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Friday, March 14, 2014

Neergaard v Colon, 2014 WL 936691 (D.Mass.) [Singapore] [Habitual Residence] [Petition Granted]

In Neergaard v Colon, 2014 WL 936691 (D.Mass.) Petitioner Peter Moeller Neergaard, a Danish citizen, and respondent Lisette Neergaard Colon, a United States citizen, lived in Singapore with their two minor daughters, S.S. and L.A.  Petitioner and respondent were married. Petitioner worked for a software company in Singapore.. His employer expects him to work in Singapore for three years, beginning in June 2012. Respondent, who worked for the Boston Public Schools, requested an extension of her maternity leave through June 2015, the conclusion of the three-year period. The couple had two daughters, S.S., age 3, and L.A., age 2. The daughters were dual Danish and American citizens.   In December 2013, the parties and the children traveled to Denmark to celebrate Christmas. They agreed that on January 4, 2014, respondent and her children would fly to the  United States and remain here for two weeks. Respondent reserved seats for herself and the children on a return flight to Singapore on January 20, 2014, but they did not board the plane. Since that time, the parties were unable to resolve the situation among themselves. The remained in the United States. Petitioner filed a verified petition for immediate return of the children to Singapore pursuant to the Hague Convention. After a hearing the district court granted the petition. 

Respondent did not challenge the substantive allegations of the petition , nor did she allege that any of the  exceptions excusing the ordering of immediate return upon a finding of wrongful retention applied. The dispute  boiled down to the following question: what was the children's habitual residence immediately preceding the retention? If it was Singapore, the retention is unlawful. If it was the United States, it is lawful.

Petitioner contended that "[t]he parties' only shared intention was to leave the U.S. and reside in Singapore. The parties rented a house in Singapore and shipped their belongings there. They  opened a bank account and bought health insurance in Singapore. They enrolled S.S., their eldest daughter, in educational programs. Both daughters  lived in Singapore for the majority of their lives. They had regular "play dates" with friends there. Id. In short, "[t]he children have become  accustomed to life in Singapore since their arrival in June 2012.

Respondent contended that the parties understood that the move to Singapore 
was temporary; they did not agree to stay there beyond the three-year job assignment. Petitioner had obtained permanent resident status in the United States and met with an attorney to make sure the move to Singapore did not  compromise that status. They owned two condominiums in Boston, the second of which they purchased the week  before they moved.  Respondent did not extend her maternity leave beyond the end of the three-year assignment and intends to return to work at that time.   According to her, "[p]eople who share an intent to abandon the United States for a new home in Singapore do not behave in that manner.”

The district court found that the parties agreed to move to Singapore for three years, and the three-year period had not yet elapsed. "To establish an habitual residence, it is not necessary to have an intention to stay in a place indefinitely."  McManus v. McManus, 354 F.Supp.2d 62, 67 (D.Mass.2005). What is  required is a " 'sufficient degree of continuity to be properly described as settled.' "  Feder v. Evans-Feder, 63 F.3d 217, 223 (3d Cir.1995) (quoting re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)). Petitioner found work in Singapore and the parties settled there to live as a family, even if not indefinitely. They did what people who settle in a new place do: find a house, open financial accounts, establish medical care, and explore schooling options. Respondent's intention not to remain there cannot overcome this undisputed fact. The Court found that the parties' shared the intention that S.S. and L.A. reside in Singapore. The record showed that S.S. and L.A. had acclimated to Singapore.  Given the parties' shared intention to live in Singapore as a family and the degree to which  S.S. and L.A. have adapted to life there, the court found that  Singapore was the children's place of habitual  residence in January 2014 when respondent retained them in the United States, and granted the petition.