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Saturday, June 7, 2014

Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))[Singapore] [Habitual Residence] [Remanded]

In Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))
Respondent Lisette Neergaard-Colon ("mother") and Petitioner Peter Moeller Neergaard ( "father") had two young daughters, S.S.N. and L.A.N. Although both girls were born in the United States, they lived abroad with their parents for approximately a year and a half after their father's employer temporarily relocated him to Singapore in June 2012. The family's time in Singapore ended in January 2014 when the mother traveled with the children to the United States and refused to return. As a result, the father filed a petition for the return of the children to Singapore. The District Court granted the father’s petition. The Court of Appeals reversed and remanded for a further hearing, finding that the district court erred by determining that the children's place of habitual residence was Singapore without first considering whether the parties intended to retain their habitual residence in the United States while living abroad for a temporary period of fixed duration.
      The mother, a citizen of the United States, and the father, a citizen of Denmark, married in Massachusetts in 2011 and their daughters were born in Massachusetts in February 2011 and February 2012.    At some point in late 2011 or early 2012, the father's employer informed him that it wanted to relocate him temporarily to Singapore for a three-year assignment. In June 2012, the family packed up their things and moved to Singapore, where they rented an apartment. The father obtained an employment pass authorizing him to work in Singapore through 2015, and the mother and children each received a dependant's pass. While in Singapore, the father was paid by the Singapore-based entity Ab Initio Software Private Limited.   The family obtained health insurance in Singapore through the father's employer, and the parties opened a bank account there. They also found pediatricians for their daughters, arranged play dates, and purchased a Singapore Zoo membership. The older daughter, S.S.N., was enrolled in parent-accompanied "EduPlay" classes, and the parents looked at a few Singapore preschools.    During their time in Singapore, the parents retained ownership of their two properties in Boston. Singapore. They rented both properties to tenants on one-year leases. They kept open their bank accounts and retirement accounts in the United States, as well as their credit cards issued by U.S. banks. The mother preserved her position with Boston public schools by requesting a three-year extension of her maternity leave, and the father maintained his green-card status.

The First Circuit Court of Appeals observed that in determining "habitual residence" it begins with the parents' shared intent or settled purpose regarding their child's residence. While intent is the initial focus, evidence of a child's acclimatization to his or her place of residence may also be relevant. In this case the father presented a claim of wrongful retention. It noted that the Hague Convention only provides for the return of a child retained outside of his or her place of habitual residence. If the state in which a child is retained was also the child's place of habitual residence immediately prior to retention, that retention is not wrongful under the Hague Convention. Thus, in order to establish wrongful retention, the father had the burden of showing by a preponderance of the evidence that Singapore was the children's state of habitual residence immediately prior to their retention in the United States. See  Darin, 746 F.3d at 9.
          The Court of Appeals found that  the district court misapplied the legal test for habitual residence by failing to analyze whether the parties ever intended to abandon their habitual residence in the United States, and by placing undue weight on evidence of the children's acclimatization in Singapore. The Court of Appeals pointed out that when the child in question is very young, its habitual-residence inquiry focuses on the parents' shared intent and settled purpose rather than the child's, as a very young child lacks  both the material and psychological means to decide where he or she will reside. In the event that the parents disagree as to their children's place of habitual residence, they look to the intent of the parents "at the latest time that their intent was shared."  Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012). It is imperative that the district court distinguish "between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without 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. 

         The district court-relying upon the parties' affidavits and without the benefit of an evidentiary hearing-found that, "at a minimum, the parties agreed to move to Singapore for three years, and the three-year period has not yet elapsed."Accordingly, the court concluded that the parties' shared intent was that their children reside in Singapore at the time immediately prior to their retention.

       The Court of Appeals found that the  district court failed to differentiate between the abandonment of a prior habitual residence and the creation of a new one as required by Darin. Instead, it merely found that the parents agreed that the children would be present in a particular place for a particular period of time that had yet to elapse. The district court made no factual finding one way or the other as to whether the parents intended to abandon their habitual residence in the United States in favor of Singapore, or whether they intended to retain their habitual residence while simply residing temporarily in Singapore. As a result, the district court overlooked an important factor in the habitual-residence analysis.

The Court of Appeals pointed out that although it has recognized that in certain circumstances, " 'a child can lose its habitual attachment to a place even without a parent's consent ... if the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place,' "  Darin, 746 F.3d at 11-12 it has also cautioned that in the absence of shared parental intent, the district court should  be slow to infer an earlier habitual residence has been abandoned. In the typical case, evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. Here, the  facts found by the district court in this case did not point so unequivocally towards Singapore being the children's habitual residence that it could conclude the same in the absence of a finding that the parties intended to abandon their habitual residence in the United States. Here, the district  court found that the children spent a substantial amount of time in Singapore and that they had friends, books, and toys there. The children were ages one and two at the time of retention. These ages are important, because acclimatization is rarely, if ever, a significant factor when children are very young. See  Holder, 392 F.3d at 1020-21
(holding that in the case of a ten-month-old child, it is "practically impossible"
for a child so young, "who is entirely dependent on its parents, to acclimatize
independent of the immediate home environment of the parents"). They did not
attend school and did not participate in sports. None of their extended family
lived in Singapore, and they took multiple trips-each several weeks long-to the
United States during the year and a half that they lived in Singapore. The Court of Appeals could not conclude that the record points unequivocally to the children's habitual residence being in a particular place. Accordingly, it remanded the case to the district court for a determination of the children's place of habitual residence that considers whether or not the parents intended to abandon their habitual residence in the United States.

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