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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

In re:

The Application of:

TERJE BYE FJELDHEIM,

Petitioner, File No. 1:95CV-394

v. Hon. Richard Alan Enslen

SARA MARIE ANDERSON FJELDHEIM,

Respondent.

______________________________

This matter is before the Court on the parties' respective motions

for summary judgment regarding this petition for the return of the

child, Tove Johanne Anderson FJeldheim, to the Country of Norway

pursuant to the terms of International Child Abduction Remedies

Act (42 U.S.C. Sec 11601 et seq.). For the reasons which follow,

these motions shall be denied.

These motions concern the family life of Terje Bye Fjeldheim, Sara

Marie Anderson, and their daughter Tove Johanne Anderson

Fjeldheim. Terse Fjeldheim is a native citizen of Norway; Sara

Anderson is a native citizen of the United States; and Tove

Anderson Fjeldheim is a dual citizen of the United States and

Norway. It appears from the affidavits filed that Petitioner and

Respondent were married in Oslo, Norway on November 14, 1980, and

that Tove was born in Oslo, Norway on March 11, 1982. It further

appears that Tove lived in Oslo, Norway between 1987 and April 3,

1994. At which time, the child was taken with her father's

permission to Traverse City, Michigan -- according to him for the

purpose of a temporary visit of her grandparents which was

supposed to end on July 1, 1994.

I.

Needless to say, Tove was not returned to Norway. On June 16,

1994, Respondent filed a complaint for ex parte temporary custody

and restraining order with the 13th Circuit Court for the County

of Grand Traverse, Michigan. Copies of these pleadings and others

noticing a hearing before the Circuit Court on August 18, 1994

were personally served on Petitioner on July 6, 1994. There having

been no answer by Petitioner to the Circuit Court, the county

clerk entered the default of the Petitioner and notice of the

default was sent to Petitioner on August 11, 1994. Neither

Petitioner nor an attorney on his behalf appeared for the

scheduled August 18, 1994 hearing and the Circuit Court then

entered an order awarding custody to the Respondent and further

finding that under the Hague Convention of the Civil Aspects of

International Child Abduction and the International Child

Abduction Remedies Act that the child was not wrongfully retained

in the United States because the child was of sufficient age to

express a preference as to her place of residence and had

expressed a preference to remain in the United States. Such order

was based in part on the testimony of both the Respondent and of

Tove FJeldheim, who stated in part that she did not wish to return

to Norway and wished to live with her mother in Michigan.

Meanwhile, the Petitioner was pursuing remedies under the Act

through the State Department. It appears that Petitioner filed a

petition for repatriation of Tove pursuant to the Hague Convention

with the Norwegian Ministry of Justice and Police on June 21,

1994, which was then forwarded to the United States State

Department Office of Children's Issues on June 27, 1994

Apparently, the State Department misinformed the Petitioner by

letter of August 12, 1994 that the Circuit Court action would not

proceed because of the issues under the Hague Convention (which

according to Petitioner would have been the correct response to

the petition under Article 16 of the Hague Convention).

Petitioner also sued In the Sarpsborg City Court for marital

separation and custody on February 10, 1995. According to

Petitioner, he recently received an order from the pertinent

Norwegian appellate court granting him joint custody of Tove

pending a final determination -- but giving Respondent daily care

of Tove until such determination was made.

Petitioner, through his attorneys, then filed this application for

the return of the child in this Court on June 15, 1995. Petitioner

claims that the child should be returned to Norway because she was

wrongfully retained in Michigan from her country of habitual

residence by her mother. To the contrary, the Respondent claims

that the Circuit Court has already determined that the child was

not wrongfully retained and that it is in the best interests of

the child to remain win her mother.

II

Federal Rule of Civil Procedure 56(c) provides that summary

Judgment is proper "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with affidavits,

if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to Judgment as a maker

of law." City Management Corp. v. U.S. Chemical Co. 43 F.3d 244,

250 (6th Cir. 1994) (quoting Rule 56(c)).

"A party seeking summary judgment bears the initial burdens of

specifying the basis upon which it contends judgment should be

granted and of identifying that portion of the record which, in

its opinion, demonstrates the absence of a genuine issue of

material fact." Pierce v. Commonwealth Life Ins Co., 40 F.3d

796, 800 (6th Cir. 1994) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986)). "Once this initial burden is met, it

becomes the burden of the non-moving party to come forward with

specific facts, supported by the evidence in the record, upon

which a reasonable jury could find there to be a genuine fact

issue for trial. Bill Call Ford, Inc. v. Ford Motor Co., 48 F.3d

201, 205 (6th Cir. 1995) (citing Anderson v. Liberty Lobby. Inc..

477 U.S. 242, 248 (1986)). Summary judgment against the non-movant

is appropriate where the non-movant, after adequate time for

discovery on material matters at issue, fails to make a showing

sufficient to establish the existence of a material disputed fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

"Credibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences are [trial] functions, not

[summary judgment functions] . . . The evidence of the non-movant

is to be believed, and all justifiable inferences are to be drawn

in [the non-movants] favor." Anderson 477 U.S. at 255. The

factual record presented must be interpreted in a light most

favorable to the non-movant. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp 475 U.S. 574, 587 (1986). This Court "may not resolve

disputed questions of fact in a summary judgment decision . . .

and if a disputed question of fact remains, the district court

should deny the motion for summary judgment and proceed to trial."

In re Atlas Concrete Pipe Inc., 668 F.2d 905, 908 (6th Cir. 1982).

