In Didon v Castillo, --- F.3d ----, 2016 WL 5349733 (3rd Cir., 2016) the father sought the return of his two children (A.D. and J.D.), to the Caribbean island of Saint Martin, a 34-square-mile island comprised of two legally distinct, yet highly integrated, countries—French Saint Martin. The Hague Convention is recognized by French Saint Martin (through France), but is not recognized by Dutch Sint Maarten.
The family resided in an apartment in Dutch Sint Maarten for three years before the children were retained in the United States. Throughout this period, although the family resided in Dutch Sint Maarten, it was “primarily oriented” to French Saint Martin “where Didon worked, and where the children attended school, went to doctor’s appointments, etc. The family’s administrative affairs, such as the children’s insurance, were managed in French Saint Martin. The district court observed: “The parties’ testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. ... [F]or most purposes of its residents’ daily life, the island is essentially undivided.” It highlighted testimony about the family’s extensive contacts with both countries and concluded that “the record facts, in addition to the nature of the island itself, supported a finding that J.D. and A.D. were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin. The District Court bifurcated the remainder of its analysis. Because Dominguez retained A.D. from his habitual residence in violation of Didon’s custody rights under French law, the District Court concluded that A.D. was “wrongfully” retained under the Hague Convention and granted the petition as to A.D. With respect to J.D., the District Court began by observing that Didon did not have custody rights over J.D. through adoption because his purported “adoption” did not satisfy the requirements of French law to vest custody. Because Didon did not have custody rights over J.D. under French law at the time of retention, the District Court concluded that J.D. was not “wrongfully” retained under the Convention and denied the petition as to J.D.
The Third Circuit reversed. It pointed out that the extraordinary facts of this case required it to decide an issue of first impression: may a child have two “habitual residence” countries at the same time under the Hague Convention (“concurrent habitual residence”)? It concluded that the text of the Convention does not permit concurrent habitual residence. Rather than referencing “a State” of habitual residence or “the States” of habitual residence, the Convention repeatedly refers to “the State” of habitual residence. Such language is not susceptible to any construction whereby a child may have more than one habitual residence country at a time. This textual conclusion finds support in the Convention’s Explanatory Report. It noted that in concluding that concurrent habitual residence is possible under the Convention, the District Court relied on an earlier Ninth Circuit decision—Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). In Mozes, the Ninth Circuit observed in dicta that, although “the view held by many courts” is that “a person can only have one habitual residence at a time under the Convention,” “[t]he exception would be the rare situation where someone consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each.” After carefully reviewing Mozes, it was not clear to the Court whether the Ninth Circuit was endorsing concurrent habitual residence or alternating habitual residence in that case. To the extent that Mozes could be read to support concurrent habitual residence, it rejected that interpretation of the Hague Convention as inconsistent with the Convention’s unambiguous text, and remaining faithful to the text of the treaty, it held that a child may have only one habitual residence country at a time under the Hague Convention.
The Third Circuit therefore looked to the ordinary meaning of the term “residence” and concluded that a child must have lived in a country (i.e., had a home) before that country can be considered her habitual residence under the Hague Convention. It held that the children were habitual residents only of the country in which they “lived”—Dutch Sint Maarten. Because Dutch Sint Maarten does not recognize the Convention, the Convention did not apply to this case. The Third Circuit vacated the District Court’s judgments and dismissed the petition. Because the District Court granted the petition as to A.D., it instructed the District Court to order that A.D. be returned to the United States forthwith.
