Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449 (3rd Cir., 2017) [Germany] [Habitual residence] [Petition denied]

In Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449  (3rd Cir., 2017) the Third Circuit affirmed an order of the district court which denied the Petition of Charles Blackledge, a United States citizen who currently resided in Berlin, Germany, for the return of his then-eight-year-old son to Germany. 

J.B., a United States citizen, was born in the Ukraine in 2008 to Petitioner and Respondent Olga Blackledge, a Ukrainian citizen and lawful permanent resident of the United States who currently resided in Pittsburgh, United States. In the spring of 2011, Petitioner secured a job as a patent agent in Germany at about the same time Respondent was accepted to a Ph.D. program at the University of Pittsburgh. In the summer of 2013, after Respondent and J.B. had lived in Pittsburgh for two years, J.B. underwent cardiac surgery at the Children’s Hospital in Pittsburgh. Petitioner went to Pittsburgh to be with J.B. during his recuperation and to seek jobs in the United States. When those efforts proved fruitless, Petitioner decided to return to Germany and Respondent agreed to join him, both because she had agreed, before the initial move to Pittsburgh, to move to Germany for two years and because she was financially unable to support herself at that point. After the move, Respondent continued to pursue her Ph.D. studies at the University of Pittsburgh, remotely, and J.B. was enrolled in the J.F.K. School in Germany .In August 2015, when J.B. was seven years old, Respondent sought to return to Pittsburgh to complete the final phase of her Ph.D. program. By this point, according to both parties, the marriage had become acrimonious, and, according to Respondent, they had “agreed that [they would] divorce. Petitioner initially agreed that Respondent and J.B. would return to Pittsburgh, and they requested a one-year leave of absence for J.B. from the J.F.K. School. In Pittsburgh, J.B. attended second grade in the 2015-2016 school year and, according to his teacher, “performed as a wonderful second grader.” In February 2016, Petitioner initiated a series of emails with Respondent that formed the bulk of the record of the parties’ shared intent as to J.B.’s habitual residence. These began with Petitioner’s request that Respondent “confirm [her] commitment to our agreement” that J.B. would return to Germany for the 2016-17 academic year. Respondent did not deny the existence of an agreement but asked the Petitioner to “reconsider it,” explaining, “I do not think ... it is a good idea for a child [J.B.’s] age to live with one parent for a year, and with the other for a year”. That agreement, Respondent stated, “presupposes ... yearly adaptation to living with different parents [which] is psychologically disadvantageous” to J.B., and urged Petitioner to consider J.B.’s well-being, suggesting that Petitioner move “somewhere close” so that they could both “take care of [J.B.] on a permanent basis” and not “change [J.B.’s] permanent caregiver every year.” In response, Petitioner observed that Respondent had not expressed any concerns about J.B. “spend[ing] alternate years with us when the agreement was made.”  And while Petitioner acknowledged Respondent’s “concerns about stability of dwelling,” he explained that he did not “think there [we] re better options than maintaining [their] previous agreement,” which he characterized as: “[J.B.] would go with you to Pitt [sburgh] and return to me for 2016-2017 academic year. Then back to you ....”  In subsequent correspondence, Petitioner advised Respondent to “prepare [herself] for fulfillment of [the] agreement that [J.B.] returns to [Respondent] for 2016-2017,” reassuring her, “You’ll have him again in 2017,”  And in May, the parties again discussed the prospect of J.B. alternating years between his parents, with Petitioner documenting in his notes of their call that Respondent continued to oppose “any plan for [J.B.] to alternate between Germany and [the] USA,” because she believed that it “put [ ] too much pressure on [J.B.] to go back and forth” and “insist[ed] upon more consistency.” 

         While the dispute between the parties over J.B.’s long-term residency arrangements was ongoing, Respondent filed petitions for divorce and custody.  On July 6, 2016, Petitioner filed a petition in the United States District Court seeking J.B.’s return to Germany. The District Court held a two-day bench trial and entered an order denying the petition. The District Court calculated the retention date as August 2016.  The District Court correctly recognized that it was required to consider both the parents’ shared intent and the child’s acclimatization. As to shared parental intent, it concluded there was “no credible evidence” that the parties agreed that J.B.’s stay would be for a “specific duration.” And, considering evidence of J.B.’s activities and expectations up until the August retention date, the Court concluded that J.B. was acclimatized to Pittsburgh. 

