Hadir v Vazquez, 2019 WL 5061068 (District of Columbia, 2019)[France] [Habitual Residence] [Wrongful retention] [Petition granted]

In Hadir v Vazquez, 2019 WL 5061068 (District of Columbia, 2019) the district court granted the Petition of Sami Abou-Haidar, who resided in Paris, France, for the return of the party’s daughter to France. 

Petitioner and Respondent were married in Paris, France, in October 2013. Their daughter, E.A.-H.S., was born in 2014 in Paris, France. Petitioner was a medical doctor who provided house-call services, through a French company called SOS Médecins. He was licensed to practice medicine only in France. Respondent was a Ph.D.-level economist.  Since 2013, she worked primarily as an associate professor at the Université d’ Evry Va’ d’ Essonne, located just outside of Paris. Since the birth of their daughter, the parties lived primarily in Paris, with intermittent periods of stay in Barcelona, Spain. Until June 30, 2018, the family resided in a rented apartment, located at 255 Rue Saint-Jacques, in Paris. E.A.-H.S. attended preschool nearby. The parties had an active social life in Paris, often entertaining friends at their home.  The parties owned an apartment in Barcelona, Spain, in which they have stayed for extended periods of time, sometimes for several months out of the year, typically during the spring and summer months. During these periods, Petitioner would travel back and forth to Paris for work. E.A.-H.S. would attend school when in Barcelona. According to Petitioner, E.A.-H.S. had more school friends and was involved in more activities in Paris, than in Barcelona.  In January 2018, Respondent was offered the opportunity to serve as a consultant with the International Development Bank (“IDB”) in Washington, D.C. Petitioner supported Respondent’s pursuit of the opportunity. He agreed to structure his schedule in such a way that he would, for ten to twelve consecutive days, work in Paris and live in a small apartment in Paris that he had purchased before marriage. For the remaining days of the month, he would live with his family in Washington, D.C. The court found that the parties agreed to move their family to Washington, D.C., for at least 18 months—the term of Respondent’s contract with IDB—but left open the possibility of staying for a longer period. According to Respondent, the initial contract that IDB offered her was for an 18-month term, which could be renewed only after a six-month period of separation. IDB offered Respondent a contract that would allow for successive renewals, which she accepted. Respondent began an 18-month term with the IDB on July 1, 2018. There was unrefuted evidence that Petitioner contemplated staying in Washington, D.C., for up to three years.  At the same time, the court did not credit Respondent’s testimony that she and Petitioner agreed to leave Paris behind for good and intended to make Washington, D.C., their new home.  

Once in Washington, D.C., the parties settled in the Woodley Park neighborhood and rented an apartment. They hired a real estate agent to look for a property to buy in that neighborhood. Petitioner was actively involved in the parties’ search for a property to purchase in Washington, D.C., including the type, location, price, financing, touring, and eventual selection of properties. The parties enrolled E.A.-H.S. at Oyster Adams, a Spanish bilingual elementary school, for the 2018-2019 school year. E.A.-H.S. was now comfortable speaking English, made friends at school, attended birthday parties and other social outings, and participated in various activities, like soccer. Respondent made friends, as well, living in Washington, D.C.  By December 2018, six months after their move to Washington, D.C., the parties’ marriage began to show strain. In April 2019, unbeknownst to Petitioner, Respondent met with a family-law attorney. She then filed on May 2, 2019, a Complaint for Custody in the Superior Court of the District of Columbia (the “D.C. Superior Court”). The Complaint demanded primary physical custody of E.A.-H.S. “with reasonable rights of visitation to Defendant, pendente lite and permanently” and “joint legal custody, pendente lite and permanently” with Petitioner.  On May 7, 2019, Respondent told Petitioner that she wished to separate, and then had Petitioner served with the D.C. Superior Court Complaint for Custody. The parties met at a park near the apartment on May 10, 2019, to discuss the family’s situation.  There, according to Petitioner, Respondent told him that she wished to remain in Washington, D.C., with their daughter and that the two of them would not be returning to France. Although Respondent denied that this conversation took place, the court credited Petitioner’s testimony on this point, as it was consistent with Respondent’s demand for permanent primary physical custody of their child and her later decision to opt into a second 18-month contract with IDB.  On May 23, 2019, Petitioner answered and filed a counterclaim in response to Petitioner’s Complaint for Custody. In his counterclaim, Petitioner demanded “joint physical and legal custody” of E.A.-H.S. The D.C. Superior Court stayed the child-custody matter pending resolution of this case.

This case involved two disputed questions. First, did Respondent wrongfully retain E.A.-H. S and, if so, on what date did that retention occur? Second, what was E.A.-H.S.’s habitual residence on the date of purported wrongful retention? The parties did not dispute whether, if wrongfully retained, Petitioner’s custody rights under French law would be violated. They would be. Nor did they contest whether Petitioner was exercising his custody rights at the time of wrongful retention. He was. Finally, Respondent did not assert any affirmative defense under the Convention. 

