Thursday, May 12, 2011

Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) [Israel] [Habitual Residence]

In Stern v Stern--- F.3d ----, 2011 WL 1706912 (8th Cir.(Iowa)) the Eight Circuit reiterated the rule it established in Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir.2010) and Silverman v. Silverman, 38 F.3d 886, 897 (8th Cir.2003) (en banc) that the factors relevant to the determination of habitual residence include "the settled purpose of the move from the new country from the child’s perspective....", rejecting the approach of the Ninth Circuit.

Michelle, a dual citizen of the United States and Israel, met Martin, on a visit to Israel in 2000. He was a dual citizen of Israel and Canada. Michelle moved from the United States to Israel with her two children. Martin and Michelle were married in a religious ceremony in Israel. Their son DJ was born in 2003. In 2005 Michelle was accepted in a doctoral program at Iowa State University, and Martin signed a document consenting to her traveling to Iowa with DJ "for as long as she is enrolled in her PhD studies." Martin characterizes the document as memorializing a mutual agreement that Michelle and DJ would return to Israel as soon as her studies ended. Michelle denied there was such an agreement, and only Martin signed it. The document did not specify what would happen after Michelle's studies ended. In August 2005 Michelle moved to Iowa with her older children and DJ, who was then two. Martin followed in October 2005, after closing his taxi business in Israel. Michelle filed for divorce in October 2007 although she did not serve Martin with any papers. Martin returned to Israel in February 2008. At that time he believed Michelle would soon follow him there with the children. Shortly after Martin left the United States, Michelle proceeded with the divorce and requested temporary custody of DJ. During divorce proceedings, Michelle revealed that she would return to Israel with DJ and her other children only if she could find work there in her field.

Martin brought an action in the district court for DJ's return to Israel under ICARA. The district found after trial that DJ habitually resided in the United States. It found DJ had "considerable connections with his current [Iowa] environment." At the time DJ was seven years old and had been living in Iowa since he was two. He had visited Israel once when he was three. DJ had finished one year of kindergarten in Iowa and had celebrated holidays with Michelle's family in Des Moines. In sum, the district court found that DJ had acclimated to Iowa. Regarding the intentions of DJ's parents, the district court found that the couple had intended to make Iowa DJ's habitual residence, at least during Michelle's studies, even though they planned to return to Israel eventually. Based on its findings it denied Martin's petition. The Eighth Circuit affirmed.

On appeal, Martin argued that the district court gave insufficient weight to the parties' intention to return to Israel after Michelle graduated. The Eight Circuit pointed out that in Barzilay, supra, it explained that "factors relevant to the determination of habitual residence [include] 'the settled purpose of the move from the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.' " Settled purpose "need not be to stay in a new location forever, but the family must have a 'sufficient degree of continuity to be properly described as settled.' " It concluded that from the perspective of the child, who had lived in Missouri for five years, the settled purpose of the family's move was to remain there permanently despite an agreement by the parents to move the whole family to Israel should either spouse return.  Here, the district court found that from DJ's perspective, the settled purpose of his relocation to Iowa was to reside there habitually. In reaching this decision, the court relied on Barzilay and a Third Circuit case discussing the element of  settled purpose, Whiting v. Krassner, 391 F.3d 540 (3rd Cir.2004). Whiting held  that settled purpose does not require an intention to stay in a new location  forever. Rather, one's "purpose while settled may be for a limited period," and education could prompt such a move.(quoting In re Bates, CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).

Martin argued that the district court gave too much weight to DJ's perspective in considering the move's "settled purpose" and too little to the Sterns' intent to return to Israel after Michelle finished her degree. He argued that the Court should focus on the parents' intention to return to Israel rather than on DJ's acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), a Ninth Circuit case that did not consider the settled purpose concept "very useful" which held, in contrast to its decisions in Barzilay and Silverman, that without "settled parental intent, courts should be slow to infer from [a child's] contacts that an earlier habitual residence has been abandoned." The Eighth Circuit rejected this approach, pointing out that the settled purpose of a child's move must be viewed from the child's perspective, and observing it had been rejected by the Sixth Circuit, which characterized it as having "made seemingly easy cases hard and reached results that are questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th Cir.2007). It held that the child's perspective should be paramount in construing this convention whose very purpose is to "protect children," and declined to adopt a framework that would contradict its own precedent and frustrate the Convention's goal of 'deter [ring] parents from crossing borders in search of a more sympathetic court.

The record here favored Iowa as DJ's habitual residence whether the Court emphasized DJ's perspective or that of his parents. The district court found that the parties' intent at the time of the move was to make Iowa DJ's habitual residence. It did not clearly err in doing so. The Court concluded that under the Hague Convention "the court must focus on the child, not the parents, and [must] examine past experience, not future intentions," Silverman, 338 F.3d at 898.