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Wednesday, February 26, 2020

Monasky v. Taglieri, 2020 WL 889192, at *1–2 (U.S., 2020)[Italy][Habitual Residence]

In Monasky v. Taglieri, 2020 WL 889192, at *1–2 (U.S., 2020) the U.S. Supreme Court, in an opinion by Justice Ginsberg, construed the term “habitual residence” which appears in the Hague Convention on the Civil Aspects of International Child Abduction.

 22 U.S.C. § 9001 et seq., provides that a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country. Petitioner Monasky, a U.S. citizen, asserted that her Italian husband, respondent Taglieri, became abusive after the couple moved to Italy from the United States. Two months after the birth of the couple's daughter, A.M.T., in Italy, Monasky fled with the infant to Ohio. Taglieri petitioned the U.S. District Court for A.M.T.'s return to Italy under the Convention, pursuant to 22 U.S.C. § 9003(b), on the ground that the child had been wrongfully removed from her country of “habitual residence.” The District Court granted Taglieri's petition, concluding that the parents' shared intent was for their daughter to live in Italy. Then A.M.T. was returned to Italy. The Sixth Circuit affirmed. Under its precedent, the court first noted, an infant's habitual residence depends on the parents' shared intent. It then reviewed the District Court's habitual-residence determination for clear error and found none. The court rejected Monasky's argument that Italy could not qualify as A.M.T.'s “habitual residence” in the absence of an actual agreement by her parents to raise her there.

The Supreme Court held that a child's habitual residence depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. The Convention does not define “habitual residence,” but, as the Convention's text and explanatory report indicate, a child habitually resides where she is at home. This fact-driven inquiry must be “sensitive to the unique circumstances of the case and informed by common sense. Acclimation of older children and the intentions and circumstances of caregiving parents are relevant considerations, but no single fact is dispositive across all cases. The treaty's “negotiation and drafting history” corroborates that habitual residence depends on the specific circumstances of the particular case.  This interpretation also aligns with habitual-residence determinations made by other nations party to the Convention. 

The Supreme Court rejected Monasky’s arguments in favor of an actual agreement requirement. While an infant's “mere physical presence” is not a dispositive indicator of an infant's habitual residence, a wide range of facts other than an actual agreement, including those indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant's residence has the quality of being “habitual.” Nor is adjudicating a dispute over whether an agreement existed a more expeditious way of promoting returns of abducted children and deterring would-be abductors than according courts leeway to consider all the circumstances. Finally, imposing a categorical actual-agreement requirement is unlikely to be an appropriate solution to the serious problem of protecting children born into domestic violence, for it would leave many infants without a habitual residence, and therefore outside the Convention's domain. 

In addressing the scope of appellate review, the Court held that a first-instance habitual-residence determination is subject to deferential appellate review for clear error. A trial court's habitual-residence determination presents a mixed question of law and fact that is heavily fact laden. The determination presents a task for fact-finding courts and should be judged on appeal by a clear-error review standard. Clear-error review has a particular virtue in Hague Convention cases: By speeding up appeals, it serves the Convention's emphasis on expedition. Notably, courts of other treaty partners also review first-instance habitual-residence determinations deferentially. 

        Under the circumstances of this case, the Supreme Court declined decline to disturb the judgment below. Although the lower courts viewed A.M.T.'s situation through the lens of her parents' shared intentions, after a four-day bench trial, the District Court had before it all the facts relevant to the dispute. Asked at oral argument to identify any additional fact the District Court did not digest, counsel for the United States offered none. Monasky and Taglieri agreed that their dispute “requires no ‘further factual development, and neither party asked for a remand. 

Saturday, February 1, 2020

Stone v Stone, 2020 WL 491194 (D. New Jersey, 2020)[Israel] [Necessary expenses] [Respondents request denied]

In Stone v Stone, 2020 WL 491194 (D. New Jersey, 2020) [Not for publication] on September 12, 2019, Petitioner Yerucham Stone filed a petition for the return of his three minor children to Israel pursuant to the 1980 Hague Convention. Respondent Bracha Leibowitz Stone responded to the factual allegations of the Petition, opposed the return of the Minor Children to Israel, and requested attorneys fees and costs. The Court held an evidentiary hearing and denied the Petition for return.

On December 20, 2019, the Court held a telephone status conference with the parties, during which Respondent’s counsel reiterated her request for attorneys’ fees and costs. The District Court pointed out that Respondent’s counsel argued that 42 U.S.C. § 11601, which implemented the Hague Convention, permits the Court to award fees and costs to a successful respondent. § 11601 has been superseded by 22 U.S.C. § 9001 el seq. Under the statute, a court ordering the return of a child pursuant to the statute “shall order the respondent to pay necessary expenses incurred by ... petitioner, including court costs [and] legal fees.” 22 U.S.C. § 9007(b)(3). There is no provision, however, by which a respondent is eligible to recover fees and costs from a petitioner. Moreover, other district courts have found that a prevailing respondent is not entitled to attorneys’ fees. See, e.g., White v. White. 893 F. Supp. 2d 755. 758 (E.D. Va. 2012) (noting that ICARA “does not provide for fees to a prevailing respondent, and indeed, does not even mention prevailing respondents”); Thompson v. Gnirk, No. 12-220, 2012 WL 3598854, at *17 (D.N.H. Aug. 21. 2012) (denying prevailing respondent’s request for attorneys’ fees because ICARA provides “no such [fee-shifting] provision for a prevailing respondent”). Furthermore, “[u]nder the American rule, each party normally must bear the burden of its own legal expenses, including attorneys’ fees.” Wilkes Barre Hosp. Co., LLC v. Wyo. Valley Nurses Ass’n Pasnap, 453 F. App’x 258, 261 (3d Cir. 2011) (quoting Mobil Oil Corp. v. Indep. Oil Workers Union, 679 F.2d 299, 305 (3d Cir. 1982)). The Court found no basis to depart from this principle in this case, and denied Respondent’s request for an award of fees and costs.

Sunday, January 12, 2020

Ogawa v Kang, 2020 WL 119960 (Tenth Circuit, 2020) [Japan][Rights of Custody][Petition denied]

In Ogawa v Kang, 2020 WL 119960 (Tenth Circuit, 2020) Japanese national Takeshi Ogawa brought a Hague Convention action against his former wife, South Korean national Kyong Kang, alleging that she wrongfully removed their twin daughters from Japan to the United States in violation of his rights of custody and seeking an order requiring the twins to return to Japan. The district court denied Ogawa’s petition. The Tenth Circuit affirmed.

