Tomynets v Koulik, 2017 WL 2645518 (M.D. Florida, 2017)[Ukraine][Habitual Residence] [Petition granted]

          In Tomynets v Koulik, 2017 WL 2645518 (M.D. Florida, 2017) the Report and Recommendation of the magistrate judge was adopted as the opinion of the Court and the petition for return of S.O.T. to Ukraine under the Hague Convention was granted.

          The district court observed that it may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b) (1). In absence of specific objections, there is no requirement that factual findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Rather, a district court is bound to defer to the factual findings of a magistrate judge unless the findings are clearly erroneous. Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994) (per curiam). Legal conclusions are reviewed de novo, even in the absence of an objection. See id.; LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010) (per curiam) (citing United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982)).

          The court found that (1) S.O.T. was a “habitual resident” of Ukraine immediately before the wrongful retention by Respondent; (2) the wrongful retention was in breach of Petitioner’s custody rights under the laws of Ukraine; (3) Petitioner had been exercising or would have been exercising custody rights concerning S.O.T. at the time of the wrongful retention of S.O.T.; and (4) S.O.T. has not attained the age of 16.

          The Magistrate Judge also concluded that Respondent failed to establish any of the Hague Convention’s narrow exceptions. (Id. at p. 28). On de novo review, the Court agreed with the Magistrate Judge’s conclusions. LeCroy, 397 F. App’x at 556.

          The district court held that Magistrate Judge’s findings were not clearly erroneous, and establish that S.O.T. was a habitual resident of Ukraine prior to Respondent’s retention of her in the United States. S.O.T.’s trip to the United States was intended to be for a specific, delimited period, and the parties therefore had no shared, settled intention to abandon Ukraine and make the United States S.O.T.’s habitual residence. See Ruiz, 392 F.3d at 1252-53. Further, the six months that S.O.T. was in the United States immediately prior to Respondent’s retention of her was an insufficient amount of time for her to become acclimatized. The absence of the parties’ shared intention to establish a new habitual residence and because S.O.T. did not have sufficient time to become acclimatized during her visit demonstrate that she was habitual resident of Ukraine as of June 3, 2013, the date Respondent retained her in the United States. Petitioner also maintained regular contact with S.O.T. during her six month visit to the United States. After Respondent wrongfully retained S.O.T. past the end of the planned visit, Petitioner continued to maintain or attempt to maintain contact with her via mail, Skype, and telephone calls. Petitioner’s efforts to maintain communication with S.O.T. constituted an exercise of her custody rights. See, e.g. Friedrich, 78 F.3d at 1065; Rodriguez, 817 F.3d at 472. Petitioner, therefore, established a prima facie case that S.O.T. should be returned to Ukraine because of Respondent’s wrongful retention of her in the United States. The Magistrate Judge correctly concluded that Respondent failed to establish any of the exceptions that would prevent S.O.T.’s return to Ukraine, and that the goals of the Hague Convention are furthered by returning S.O.T. to Ukraine. The Magistrate Judge’s findings are not clearly erroneous, and considered together, established that she was not well-settled in the United States. See Cooper-Houston, 37 F.3d at 604; Lops, 140 F.3d at 946. Respondent did not met his burden of establishing that S.O.T. was well-settled in the United States or that any other exception applies to defeat Petitioner’s prima facie case for return of S.O.T. to Ukraine under the Hague Convention.

Rose v Blake, 2017 WL 3601292 (S.D. Florida, 2017)[Belgium][Habitual Residence] [Petition granted]

