Bindslev v Silve, Not Reported in Fed. Rptr., 2025 WL 66745 (11 Cir., 2025) [Denmark] [Petition granted] [ Return Order affirmed] [ Enforcement Order vacated]

 

 

In Bindslev v Silve, Not Reported in Fed. Rptr., 2025 WL 66745 (11 Cir., 2025) the district court found that Silva had wrongfully removed her child, I.S.B., to the United States and required her to return I.S.B. to Denmark. In the “Enforcement Order,” which was issued after the Return Order was pending on appeal, the district court required Silva to turn I.S.B. over to her father, Christian Bindslev, in Florida. The Eleventh Circuit affirmed the Return Order and vacated the Enforcement Order.

The Eleventh Circuit explained that when considering a district court’s order under the Hague Convention, the Court reviews a district court’s findings of fact for clear error and its legal conclusions and applications of the law to the facts de novo.

The Eleventh Circuit held that the district court did not err in ordering I.S.B.’s return to Denmark. When one parent removes a child from another country to the United States, a U.S. court can order the child’s return to his or her “country of habitual residence” if the non-removing parent proves “by a preponderance of the evidence, that [the] child was ‘wrongfully removed or retained within the meaning of the Convention.’ ” Chafin v. Chafin, 742 F.3d 934, 935, 938 (11th Cir. 2013) (quoting 42 U.S.C. § 11603(e)(1)(A)).

In the Return Order, the district court found that Bindslev had made out a prima facie case for return. Silva asserted that the court further found that return would expose I.S.B. to a “grave risk of harm” and that the “ameliorative measures” that the court imposed were ineffective. In the alternative, she argued that the district court was required, but failed, to make a finding on the grave-risk-of-harm issue.

The Eleventh Circuit disagreed. As it read the Return Order, the district court found that Silva had not established a grave risk of harm. In relevant part, the Order stated as follows: “Although [Silva] argued that returning the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, this Court found that the court in Denmark was fully capable of protecting the child if necessary.” The district court could have expressed itself more clearly, but by beginning its statement with the word “[a]lthough,” it sufficiently indicated its consideration, and rejection, of Silva’s grave-risk argument. The court’s reference to the Denmark court’s capacity to protect I.S.B. did not suggest otherwise. Although Silva contended that the remark refered to an ameliorative measure, and therefore suggested that the court found that she had established the requisite grave risk, the capacity of Denmark’s tribunals to protect I.S.B. was not a court-imposed ameliorative measure, but rather an independently existing fact.

The Eleventh Circuit observed that it reviews de novo questions on the jurisdiction of the district court. It held that the district court lacked jurisdiction to issue the Enforcement Order while the Return Order was pending before it on appeal. Absent entry of a stay on appeal the District Court retains jurisdiction to enforce its orders. But the filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. Accordingly, the  district court does not have the power to alter the status of the case as it rests before the Court of Appeals.

 The Enforcement Order purported to alter the status of an issue involved in a pending appeal. The Return Order stated that “[I.S.B.] shall not be turned over to [Bindslev].” In stark contrast, the Enforcement Order stated that Silva will “surrender [I.S.B.] to the custody and possession” of Bindslev. That was not a valid “enforcement” of the Return Order. Rather, it was an attempted amendment of a portion of the Return Order that was inseparably involved in a pending appeal before the Court. The district court had no jurisdiction to do so. Accordingly, it vacated the district court’s Enforcement Order.

 In a footnote, it pointed out that the Return Order did not violate Federal Rule of Civil Procedure 52(a)(1), as Silva contended. The Order incorporated “the reasons stated on the record,” and those reasons were sufficiently detailed to clear Rule 52’s low bar. See Compulife Software Inc. v. Newman, 959 F.3d 1288, 1308–09 (11th Cir. 2020)

 

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Nisbet v Bridger, 2024 WL 5178814 (9th Cir, 2024) [Scotland] [Petition denied] [Habitual residence]

 In Nisbet v Bridger,  2024 WL 5178814 (9^th  Cir, 2024) the Ninth Circuit, construing the Supreme Court decision in Monasky v Taglieri, 589 U.S. 681, 40 S.Ct. 719, 206 L.Ed.2d 9, affirmed an order of the district court which denied Andrew Nisbet's petition under the Hague Convention for the return to Scotland of his two young children,¹ ACN (born in February 2018) and KRN (born in February 2020).