In Delgado v Osuna, --- F.3d ----, 2016 WL 5076017 (5th Cir., 2016) the Fifth Circuit affirmed the district courts denial of Dr. Delgado’s petition for return of his seven-year-old and four-year-old sons (“J.A.L.O.” and “D.A.L.O.,” to Venezuela. The parties were citizens of Venezuela and the married biological parents of the children, who were born in Venezula, lived together from 2008 until May 2014. when they moved with their mother to Frisco, Texas. During this time, Dr. Delgado practiced urology. Prior to traveling to the United States in May 2014, Dr. Delgado and Osuna frequently discussed the civil unrest and danger occurring in Venezuela, and they discussed relocating their family to another country. The discussions were motivated by fear for their family, especially the children, after the family was robbed in 2013 in a Venezuelan hotel room while they slept. Additionally, Osuna testified that her uncle and father, had been involved in a military coup to overthrow the Venezuelan government. As a result, she and other members of her family had been threatened by the government, and she believed that her children had also been threatened. Osuna testified that she believed her children were threatened on March 4, 2014, when she was asked to pass a message to her uncle and father to “stop messing with the government.” At the conclusion of the conversation, the men who threatened her said, “Okay, you have a beautiful blondies [children], then take care.”
The family had previously planned to travel to the United States on May 14, 2014 so that Dr. Delgado could attend the annual Congress of Urology and the children could visit amusement parks. The family obtained six-month tourist visas for the visit. Originally, the family purchased four round-trip tickets arriving in Miami on May 14, 2014 and departing Miami to return to Venezuela on May 26, 2014. Following the March threat to Osuna, one-way tickets were also purchased (sometime between March and May 2014) for Osuna and both children to travel to Osuna’s sister’s home in Frisco, for an undetermined period of time. After the March 2014 threat, Osuna withdrew J.A.L.O. from school in Venezuela, and with Dr. Delgado’s knowledge and approval, she sent J.A.L.O.’s paperwork to the school in Frisco to prepare for his enrollment upon their arrival. The family packed as many belongings as they could fit inside eight suitcases (two per person), which was the maximum allowed by the airline before it charged a fee. Osuna brought all of her and her children’s important documents, including birth certificates, medical records, school records, and her marriage license. Osuna and Dr. Delgado also went to Osuna’s mother’s house to pick out jewelry to bring to the United States. Dr. Delgado also established a bank account in Frisco prior to the trip and deposited money into it. On May 14, 2014, the family traveled to Miami, Florida. During this trip, Osuna and Dr. Delgado met with Maritza Cifuentes who assisted Osuna and the children with preparing their applications for political asylum in the United States. During the meeting, Dr. Delgado learned that in order to practice urology in the United States, he would have to undergo an additional fourteen years of medical school and/or training. Accordingly, Dr. Delgado decided not to pursue asylum in the United States. On May 25, 2014, Osuna and the children flew to Texas. Dr. Delgado returned to Venezuela one day later. Throughout the spring and summer of 2014, Osuna and the children resided in Frisco, and J.A.L.O. enrolled in school there. On July 9, 2014, Dr. Delgado signed a power of attorney giving Osuna the authority to make decisions regarding medical, educational, and other care for the children while in the United States. Both parties agreed that the power of attorney did not affect either parties’ custody rights. Yet, the parties’ testimony diverged concerning the reason for executing the power of attorney. Dr. Delgado testified that the power of attorney was intended to give Osuna the authority to make medical, educational, and other care-related decisions for the children while they were in the United States. Osuna testified that the power of attorney was executed so that she could pursue the asylum applications for the children. In the fall of 2014, Dr. Delgado packed and sent, through a family member, some winter clothes to Osuna and the children. Osuna testified that even as late as October 2014, Dr. Delgado was aware of the asylum applications and continued to support her in pursuing asylum. Dr. Delgado provided approximately $500 a month to Osuna and the children until December 2014, when he ceased making these payments. Dr. Delgado testified that he requested that Osuna and the children return home in September 2014 because the political situation in Venezuela was improving. She refused. Dr. Delgado testified that his relationship with his wife had deteriorated, and he filed for divorce in January 2015.
The district court issued a written opinion finding that Dr. Delgado “failed to meet his burden to establish by a preponderance of the evidence that the habitual residence of the children was Venezuela, and, thus, failed to demonstrate that the children were wrongfully removed and/or retained in the United States.”
