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Friday, September 16, 2016

Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) [israel] [Habitual Residence] [Petition denied]

In Cohen v Cohen, 2016 WL 4546980 (E.D. Missouri, 2016) the Petitioner  Father was an Israeli citizen and resided in Israel. The Mother was a citizen of both the United States and Israel. The parties were married in Israel and were the parents of a son, O.N.C., born December 6, 2009 in Israel. The father  had substantial debt and an extensive criminal record in Israel which resulted in a Stay of Exit Order placed on his visa which prohibited him from leaving Israel. Both parties testified that their plan was for Mother to move to the U.S. with O.N.C., find a place to live, enroll O.N.C. in school, and work to help Father pay off the debts which were preventing him from leaving Israel. Father would join them once his debts were paid off and they would live together in St. Louis. According to Mother, they decided to move because their financial situation was difficult and they did not see a future for themselves and their son in Israel. It was Father’s testimony that their intention was to live in the United States for three to five years to save enough money to buy a house in Israel. With the agreement of Father, Mother and O.N.C. traveled to St. Louis, Missouri on December 3, 2012.  Over the next two years, Mother and O.N.C. returned to Israel twice, each time on round-trip tickets.  Mother filed for divorce in St. Louis in July 2014 and on March 13, 2015, she was granted a divorce and sole custody. The father filed his district court complaint on November 25, 2015. The district Court observed that this case turned on whether O.N.C. s habitual residence changed to the United States. It noted that in the Eighth Circuit, factors relevant to the determination of habitual residence include the settled purpose of the move to the new country from the child’s perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.” Stern v. Stern, 639 F.3d 449, 452 (8th Cir. 2011).  Habitual residence is determined by examining “past experience, not future intentions.” Sorenson v. Sorenson, 559 F.3d 871, 873 (8th Cir. 2009) “The ‘settled purpose’ of a family’s move to a new country is a central element of the habitual residence inquiry.” Barzilay, 600 F.3d at 918. However, “settled purpose “need not be to stay in a ... location forever. What is crucial is that the purpose “have a ‘sufficient degree of continuity to be properly described as settled.’ ”  Settled purpose must be from the child’s perspective, although parental intent is also considered. 

The district court found that O.N.C.’s habitual residence had changed to the United States and denied the petition. It found that he had experienced a clear change in geography and a substantial amount of time, over three years, had passed since the move to the United States. The evidence demonstrated that both Mother and Father decided to have O.N.C. reside in the U.S. Settled purpose need not be to stay forever so long as there is a “sufficient degree of continuity to be properly described as settled.”  The last three years and eight months—more than half his life—had been spent in St. Louis, Missouri.. There was ittle evidence in the record concerning O.N.C.’s connections with Israel, while it appeared that O.N.C. had considerable connections with his current environment. He enjoyed a close relationship with his three maternal uncles, and he and Mother found a community with whom they socialized. The Court concluded that as of October 2014, O.N.C. had been in Missouri long enough to have a “sufficient degree of continuity to be properly described as settled” from his perspective, and that the parties intended to relocate to the United States and establish O.N.C.’s residence here. Prior to the move, the parties applied together for approval of O.N.C.’s naturalization application for United States citizenship. It was understood by the parties that Father would not be able to leave Israel until his debts were paid off and the stay order on his visa was lifted. Until then, their intent was always for Mother and O.N.C. to go ahead of Father and settle in the United States. The best evidence of this intent was the actions taken by the parties. Mother and O.N.C. traveled to the U.S. despite the known issues surrounding Father’s visa. Mother secured full-time employment, enrolled O.N.C. in school, bought and registered a car, applied for a Missouri driver’s license, and paid taxes. She eventually rented an apartment for them. The facts demonstrated that Mother was establishing a life here for the family, and for the next two years, the parties continued to act in furtherance of their plan. Not until April of 2014, when the marriage deteriorated, did Father claim the relocation had been intended to be temporary.  The change in geography, passage of time since the move to the United States, O.N.C.’s acclimatization to his current environment, the degree of settled purpose in his environment from his perspective, and the shared intent of the parties all pointed to the U.S. as O.N.C.’s habitual residence.

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