The court found that Respondent wrongfully retained E.A.-H.S. on May 7, 2019, when she served on Petitioner the Complaint for Custody that she filed in the D.C. Superior Court. Before that date, the parties enjoyed joint physical and legal custody of their child. Respondent’s Complaint for Custody sought to alter the status quo, by asking that she be awarded permanent primary physical custody of E.A.-H.S. She also advised Petitioner three days later that she would not be returning to Paris with their daughter. Respondent’s initiation of a legal action for greater custody rights, plus her announcement that she would not return to Paris with E.A.-H.S., constituted a wrongful retention under the Convention. See Mozes v. Mozes, 239 F.3d 1067, 1069–70, n.5 (9th Cir. 2001) (determining that wrongful retention occurred when the respondent asked a domestic court to grant custody of children).

The date of retention did not extend beyond May 23, 2019, the date on which Petitioner answered and filed a counterclaim in response to Respondent’s Complaint for Custody. The Third Circuit has defined the “retention date” as “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.” Blackledge v. Blackledge, 866 F.3d 169, 179 (3d Cir. 2017); see also Marks on behalf of SM, AM, and BM v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017) Petitioner’s counterclaim sought to maintain joint physical and legal custody of E.A.-H.S. This counterclaim was a clear assertion of his custody rights and signaled that he did not consent to allowing his daughter’s “continued habitation with the custodial parent.” May 23, 2019, therefore was the latest date of wrongful retention.

The district court rejected Respondents argument that Petitioner’s claim arose under the rubric of an “anticipatory retention,” which, according to Respondent, federal courts have not recognized. She asserted that the court cannot fix a wrongful retention date, because “the wrongful retention had not taken place yet, and may not ever take place, especially given the ongoing custody and visitation proceedings in the District of Columbia.” The Petition is “anticipatory” in the sense that the date until which the parties agreed to remain in Washington, D.C., had yet to arrive—at the earliest, December 31, 2019, the date Respondent’s first contract ends with IDB. Thus, she maintained, the petition wa not ripe for consideration. 

One of the primary cases upon which Respondent relied, the Ninth Circuit’s decision in Mozes, is to the contrary. Mozes is clearly an “anticipatory retention” case. Much like here, in Mozes, the mother and father had agreed that the children would remain in the United States for a time certain—there, fifteen months— “though they disagree[d] as to what understanding existed beyond that.” See 239 F.3d at 1069. However, after a year in the United States, the mother sought dissolution of the marriage and custody of the children in California state court. The Ninth Circuit had no difficulty identifying the date of wrongful detention as “the moment ... when [the mother] asked the Los Angeles County Superior Court to grant her custody of [the children].” Here. Respondent sought to alter the parties’ status quo as it related to custody of their daughter when she sought primary physical custody in D.C. Superior Court. That was the earliest date of wrongful retention. The court was not aware of any case that requires a petitioner to wait to sue for custody until the date on which the parties agreed to allow their child to remain in the United States passes, when the custodial parent seeks to assert dominant custody rights, physical or legal, over the child. Tellingly, other circuit courts have found acts of wrongful retention to precede the agreed-upon date for a child to remain in the United States. See e.g., Blackledge, 866 F.3d at 179 (rejecting “the notion that the original agreement for a longer period vitiated the noncustodial parent’s ability to clearly communicate her desire to regain custody of the child” and recognizing that a parent may “accelerate a retention date by” withdrawing consent to have the child remain with the custodial parent); Marks on behalf of SM v. Hochauser, 876 F.3d 416, 417 (2d Cir. 2017) (holding that mother’s email declaring she would not return to Thailand three days before planned return was wrongful retention date); Darin v. Olivero-Huffman, 746 F.3d 1, 10–11 (1st Cir. 2014) (finding wrongful retention occurred when respondent “made clear” to petitioner that child would permanently reside in United States).  
The only case on which Respondent relied to support her position, the First Circuit’s decision in Toren v. Toren, wass distinguishable. In Toren, the parents, already divorced, had agreed to allow the children to remain in the United States until July 21, 2000. See 191 F.3d 23, 25 (1st Cir. 1999). In 1997, just prior to the father’s scheduled visit to the United States, the mother filed a verified complaint in state court asking to modify the terms of visitation. See id. at 26. The state court agreed to do so and granted the mother additional custody rights. See id. The First Circuit found that the mother had not wrongfully retained the children, because her complaint only sought modification of the parents’ visitation agreement and did not manifest an intent not to return the children after the agreed-upon date of July 21, 2000. Here, by contrast, Respondent did not merely ask for a change in visitation but sought primary custody of the minor child—a change in the status quo that, if granted, would have allowed Respondent to establish Washington, D.C., as the child’s habitual residence. Moreover, the court credited Petitioner’s testimony that Respondent expressed her intention not to return to France. Respondent notably renewed her IDB contract for another 18 months after filing for primary physical custody and apparently did so without consulting Petitioner. These acts were not consistent with an intent to return to France. This case therefore was different than Toren.