The Fifth Circuit observed that it reviews factual findings for clear error and conclusions of law de novo.” A factual finding survives review so long as it is plausible in the light of the record as a whole. A district court’s determination of a child’s “habitual residence” is a mixed question of law and fact subject to de novo review. The mixed standard of review means that the court accept[s] the district court’s historical or narrative facts unless they are clearly erroneous, but exercis [es] plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts. It rejected Dr. Delgado’s argument that “the district court ignored Fifth Circuit precedent and applied an erroneous legal standard in its determination of the Children’s habitual residence” and that the factual “record does not support the district court’s finding that the parties shared an intent to abandon Venezuela as the Children’s habitual residence.” It noted that the Convention does not define “habitual residence.” Larbie, 690 F.3d at 310. “The inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” This circuit has adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence....This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age. For example, parents’ intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. The threshold test is whether both parents intended for the child to abandon the habitual residence left behind.” Absent the parents’ shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,] ... most courts will find no change in habitual residence. ”
The Court noted that it reviews a district court’s shared intent determination as a factual finding that is reviewed for clear error.” The district court found that the parties’ “last shared intent ... regarding their children’s future was that they would leave their habitual residence, Venezuela, and would not return.” The district court recognized that the parties’ shared intent eventually diverged but that after meeting with Cifuentes in the United States, the last shared intent was for Osuna and the children to seek political asylum in the United States and for Dr. Delgado to return to Venezuela to seek employment opportunities elsewhere. If Dr. Delgado was successful in finding employment outside of Venezuela, Osuna and the children would cancel their asylum applications and reunite with Dr. Delgado.
The Fifth Circuit held that the district court did not clearly err in its shared intent determination. The record demonstrated that Osuna and Dr. Delgado’s last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. Once Osuna and Dr. Delgado formed this shared intent and the children subsequently left Venezuela with their most important documents in tow, Venezuela was abandoned as the children’s habitual residence. It held that Dr. Delgado’s argument—that the shared intent to abandon a child’s habitual residence requires “making a joint decision to raise the child in the new country” and that the new country must be agreed upon by the parents—was not the law in the fifth circuit. Berezowsky, 765 F.3d at 471. In affirming it found that the district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous.
In Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) the district court granted the Petition of the mother, Caroline Thonet-Bips, for the return of her four-year old child to Germany. N. was born on March 2, 2012 and was a citizen of Germany and the United States. The mother was a citizen of Germany. The father was a citizen of the United States. The parties were married and lived together in Germany from July 12, 2010 until January 2015. In January 2015, petitioner filed for divorce in Germany. In September 2015, during the pendency of the divorce proceedings, E.H. began residing with petitioner at petitioner’s residence. Since the parties’ separation, there was a strained relationship between respondent and E.H., whom respondent has referred to in conversations with N. as “a guy that does bad things.” In March 2016, respondent relocated to Virginia. By Agreement dated March 22, 2016, the parties agreed that respondent would have specified visitation rights with N during the summer. It also provided that “[i]t is agreed that it is the mother who will be entitled to decide on the place of residence of the son.” In October 2015, while respondent was still residing in Germany, N. made statements to respondent that caused him to have concerns that the child was experiencing some form of abuse at the hands of E.H. On June 29, 2016, N., with petitioner’s