 Nisbet and Bridger met in 2012 in New York City when they were both on vacation. Nisbet lived and worked in Scotland as a radiologist. Bridger, a United States citizen, lived in Oregon and was unemployed. Bridger moved to Scotland in 2012 to be with Nisbet because he purportedly could not work in the United States as a radiologist. They lived in an apartment in Edinburgh that Nisbet owned. In Spring 2017, Bridger became pregnant with ACN in Scotland. Adamant about their residence, Nisbet asked to live with his parents. His parents turned them down. Shortly thereafter, Nisbet attempted suicide. Nisbet then took Bridger to Jersey, and they showed up on the doorstep of Nisbet’s parents who relented and allowed them to stay at an annex of the Jersey Residence temporarily while Bridger was pregnant with ACN. In January 2018, Nisbet again attempted suicide. In February 2018, ACN was born in Jersey. Bridger took care of both ACN and Nisbet for six months in Jersey, with minimal assistance from Nisbet’s parents. In August 2018, Bridger moved from Jersey to Scotland with ACN. Nisbet still lived in Jersey but commuted between Jersey and Edinburgh. During this period, Bridger prepared to leave for the United States, but Nisbet convinced her to stay for a few more months. In February 2019, Bridger returned to Jersey with ACN after Nisbet assured her that he had reconciled with his parents. Despite this assurance, Nisbet’s relationship with his parents deteriorated. Nisbet would bang his head against the wall every day, sometimes several times a day. He punched walls and broke a table. The police were called when Nisbet once cornered his father and pulled his mother’s hair. Bridger told Nisbet she no longer loved him and wanted to return to the United States.  In early August 2019, Nisbet’s parents served a notice of eviction on Nisbet and Bridger. On August 6, 2019, Nisbet killed his mother by stabbing her in the neck with a pocketknife. He was arrested and pleaded guilty to manslaughter on the grounds of diminished responsibility owing to a mental disorder. The Royal Court of Jersey sentenced Nisbet to indefinite psychiatric confinement at Brockfield House in Essex, England. The district court found that Nisbet’s family had since severed contact with Nisbet, Bridger, and ACN. Around the same time, by August 2019, Bridger had become pregnant with KRN. After Nisbet was arrested, Bridger and ACN were taken to a refuge and then to a halfway house in Jersey. Bridger planned to return to the United States once she was no longer needed for the police’s investigation of Nisbet. As KRN’s due date neared, Bridger instead moved to the Edinburgh Residence in late 2019 to give birth to KRN because she did not have health insurance in the United States, she had no other place in the United Kingdom to live with her children, and she believed she needed to remain in the country while Nisbet’s criminal case was pending, Bridger still planned to leave for the United States shortly thereafter, if she were released by the police authorities. KRN was born in February 2020. Then, the COVID-19 pandemic hit; country borders and airlines were closed. From then until June 2022, and during the COVID-19 restrictions period, Bridger lived in the Edinburgh Residence with ACN and KRN. Bridger kept in contact with Nisbet because she needed Nisbet’s signature to apply for KRN’s U.S. passport, she needed financial support from Nisbet, and her U.K. visa was expiring. Bridger told Nisbet multiple times she needed to return to the United States and reunite with her family. While in Edinburgh, ACN and KRN attended a nursery school, and they received regular medical and dental care. Bridger testified that ACN and KRN “didn’t actually make friends when they were in Scotland at nursery.” They made acquaintances elsewhere, “but they never knew anyone on a name basis.” ACN and KRN visited Nisbet several times at St. Andrew’s Hospital in Northampton, England, where Nisbet has been in custody since April 2021. Nisbet scheduled Skype calls with ACN and KRN from his psychiatric facility in England every day for an hour. He tried to read stories and play games with them, but often after a short period, ACN and KRN stopped paying attention to Nisbet on the screen. Bridger never intended Scotland to be more than a temporary location for her and her children. In December 2021, Nisbet finally signed the necessary documentation for KRN’s U.S. passport, knowing Bridger intended to take KRN to the United States. Bridger immediately applied for a U.S. passport for KRN. While waiting for months to receive KRN’s U.S. passport, Bridger began packing and sent belongings to the United States. On June 17, 2022, Bridger left Scotland for the United States with ACN and KRN.  On June 12, 2023, Nisbet filed a petition under the Hague Convention. On October 24, 2023, six days after the trial, the District Court denied Nisbet’s petition, finding, inter alia, that Nisbet failed to prove by a preponderance of the evidence that Scotland was ACN and KRN’s habitual residence. Nisbet appealed.

The Ninth Circuit observed that in general, 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.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant.” Monasky, 589 U.S. at 78. Such facts include “geography combined with the passage of an appreciable period of time,” “age of the child,” “immigration status of child and parent,” “academic activities,” “social engagements,” “participation in sports programs and excursions,” “meaningful connections with the people and places,” “language proficiency,” and “location of personal belongings.” Id. at 78 n.3. “Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. “No single fact, however, is dispositive across all cases.”. Courts determine a child’s habitual residence by looking at “the totality of the circumstances specific to [each] case,”, and they must be “sensitive to the unique circumstances of [each] case and informed by common sense,” id. at 78.  “The bottom line: There are no categorical requirements for establishing a child’s habitual residence.” A habitual-residence determination is a mixed question of law and fact. A trial court must first correctly identify the totality-of-the-circumstances standard. Once it has done so, what remains is a factual question that can be reviewed on appeal only for clear error.  Under this standard of review, it cannot reverse a district court’s finding that is “plausible in light of the record viewed in its entirety,” even if convinced that it would have found differently. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). If “there are two permissible views of the evidence,” the trial court’s “choice between them cannot be clearly erroneous.” This standard of review is deferential, so much so that the Supreme Court has adopted it in the Hague Convention context with the goal to “speed [] up appeals.” Monasky, 589 U.S. at 84.

The Ninth Circuit pointed out that when Bridger lived with ACN and KRN in Scotland from late 2019 through June 2022, ACN was approximately two to four years old, and KRN was less than two and a half years old. Their ability to acclimatize to society was limited at the time. That said, the district court considered whether ACN and KRN could have acclimatized to Scotland through three likely ties: people in the societal surroundings, Nisbet’s family and friends, and Nisbet. The district court found ACN and KRN did not make any friends at their nursery school or elsewhere in Scotland. Nisbet’s family severed contact with Nisbet, Bridger, and their children. The district court considered ACN and KRN’s lack of connection with Nisbet. Nisbet had been incarcerated since KRN’s birth; he lived with ACN only intermittently for at most a year, half of which time he was bedbound because of his second suicide attempt. Nisbet himself had not lived in Scotland since 2017—he first lived in Jersey, then he was confined at Brockfield House in Essex, England, and thereafter transferred to St. Andrew’s Hospital in Northampton, England. Granted, Nisbet tried to interact with ACN and KRN over Skype from his psychiatric internment in England every day for an hour. Often after a short period, however, ACN and KRN stopped paying attention to Nisbet on the screen. There was no clear error when the district court concluded ACN and KRN “had no family or friends in Scotland” and “no meaningful relationship with their father.”

The Court observed that district court followed the Supreme Court’s teaching in Monasky that “the intentions and circumstances of caregiving parents are relevant considerations,” when a child,like ACN, less than four and a half years old by June 2022, and KRN, less than two and a half years old at the time, is unable to acclimate due to his very young age or other reasons. On the mother’s side, Bridger’s intention and circumstances militated against finding Scotland to be ACN and KRN’s habitual residence because, as the district court observed, Bridger “had been shuttled through Jersey shelters,” “repeatedly contemplated moving back to Oregon,” and was in the United Kingdom “on an expiring visa.” Therefore, the district did not clearly err in placing significant weight on Bridger’s lack of ties to Scotland when ascertaining ACN and KRN’s habitual residence. See Monasky, 589 U.S. at 80 n.4 (recognizing the mother’s integration to a country as a “highly relevant” factor, if a young child is “in fact looked after by her mother”. On the father’s side, the district court afforded little weight to his role as a caregiver. The district court found Nisbet arguably “raised ACN in earnest” only “for the six months between February and August 2019,” and he did not raise KRN at all because he had been imprisoned before KRN’s birth. It did not find the district court committed a clear error in focusing on the intention and circumstances of Bridger, the sole caregiving parent of ACN and KRN.

