In Grau v. Grau,
2019 WL 3063994 (11th Cir., 2019) the Eleventh Circuit
affirmed an order of the district court which denied Petitioner Roberto Grau’s
petition for the return of his four-year-old twin sons to Germany from Florida.
Roberto and Helen, citizens of Germany, were
married there in 2012. Their twin sons, also German citizens, were born in
Germany in 2014. Soon after, Roberto accepted a temporary work assignment in
Massachusetts, and the entire family moved to the United States in May 2015 on
L-1 and L-2 visas. Apart from a
three-month trip to Germany in late 2015 to visit family and attend to U.S.
immigration issues, the Graus lived together in the United States until November
2016. At that point, Roberto’s work assignment ended and the family returned to
Germany. Helen and the children then vacationed in Spain for three or four
weeks. In February 2017, Roberto received another work assignment in
Massachusetts and the family returned to the United States, again on L visas. Nonimmigrant
L visas for “intracompany transferees” may be issued upon an employer’s
petition, based on the employee’s executive or managerial capacity or
specialized knowledge, to an employee and his spouse and children in order to
work for the employer in the United States temporarily. See generally 8
U.S.C. § 1101(a)(15)(L); 8
C.F.R. § 214.2(l). The visa is valid only for the period of the
employer’s need, which may be up to three, five, or seven years. 8
C.F.R. § 214.2(l)(7)(i)(A)(2), (l)(15)(ii).
When that work assignment ended in March 2018, the Graus decided
to continue pursuing their “dream” of living in the United States long-term.
They agreed that Helen and the twins would move to Florida—where they had some
close friends—and start a cleaning business, in support of an application for
an E-2 investor visa. Nonimmigrant E-2 visas for
“treaty investors” may be issued to an alien and his spouse and children
“solely to develop and direct the operations of an enterprise in which he has
invested, or of an enterprise in which he is actively in the process of
investing, a substantial amount of capital.” 8 U.S.C. § 1101(a)(15)(E)(ii); see
generally 8 C.F.R. § 214.2(e). The investor must intend to depart the United
States upon the expiration of his treaty investor status. 8 C.F.R. §
214.2(e)(5). The initial admission is for not more than two years, with an
unspecified number of two-year extensions possibly available. Id. § 214.2(e)(19),
(e)(20).
Roberto, meanwhile, would return to Germany
and work to support the family and the fledgling business. He planned to join
them in the United States if his career in Germany did not work out. In July
2018, Helen and the twins returned to Germany for her consular interview. By
this point the Graus had invested about $100,000 in Helen’s business. The
family lived together at a friend’s house for six weeks while they waited to
hear if the visa would be approved. When it was, Roberto signed an open-ended
travel consent form, and Helen and the twins returned to Florida in August
2018. The children attended school, participated in activities, and made
friends in Florida. In October 2018, Helen filed for divorce and informed
Roberto via telephone and email. She moved the children to an undisclosed
address, and Roberto began child custody proceedings in Germany. In February
2019, Roberto filed the instant petition for the return of the children to
Germany.
The
district court conducted a bench trial in which it heard two very different
versions of the Graus’ intentions for their family. Both Roberto and Helen
testified that it was always their dream to live and raise their family in the
United States. The district court found that the children’s habitual place of
residence was, since 2015, the United States, and that their habitual residence
was not changed back to Germany in July 2018. In addition to crediting Helen’s
testimony about her continuing intent to build a life in Florida, the court
also noted that the children still lived there and did not have a permanent
residence in Germany.
Roberto
appealed. The Eleventh Circuit observed that habitual
residence is not defined in the Hague Convention. It has approved a definition
of habitual residence that looks simply to settledness in a place, not
permanence. “[A] habitual residence is established when ‘the purpose of living
where one does have a sufficient degree of continuity to be properly described
as settled.’” Pfeiffer v. Bachotet, 913 F.3d 1018, 1023–24 (11th Cir. 2019). Furthermore,
to alter a child’s habitual residence, “the parents must share a ‘settled
intention’ to leave the old habitual residence behind,” and “an ‘actual change
in geography and the passage of a sufficient length of time for the child to
have become acclimatized’ must occur.” Id. at 1024.
The sole question on appeal was
whether the Graus’ children were habitual residents of Germany in October 2018,
when Helen filed for divorce and retained the children in Florida. If not, Roberto’s petition for
return of the children to Germany was due to be denied.
