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In re E.S.E.

Court of Appeals of Texas, Sixth District, Texarkana

June 20, 2018

IN THE INTEREST OF E.S.E., A CHILD

          Submitted: June 6, 2018

          On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2015-1240-DR

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice.

         In 2014, Swedish citizens Jorgen Astrand and his wife, Fahimeh Astrand, jointly decided to immigrate to the United States with their eight-year-old daughter, Elin.[1] Pursuant to their plan, Fahimeh obtained an F-1 student visa, enrolled at Kilgore College, and moved with Elin to Gregg County, Texas, and settled in, while Jorgen, an orthopedic surgeon, remained in Sweden and attempted to obtain a Texas medical license.

         Once it became apparent that Jorgen would be unable to obtain a license to practice medicine in the U.S., he requested that his wife and daughter return to Sweden. Fahimeh refused and filed an original petition in a suit affecting the parent-child relationship (SAPCR). Jorgen petitioned for Elin's return pursuant to the Hague Convention on Civil Aspects of International Child Abduction (Hague Convention), which "protect[s] children internationally from the harmful effects of their wrongful removal or retention and . . . establish[es] procedures to ensure their prompt return to the State of their habitual residence, " as implemented by the International Child Abduction Remedies Act (ICARA).[2] The trial court denied Jorgen's Hague Convention claim and entered a final order in the SAPCR that named the parties joint managing conservators, with Fahimeh having the exclusive right to designate the child's primary residence. Although the trial court granted Jorgen possession of and access to Elin, it required all of Jorgen's visits with the child to occur in the U.S.

         On appeal, Jorgen argues that the trial court erred in denying his claim under the Hague Convention and in requiring him to come to the U.S. to exercise his rights to visit Elin, a requirement he characterizes as extreme. We affirm the trial court's judgment because (1) denying the Hague Convention claim was within the trial court's discretion and (2) requiring Jorgen's visits with Elin to be in the U.S. was within the trial court's discretion.

         (1) Denying the Hague Convention Claim Was within the Trial Court's Discretion

         Fahimeh's sister, Faezeh Horaney, and Elin's maternal cousins lived in Gregg County, Texas. In July 2014, Fahimeh moved with Elin into Horaney's home, enrolled Elin in a local school, and registered herself in a dental hygienist program at Kilgore College. Fahimeh soon decided to rent a house near Horaney's house. Jorgen covered the cost of the rental home, paid for a car for Fahimeh, and, from August to December of 2014, paid $23, 300.00 to provide for Fahimeh and Elin's living expenses.

         Fahimeh refused to move back to Sweden with Elin after it became apparent that Jorgen would be unable to practice medicine if he joined them in the U.S. As a result, Jorgen petitioned for divorce in Sweden. On July 6, 2015, Fahimeh filed an original SAPCR petition in Gregg County and requested that she and Jorgen be appointed as joint managing conservators of Elin, with Fahimeh having the exclusive right to determine the child's primary residence.[3] Jorgen filed a waiver of service of citation and agreed that the case could be "taken up and considered by the Court without further notice to [him]." However, Jorgen reserved all rights "with respect to the terms and conditions of [his] conservatorship, support, and parental rights and duties related to" Elin.

         On August 7, 2015, Fahimeh and Jorgen entered into an agreed parenting plan. After determining that Elin was a resident of Gregg County, on October 23, 2015, the trial court entered an order approving the agreed parenting plan, which the trial court determined was in the child's best interests. Pursuant the terms of the agreed parenting plan, the trial court appointed Fahimeh and Jorgen joint managing conservators of Elin, required them each to have the duty to support Elin during their periods of possession, set forth the terms of possession of and access to Elin, which were not restricted to the U.S., and granted Fahimeh the exclusive right to designate the child's primary residence, without regard to geographic location.

         On April 1, 2016, a Swedish court granted Jorgen and Fahimeh's divorce. On April 5, 2016, while the property division in the divorce proceeding was pending, Fahimeh filed a motion seeking child support because Jorgen had stopped making monthly payments to Fahimeh.[4] On August 22, 2016, Jorgen alleged that Fahimeh had failed to comply with the trial court's order of possession of and access to Elin by failing to surrender the child to him during his period of possession. Following his motion for enforcement, on September 13, 2016, Fahimeh filed an amended petition in the SAPCR, which sought to establish her as Elin's sole managing conservator and deny Jorgen possession of and access to the child. Two days later, Fahimeh and Jorgen entered into a Rule 11 agreement specifying that, among other things, Fahimeh would surrender Elin as set out in the trial court's order providing for possession of and access to Elin, Jorgen would not take the child out of Texas, and Elin would have unrestricted telephone access with both parents at all times.