Nisbet contended the district court clearly erred simply because it found ACN and KRN lacked habitual residence altogether. The Court responded that this contention is tantamount to a categorical ban against finding no habitual residence. As the Supreme Court has made clear, the “bottom line” is “[t]here are no categorical requirements for establishing a child’s habitual residence.” Monasky, 589 U.S. at 80. While a finding of no habitual residence is rare and should be disfavored, it is not a clear error to render such a finding if the totality of the circumstances of a particular case so warrants.

Nisbet maintained the district court clearly erred in finding ACN and KRN had not habitually resided in Scotland, “where they had lived for two years and four months in the same apartment, where they had attended the same preschool, [and] where all of their medical and dental visits had occurred.” The Majority responded that Supreme Court has held a child’s “mere physical presence” in a country “is not a dispositive indicator of” his habitual residence. Monasky, 589 U.S. at 81; see also id. at 78 (reasoning that a place is just “likely” to be a child’s habitual residence, if the child has lived there “with her family indefinitely”. Nor is the attendance in any preschool determinative. See id. at 78 (“No single fact” “is dispositive across all cases.”). The ultimate object for evaluating a child’s social engagement is to assess acclimatization. Id. at 78 & n.3. Where, as here, factors such as physical presence and preschool attendance did not yield any meaningful social connections for a child, they are not entitled to much salience in courts’ habitual-residence determinations. Therefore, there was no clear error on the district court’s part.

The Ninth Circuit emphasized that it owed  obedience to the Supreme Court, which has encouraged trial courts to make habitual-residence determinations based on “a quick impression gained on a panoramic view of the evidence.” Monasky, 589 U.S. at 82. Reviewing such determinations for clear error, it owes deference to trial courts, which enjoy the vantage point of observing witnesses’ demeanor, candor, and other indicia of credibility.

 

 

Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) [Canada] [Petition denied] [now settled defense established]

In Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) Petitioner-Appellant Raphael Stein (“Stein”) appealed pro se from the denial of his petition for the return of his three Canadian-born minor children to Montreal, Canada. The petition alleged that the children’s mother, Adeena Kohn (“Kohn”), wrongfully retained the minors in Monsey, New York, after a trip to this country in 2020. Stein faulted the district court’s findings, following a bench trial, that (1) his return petition was untimely filed more than a year after the alleged wrongful retention and (2) the children were “now settled” in Monsey. 

The Court reviewed the district court’s factfinding for clear error and its “application of the Convention to the facts” de novo. The clear error standard is deferential, and the Court will “accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)). Because Stein appealed pro se, it construed his briefs liberally to raise the strongest arguments they suggest. 

Stein primarily argued on appeal that Kohn’s wrongful retention of the children occurred not in March or October 2021, but instead at some point in January 2022, when he realized that Kohn had changed the locks on her apartment. The Court observed that the distinction mattered because, if credited, it would mean that Stein’s December 2022 petition was timely and foreclose Kohn’s defense that the children are “now settled” in this country, thereby requiring their return to Canada. It pointed out that in cases where the petitioning parent originally consented to the child’s stay outside its habitual residence, wrongful retention occurs on the date that the petitioning parent is informed that the co-parent will not be returning the child to its country of habitual residence. See Marks, 876 F.3d at 421–22. It saw no error in the district court’s finding that the wrongful retention of the children here occurred on March 6, 2021, or, at the latest, on October 4, 2021. On March 5, 2021, Stein told Kohn that he did not agree with the children staying in New York permanently and that he wanted the family to resume living in Canada as soon as possible. The next day, Kohn responded that the parents were not on the same page and that she would not return to Montreal. Because the parties agreed that Kohn would not live apart from the children, the district court reasonably found that “Stein understood Kohn would keep the children with her wherever she was living.” Alternatively, Kohn’s October 4, 2021 divorce filing, where she sought custody of the children, clearly alerted Stein to her intent to remain in New York with the children. See Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir. 2013). Either way, the wrongful retention occurred more than a year before Stein filed his petition on December 19, 2022, meaning the “now settled” defense was available to Kohn.

 The Second Circuit stated that Article 12 of the Convention requires the district court to grant even an untimely petition for the return of the child to its habitual residence, “unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this “now settled” defense by a preponderance of the evidence. In determining whether a respondent carried this burden, a district court properly considers whether “the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment,” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), an inquiry informed by the following non-exhaustive factors: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Here, the district court carefully evaluated each factor. Viewing the record as a whole, it identified no clear error in its factual findings. The children, who at the time of trial were seven, five, and three, had “lived in Monsey for at least half their lives,” with the youngest having “lived in Monsey nearly her entire life.” Thus, the district court reasonably found that “most, if not all,” of the two elder children’s “memories are likely of Monsey, not Montreal.” The district court further found the children to have lived continuously in the same apartment complex for the whole of their time in Monsey, surrounded by their maternal grandparents, “great-grandmother, aunts, and several of the children’s cousins.” Also, each child had consistently attended daycare and school in Monsey and regularly joined Kohn’s extended family at their local synagogue. The children frequently played with local friends and cousins. Nor was there any risk of deportation given that “Kohn is [a] U.S. citizen, and at least the two older children [already] have U.S. passports.” The only factor weighing against settlement is Kohn’s failure to maintain stable employment in New York. The district court was not required to accord this factor great weight because Kohn had the support of her family, and the children enjoyed a stable environment throughout their time in Monsey. 

Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024)[Chile][Petition denied] [Habitual residence] [Now settled defense established]

 In Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024) Petitioner-Appellant Maria Elena Swett Urquieta (“Swett”)1 appealed from an order of the United States District Court denying her petition for repatriation to Chile of her minor son S.B.S. from the United States, where S.B.S. was wrongfully retained by his father, Respondent-Appellee John Francis Bowe. 

