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Foster v. Foster

United States District Court, W.D. Wisconsin

December 18, 2019

JAMES M. FOSTER, Petitioner,
ERICKA K. FOSTER, Respondent.



         Pending before the court is the August 9, 2019, petition of James M. Foster, which seeks an order under the Convention of 25 October 1980 on the Civil Aspects of International Abduction (“the Hague Convention”) that would require his wife, Ericka K. Foster, to return their three children to him in Guatemala. (Dkt. #1.) James' petition is somewhat unique in that all of the Fosters were born in and are citizens of the United States, including their three children. Moreover, the Fosters were married in Wisconsin and spent the preponderance of their married life in Idaho, albeit interspersed with time in Colorado and substantial international travel. Still, because the Fosters lived as a family in Guatemala from August 2017 to February 2019, before Ericka returned to the United States with their children and then stayed without his permission, James maintains that their children should be returned to him and that the Guatemala courts should adjudicate any custody issues.

         This court held a two-day bench trial on the petition on December 4 and 5, 2019. For the reasons that follow, the court concludes that petitioner failed to meet his burden of demonstrating that the children “habitually resided” in Guatemala before their removal to the United States as required by the Hague Convention. As such, the court will deny the petition.

         FINDINGS OF FACT[1]

         A. Overview of the Fosters' Marriage

         James Foster and Ericka Foster were both raised in Wisconsin, but met at a Christian camp in Colorado in 2001. They were married in Dodgeville, Wisconsin on May 31, 2002. At the time, Ericka was 23 and James was 24. The Fosters both testified that they entered intentionally into a conservative Christian marriage with Ericka “submitting” to her husband and James agreeing to love and care for her. Ericka testified that initially she felt that her input was asked for and considered, even if James ultimately made the decisions when they disagreed. Even so, there were early warning signs that James might view his role in their marriage as more than that of a benevolent spiritual leader. Within a year, James acknowledged one incident of physical violence against Ericka in which the police were called. After being charged and convicted, James was ultimately required to attend a class in anger management in order to have this record expunged, which he did, and it was. In addition, after objecting to their relatively quick marriage on the grounds of James' controlling nature, Ericka's family found themselves cut off for two years, and James seldom spoke to them after that. Overtime, Ericka further testified that rather than seek her input first, James more and more would just decide, and when she wanted to discuss a decision, he would respond, “we're not having this discussion.”

         James and Ericka now have three children: “Steven” was born in Colorado on November 18, 2008, “Holly” and “Natalie” were born in Idaho on July 27, 2012, on June 2, 2015, respectively.[2] At the time of the hearing, the children were 11, 7 and 4 years old, respectively. With the exception of some travel of no more than a month on the part of the parents (either individually or as a couple), the children lived with both James and Ericka from their birth until February 10, 2019.

         During their marriage, James and Ericka made their living as owners and operators of a real estate development company, Narrow Gate Properties LLC, at times living in homes they built for up to two years before flipping them. As a result, they have moved some twenty-two times during their marriage, mostly between the states of Idaho and Colorado, but also traveling for months at a time to fourteen different countries. Before children, the Fosters both participated in building homes, although James was more experienced in construction and increasingly took on the role of contractor as they had children, while Ericka took on more of the childcare responsibilities. The Fosters built and sold thirteen homes in Colorado and Idaho during this same period, while holding and renting out others. Ericka testified that the decision of when and whether to sell homes was made by James, largely driven by tax and market considerations. This is consistent with James' testimony, except that as an equal owner of the LLC business, he emphasized that Ericka always had input into, and they ultimately always agreed on, those decisions.

         Ericka further testified that James discounted her opinions on their business in particular, because she did not understand the market and was less informed, something she did not dispute, although his dismissive tone could be hurtful. Ericka's testimony about James' lack of consideration of her opinions was generally supported by the testimony of other witnesses, including her friend in Guatemala, Christine Fiorito, her mother, Diane Homrig, a friend from Sandpoint, Idaho, Debra Kirk, and a mutual friend of the couple and real estate agent, Jean Davis. The latter was particularly credible, as she was not only the longtime real estate broker for the couple's business, but was closer to James than to Ericka. In contrast, James testified that he continued to consider his wife's views throughout their marriage, and they would make major decisions mutually.

         B. Time in Idaho

         To the extent the Fosters' marriage had a locus, it was unquestionably in Idaho. They first resided there in 2003 or 2004 until roughly 2008, before moving back to Colorado for a couple of years. The Fosters returned to reside in Idaho again from roughly 2011 until October 2016. Through their business Narrow Gate, Ericka and James still own rental properties in the State of Idaho, although they never resided in either of those constructed houses.

