Walker v. Walker

Federal 7th Circuit Court
Civil Court
Child Custody
Case Number: 
No. 11-3602
Decision Date: 
November 16, 2012
Federal District: 
N.D. Ill., E. Div.
Reversed and remanded
Dist. Ct. erred in denying petitioner-husband's request under ICARA implements to Hague Convention on the Civil Aspects of Child Abduction to compel his wife to return their three children to Australia, where petitioner alleged that his wife had wrongfully retained their children in U.S. after having filed for divorce. Record showed that children had resided in Australia for 12-year period prior to family coming to U.S. and did not support Dist. Ct.'s finding that children's habitual residence had become U.S. during seven-month period between their arrival and petitioner's filing of instant petition for their return to Australia to resolve parties' custody dispute. Moreover, Ct. rejected Dist. Ct.'s finding that petitioner had failed to exercise his custody rights or had expressly consented to children's permanent residence in U.S. during unsuccessful negotiations with wife. Fact that Illinois state court had awarded sole custody of parties' children to wife did not preclude Dist. Ct. from acting on instant petition. Remand, though, was required for determination as to whether parties had intended initial trip to U.S. as permanent move, and whether petitioner's participation in Illinois divorce proceedings constituted consent for children's retention in U.S.