5D02-2724 Strout v. Campbell

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-2724

Case Date: 02/02/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

HOLLY STROUT A/K/A HOLLY STEERE, Appellant, v. CASE NO. 5D02-2724

KEVIN CLYDE CAMPBELL, Appellee. / Opinion filed February 6, 2004. Appeal from the Circuit Court for Orange County, Alice Blackwell White, Judge. Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant. Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee. THOMPSON, J. Holly Strout appeals a judgment awarding primary custody of the parties' two children to Kevin Clyde Campbell, the father, and ordering her to transfer custody to him within 30 days. We affirm. The parties have never been married. In 1996, in the Circuit Court for the Ninth Judicial Circuit, the mother obtained a judgment of paternity against the father with respect to the older child. In 1999, she instituted this proceeding to establish the paternity of the parties' second child. The mother had primary

custody of the older child but in this paternity proceeding, the father sought primary custody of both children. During the litigation, the children were removed from the mother by the Department of Children and Family Services based on allegations of neglect, and the father was then given temporary custody of the older child. The mother was allowed to retain custody of the infant because it was being breast-fed. The mother absconded with both children to Germany during her first unsupervised visitation with the older child. It is apparent from the record that while living in Germany, the mother married a member of the United States Armed Forces. In May 2001, the court entered a final judgment giving the father sole parental responsibility for the children. This judgment was vacated on the mother's motion, which alleged that she had not been given notice of the hearing or a copy of the final judgment. The mother alleged that the father knew exactly where in Germany she was located, as evidenced by the fact that on the same day the final judgment was issued, both parties were before a court in Germany for a hearing on the father's petition for the repatriation of the childrenunder the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"). Attached to the mother's motion was an English translation of the German court's order denying the father's petition for repatriation of the children. After vacating the judgment, the circuit court rescheduled the trial and ordered the parties to submit pretrial memoranda. On the father's motion, the court entered an order precluding the mother from presenting evidence on the ground that the mother had not filed any pretrial papers and had not made herself available for discovery. The father also stated in his motion that warrants for the mother's arrest had been issued and that he would object if she sought to appear at trial by telephone. On the day of trial, at which the mother was represented by counsel but did not appear herself, an FBI agent was waiting "in -2-

the hallway."1 The court entered the judgment on appeal over the objection of counsel for the mother that the Convention proceedings had divested it of jurisdiction. On appeal, the mother contends that the judgment is void because the trial court lacked jurisdiction to enter it. In 1988, the United States entered the Convention, the text of which can be found in Duquette v. Tahan, 600 A.2d 472 (N.J. Super. Ct. App. Div. 1991). The objects of the Convention are to "secure the prompt return of children wrongfully removed to or retained in any Contracting State, and to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States." Convention, art. 1. The removal of a child is considered wrongful if it is "in breach of rights of custody . . . under the law of the State in which the child was habitually resident immediately before the removal . . . ." Id. art. 3. The Convention seeks to deter parental abductions by eliminating the primary motivation for abductions, which is to obtain an advantage in custody proceedings by commencing them in another country. Holder v. Holder, 305 F.3d 854, 860 (9th Cir. 2002). The United States Congress implemented the treaty in 1988 by enacting the International Child Abduction Remedies Act, often referred to as ICARA. See 42 U.S.C.

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