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Blackledge v. Blackledge

United States Court of Appeals, Third Circuit

August 3, 2017

CHARLES WESLEY BLACKLEDGE, Appellant
v.
OLGA GRIGORIEVNA BLACKLEDGE

          Argued: May 19, 2017

         On Appeal from the United States District Court for the Western District of Pennsylvania (W.D. Pa. No. 2-16-cv-01004) Honorable Nora B. Fischer, District Judge

          James C. Martin, Esq., Reed Smith, Michael P. Yingling, Esq. (Argued) Attorneys for Petitioner-Appellant [1]

          Barbara B. Ernsberger, Esq. (Argued), Behrend & Ernsberger Attorney for Respondent-Appellee

          Before: AMBRO, KRAUSE, and NYGAARD, Circuit Judges

          OPINION OF THE COURT

          KRAUSE, CIRCUIT JUDGE.

         Petitioner, a German resident, appeals the denial of his petition alleging that his wife wrongfully retained their then-eight-year-old son in the United States in violation of the Hague Convention on the Civil Aspects of International Child Abduction. Because we conclude that, to the extent an agreement between the parties can be gleaned from the record, the parents' shared intent was that the child would move to the United States not for a transient visit, but with a settled purpose, and because the child had acclimatized to his life in the United States at the time of the retention, the United States was then his habitual residence and the retention was not wrongful under the Convention. Accordingly, we will affirm.

         I. Factual Background

         A. J.B.'s Early Years and Initial Two-Year Residence in Pittsburgh

         J.B., a United States citizen, was born in the Ukraine in 2008 to Petitioner Charles Blackledge, a United States citizen who currently resides in Berlin, Germany, and Respondent Olga Blackledge, a Ukrainian citizen and lawful permanent resident of the United States who currently resides in Pittsburgh, United States. For the first three years of J.B.'s life, the family lived in Kharkiv, Ukraine, and Dublin, Ireland, while also spending some weeks in Vilnius, Lithuania. In the spring of 2011, when the family was staying in Lithuania and then Ukraine, Petitioner secured a job as a patent agent in Germany at about the same time Respondent was accepted to a Ph.D. program at the University of Pittsburgh. The family left Ukraine and, after a seven-week summer holiday in Munich, Germany, Respondent and J.B. moved to Pittsburgh and lived for the next two years separately from Petitioner, who lived and worked in Berlin, Germany, while regularly visiting and communicating with J.B. According to Petitioner, the plan was for the family to eventually reunite-either Respondent would finish her coursework in Pittsburgh and go to Germany or Petitioner would use his position in Germany "as a stepping stone to get back to the [United States]." J.A. 240.

         In the summer of 2013, after Respondent and J.B. had lived in Pittsburgh for two years, J.B. underwent cardiac surgery at the Children's Hospital in Pittsburgh. Petitioner went to Pittsburgh to be with J.B. during his recuperation and to seek jobs in the United States. When those efforts proved fruitless, Petitioner decided to return to Germany and Respondent agreed to join him, both because she had agreed, before the initial move to Pittsburgh, to move to Germany for two years and because she was financially unable to support herself at that point. Respondent then arranged for storage of toys, books, furniture, and other belongings with a friend in Pittsburgh, and Petitioner, Respondent, and J.B. moved together to Berlin, Germany, in August 2013. For J.B., this was the first time he had ever been to Berlin or ever resided in Germany.

         B. J.B.'s Move to Germany

         After the move, Respondent continued to pursue her Ph.D. studies at the University of Pittsburgh, remotely, and J.B. was enrolled in the J.F.K. School, a public school "founded in conjunction [with the] American Embassy and German Government" with a "bilingual/bicultural" focus, intending to provide American students with an "easier time to adjust to the[ir] German" residency while still "preserv[ing] their language and continu[ing] to work on their language skills and all of the subjects in English." J.A. 430-31. J.B. also attended an afterschool program at J.F.K., where students could play and do their homework, joined a soccer team, and played chess at the Russian House.