consent, traveled to the United States, where respondent and N. were met by respondent’s domestic partner S.C. After spending several days in Pennsylvania visiting respondent’s relatives, respondent, N., and S.C. all traveled on July 7, 2016 to Virginia, where respondent resided with S.C. On July 7, 2016, N. and S.C. were watching the television program Power Rangers Megaforce together. N. asked S.C. why Power Rangers “have to have so much power” and S.C. explained that they have to have power to fight “bad people” to protect the world; once S.C. mentioned “bad people,” N. responded “like E.H.” S.C. testified that while she was concerned by these statement, she did not report them to respondent. The next day, while playing Power Rangers with S.C. on the floor of N.’s room, N. said to S.C that he needed to have power like the Power Rangers so he can fight “bad guys” like E.H. S.C. asked N. why he kept mentioning E.H., and N. said because he is a “bad guy” and he “hit me.” At that point, S.C. testified that she had a “huge concern” but again did not report the comments to respondent. Then, on July 9, 2016, while on an outing for ice scream, N. told both S.C. and respondent that E.H. “hit me.” At that point, according to S.C. and respondent, N. “just started spitting it all out ... spilled all the beans and explained everything in detail,” including that E.H. “pulled his eyelids, called him dumb, slapped him in the face,” and “squeezed” his “pee pee so hard and would not stop.” N. also made comments suggesting that E.H. abused E.H.’s own daughter as well and said that on one occasion in petitioner’s home (in Germany), E.H. became angry and began to shout loudly and threw a lamp, frightening N. so much that N. ran into his room. On the evening of July 9 and the morning of July 10, 2016, respondent and petitioner engaged in a series of contentious text messages. Respondent told petitioner “[N.] has been telling me that [E.H.] has been hitting him and that he calls me names and that he is mean to him. I will be reporting this to the US authorities. He told me that he is scared to be around [E.H.].” Petitioner responded by calling respondent’s allegations “absolute [sic] bogus” and stating that “[N.] for sure does not live in a household where he is scared.” Petitioner, through her German lawyer, asked respondent to return N. to Germany on July 22, 2016. Respondent refused. N. was scheduled to return to Germany on August 25, 2016, based on arrangements made before N. left Germany to spend the summer with respondent. Before that scheduled return date, respondent cancelled N.’s airline reservation. On August 19, 2016, petitioner filed the action.
The Court found that the petitioner established a prima facie case for return to Germany, which was the childs habitual residence. It also concluded that respondent failed to establish by clear and convincing evidence that there is a “grave risk” that N. would suffer physical or psychological harm by return to his mother in Germany. There never were any allegations or concerns that petitioner has abused N. Nor had there ever been any physical signs of abuse by anyone. The only indications of any possible abuse were the child’s own comments, which were originally made and investigated in Germany in October 2015 by German child protective services. That agency concluded that there was no abuse and that the N. was not in danger. N.’s most recent comments like the earlier comments, were subject to interpretation and completely uncorroborated or substantiated in any way as references to actual abuse, and also were part and parcel of a context involving the child’s fascination and perhaps obsession with Power Rangers, as well as the parties’ ongoing difficult and at times contentious relationship and respondent’s own criticisms and negative characterizations of E.H., which he conveyed to N. The court found that the case had none of the facts or circumstances that had caused other courts to refuse the return of a child based on an Article 13 defense under the Convention. It rejected respondents argument that there was a grave risk of harm because petitioner could not or will not adequately protect N. from any possibility of abuse at the hands of E.H. The Court saw nothing that would substantiate respondent’s concerns. The evidence presented was far from “clear and convincing” that any abuse ever occurred or that if N. was returned to his mother, there was a “grave risk” that this four-year old would suffer physical or psychological harm in Germany.
In Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016) the district court denied the petition of Faisal Ahmed, a citizen of the United Kingdom, for the return of the children finding that the U.S. was the children’s habitual residence. The Father was employed as an accountant in the U.K. The Mother was a citizen of the United States. The parties were married on December 29, 2009, in Dhaka, Bangladesh. At the time of their marriage, Father lived in London and Mother lived in Michigan, where she was studying optometry. Following their wedding, Mother continued to live in the United States until August 2011. In August 2011, Mother moved to London to live with Father. In December 2011, Mother returned to the United States and moved to Clarksville, Tennessee. In August 2013, Mother returned to London to live with Father, a move that she considered to be permanent at that time. In October 2013, the parties submitted an application to the U.K. Border Agency for Mother’s Indefinite Leave to Remain in the U.K. The application was approved and, on March 16, 2014, Mother was issued an ILR Residence Permit allowing her to live in the U.K. for ten years. Mother became pregnant with the twins in February 2014. Following a domestic argument in May 2014, Mother traveled from the U.K. to Knoxville, where she had previously lived. Mother did not return to the U.K. in the summer of 2014. She also testified that she chose not to return to the U.K. because of the issues in her marriage. Father traveled to Knoxville on October 9, 2014, and the twin daughters, An.Z.A. and Am.Z.A., were born on November 4, 2014 in Knoxville. Father returned to London on January 5, 2015. other and the children have remained in Knoxville ever since. On May 18, 2015, the parties and their children traveled to the United Kingdom. Mother traveled to London on a round-trip ticket, with a return to Knoxville scheduled for November 15, 2015, so she could attend a professional conference and visit family. The children, as U.S. citizens, had a 90-day visa to stay in the U.K. Father testified that the family brought “everything of any value” with them to London. Mother testified that she did not bring her diplomas or her optometry instruments to the U.K., nor did she take the family jewelry that was “culturally and religiously ... very important” to her and her family. Mother testified that she agreed to travel to the U.K. “for a short summer visit” upon certain conditions that she wanted Father to fulfill “to see if our marriage was going to work” . On July 12, 2015, Mother and the children traveled from London to Bangladesh, with Father’s consent and accompanied by her father, to attend the wedding of Mother’s brother. On August 5, but instead flew from Bangladesh to Knoxville, Tennessee where they have resided since then. The action was filed on March 23, 2016.
The district court observed that the primary issue was whether the children’s habitual residence was the U.K., or the U.S. It observed that term “habitual residence,” has been described by the Sixth Circuit as the country where, at the time of removal or retention, “the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ”. A child “can have only one habitual residence.” The Court “must look back in time, not forward” to determine a child’s habitual residence and “focus on the child, not the parents, and examine past experience, not future intentions.”The determination of a child’s habitual residence is a question of fact. Only a change in geography and the passage of time may combine to establish a new habitual residence. The Sixth Circuit has acknowledged that the standard of “acclimatization” and “a degree of settled purpose,” “may not be appropriate in cases involving infants or other very young children. The reason the “acclimatization” standard is ill-fitting to the case of an infant or very young child is that the child is naturally “entirely dependent on its parents.”. Infants do not develop a “settled purpose” or “firmly rooted” ties to a location through school, friendships, or other activities as older children do. Unfortunately, the Sixth Circuit has not yet articulated an alternative standard or considerations for determining the habitual residence of an infant and has expressly rejected the consideration of “shared parental intent” in determining a child’s habitual residence. The Court found that consideration of all available evidence, looking backward and focusing on the children’s past experience, was an appropriate path forward and consistent with the admonition in Robert to “look closely at the facts and circumstances of each case.” 507 F.3d at 989.