In 2003, Ogawa and Kang married in Japan. In 2006, Kang gave birth to twin girls. Until 2012, the family lived together, primarily in Japan. But in March 2013, Ogawa and Kang divorced. Married couples in Japan may divorce by agreement without judicial involvement. And when they do, the divorce agreement may provide the terms of any child-custody arrangements. Ogawa and Kang’s divorce agreement provided such terms. Ogawa filed an English translation of the Divorce Agreement with the district court. Under the heading “the person who has parental authority,” the Divorce Agreement states that Kang “shall obtain parental authority over” the twins, Ogawa “shall obtain custody of” the twins, and Ogawa “shall give due consideration to the welfare of [the twins] when exercising custody.” Under the same heading, the Divorce Agreement also provides that Ogawa “shall hand over [the twins] to [Kang] on the last day of March 2017[;] however, [Ogawa] shall continue to maintain the right of custody of [the twins].” Next, under the heading “[c]hild [s]upport, etc.,” the Divorce Agreement states that “[r]egardless of which party is entitled to custody, [Ogawa] shall acknowledge that he is obliged to pay 30,000 yen/month for each child for a period beginning in April 2017 until the month when [the twins] reach 20 years of age as child support to cover actual childcare expenses.” Finally, under the heading “[r]ight of visitation or other contacts,” the Divorce Agreement states that “either party can visit [the twins] once a year.”

After the divorce, the twins lived in Japan with Ogawa. But in October 2017, the twins traveled to South Korea to visit Kang’s family. While the twins were there, Kang took them to the United States without Ogawa’s permission. In April 2018, Ogawa filed his Hague Convention petition in the district court. The district court denied the petition, concluding, inter alia, that Ogawa failed to make a prima facie showing that Kang breached his rights of custody by bringing the twins to the United States.

The Tenth Circuit pointed out that to make a prima facie showing of wrongful removal and thereby obtain access to the return remedy, a petitioner must establish that “(1) the child was habitually resident in a given state at the time of the removal or retention; (2) the removal or retention was in breach of petitioner’s custody rights under the laws of that state; and (3) petitioner was exercising those rights at the time of removal or retention.” Shealy, 295 F.3d at 1122. Here, only the second element was at issue. To establish the second element, a petitioner must demonstrate by a preponderance of the evidence that he or she possesses rights of custody as that term is defined in the Convention. See § 9003(e)(1)(A); Abbott, 560 U.S. at 5 (explaining that “[t]he question is whether a parent has” any rights of custody “by reason of” parent’s rights in child’s country of habitual residence).

The district court found that Ogawa failed to demonstrate that the twins’ removal breached his rights of custody. In doing so, the district court examined the Divorce Agreement and concluded that after March 31, 2017, Kang had “full parental authority under Japanese law with the right to all decision-making authority for the children” and Ogawa had the right to “exercise[e] some physical custody[ ] at undetermined future dates.” Thus, it concluded, Kang’s decision to remove the children did not violate Ogawa’s rights of custody.

Ogawa and Kang agreed that the twins were habitually resident in Japan at the time of their removal to the United States. Thus, to determine if Ogawa’s rights were rights of custody, it  looked to Japanese law “to determine the content of [his] right[s].” Abbott, 560 U.S. at 10. And because the parties agreed that the Divorce Agreement governed their custody arrangement, it determines Ogawa’s rights under the Divorce Agreement as interpreted under Japanese law.
The terms of the Divorce Agreement provide that Kang “shall obtain parental authority over” the twins and Ogawa “shall obtain custody of” the twins. That same section also instructs Ogawa to “hand over” the twins to Kang no later than March 31, 2017, but notes that he “shall continue to maintain the right of custody” after that date. Another section requires Ogawa to begin paying child support to Kang in April 2017, after he “hand[s] over” the twins to Kang. Finally, the Divorce Agreement allows either parent to visit the twins once a year, and it obligates Ogawa to purchase the plane tickets for those visits. Ogawa argued—by relying on American legal principles of contract interpretation—that according to the “plain meaning” of the word “custody” in the Divorce Agreement, he “had custody rights under Japanese law.”. But it was the Convention’s definition of rights of custody and the content of Japanese law that guided the court, not “our somewhat different American concepts of custody.” Furnes v. Reeves, 362 F.3d 702, 711 (11th Cir. 2004), abrogated on other grounds by Lozano v. Montoya Alvarez, 572 U.S. 1 (2014); see also Abbott, 560 U.S. at 12 (explaining that Convention “forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions”). And Ogawa did not tell the court what “content” the word “custody” in the Divorce Agreement has under Japanese law or how that might fit within the Convention’s definition.  In contrast to Ogawa’s undefined “custody” right, the Divorce Agreement specifically grants Kang “parental authority.” And Japanese law delineates which rights are included in “parental authority”: for example, under Japanese law, a parent with “parental authority” over a child has authority to determine that child’s “[r]esidence.” Thus, “parental authority” under Japanese law falls squarely within part of the Hague Convention’s definition of rights of custody—a definition that specifically includes, “in particular, the right to determine the child’s place of residence.”. And the Divorce Agreement grants parental authority only to Kang; it nowhere states that Ogawa also has parental authority.

Relying on Abbott Ogawa argued “that even minimal rights ... are nevertheless ‘rights of custody’ under the Convention.” There, the Supreme Court held that a father had rights of custody under the Convention even though the mother had sole custody and the father had visitation rights. See Abbott, 560 U.S. at 5–6. But critically, the father also had a ne exeat right—which, under the relevant country’s domestic law, gave the father “the authority to consent before the other parent may take the child to another country.” Thus, the Supreme Court concluded in part that because the ne exeat right gave the father “the joint ‘right to determine the child’s place of residence,’ ” it met the definition of rights of custody under the Convention. But here, the Divorce Agreement did not grant Ogawa a ne exeat right. That is, the Divorce Agreement does not provide that Ogawa has any authority to prevent Kang from taking the twins to a different country. 

The Convention also provides that rights of custody include “rights relating to the care of the person of the child.” To determine whether Ogawa had such rights, the Divorce Agreement, specifically provided only Kang with parental authority. And parental authority, under Japanese law, includes not only the authority to determine a child’s place of residence, but also a broad collection of other rights-including, among others, the rights to “care for and educate the child,”, to discipline the child, to handle the child’s money, and to take legal actions on behalf of the child. 