         In 2014, the parties traveled to Europe for several months, visiting Italy, Slovenia, Bosnia, Albania, Croatia, Turkey, Greece and Montenegro. Before departing, they sold the home they were living in at that time in Idaho, stored their belongings in Idaho, with a plan to return at some point to use them, but did not have a concrete plan as to where they would live after this trip. While traveling in Europe, the parties looked at possible properties to buy and develop, particularly in Greece, but eventually returned to the United States instead, first to Wisconsin, then subsequently back to Idaho.

         Ericka testified that there was a general understanding for much of their marriage that time in any particular home would be temporary, but as the family grew, they talked of staying put on a more permanent basis with respect to at least a few of their homes in Idaho. In particular, Ericka had the impression that they would end up staying beyond their usual two-year limit in their last home in Idaho, an impression that James had endorsed. Indeed, the Fosters' close friend and realtor, Jean Davis, testified that James seemed to share Ericka's view. However, when Davis brought an offer far exceeding their expectations on that home, James testified the offer was too good to pass up and they sold it in October of 2016, along with much of its contents. Instead of moving into another of their Idaho properties, however, the Fosters packed most of their belongings and stored them in a trailer, which was initially parked at a friend's house in Idaho, but eventually transported to the home of James' mother in Wisconsin.

         C. Initial Visits to Guatemala

         The Fosters then traveled as a family to Guatemala in the fall of 2016, renting an Airbnb home for five weeks in San Pedro La Laguna, a town with a population of approximately 75, 000, located in the Department or State of Sololá. James testified that he had previously traveled to Guatemala by himself, staying in San Pedro La Laguna in February 2016, for the purpose of exploring a possible family visit or even a move. James was particularly impressed by its setting on a large lake and its active tourist industry, which included a large ex-patriot population.

         After their visit to Guatemala, the family traveled to Mexico for two to three additional weeks. During this time, Ericka testified that James told her he was leaving the family to travel to South America alone because he was mad that she was not excited to travel internationally with three small children. Despite this exchange, however, the family traveled on to Belize for the holidays, where they met James' mother for an additional two to three weeks' stay.

         On January 6, 2017, the family then returned to San Pedro La Laguna, renting a two-bedroom apartment on a month-to-month basis. By this time, the two oldest children were being homeschooled by Ericka. In addition, Ericka and James began taking Spanish lessons with Juan Wilson Sac Aju (“Wilson”). Although the children did not, the expectation was for them to learn Spanish through immersion. In January 2017, James experienced what was described as a fairly significant seizure, requiring follow-up medical exams and apparently an MRI at a Guatemalan hospital, although no specific diagnosis was ever made for its cause.[3] Ericka also testified that during this trip, she shared her view with James that Guatemala would not be a suitable place to make a permanent move. The parties departed Guatemala in April 2017 and returned again to Wisconsin, where both sets of grandparents still resided. While James testified that he told Ericka early on in their marriage that he would never live in Wisconsin again, Ericka testified that she continued to consider it “home base, ” often providing a place to launch or return from international travel.

         D. Time Back in Wisconsin

         Beginning in early April 2017, the family lived in a two-bedroom RV parked in the driveway of James' mother's house in Wisconsin. James' mother apparently paid for the RV, although Ericka understood from James that he had reimbursed his mother for the expense. During their time in Wisconsin, James testified that the parties discussed returning to Guatemala and, more specifically, that Ericka created a “pros and cons” list in a notebook. Personally, James wanted to leave the United States because of government regulation, concern of a possible loss of religious freedom, and financial opportunities available in Guatemala, and he testified that Ericka largely shared these motivations. With Ericka balking at the move, however, James eventually returned to Guatemala alone in June 2017, with a plan to secure a more comfortable, larger place for the family to live in San Pedro La Laguna.

         Once there, James sent Ericka information about living options, including photographs and location details. While Ericka testified that she received this information in Wisconsin, she was not being asked for her input. Based on a verbal commitment with the owner, Claus Rohman, James then rented a 2000 square foot house located on the lake for twelve months, which he claims Ericka approved. He also bought furniture and bikes.

