Baz v. Patterson

100 F.4th 854

Asli BAZ, Petitioner-Appellee, v. Anthony PATTERSON, Respondent-Appellant.

No. 23-3407

United States Court of Appeals, Seventh Circuit

Argued April 11, 2024

Decided April 30, 2024

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:23-cv-05017 — Jorge L. Alonso, Judge.

Barbara A. Smith, Attorney, Bryan Cave Leighton Paisner LLP, St. Louis, MO, Samuel Edward Hofmeier, Adam Thomas Steinhilber, Attorneys, Bryan Cave Leighton Paisner LLP, Kansas City, MO, for Petitioner-Appellee.

Jonathan Schaffer-Goddard, Vincent Levy, Aditi Shah, Attorneys, Holwell Shuster & Goldberg LLP, New York, NY, for Respondent-Appellant.

Before Wood, Hamilton, and Lee, Circuit Judges.

Wood, Circuit Judge.

Asli Baz, a citizen of Germany, filed this suit under the International Child Abduction Remedies Act, Pub. L. No. 100-300, 102 Stat. 437 ("ICARA"), seeking to compel Anthony Patterson, a citizen of the United States, to return their six-year-old son, A.P., from Illinois to Germany. ICARA implements the Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S., No. 11,670, 1343 U.N.T.S. 89 (Oct. 25, 1980) ("the Convention"), an international treaty to which both the United States and Germany are parties. The statute "entitles a person whose child has been wrongfully [retained in] the United States in violation of the [ ] Convention to sue the wrongdoer in federal court for the return of the child" to the child's habitual residence. Altamiranda Vale v. Avila, 538 F.3d 581, 583 (7th Cir. 2008) (citing 22 U.S.C. § 9003(b)).¹

The district court found that A.P.'s habitual residence at the time he was retained was in Germany, where he had lived with Baz for over a year, and that the retention in Illinois violated Baz's rights of custody under German law. It thus granted Baz's petition and ordered the child's return. We stayed the district court's return order while Patterson appealed the judgment. In his appeal, Patterson challenges both the jurisdiction of the district court and its rulings on the merits of the petition. We conclude that the district court properly exercised the jurisdiction granted to it by ICARA and that the record supports its decision. We therefore affirm.

I

In 2013, Baz was living in the United Kingdom and Patterson resided in Florida. The two met while Baz was visiting Miami, and they soon struck up a relationship. Two years later, Baz moved to Chicago on a student visa to pursue a doctoral degree in clinical psychology. Patterson accompanied her, they moved into a house together, and their son, A.P., was born in May 2017. Although Baz and Patterson ended their relationship shortly after A.P.'s birth, they continued to occupy the same house, though on different floors, pursuant to an order from the Circuit Court of Cook County, Illinois ("Illinois state court"). In November 2017, Patterson committed a domestic battery against Baz, for which he was charged, convicted, and sentenced to eighteen months of conditional discharge. He has fully served that sentence.

Over the next few years, Baz and Patterson continued to rely on the Illinois state court to resolve issues relating to A.P.'s custody and placement. On August 5, 2019, Baz sought and received the court's permission to relocate with A.P. to Wisconsin for her pre-doctoral internship. In September 2020, Baz again requested permission to relocate with A.P., this time to Minnesota so that she could complete a mandatory pre-doctoral fellowship in forensic psychology. The Illinois state court granted this request, too, and Baz completed her fellowship in March 2021.

Baz's student visa would have expired when her fellowship concluded, but it had been extended six months to March 2022 because of regulatory changes implemented during the COVID-19 pandemic. A sixty-day grace period allowed Baz to stay in the United States until May 21, 2022. As that date approached, Baz exhaustively pursued ways to remain in the country. She applied for and was offered a position as a forensic psychologist in Cincinnati, Ohio, but her petition in the H-1B lottery was unsuccessful. She entered the green-card lottery, but she was not selected for a visa. And she hired an immigration lawyer who helped her to apply for an EB-2 visa, but this effort was also unsuccessful.

Anticipating that she would need to leave the United States in May 2022, Baz sought permission from the Illinois state court to relocate with A.P. to Germany. Patterson objected to her request, and the guardian ad litem, Michael Bender, recommended that the court deny it. The Illinois state court held a trial on Baz's relocation motion and, on May 9, 2022, granted her petition. The court then instructed Baz and Patterson to draft an agreement detailing how they would divide their parenting time and decision-making responsibilities after Baz relocated.