         On December 8, 2016, Jorgen filed a counter-petition in the SAPCR asserting rights under the Hague Convention and requesting Elin's immediate removal and return to Sweden so that issues related to Elin's custody could be decided by a Swedish court. At a February hearing, Fahimeh testified that she did not plan on returning to Sweden with Elin. She added that Elin was ten years old, was attending school in Gregg County, along with her cousins, and had made many new friends. According to Fahimeh, after the execution of the agreed parenting plan, Jorgen sought sole custody of Elin from a Swedish court and prayed that Sweden be declared the child's primary residence. This led Fahimeh to fear that Jorgen would not return Elin if he was allowed to take her to Sweden. Jorgen testified that the Swedish court dismissed his lawsuit seeking custody of Elin after concluding that it did not have jurisdiction over the case as a result of the Gregg County litigation. Jorgen assured the Texas trial court that it would not keep Elin in Sweden since doing so would constitute a criminal act.

         Following the hearing, the trial court entered temporary orders requiring Fahimeh and Elin to comply with the provisions of the agreed parenting plan, but modified the plan by enjoining Jorgen from removing the child from the United States. The trial court also set the SAPCR for a final hearing. Before the final hearing, Jorgen filed a motion requesting the trial court's permission to allow Elin to visit her sick grandfather in Sweden. In support of this request, Jorgen attached a letter written by Dr. Artur Schmidtchen, a dermatologist and venereologist, stating that Elin's grandfather, Hans Astrand, was experiencing heart failure and memory loss, and could no longer travel by airplane. The trial court did not rule on this motion until after the final hearing.

         At the final hearing, Fahimeh testified that Schmidtchen was Jorgen's friend, and Jorgen admitted that Schmidtchen was not his father's treating physician. However, he testified that Schmidtchen visited his father before writing the letter and added that Elin was his father's only grandchild. Jorgen also testified that he would take Elin to visit her extended family and friends in Sweden. Jorgen explained that Elin had many benefits as a Swedish citizen, such as free education and universal healthcare, and pled for the trial court to allow visits in Sweden. Jorgen also testified that Elin's Swedish used to be excellent but was now "[n]ot very good, " implying that improving her Swedish language skills by visiting the country would be in the child's best interests.

         Fahimeh testified that she speaks Swedish with Elin at home and that visitation in Sweden would not be in Elin's best interests. According to Fahimeh, Elin was not always happy to see Jorgen and had complained that she did not sleep well when visiting him because Jorgen was living with a friend who made Elin feel uncomfortable. Fahimeh testified, and text messages and photographs exchanged with Jorgen demonstrated, that Elin's hair was so tangled after spending two weeks with her father that she was forced to cut it.[5] Fahimeh also said that Elin had been sick after visits with Jorgen and did not believe him capable of adequately caring for the child. According to Horaney, Elin had sores on her face and bottom after returning from a visit with Jorgen.

         Kalsey Goller, a licensed professional counselor for Winstead Psychological Services, testified that she had six counseling sessions with Elin, who had expressed worry about visiting Jorgen in Sweden because she feared that he would not allow her to return. Elin told Goller that Jorgen became angry when driving, which made her nervous, and that she did not sleep well when she was with him. Goller had never spoken to Jorgen.

         In order to establish that visiting Sweden could pose a problem for Elin, Fahimeh introduced testimony from Estonia Graves, a designated school official for Kilgore College. Graves testified that Fahimeh had an F-1 student visa when she enrolled at the school in the Fall of 2014. Graves explained that Fahimeh's visa was expired, but that her F-1 status would not expire as long as she was enrolled in school. According to Graves, this meant that Fahimeh could remain in the U.S., but could not return once she left the country until she renewed her visa. Because Elin had an F-2 visa, which was dependent on the F-1 visa, Graves explained that Elin could not return to the U.S. if she were to visit Jorgen in Sweden because Fahimeh's visa was expired. As a result, Fahimeh would have to return to Sweden, reapply for the visa, and hope for its renewal in order to return with Elin to the U.S.

         After the hearing, Jorgen re-urged his Hague Convention claims. Fahimeh's response referenced the trial court's finding that Elin was a resident of Gregg County, pointed out that Jorgen had entered into an agreed parenting plan, and argued that Jorgen could not now contest the trial court's jurisdiction after invoking it. At the hearing, Jorgen admitted that the Swedish court ruled it did not have jurisdiction over the custody dispute and that it was everyone's intentions to make the U.S. their permanent home when Fahimeh moved into Gregg County with Elin in 2014.

         Ultimately, the trial court denied Jorgen's Hague Convention claim and entered final orders naming the parties joint managing conservators, with Fahimeh having the exclusive right to designate the child's primary residence, without restriction. In its order, the trial court noted that Jorgen did not assert wrongful removal and that his pleadings did not indicate when Fahimeh allegedly began to wrongfully retain Elin. Pointing to the agreed parenting plan, the trial court found "that Elin's removal from Sweden and her retention in the United States was not wrongful, as it was not made in breach of the rights of custody." The trial court further found that Jorgen failed to show that Sweden was the child's habitual residence before any alleged wrongful retention in the U.S., and that the intent of the parties that the child reside in the U.S. was "abundantly clear." Noting that Elin had ...


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