In Watts v Watts, --- F.3d ----, 2019 WL 4197486 (10th Cir., 2019) the Tenth Circuit affirmed the district courts determination concerning the location of the children’s habitual residence.
Shane Watts was a dual citizen of Australia and the United States. Carrie Watts was a citizen of the United States. In 2005, Shane and Carrie married in Park City, Utah. From December 2006 to June 2016, the couple lived in North Carolina, where they reared their three children, also dual citizens of Australia and the United States, and ran an international dirt-bike-racing school: DirtWise. In March 2016, the couple learned that their middle child would need specialized medical attention possibly including expensive palate-extension surgery. The family decided to move to Australia to benefit from that country’s universal-healthcare system. The couple intended to live in Australia until completion of their son’s medical treatment. They estimated this would take about two to two-and-a-half years. In spring 2016, the family began preparing for the move. Shane and Carrie rented out their home in North Carolina and temporarily moved the family into Carrie’s parents’ house in Utah. The family lived at this house in Utah from June 2016 to September 2016. While living at Carrie’s parents’ house, the family traveled around the western United States, in part “to evaluate places where they might choose to live when they returned from Australia.” During this time, “the parties had many conversations about their intentions to live in Australia only long enough to obtain [their son’s] healthcare.”
In September 2016, the family moved to Australia. They rented a home in Shane’s hometown of Maffra, Victoria and shipped many of their belongings to Australia.2 Carrie had also applied for, and was later granted, a temporary visa enabling her to remain in Australia for 12 months. In October 2016, Shane and Carrie enrolled their children in school in Australia. After the rental home proved too small, Shane and Carrie bought a house. In March 2017, the family moved into this home. The move to Australia placed additional stress on Shane and Carrie’s already-strained marriage. Carrie had developed second thoughts about the move and questioned the sustainability of the stint in Australia. Shane continued to travel overseas for work and, while doing so, rarely spoke with Carrie. Concerned that she would be unable to work if she and Shane later divorced, Carrie applied for a permanent visa.
In April 2017, Carrie called a family meeting, attended by Shane’s parents and Carrie’s mother. Everyone agreed that Shane and Carrie needed to remain together so that their child could continue to receive necessary medical care, and so that Carrie could get her permanent visa. Shane and Carrie’s relationship continued to deteriorate. From April 20 to May 20, 2017 and again from May 30 to July 13, 2017, Shane traveled to the United States to teach DirtWise classes. One morning, Carrie discovered that she had been locked out of all their shared accounts and that Shane had cancelled, or set zero-dollar limits on, their joint credit cards. This marked the beginning of the end.
About July 13, 2017, Shane returned to Australia, and on July 26, 2017, he tried one last time to persuade Carrie to work on the marriage. When she declined, Shane notified the Australian immigration authorities that they had separated, and he withdrew his sponsorship of Carrie’s permanent-visa application. On August 17, 2017, about three days after learning that Shane had withdrawn his sponsorship of her permanent-visa application, Carrie took the children and flew to Utah. She did not tell Shane beforehand, and she lied to customs agents that she was traveling to the United States for a short visit. As the district court found, [before] removing the children and returning to the United States, the parties never had a shared mutual intent to make Victoria, Australia the habitual residence of the children. At no time did Carrie and Shane mutually agree to change their initial plan to be in Australia only long enough for [their son] to receive his medical care—after which they would return to the United States to raise the children. In total, the family lived in Australia for just over eleven months.
Shane petitioned a federal court in Utah for the return of the children. The district court denied Shane relief and dismissed the petition. In its order, the district court concluded that Shane had failed to prove by a preponderance that Australia was the children’s habitual residence. The district court noted that courts traditionally rely on two factors when determining a child’s habitual residence under the Convention. The first factor is the child’s acclimatization to the country that the petitioner claims is the habitual residence. As the district court framed it, when determining acclimatization, a court must resolve whether the “children have become so rooted in the new country that” removal “is tantamount to taking the child[ren] out of the family and social environment in which [their] life has developed.” (citing Mertens v. Kleinsorge–Mertens, 157 F. Supp. 3d 1092, 1105 (D.N.M. 2015)). The second factor is the parents’ last shared intent. To that end, the parents must evince “a degree of settled purpose” or “a sufficient degree of continuity to be properly described as settled.” (citing Kanth v. Kanth, No. CIV 99-4246, 232 F.3d 901, 2000 WL 1644099, at *1 (10th Cir. Nov. 2, 2000)). The district court held that under both factors, Shane had failed to show by a preponderance of the evidence that Australia was the children’s habitual residence.