          In Rose v Blake, 2017 WL 3601292 (S.D. Florida, 2017) a petition was filed by  Damion Samuel Rose, a legal resident of Belgium, to secure the return of his six-year-old son, D.A.R., who was, removed from Belgium and brought Florida by the Child’s Mother, Lee Ann Nicole Blake (“Ms. Blake”). The district court found that the Petitioner was domiciled in Belgium. The parties met in Jamaica and had a relationship of which a child, D.A.R., was born in New York on January 17, 2011.  The parties separated in 2013 and Ms. Blake subsequently settled in the United States for a few months with the child.  Afterwards, Ms. Blake returned to Jamaica, where the applicant asked her to organize the living arrangements of the child in order to enable him to spend some time with his son despite their separation, which Ms. Blake refused.  In 2014, Mr. Rose moved to Belgium and the parties reached a verbal agreement, so as to enable D.A.R. to spend holidays with his father.  On the agreed date however, Ms. Blake opposed the child’s stay in Belgium and threatened to deprive Mr. Rose of any contact with the child if she was not authorized to stay with him in Belgium. In 2014, Ms. Blake and D.A.R. settled in Belgium and the parties decided to give themselves a chance to live together again. On February 10, 2015, they concluded a declaration of legal cohabitation, to which they have not put an end. A few months later, the couple separated again. A verbal agreement was reached according to which the child would have his residence with his mother two weeks per month, including the weekends, and with his father one week per month and two weekends.  Since Ms. Blake could scarcely comply with this agreement, Mr. Rose submitted a request to the Family Court aiming at obtaining a decision on parental responsibility. Ms. Blake informed the Plaintiff on several occasions that she intended to return to Jamaica with the child. The Plaintiff opposed such intention. Both parties and their lawyers agreed to meet on April 24, 2017 prior to the hearing scheduled on May 3, 2017 before the Brussels Family Court. On April 24, 2017 Ms. Blake’s lawyer informed the Mr. Rose’s attorney that Ms. Blake could not be present because she was in the United States with the child, but would be returning. Ms. Blake and the Child did not return on the expected date and the plaintiff did not receive any news of his son since July 22, 2017. Ms. Blake and D.A.R. reside at her cousin’s domicile in Davie, Florida. Subsequent to the removal of the Child by the mother, the Belgium Court issued an Order placing sole custody in the father, Damion Samuel Rose.

          The district court held a hearing and credited the Plaintiff’s testimony. It rejected the Defendant’s testimony and rejected the assertions of the Defendant set forth in her Response to the Verified Complaint and Petition. Because the Court found that Belgium was the habitual residence of the Child, that the Plaintiff never acquiesced in the removal of the Child, that there was no danger to the Child if he is returned to Belgium, and that the Respondent has failed to show cause why the child should not be returned to Belgium, it granted the Petition and directed that the Child be returned to Belgium in the custody of the father.

Valero v De Nevi, 2017 WL 3917161 (S.D. Florida, 2017)[Canada][Habitual Residence] [Petition granted]

           In Valero v De Nevi, 2017 WL 3917161 (S.D. Florida, 2017) the father was a Cuban national who had become a resident in Quebec, Canada. The mother was a Cuban national who now sought political asylum in the United States, but previously lived with the father and their son in Quebec, Canada from March 25, 2016 to September 20, 2016 before she removed the child to the United States.

          The district court found that the habitual residence of the child before his removal by the mother in late September 2016 was Quebec, Canada. The mother’s attorney argued that the mother’s habitual residence at the time of the alleged removal was in Cuba. It was undisputed that the mother had a physical residence in Cuba and received medical treatment in Cuba, where both parents and the child were born. But, both parties agreed that Cuba, which is not a signatory to the Hague Convention, was a country that both parents abandoned and a country where neither parent wanted to exercise parental rights. The mother’s counsel argued that since the alleged habitual residence of the child was Cuba at the time of the removal from Canada, then the Court is powerless to rule under the Hague Convention. However, the Court did not reach the issue of the residency in Cuba because neither the mother nor the father exercised custodial rights there. Both parents were Cuban political refugees who abandoned Cuba. The Court concluded that consistent with Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), the child’s habitual residence was Canada and the Court did not decide the hypothetical issue of possible dual habitual residence. The Court also found that the child’s removal by the mother in September 2016 was in breach of the father’s custody rights.  Having found that the child was wrongfully removed by the mother, the Court foud that the mother had not proven by clear and convincing evidence the grave risk exception. The higher number of therapists and medical professionals in Miami when compared to the village of Saint-Guillaeime or the larger town of Drummondville in Quebec is not enough to preclude the prompt return of the child to Quebec. Nor was the payment for or availability of insurance in one province versus another or in one state versus another.

Hernandez v Ochoa, 2017 WL 3575487 (D. New Mexico, 2017[Mexico][Temporary Restraining Order])