Swett, a Chilean actress, and Bowe, a writer based in the United States, have a son, S.B.S., who was born in Minnesota in 2012. Swett and Bowe separated shortly thereafter but shared legal custody of S.B.S, who lived in Chile with Swett. While Swett enjoyed sole physical custody, she granted travel authorizations that permitted S.B.S. to visit Bowe in New York City. On December 23, 2022, S.B.S. and Bowe traveled from Chile to New York under a travel authorization that expired on January 8, 2023. This litigation arose because Bowe refused to return S.B.S. to Chile on January 8. Instead, he wrongfully retained S.B.S., enrolled S.B.S. in a school in New York City, and sought sole custody. On February 23, 2024, Swett filed this ICARA petition seeking S.B.S.’s return. The District Court explained that Swett had made out a prima facie case of wrongful retention under the Hague Convention but that S.B.S. need not be returned to Chile because Bowe had established two affirmative defenses available under the Convention,  the “well-settled” defense and the “child objection” defense. 

The Court of Appeals pointed out that the Article 12 well-settled defense “permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to [his] country of habitual residency.” Lozano v. Alvarez, 697 F.3d 41, 52 (2d Cir. 2012). The defense is available only if over a year has passed from the wrongful removal or retention until the filing of the Hague Convention petition. The defense requires a respondent to show by a preponderance of evidence that the proceeding seeking the child’s return commenced more than one year “from the date of the wrongful ... retention” and “the child is now settled in its new environment.” Hague Convention, art. 12; 22 U.S.C. § 9003(e)(2)(B). The Court of Appeals agreed with the District Court that the petitioner can consent to an extension of time for the child’s stay, in which case the retention becomes wrongful at the end of the extension. 

The Court observed that that it had not previously decided whether a petitioning parent can extend authorization for a child to remain outside the country of habitual residence after an initial instance of wrongful retention. This extension would postpone the date of wrongful retention to determine whether the well-settled defense is available. It adopted the District Court’s analysis of the defense. It held that the District Court correctly concluded that, even after an initial instance of wrongful retention, a parent may extend authorization for the child to remain outside the country of habitual residence. But it was also right to conclude that Swett did not consensually extend the authorized time and instead merely acceded to circumstances she felt she could not change after Bowe wrongfully retained S.B.S. on January 8, 2023. Swett, ––– F.Supp.3d at –––– – ––––, 2024 WL 2034713, at *31–34. Critically, the District Court found that Swett could not meaningfully consent to Bowe’s continued retention because she lacked any practical ability to control Bowe’s decisions, had already filed a police report in Chile on January 10, 2023, and did not have any firm belief that Bowe would return S.B.S at the end of the extension. The District Court thus correctly found that Bowe’s wrongful retention of S.B.S. occurred on January 8, 2023, and that the well-settled defense was available because Swett did not file her petition until more than a year after that date.

As to the remaining issues raised by Swett on appeal, the Court affirmed for substantially the reasons articulated by the District Court in its opinion and order entered on May 7, 2024.

 

Dashti v Long, --- F.Supp.3d ----, 2024 WL 4614387 (United States District Court, N.D. New York, 2024)[Greece] [Habitual residence] [Rights of Custody] [Motion to dismiss for failure to state a claim granted]

In Dashti v Long, --- F.Supp.3d ----, 2024 WL 4614387 (United States District Court, N.D. New York, 2024) Petitioner Mohammad Ali Dashti’s petition against respondent Brittany Elizabeth Long seeking the return of his minor child, ATD, to Greece was denied.

Dashti and Long began a relationship in 2018. The couple lived together in Athens, Greece. Long became pregnant with ATD in the spring of 2018. Petitioner and respondent became engaged in November of 2018. The couple never married. ATD was born in 2019. ATD is an American citizen. Long and ATD traveled to Florida in March 2020 and were unable to return to Greece until December. Following a family vacation around Europe in December 2022, respondent returned to the United States with ATD. Respondent returned to Athens, Greece with ATD in December 2023. On January 9, 2024, Long called a friend to notify them that she and ATD were being held in Greece by Dashti against their will. The police were called to couple’s apartment and petitioner was arrested. He was released on January 13, 2024. When petitioner returned home, he discovered that Long and ATD had left. Respondent and ATD live together and reside in the Northern District of New York.

The district court rejected Long’s argument that the Court lacks jurisdiction to hear Dashti’s petition because he lacked standing under the Hague Convention because he is not a citizen of a country whose accession to the Convention the United States has recognized. The Court agreed with Dashti that his citizenship is irrelevant to the disposition of his petition. The Hague Convention applies “to any child [younger than sixteen years of age] who was habitually resident in a Contracting State immediately before any breach of custody or access rights.” Convention Art. 3. In other words, the Convention does not contemplate the citizenship of the applicant, or the petitioner. Instead, the Convention applies “as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Convention Art. 35.

Long argued that Dashti has failed to state a valid claim for wrongful removal under ICARA. To be entitled to relief under ICARA, the petitioner must prove his prima facie case of wrongful removal by a preponderance of the evidence. In particular, a petitioner must prove that: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” Tereshchenko, 102 F.4th at 127 (quoting Gitter, 396 F.3d at 130–31). Upon review, Dashti’s verified petition for the return of ATD was dismissed. Petitioner did not prove by a preponderance of the evidence that he had custody of ATD at the time of his removal. Petitioner asserted that under Article 1515 of the Greek Civil Code, he enjoyed custody of ATD as of March of 2019. a review of the provision of the Greek Civil Code cited by petitioner reveals that he did not have “custody” of ATD. Dashti is not a Greek citizen. He was an Iranian refugee residing in Greece. To the extent that Greek Civil Code was applicable given petitioner’s immigration status, Article 1515 did not vest petitioner with custody of ATD at the time of the child’s removal from Greece. Article 1515 of the Greek Civil Code provides that parental care of children born outside of wedlock belongs to the mother. The Code provides that the father may “partake” in parental care but can exercise it only “if the mother’s parental care has ceased or if the mother cannot exercise it on legal or factual grounds.” Dashti’s verified petition asserted that he and Long were not married when ATD was born. The petition further asserted that they have never been married. Petitioner did not assert that respondent ceased or became unable to exercise her parental care of ATD. Therefore, petitioner did not prove that he had “custody” of ATD under Greek law. Nor did he prove that his custody rights were breached when respondent removed ATD from Greece to the United States.

