Case Update (25 Oct 2023): Brandt v. Caracciolo; district court affirmed; return petition denied for failure to demonstrate the retention was wrongful
The parties are parents to two children who both lived continuously in Sweden until April 16, 2021. In March 2020, the parties reached a custody agreement where the parties held joint custody. On December 30, 2020, social services in Sweden began an investigation into the Appellant’s home and the children’s welfare, which resulted in Appellant being advised that the children may be moved to foster care. It was at this time that the parties began discussing their next steps. Appellant advised the court that they discussed Appellee taking the children to the U.S. for a 3-month trip. But, Appellee argued that they agreed for the entire family to move to the U.S. where he would obtain citizenship for the children. On April 16, 2021, the Appellee and children traveled to North Carolina with the children’s passports and most of their clothing and toys. On July 3, 2021, Swedish social services sent a letter that confirmed the parties reached an agreement “that the children would live with [Appellee] and [his] family in the U.S. for some time.” On July 6, 2021, an interim decision by the Swedish court acknowledged that the children resided with Appellee in the United States and did not require him to return the children to Sweden. On July 7, 2021, Appellant reported them kidnapped, and shortly thereafter filed an application for their return with the Swedish Central Authority. On March 31, 2022, the Swedish court issued a final order awarding sole custody to Appellant. On July 6, 2022, the Appellee sought the children’s return by filing a petition in the district court in North Carolina. At trial, documents from the social worker supported Appellant’s narrative that the trip to the U.S. was intended to be temporary , but then also noted that the parties did not agree on the length of the trip, leading to a contradiction. Also, during the trial, the Appellant conceded that there was never an agreement to a specific departure or return date.
The trial court concluded that the children’s removal and/or retention in the United States was not wrongful - it was an indefinite stay with a joint custodial father, which was the status quo agreed upon by the parties. Also, for a practical perspective, even though the final custody order came after the children’s removal to the United States, if the court had ordered the children returned, the district court found that “Appellee would retain sole custody and could immediately return — with the children — to the United States.”