III

Respondents motion for summary judgment is based on her argument

that the principles of collateral estoppel and res judicata and

the Constitution's Full Faith and Credit Clause require that the

Court enforce the order of the Circuit Court determining that the

Hague Convention and the Act did not require Tove's return to

Norway. 28 U.S.C. 1738; United States v. McGlocklin, 8 F.3d 1037,

1052 (6th Cir. 1993). Petitioner's response is that these orders

are without effect because the Circuit Court lacked subject matter

jurisdiction under the Act to make such a determination. United

States v. Brady, 936 F.2d 212. 216 (5th Ctr. 1991); Heikkinen v.

Hovinen, 7 Mlch. App. 541, 545, 152 N.W.2d 163, 165 (1967).

To understand Petitioner's response requires a discussion of the

terms and purposes of the Convention and the Act. The Hague

Convention of the Civil Aspects of International Child Abduction

was signed into international law on October 25, 1980 for the

purposes of "secur[ing] the prompt return of children wrongfully

removed or retained in any contracting State; and . . . ensur[ing]

that rights of custody and of access under the law of one

Contracting State are effectively respected in other Contracting

States.. Art. 1. Its terms have been implemented by the laws of

all countries adopting the Convention. In the United States, its

terms have teem implemented through the terms of the International

Child Abduction Remedies Act (42 U.S.C. 11601 et seq).

Under the terms of the Act, it is clear that both state and

federal courts have subject matter jurisdiction to make

determinations under the Act when a petition is filed by the

parent claiming the abduction or retention. See 42 U.S.C.

11603(a), (b); Tyszmka v Tyszkma 200 Mlch, App, 231, 503 N.W.2d

728 (1993). However, it is far less clear whether the courts have

jurisdiction when the complaint is filed by the parent who has

retained possession of the child. This Is because the Act and

Convention are worded In such a way to address remedies for the

"petitioner" or "applicant" -- which would seem to apply only to

the parent who has lost custody of the child and is seeking return

of the child. See 51 Fed. Reg. 10493, 10503 (1993); 42 U.S.C.

11602(1), 11602(4), 11603(b). While the Respondent argues that

such is too narrow of a reading of the grant of jurisdiction under

the Act and essentially throws a wrench into the workings of the

Act (which contemplates that state courts will first make a Hague

Convention analysis before proceeding to determine custody), the

Petitioner argues that this result is required by the language of

the Convention and Act and is in keeping with the purpose of the

Convention and Act that the parent residing in the place of the

child's habitual residence have control over the forum that

determines the custody issue. Peter H. Pfund, "The Hague

Convention on International Child Abduction, the International

Child Abduction Remedies Act, and the Need for Availability of

Counsel for All Petitioners." 24 Fam.L.Q. 35, 43 (1990).

Were this dispute about only the reading of the words Petitioner

and Applicant -- then perhaps those words could be read broadly to

accommodate the interests advanced by the Respondent. However, the

reading of those words, and of the Act and Convention in general,

are intermeshed with their purposes -- which are to discourage the

settling of custody disputes across foreign borders. The purpose

of the statute is fundamental to its interpretation since, as

Judge Learned Hand once wrote, "[statutes] should be construed,

not as theorems of Euclid, but with some imagination of the

purposes which lie behind them." Lehigh Valley Coal Co. v.

Yensavage, 218 F. 547, 553 (2nd Cir. 1914); see also Connecticut

Nat'l Bank v. Germain, 503 U.S. 249, 255 n.1 (1992) (J. Stevens

concurring) (quoting Lehigh, supra). To this end, the terms

"petitioner" and "applicant" are meant to apply only to the parent

whose child has been taken from him/her and away from the child's

country of habitual residence. Accordingly, this Court determines

that the state court lacked subject matter jurisdiction to

determine the Hague Convention issues since no "petition" or

"application" had been filed with it. As such, its determination

of these issues has no binding effect on this Court, nor any

other. Accordingly, Respondent's motion for summary judgment is

denied.1

IV

As for Petitioner's motion for summary judgment, it is true that

he has established a prima facie case of wrongful retention of a

child away from her place of habitual residence. Friedrich v.

Friedrich, 983 F.2d t396, 1400 (6th Cir. 1990). However, it is

also true that the Respondent has submitted substantial evidence

which would tend to establish some of the exceptions under

Articles 12 and 13 of the Convention -- among others, that the

child is now settled in her new environment,2 and that she does

not wish to return to Norway and and is of sufficient age and

maturity to express her preference. Hence, the determination of

these issues require trial and are not appropriate for summary

judgment under Rule 56. Therefore, Petitioner's motion for summary

judgment is denied.3

V

An Order shall be entered denying said motions, consistent with

this Opinion.

Dated In Kalamazoo, Ml /s/ Richard Alan Enslen

___________________________

19 Jan 1996 RICHARD ALAN ENSLEN

Chief Judge

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1. Respondent has also pointed to evidence of other defenses

under Article 13 of the Convention -- especially including

the fact that the child has stated for the record that she

does not wish to reside with her father. However, each of

these issues are not appropriate for summary judgment

because they involve the weighing of issues (like whether

the child is sufficiently mature to express a preference)

which cannot be determined from a cold record.

2. The Petitioner notes that there was less than a year from

the date the wrongful retention to the date that this

petition was filed. This is significant since the terms of

Article 12 would would appear to require that the Court

order return of the child immediately. However, when read

closer, Article 12 does permit the Court to consider whether

the child is settled in a new environment after more than

one year from the date of the wrongful retention. In this

case, the Court believes that the pertinent date for timing

purposes is the April 3, 1994 date when the visit began.

Since more than one year elapsed between that date and the

date the petition was filed, the Court can consider evidence

relating to whether the child now has become settled in her

new environment -- in addition to other exceptions in

Article 13.

3. Furthermore, while this Court does have authority under

Article 16 of the Convention to order the return of be child

notwithstanding the evidence of exceptions, the Court deems

no sound reason for exercising that authority in this case.