The Court pointed out that simply because Ogawa had some rights to the twins did not automatically mean that the content of those rights amounts to rights of custody under the Convention. For instance, the Convention itself recognizes that not all of a parent’s rights qualify as rights of custody: it also recognizes “rights of access.” Hague Convention, art. 5 (“ ‘[R]ights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”). A parent with only rights of access cannot invoke the return remedy, see Abbott, 560 U.S. at 9. Thus, even if the Divorce Agreement gave Ogawa some rights, Ogawa had to demonstrate those rights are rights of custody as defined by the Convention. This he failed to do.

In sum, Ogawa did not carry his burden to show, by a preponderance of the evidence, that he had rights of custody as the Convention defines them. See § 9003(e)(1)(A); Abbott, 560 U.S. at 5. Instead of explaining what his rights were under the Divorce Agreement, Ogawa insisted simply that because he had some rights, no matter what those rights actually are, their “nature and extent” is “irrelevant.”

The Court also rejected Ogawa’s argument that he must have some rights of custody because the Japanese Central Authority forwarded his application for Hague Convention assistance to the U.S. Central Authority. Ogawa’s argument stemmed not from the terms of the Convention itself, but from provisions of Japanese law that implemented the Convention. Ogawa argued that Japanese law requires the Japanese Central Authority to dismiss applications under the Convention if “[i]t is obvious that the applicant does not have the rights of custody.” Thus, Ogawa reasoned, when the Japanese Central Authority did not dismiss his application, it acknowledged that he had some rights of custody. However, the Implementation Act does not state that by passing on the application, the Japanese Central Authority has determined as a matter of law that the applicant does have rights of custody. Further, and perhaps more importantly, Japanese law governs whether Convention rights of custody exist, not a foreign administrative body’s preliminary assessment of that law. See Abbott, 560 U.S. at 10, 12. It, therefore, rejected Ogawa’s argument that he has rights of custody under the Convention simply because the Japanese Central Authority transmitted his application to the United States.

Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) [Mexico][Grave Risk of harm] Petition granted]

In Blancarte v. Santamaria, 2020 WL 38932 ( E.D. Michigan, 2020) Petitioner alleged that in January 2019, Respondent wrongfully removed Petitioner and Respondent’s two daughters, ages 9 and 10, from Mexico to the United States The Court ordered that the two children be returned to Mexico.

Before January 2019, Petitioner and Respondent lived in Mexico with their two minor children. Respondent describes their living situation as fraught with conflict, anger, and violence. In January 2019, Respondent took the parties’ two minor children and moved to Michigan.  After locating the children in Michigan, Petitioner filed an initial complaint in this Court on July 12, 2019. On October 29, 2019, the Court dismissed the case without prejudice for failure to serve Respondent. On October 30, 2019, Petitioner filed a second complaint for the immediate return of the two children to Mexico pursuant to the Hague Convention and its implementing statutes.

Respondent did not contest any element of the Petitioner’s prima facie case. Petitioner met his burden. Respondent raised three affirmative defenses under the Hague Convention: there is a grave risk of harm to the children if they are ordered to return to Mexico, the children have acclimated to living in Michigan, and they object to being returned to Mexico. The Court held that Respondent had not met her evidentiary burden with respect to her first and third defenses. Respondent’s second defense failed as a matter of law.

Article 13(b) of the Hague Convention provides that a court may decline to order the return of a child if there is a “grave risk that [their] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” 42 U.S.C. § 11603(e)(2)(A) provides that this defense must be shown by clear and convincing evidence.

Respondent made the following allegations related to abuse:• The children have witnessed the Petitioner act violently toward their stepbrother. • Petitioner forcibly shaved Respondent’s son’s head, physically abused him, and forced him out of the marital home.• Petitioner refused to feed the two minor children when Respondent was traveling for business. • Petitioner violently and aggressively brushed their oldest daughter’s mouth, using soap as toothpaste, as he forcibly undertook this act with her toothbrush. • The petitioner physically and sexually abused Respondent. She alleges there is a restraining order issued in Mexico preventing the Petitioner from approaching or being in the presence of the Respondent or their daughters.

In Respondent’s initial filings, she also included psychological reports of the two children from October 14, 2019. The reports, prepared by a Mexican provider following video teleconferencing appointments with the children, concluded that they each suffered from “posttraumatic stress disorder, depression, anxiety, and general fear, caused by living in an environment with the paternal figure that was as psychologically violent as it was physically.”

The Court found Respondent's allegations of the Petitioner’s violence towards her credible and concerning. Testimony regarding the alleged violence towards Respondent’s son revealed that Petitioner did not forcibly shave his head, but instead took Respondent’s son to a barber to have his head shaved in connection with requirements for participation on a sports team. However, testimony showed that Petitioner physically assaulted Respondent’s son, forced him to stay in a shower against his will, and banished him from the parties’ home. Respondent conceded, however, “the minor children have not been physically assaulted”, nor have the daughters directly witnessed the physical abuse of their brother or mother. Testimony from the parties’ oldest daughter revealed that on one occasion, Petitioner poked her tongue with a toothbrush. The Court heard no evidence relating to food deprivation. These factual conclusions were confirmed by the Guardian Ad Litem’s report. Respondent presented no evidence beyond the initial mental health reports of any psychological harm to the children. Respondent did not call as a witness the psychologists who performed the evaluation; nor did she call any other mental health expert.

The Court observed that in Friedrich v. Friedrich, the Sixth Circuit noted that a grave risk of harm could exist in only two situations: First,...when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, . . . in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, maybe incapable or unwilling to give the child adequate protection. 78 F.3d 1060, 1069 (6th Cir. 1996).

The first Friedrich situation did not apply. The children’s residence in Mexico was “in a lovely, family-friendly neighborhood.” The children “attend school, play and do activities.” “Their neighborhood was nowhere near the ‘warzone’ or ‘place of famine’ the Friedrich court contemplates.” Respondent did not contest this characterization.

Respondent did not provide evidence sufficient to satisfy the second Friedrich situation. In Simcox v. Simcox, the Sixth Circuit analyzed when abuse could rise to the level of a grave risk of harm. 511 F.3d 594 (6th Cir. 2007). The court emphasized that grave risk of harm analysis focuses on “the time period between repatriation and the determination of custody by the courts in the child’s homeland.” The court separated abuse cases into three categories: First, there are cases in which the abuse is relatively minor. In such cases, it is unlikely that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation’...In these cases, undertakings designed to protect the child are largely irrelevant; since the Article 13b threshold has not been met, the court has no discretion to refuse to order return, with or without undertakings. Second, at the other end of the spectrum, there are cases in which the risk of harm is clearly grave, such as whether there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. . . . In these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the likelihood that a serially abusive petitioner will not be deterred by a foreign court’s orders...Third, there are those cases that fall somewhere in the middle, where abuse is substantially more than minor but is less obviously intolerable. Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return. Even in this middle category, undertakings should be adopted only where the court satisfies itself that the parties are likely to be particularly appropriate. Id. at 607-08.

