In Hollis v O’ Driscoll, --- F.3d ----, 2014 WL 43890 (C.A.2 (N.Y.) the Second Circuit affirmed a judgment of the district court granting the petition of John Matthew Hollis for the return of his daughter, H.L.O., from New York to New Zealand. It held that the District Court did not err in concluding that: (1) New Zealand was H.L.O.'s habitual residence prior to removal, notwithstanding a lack of stable accommodations during a significant portion of her time there; (2) H.L.O.'s indefinite removal by her mother Olivia Skye O'Driscoll from New Zealand to New York was contrary to the parties' last shared intent and, therefore, wrongful; and (3) H.L.O. had not "acclimated" to life in New York such that it was the equivalent of a new habitual residence. It remanded the cause for further proceedings, including a determination of whether to award costs to Hollis.
Hollis and O'Driscoll were both citizens of New Zealand, where they lived when their relationship began in January 2010. After O'Driscoll became pregnant with H.L.O. in March 2010, the two became engaged and lived together in Auckland, New Zealand in the months leading up to H.L.O.'s birth in December 2010, and for the first five months of H.L.O.'s life. In May 2011, the relationship began to deteriorate. Around that time, Hollis and O'Driscoll each moved separately to Tauranga, New Zealand, and they never lived together again. After moving to Tauranga, O'Driscoll and H.L.O. did not have their own apartment, but instead "stayed in various guest bedrooms and on various couches." In October 2011, O'Driscoll spent two months in Japan with H.L.O. working as a model, after which she returned to New Zealand. In early January 2012, although still living separately, O'Driscoll and Hollis spent time together with H.L.O., and Hollis had expressed a desire to reconcile. When O'Driscoll raised the possibility of re-launching her modeling career in New York, Hollis indicated that he would consent to such a move on the assumption that he would also move to New York to be with O'Driscoll and H.L.O. In February 2012, after the relationship deteriorated further and O'Driscoll made clear that they would not reconcile, Hollis indicated that he did not consent to O'Driscoll moving to New York with H.L.O., and he raised the possibility of commencing a Hague Convention action if she did. Hollis eventually agreed that O'Driscoll could take H.L.O. to New York, but only on the condition that she would stay there for no longer than four or five months. Despite this apparent agreement, O'Driscoll remained concerned that Hollis did not consent to her taking H.L.O. to New York without him. As a result, O'Driscoll lied to Hollis about her departure date, informing him that he would have a "play date" with H.L.O. on March 7, 2012, but instead departing with H.L.O. on a plane for New York that same day. When O'Driscoll did not return to New Zealand in August 2012, Hollis contacted the New Zealand central authority to initiate a Hague Convention proceeding. The attorney assigned to Hollis promptly notified O'Driscoll that she must return H.L.O. to New Zealand, but O'Driscoll did not comply, resulting in commencement of the present action on March 25, 2013.
The Second Circuit pointed out that in cases arising under the Hague Convention and ICARA, it reviews a district court's factual findings for clear error and its legal conclusions de novo. Guzzo v. Cristofano, 719 F.3d 100, 109 (2d Cir.2013). It accepts the trial court's findings unless it has a definite and firm conviction that a mistake has been committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013) .
In determining a child's habitual residence, a court must first 'inquire into the shared intent of those entitled to fix the child's residence at the last time that their intent was shared. O'Driscoll's argument that New Zealand could not have been H.L.O.'s habitual residence because H.L.O. did not have a stable home after O'Driscoll separated from Hollis in May 2011 was unavailing. The purpose of the habitual- residence inquiry under the Hague Convention is to determine which State's laws should govern the custody dispute. Accordingly, the inquiry is limited to the "country of habitual residence”, not whether the accommodations within the country were stable. Moreover, placing weight on the stability of a child's accommodations would require the court to delve into the merits of the underlying custody claim-a matter beyond the scope of the Court's authority in resolving Hague Convention claims. Hollis and O'Driscoll lived together in New Zealand for approximately nine months prior to H.L.O.'s birth and for the first six months of H.L.O.'s life, and they considered New Zealand home. That O'Driscoll and H.L.O. did not have stable accommodations after O'Driscoll and Hollis separated did not affect, much less negate, the clear establishment of their habitual residence in New Zealand.
O'Driscoll argued that, even if New Zealand was H.L.O.'s habitual residence, Hollis consented to her moving to the United States with H.L.O. indefinitely. Based on the evidence adduced at trial, the District Court disagreed, determining that even though the parties had, at one point, anticipated moving to the United States together, their shared intent at the time of removal was for O'Driscoll to bring H.L.O. to New York for no longer than five months. This finding was based on, inter alia, an email from O'Driscoll stating that her stay in New York would last no longer than four months with a temporary return to New York for Fashion Week and O'Driscoll's attempt to deceive Hollis regarding her departure for New York with H.L.O. The determination of a habitual residence is a "fact-intensive [one] that necessarily varies with the circumstances of each case." Guzzo, 719 F.3d at 109. It could not conclude that the District Court's determination here was erroneous, much less clearly erroneous.
The district court did err in determining that H.L.O.'s one-year relationship in New York with a nanny and enrollment in a weekly play group did not amount to "acclimation," such that, "notwithstanding a lack of shared parental intent to change the child's long-term residence," New York had become the equivalent of "home." In sum, the District Court made no error of law or fact in concluding that H.L.O. was wrongfully removed from New Zealand, the state of her habitual residence, and ordering repatriation to that State.
The Second Circuit observed that ICARA requires the "court ordering the return of a child" to order the respondent to pay these costs unless "such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3); Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir.2013). It held that the District Court, as the court ordering the return of the child, is responsible in the first instance for determining what costs, if any, should be assessed against O'Driscoll, with respect to both the District Court and Court of Appeals proceedings. Ozaltin, 708 F.3d at 377 . Accordingly, it remanded the cause for consideration of whether it is appropriate to award costs to Hollis, and if so, in what amount.