulated to the admission of Petitioner's Exhibits 1 through 18. The parties also stipulated to facts, which were read into the record by counsel.

The following findings of fact and conclusions of law are made under Federal Rule of Civil Procedure 52, after considering the testimony and documentary evidence presented.

I. FINDINGS OF FACT

A. Background

1. Petitioner, Ester Nelson, is the mother of the child involved in this matter ("child"). (Pet'r's Ex. ("Ex.") 1.)

2. Respondent, Joseph Petterle, is the child's father. (Ex. 1.)

3. Petitioner and Respondent were married in January of 1999, at Lake Tahoe, California.

4. The child was born in 1999 in the United States. 5. The parties and child lived together in Sparks, Nevada until 2001, when they moved to Oceanside, California.

6. Petitioner and Respondent separated in January of 2002. Upon separation, Petitioner and the child moved to Gothenburg, Nebraska; Respondent remained in California.

7. While living in Nebraska, Petitioner commenced a proceeding for Legal Separation. Petitioner modified the Legal Separation into a proceeding for divorce.

8. A Decree of Dissolution of Marriage ("Decree") was granted on January 27, 2004, by the District Court of Lincoln County, Nebraska. (Ex. 2.) The Decree awarded Petitioner "care, custody and control" of the child, "with reasonable visitation reserved in the Respondent."

The child custody portion of the Decree states:

1. CHILD CUSTODY: That the care, custody and control of the minor child of the parties . . . shall be awarded to the Petitioner, with reasonable visitation reserved in the Respondent.

The parties agree that each shall keep the other' [sic] informed of the physical status of the minor child and all other matters which are pertinent to the continuation of a strong relationship between parent and child, and neither party shall alienate the affection of the child for the other party. (Ex. 2, p. 2.)

9. Since the child has been of school age, Respondent has had visitation of the child every summer. Respondent testified the child would spend at least two months with him each summer, from approximately the end of a school year until shortly before the start of the next school year.

10. In 2007, Petitioner and child moved to Moscow, Idaho so Petitioner could attend the University of Idaho. Respondent did not object to the move.

B. Petitioner's Move to Iceland

11. In 2008, Petitioner received two scholarships to attend the University of Iceland.

12. Petitioner has family in Iceland, including her grandmother, four older brothers and numerous aunts, uncles and cousins. Petitioner resided briefly in Iceland as a child.

13. Petitioner first discussed moving to Iceland with Respondent in 2008 when she requested he sign a passport application for the child. Petitioner told Respondent she won two scholarships and was moving there to attend school.

14. Respondent testified that Petitioner presented the move to Iceland "as a package deal" with a "closed end." Respondent believed Petitioner and the child's move to Iceland was temporary.

15. Respondent signed the child's passport application. 16. Petitioner moved to Iceland in July of 2009. Petitioner's primary purpose in moving to Iceland was to complete her university training so she could improve her situation for herself and her family. Petitioner had discussed the idea of moving to Iceland with her children (the child and her 17 year-old son from another relationship).

17. At the time of Petitioner's move to Iceland, she abandoned Idaho as her home. Petitioner did not maintain a residence in Idaho and had no intention of returning to Idaho, Nebraska, or California. When Petitioner moved to Iceland, she sold her furniture and vehicle, and packed only things that were "irreplaceable." The child helped her decide what items to keep and move.

18. When Petitioner moved to Iceland, she had not made a final decision to remain in Iceland after completing college. However, the possibility of remaining in Iceland permanently was an option from the beginning. Petitioner made her decision to remain in Iceland gradually, as she settled into her new home with the child. After a time, it became Petitioner's settled purpose to live in Iceland full-time with the child. Petitioner discussed remaining in Iceland with the child and they came to the decision to remain in Iceland as a family.

19. Petitioner informed Respondent of her intention to remain in Iceland permanently sometime after the New Year in 2010, when she told Respondent she was working on obtaining her Icelandic citizenship.

20. Respondent testified Petitioner first told him that she wanted to stay in Iceland permanently in April of 2010. Respondent further testified that he told Petitioner he "was not interested" in the child obtaining Icelandic citizenship.

21. Respondent's testimony indicates he would not have signed the child's passport application had he thought Petitioner would stay in Iceland permanently.

22. At the time of Petitioner's move to Iceland, the child was on summer vacation with Respondent in Sacramento, California. The child flew to Iceland to be reunited with Petitioner in the second week of August, 2009.

C. The Child's Time in Iceland

23. The child resided continuously with Petitioner in Iceland from the middle of August, 2009, until July 2, 2010. Petitioner and the child lived in family campus housing in Iceland. There were multiple children around the child's age living in campus housing, and the child made a number of friends. The children in campus housing attend the same school as the child. The child participated in an Iceland soccer league and joined a basketball team; both held practice multiple times a week. The child also spent time with his extended family, including children around his age. Some of Petitioner's extended family live in the same town as Petitioner, and others live less than thirty minutes away.

24. The child attended his community school in Iceland for the entire 2009-2010 academic year. Children at the school learn both Icelandic and English. The child was in the fifth grade, but participated in the sixth grade English class.

25. The principal of the child's Icelandic school wrote a letter stating his "attendance and his academic position is reasonable," his "conduct in school was normal," and "his social status among his peers was good." (Ex. 18.)

26. Petitioner testified that the child's academic year in Iceland was normal, and she and the child would do their homework together.

27. Petitioner testified that the child felt at home in Iceland and called himself the "Viking" because of its cultural significance.

28. Once in Iceland, Petitioner obtained Icelandic citizenship for herself. She is a dual citizen of Iceland and the United States. Petitioner testified the child obtained Icelandic citizenship automatically when she became an Icelandic citizen and that he can make ...


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