          In Hernandez v Ochoa, 2017 WL 3575487 (D. New Mexico, 2017) the district court granted a temporary restraining order based on the facts alleged in the Verified Complaint which the Court accepted as true for the purposes of the motion only. The Court found that Plaintiff Luis Rene Quintana Hernandez (“Hernandez”) and Ochoa were married in Mexico on May 15, 2009.] On November 1, 2009, Ms. Ochoa gave birth to the Child in Mexico. Mr. Hernandez and Ms. Ochoa entered into a “Voluntary Agreement of Divorce” on November 13, 2015. A Final Decree was entered and is dated December 1, 2015. According to the Final Decree and the Voluntary Agreement of Divorce the parties agreed to shared custody of the Child in which the Mr. Hernandez has the Child every weekend from Friday at 1:00 p.m. to Sunday at 8:00 p.m. The Agreement further provides that “the weekly schedule” for visitations “shall be strictly followed.” On or about November 23, 2015, Ms. Ochoa informed Mr. Hernandez that she wanted to spend Thanksgiving with her daughters, from a previous marriage, in Albuquerque, New Mexico, and she wanted to take the Child with her. Ms. Ochoa informed Mr. Hernandez that she and the Child would be returning to Mexico on November 30, 2015. With this understanding, Mr. Hernandez submitted a Form I-94 (Arrival/Departure Record) for the Child to temporarily travel to the United States with a return date of November 30, 2015. On November 30, 2015, Mr. Hernandez filed a criminal complaint against Ms. Ochoa for her “unlawful removal from the country or abduction” of the Child. In the Complaint Mr. Hernandez states that on November 28, 2015, he went for visitation with his son as the parties had agreed in their Voluntary Agreement of Divorce entered on November 13, 2015.  Mr. Hernandez was informed by his bother-in-law that Ms. Ochoa had “decided not to return to the country [Mexico] and to prevent our son ... from returning to the country [Mexico]”.  Further, Mr. Hernandez averred that his brother-in-law informed him that Ms. Ochoa had “disposed of most of the home furniture, she sold it in order to leave the country, without intending to return and unlawfully abducting our son,”  Mr. Hernandez provided the police with the above-referenced facts under penalty of “imprisonment of six months to six years”. Hernandez avered that without his consent or agreement, Ochoa continues to wrongfully retain the Child in the United States—specifically, in Albuquerque, New Mexico. [Doc. 1 at 1, 2, 6 of 11]. He asks for an ex parte TRO prohibiting the removal of the Child from the jurisdiction of this Court pending a hearing the merits of the Verified Complaint.

          The district court observed that Rule 65(b)(1) of the Federal Rules of Civil Procedure provides that the Court may grant a temporary restraining order (TRO) without notice to the other side only when (1) “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,” and (2) “the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” An ex parte TRO has a limited life: Rule 65(b)(2) provides that a TRO may not extend beyond 14 days, “unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.” Further, “[i]f the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character.” Rule 65(b)(3). Finally, a TRO must state the reasons why it issued, state its terms specifically, and describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required. Rule 65(d)(1). In order for a party to be entitled to a temporary restraining order or a preliminary injunction, that party must show “(1) he or she will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood of success on the merits.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003)) (alterations omitted).

          After considering the evidence in the record, the Court concluded it was sufficient to show that Hernandez was entitled to a temporary restraining order. The evidence presented for purposes of this TRO showed that the Child was a habitual resident of Mexico, at the time of his abduction; that the parties were in agreement that Hernandez had custodial rights under Mexican law, and that he had made a decision to have a meaningful role in the Child’s life. Thus, it appeared that at the time of the abduction, Hernandez had custody rights under Mexican law. Further, there was no evidence that Hernandez failed to exercise those custody rights or otherwise abandoned the Child. the evidence in the record showed that it was through an attempt to exercise those rights that Hernandez discovered that Ochoa had taken the Child to the United States, and that he notified Mexican authorities immediately. As it appeared that defendant will not suffer any costs and/or damages in the event the Court determines the defendant was wrongfully restrained (see Rule 65(c), no security was required. The Court therefore ordered, inter alia, that  Ms. Ochoa be prohibited from removing the Child from the jurisdiction of the Court pending a hearing on the merits of the Verified Complaint, and no person acting in concert or participating with Ms. Ochoa, shall take any action to remove the child from the jurisdiction of this Court pending a determination on the merits of Mr. Hernandez’s Verified Complaint.