Given their young age, it was difficult to conclude how much the children had acclimated or become settled in the U.S. versus the amount of acclimatization that occurred during their time in the U.K. The facts and circumstances of the children’s past experience did not tilt the scale strongly in one way over the other, with the exception of the amount of time spent in each country. The children had spent most of their lives in the U.S., including most of their lives prior to the date of retention. While it is well settled that the “place of birth is not automatically the child’s habitual residence,” Holder, 392 F.3d at 1020, and that “a change in geography and the passage of time may combine to establish a new habitual residence,” Robert, 507 F.3d at 989, the Court questioned whether the children’s limited time in the U.K. was sufficient to establish a new habitual residence. To the extent that the parents’ intent is relevant, the preponderance of the evidence demonstrated that the parties had no settled mutual intent to live in either the U.S. or the U.K. on August 5, 2015, the date of the children’s retention. Looking backward from that date, there was no settled mutual intent during the children’s lives and much of Mother’s pregnancy. From the time of their birth to the date of retention, the children lived primarily in the U.S. While the place of their birth is not automatically the children’s habitual residence, Holder, 392 F.3d at 1020, the Court could not conclude that the seven to eight-week period the children spent in the U.K. was sufficient to establish that as a habitual or settled residence. The preponderance of the evidence indicated that Mother and the children traveled to the U.K. to visit and for Mother to determine whether she wanted to live with Father in the U.K. or return to the U.S. They did not bring all of their belongings to the U.K. and Mother did not sever her ties to living and working in the U.S. The children, as U.S. citizens, could only stay in the U.K. for three months. There was simply insufficient evidence that the children established deep-rooted ties or a degree of settled purpose in the U.K. in this limited time. The Court concluded that the facts and circumstances of the children’s past experience did not establish the U.K. as the children’s habitual residence, and therefore, their retention in the U.S. was not “wrongful” within the meaning of the Hague Convention.
In Flores-Aldape v Kamash, 2016 WL 4430835 (N.D. Ohio, 2016) the district court granted the petition of Javier Flores-Aldape for the return of his child, C.F. to Mexico. The mother, Fatin Shawki Kamash, was a US resident and naturalized citizen. Javier was a Mexican citizen. In February 2011, Javier found a job in Mexico as an aviation engineer. He bought a house in Mexico. Javier and Fatin married in November 2012 in Michigan. The next month, Fatin moved to Querétaro, Mexico on a visitor’s visa. She did not have a job in Mexico. Fatin learned she was pregnant in July 2013. The next month, she returned to the United States in anticipation of an immigration interview scheduled for September 2013. C.F. was born in Michigan on March 30, 2014. Fatin and C.F. remained in Michigan for four months. In late July 2014, Fatin and C.F. flew to Mexico on round-trip tickets, with a return date in April. Fatin, Javier, and C.F. lived together in the family’s home in Querétaro, and C.F. was baptized in Mexico in August 2014. Later that month, Javier lost his job with General Electric, but the family remained in Mexico, living off Javier’s savings and receiving additional financial support from his parents. Given her young age, C.F. was not enrolled in daycare or any extracurricular activities and had limited interaction with the community beyond her own family. Fatin obtained a Mexican permanent resident card and opened a bank account in her name in Querétaro. In the spring of 2015, the family celebrated C.F.’s first birthday. Fatin applied and was accepted to the pharmacy program at The University of Findlay in Ohio for the fall 2015 semester. Javier and Fatin’s relationship deteriorated, and they discussed the possibility of divorce. Fatin and C.F. left for Michigan on May 10, 2015. Javier drove them to the airport, and Fatin and Javier parted on good terms. Fatin and C.F. left their winter clothes and many of their other belongings, including C.F.’s toys and crib, in Mexico. Upon her arrival in Michigan, Fatin resumed her part-time tutoring work at Oakland Community College and enrolled C.F. in daycare. Fatin also applied for and received WIC and child care assistance benefits in Michigan. During a phone call in the first week of August, Fatin informed Javier that she and C.F. would not be returning to Querétaro. Javier claimed they agreed the visit to Michigan would last only three months, corresponding with the summer session at Oakland Community College, while Fatin maintained it was indefinite, and she never intended to go back to Mexico.
