Abou-Haidar, v. Sanin Vazquez, 2019 WL 7198714 (District of Columbia Circuit, 2019)[France] [Habitual residence] [Anticipatory retention] [Petition granted]

In Abou-Haidar, v. Sanin Vazquez, 2019 WL 7198714 (District of Columbia Circuit, 2019) the DC circuit affirmed a judgment of the district court which granted the petition of Sami Abou-Haidar which alleged that his wife, María Eugenia Sanin Vazquez, wrongfully retained their five-year-old daughter in the United States. 

        In October 2013, Sami Abou-Haidar and María Eugenia Sanin Vazquez married in Paris. Abou-Haidar, a citizen of France, Italy, and Lebanon, was an emergency doctor who provided house-call services. Sanin Vazquez, a citizen of Spain and Uruguay, was a professor of Economics at the University of Évry Val-d’Essonne, near Paris. The couple had a daughter in Paris in early 2014. Before July 2018, the family lived primarily in a rented apartment in Paris. The family also spent several months at a time at a Barcelona apartment they owned. There was no serious dispute that France was the family’s habitual residence before their move to the United States.
In January 2018, the Inter-American Development Bank offered Sanin Vazquez a consultancy in Washington, Sanin Vazquez agreed to serve as a Bank consultant from July 1, 2018 through December 31, 2019. The parties then took several steps to prepare for their departure from France. Sanin Vazquez requested a détachement—a temporary assignment or secondment—from her university for eighteen months, but maintained her university affiliation, her doctoral students, and her French pension. Abou-Haidar kept his Paris job but planned to work for ten to twelve consecutive days each month in France and spend the balance of the month in Washington. The couple rented out their Barcelona apartment for three years and moved out of their rented Paris apartment, leaving their furniture and large appliances in a storage unit in the same building. For the days he would spend in Paris, Abou-Haidar arranged to live in another, smaller Paris apartment that he owned, which he otherwise continued to rent out during the part of each month he spent in Washington. The couple took other steps in preparation for the move to Washington. Sanin Vazquez obtained G-4 diplomatic visas for the family valid for five years. 

        The couple moved into their rented Washington apartment on July 1, 2018. They enrolled their child in a nearby public Spanish-English bilingual elementary school. The child was now nearly six years old, had friends at her school, and participated in soccer and other extracurricular activities. By December 2018, however, the couple began to experience marital discord. As the marriage deteriorated, Sanin Vazquez took action to establish her primary physical custody over the child. On May 2, 2019, Sanin Vazquez filed a Complaint for Custody in D.C. Superior Court, seeking “primary physical custody” and “joint legal custody” of the child. On May 7, 2019, she notified him of the complaint and of her desire for a marital separation. Immediately thereafter, Abou-Haidar received service of the Superior Court complaint. On May 10, Sanin Vazquez told Abou-Haidar that she planned to stay in Washington, D.C. with their daughter after December 31 instead of returning to France. On May 31, Sanin Vazquez’s family law attorney wrote to Abou-Haidar that their Washington apartment had “never been the marital residence” and that Sanin Vazquez had “changed the locks on her apartment.”  On May 23, 2019, Abou-Haidar filed an answer and counterclaim in D.C. Superior Court, seeking “joint physical and legal custody” of their daughter. Then, on June 6, Abou-Haidar withdrew his Superior Court answer and counterclaim and instead sought assistance from the French Central Authority. On June 10, Abou-Haidar also filed a Hague Convention petition in the U.S. District Court in Washington for return of their daughter to France. About two weeks later, the French Central Authority dismissed Abou-Haidar’s application in a letter, stating that the “presence of your daughter in the United States is not unlawful since it was decided by the parental couple which holds the parental authority.” The district court, concluded that Abou-Haidar had proven by a preponderance of the evidence that the mother, Respondent María Eugenia Sanin Vazquez, had wrongfully retained the child within the meaning of the Convention on May 7, 2019 when she served Abou-Haidar with her Superior Court complaint, or at the latest on May 23, 2019, when Abou-Haidar filed his Superior Court answer and counterclaim seeking to maintain joint custody. The court further held that the child’s habitual residence was France because, “based on the full record,” the “parties did not leave France in a manner that would suggest a shared intent to relocate indefinitely to the United States,” and evidence of the child’s acclimatization to the United States did not supplant that intent. Finally, the court held that the retention was wrongful because Sanin Vazquez did not dispute that the retention violated the French custodial rights that Abou-Haidar was exercising at the time of the retention. 

  The Court of Appeals affirmed. It observed, in the first case arising under the Hague Convention that had reached the court, that other circuits often distill analysis of whether a petition for return should be granted into a four-part inquiry, which the parties from the outset have expressly embraced and continue on appeal to agree is applicable: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).