Calixto v Lesmes, 2017 WL 3877650 (M.D. Florida, 2017) [Colombia] Temporary Restraining Order]

          In Calixto v Lesmes, 2017 WL 3877650 (M.D. Florida, 2017)  the Petitioner filed a verified petition in which he alleged that the mother of his child, Hadylle Yusuf Lesmes, the Respondent, has wrongfully retained their five-year old daughter in Manatee County, Florida since November 24, 2016. He claimed he gave his permission for Respondent to travel to Florida with the child, but he only authorized Respondent to stay in Florida with the child for a one-year period. That one-year period has now expired and Petitioner demanded return of the child to Colombia. Petitioner does not know the whereabouts of the Respondent or the child, but believed that they are located in Manatee County, Florida. Petitioner has filed the Motion and Petition on an ex parte basis. The district court observed that pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Court may enter a preliminary injunction or temporary restraining order. To obtain a temporary restraining order, the movant must demonstrate “(1) a substantial likelihood of success on the merits; (2) irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that the entry of the relief would serve the public interest.” Schiavo v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir. 2005). To obtain ex parte relief, a party must strictly comply with these requirements. Levine v. Comcoa Ltd., 70 F.3d 1191, 1194 (11th Cir. 1995) (“An ex parte temporary restraining order is an extreme remedy to be used only with the utmost caution.”). Based on the record, the Court granted a Temporary Restraining Order as follows: “(1) Respondent is hereby prohibited from removing the child from the jurisdiction of this Court pending a hearing on the merits of the Verified Petition, and no person acting in concert or participating with Respondent shall take any action to remove the child from the jurisdiction of this Court pending a determination on the merits of the Verified Petition to Return the Child to Colombia.(2) Respondent shall surrender to and the United States Marshal is directed to secure any and all passports, visas, or other travel documents of the child, M.A.Y., and of the Respondent. Respondent is prohibited from directly or indirectly securing substitute travel documents, including a passport, for M.A.Y., or for Respondent pending final adjudication of the Verified Petition.

Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449 (3rd Cir., 2017) [Germany] [Habitual residence] [Petition denied]

In Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449  (3rd Cir., 2017) the Third Circuit affirmed an order of the district court which denied the Petition of Charles Blackledge, a United States citizen who currently resided in Berlin, Germany, for the return of his then-eight-year-old son to Germany. 

J.B., a United States citizen, was born in the Ukraine in 2008 to Petitioner and Respondent Olga Blackledge, a Ukrainian citizen and lawful permanent resident of the United States who currently resided in Pittsburgh, United States. In the spring of 2011, Petitioner secured a job as a patent agent in Germany at about the same time Respondent was accepted to a Ph.D. program at the University of Pittsburgh. In the summer of 2013, after Respondent and J.B. had lived in Pittsburgh for two years, J.B. underwent cardiac surgery at the Children’s Hospital in Pittsburgh. Petitioner went to Pittsburgh to be with J.B. during his recuperation and to seek jobs in the United States. When those efforts proved fruitless, Petitioner decided to return to Germany and Respondent agreed to join him, both because she had agreed, before the initial move to Pittsburgh, to move to Germany for two years and because she was financially unable to support herself at that point. After the move, Respondent continued to pursue her Ph.D. studies at the University of Pittsburgh, remotely, and J.B. was enrolled in the J.F.K. School in Germany .In August 2015, when J.B. was seven years old, Respondent sought to return to Pittsburgh to complete the final phase of her Ph.D. program. By this point, according to both parties, the marriage had become acrimonious, and, according to Respondent, they had “agreed that [they would] divorce. Petitioner initially agreed that Respondent and J.B. would return to Pittsburgh, and they requested a one-year leave of absence for J.B. from the J.F.K. School. In Pittsburgh, J.B. attended second grade in the 2015-2016 school year and, according to his teacher, “performed as a wonderful second grader.” In February 2016, Petitioner initiated a series of emails with Respondent that formed the bulk of the record of the parties’ shared intent as to J.B.’s habitual residence. These began with Petitioner’s request that Respondent “confirm [her] commitment to our agreement” that J.B. would return to Germany for the 2016-17 academic year. Respondent did not deny the existence of an agreement but asked the Petitioner to “reconsider it,” explaining, “I do not think ... it is a good idea for a child [J.B.’s] age to live with one parent for a year, and with the other for a year”. That agreement, Respondent stated, “presupposes ... yearly adaptation to living with different parents [which] is psychologically disadvantageous” to J.B., and urged Petitioner to consider J.B.’s well-being, suggesting that Petitioner move “somewhere close” so that they could both “take care of [J.B.] on a permanent basis” and not “change [J.B.’s] permanent caregiver every year.” In response, Petitioner observed that Respondent had not expressed any concerns about J.B. “spend[ing] alternate years with us when the agreement was made.”  And while Petitioner acknowledged Respondent’s “concerns about stability of dwelling,” he explained that he did not “think there [we] re better options than maintaining [their] previous agreement,” which he characterized as: “[J.B.] would go with you to Pitt [sburgh] and return to me for 2016-2017 academic year. Then back to you ....”  In subsequent correspondence, Petitioner advised Respondent to “prepare [herself] for fulfillment of [the] agreement that [J.B.] returns to [Respondent] for 2016-2017,” reassuring her, “You’ll have him again in 2017,”  And in May, the parties again discussed the prospect of J.B. alternating years between his parents, with Petitioner documenting in his notes of their call that Respondent continued to oppose “any plan for [J.B.] to alternate between Germany and [the] USA,” because she believed that it “put [ ] too much pressure on [J.B.] to go back and forth” and “insist[ed] upon more consistency.” 

