Headifen v. Harker 2013 WL 2538897 (W.D.Tex.) [New Zealand] [Habitual Residence] [Petition Denied]

In Headifen v. Harker 2013 WL 2538897 (W.D.Tex.) Headifen filed a petition for return of a minor to New Zealand. Headifen was a national and citizen of New Zealand, and a naturalized citizen of the United States. Headifen first came to the United States in 1984, and began an extended residence in this country beginning in 1985, initially on a student visa.He subsequently married an American citizen, and acquired United States citizenship thereby. Headifen and his first wife moved to Austin, Texas around 1991, and ultimately built a home, at 6201 Lost Horizon Drive. Harker was a national and citizen of South Africa, and a naturalized citizen of the United States. They were married on September 16, 2005, in Austin, Texas. Headifen then sponsored Harker's United States citizenship. A.H.H., was born to other parents in August 2008, in Austin. She was adopted by Headifen and Harker shortly thereafter.

The family moved to New Zealand on December 3, 2009. They lived there together until August 2012, when Headifen and Harker separated. Harker claimed the move was intended to be temporary, motivated in large part by Headifen's wish to be with his aging mother in her final days, having been out of the country when his father passed away. Harker claimed the family's time in New Zealand was expected to last no more than twelve to eighteen months, and they planned to return to Austin afterwards, to raise A.H.H. in America. The family resided with Headifen's sister for the first four months, then leased a house in the Auckland area under an annual lease. The couple encountered both financial and marital difficulties in New Zealand. Headifen never obtained, and apparently never meaningfully sought, any gainful employment in New Zealand, other than his essentially self-employed efforts to grow an internet business. Savings were exhausted after 2009 . At this time, Headifen professed the family was unable to move back to Texas because it was too expensive. After an abortive effort to start a clothing importer's business, Harker therefore sought and obtained employment in September 2010, landing a job with a New Zealand company.

Harker threatened to separate from Headifen sometime in 2011. Although matters apparently improved somewhat for awhile, the family finances continued to suffer. Headifen remained essentially unemployed. Headifen allegedly refused to pay any share of the couple's living expenses, thus frustrating Harker's efforts to save money for the return to the United States. With the couple's lease set to expire in mid-2012, Harker again sought to return to the United States. However, the couple instead separated in July or August 2012, with Headifen moving back in with his sister, while Harker leased a different house. The two agreed to have a "working separation," and Harker claimed Headifen still agreed all three would eventually return to Austin. After the separation in August 2012, the parents shared custody of A.H.H from August of 2012 until on or about April 2, 2013. Harker claimed she and Headifen still agreed to ultimately return A.H.H. to Austin, even after the two separated. She asserted Headifen simply asked if they could wait until the end of the New Zealand summer (which ended in March) to move back to Austin. According to Harker, this plan was abruptly rejected by Headifen when he announced, in a February 18, 2013 email, his new desire for A.H.H. to remain in New Zealand "for her schooling years." At this point, Harker had already given three-months resignation notice to her employer. She had also begun searching for work in the United States, including interviewing in November 2012 with Office Max in Chicago.

After the February 18 email, Harker determined to unilaterally return with A.H.H. to the United States. She accordingly, in secret, made travel plans for herself and the minor. She also arranged to have all their personal belongings shipped back to Austin. On April 2, 2013, Harker emptied joint bank accounts for some $8,000, without Headifen's knowledge or permission. As she was boarding the flight, Harker emailed Headifen, announcing what she had done. Upon arrival, Harker immediately filed a divorce and custody suit in the 261^st District Court of Travis County. The state court apparently issued its standard, mandatory "Standing Order Regarding Children, Property and Conduct of the parties." Headifen's American counsel filed this case on April 24. Headifen sught an order returning A.H.H. to New Zealand, and access to her while she is still in the United States. In a series of orders, the Court previously set terms allowing Headifen temporary shared custody over A.H.H., and requiring counsel for each side to retain A.H.H.'s and their clients' passports and travel documents pending the outcome of this case.

There was no dispute Headifen had parental rights to A.H.H., nor was was there any dispute Headifen was exercising those rights as of April 2, 2013. Harker had not raised any defenses, and there was no question her removal of A.H.H. from New Zealand was "wrongful" under the Convention , if New Zealand was A.H.H.'s habitual residence. Resolution of Headifen's Petition turned on which country A.H.H. habitually resided. The Court observed that under the shared-intent approach, "courts should begin an analysis of a child's habitual residence by considering the relevant intentions [of the parents]." Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir.2005) "[W]e will presume that a child's habitual residence is consistent with the intentions of those entitled to fix the child's residence at the time those intentions were mutually shared." However, the inquiry does not end there, and an absence of shared intent to adopt a new habitual residence can be overcome where, "notwithstanding the intent of those entitled to fix the child's habitual residence, the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted." In noting this, the Second Circuit provided a fairly easy hypothetical example: a child who spent fifteen years living in another country might be a habitual resident of the country, regardless of any parental intent to maintain a habitual residence elsewhere. Gitter, 396 F.3d at 133. Mozes cautions courts should be " 'slow to infer' that the child's acclimatization trumps the parents' shared intent." The Second Circuit describes this situation as "relatively rare." Gitter, 396 F.3d at 134. The Fifth Circuit was in accord with the foregoing discussion from Mozes and Gitter. Larbie states: In such cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind."Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion."Notably, when "the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,] ... most courts will find no change in habitual residence."Mere retention in another country and "private reservations" or intentions that are made "manifest and definitive" only after the child has left its country of origin are generally insufficient to establish intent to change a child's habitual residence. 690 F.3d at 310-311

