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Saturday, December 30, 2017

Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017)[Czech Republic] [Habitual Residence] [Petition granted]

          In Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017) Veronika Marcoski, L.N.R.’s mother, appealed the district court’s judgment ordering that L.N.R. be returned to the Czech Republic, where he was born. The district court adopted the report and recommendation issued by the magistrate judge. It found that Mr. Rath and Ms. Marcoski were “in a committed relationship with a shared intent for the foreseeable future to live with L.N.R. in the Czech Republic.”  

         The Eleventh Circuit affirmed. It noted that Ms. Marcoski challenged some of the district court’s underlying factual findings and contended that certain evidence established that L.N.R.’s “habitual residence” was not in the Czech Republic. The district court found that Mr. Rath was “credible and [Ms. Marcoski was] not credible,” and provided detailed reasons for its view of the evidence on important disputed issues, including whether they were living together. While Ms. Marcoski was correct that the district court clearly erred in two of its factual findings, those errors related to subsidiary historical facts and did not change the fact that substantial evidence supported the district court’s ultimate finding regarding shared intent. That is, any error made by the district court “was harmless because there was plenty of other evidence proving the same [ultimate] fact.” Bobo v. Tenn. Valley Auth., 855 F.3d 1294, 1300 (11th Cir. 2017). In sum, the Eleventh Circuit saw no basis for setting aside the district court’s credibility assessments and factual findings. Ms. Marcoski presented an interpretation of the evidence that could have allowed the district court to find in her favor, but “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.

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