United States District Court, C.D. California
IN RE A.L.C. and E.R.S.C., ANDREAS CARLWIG, Petitioner,
SARODJINY CARLWIG, Respondent
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For Andreas Carlwig, Petitioner: Khurram Ahmed Nizami, LEAD ATTORNEY, Genga and Associates, Sherman Oaks, CA; Lawrence S Katz, LEAD ATTORNEY, PRO HAC VICE, Lawrence S Katz Law Offices, Miami, FL.
Sarodjiny Carlwig, Respondent, Pro se, Los Angeles, CA.
OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE.
ORDER GRANTING PETITION FOR RETURN OF CHILDREN TO SWEDEN [1, 3]
Before the Court is a discrete area of international law that presents a rare instance where a federal district court must dip its toes into the waters of family law. Petitioner Andreas Carlwig is seeking the expedited return of his two minor children to Sweden pursuant to the Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (the " Convention" ), and its implementing legislation, the International Child Abduction Remedies Act (" ICARA" ), 42 U.S.C. § § 11601-11. Respondent Sarodjiny Carlwig is the children's mother and the wife of Petitioner. She is currently in Los Angeles with the couple's two children. While the Court must make a foray into family law to adjudicate the Petition, the Court notes that this is not a child custody proceeding. The Court's role is limited to determining where child custody proceedings should be held--the U.S. or Sweden. For the reasons discussed below, the Court GRANTS the Petition and ORDERS the return of A.L.C. and E.R.S.C. to Sweden for custody proceedings. (ECF Nos. 1, 3.)
II. PROCEDURAL HISTORY
On February 27, 2014, Petitioner Andreas Carlwig (" Father" ) filed a Verified Petition for Return of Children to Sweden under the Convention. (ECF No. 1, 3.) The Petition was assigned to this Court on March 7, 2014. Respondent Sarodjiny Carlwig (" Mother" ) was served with the Petition on March 13, 2014. She chose to proceed in this matter unrepresented by legal counsel.
Mother filed a Response and Motion to Dismiss or Stay the Petition on March 27, 2014. (ECF No. 20.) On April 4, 2014, Father filed a Reply as well as separate responses to the affirmative defenses and Motions. (ECF Nos. 24, 25, 26.) Mother then filed an additional response titled Supplement (sic) Declaration of Respondent in Opposition to the Petitioner on April 8, 2014. (ECF No. 35.)
On April 11, 2014, the Court held an all-day hearing on the Petition and Mother's affirmative defenses. Having already thoroughly reviewed the parties' filings, the Court instructed the parties at the
hearing to limit testimony to certain issues: the children's habitual residence and the affirmative defenses available to Mother. Both Mother and Father testified at the hearing, and the parties called a handful of additional witnesses. The Court also accepted additional exhibits into evidence. The Court's analysis and factual findings are based on all of the filings and exhibits in this case as well as the testimony at the April 11, 2014 hearing.
III. FACTUAL BACKGROUND AND FINDINGS
Father and Mother married in Las Vegas, Nevada, on November 1, 2007. (Pet. 5:10, Ex. 3.) Father is a citizen of Sweden. (Pet. 5:4-6.) Mother was born in India and is a citizen of both the U.S. and France. (Pet. 5:7-8.) Throughout their marriage, the family's residence has been largely dictated by Father's job assignments. Shortly after their wedding, the couple moved to Dubai, United Arab Emirates. (Pet. 5:20-24.) Their first child, A.L.C., was born in Dubai in 2008. ( Id. ) A.L.C. is a citizen of both the U.S. and Sweden. ( Id. )
A. The Family's Move to Sweden
In September 2011, Father's employer closed its operations in the U.A.E., and he was given a new assignment in Sweden. (Pet. 6:1-8.) Father commuted between Stockholm, Sweden and Dubai for the next three months. ( Id. ) He testified at the hearing that he was able to visit his wife and A.L.C. in Dubai every third weekend.
In January 2012, the entire family relocated to Stockholm. ( Id. ) Father and A.L.C. left first for Sweden, while Mother remained in Dubai to finish the last part of the move. ( Id. ) Mother contends that she was forced to move to Sweden and only agreed to a six-month trial period. (Resp. ¶ 11.) In her Response and at the hearing, Mother went into great detail about her residency status in Sweden and how the move to Sweden interrupted previous plans to move to the U.S. ( See, e.g., id. ¶ 11.) But the Court finds most of Mother's testimony regarding the move to Sweden irrelevant to the Petition and her affirmative defenses. Ultimately, Mother acquiesced to the move and lived in Sweden with Father and A.L.C. for about thirteen months.