The
district court first found that “it is clear that the Children’s habitual place
of residence was the United States” since their move here as infants in 2015
and until July 2018. The Eleventh Circuit decided only that, as of March 2018,
the children were habitually resident in the United States. By that time, Helen
and the children, with Roberto’s full assent, had moved to Florida, started a
business, and applied for long-term E-2 investor visas that would allow them to
remain in the United States without being subject to the timetables of
Roberto’s employer. Both Roberto and Helen in their testimony affirmed this
plan as realizing their mutual “dream” of raising the twins in the United
States. This arrangement reflected a settled purpose for the children to live
in the United States. And the children’s lives in Florida from this point had
indicia of continuity and settledness, including the Graus’ investment of
$100,000 in Helen’s business, signing a long-term apartment lease, and
enrolling the children in school and extracurricular activities. Moreover, the
children were removed from the German government’s residency registration
system in 2016 and were never reregistered. It agreed with the district court
that the children were purposefully “settled” in the United States in March
2018.
The next
issue presented was whether the children’s habitual residence changed to
Germany before Helen retained them in the United States in October 2018. In
order for a child’s habitual residence to change, the parents must share an
intent to abandon the previous residence. Ruiz, 392 F.3d at 1252). “The ‘unilateral intent of a single parent’
will not suffice to change a child’s habitual residence.” Calixto v. Lesmes, 909 F.3d 1079, 1084 (11th Cir. 2018). In the
absence of a shared intent to change a child’s habitual residence, the court
may find a change in habitual residence “if the objective facts point
unequivocally to a new habitual residence.”
Helen brought the children to Germany in July 2018, but the question was
whether she and Roberto shared an intent that the children abandon their
habitual residence in the United States at that time or thereafter. The record
evidence about Roberto and Helen’s intentions for the children in July 2018 was
mixed. Roberto testified that he and Helen agreed that she would return with
the children to Germany after winding down her business in Florida. Helen, by
contrast, testified that Roberto never asked her to stay in Germany, and that
she never wavered from the dream she had shared with him to raise the twins in
the United States. The district court credited Helen’s testimony, finding that
she “never intended for her or the Children to move back to Germany.” It noted
that her testimony was corroborated by the evidence of her continued investment
in her business and the family’s life in Florida, explaining that she would not
have needed to continue pursuing an E-2 visa if she was planning to close the
business. On this central disputed fact, the district court was entitled to deference.
In the absence of compelling evidence to the contrary, it did not find clearly
erroneous the district court’s finding of historical fact, based on its
credibility assessments, that there was no shared intent to change the twins’
habitual residence to Germany.
Roberto’s
argument on appeal took issue with the district court’s failure to find that
the Graus’ shared intent to make the United States the children’s place of
habitual residence was conditional. He argued that “his consent to the children
living in the United States ... was always conditioned on the family staying
together as one unit and that it was voided when Helen filed for divorce,
terminating the condition of family togetherness. Thus, he argued, the children’s
place of habitual residence was always Germany. Roberto pointed to ICARA cases
in which the Court has said that the parents’ conditional relocation will not
change a child’s country of habitual residence if the condition is not
realized. See Calixto, 909 F.3d at 1089–91. The Eleventh Circuit noted that in these
cases, the Court looked closely into the record to determine whether there was
a real shared intent to change the child’s habitual residence, or else merely a
conditional one. That determination in these cases has hinged mainly upon the
credibility of the parents’ testimony in the district court, and, to a lesser
extent, upon the related objective evidence about the family’s housing, work,
and travel arrangements. The district court’s credibility determinations have
been central to any finding that shared intent to change a child’s habitual
residence was conditional. Here, the district court’s credibility determinations
precluded a finding that the Graus’ shared intent to make the United States the
children’s place of habitual residence was conditional. The district court
apparently did not find credible Roberto’s testimony that Helen had agreed to
return with the children to Germany. Instead, the district court credited
Helen’s testimony about the Graus’ shared intent when it found that Helen
“never intended for her or the Children to move back to Germany.” Roberto’s written consent for the children to
return to the United States in August 2018 bore no return date or condition.
Because it we
concluded that the district court did not clearly err with respect to its
shared-intent findings, it did not reach the other two elements required to
change a child’s habitual residence: actual change in geography and adequate
time for acclimatization. See Pfeiffer, 913 F.3d at 1024. Nonetheless, it noted that both of those
elements also supported the district court’s findings about the Graus’ shared
intent.
