Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) [United Kingdom] Habitual Residence] [Petition denied]

         In Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) the Father Faisal Ahmed claimed that his wife, Mardia Mohsin Ahmed wrongfully retained their daughters in Knoxville, Tennessee, from the infants’ habitual residence in the United Kingdom, and filed a petition for their return. The district court held that he failed to establish that the the United Kingdom was the children’s habitual residence at the time Mrs. Ahmed retained them. The Sixth Circuit affirmed.  

Mr. Ahmed was a citizen of the United Kingdom and resided in London. Mrs. Ahmed was a United States citizen and resided in Knoxville, Tennessee. The couple married in Bangladesh in December 2009. At the time, Mr. Ahmed lived in London and Mrs. Ahmed was an optometry student in Michigan. After the wedding, Mrs. Ahmed remained in Michigan to complete her studies. Mr. Ahmed visited periodically from London. In August 2011, Mrs. Ahmed moved to London to live with her husband. She obtained a visa, began working, and took steps to become licensed to practice optometry in the United Kingdom. Mrs. Ahmed returned to the United States in December 2011 for additional training needed to practice optometry in the United Kingdom. Mrs. Ahmed did not return to London until August 2013, which she considered a permanent move. That October she applied for Indefinite Leave to Remain (“ILR”) in the United Kingdom, stating in the application that she had considered London her permanent home for the previous two years. Mrs. Ahmed received her ILR the next year. In February 2014, Mrs. Ahmed became pregnant and was put on bed rest by her doctor for months. In April, she registered for an exam required to practice optometry in the United Kingdom. The couple had a bitter argument in May 2014. Mrs. Ahmed then traveled to Knoxville, where she had lived previously. Mrs. Ahmed maintained she did not plan to return. She contended that she did not return to the United Kingdom because of her high-risk pregnancy and the acrimony in her marriage. Mr. Ahmed traveled to Knoxville in October 2014 on a three-month visa in anticipation of the birth of their children. November 2014, Mrs. Ahmed gave birth to twins in Knoxville. After a few days, the family moved into a local apartment, where Mr. Ahmed cared for the children as his wife recovered from childbirth. 

         In January 2015, Mr. Ahmed’s visa expired and he returned to London. Mrs. Ahmed insisted she told Mr. Ahmed then that she intended to remain in the United States with the children indefinitely. Mrs. Ahmed moved with the children to her parents’ home in Knoxville, where they live today. The children received medical care in Knoxville from birth until May 2015. Mr. Ahmed returned to the United States in April 2015. The next month, the entire family traveled to the United Kingdom. Once there, they moved into Mr. Ahmed’s parents’ home for one or two months. Mrs. Ahmed asserted that she left Knoxville “for a short summer visit” “to see if [their] marriage was going to work.” Mr. Ahmed believed this to be a permanent move. Mrs. Ahmed traveled on a round-trip ticket with a return scheduled for November 2015. Mrs. Ahmed states she left her valuables in Knoxville, including her optometry instruments, jewelry and diplomas. Mr. Ahmed insists that his wife took nearly everything important to London. Mrs. Ahmed’s friend testified that Mrs. Ahmed planned to return to Knoxville to live, and the children’s medical records from May 2015 reflect appointments for that fall. Mrs. Ahmed did not sell her car or cancel her auto insurance in the United States, retained American medical insurance for herself and the children, renewed her Tennessee optometry license and professional liability insurance, and paid her Tennessee professional privilege tax before leaving for London. Once in London, however, Mrs. Ahmed took the exam required to practice optometry in the United Kingdom. She also registered the children with the National Health Service and took them for a check-up in London. In July 2015, Mrs. Ahmed traveled with the children to a wedding in Bangladesh. Their tickets indicated they were scheduled to return to London on August 5. Mrs. Ahmed claimed she told her husband upon leaving London that she would not return. Mr. Ahmed claimed he did not learn her plans until August 4, when she flew to Knoxville with the children.

