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In Re the Custody of T. G. M. D.

April 12, 2011

IN RE THE CUSTODY OF T. G. M. D.


Dakota County District Court File No. 19HA-FA-10-80

The opinion of the court was delivered by: Larkin, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).

Affirmed

Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Larkin, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

In this child-custody dispute, appellant challenges the district court's denial of her request for relief under the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature October 25, 1980, T.I.A.S. No. 11670 (Hague Convention) and Minn. Stat. §§ 518D.101-.317 (2010), the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Because the district court correctly determined that appellant was not entitled to relief, we affirm.

FACTS

Appellant-mother Wendy Dimm and respondent-father Danny Dimm are married. The parties have one child, T.G.M.D., who was born on June 19, 2006. Mother is a citizen of the United States; father is a citizen of Canada. The child was born in Kamloops, British Columbia, Canada and has dual citizenship. The parties separated shortly after the child's birth, and mother and child moved to Minnesota in 2008. Father currently lives in Lillooet, British Columbia.

The child is the subject of two custody orders issued by the Provincial Court of British Columbia. The first order was issued in February 2008. It granted mother sole custody and guardianship of T.G.M.D. and authorized her to move T.G.M.D. to the United States. The order granted father telephone access to T.G.M.D. and visits as circumstances permitted.

The Provincial Court of British Columbia issued the second custody order in June 2010. This order awarded mother and father joint custody and guardianship of T.G.M.D. The order states that T.G.M.D.'s primary residence is to be with mother. The order grants father "unsupervised continuous access to [T.G.M.D.] for a period of three months each year, to be exercised [at father's residence]."

In July 2010, father filed a notice of registration of the Canadian custody order with the district court in Minnesota. Mother opposed father's filing and requested relief on several grounds. Mother filed a motion under the Hague Convention and a Hague petition requesting that the district court deny father's request to register and enforce the order. Mother also filed a motion for ex parte custody, requesting temporary sole legal and physical custody and denial of parenting time for father. The district court denied mother's requests for relief, and this appeal follows.

DECISION

Because the district court's decision is based on the application of statutes to undisputed fact, our review is de novo. See City of Morris v. Sax Invs., Inc., 749 N.W.2d 1, 5 (Minn. 2008) ("The application of statutes . . . to undisputed facts is a legal conclusion and is reviewed de novo."). We address each of mother's requests for relief in turn.

Request for Relief Under the Hague Convention

Mother sought to prevent the child's removal to Canada for court-ordered visitation with his father. But this is not the purpose of the Hague Convention. Proceedings under the Hague Convention "do not allow a court applying the Convention to adjudicate the merits of any underlying custody claims." Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995) (stating that the court may only litigate the question of wrongful removal). Instead, the objectives of the Hague Convention are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State; 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." Hague Convention art. 1. Neither the Hague Convention, nor its federal legislative counterpart, 42 U.S.C. ยง 11601-11611 (2006), proscribes the prospective removal of a child. Moreover, the removal of a child is considered wrongful only where "it is in breach of rights of custody attributed to a person." Hague Convention art. 3. The prospective "removal" that mother sought to ...


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