On October 7, 2015, Javier filed the Hague Petition. The Court credited Fatin’s testimony that she and Javier desired to eventually create a long-term home in the United States. The Court found the parties did not share a present intention to begin that process with Fatin and C.F.’s May 2015 trip to Michigan. In a June 2015 e-mail Fatin confirmed the trip was meant to be limited in duration. The district court found there was no wrongful removal. Javier consented to C.F. traveling to Michigan with Fatin in May 2015. It became clear Fatin and C.F. were not returning to Mexico in early August 2015. August 5, 2015 was the date of C.F.’s retention. The Court observed that the Sixth Circuit has held “a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” Robert, 507 F.3d at 989 (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). The Sixth Circuit has also held this inquiry “must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich I, 983 F.2d at 1401. A person “can have only one habitual residence,” and “a change in geography and the passage of time” are required to establish a new habitual residence. The Sixth Circuit has repeatedly rejected the subjective intent of the parents as an additional factor in determining the child’s habitual residence. Nevertheless, it has also recognized that parental intent may be a valid consideration in cases involving very young children or children with developmental disabilities. The Court agreed parental intent is an appropriate consideration in cases like these. C.F. was just four months old when she left the United States for Mexico, and fourteen months old when she returned to visit family in Michigan. A child of that age is “too young to form any meaningful connection to a country, its inhabitants, and its locations.” Her experience of the world is limited to the environment created by her parents, and she will likely “acclimatize” quickly to any residence in which her family and daily routines are present, regardless of geographic location. The Court found that although C.F. was born in the United States, the circumstances reflected Fatin and Javier’s settled purpose to make their home -- at least for the foreseeable future -- in Mexico. Javier and Fatin established their marital home in Querétaro soon after their wedding, and they jointly participated in renovating the residence according to their preferences. Javier and Fatin also shared an intention to relocate to the United States someday. But to determine C.F.’s habitual residence, the Court had to look to the parents’ last moment of shared intent. The testimony and other evidence reflected that as of August 2015, Javier and Fatin had not jointly decided to abandon their residence in Mexico and move the family to the United States. Absent an agreed plan to abandon their home in Mexico, C.F.’s temporary visit to the United States during the summer of 2015 could not create a new habitual residence.
In Blackledge v Blackledge, 2016 WL 4493691 (W.D. Pa., 2016) the district court denied the petition filed by Charles Blackledge on July 6, 2016, seeking the return of his minor child (“J.B.”) to Berlin, Germany. The Petitioner was a citizen of the U.S. The Respondent was a citizen of Ukraine, where the couple were married in 2008, and J.B. was born there on June 26, 2008. The parties resided there until Petitioner obtained employment in Ireland in 2009. They thereafter resided in several European nations for varying periods of time. In June or July 2011, Petitioner began his current position in Germany. Around the same time, Respondent was accepted into graduate school at the University of Pittsburgh. The parties traveled together to Pittsburgh in August 2011, and established a residence for Respondent and J.B. Petitioner remained in Germany to continue his new job. Respondent and J.B. remained in Pittsburgh for two years while Respondent attended graduate school. Respondent and J.B. then returned to Germany in August 2013 to live with Petitioner. Respondent was able to continue her graduate studies remotely. J.B. was enrolled in a primary school , where the child completed kindergarten and first grade during the 2013 – 14 and 2014 – 15 academic years. After approximately two years in Germany, Respondent determined that she would need to return to Pittsburgh to complete her graduate degree. The parties agreed that J.B. would accompany Respondent back to Pittsburgh. Upon their return to Pittsburgh in August 2015, J.B. was enrolled in Colfax for the second grade. Respondent continued her graduate studies and Petitioner continued to work in Germany. Once back in Pittsburgh, the Respondent filed for divorce on April 7, 2016. Petitioner demanded the return of J.B. to Germany.
Petitioner claimed that he and Respondent had a verbal agreement by which J.B. was to accompany Respondent to Pittsburgh for one year while Respondent completed her graduate degree, and after which J.B. would return to Germany.
