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Saturday, April 18, 2015

In re ALC, --- Fed.Appx. ----, Not for publication, 2015 WL 1742347 (C.A.9 (Cal.)) [Sweden] [Habitual Residence]

In re ALC, --- Fed.Appx. ----, Not for publication, 2015 WL 1742347 (C.A.9 (Cal.)) Sarodjiny "Sarah" Carlwig appealed  the decision and order of the district court sending A.L.C. and E.R.S.C., her dual-national American and Swedish children, to Sweden.

The Ninth Circuit affirmed that part of the judgment of the district court that found A.L.C. was a habitual resident of Sweden, where he now resided with his father, Andreas Carlwig. It observed that when a child moves between nations and a parent files a Convention petition revealing a dispute over habitual residence, we first "look for the last shared, settled intent of the parents." Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir.2013).  When an examination of shared intent does not resolve a dispute between two potential habitual residences, a child's newer residence can be found to be the child's habitual residence when "the objective facts point unequivocally" to "the child's relative attachments to the two countries [changing] to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed," a process known as acclimatization.  Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). The court is mindful that it must be "slow to infer from contacts with a new country that an earlier habitual residence has been abandoned, both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purpose of the Convention."

It found that when the Carlwig family moved to Sweden in 2012, the Carlwigs abandoned any habitual residence that the family shared in Dubai, A.L.C.'s 2008 birthplace, and they established a regular household together, enrolled A.L.C. in local pre-school, and supported A.L.C.'s participation in soccer, swimming, and martial arts. A.L.C. spent time with his father's relatives and demonstrated fluency in the Swedish language. Over thirteen months, A.L.C.'s circumstances and activities demonstrated that he acclimatized to Sweden and that country became the primary locus of his life. It agreed with the district court that A.L.C. became a habitual resident of Sweden.

  In February 2013, A.L.C. traveled to Los Angeles with his pregnant mother, leaving his father behind in Sweden. During several month in Los Angeles, A.L.C.
did develop contacts in the United States. Ms. Carlwig enrolled A.L.C. in summer camp, pre-school, and extracurricular activities. However, A.L.C.'s contacts developed in the shadow of disagreement between his parents over the trip's purpose. Ms. Carlwig argued that she intended to move permanently to the United States with A.L.C. The district court found that Mr. Carlwig believed the trip's purpose was for Ms. Carlwig to give birth and recover before returning with the children to Sweden. The district court did not err in holding that Mr. Carlwig intended A.L.C.'s trip to last approximately six months. During A.L.C.'s time in the United States, Mr. Carlwig maintained active involvement in his son's life, arranging regular communication with A.L.C. from Sweden, visiting A.L.C. in Los Angeles, and making preparations for A.L.C.'s return to Sweden. There was no evidence in the record of a shared parental intent for A.L.C. to move permanently to the United States and there was significant evidence of Mr. Carlwig actively objecting to A.L.C.'s time in Los Angeles lasting more than six months.

  Without a shared parental intent for a permanent change of habitual residence, the court found that A.L.C.'s contacts and relative attachments in Los Angeles were insufficient to prove unequivocally that he had acclimatized to United States or that his habitual residence in Sweden had been abandoned. The district court was correct to order A.L.C. returned to his habitual residence, Sweden.

  The Court vacated the judgment of the district court that E.R.S.C. was a habitual resident of Sweden. The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided. It held that it "interpret[s] the expression 'habitual residence' according to the ordinary and natural meaning of the two words it contains." "Habitual residence" describes "a factual state of affairs"
and [we] recognize[d] the obvious truth that "habitual residence cannot be acquired without physical presence." E.R.S.C. had never been to Sweden prior to the execution of the district court's order. The district court's effort to sift through the past intentions of Sarah and Andreas Carlwig to find a moment of settled, shared intent for E.R.S.C. to someday reside in Sweden was erroneous. It rejected the other rationales cited by the district court in deciding E.R.S.C. was a habitual resident of Sweden. The district court's explanations that it would be untenable to split up the siblings for custody determinations and that Mr. Carlwig was employed in Sweden while Ms. Carlwig "is unemployed here in the U.S. and rel[ies] on financial support from [the] Father as well as governmental assistance," because they go to the merits of the custody claims and are not relevant to the Convention's required analysis. See 22 U.S.C. s 9001(b)(4). It held that the  district court clearly erred in finding E.R.S.C. was a habitual resident of Sweden and it vacated its decision.

   The Ninth Circuit agreed with the district court's determination that E.R.S.C. was not a habitual resident of the United States. It observed that a  child's "place of birth is not automatically the child's habitual residence." Holder, 392 F.3d at 1020. The court has found that when "a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country."E.R.S.C. was not born into that simple situation. Nor was E.R.S.C.'s habitual residence derived automatically from her mother's location and caregiving. See  Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir.1995);  Friedrich v. Friedrich, 983 F.2d 1396, 1401-02 (6th Cir.1993) .    Justifying E.R.S.C.'s habitual residence as the United States based on her contacts in Los Angeles was ineffective as "it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment." When a child is born under a cloud of disagreement between parents over the child's habitual residence, and a child remains of a tender age in which contacts outside the immediate home cannot practically develop into deep-rooted ties, a child remains without a habitual residence because if an attachment to a State does not exist, it should hardly be invented. The Court found that E.R.S.C.'s nine months as an infant in Los Angeles did not result in E.R.S.C. acquiring habitual residence in the United States when E.R.S.C.'s parents never shared an intent for her to reside in the United States beyond Ms. Carlwig's period of recovery after giving birth.
Thus when Mr. Carlwig filed his Convention petition in February 2014, E.R.S.C. did not have a habitual residence. E.R.S.C.'s retention by her mother in the United States was not wrongful under the Convention and the district court erred in ordering E.R.S.C.'s return to Sweden. Further, E.R.S.C. was not wrongfully retained by her father in Sweden under the Convention now as she was not removed from her country of habitual residence to Sweden.    Because E.R.S.C. had no habitual residence, no further analysis of this matter under the Convention and its implementing legislation was possible, as the Convention does not apply to a child who was never wrongfully removed or retained.

The Curt recognized that while it did have the equitable power to undo the district court's action by issuing a re-return order, see  Chafin v. Chafin, 133 S.Ct. 1017, 1024 (2013), but it declined to do so.
   The district court's decision is was affirmed in relation to A.L.C. and vacated in relation to E.R.S.C. 

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