District Court Cases in Districts Other than New York Reported in 2024

District Court Cases in Districts Other than New York Reported in 2024

[France] [Attorneys Fees & Costs] [not clearly inappropriate] [Significant financial hardship] [Motion for reconsideration denied]

Castang, v. Kim, 2024 WL 3360669 (District Court, N.D. Georgia, 2024)

[France] [Attorneys Fees & Costs] [not clearly inappropriate] [ Significant financial hardship]

Castang, v. Kim, 2023 WL 11845499 (District Court, N.D. Georgia, 2023).

[Ecuador] [Petition denied] [Habitual residence] [Failure to prove prima facie case] 

Sarzosa, v. Vergara, 2024 WL 3976846, (District Court, S.D. Texas, 2024)

[Finland] [Petition denied] [Habitual residence] [Failure to prove prima facie case] 

Tuomas 2024).

[Bahamas] [Petition denied] [Habitual residence] [Grave risk of harm and Age & Maturity defenses established] 

Johnson v. Johnson, 669 F.Supp.3d 1089, (District Court, D. Colorado, 2024) 

[Japan] [Motion to dismiss for forum non conveniens denied]

Abraham v. Samuel, 2024 WL 3091081 (District Court, C.D. Illinois, 2024).

[El Salvador] [Petition granted] [Now Settled and Grave risk of harm defenses not established]

Abrego, v. Guerra, 2024 WL 2732307, (District Court, W.D. Tennessee, 2024).

[Colombia] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Aguirre, v. Tillman, 2024 WL 1230253 (District Court, D. Colorado. 2024)

[Argentina] [Petition denied] [Habitual residence] 

Alzu v. Huff, 2024 WL 3165485, (District Court, W.D. Missouri, 2024)

[Mexico] [Petition granted] Habitual residence]

Carmona v. Moreno, 2024 WL 579239 (District Court, M.D. North Carolina, 2024).

[Mexico] [Petition granted] Habitual residence]

De La Torre, v. Login, 2024 WL 4527139, (District Court, N.D. California,2024) 

[Mexico] [Petition denied] Now Settled and Grave risk of harm defenses established]

Delgado, v. Marquez, 2024 WL 517874 (District Court, N.D. California, 2024)

[Venezuela] [Petition denied] [Habitual residence] [Now Settled defense established]

Guevara v. Castro, 2024 WL 2967273 (District Court, N.D. Texas, 2024).

[Mexico] [Habitual residence] Petition granted]

Garcia, v. Posada, 2024 WL 1615029 (District Court, N.D. Texas, 2024).

[Israel] [Motion to Dismiss and Motion for Summary Judgment denied]

Goldstein, v. Simon, 2024 WL 2132881(District Court, S.D. Florida, 2024).

[Peru] [Petition granted] [Grave risk of harm defense not established]

Guzman, v. Brazon, 2024 WL 1841602 (District Court, W.D. North Carolina, 2024)

[Scotland] [Petition granted] [Attorneys’ fees and costs] [Not clearly inappropriate] [Reduction for block billing]

Harvey, v. Means, 2024 WL 4144155 (District Court, W.D. Washington, 2024).

[Japan] [Petition denied] [Habitual residence]

Hiroki, v. Hiroki, 698 F.Supp.3d 1023 (District Court, N.D. Ohio, 2023)

[Canada] [Petition granted] [Habitual residence [[Now settled defense not established]

Horacius v. Richard, 2024 WL 996097 (District Court, S.D. Florida, 2024).

[Cyprus] [Settled on consent order for return] [Attorneys fees and costs]

Isaias, v. Araque, 2023 WL 11228077 (District Court, D. New Jersey, 2023).

[United Kingdom] [Habitual residence] [Petition granted] [Grave risk of harm not established]

Keen, v. Bowley, 2024 WL 3259040 (District Court, C.D. California, 2024). 

[Spain] {Petition granted] [Attorneys fees and costs on default] [Full reimbursement granted] 

Llanso, v. Rivers, 2024 WL 776021 (District Court, S.D. Florida, 2024)

[Mexico] [Petition granted] [Consent and Grave risk of harm defenses not established]

Martinez, v. Contreras, 2024 WL 3594471, (District Court, D. Oregon, 2024).

[Mexico] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Toth  v. Toth-Ledesma, 2024 WL 3568591, (District Court, M.D. Pennsylvania., 2024)

[Mexico] [Petition denied] [Habitual residence] [Failure to prove prima facie case]  

Morrison, v. Chang, 2024 WL 1765675, (District Court, W.D. Washington, 2024)

[Mexico] [Petition denied] [Habitual residence] [Failure to prove prima facie case] 

Nolla, v. Vargas, 2024 WL 2976749, (District Court, E.D. Wisconsin, 2024)

[France] [Motion to dismiss under Fugitive Disentitlement doctrine granted]

Paris, v. Brown, 2024 WL 3742317 (District Court, D. Oregon, 2024).

[Australia] [Motion to strike under doctrine of comity denied]

Pedersen, v. Shriver, 2024 WL 3718189 (District Court, N.D. Illinois, 2024).

[Brazil] [ Petition denied] [Retention not wrongful]

Pereira, v. Gunter, 2024 WL 733896 (District Court, M.D. Alabama, 2024)

[Temporary restraining order granted]

Rodriguez, v. Noriega, 2024 WL 689611(District Court, D. Minnesota, (2024)

[Ecuador] [Petition denied] [Habitual residence not established]

Sarzosa, v. Enriquez, 2024 WL 3976846 (District Court, S.D. Texas, 2024).