The Court found that Headifen failed to meet his burden as to habitual residence. Headifen and Harker gave conflicting testimony about the nature of their stay in New Zealand, with Headifen testifying it was intended to be of unlimited duration, and asserting there was no definite plan to ever return to Austin. Harker testified the plan was always for the family to return to Austin, and the sojourn in New Zealand was originally intended to last for only twelve to eighteen months. However, on cross-examination, Headifen admitted he agreed in July 2012 to return to the United States. The Court found Harker and her supporting witnesses to be more credible on this point. Headifen's testimony to the effect he and Harker never had any discussion about how long they would remain in New Zealand was simply not credible. It was belied by Headifen's admitted knowledge Harker never wanted to live there permanently. Although there was supporting testimony from Headifen's friends at the hearing, the Court found heir testimony means little, because social friends might well be unaware of a married couple's personal plans and conversations. Harker testified, in strong terms, she could never reside permanently in New Zealand, and professed grave reservations about moving there at all. This wasapparently based on her impression of New Zealand following a visit there sometime after the couple was married, but before the events at issue here. She explained she had only agreed to go in 2009 based on Headifen's promise the family would only remain in New Zealand for a year to eighteen months. It was confirmed by Headifen, who agreed during his own testimony Harker did not want to reside indefinitely in New Zealand. Headifen volunteered he had hoped Harker would in time change her mind about New Zealand, but this was apparently a private reservation. Such "private reservations" do not suffice to establish intent to change the minor's habitual residence. Larbie, 690 F.3d at 311 . Even though the exact length of the stay was left open to negotiation, the court was able to find nosettled mutual intent from which such abandonment of the United States could be be inferred." At no point prior to February 18, 2013, did either parent indicate a desire to abandon the previously agreed plan to return A.H.H. to Austin. On February 18, Headifen announced to Harker that he had changed his mind, and openly conceded: "Obviously this means a change in that we're staying in New Zealand and not moving to Austin. " Any doubt on this score was dispelled by the great weight of other evidence in this case, including (1) the arrangements for A.H.H.'s education, (2) the family's housing, (3) pervasive official and business ties with Austin which endured throughout the time in New Zealand, and (4) as late as October 4, 2012, Headifen indicated his continued assent to return to Texas. Based on all of the foregoing evidence, the Court found that Headifen and Harker never had a shared intention to make New Zealand A.H.H.'s habitual residence. Rather, the Court found they did have a shared intention, until February 18, 2013, to maintain Austin as A.H.H.'s habitual residence.

Having weighed the threshold question of parental intent, the Court considered whether " 'objective facts ... unequivocally' " indicated Headifen and Harker's shared intent to keep the United States as A.H.H.'s habitual residence was nevertheless supplanted by the practical effects of A.H.H.'s time in New Zealand. Larbie, 690 F.3d at 311. The Court found no such unequivocal indication was present here. Headifen and Harker gave conflicting testimony as to what A.H.H.'s life in New Zealand was like. Headifen briefly testified A.H.H. was fully involved with his family and relatives in New Zealand, including aunts and uncles, and a nephew who is the same age. Harker testified Headifen's family wanted little to do with her or A.H.H., refused to spend time with A.H.H., and expected Harker to simultaneously care for her daughter and take over numerous other household responsibilities, while Headifen was constantly out sailing or engaged in other leisure pursuits without Harker or A.H.H. Headifen offered no other evidence to establish A.H .H.'s acclimatization to New Zealand. For some nine months, after Harker obtained employment, A.H.H.'s care was primarily handled by a French au pair, who apparently cared for A.H.H. at the family's leased home. This was not indicative of integration into the New Zealand setting. Although A.H.H. was enrolled in a preschool afterwards, and presumably adapted to this setting in a normal way, the Court was not persuaded this was unequivocal evidence.

Because there was no shared parental intent to make New Zealand the habitual residence, and because there were no unequivocal facts demonstrating A.H.H. nevertheless became acclimated to New Zealand, the Court concluded Austin, not New Zealand, remained A.H.H.'s habitual residence. As such, Headifen has failed to establish a necessary element for relief under ICARA, and his Petition was denied.