The Illinois state court memorialized the parental agreement on May 23, 2022, in a document entitled "Allocation Judgment: Allocation of Parenting Responsibilities and Parenting Plan" ("Illinois Allocation Judgment"). The Illinois Allocation Judgment was signed by Baz, Patterson, and the presiding judge, but not by the guardian ad litem. It provided that A.P. would move with Baz to Germany, where he would attend school, with each parent paying half of his tuition. The agreement also stated that A.P. would continue with his primary health-care provider in the United States, but that Baz would be responsible for securing medical, health, and hospitalization insurance for him in Germany, at least through the first month following his eighteenth birthday.

Although A.P. was to spend much of his time in Germany, the Illinois Allocation Judgment provided that Patterson would have parenting time during the summer and other school breaks. He also was allowed to have daily video calls with A.P. and to visit him in Germany. The parents agreed that each of them would maintain possession of A.P.'s U.S. passport during his or her respective parenting time, and that they would exchange the passport whenever A.P. was dropped off or picked up. The parties were allowed to modify this parenting schedule by written agreement.

The Illinois Allocation Judgment also purported to determine A.P.'s habitual residence for purposes of the Convention. (As we elaborate below, a child's habitual residence matters to the Convention because a retention cannot be wrongful unless, among other requirements, "it is in breach of rights of custody attributed to a person . . . under the law of the State in which the child was habitually resident immediately before the . . . retention." Convention, art. 3.) The habitual-residence provision of the Illinois Allocation Judgment states that "[t]he 'Habitual Residence' of the minor child is the United States of America, specifically the County of Cook, State of Illinois, United States of America." Another provision provides that neither Baz nor Patterson had "consented, or acquiesced to the permanent removal of the child to or retention in any country other than the United States of America." The agreement also includes a jurisdictional provision, which states that "[s]o long as at least one parent resides in the State of Illinois, the Circuit Court of the State of Illinois shall retain exclusive and continuing jurisdiction over this cause to enforce or modify the terms and provisions of this Allocation Judgment." Although the Illinois Allocation Judgment stated that Baz would continue to apply for temporary and permanent visas that would allow her to travel to the United States, it did not impose a time limit on her efforts, nor did it state that Baz's and A.P.'s move would be temporary or provide a date that the agreement would expire.

By early May 2022, Baz had sold or donated all of her belongings in the United States. On May 13, 2022, with the permission of the Illinois state court, she and A.P. relocated to Germany. A.P. at the time was about five years old. Shortly after they arrived, Baz acquired a German passport for A.P., who, like her, is a German citizen. (To be accurate, A.P. has dual U.S. and German citizenship.) Baz testified that she applied for the passport because under German law A.P. could not attend school or enroll in the national health-care system without identification.

After Baz and A.P. relocated to Germany, A.P. enrolled in school as planned. He attended kindergarten at the International School on the Rhine in Düsseldorf from August 2022 through December 2022. He then transferred to the Johanniter Kindergarten in Erkrath, Germany (where Baz now lives), which he attended from January 2023 until July 2023. A.P. was scheduled to begin first grade on August 8, 2023, at the Regenbogen Grundschule (in English, the Rainbow Primary School), which also is located in Erkrath. Outside of school, A.P. has taken swim classes, and he has a German pediatrician, dentist, and therapist. Like A.P.'s classes, these extracurriculars are conducted in German. A.P. is fluent in German, English, and Turkish. He also has friends and extended family, including a maternal grandmother, in Germany.

During the year following A.P.'s relocation to Germany, Patterson visited A.P. several times and regularly exercised his parenting time in the United States. Prior to his relocation, A.P. had attended school and participated in extracurricular activities in Chicago during Patterson's parenting time. He has siblings who live in Chicago and extended family elsewhere in the United States.

Patterson's parenting time during one of A.P.'s school breaks ended on January 5, 2023. When he returned A.P. to Germany, however, he did not hand over the child's U.S. passport to Baz. In response, Baz sought the assistance of the German police. When the police failed to secure the passport, she became worried that Patterson planned to take the child from Germany and to retain him in the United States, and so she...