While living in Sweden, A.L.C. started preschool and began making friends. (Pet. 6:9-15.) Father's relatives also live in Sweden and A.L.C. was able to spend time with his relatives including his grandparents, aunts, and cousins. ( Id. ) Photographs of A.L.C. with his family in Sweden as well as a video were introduced into evidence at the hearing. (Pet. Hrg. Exs. 25, 49.) A.L.C. also took part in several extracurricular activities in Sweden including swimming, taekwondo, and soccer. (Pet. 6:16-19.) At the hearing, Father testified that he helped coach A.L.C. in soccer. Father also helped take A.L.C. to school and picked him up afterschool. ( Id. )
When the family moved to Sweden in 2012, they moved into a rented apartment. The lease was for nine months and was later extended an additional three months. (Pet. Hrg. Ex. 3.) Father was employed in Sweden and is still employed by the same company he worked for in Dubai. Mother was not employed while the family lived in
Sweden. Mother admits that they left no belongings behind in Dubai. (Resp. ¶ 12.)
In September 2012, while living in Sweden, Mother learned that she was pregnant with the couple's second child--E.R.S.C. (Pet. 6:20-26.) The parties' stories conflict with respect to how they welcomed the news of Mother's pregnancy. But Father has submitted correspondence between the couple from the fall of 2012 suggesting that the couple's marriage was in a good place and that they were happy about the pregnancy. ( See, e.g., Pet. Hrg. Exs. 8-10.)
B. Mother's Departure to Los Angeles
Father testified at the hearing that Mother first raised the possibility of traveling to Los Angeles in November 2012 for the purpose of giving birth to E.R.S.C. By all accounts, Mother's pregnancy with E.R.S.C. was a difficult one. The reason she gave Father for wanting to give birth in Los Angeles was to be close to her friends--whom she refers to as " family" --and because the birth of A.L.C. in Dubai was a bad experience. ( See, e.g., Pet. 6:27-7:3.) Father ultimately agreed to the trip, but admits he had reservations particularly with the idea of A.L.C. going with Mother while he had to remain in Sweden for work. ( Id. at 7:4-9.) Father purchased roundtrip tickets from Stockholm, Sweden to Los Angeles for Mother and A.L.C., with a departure date of January 16, 2013, and a return date of September 4, 2013. (Pet. Ex. 4.)
Right before the scheduled departure date, Mother visited a doctor in Sweden and learned that she had a low platelet count. (Pet. 7:15-19.) Concerned about her health, the trip to Los Angeles was cancelled. ( Id. ) But Mother later changed her mind and a new flight to Los Angeles was booked for herself and A.L.C. ( Id. at 8:13-9:2.) They left for Los Angeles on February 27, 2013, while Father remained in Sweden. ( Id. at 9:3-12.) Both Mother and Father admit to the existence of a note, written by Father, consenting to the trip to Los Angeles. A handwritten note, apparently signed by Father, was submitted by Mother in her Response. (Resp. Ex. 6.) The note only states that Father consented to Mother taking A.L.C. to Los Angeles. ( Id. ) The note is silent as to the trip's purpose or duration. ( Id. ) Father maintains that the note is either a forgery or an earlier draft of the note. (ECF No. 24 at 4:6-10.) Father states that the final draft included that the trip was to be only four to six months in duration--enough time for Mother to give birth and recuperate. Father's contention that the trip was only temporary is consistent with the round-trip tickets that were initially purchased for Mother and A.L.C. ( See Pet. Ex. 4.)
The Court notes that Mother testified and submitted various notes and correspondence to demonstrate that the parties had discussed moving to the U.S. at various points during their marriage. ( See, e.g., Resp. ¶ 18, Exs. 1, 7.) But none of Mother's submissions indicate that the parties reached an agreement to move to Los Angeles--or anywhere in the U.S.--in February 2013.
C. The Time Spent in Los Angeles
Once Mother and A.L.C. arrived in Los Angeles, Father attempted to regularly
communicate with A.L.C. At the hearing, Father testified that the parties tried to arrange a regular time for Skype calls, taking into account the time ...