The court turned next to deciding E.A.-H.S.’s “habitual residence” as of the date of unlawful retention. Following the Ninth Circuit’s decision in Mozes, the majority of circuit courts define habitual residence in terms of “shared parental intent,” and secondarily consider whether the child has become “acclimatized.” Blackledge, 866 F.3d at 180; see also Mozes, 239 F.3d at 1074–75; Taglieri, 907 F.3d at 407 (noting that “[e]very circuit to consider the question [of habitual residence] looks to both standards”). The Sixth Circuit is the only circuit that gives greater priority to acclimatization, but it does so only in cases involving older children. See Taglieri, 907 F.3d at 407–08 (describing the acclimatization inquiry as “the primary approach” and the “shared parental intent” inquiry as a “secondary” and “alternative” approach used when young children are “incapable of acclimating”); see also Koch v. Koch, 450 F.3d 703, 713 (7th Cir. 2006) (“In the case of young children, the court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child’s habitual residence.”).

The question of shared parental intent focuses on the parents’ “settled purpose” as to a child’s place of residence. Mozes, 239 F.3d at 1074. The inquiry is necessarily fact intensive, and trial courts are advised to look beyond the parents’ testimony and to consider the record as a whole. See Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009) (“In cases where there is a dispute regarding a child’s habitual residence, ‘the representations of the parties cannot be accepted at face value, and courts must determine [habitual residence] from all available evidence.’ ” (quoting Gitter, 396 F.3d at 135)). In the end, “[h]abitual residence is intended to be a description of a factual state of affairs ....” Mozes, 239 F.3d at 1081. The parties agreed that, in determining habitual residence, the court must first ask whether the parents “form[ed] a settled intention to abandon the one left behind.” Courts have cautioned that, “in the absence of settled parental intent, courts should be slow to infer from [the child’s contact in the new country] that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. That is especially true when the child’s move is intended to be for a “specific, limited duration.” Blackledge, 866 F.3d at 180–81. In light of these principles, the court held that as of May 2019, the parties’ shared settled intent was not to abandon France as E.A.-H.S.’s habitual residence in favor of the United States. The child’s habitual residence was France before the family relocated to the United States in the summer of 2018 for Respondent’s détachement with IDB. 

It was clear, based on the full record, that the parties did not leave France in a manner that supported a shared intent to relocate indefinitely to the United States. Ample evidence supported this conclusion. First, Petitioner remained in France to work and took no steps to obtain a medical license or employment in the United States. Second, Respondent did not dissociate herself from her university position, instead she took leave akin to a sabbatical. Though Respondent explained that she maintained her university position to continue her pension eligibility, that action only reinforced the parties’ intent to return to France. Third, the parties did not dispose of valuable personal property, such as furniture and appliances. Instead, they rented a storage unit in the same building as their former shared home in Paris. Finally, the parties did not communicate an intention to leave permanently to family and friends. The absence of a going-away party or a similar acknowledgement of permanent departure is telling. 

The court recognizes that habitual residence can change even when the minor child is moved only for a definite period of time with the intent to return to the original country. See, e.g., Blackledge, 866 F.3d at 182–83; Mozes, 239 F.3d at 1077. However, the cases that have found a settled intent to change habitual residence when the child’s move was for a “specific, limited” duration are distinguishable. This case instead closely resembled the facts of Mozes.

Having determined the parties’ habitual residence to be France as of May 7, 2019, the court briefly discussed acclimatization. The court gave this factor less weight. See Mozes, 239 F.3d at 1079. The parties here did as any responsible parent would do: they took steps to create a normal life for E.A.-H.S. in Washington, D.C. But E.A.-H.S., age four, had lived in the United States for only about ten months when Respondent filed a custody action that sought to alter the status quo. Evidence of acclimatization over such a short period of time for such a young child was not enough to overcome the parties’ lack of intent to abandon France as their daughter’s habitual residence. See Papakosmas v. Papakosmas, 483 F.3d 617, 626 (9th Cir. 2007) (noting that “in the absence of settled parental intent, courts should be slow to infer from such contacts [in the new country] that an earlier habitual residence has been abandoned” (internal citation and quotation marks omitted)); Sundberg, 765 Fed. Appx. at 914 (finding that “[a]ttending school for one school year does little to show that the child’s life has sufficiently ‘developed’ in her new surroundings to make it her home”).