The Court found that J.B. was retained by Respondent beginning in August 2016. The Court observed that “Habitual residence” is the place in which a child “ ‘has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.’ ” Karpenko, 619 F.3d at 263. Habitual residence is a “concept that focuses on past experience, not future intentions.” Karkkainen, 445 F.3d at 294 (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)). To that end, the Court examines a child’s experiences in, and contacts with, his or her place of residence to determine whether he or she is “firmly rooted,” and not merely acculturated. A child’s academics, social engagement, participation in extracurricular activities, and routines are all central to finding acclimatization and a settled purpose. There “must be ‘a sufficient degree of continuity. The credible facts were strongly suggestive of a degree of continuity and settled purpose sufficient for the Court to find that J.B. , who was interviewed in camera, was acclimatized to Pittsburgh. J.B.’s record of academic achievement and engagement at Colfax, significant social contacts, wide ranging extracurricular activities, substantial familiarity with Pittsburgh, its institutions, and its culture, and unequivocally favorable opinion of all the above, demonstrated that J.B. had not only “formed meaningful connections with the people and places [he] encountered” in Pittsburgh, but that his life has attained “ ‘a sufficient degree of continuity to be properly described as settled. That notwithstanding, parental intent is still part of the Court’s inquiry. Evidence of shared intent by the parties – or a lack thereof – can trump evidence of acclimatization, particularly when the child is young. The shared intent of Petitioner and Respondent was far from clear. The Court found that the beyond agreeing that J.B. would reside with Respondent when she traveled to Pittsburgh for school – as he had in the past – there was no credible evidence of an agreement for a specific duration. A ‘child can lose its habitual attachment to a place even without a parent’s consent’…when ‘the objective facts point unequivocally’ to the conclusion that a child’s relative attachments to two countries have changed.” The credible facts, as found by the Court, clearly indicated that attachments shifted for J.B. In light of the lack of evidence of an agreement regarding a specific duration for J.B.’s stay in Pittsburgh, as well as the Court’s determination that Respondent exhibited a greater degree of credibility than Petitioner, and given the strong evidence of J.B.’s acclimatization, the Court found J.B.’s habitual residence to be Pittsburgh. Therefore, Respondent’s retention was not wrongful..
In Fernandez v Bailey, 2016 WL 4474633 (M.D. Florida, 2016) Petitioner father filed a Petition for Return of Children To Panama. He claimed that Respondent, the mother of the children, absconded to Florida with their eight-year old twin sons as of March 20, 2013. This was the second time that the Respondent has removed the children to the United States from Panama. Respondent returned the children to Panama only after a United States District Court in the Eastern District of Missouri ordered her to do so in September 2010. Petitioner alleged that the children resided with him in Panama City, Panama, up until February 20, 2013. Petitioner maintained that the delay in bringing this action was a result of the Respondent’s concealment of the children’s location from Petitioner through the use of aliases and frequent relocations across the state. The Court granted a temporary restraining order finding preliminarily that Petitioner would suffer irreparable harm unless the Order was granted. Given that Respondent again had removed the children from Panama, and refused to return the children from Florida to Panama, there existed a clear risk that Respondent would further secret the children and herself in violation of the Hague Convention, the ICARA, and other applicable law. The Court preliminarily found that the allegations established a prima facie claim of wrongful removal under Article 3 of the Hague Convention and that the fact-specific nature of numerous issues necessitated an evidentiary hearing. Nevertheless, at the Temporary Restraining Order stage, the Court found that Petitioner had shown that there is a substantial likelihood of success on the merits given his preliminary establishment of a prima facie case, the prior wrongful removal by Respondent, and the concealment tactics purportedly used by Respondent that would undermine a “well-settled” affirmative defense. In addition, the Court found that the threatened injury outweighed any harm the relief would inflict on Respondent and that that the issuance of the Temporary Restraining Order would l serve the public interest. The Court set a hearing date due to the fact that the Hague Convention provides a six week window for the adjudication of such cases. It required Respondent to produce the children at the hearing. Respondent was prohibited from removing the children from the jurisdiction of the Court pending a hearing on the merits, and further directed that no person acting in concert or participating with Respondent shall take any action to remove the children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition for Return of Children to Panama.