[Petition dismissed] [Lack of subject matter jurisdiction] 

Saydlin, v. Ashby, 2024 WL 759302 (District Court, M.D. Pennsylvania., 2024)

[Mexico] [Petition dismissed pursuant to the Younger v. Harris abstention doctrine]

Schoner, v. Schoner, 2024 WL 3164524 (District Court, S.D. Ohio, 2024)

[Mexico] [Petition denied] [Habitual residence]

Staggers, v. Timmerman, 2024 WL 3390567 (District Court, S.D. Iowa, 2024).

[Mexico] [Petition granted] Attorneys fees and costs on default] [Not clearly inappropriate] 

Martinez, v. Contreras, 2024 WL 4528208, (District Court, D. Oregon, 2024).

[Cyprus] [Motion to vacate default granted] 

Isaias v. Araque, 2023 WL 11959851, United States District Court, D. New Jersey, 2023}.

Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024)[Poland][Petition denied][Grave risk of harm]

 

 

In Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024) the district court denied the Petition of Sebastien Funez Mene which sought the repatriation from the United States to Poland of the parties’ only child, a minor referred to herein as “BFS,” who is alleged to have been unlawfully removed from Poland by Respondent in early 2022.

 

The district court explained that throughout these Hague Convention proceedings, there emerged incontrovertible evidence of Petitioner’s severe, unrelenting psychological and physical abuse of Respondent, often executed in the presence of BFS. These proceedings laid bare numerous instances of Petitioner’s psychological and, to a lesser degree, physical abuse of BFS himself, as well as of other children and animals. Despite Petitioner’s repeated (and at times perjurious) disavowals of the same, evidence surfaced of Petitioner’s extensive criminal history in France and elsewhere, including convictions stemming from years of stalking and harassment of former intimate partners and their families; this criminal history betrayed Petitioner’s propensity to disobey court mandates generally and protective orders in particular. Petitioner revealed himself to be an unreformed narcissist, incapable of acknowledging, let alone appreciating, the consequences of his actions, who has audaciously pursued (mostly groundless) legal actions against Respondent in this and other courts in total disregard for his own misconduct. The Court denied the Petition, finding that repatriation of BFS to Poland would expose the child to a grave risk of harm pursuant to Article 13(b) of the Hague Convention.

 

The Court explained that the only trial testimony the Court found wholly incredible was that of Petitioner. Petitioner repeatedly, and egregiously, lied to this Court throughout these proceedings, including at trial. The Court found that the degree and consistency of Petitioner’s dishonesty with this Court constitutes grounds for the blanket discrediting of his trial testimony.

 

Petitioner Sebastien Funez Mene was born in France in or around 1973. He lived most of his life in France. In 2015, after meeting Respondent, Petitioner moved to Poland and has resided there ever since. Respondent Kaja Sokola was born in Wroclaw, Poland on May 4, 1986. At the age of thirteen, she began modeling professionally; she thereafter lived in New York City “on and off” between the ages of sixteen and twenty-three.  At twenty-three, Respondent returned to Poland to attend the University of Social Science in Wroclaw, where she received a Bachelor’s Degree in Psychology and a Master’s Degree in Clinical Psychology, completing her studies in 2014. The Respondent was a certified addiction and co-dependence psychotherapist and Gestalt psychotherapist.  Respondent had a serious heart condition, namely, an aortic aneurysm, and suffers from arrhythmia.  The parties’ son, BFS, was born in Poland in 2019; today, he was around five-and-a-half years old. BFS had general developmental delays for which he received a variety of special services. Petitioner and Respondent met in May 2015. the first time in person when Petitioner came to visit her in Warsaw, Poland in June 2015. Two days into his visit, Petitioner proposed to Respondent. Respondent happily accepted his proposal. Days later, on June 16, 2015, the pair were married in a church. Shortly after the wedding, Petitioner flew to Lyon, France, where he was then residing with his parents; though the sudden departure upset Respondent, Petitioner assured her that he “had an urgent and important case” that required him to get back to France immediately. In August 2015, Respondent flew to Lyon to rejoin Petitioner. She expressed a desire to meet his family, but Petitioner declined to introduce her to his parents, saying he “didn’t have the time.” After two hours in Lyon, Petitioner drove the couple over 1,700 kilometers back to Warsaw, Poland.  Petitioner thereafter moved into Respondent’s Warsaw apartment, and the parties resided together for the majority of their relationship, with the exclusion of a brief period of separation in 2020-2021. The petitioner had not returned to France since the August 2015 trip. Petitioner underwent surgery on his back shortly after arriving in Poland in September 2015. The pair then had a civil wedding ceremony in a city just outside of Warsaw. At the time of the wedding, Respondent was twenty-nine years old, and Petitioner was forty-two. In 2018, Respondent became pregnant with BFS, as a result of Petitioner’s sexual abuse. The parties stipulated to the following facts: “On March 14, 2022, BFS’s country of ‘habitual residence’ was Poland as used within the context of the [ ] Convention.”  “On March 14, 2022, Petitioner [ ] had rights of custody as defined by Article 5 of the [ ] Convention.”  “On March 14, 2022, Petitioner [ ] would have been exercising his rights of custody pursuant to Article 3(b) of the [ ] Convention if not for the retention of BFS.”  “The retention of BFS on March 14, 2022, was wrongful pursuant to Article 3 of the Hague Abduction Convention.”  The Court found that Petitioner has established a prima facie case for the repatriation of BFS under the Convention.

 

The Court found that throughout the parties’ relationship, Petitioner was psychologically, financially, and physically abusive toward Respondent.  The Court explained that Article 13(b) of the Convention relieves a court from the obligation to order repatriation where “there is a grave risk that ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). Pursuant to ICARA, to invoke the so-called “grave risk exception” or “grave risk defense,” a responding parent must establish by “clear and convincing evidence” that such a risk exists. 22 U.S.C. § 9003(e)(2)(A). Determination of whether a respondent has made this showing is “fact-intensive,” and courts in this Circuit are advised to interpret the grave risk exception “narrowly, lest it swallow the rule.” Souratgar v. Lee, 720 F.3d 96, 103-104 (2d Cir. 2013).  To qualify as a “grave risk of harm” for the purposes of Article 13(b), “the potential harm to the child must be severe.” Swett, 2024 WL 2034713, at *41 (quoting Souratgar, 720 F.3d at 103) (alterations adopted). In this Circuit, the kinds of situations that constitute a grave risk of harm are those in which “the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” as opposed to those in which “repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences[.]” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). Further, whether a grave risk of harm exists depends “not only [on] the magnitude of the potential harm but also the probability that the harm will materialize.” Souratgar, 720 F.3d at 103 (citing Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005)).