         While the dispute between the parties over J.B.’s long-term residency arrangements was ongoing, Respondent filed petitions for divorce and custody.  On July 6, 2016, Petitioner filed a petition in the United States District Court seeking J.B.’s return to Germany. The District Court held a two-day bench trial and entered an order denying the petition. The District Court calculated the retention date as August 2016.  The District Court correctly recognized that it was required to consider both the parents’ shared intent and the child’s acclimatization. As to shared parental intent, it concluded there was “no credible evidence” that the parties agreed that J.B.’s stay would be for a “specific duration.” And, considering evidence of J.B.’s activities and expectations up until the August retention date, the Court concluded that J.B. was acclimatized to Pittsburgh. 

The Third Circuit concluded that the proper retention date was July 6, the date petitioner filed his Hague Convention petition.  The Third Circuit held that the retention date is the date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof. That determination is, by necessity, fact-intensive and will vary with the circumstances of each case. While in some cases the notice date and actual expiration date will coincide, in other cases the notice will indicate a future date as the date consent will be withdrawn, in which case that latter date, depending on the facts of the case, will constitute the expiration date and, hence, the retention date.

  In determining the retention date here, it concluded  that the District Court erred by looking solely to Petitioner’s original consent for J.B. to reside in Pittsburgh through August 2016 and failing to assess whether Petitioner’s subsequent communications, up to and including the filing of his Hague Convention petition, effected a withdrawal of that consent. Consistent with Karkkainen, it also rejected Petitioner’s argument in favor of a June 9, 2016 retention date, as that date reflected merely Petitioner’s notice of a possible expiration of consent on June 19, 2016. Distinguishing the facts in Karkkainen it noted that Petitioner only researched the possibility of purchasing a ticket; Respondent, not Petitioner, flagged a concern about “abduct [ion],” and Petitioner left open the possibility of further negotiations, stating after his demand email that he was “still waiting to hear anything more from the mediators.”  Under these circumstances, it concluded neither June 9 nor June 19 was the retention date, and in the absence of any earlier communication in which Petitioner clearly and unequivocally withdrew his prior consent and sought to reassert his custody rights, it held that consent expired and J.B. was therefore “retained” on the date Petitioner filed his Hague Convention petition, i.e., July 6.

       The Court explained that a child’s habitual residence is “the place where [the 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.” Baxter v. Baxter, 423 F.3d 363, 368 (3d Cir. 2005) To assess whether a child’s habitual residence meets this threshold it analyzes both the child’s acclimatization and the “shared parental intent”—a factor that is relevant because “the child’s knowledge of [his parents’] intentions is likely to color [his] attitude to the contacts [he] is making” and “affect the length of time necessary for a child to become habitually resident or otherwise influence a child’s ability to acclimatize,” and, in addition, because it bears on the parents’ own intentions “regarding their child’s presence in a particular place.” Karkkainen, 445 F.3d at 292, 296.  As a general matter “courts will find no change in habitual residence” where the evidence of shared parental intent reflects that the “child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration.” Whiting v. Krassner, 391 F.3d 540, 549 (3d Cir. 2004). However, it has recognized an exception to this general rule where a move, though temporary, carries “a degree of settled purpose ..., even if such purpose is only for a limited period.”  The concept of “settled purpose,” does not require an intention “to stay ... indefinitely,” and may in fact be for a “limited period,” precipitated by various motivations, including “[e]ducation, business or profession, employment, health, family or merely love of the place.” Feder, 63 F.3d at 223-24. Regardless of the motivation for the location selected, or whether the stay was meant to be permanent or temporary, “[a]ll that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.” 