In March 2016, Mr. Ahmed filed this action in the district court. The district court denied Mr. Ahmed’s petition for return. The Sixth Circuit noted that the question of which standard should be applied in determining a child’s habitual residence under the Hague Convention is one of law, and is reviewed de novo. But the determination of habitual residence is “one of fact, and is reviewed for abuse of discretion.” It reviews underlying legal conclusions de novo and factual findings for clear error. “Under the clear-error standard, we abide by the court’s findings of fact unless the record leaves us with the definite and firm conviction that a mistake has been committed.” The only issue on appeal was whether Mr. Ahmed had shown by a preponderance of the evidence that the United Kingdom was their habitual residence on August 4, when she traveled from Bangladesh to the United States.

           The district court concluded that it was bound by circuit precedent to apply the “acclimatization standard” to determine the children’s habitual residence under the Hague Convention. Under this standard, “a court should consider whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Simcox, 511 F.3d at 602 “[A]cademic activities” are “highly suggestive of acclimatization” and “social engagements, participation in sports programs and excursions, and meaningful connections with the people and places in the ... country all point to the child being acclimatized.” Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009). Because the children were infants, however, its analysis boiled down to a simple comparison between the length of stay in each country—six months in the United States and seven to eight weeks in the United Kingdom. The district court concluded the latter was insufficient to establish a habitual residence and thus denied Mr. Ahmed’s petition. At the same time, the court noted the infants’ inability to partake in “school, sports or other extra-curricular activities, or meaningful friendships.” The district court devoted most of its analysis to any shared parental intent between the Ahmeds and made factual findings under that standard. In sum, the district court found “no settled mutual intent during the children’s lives and much of Mrs. Ahmed’s pregnancy.” 

           The Sixth Circuit considered the parties settled mutual intent in disposing of Mr. Ahmed’s petition. It observed that it generally preferred the acclimatization standard because it serves one of the main purposes of the Hague Convention: ensuring a child is not kept from her family and social environment. This ceases to be a concern, of course, if a child never forms such ties or is incapable of doing so. It did not reach the issue of especially young children in Friedrich I. Consequently, incorporating the shared parental intent standard in cases concerning especially young children would mean addressing a gap, not overturning precedent. The most compelling reason for applying the settled mutual intent standard is the difficulty, if not impossibility, of applying the acclimatization standard to especially young children. The period a child spends in a given location is but one component of acclimatization. Not only must the child have “been present long enough,” but he or she must have developed a “degree of settled purpose [there] from [her own] perspective.” What a child does in a country and how she feels about it are as important as the length of her stay there. As a result, virtually all children who lack cognizance of their surroundings are unable to acclimate, making the standard generally unworkable. It held that it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence. This is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case. It made no changes to the acclimatization standard itself, which lower courts should continue to apply in accordance with its precedent.
 Beginning with the acclimatization standard, the district court properly found that the twins’ seven-to-eight-week stay in the United Kingdom hardly allowed them to acquire a “degree of settled purpose” there. As infants, they were unable to do so anywhere when Mrs. Ahmed traveled with them to the United States in August of 2015. The conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent to determine if Mr. Ahmed has shown that the United Kingdom was the children’s habitual residence when they were retained. The district court’s factual findings showed that Mr. Ahmed has failed to carry his burden under the shared parental intent standard. He relied on the court’s finding of the couple’s settled mutual intent to live in the United Kingdom in the fall of 2013, before the twins were conceived. But what matters is where the Ahmeds intended the children to live. Nicolson, 605 F.3d at 104; Gitter, 396 F.3d at 133, 135; Feder, 63 F.3d at 224. There was no error in the district court’s findings of fact as to the Ahmeds’ lack of shared intent as to their children’s residence. The district court’s detailed factual findings established that the Ahmeds’ mutual intent for where their children would live was either unclear or absent from the time the children were conceived until Mrs. Ahmed retained them. Accordingly, Mr. Ahmed had not proven by a preponderance of evidence, under either standard, that the United Kingdom was the children’s habitual residence when Mrs. Ahmed traveled with them to the United States in August of 2015.