The Third Circuit concluded that the proper retention date was July 6, the date petitioner filed his Hague Convention petition.  The Third Circuit held that the retention date is the date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof. That determination is, by necessity, fact-intensive and will vary with the circumstances of each case. While in some cases the notice date and actual expiration date will coincide, in other cases the notice will indicate a future date as the date consent will be withdrawn, in which case that latter date, depending on the facts of the case, will constitute the expiration date and, hence, the retention date.

  In determining the retention date here, it concluded  that the District Court erred by looking solely to Petitioner’s original consent for J.B. to reside in Pittsburgh through August 2016 and failing to assess whether Petitioner’s subsequent communications, up to and including the filing of his Hague Convention petition, effected a withdrawal of that consent. Consistent with Karkkainen, it also rejected Petitioner’s argument in favor of a June 9, 2016 retention date, as that date reflected merely Petitioner’s notice of a possible expiration of consent on June 19, 2016. Distinguishing the facts in Karkkainen it noted that Petitioner only researched the possibility of purchasing a ticket; Respondent, not Petitioner, flagged a concern about “abduct [ion],” and Petitioner left open the possibility of further negotiations, stating after his demand email that he was “still waiting to hear anything more from the mediators.”  Under these circumstances, it concluded neither June 9 nor June 19 was the retention date, and in the absence of any earlier communication in which Petitioner clearly and unequivocally withdrew his prior consent and sought to reassert his custody rights, it held that consent expired and J.B. was therefore “retained” on the date Petitioner filed his Hague Convention petition, i.e., July 6.

       The Court explained that a child’s habitual residence is “the place where [the child] has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.” Baxter v. Baxter, 423 F.3d 363, 368 (3d Cir. 2005) To assess whether a child’s habitual residence meets this threshold it analyzes both the child’s acclimatization and the “shared parental intent”—a factor that is relevant because “the child’s knowledge of [his parents’] intentions is likely to color [his] attitude to the contacts [he] is making” and “affect the length of time necessary for a child to become habitually resident or otherwise influence a child’s ability to acclimatize,” and, in addition, because it bears on the parents’ own intentions “regarding their child’s presence in a particular place.” Karkkainen, 445 F.3d at 292, 296.  As a general matter “courts will find no change in habitual residence” where the evidence of shared parental intent reflects that the “child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration.” Whiting v. Krassner, 391 F.3d 540, 549 (3d Cir. 2004). However, it has recognized an exception to this general rule where a move, though temporary, carries “a degree of settled purpose ..., even if such purpose is only for a limited period.”  The concept of “settled purpose,” does not require an intention “to stay ... indefinitely,” and may in fact be for a “limited period,” precipitated by various motivations, including “[e]ducation, business or profession, employment, health, family or merely love of the place.” Feder, 63 F.3d at 223-24. Regardless of the motivation for the location selected, or whether the stay was meant to be permanent or temporary, “[a]ll that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.” 

  As to the relative weight given the parents’ shared intent and the child’s acclimatization, the Court has held that when a child is very young, he “cannot possibly decide the issue of residency,” and the parents’ shared intent is, thus, “of paramount importance,” while acclimatization is secondary, Karkkainen, 445 F.3d at 296. However, once a child is old enough “to develop a certain routine and acquire a sense of environmental normalcy,” acclimatization becomes the central inquiry. Whiting, 391 F.3d at 550-51. Although it has not fixed the age when acclimatization takes on this greater significance, and it necessarily will vary depending on the maturity and cognitive and social abilities of the child in question, it has recognized that a typical four-year-old child “certainly has this ability” because he is “able to develop a certain routine and acquire a sense of environmental normalcy” and is “not only aware of those around him, but is able to form meaningful connections with the people and places he encounters each day.” At that point, because the child has “reached an age where [he is] capable of becoming firmly rooted in a new country,” it attaches greater significance to acclimatization and give “less weight to shared parental intent.” Karkkainen, 445 F.3d at 296.
  The District Court declined to apply the presumption that there is, ordinarily, no change in habitual residence when the child’s move is for a “specific, limited duration” because it found that there was “no credible evidence” that the parties had an agreement that J.B.’s stay in Pittsburgh would be for a “specific duration.” It agreed with Petitioner that this finding was clearly erroneous, given the evidence that there was such an agreement. But because that evidence overwhelmingly demonstrated the parties intended J.B.’s residence in Pittsburgh, albeit of specific, limited duration, to carry “a degree of settled purpose,” Whiting, 391 F.3d at 549, it nonetheless concluded that the “shared parental intent” factor favored the United States as J.B.’s habitual residence.