         By that point, James maintains that Ericka and he had jointly agreed to return to Guatemala. Ericka's testimony and contemporaneous text messages, however, paint a very different picture, indicating that Ericka did not want to live in Guatemala, but was given a stark choice by James to remain married and return to Guatemala or remain in Wisconsin with the children and without James. A particular text exchange, dated July 23, 2017, illustrates her predicament:

James: You have a choice to give me respect or not, 100 times per day. It's not supposed to be a choice based on my decisions or actions, it's a yes or no thing. If you don't choose to respect me, it's better for the kids not to see our relationship, they are better off without a father.
Ericka: Ok. I can't be honest with you because you have always responded with threats of leaving us and I know how hurtful that would be especially to the kids so I can't say anything.
James: You made your choices this year. To be there, to stay there, to surround yourself with the 2 most prominent women in your life that do not respect their husbands… you stayed behind. You Chose To Not Follow My Lead. I let you make those decisions, some you chose wrong. Correct your mistakes while you still can. And for the love of God, make a decision about me. Follow me wholeheartedly or stay there.
Ericka: Don't put this on me, you can't even name me 1 woman who respects her husband, you didn't lead anything this summer. You said we could come back for the summer then you left. You left…you didn't even suggest or offer to buy us tickets with yours, you took your independence and said you absolutely couldn't stay in Wisconsin any longer, you left. Own it, don't put the blame on me.
James: You said you were staying. You don't have the ability to follow me when you do it out of your own strength. When are you going to realize that? I bought that stupid camper, went to Wisconsin, went to get the trailer all for you, and now you point the finger and bitch! You own it. I served you, against what I wanted. Stay in your hellhole!

(Ex. 506.)

         Left with no other option as she saw it, Ericka testified that she and the children boarded the plane in August 2017 to return to Guatemala with the hope that James would grow bored with Guatemala and they would return to the United States, true to a pattern that had continued throughout their marriage. However, there is no dispute that she was not physically forced to travel back to Guatemala at this time or before any of her later return trips. At the same time, Ericka did not believe that their time in Guatemala would be “indefinite”; rather, in her mind, she was returning to Guatemala with the children to save her marriage and planned to stay only so long as it took for James to change his mind again.

         E. Return to Guatemala and Life in San Pedro La Laguna

         On August 10, 2017, Ericka and the children arrived in Guatemala to begin living in the Claus rental home with James in San Pedro La Laguna, bringing toys and school books to last approximately six months. Around that same time, the Fosters also opened bank accounts in Guatemala, while continuing to maintain accounts in the United States and leaving other belongings, along with some $30, 000 in gold, with James' mother.

         In October 2017, the Fosters purchased approximately one acre of undeveloped land for approximately $30, 000 through Narrow Gate. This land was located directly across the street from their rental house. James testified that the purchase was also a mutual decision and that the parties intended to build a main house on the property in which the family would live, while building other “tiny houses” to be available for rent. Ericka again testified that James made this decision without input from her.

         Initially, James built a 10-foot wall around this property with razor and barbed wire on top of the cement wall and a gated entrance, in part to keep out locals and in part to give renters a sense of security. He then terraced the property to provide levels from which each of four, planned tiny rental houses would have views of the lake. With the assistance of local laborers, James did the bulk of the construction, with Ericka involved in the finishing touches of caulking, painting and making curtains. Ericka also was involved in setting up house rentals through Airbnb, or at least in writing the descriptions for the website.

         Before James could build a main house in which to live, however, the Fosters were forced to change plans due to Ericka's and some of the children's allergies to dust in the Claus rental home, so, instead, they placed two of the tiny houses next to each other and connected them by a temporary doorway that they could be separated later for renters. Combined, these two houses contained approximately 900 square feet of living space and an additional 400 square feet of decking. Each of the tiny homes had a bedroom, bathroom and kitchen. In one of the homes, Steven had a bedroom and the girls occupied a nook with bunk beds and storage area. Ericka and James' bedroom was located in the other house, just feet away from the children.

         In August 2018, even before the lease had ended with Claus, the family moved from their rental house across the street into the adjoining tiny houses. Around this same time, Ericka and the children left Guatemala, traveling to Wisconsin for approximately five weeks, beginning on August 22 and returning on October 3, 2018. During this time, James continued to work on the property, completing the two other tiny houses, with one finished in December 2018 and the other in January 2019, and renting them out through Airbnb. After that, any remaining plan to build a main house in which the family would live on the Guatemala property more permanently was not pursued.