The Court noted that Simcox court found the facts, in that case, to fall in the third, middle category. There, the father beat the children physically and abused the children’s mother in their presence. A psychologist found that the children suffered from Post-Traumatic Stress Disorder. The court emphasized that the Hague Convention “was never intended to be used as a vehicle to return children to abusive situations. ..[T]he Convention’s mandate of return ‘gives way before the primary interest of any person in not being exposed to physical or psychological danger.” Ultimately, the court found that “we cannot say, however, that the risk here is so grave that undertakings must be dismissed out-of-hand.” It remanded the case to the district court to determine what conditions could mitigate the grave risk of harm.

The Court found the abuse, in this case, to fall into Simcox’ first, “minor” category. The evidence, although serious, presented significantly less risk of harm to the children than did the evidence in Simcox. There, the children experienced direct physical abuse and witnessed the abuse of their mother. The court called the application of the grave risk defense to those facts “a close question.” Its determination relied on the serious nature of the abuse, its “extreme frequency,” the reasonable likelihood it would continue, and the likely exacerbation of the children’s PTSD upon return. Id. at 608-09. Here, Petitioner had not physically abused his children, nor had the children directly witnessed abuse of their mother or brother. Moreover, testimony portrayed the abuse as discrete incidents over a period of years. While Petitioner’s history of angry outbursts and violence towards Respondent and his stepson was concerning, it was not enough to show a grave risk of harm to the parties’ minor children. See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (physical abuse of spouse, when not also directed at child, insufficient to trigger grave risk exception in absence of allegations of physical or psychological abuse toward child); Aly v. Aden, No. 12–1960, 2013 WL 593420, at *17–18 (D. Minn. Feb. 14, 2013) (four minor instances of domestic violence against spouse, only one of which was witnessed by child, insufficient to establish grave risk of harm); Fernandez v. Bailey, 2010 WL 3522134, at *2–3 (E.D. Mo. Sept. 1, 2010) (emotional, psychological, and physical abuse of spouse insufficient to establish grave risk when petitioner was not violent, abusive, or neglectful to the children).

Moreover, beyond a passing of the Petitioner’s ability to “purchase” courts in Mexico, Respondent had not argued that Mexican courts are “incapable or unwilling to give the child[ren] adequate protection.”

Respondent’s second affirmative defense failed as a matter of law. Article 12 of the Hague Convention provides that if a proceeding is commenced more than one year after the removal of a child and the child has become settled in their new environment, a court need not order the child’s return. These proceedings commenced less than one year after removal, and the defense did not apply.

Article 13 of the Hague Convention provides that a court may consider a child’s objection to returning if the child “has attained an age and degree of maturity at which it is appropriate to take account of [their] views.” 42 U.S.C. § 11603(e)(2)(B) provides that Respondent must show the children’s objection by a preponderance of the evidence. A child’s objection is different from a child’s wishes, as would be considered in a custody hearing. Neumann v. Neumann, 310 F.Supp.3d 823, 835 (E.D. Mich. 2018). An objection may require a child to set forth particularized reasons why they object as opposed to a mere general opposition to return. Yang v. Tsui, 499 F.3d 259, 279 (3d Cir. 2007). This Court had previously considered the objections of children as young as eight. See Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957-58 (E.D. Mich. 2001) (finding that Hague Convention imposes no age limit on defense and eight-year old’s views may be considered).

The Court heard testimony in chambers, and on the record, from the parties’ older daughter, after which the Court determined that she had the level of maturity required to understand the proceedings and to provide meaningful testimony. She explained that she liked attending school in Michigan more than in Mexico because her classmates in Mexico would make fun of her for wearing glasses. She said that her father was often angry, and she would prefer to live with her mother. When asked where she would prefer to live, she said she would prefer to live in Michigan because she feels she will be “more successful” here than in Mexico. The child’s testimony did not rise to the level of objection required. Her opinions about her school, friends, parents, and future success all demonstrated a preference of a ten-year-old child for staying one place over another; however, a comparative preference of this nature lacks the particularity required to satisfy the narrow affirmative defense under Article 13. The Court found the child’s testimony to be more akin to a child’s wishes that could play a role in a custody hearing, than the particularized objections required under the Hague Convention, Yang v. Tsui, 499 F.3d at 279. See, e.g., Haimdas v. Haimdas, 720 F. Supp. 2d 183, 206 (E.D.N.Y. 2010) (finding an articulation of a comparative preference for climate, education, and recreational activities insufficient to invoke affirmative defense).

Because Petitioner had met his prima facie case and Respondent had not shown an affirmative defense, the Court ordered the children’s return to Mexico.

Saturday, January 11, 2020

Abou-Haidar, v. Sanin Vazquez, 2019 WL 7198714 (District of Columbia Circuit, 2019)[France] [Habitual residence] [Anticipatory retention] [Petition granted]

In Abou-Haidar, v. Sanin Vazquez, 2019 WL 7198714 (District of Columbia Circuit, 2019) the DC circuit affirmed a judgment of the district court which granted the petition of Sami Abou-Haidar which alleged that his wife, María Eugenia Sanin Vazquez, wrongfully retained their five-year-old daughter in the United States. 

        In October 2013, Sami Abou-Haidar and María Eugenia Sanin Vazquez married in Paris. Abou-Haidar, a citizen of France, Italy, and Lebanon, was an emergency doctor who provided house-call services. Sanin Vazquez, a citizen of Spain and Uruguay, was a professor of Economics at the University of Évry Val-d’Essonne, near Paris. The couple had a daughter in Paris in early 2014. Before July 2018, the family lived primarily in a rented apartment in Paris. The family also spent several months at a time at a Barcelona apartment they owned. There was no serious dispute that France was the family’s habitual residence before their move to the United States.
In January 2018, the Inter-American Development Bank offered Sanin Vazquez a consultancy in Washington, Sanin Vazquez agreed to serve as a Bank consultant from July 1, 2018 through December 31, 2019. The parties then took several steps to prepare for their departure from France. Sanin Vazquez requested a détachement—a temporary assignment or secondment—from her university for eighteen months, but maintained her university affiliation, her doctoral students, and her French pension. Abou-Haidar kept his Paris job but planned to work for ten to twelve consecutive days each month in France and spend the balance of the month in Washington. The couple rented out their Barcelona apartment for three years and moved out of their rented Paris apartment, leaving their furniture and large appliances in a storage unit in the same building. For the days he would spend in Paris, Abou-Haidar arranged to live in another, smaller Paris apartment that he owned, which he otherwise continued to rent out during the part of each month he spent in Washington. The couple took other steps in preparation for the move to Washington. Sanin Vazquez obtained G-4 diplomatic visas for the family valid for five years. 