 

Petitioner’s abuse of Respondent compelled a finding that BFS was at grave risk of harm, as did the facts that BFS had been, and would be, exposed to that abuse. Petitioner’s history of difficulty with impulse control, predilection to intense fits of anger, and physical and psychological abuse of Respondent, often in the presence of BFS, was thoroughly supported by the record. So too was Petitioner’s psychological and, at times, physical abuse of BFS himself. The Court found that Respondent had sufficiently invoked the grave risk defense. See, e.g., Davies v. Davies, 717 F. App’x 43, 48-49 (2d Cir. 2017) (summary order) (affirming grave risk determination “premised on overwhelming evidence of [petitioner]’s extreme violence and uncontrollable anger, as well as his psychological abuse of [respondent] over many years, much of which was witnessed by [the child], and the fact that [petitioner] frequently screamed and yelled at [the child] for no legitimate reason”).

 

The finding in Davies v. Davies is illuminative, wherein the Second Circuit affirmed the trial court’s grave risk determination. In that case, the record demonstrated that the petitioner was quick to anger at even the slightest of inconveniences, such as when the respondent “didn’t do the dishes or if the bedroom was messy or if there were clothes on the floor.”  In those instances, the petitioner would scream in the respondent’s face and slam and punch doors. The record also supported the fact that the couple’s child had been a frequent witness to the petitioner’s abuse of the respondent, and that, in some instances, the petitioner had screamed at the child himself. And while the petitioner had never punched or beaten the respondent, he did exhibit violence towards others, including animals, On that record, the Second Circuit affirmed a finding of grave risk in a summary order. The petitioner in Davies and Petitioner in this case exhibited remarkably similar behavior patterns. The record showed that Petitioner’s violent behavior, which included pushing, grabbing, kicking, and hitting Respondent, exceeded that found in Davies. The record also featured several additional aggravating factors not present in Davies, namely, the few isolated instances of Petitioner’s physical abuse of BFS, as well as Petitioner’s well-established criminal history of obsessively targeting former romantic partners. Accordingly, the Court found that the repatriation of BFS to Poland would expose him to a real risk of both psychological and physical harm, and as such is inappropriate.

 

The Court’s analysis of the harm posed by the repatriation of BFS did not end there. The Second Circuit acknowledged that a grave risk of harm, and specifically, psychological harm, can exist where an abducted child with a cognitive disability has been enrolled in specific developmental programming in his new country and removing him from that programming would result in “a severe loss of the skills that he had successfully developed.” Ermini, 758 F.3d at 166. In that decision, facing for the first time the question of whether “this kind of psychological harm” fell within the scope of Article 13(b), the Second Circuit answered in the affirmative. The Second Circuit further noted that “sister signatories [to the Hague Convention] have found the risk of harm ... to be sufficiently grave” in similar circumstances. Here, as the Court detailed in its BFS haf general developmental delays for which he receives extensive therapy, including special education services and speech-language therapy. Moreover, since arriving in the United States, there has been a meaningful improvement in BFS’s “emotional, intellectual, [and] motor skills,” inter alia. Furthermore, as Dr. Fernandez opined, “[a]ny disruption to [this programming] would risk the development of mental health symptoms [ ] such as anxiety and depression,” which “could disrupt [BFS’s] progress.” While the Court did not opine herein on whether BFS’s loss of access to the services he currently received would, in and of itself, constitute a grave risk of harm upon which the Article 13(b) exception may be invoked, the Court did find that such loss supported the Court’s overall finding herein that repatriation poses a grave risk of harm to BFS.

 

The Court found that  Ameliorative Measures Available in Poland Are Not Sufficient to Protect BFS. The Court heard extensive testimony regarding the Polish legal system and its ability to combat domestic abuse. Collectively, the parties’ experts painted a picture of a substantial, multifaceted system of protection for victims of domestic violence in Poland, albeit one that, in practice, operates slowly and inefficiently and bears substantial blind spots, particularly when it comes to the protection of minor children. This finding alone left the Court uncertain that the Polish justice system could eliminate the grave risk of harm posed to BFS by repatriation. The Court found that Petitioner was unlikely to abide by any protective order put in place by a Polish court upon BFS’s repatriation, rendering the salutary effect of such a measure dubious for the purposes of the grave risk analysis. See also Walsh, 221 F.3d at 221 (holding that although the court had “no doubt that [courts of the home country] would issue appropriate protective orders,” repatriation was denied in part because the spouse’s habitual disobedience of such orders would render them ineffective). The Court emphasized Petitioner’s total unwillingness to accept any responsibility for his actions and his lack of understanding of (or reflection on) the same. Petitioner himself described this case as a “domestic violence fairy tale.” (“There have been no incidents of domestic violence perpetrated by Petitioner upon Respondent, in the presence of BFS or otherwise.”)). At trial, Petitioner largely denied having any role in his and Respondent’s marital issues: for instance, he testified that he never started an argument with Respondent after the birth of BFS (a period of almost three years before Respondent fled to the United States). Moreover, when Petitioner did admit that some incident described by Respondent or Respondent’s witnesses had occurred in at least some respect, Petitioner sought to downplay what had happened or to justify his actions, or proceeded to give unresponsive testimony instead. (proceeding to tell a story about a different dog when asked about the incident in which he yelled at Respondent’s mother for feeding the parties’ dogs)).

Because Petitioner refused to accept fault or responsibility for his actions, the Court was doubtful that any therapeutic interventions available in Poland would deter Petitioner from continued abuse or reduce the potential harm to BFS posed by repatriation. See Morales v. Sarmiento, No. 23 Civ. 281 (KPE), 2023 WL 3886075, at *13 (S.D. Tex. June 8, 2023) (finding ameliorative measures insufficient where the petitioner “expressed neither remorse nor reflection about his actions”).

