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Karkkainen v. Kovalchuk

April 24, 2006

MILLA KARKKAINEN, APPELLANT
v.
VLADIMIR IVANOVICH KOVALCHUK; JULIE L. D'ITRI



Appeals from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 04-cv-00662) District Judge: Honorable Joy F. Conti.

The opinion of the court was delivered by: Rendell, Circuit Judge.

PRECEDENTIAL

Argued January 27, 2006

Before: RENDELL and SMITH, Circuit Judges, and IRENAS*fn1, District Judge.

OPINION OF THE COURT

Milla Karkkainen filed a Petition for Return of Child under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 ("Hague Convention"). Karkkainen alleged that her ex-husband, Vladimir Kovalchuk, and his current wife, Julie d'Itri (collectively, the "Respondents"), wrongfully retained her daughter, Maria Kovalchuk, when she was eleven years old. The District Court denied the petition, holding that there was no wrongful retention because Maria's habitual residence was the United States. Karkkainen appeals this decision, arguing that Maria is habitually resident in Finland. Although this is a close case, we believe that, prior to her retention, Maria acclimatized to the United States and that there was a degree of settled purpose from her perspective to remain in this country. The existence of shared parental intent to permit Maria to choose her country of residence bolsters this conclusion. Thus, we agree with the District Court's finding that Maria is a habitual resident of the United States and will affirm.

I. Facts and Procedural History

Maria was born on April 25, 1992 in Russia. Her parents, Milla Karkkainen and Vladimir Kovalchuk, were married at the time and remained so until 1997. After their divorce, Karkkainen and Kovalchuk agreed that Maria would live with her mother in Finland.

Both Karkkainen and Kovalchuk remarried after their split. Karkkainen married Kimmo Karkkainen in January 1998, and Kovalchuk married Julie d'Itri in September 2000. Kovalchuk and d'Itri saw Maria periodically, either by traveling to Europe or by bringing her for visits to the United States. In 2000, however, Maria was unable to obtain a tourist visa for a visit to the United States due to the concerns of the United States Consulate in Finland about Maria's custody status.

As part of their effort to obtain a visa for Maria to visit the United States, Kovalchuk and Karkkainen signed a Stipulation in Custody in December 2000 that clarified their custody arrangement. The Stipulation provided, inter alia, that Karkkainen "shall have primary physical custody of [Maria], including the right of the child's residence in Finland, which for purposes of The Hague Convention on the Civil Aspects of Child Abduction, shall be considered the child's 'habitual residence.'" (Stipulation in Custody ¶ 5 at App. 503.) The parents continued to share legal custody of Maria such that both had "the right and responsibility to make major decisions affecting . . . [her] best interest." (Stipulation in Custody ¶ 3 at App. 503.) The terms of the Stipulation required that it be filed with the Court of Common Pleas of Allegheny County, Pennsylvania. Though the Stipulation was signed by a common pleas judge, the parties never actually filed it with the court. The record reflects that the primary purpose of the Stipulation in Custody was to secure Maria's tourist visa.

Despite these efforts to clarify Maria's custody status, Maria was unable to obtain a visa to visit the United States. In February 2002, the parties began discussions about making Maria a permanent resident of the United States for immigration purposes, which would dispense with the need for a tourist visa. In March 2002, Karkkainen granted permission for Maria to become a permanent American resident in a signed and notarized document. It was Karkkainen's understanding at that time that she would not lose any custody rights over her daughter if she were made a permanent resident of the United States, but that the change in immigration status would give Maria the right to remain in the United States indefinitely. Maria was granted an immigrant visa in September 2002 and she officially became a permanent resident of the United States when she visited the country in October 2002. She also visited the United States in December 2002 during the Christmas holiday and over her Easter break in April 2003.

During the winter of 2002 and spring of 2003, Maria, her parents, and her stepparents began to plan for Maria to make a longer visit to the United States. The parties agreed that she would spend the entire summer here with her father and d'Itri. In addition, Maria began increasingly to express her preference to move permanently to the United States. Maria had a conversation in May 2003 with her mother and stepfather in which she stated that she wanted to live with her father. Maria's stepfather told her that she was free to make that decision. When Karkkainen did not disagree with this statement, Maria was left with the impression that she had been given permission to move permanently to the United States if she wished. After this conversation, Maria said goodbye to her teacher, Tuula Merenheimo, and to several friends, telling them that she was moving to the United States. As a parting gift, Merenheimo gave Maria the books that she would have used during the next school year in Finland. These books were usually kept by the teacher during the summer and handed out at the beginning of the academic year.

Several events reinforced Maria's belief that she would be permitted to move to the United States permanently. Milla and Kimmo Karkkainen helped Maria apply to a private American school for the fall semester of 2003 by faxing her academic transcripts to the school. Maria heard her mother tell her grandmother on the telephone that Maria was moving to the United States. And Karkkainen let Maria travel to the United States on June 6, 2003, moments after Maria told Karkkainen that she was unsure she would return to Finland at the end of the summer.

The central factual dispute of this case is what the understanding of the parties was at the time Maria came to the United States. The Respondents claim that the parties agreed that the summer would be a trial period during which Maria would decide whether she wanted to move to the United States permanently. Karkkainen argues that she never granted permission for Maria to live in the United States indefinitely and that she expected Maria to return to Finland on August 10, 2003.

The record reflects that Maria is both mature and intelligent for her age. An expert in teaching and training children in the performing arts testified that Maria is "a very focused, gifted, talented and . . . creative child" with particularly strong skills in photography and drawing. An independent child psychologist found that Maria was "uniquely talented and highly intelligent," an impression the District Court echoed after hearing Maria's testimony. Maria could communicate well in Finnish, English, and Russian, and had extensive experience traveling in Europe and the United States for visits with her father. She was, in short, much more experienced and mature than the average eleven year old when she came to the United States on June 6, 2003.

During the summer of 2003, Maria took academic classes, studied photography, traveled in the United States, and cultivated her relationships with d'Itri and d'Itri's family. In addition, Maria was admitted to a private American school named The Ellis School, where she enrolled to attend in the fall. When Maria did not return to Finland in August 2003, Karkkainen filed a Petition for Return under the Hague Convention. The District Court determined that Maria had become acclimatized during her stay in the United States prior to the date of her retention. Accordingly, the Court found that Maria was a habitual resident of the United States and refused to return her to Finland.

The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 11603(a). We have appellate jurisdiction under 28 U.S.C. § 1291.

II. The Legal Framework of the Hague Convention

The two main purposes of the Hague Convention are "to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed," Hague Convention, pmbl., and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States," id., art. 1. The Convention's procedures are not designed to settle international custody disputes, but rather to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases. Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005).

Any person seeking the return of a child in the United States may commence a civil action under the Convention by filing a petition in a court of the jurisdiction in which the child is located. 42 U.S.C. § 11603(b). To obtain an order for the child's return under the Hague Convention, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under Article 3. 42 U.S.C. § 11603(e)(1)(A). Under Article 3 of the Hague Convention, the removal or retention of a child is "wrongful" where:

a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually ...


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