  As to the relative weight given the parents’ shared intent and the child’s acclimatization, the Court has held that when a child is very young, he “cannot possibly decide the issue of residency,” and the parents’ shared intent is, thus, “of paramount importance,” while acclimatization is secondary, Karkkainen, 445 F.3d at 296. However, once a child is old enough “to develop a certain routine and acquire a sense of environmental normalcy,” acclimatization becomes the central inquiry. Whiting, 391 F.3d at 550-51. Although it has not fixed the age when acclimatization takes on this greater significance, and it necessarily will vary depending on the maturity and cognitive and social abilities of the child in question, it has recognized that a typical four-year-old child “certainly has this ability” because he is “able to develop a certain routine and acquire a sense of environmental normalcy” and is “not only aware of those around him, but is able to form meaningful connections with the people and places he encounters each day.” At that point, because the child has “reached an age where [he is] capable of becoming firmly rooted in a new country,” it attaches greater significance to acclimatization and give “less weight to shared parental intent.” Karkkainen, 445 F.3d at 296.
  The District Court declined to apply the presumption that there is, ordinarily, no change in habitual residence when the child’s move is for a “specific, limited duration” because it found that there was “no credible evidence” that the parties had an agreement that J.B.’s stay in Pittsburgh would be for a “specific duration.” It agreed with Petitioner that this finding was clearly erroneous, given the evidence that there was such an agreement. But because that evidence overwhelmingly demonstrated the parties intended J.B.’s residence in Pittsburgh, albeit of specific, limited duration, to carry “a degree of settled purpose,” Whiting, 391 F.3d at 549, it nonetheless concluded that the “shared parental intent” factor favored the United States as J.B.’s habitual residence.

The Court could not agree with the District Court that there was no credible evidence that the parties had agreed J.B.’s stay in Pittsburgh was intended to be for a specific duration.  Although the District Court was correct that the parties’ emails stop short of identifying a date certain that was originally agreed for J.B.’s return, or similarly “specific terms of the agreement,” they made clear that the parties intended J.B.’s stay in Pittsburgh to be of a “specific, limited duration,”  Notwithstanding such error, “we may affirm on any grounds supported by the record,” and “[w]hen the outcome is clear as a matter of law ... remand is not necessary,” Mahmood v. Gonzales, 427 F.3d 248, 253 (3d Cir. 2005). Here, it concluded such an outcome was clear as a matter of law because this case was on all fours with its decision in Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004).  Here it was evident that J.B.’s move to the United States, although of limited duration, was intended by both Petitioner and Respondent to be accompanied by a degree of “settled purpose.” The record reflected that J.B. moved to Pittsburgh in August 2015 for the purpose of assuming a full and normal life of an eight-year-old boy during the intended period of his stay, making long-term friends and plans, developing routines and a sense of environmental normalcy, exploring his city and other parts of the Commonwealth, and putting down roots, not only for the 2015-2016 school year, but also, per the parents’ express agreement, for future alternating years, interspersed with the years he would be living with Petitioner in Germany. Under these circumstances, as in Whiting, the fact that the parties understood that J.B. would return to Germany “d [id] not in any way diminish ... the parties’ settled intention” that he was to remain in the United States for at least a year, settling into a normal routine, and the fact that J.B.’s stay was intended to be of a limited duration “in no way hinder [ed]” a finding that the United States was his habitual residence during that time. 

The Court emphasized that the parents’ shared intent as to the custody arrangement between them is probative—but not dispositive—in the determination of habitual residence. It views a parental agreement that a child will split time between the parents’ countries of residence as a significant consideration, but as one among others, informing the “necessarily fact-intensive and circumstantially based” inquiry a court must undertake to determine whether a child’s move was accompanied by a “degree of settled purpose.” Undertaking that inquiry here, it considered, in addition to the other record evidence discussed above concerning the parents’ shared expectations for J.B.’s move to Pittsburgh in 2015, the parents’ agreement that J.B. would “alternate between Germany and [the] USA” going forward, and, hence, that J.B. would be returning to Germany for only a single academic year before resuming his residence in Pittsburgh for the 2017-2018 year. In view of that agreement and the totality of the record in this case, was apparent that J.B.’s 2015 move to Pittsburgh was accompanied, through at least the July 6, 2016 retention date, by the requisite “degree of settled purpose” and that the element of shared parental intent thus supports the United States as J.B.’s then-habitual residence.10 Whiting, 391 F.3d at 549. The evidence of J.B.’s acclimatization to Pittsburgh as of July 6, 2016 was overwhelming. He had a tremendously successful academic year. The record demonstrated that J.B. was sufficiently mature to form “meaningful connections with the people and places he encounter[ed]” in Pittsburgh. and “ha[d] attained a sufficient degree of continuity to be properly described as settled,”  Given the extensive record evidence of J.B.’s success in school, his participation in various activities and sports, his many friendships, his experiences at cultural, entertainment, and sporting events, and his own stated preference for the United States, to which the District Court afforded “significant weight” because of “the degree of maturity and situational awareness” J.B. exhibited,  the District Court did not clearly err in its fact-finding related to J.B.’s acclimatization, nor did it commit legal error in its determination that J.B. was acclimatized to the United States at the time of retention.