         In August 2015, when J.B. was seven years old, Respondent sought to return to Pittsburgh to complete the final phase of her Ph.D. program. By this point, according to both parties, the marriage had become acrimonious, and, according to Respondent, they had "agreed that [they would] divorce" and that it was only "a matter of time [as to] when." J.A. 421-22. While the nature of the parties' disagreement over J.B.'s continued residence underlies this appeal and will be discussed in more detail below, Petitioner initially agreed that Respondent and J.B. would return to Pittsburgh, and they requested a one-year leave of absence for J.B. from the J.F.K. School and secured German visas for themselves and J.B. that were valid through 2018. Given the belongings they had stored in Pittsburgh in August 2013, Respondent and J.B. opted to leave in Germany items that were difficult to transport, such as toys, Legos, and a bike, when they returned to Pittsburgh in August 2015.

         C. J.B.'s Return to Pittsburgh

         Back in Pittsburgh, J.B. attended second grade in the 2015-2016 school year and, according to his teacher, "performed as a wonderful second grader, " earning, cumulatively, at the end of the year As in spelling, handwriting, math, and grammar, and a B in reading, and finishing the year on "academic high honor roll." J.A. 328-30. J.B.'s teacher described him as a "well-behaved" child who "followed rules and routines easily, " "made friends easily, " J.A. 330, was "[k]ind, happy, loving, eager to learn, " and was generally "well-adjusted, " J.A. 334. Despite an initial deficiency in reading, J.B. finished the fourth quarter with "an excellent grade, " showing what his teacher termed "dramatic improvement" in his reading level throughout the year. J.A. 333, 451. J.B.'s love of reading extended beyond the school year, when J.B. joined a summer reading challenge, completing the fifteen-book assignment by July 5, two months ahead of the August 31 deadline.

         J.B. was also a member of a four-student robotics club, organized by a parent of one of his classmates. The team met every Saturday or Sunday afternoon when the students would design missions and submit the mission to a robotics competition, winning first place in Pennsylvania and twenty-ninth in the United States. J.B. was tentative at first, because he didn't know how to program the robot and thought the tasks were "impossible, " but by the end "he was . . . so excited" by the project, and he was able to explain his favorite mission and how the students accomplished it. J.A. 355-56. J.B. and the classmate whose mother had organized the robotics club "stayed friends after the robotic project" ended, playing Legos and soccer together. J.A. 358.

         In addition, J.B. bonded with his teammates on his swim team, which ran for three trimesters-from September through December, January through April, and May through July. The goal for students on the team was to master the four competitive strokes so that they would be able to do them "correctly if they decide[d] to compete." J.A. 369-70. At the start of the year, J.B. was "able to swim the length of the pool free style" and had "a pretty good breast stroke kick, but his endurance-swimming the length of the pool was difficult." J.A. 371. By spring, however, he was able to compete in four meets, "better[ing] his times pretty much every meet" and, by summer, "he was able to swim all four strokes, " do "flip turns, " and "dive." J.A. 371-72.

         J.B. made many friends in Pittsburgh and enjoyed play dates, birthday parties, video-gaming, playing soccer, playing card games, sleepovers, and other outings with various young people. J.B.'s own birthday party, when he turned eight in June 2016, was attended by many of those friends. Respondent's friends and colleagues also developed a bond with J.B., enjoying dinners together, attending university events and spending weekends and holidays together, going to the park, attending theater festivals and puppet shows together, and generally playing with and babysitting J.B.

         Respondent and J.B. also explored the broader Pittsburgh environs, including trips to Erie, Pennsylvania, Frank Lloyd Wright's Fallingwater in Mill Run, Pennsylvania, and Pittsburgh's four Carnegie Museums. They also became members of a local museum called the Mattress Factory where J.B. enjoyed "showing off his knowledge . . . to his friends, " whom he sometimes invited to join him. J.A. 446-47. J.B.'s interests extended as well to sports, and he became familiar with the local sports teams and was a fan of the Pittsburgh Penguins hockey team and the Riverhounds soccer team.