        The couple moved into their rented Washington apartment on July 1, 2018. They enrolled their child in a nearby public Spanish-English bilingual elementary school. The child was now nearly six years old, had friends at her school, and participated in soccer and other extracurricular activities. By December 2018, however, the couple began to experience marital discord. As the marriage deteriorated, Sanin Vazquez took action to establish her primary physical custody over the child. On May 2, 2019, Sanin Vazquez filed a Complaint for Custody in D.C. Superior Court, seeking “primary physical custody” and “joint legal custody” of the child. On May 7, 2019, she notified him of the complaint and of her desire for a marital separation. Immediately thereafter, Abou-Haidar received service of the Superior Court complaint. On May 10, Sanin Vazquez told Abou-Haidar that she planned to stay in Washington, D.C. with their daughter after December 31 instead of returning to France. On May 31, Sanin Vazquez’s family law attorney wrote to Abou-Haidar that their Washington apartment had “never been the marital residence” and that Sanin Vazquez had “changed the locks on her apartment.”  On May 23, 2019, Abou-Haidar filed an answer and counterclaim in D.C. Superior Court, seeking “joint physical and legal custody” of their daughter. Then, on June 6, Abou-Haidar withdrew his Superior Court answer and counterclaim and instead sought assistance from the French Central Authority. On June 10, Abou-Haidar also filed a Hague Convention petition in the U.S. District Court in Washington for return of their daughter to France. About two weeks later, the French Central Authority dismissed Abou-Haidar’s application in a letter, stating that the “presence of your daughter in the United States is not unlawful since it was decided by the parental couple which holds the parental authority.” The district court, concluded that Abou-Haidar had proven by a preponderance of the evidence that the mother, Respondent María Eugenia Sanin Vazquez, had wrongfully retained the child within the meaning of the Convention on May 7, 2019 when she served Abou-Haidar with her Superior Court complaint, or at the latest on May 23, 2019, when Abou-Haidar filed his Superior Court answer and counterclaim seeking to maintain joint custody. The court further held that the child’s habitual residence was France because, “based on the full record,” the “parties did not leave France in a manner that would suggest a shared intent to relocate indefinitely to the United States,” and evidence of the child’s acclimatization to the United States did not supplant that intent. Finally, the court held that the retention was wrongful because Sanin Vazquez did not dispute that the retention violated the French custodial rights that Abou-Haidar was exercising at the time of the retention. 

  The Court of Appeals affirmed. It observed, in the first case arising under the Hague Convention that had reached the court, that other circuits often distill analysis of whether a petition for return should be granted into a four-part inquiry, which the parties from the outset have expressly embraced and continue on appeal to agree is applicable: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).

        On appeal, Sanin Vazquez challenged the district court’s findings only with respect to the first two questions. Regarding the first question, Sanin Vazquez took issue with the district court’s retention-date determination. Regarding the second question, Sanin Vazquez and Abou-Haidar agreed on the legal standard that should apply. The Courts analysis addressed only the first two questions, concluding that the district court did not err in finding that Sanin Vazquez retained the child in May 2019 and that the child’s habitual residence was France.

The court noted that Sanin Vazquez’s primary contention was that the petition had to be dismissed because the district court’s retention date of May 7, 2019, preceded December 31, 2019, the date through which the parties agreed the child would remain in the United States. Sanin Vazquez viewed this concern as jurisdictional, arguing that the dispute “is not ripe until January 1, 2020 passes”. In her view, recognizing a retention date prior to December 31, 2019, would constitute an “anticipatory retention”—a type of claim that, she asserted, American courts have never previously recognized. It rejected her effort to label her argument in jurisdictional terms because this case involved an actual, rather than anticipatory, retention. No court has held that either of these retention dates would be premature. The circuits identify the date of retention as “the date consent was revoked” or when the “petitioning parent learned the true nature of the situation.” Palencia v. Perez, 921 F.3d 1333, 1342 (11th Cir. 2019). For example, the Second Circuit has held that the date of retention is the date when the retaining parent advised the other that “she would not be returning with the [c]hildren” as originally planned. Marks ex rel. S.M. v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017). The circuits also agree that the parental actions that serve to identify such date need not be particularly formal.

        The Court held that guided by these analyses, the district court correctly found that Sanin Vazquez retained the child at the earliest on May 7, 2019, when she informed Abou-Haidar of her Superior Court filing seeking “primary physical custody,” or at the latest by May 23, 2019, when Abou-Haidar filed his answer and counterclaim making clear that he opposed the proposed change to his custody rights. Under any circuit’s existing law on the point, one or more of these actions sufficed to identify a retention. These facts also distinguished  the case from the case on which Sanin Vazquez principally relied, Toren v. Toren, 191 F.3d 23 (1st Cir. 1999). Here, in contrast to Toren, a series of decisions and corresponding actions already taken by both parties clearly conveyed a ripe disagreement about where the child’s custody would lie. The First Circuit’s dismissal in Toren was consistent with the basic principle that, in order to be ripe, a challenge to an “anticipatory retention requires a clear communication that the retaining parent is not returning the child home.” The thrust of Sanin Vazquez’s argument was not that the district court misapplied these tests in identifying the date of retention, but that no retention was possible before the date through which the parties initially agreed that the child would reside in the United States. The fundamental flaw with this theory was that Sanin Vazquez’s unilateral actions to assert custody amounted to a declaration that she then rejected and sought to depart from the previous mutual arrangement. Courts routinely apply the same analysis to determine whether a retention occurred even when the actions evidencing retention precede the anticipated end date of the parents’ prior agreement. See, e.g., Blackledge, 866 F.3d at 178-79; Darin, 746 F.3d at 10-11. In Mozes the court held that the mother “retained” the children in the United States during a period when the parents had agreed the children would live with her here and before the date, they had set for the family to reunite at home in Israel. See Mozes, 239 F.3d at 1069-70 & n.5. 
The Court had no trouble concluding that this case involved an actual, not anticipatory, retention. 