  Because the parents’ shared intent was for J.B. to move to the United States with a “degree of settled purpose,” and because J.B. had acclimatized to the United States by the date of retention, it agreed with the District Court’s holding that the United States was J.B.’s habitual residence immediately prior to the retention date and that the retention therefore was not wrongful under the Hague Convention. 

Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) [United Kingdom] Habitual Residence] [Petition denied]

         In Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) the Father Faisal Ahmed claimed that his wife, Mardia Mohsin Ahmed wrongfully retained their daughters in Knoxville, Tennessee, from the infants’ habitual residence in the United Kingdom, and filed a petition for their return. The district court held that he failed to establish that the the United Kingdom was the children’s habitual residence at the time Mrs. Ahmed retained them. The Sixth Circuit affirmed.  

Mr. Ahmed was a citizen of the United Kingdom and resided in London. Mrs. Ahmed was a United States citizen and resided in Knoxville, Tennessee. The couple married in Bangladesh in December 2009. At the time, Mr. Ahmed lived in London and Mrs. Ahmed was an optometry student in Michigan. After the wedding, Mrs. Ahmed remained in Michigan to complete her studies. Mr. Ahmed visited periodically from London. In August 2011, Mrs. Ahmed moved to London to live with her husband. She obtained a visa, began working, and took steps to become licensed to practice optometry in the United Kingdom. Mrs. Ahmed returned to the United States in December 2011 for additional training needed to practice optometry in the United Kingdom. Mrs. Ahmed did not return to London until August 2013, which she considered a permanent move. That October she applied for Indefinite Leave to Remain (“ILR”) in the United Kingdom, stating in the application that she had considered London her permanent home for the previous two years. Mrs. Ahmed received her ILR the next year. In February 2014, Mrs. Ahmed became pregnant and was put on bed rest by her doctor for months. In April, she registered for an exam required to practice optometry in the United Kingdom. The couple had a bitter argument in May 2014. Mrs. Ahmed then traveled to Knoxville, where she had lived previously. Mrs. Ahmed maintained she did not plan to return. She contended that she did not return to the United Kingdom because of her high-risk pregnancy and the acrimony in her marriage. Mr. Ahmed traveled to Knoxville in October 2014 on a three-month visa in anticipation of the birth of their children. November 2014, Mrs. Ahmed gave birth to twins in Knoxville. After a few days, the family moved into a local apartment, where Mr. Ahmed cared for the children as his wife recovered from childbirth. 

         In January 2015, Mr. Ahmed’s visa expired and he returned to London. Mrs. Ahmed insisted she told Mr. Ahmed then that she intended to remain in the United States with the children indefinitely. Mrs. Ahmed moved with the children to her parents’ home in Knoxville, where they live today. The children received medical care in Knoxville from birth until May 2015. Mr. Ahmed returned to the United States in April 2015. The next month, the entire family traveled to the United Kingdom. Once there, they moved into Mr. Ahmed’s parents’ home for one or two months. Mrs. Ahmed asserted that she left Knoxville “for a short summer visit” “to see if [their] marriage was going to work.” Mr. Ahmed believed this to be a permanent move. Mrs. Ahmed traveled on a round-trip ticket with a return scheduled for November 2015. Mrs. Ahmed states she left her valuables in Knoxville, including her optometry instruments, jewelry and diplomas. Mr. Ahmed insists that his wife took nearly everything important to London. Mrs. Ahmed’s friend testified that Mrs. Ahmed planned to return to Knoxville to live, and the children’s medical records from May 2015 reflect appointments for that fall. Mrs. Ahmed did not sell her car or cancel her auto insurance in the United States, retained American medical insurance for herself and the children, renewed her Tennessee optometry license and professional liability insurance, and paid her Tennessee professional privilege tax before leaving for London. Once in London, however, Mrs. Ahmed took the exam required to practice optometry in the United Kingdom. She also registered the children with the National Health Service and took them for a check-up in London. In July 2015, Mrs. Ahmed traveled with the children to a wedding in Bangladesh. Their tickets indicated they were scheduled to return to London on August 5. Mrs. Ahmed claimed she told her husband upon leaving London that she would not return. Mr. Ahmed claimed he did not learn her plans until August 4, when she flew to Knoxville with the children.