         D. Parents' Dispute Over J.B.'s Continued Residence

         Within the first month of J.B.'s stay in the United States, Petitioner sent Respondent an email, referencing job applications he had sent to the United States and elsewhere, and indicating that he might be moving to another country so that J.B. would not be returning to Germany at all. Respondent assured Petitioner that J.B. "is pretty happy in Pittsburgh, so by the end of the year, going back to Berlin might not be exactly what he wants." J.A. 199. Petitioner replied to this email but did not comment on, or reject, the possibility of J.B. remaining in Pittsburgh.

         However, five months later, in February 2016, Petitioner initiated a series of emails with Respondent that form the bulk of the record of the parties' shared intent as to J.B.'s habitual residence. These began with Petitioner's request that Respondent "confirm [her] commitment to our agreement" that J.B. would return to Germany for the 2016-17 academic year. J.A. 188-90. For her part, the Respondent did not deny the existence of an agreement but asked the Petitioner to "reconsider it, " J.A. 172, explaining, "I do not think . . . it is a good idea for a child [J.B.'s] age to live with one parent for a year, and with the other for a year, " J.A. 181. That agreement, Respondent stated, "presupposes . . . yearly adaptation to living with different parents [which] is psychologically disadvantageous" to J.B., and urged Petitioner to consider J.B.'s well-being, J.A. 177, suggesting that Petitioner move "somewhere close" so that they could both "take care of [J.B.] on a permanent basis" and not "change [J.B.'s] permanent caregiver every year." J.A. 181.

         In response, Petitioner observed that Respondent had not expressed any concerns about J.B. "spend[ing] alternate years with us when the agreement was made." J.A. 178. And while Petitioner acknowledged Respondent's "concerns about stability of dwelling, " he explained that he did not "think there [we]re better options than maintaining [their] previous agreement, " J.A. 179 (emphasis omitted), which he characterized as: "[J.B.] would go with you to Pitt[sburgh] and return to me for 2016-2017 academic year. Then back to you . . . ." J.A. 176. In subsequent correspondence, Petitioner advised Respondent to "prepare [herself] for fulfillment of [the] agreement that [J.B.] returns to [Respondent] for 2016-2017, " reassuring her, "You'll have him again in 2017, " J.A. 168. And in May, the parties again discussed the prospect of J.B. alternating years between his parents, with Petitioner documenting in his notes of their call that Respondent continued to oppose "any plan for [J.B.] to alternate between Germany and [the] USA, " because she believed that it "put[] too much pressure on [J.B.] to go back and forth" and "insist[ed] upon more consistency." J.A. 156-58.

         While the dispute between the parties over J.B.'s long-term residency arrangements was ongoing, Respondent filed petitions for divorce and custody and, at the end of May, the Family Court in Allegheny County, Pennsylvania issued an interim custody order that, in terms of physical custody, allowed J.B. to continue to reside with the Respondent, pending a final custody determination, and granted Petitioner visitation over the summer and holidays.

         On June 9, Petitioner informed Respondent that he had found a good rate for J.B. to return to Berlin on June 19 and that he wanted J.B. to stay in Berlin and go to school there "like we planned." J.A. 144. Respondent objected on the grounds that, under the interim custody order, any trip to Berlin would only be for a visit, not for the school year, and that J.B., in any event, was committed through August 3 to attend robotics and other summer camps, which Petitioner had not told her to cancel and for which the cancellation deadline had then passed.

         Declaring that the interim custody order was "not valid, " Petitioner "demand[ed] that [J.B.] return on 19 June, " J.A. 143, and reiterated that he was looking at tickets for both Respondent and J.B., even though Respondent objected that ". . . it sounds like you are planning to abduct [J.B.], " and that Petitioner should "contest the court's decision . . . legal[l]y, " J.A. 143. After a few additional exchanges in which Respondent sought assurance from Petitioner about the length of J.B.'s visit before she would consent to his return to Germany, Petitioner stated that he was "still waiting to hear anything more from the mediators." J.A. 140. The record reflects no additional email communications between the parties.

         On July 6, 2016, Petitioner filed a petition in the United States District Court for the Western District of Pennsylvania, seeking J.B.'s ...


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