The district court concluded, based on detailed factfinding, that France was the child’s habitual residence. Sanin Vazquez contended on appeal that the “factual findings made by the District Court, when applied to the law of and interpreting the Convention, could not possibly yield a ruling that habitual residence was still France.” In deciding what framework to apply to determine the child’s habitual residence all the circuits to have addressed the question agree that two important considerations are: (1) the parents’ shared intent for where the child should reside, and (2) the child’s acclimatization to a particular place. To the extent the circuits’ approaches diverge, they “differ only in their emphasis.” The Court had no occasion to decide which of these frameworks was correct because the parties agreed to application of the Mozes framework. In line with the Mozes framework, it first examined the district court’s findings regarding the parents’ shared intent, and then its findings regarding the child’s acclimatization.

        The district court found, and Sanin Vazquez conceded, that France was the family’s habitual residence before they came to Washington, D.C. denying that the family’s habitual residence was “still France” after the move. Under Mozes, a determination that shared parental intent has changed requires a finding that the parties had a “settled purpose” to establish a new habitual residence. 239 F.3d at 1074. Courts look at a variety of factors to determine whether the parents had a shared intent to change the child’s habitual residence, including “parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence.” Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009). Courts have held parents cannot establish a new habitual residence without forsaking their existing one. A “person cannot acquire a new habitual residence without ‘forming a settled intention to abandon the one left behind.’” Darin, 746 F.3d at 11 (quoting Mozes, 239 F.3d at 1075). Mozes tells us that “[w]hether there is a settled intention to abandon a prior habitual residence is a question of fact as to which we defer to the district court.”. Here, the district court canvassed all of the record evidence and found that the parties intended to remain in Washington, D.C. for the eighteen months of Sanin Vazquez’s initial contract, but that any plans to stay beyond that period were “aspirational and contingent.” Sanin Vazquez did not articulate why any of these factual findings was clearly erroneous. Mozes recognizes a conceptual difference between abandoning a habitual residence and establishing a new one: a person can abandon a habitual residence “in a single day if he or she leaves it with a settled intention not to return to it,” but an “appreciable period of time and a settled intention will be necessary to enable him or her to become” habitually resident in a new country. Mozes, 239 F.3d at 1074-75). The district court explicitly acknowledged this conceptual difference, and held only that the parents did not have a settled intention to abandon France, regardless of their intentions with respect to Washington, D.C. The district court’s factual finding of the absence of settled intention to abandon France sufficed to support its habitual-residence holding. There was no legal error in its analysis of the point. 

        The second inquiry, subsidiary under the parties’ stipulated Mozes framework, was the child’s acclimatization to the new country. “Evidence of acclimatization is not enough to establish a child’s habitual residence in a new country when contrary parental intent exists.” Darin, 746 F.3d at 12 (citing Mozes, 239 F.3d at 1078-79). Mozes further counsels that courts should “be slow to infer from [a child’s contacts] that an earlier habitual residence has been abandoned” in the absence of shared parental intent to do so. 239 F.3d at 1079. Courts view a variety of factors as relevant to acclimatization, including “school enrollment, participation in social activities, the length of stay in the relative countries, and the child’s age.” Maxwell, 588 F.3d at 254. Here, Sanin Vazquez had not identified any error in the district court’s findings regarding the child’s acclimatization. The district court recognized that the child had adjusted to a new school, made friends, and participated in extracurricular activities in the ten months she spent in the United States prior to the retention in May 2019. But, until the sojourn in Washington, the child’s life was based almost entirely in Paris: her parents married there, she was born there, and she attended nursery school there. Sanin Vazquez did not argue that the district court committed any legal error in applying the Mozes framework to its findings relating to the parents’ shared intentions and the child’s acclimatization. Because the parties chose the Mozes framework, and Sanin Vazquez had not challenged the district court’s findings under the remaining questions or asserted any defenses, the Court affirmed the district court’s judgment granting Abou-Haidar’s petition for return.

Thursday, December 26, 2019

Pope v Lunday, 2019 WL 7116115 (WD Oklahoma, 2019)[Brazil] [Habitual residence] [Petition denied]

          In Pope v Lunday, 2019 WL 7116115 (WD Oklahoma, 2019) the district court denied Pope’s petition seeking an order requiring that his estranged wife, Respondent Lauren Lunday, “return” their newborn twin children to Brazil.

          Pope’s petition claimed that the International Child Abduction Remedies Act applied to this matter because “the Children resided in utero with the parties in the family home [in Brazil] prior to the Respondent traveling by way of her deception to the United States,” that “Brazil was the habitual residence of the children at birth,” and that by keeping the children in Oklahoma, Lunday was thus “wrongfully retaining” the children away from their place of “habitual residence” in Brazil. The petition acknowledged, however, that (1) Lunday left Brazil long before the children were born (at 19-20 weeks in the pregnancy), (2) the children were born in the United States and had not spent a moment of their lives in Brazil, and (3) were currently with Lunday in the United States where Lunday presumably intended to stay.

          Pope argued that “this is not a case about wrongful removal of the children in utero,” but rather a case about “wrongful retention” of the children after birth. In Pope’s view, at the moment the children were born, they became “habitual residents” of Brazil because his and Lunday’s “last shared intent” was to reside in Brazil and raise the children there—a position that he believed rendered irrelevant the fact that he and Lunday had been estranged since the children were 19 to 20 weeks in utero. Pope’s position also assumed that day- (or hour- or minute-) old newborns must have a place of “habitual residence,” that this place of habitual residence can be a country in which the newborns had never been physically present, and that his and Lunday’s actual respective intents at the time of the children’s birth must be overridden by any past agreement he and Lunday had regarding where they would raise their hypothetical, future children. In response, Lunday argued that the children could not be habitual residents of a country in which they had never been physically present, that she and Pope had no agreement regarding where the children would reside,  and that even if any agreement was reached when the children were in utero, such an agreement is not sufficient to establish the habitual residency of the subsequently-born children.

          The Court held that this was not a case of children being wrongfully removed or retained within the meaning of the Convention, but rather a custody dispute that ought to be decided by a court with jurisdiction over such matters.