In March 2016, Mr. Ahmed filed this action in the district court. The district court denied Mr. Ahmed’s petition for return. The Sixth Circuit noted that the question of which standard should be applied in determining a child’s habitual residence under the Hague Convention is one of law, and is reviewed de novo. But the determination of habitual residence is “one of fact, and is reviewed for abuse of discretion.” It reviews underlying legal conclusions de novo and factual findings for clear error. “Under the clear-error standard, we abide by the court’s findings of fact unless the record leaves us with the definite and firm conviction that a mistake has been committed.” The only issue on appeal was whether Mr. Ahmed had shown by a preponderance of the evidence that the United Kingdom was their habitual residence on August 4, when she traveled from Bangladesh to the United States.

           The district court concluded that it was bound by circuit precedent to apply the “acclimatization standard” to determine the children’s habitual residence under the Hague Convention. Under this standard, “a court should consider whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Simcox, 511 F.3d at 602 “[A]cademic activities” are “highly suggestive of acclimatization” and “social engagements, participation in sports programs and excursions, and meaningful connections with the people and places in the ... country all point to the child being acclimatized.” Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009). Because the children were infants, however, its analysis boiled down to a simple comparison between the length of stay in each country—six months in the United States and seven to eight weeks in the United Kingdom. The district court concluded the latter was insufficient to establish a habitual residence and thus denied Mr. Ahmed’s petition. At the same time, the court noted the infants’ inability to partake in “school, sports or other extra-curricular activities, or meaningful friendships.” The district court devoted most of its analysis to any shared parental intent between the Ahmeds and made factual findings under that standard. In sum, the district court found “no settled mutual intent during the children’s lives and much of Mrs. Ahmed’s pregnancy.” 

           The Sixth Circuit considered the parties settled mutual intent in disposing of Mr. Ahmed’s petition. It observed that it generally preferred the acclimatization standard because it serves one of the main purposes of the Hague Convention: ensuring a child is not kept from her family and social environment. This ceases to be a concern, of course, if a child never forms such ties or is incapable of doing so. It did not reach the issue of especially young children in Friedrich I. Consequently, incorporating the shared parental intent standard in cases concerning especially young children would mean addressing a gap, not overturning precedent. The most compelling reason for applying the settled mutual intent standard is the difficulty, if not impossibility, of applying the acclimatization standard to especially young children. The period a child spends in a given location is but one component of acclimatization. Not only must the child have “been present long enough,” but he or she must have developed a “degree of settled purpose [there] from [her own] perspective.” What a child does in a country and how she feels about it are as important as the length of her stay there. As a result, virtually all children who lack cognizance of their surroundings are unable to acclimate, making the standard generally unworkable. It held that it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence. This is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case. It made no changes to the acclimatization standard itself, which lower courts should continue to apply in accordance with its precedent.
 Beginning with the acclimatization standard, the district court properly found that the twins’ seven-to-eight-week stay in the United Kingdom hardly allowed them to acquire a “degree of settled purpose” there. As infants, they were unable to do so anywhere when Mrs. Ahmed traveled with them to the United States in August of 2015. The conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent to determine if Mr. Ahmed has shown that the United Kingdom was the children’s habitual residence when they were retained. The district court’s factual findings showed that Mr. Ahmed has failed to carry his burden under the shared parental intent standard. He relied on the court’s finding of the couple’s settled mutual intent to live in the United Kingdom in the fall of 2013, before the twins were conceived. But what matters is where the Ahmeds intended the children to live. Nicolson, 605 F.3d at 104; Gitter, 396 F.3d at 133, 135; Feder, 63 F.3d at 224. There was no error in the district court’s findings of fact as to the Ahmeds’ lack of shared intent as to their children’s residence. The district court’s detailed factual findings established that the Ahmeds’ mutual intent for where their children would live was either unclear or absent from the time the children were conceived until Mrs. Ahmed retained them. Accordingly, Mr. Ahmed had not proven by a preponderance of evidence, under either standard, that the United Kingdom was the children’s habitual residence when Mrs. Ahmed traveled with them to the United States in August of 2015.