The Tenth Circuit rejected Shane’s argument that the district court erred by conflating the habitual-residence standard with the domicile standard that traditionally governs jurisdiction over American child-custody disputes. He claimed that, as a prerequisite for habitual residency, the district court required that he and Carrie have shared an intent to stay in Australia “permanently or indefinitely.” A review of the district court’s order defeated Shane’s claim. In deciding this case, the district court relied in part on the courts unpublished opinion in Kanth, 2000 WL 1644099, at *1, 232 F.3d 901. In Kanth it observed that the term “habitual residence” is not defined by the Hague Convention or the U.S. Code. It also observed that the term should not be interpreted technically or restrictively. Instead, a district court should examine the “specific facts and circumstances” presented in each case to determine if there is a “settled purpose,” or “a sufficient degree of continuity to be properly described as settled.” It agreed with Shane that a family need not intend to remain in a given location indefinitely before establishing habitual residency there. The length of an intended stay is just one factor to consider when determining whether the petitioner has proven “a sufficient degree of continuity to be properly described as settled.” The problem with Shane’s argument was that the district court did not require permanency. In its order dismissing Shane’s petition, the district court cited the unpublished order in Kanth and recognized that permanency is not necessary to establish habitual residency. The district court considered the “specific facts and circumstances” surrounding the Watts’ move to Australia and, in doing so, looked to the length of the family’s intended stay as one factor among many. The court noted that the family intended to remain in Australia for “a highly specific purpose which by its nature had a limited duration,” and that “[t]he couple maintained a home in North Carolina; stored many household, holiday, and sentimental possessions in Utah”; and maintained “U.S. financial ties.” Additionally, the court noted that “Shane maintained his company, DirtWise, primarily operating in North America.” Considering these facts together, the court concluded that Australia was not the children’s habitual residence. Despite Shane’s claim to the contrary, the court did not require permanency as a necessary component of proving habitual residency. Accordingly, the court did not err in this regard.
Shane argued that the district court erred by failing to consider his and Carrie’s “present, shared intentions regarding their child[ren]’s presence” in Australia. Here, the court found that the shared intent “was to remain in Australia for a highly specific purpose which by its nature had a limited duration.” Shane cited cases in which courts had found that a shared intent to remain in a location for two to four years was sufficient to sustain a habitual-residence finding. (citing Whiting, 391 F.3d at 551, and Toren v. Toren, 26 F. Supp. 2d 240, 243–44 (D. Mass. 1998)). This timeline alone establishes habitual residency. It held that when determining habitual residency, courts must consider all the facts and circumstances surrounding the family’s life in a given location. Under some facts and circumstances, two years may suffice to establish habitual residency. See Whiting, 391 F.3d at 551. But the intended length of a stay, on its own, does not necessarily demonstrate habitual residence. Instead, a court should consider all the circumstances surrounding a family’s intent to remain in a location and determine if there is a “sufficient degree of continuity to be properly described as settled.” Kanth, 2000 WL 1644099, at *1, 232 F.3d 901 (quoting Feder, 63 F.3d at 223). The district court properly conducted this analysis and, in doing so, committed no legal error.
Shane next argued that the district court ran afoul of Kanth, 2000 WL 164409. In Kanth, it reviewed a district court’s habitual-residence determination. . In doing so, it noted that “[a]lthough it is the child’s habitual residence that the court must determine, in the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the abduction are important factors to be considered.” The children in Kanth were three and six years old when they were taken from Australia by their mother. In contrast, Shane and Carrie’s children were 7, 10, and 12 years old when Carrie removed them from Australia. Shane argued that Kanth’s emphasis on parental intent did not apply here, because the Watts children are older. But the record revealed that the court did not, as Shane argued, place “heavy importance on parental intent over child acclimatization.”. Instead, the district court considered both factors independently and equally. In its order dismissing Shane’s petition, the court found that “under the totality of the evidence before it ... the children did not acclimatize to Australia.” The court considered acclimatization from the children’s perspective and relied on evidence demonstrating that the children’s family and social environment had not sufficiently developed in Australia.7 Additionally, the court concluded that “even if the children had acclimatized,” Shane and Carrie’s last shared intent was to stay in Australia “only for a limited time.” The court thus considered both acclimatization and parental intent as independent factors.
Shane argued that the district court legally erred by not fully crediting how long the children had been in Australia. To that end, Shane argued that “nearly one year spent living in a country in which the children believed they would spend at least a few more years of their lives is indeed a sufficient amount of time to acclimatize.” The Court held that a child may acclimatize to a new location in a year; however, it is equally true that a year might be an insufficient amount of time for acclimatization. To keep a court’s habitual-residence determination free from technical restrictions, it would not read into the term “habitual residence” any conclusive time frame. Though the length of time a child lives somewhere matters in determining whether the child has acclimatized there, it is merely one factor among many. Thus, the court applied the correct legal standard by considering the totality of the circumstances—not just the amount of time spent in Australia—when determining whether the children had acclimatized.
Shane’s last claim of legal error was that the district court failed to determine which state—Utah or North Carolina—was the children’s habitual residence. Shane relied on Article 31(a) of the Convention and claimed that after the court determined that Australia was not the children’s habitual residence, the court needed to decide which state within the United States was the children’s habitual residence. It rejected this argument. When, as here, the petitioner fails to establish habitual residence, Article 31 is not implicated. See Feder, 63 F.3d at 221–22, n.8 (“If a child’s habitual residence is a State which has more than one territorial unit, the custody rights laws of the territorial unit apply. ... In the United States, the law in force in the state in which the child was habitually resident ... would apply to determine whether a removal or retention was wrongful.” (citing Hague Convention, art. 31)). The Convention does not require a district court to determine where a child habitually resides. Instead, the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. If the child habitually resides there, the Convention demands that the court determine whether the child’s removal from that location was wrongful. See Shealy, 295 F.3d at 1121–22. Here, the court found that the children did not habitually reside in Australia, so it matters not in which state in the United States the children now reside. In any event, the district court had no occasion to apply Article 31 here, because it found that Shane failed at the first step—that is, he did not show that Australia was the children’s habitual residence.