 

 

Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024)[Israel][Petition denied] [Habitual residence]

In Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024) the Eleventh Circuit affirmed the judgment of the district court which denied the petition for return.

Brooke Goldstein and Matthew Simon, the mother and father, had three children together. All three children were born in New York, but the family often traveled domestically and internationally. Before 2020, the family lived in Brooklyn, the Hamptons, and Los Angeles. The family moved to Israel in December 2020, and halfway through 2021, the children became Israeli citizens and obtained Israeli passports. During the next few years in Israel, the children visited doctors, were enrolled in schools, and participated in extracurricular activities. The children speak English, but not Hebrew. The family went on vacation to Italy in October 2023, and during that time, Hamas attacked Israel. As a result, the family decided to move elsewhere because of the war. They settled in Miami where the children enrolled in school and participated in extracurricular activities. The children visited doctors and spent time with extended family in the area. For the 2024–2025 school year, the children are enrolled in schools in Miami and Israel.

In late 2023, the mother and father began to disagree about keeping the family in Miami versus returning to Israel. As a result, the mother filed an ICARA petition in federal district court seeking to require the father to return the children to Israel. The mother and father continued living together in Miami with their children when the mother filed her petition, alleging the father’s wrongful retention. The district court denied the petition. It determined that the children’s habitual residence was Florida. Alternatively, the district court concluded that, even if the children’s habitual residence were in Israel, the father did not wrongfully retain the children or prevent the mother from taking them to Israel.

 

          The Court observed that a child’s habitual residence presents ... a ‘mixed question’ of law and fact—albeit barely so.” Monasky, 589 U.S. at 84. This review is considered “mixed” because it first reviews, under a de novo standard, whether the judge applied the correct legal standard to determine the habitual residence.  If the trial judge correctly applies the “totality of the circumstances” standard to determine habitual residence, then it reviews the factual findings made by the court for clear error. Review for clear error is highly deferential. This deference is overcome only when “ ‘on the entire evidence’ we are ‘left with the definite and firm conviction that a mistake has been committed.’ ”

 

          It rejected the mothers arguments that (10 Israel was the correct habitual residence of the children; (2) that  the father wrongfully retained the children by refusing to approve of their return to Israel; and (3) that even though the district court did not reach the issue, that the father failed to present sufficient evidence that the children would be in grave danger if returned to Israel. The father disagrees with the mother’s contentions. The Court started and ened with the first issue. It pointed out that the Hague Convention, as implemented by ICARA, applies to “Contracting States,” which, here, are the United States and Israel. So, even though the district court’s determination was specific to Florida, we must determine whether the district court clearly erred in finding that the United States is the children’s habitual residence. Because it concluded the district court did not clearly err in finding the children’s habitual residence to be in the United States, we need not address the other issues on appeal. The district court correctly applied the totality of circumstances as the legal standard to determine habitual residence. This standard is a “fact-driven inquiry” depending on the “specific circumstances of the particular case.” Monasky, 589 U.S. at 78. The only question is whether the district court clearly erred in any fact findings. The mother points to several fact findings that she says are clearly erroneous. We disagree.

 

First, it rejected the mother’s argument that the district court used an incorrect wrongful retention date in its habitual residence determination. Habitual residence is determined “at the time of removal or retention[.]” Monasky, 589 U.S. at 77. To establish this date, ICARA requires the mother to prove, by a preponderance of evidence, when the father wrongfully retained the children. See Seaman, 766 F.3d at 1257. The district court found that the mother neither alleged a specific date nor did she dispute the father’s proposed date. Based on this finding, the district court determined that the date of the filed petition would serve as the date of wrongful retention. Although the record reflects a disagreement between the mother and father before the filed petition, it could not say the district court clearly erred in its finding that, if the father wrongfully retained the children, he did so as of the date of the mother’s petition.

 

     It also rejected her argument that the district court disregarded the parties’ shared intent (or lack thereof) when they returned to the United States from Israel. Shared intent is not “dispositive[,]” Monasky, 589 U.S. at 78, and “it cannot alone transform the habitual residence.” Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). Contrary to the mother’s argument, the district court found that the parties shared an intention of staying in Florida until the war in Israel ended—or, at a minimum for six months to a year. Ample evidence in the record supported that intention, and the mother filed her petition during this period. Accordingly, it was not left with a “definite and firm conviction” that the court erred..

 

The mother contended that the children’s habitual residence never changed from Israel. It rejected this argument. It could not say that the record compelled that finding. The mother had to show, by a preponderance of evidence, that the children were “habitual resident[s] of [Israel] immediately before retention in the United States[.]” Chafin v. Chafin, 742 F.3d 934, at 938 (11th Cir. 2013) To determine the children’s habitual residence, the district court relied on “objective facts,” Ruiz, 392 F.3d at 1255, like the children’s enrollment in schools and extracurriculars in the United States. It also based its finding, in part, on the father’s “credible testimony,” to conclude that the children’s residence was the United States at the time of the filed petition. When a district court makes determinations based on witness credibility, we give “even greater deference to the trial court’s findings[.]”. Being “sensitive to the unique circumstances of the case[,]” Monasky, 589 U.S. at 78 (quoting Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir. 2013)), the district court also considered the family’s transitory history—they had often moved to different cities, states, and countries for short periods of time—as relevant to whether the children had established a habitual residence in the United States. In light of the unique circumstances of this case, the district court determined that the mother did not meet her burden in demonstrating that Israel was the children’s habitual residence at the time of the alleged retention, and we cannot say the district court committed clear error in making that determination.

 

Finally, it rejected the mother’s challenge to the district court’s assessment of the children’s acclimatization to the United States. Applying the Monasky factors, the district court considered, among other facts, the children’s extracurricular activities, the location of their belongings, and their relationship with family in Florida. While the mother argued that the youngest child could not have acclimated, it could not say the district court erred in evaluating this evidence as to the children. Facts pertaining to the children’s acclimatization to the United States are relevant to assess a child’s habitual residence, and therefore, the district court did not clearly err in its consideration of them.