         The children were universally described in testimony as bright, happy and incredibly adaptable, having each other as closest friends.[4] During their time in Guatemala, the two older children continued homeschooling. In addition, they played at the construction site, helping James with projects, went to the beach, accompanied Ericka on trips to the market, and played with some neighborhood children (typically the children of Claus's girlfriend and the son of the Fosters' Spanish tutor Wilson). Nevertheless, Ericka testified that this time was trying for a variety of reasons, including allergies in the rental home, frequent stomach bugs, the physical demands of shopping and navigating safe travel outside of San Pedro La Laguna, difficulty in finding uninterrupted time for homeschooling, and limited, meaningful connections to the larger community.

         James minimized all of these concerns compared to the freedom and simpler lifestyle afforded them in Guatemala, testifying that he interacted with and cared for the children by engaging in their homeschool curriculum, cooking and playing with them. While the evidence supports a finding that Ericka played the primary caretaking role, with James spending more time constructing the tiny houses and otherwise developing their property, James was also actively involved with the children as well.

         Unfortunately, the children's understanding of Spanish was limited to basic greetings, although they willingly offered greetings to neighbors and other acquaintances, as James' mother, Judith Schellinger, who visited them in Guatemala on several occasions, testified. Moreover, Ericka noted that while she and the children were gaining some familiarity with Spanish, the native population primarily conversed in Tz'uzujil, a Mayan language, for which they had no familiarity, and while the children would play with some local children, this language barrier impaired their ability to develop close friendships with most children in San Pedro La Laguna.

         In the last two months of their stay in Guatemala, the oldest child, Steven, then 10, had also joined a soccer team coached by Claus, but even this was limited to some practices, having left before the start of the season. Ericka also testified that Steven engaged in that sport reluctantly, as his only option, because the other children had more experience and were more skilled. The girls were not involved in any organized activities. Ericka's friend, Christine Fiorito, a missionary who visited with the family for four to five hours on roughly a weekly basis during significant portions of their time in Guatemala, further testified to Ericka's and the children's lack of integration into the local and ex-pat communities.

         In January 2019, Steven also started attending a local Christian school, which both of his parents hoped would immerse him in the Spanish language, as he was slow to pick it up. In enrolling him, Ericka had purchased a school uniform and paid a semester's worth of tuition. However, he only attended that school for approximately two weeks before leaving Guatemala with his mother.

         In terms of access to medical care, the parties did not establish care with a doctor, but this appears to be consistent with the parties' approach to organized medicine in the United States as well, having opted not to vaccinate their children (other than for tetanus and hepatitis B before traveling to Guatemala) or to schedule regular, well-child check-ups. The children did see a dentist on a regular basis, but those visits occurred during their return trips to Wisconsin. The parties testified to the children needing medical care on two occasions while in Guatemala, when Natalie fell, suffering a mild concussion, and Steven stepped on a nail, requiring a tetanus shot. Ericka testified to concerns about the limited nature of care available at the small clinics in San Pedro La Laguna, though James testified extensively and credibly to the availability of a hospital in a neighboring community for emergency situations, albeit located roughly an hour away or more by boat and bus.

         Ericka also described two incidents of violence the family faced during their time in Guatemala. In January 2018, returning from a trip to Guatemala City in their neighbor Luis's 16-passenger van, the van was ambushed by a group of armed men. The men had constructed a road block by placing rocks and pieces of wood on a road that Luis normally would not have taken, but opted to take in light of repaving efforts on the main road. Ericka testified that she was awake and saw a gun pointed at her. James testified that he did not see any guns, though acknowledged that he had been sleeping. Once confronted, Luis was able to push one of the larger rocks out of the way with his van and drive through the remaining constructed barrier with none of the Fosters harmed. The second incident occurred during a hike in March 2018 with another family from Canada, in which they were all confronted and ordered to pay an excessive fee to access a public trail by two men with machetes. James testified that it is common for men to carry machetes and that they were not actually threatening their safety, but the Canadians insisted that they turn around all the same.[5]

         Finally, during their approximately eighteen months of living in San Pedro La Laguna from August 2017 until February 2019, the Fosters were required to leave and re-enter Guatemala every 90 days, having never become legal residents that would have allowed them to stay in the country more permanently.[6] As a result, the records reflect that the children departed and returned to Guatemala with their parents on the following days: November 6-7, 2017, and April 7-8, June 29- July 1, and December 27-28, 2018. (Ex. 505.) For these trips, the family had to travel approximately twelve hours each way by bus and ferry to Tapachula, Mexico. Ericka described these trips as very “disruptive.” The children's visits to Wisconsin also aligned with some of the required 90-day departures: April to August 2017, December 2017 to January 2018, and August to October 2018. (Ex. 505). In fact, Ericka described an incident during one of ...

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