          The Court pointed out that Pope argued that the establishment of habitual residency in Brazil and the wrongful retention away from Brazil occurred simultaneously, at the moment of birth. Pope offered no on-point authority for this position, and it appeared none exists. This position cannot be squared with the text of the Convention, which explains that a child cannot be wrongfully “retained” away from a place unless they were first a habitual resident of that place. Not every crossing of a border with a child is “wrongful” under the Convention. Only removals or retentions of a child away from the place of habitual residence are “wrongful,”—i.e., it is the unilateral severing of established ties to the country that makes the removal or retention “wrongful.” For these reasons, the Court was not convinced that a newborn is capable, at the moment of birth, of having a place of “habitual residence,” as that term is used in the Convention. To conclude otherwise would be to render “habitual” meaningless. But even if a newborn can—or must—be assigned a place of habitual residence, there was no sense in which these children could be considered habitual residents of Brazil. It was undisputed that they were born in the United States to parents who were United States citizens, that they were themselves United States citizens, and that they hadn’t spent a moment of their lives in Brazil, much less enough time that Brazil could be considered the place they usually reside. Pope’s attempt to extend the concept of “last shared parental intent” to a case like this was problematic for several reasons. First, it rendered an agreement as to where to raise a child irrevocable unless superseded by a new agreement. Second, Pope’s position ignored everything that had happened since the alleged in utero agreement. It was undisputed that after leaving Brazil for the United States, Lunday ended her relationship with Pope, remained in the United States, and intended to remain in the United States. The petition was accordingly denied.

Saturday, December 21, 2019

Foster v Foster, 2019 WL 6895442 (W.D. Wisconsin, 2019)[Guatemala] [Habitual residence] [Petition denied]

In Foster v Foster, 2019 WL 6895442 (W.D. Wisconsin, 2019), the district court denied the petition of James M. Foster, which sought an order that would require his wife, Ericka K. Foster, to return their three children to him in Guatemala. 

James Foster and Ericka Foster were both raised in Wisconsin, but met at a Christian camp in Colorado in 2001. They were married in Dodgeville, Wisconsin on May 31, 2002. At the time, Ericka was 23 and James was 24. James and Ericka had three children: “Steven” was born in Colorado on November 18, 2008, “Holly” and “Natalie” were born in Idaho on July 27, 2012, on June 2, 2015, respectively.  At the time of the hearing, the children were 11, 7 and 4 years old, respectively.

During their marriage, James and Ericka made their living as owners and operators of a real estate development company, Narrow Gate Properties LLC, at times living in homes they built for up to two years before flipping them. As a result, they moved twenty-two times during their marriage, mostly between the states of Idaho and Colorado, but also traveling for months at a time to fourteen different countries. To the extent the Fosters’ marriage had a locus, it was in Idaho. They first resided there in 2003 or 2004 until roughly 2008, before moving back to Colorado for a couple of years. The Fosters returned to reside in Idaho again from roughly 2011 until October 2016. In 2014, the parties traveled to Europe for several months. Before departing, they sold the home they were living in at that time in Idaho, stored their belongings in Idaho, with a plan to return at some point to use them, but did not have a concrete plan as to where they would live after this trip.  In October of 2016 the Fosters packed most of their belongings and stored them in a trailer. The Fosters then traveled as a family to Guatemala in the fall of 2016.  After their visit to Guatemala, the family traveled to Mexico for two to three additional weeks. The family traveled on to Belize for the holidays. On January 6, 2017, the family then returned to San Pedro La Laguna, renting a two-bedroom apartment on a month-to-month basis. The parties departed Guatemala in April 2017 and returned again to Wisconsin, where both sets of grandparents still resided. Beginning in early April 2017, the family lived in a two-bedroom RV parked in the driveway of James’ mother’s house in Wisconsin. James eventually returned to Guatemala alone in June 2017, with a plan to secure a more comfortable, larger place for the family to live in San Pedro La Laguna. Once there, James sent Ericka information about living options, including photographs and location details. While Ericka testified that she received this information in Wisconsin, she was not being asked for her input. James then rented a 2000 square foot house located on the lake for twelve months, which he claims Ericka approved. James maintains that Ericka and he had jointly agreed to return to Guatemala. Ericka’s testimony and contemporaneous text messages, however, painted a very different picture, indicating that Ericka did not want to live in Guatemala, but was given a stark choice by James to remain married and return to Guatemala or remain in Wisconsin with the children and without James. Left with no other option as she saw it, Ericka testified that she and the children boarded the plane in August 2017 to return to Guatemala with the hope that James would grow bored with Guatemala and they would return to the United States, true to a pattern that had continued throughout their marriage. On August 10, 2017, Ericka and the children arrived in Guatemala to begin living in the rental home with James in San Pedro La Laguna. In October 2017, the Fosters purchased approximately one acre of undeveloped land. This land was located directly across the street from their rental house. James testified that the purchase was also a mutual decision and that the parties intended to build a main house on the property in which the family would live, while building other “tiny houses” to be available for rent. Ericka again testified that James made this decision without input from her. In August 2018, even before the lease had ended, the family moved from their rental house across the street into the adjoining houses. During their approximately eighteen months of living in San Pedro La Laguna from August 2017 until February 2019, the Fosters were required to leave and re-enter Guatemala every 90 days, having never become legal residents that would have allowed them to stay in the country more permanently. Throughout this period, James and Ericka also maintained their drivers licenses in the United States, while neither had a license to drive in Guatemala. They also continued to file joint income tax returns in the United States, while neither James nor Ericka filed tax returns in Guatemala, nor did they apply for a work permit in Guatemala. Finally, the parties did not receive mail in Guatemala. Instead, since 2016, their mailing address for both personal and business purposes was the home of James’ mother in Hartford, Wisconsin.

On February 12, 2019, Ericka and the kids departed Guatemala and flew to Wisconsin. Almost two months later, on April 5, 2019, James filed a divorce action in Idaho. This filing appeared to be the first time James asked for the children’s return to Guatemala. On August 12, 2019, Ericka filed a formal petition for divorce, also in Dane County, Wisconsin. The Dane County Family Court Commissioner found that the parties could not stipulate to jurisdiction in Wisconsin, concluding that Guatemala was the “home state” of the children and rejecting Ericka’s argument that their living in Guatemala was a “temporary absence.” On James’ motion, the Dane County Circuit Court ultimately stayed the divorce action before it pending this court’s determination of James’ by then pending Hague Convention petition. 