The Court could not agree with the District Court that there was no credible evidence that the parties had agreed J.B.’s stay in Pittsburgh was intended to be for a specific duration.  Although the District Court was correct that the parties’ emails stop short of identifying a date certain that was originally agreed for J.B.’s return, or similarly “specific terms of the agreement,” they made clear that the parties intended J.B.’s stay in Pittsburgh to be of a “specific, limited duration,”  Notwithstanding such error, “we may affirm on any grounds supported by the record,” and “[w]hen the outcome is clear as a matter of law ... remand is not necessary,” Mahmood v. Gonzales, 427 F.3d 248, 253 (3d Cir. 2005). Here, it concluded such an outcome was clear as a matter of law because this case was on all fours with its decision in Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004).  Here it was evident that J.B.’s move to the United States, although of limited duration, was intended by both Petitioner and Respondent to be accompanied by a degree of “settled purpose.” The record reflected that J.B. moved to Pittsburgh in August 2015 for the purpose of assuming a full and normal life of an eight-year-old boy during the intended period of his stay, making long-term friends and plans, developing routines and a sense of environmental normalcy, exploring his city and other parts of the Commonwealth, and putting down roots, not only for the 2015-2016 school year, but also, per the parents’ express agreement, for future alternating years, interspersed with the years he would be living with Petitioner in Germany. Under these circumstances, as in Whiting, the fact that the parties understood that J.B. would return to Germany “d [id] not in any way diminish ... the parties’ settled intention” that he was to remain in the United States for at least a year, settling into a normal routine, and the fact that J.B.’s stay was intended to be of a limited duration “in no way hinder [ed]” a finding that the United States was his habitual residence during that time. 

The Court emphasized that the parents’ shared intent as to the custody arrangement between them is probative—but not dispositive—in the determination of habitual residence. It views a parental agreement that a child will split time between the parents’ countries of residence as a significant consideration, but as one among others, informing the “necessarily fact-intensive and circumstantially based” inquiry a court must undertake to determine whether a child’s move was accompanied by a “degree of settled purpose.” Undertaking that inquiry here, it considered, in addition to the other record evidence discussed above concerning the parents’ shared expectations for J.B.’s move to Pittsburgh in 2015, the parents’ agreement that J.B. would “alternate between Germany and [the] USA” going forward, and, hence, that J.B. would be returning to Germany for only a single academic year before resuming his residence in Pittsburgh for the 2017-2018 year. In view of that agreement and the totality of the record in this case, was apparent that J.B.’s 2015 move to Pittsburgh was accompanied, through at least the July 6, 2016 retention date, by the requisite “degree of settled purpose” and that the element of shared parental intent thus supports the United States as J.B.’s then-habitual residence.10 Whiting, 391 F.3d at 549. The evidence of J.B.’s acclimatization to Pittsburgh as of July 6, 2016 was overwhelming. He had a tremendously successful academic year. The record demonstrated that J.B. was sufficiently mature to form “meaningful connections with the people and places he encounter[ed]” in Pittsburgh. and “ha[d] attained a sufficient degree of continuity to be properly described as settled,”  Given the extensive record evidence of J.B.’s success in school, his participation in various activities and sports, his many friendships, his experiences at cultural, entertainment, and sporting events, and his own stated preference for the United States, to which the District Court afforded “significant weight” because of “the degree of maturity and situational awareness” J.B. exhibited,  the District Court did not clearly err in its fact-finding related to J.B.’s acclimatization, nor did it commit legal error in its determination that J.B. was acclimatized to the United States at the time of retention.

  Because the parents’ shared intent was for J.B. to move to the United States with a “degree of settled purpose,” and because J.B. had acclimatized to the United States by the date of retention, it agreed with the District Court’s holding that the United States was J.B.’s habitual residence immediately prior to the retention date and that the retention therefore was not wrongful under the Hague Convention.