The parties both called expert witnesses to offer testimony about Guatemala’s safety and, in particular, the safety of women and children.  The district court noted that the Convention does not define the term “habitual residency,” but case law in this country and others discourage reliance on traditional notions of residency or domicile unique to an individual country’s laws to avoid a lack of uniformity in enforcement of the Convention. The Seventh Circuit has outlined an approach for making this determination relying in substantial part on a case from the Ninth Circuit, which other Circuits have also followed. See Koch v. Koch, 450 F.3d 703 (2006) (citing Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)). Generally speaking, that determination turns on the parties’ intent:” [T]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. Of course, one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one’s actions; indeed, one’s actions may belie any declaration that no abandonment was intended. If you’ve lived continuously in the same place for several years on end, for example, we would be hard-pressed to conclude that you had not abandoned any prior habitual residence. On the other hand, one may effectively abandon a prior habitual residence without intending to occupy the next one for more than a limited period.” For young children, like Steven, Holly, and Natalie, the Seventh Circuit instructs that the proper focus is on the intent of the parents, rather than on the children’s acclimatization. Koch, 450 F.3d at 713. Moreover, the court’s focus should be on the period of time when the parents last shared an intent. Id. at 712, 715; see also Neergaard-Colon v. Neergaard, 752 F.3d 526 (1st Cir. 2014) Finally, as the parent petitioning for relief under the Hague Convention, James carried the burden to prove this shared intent by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1)(A). In inquiring into the parents’ shared intent, “the representations of the parties likely cannot be accepted at face value,” Koch, 450 F.3d at 713, but rather will require an examination of “all available evidence.”. In other words, the court “should look at actions as well as declarations.” 

Here, the Fosters initially traveled to Guatemala in the fall of 2016 and again in early 2017, to explore it as a possible place to live, while also traveling in Mexico and Belize. At that point, James and Ericka had no shared intent to reside in Guatemala “habitually.” The preponderance of the evidence suggested that this was still true when James returned to Guatemala alone in June 2017, despite his plan to find a larger and more comfortable place for the family to live. Indeed, James and Ericka agree, that he left the family in Wisconsin without agreement from Ericka that she and the children would join him. Ericka ultimately did board a plane with her children to Guatemala in early August 2017 of her own volition and without physical force, but the court credited her testimony, that she agreed to return to Guatemala under an ultimatum from James: remain married and live in Guatemala or separate and stay in Wisconsin with the children. At that point, Ericka had plainly no wish to live in Guatemala for any extended period of time; instead, her decision to return to Guatemala was the result of her attempt to save the marriage and her not unreasonable belief that James would want to move again in time, or at least give in to wanderlust, as he had throughout their almost seventeen year marriage. As Ericka credibly testified, she simply hoped to wait out James’ then fascination with Guatemala. Further, implicit in her decision, was the thought that if, for the first time, James were to put down real roots in a foreign country, Ericka would have to decide whether or not that was tolerable for her and their children. Whatever James’ hopes or intent may actually have been, therefore, the parties had not formed a shared intent to reside habitually in Guatemala at the time Ericka returned with their children in August of 2017.

        The court also had to consider the possibility that even though a mutual intent to abandon a residency and take up another had not be formed “at the moment of departure; it could [have] coalesce[d] during the course of a stay abroad originally intended to be temporary.” Koch, 450 F.3d at 713 (quoting Mozes, 239 F.3d at 1075-76). Accordingly, the court turned to the two other, generally recognized categories: the extent to which the family abandoned their lives in the prior country and established lives in the new country. Here, the Fosters sold the Idaho house they were living in and mutually considered home even before their initial visit to Guatemala in October 2016. Normally, this action would weigh in favor of finding an intent to abandon the prior residence. However, given the parties’ history of frequent sales of homes and numerous moves, coupled with James’ testimony that they sold the house in Sandpoint, Idaho, not because they had a shared plan to reside anywhere else in particular, and at that time certainly not because of a specific shared intent to move to Guatemala, but simply because they had received a price that was too good to pass up, which renders the weight of this home sale relatively insignificant here. Instead, as in the past, the sale of their home provided the family another opportunity for further travel and exploration, not a shared intent to abandon Idaho, particularly if Ericka’s intent is considered, which it must be. As for the extent to which the parties moved their personal belongings to the new country. The evidence reflected that the Fosters merely brought suitcases containing toys, clothing and school books, but did not move furniture, automobiles, or other valuable, personal belongings. In fact, while they sold some of their belongings, James and Ericka packed up their family heirlooms, including furniture Ericka’s father had made for them, and other valuables, including $30,000 in gold, and stored them in Wisconsin at James’ mother’s home. In addition, throughout their time in Guatemala, the Fosters maintained and used bank accounts in the United States. The parties also forwarded their mail within the United States throughout their joint time in Guatemala. See Ruiz, 392 F.3d at 1254 (relying on fact that the mother “had her American mail forwarded to an American address and not to Mexico” to support a finding that she did not intend to reside in Mexico). Finally, the parties continued to pay taxes in the United States and maintained their Idaho drivers’ licenses. These actions all weigh in favor of finding a lack of shared intent to abandon the United States for Guatemala.

While the court noted above that the legal definition of “residency” is not determinative of the “habitual residency” question under the Hague Convention, courts commonly consider the legal residency status of the parties in the new country. Here, only James ever secured residency status, and even then, only a week before the trial in this court. Nor was there any evidence that the Fosters even considered taking steps to secure a longer-term permit to stay in or become residents of Guatemala during the entire time the family lived there from roughly August 2017 to February 2019, despite all of them having to leave Guatemala every 90 days or travel to Guatemala City and pay $25 to secure an extension. This failure also reflected the status of tourists on an extended visit, rather than of a family intending to stake roots in a new country. 

While Ericka’s interests may not have been given equal weight in their marriage, the court found that she was nevertheless steadfast in opposing any kind of longer-term move to Guatemala. Accordingly, the court had little trouble finding Ericka’s wholly credible testimony that she returned to Guatemala in an attempt to save her marriage, knowing James’ pattern of losing interest and moving on -- when coupled with the overall lack of objective evidence demonstrating an intent to abandon the United States for Guatemala -- was sufficient to conclude that James and Ericka had formed no shared intent for the family’s habitual residence to be Guatemala at any time before or during their stay in Guatemala, including specifically right before Ericka removed the children from Guatemala to Wisconsin in February 2019. The last time James and Ericka had a shared intent for a habitual residence within the meaning of the Hague Convention was when they lived as a family in their last home in Idaho. 

The Ninth Circuit in Mozes explained that even in the absence of a shared intent, “a child can lose [his or her] habitual attachment to a place.” The court in Mozes cautioned, however, that courts “should be slow to infer in the absence of shared parental intent that children have changed their habitual residence through acclimatization.” Here, in light of the children’s extremely limited knowledge of both the dominant language of the Guatemalan people and Spanish, almost no involvement in schooling or other meaningful social activities, and frequent return trips back to Wisconsin during a relatively short stay overall of roughly seventeen weeks, the objective evidence did not support a finding that their habitual residency transferred to Guatemala, particularly in the absence of a shared intent on the part of their parents to abandon the United States for Guatemala. For all of these reasons, the court concluded that James Foster failed to meet his burden of demonstrating by the preponderance of the evidence that the children were habitually residing in Guatemala.