        On appeal, Sanin Vazquez challenged the district court’s findings only with respect to the first two questions. Regarding the first question, Sanin Vazquez took issue with the district court’s retention-date determination. Regarding the second question, Sanin Vazquez and Abou-Haidar agreed on the legal standard that should apply. The Courts analysis addressed only the first two questions, concluding that the district court did not err in finding that Sanin Vazquez retained the child in May 2019 and that the child’s habitual residence was France.

The court noted that Sanin Vazquez’s primary contention was that the petition had to be dismissed because the district court’s retention date of May 7, 2019, preceded December 31, 2019, the date through which the parties agreed the child would remain in the United States. Sanin Vazquez viewed this concern as jurisdictional, arguing that the dispute “is not ripe until January 1, 2020 passes”. In her view, recognizing a retention date prior to December 31, 2019, would constitute an “anticipatory retention”—a type of claim that, she asserted, American courts have never previously recognized. It rejected her effort to label her argument in jurisdictional terms because this case involved an actual, rather than anticipatory, retention. No court has held that either of these retention dates would be premature. The circuits identify the date of retention as “the date consent was revoked” or when the “petitioning parent learned the true nature of the situation.” Palencia v. Perez, 921 F.3d 1333, 1342 (11th Cir. 2019). For example, the Second Circuit has held that the date of retention is the date when the retaining parent advised the other that “she would not be returning with the [c]hildren” as originally planned. Marks ex rel. S.M. v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017). The circuits also agree that the parental actions that serve to identify such date need not be particularly formal.

        The Court held that guided by these analyses, the district court correctly found that Sanin Vazquez retained the child at the earliest on May 7, 2019, when she informed Abou-Haidar of her Superior Court filing seeking “primary physical custody,” or at the latest by May 23, 2019, when Abou-Haidar filed his answer and counterclaim making clear that he opposed the proposed change to his custody rights. Under any circuit’s existing law on the point, one or more of these actions sufficed to identify a retention. These facts also distinguished  the case from the case on which Sanin Vazquez principally relied, Toren v. Toren, 191 F.3d 23 (1st Cir. 1999). Here, in contrast to Toren, a series of decisions and corresponding actions already taken by both parties clearly conveyed a ripe disagreement about where the child’s custody would lie. The First Circuit’s dismissal in Toren was consistent with the basic principle that, in order to be ripe, a challenge to an “anticipatory retention requires a clear communication that the retaining parent is not returning the child home.” The thrust of Sanin Vazquez’s argument was not that the district court misapplied these tests in identifying the date of retention, but that no retention was possible before the date through which the parties initially agreed that the child would reside in the United States. The fundamental flaw with this theory was that Sanin Vazquez’s unilateral actions to assert custody amounted to a declaration that she then rejected and sought to depart from the previous mutual arrangement. Courts routinely apply the same analysis to determine whether a retention occurred even when the actions evidencing retention precede the anticipated end date of the parents’ prior agreement. See, e.g., Blackledge, 866 F.3d at 178-79; Darin, 746 F.3d at 10-11. In Mozes the court held that the mother “retained” the children in the United States during a period when the parents had agreed the children would live with her here and before the date, they had set for the family to reunite at home in Israel. See Mozes, 239 F.3d at 1069-70 & n.5. 
The Court had no trouble concluding that this case involved an actual, not anticipatory, retention. 

The district court concluded, based on detailed factfinding, that France was the child’s habitual residence. Sanin Vazquez contended on appeal that the “factual findings made by the District Court, when applied to the law of and interpreting the Convention, could not possibly yield a ruling that habitual residence was still France.” In deciding what framework to apply to determine the child’s habitual residence all the circuits to have addressed the question agree that two important considerations are: (1) the parents’ shared intent for where the child should reside, and (2) the child’s acclimatization to a particular place. To the extent the circuits’ approaches diverge, they “differ only in their emphasis.” The Court had no occasion to decide which of these frameworks was correct because the parties agreed to application of the Mozes framework. In line with the Mozes framework, it first examined the district court’s findings regarding the parents’ shared intent, and then its findings regarding the child’s acclimatization.

        The district court found, and Sanin Vazquez conceded, that France was the family’s habitual residence before they came to Washington, D.C. denying that the family’s habitual residence was “still France” after the move. Under Mozes, a determination that shared parental intent has changed requires a finding that the parties had a “settled purpose” to establish a new habitual residence. 239 F.3d at 1074. Courts look at a variety of factors to determine whether the parents had a shared intent to change the child’s habitual residence, including “parental employment in the new country of residence; the purchase of a home in the new country and the sale of a home in the former country; marital stability; the retention of close ties to the former country; the storage and shipment of family possessions; the citizenship status of the parents and children; and the stability of the home environment in the new country of residence.” Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009). Courts have held parents cannot establish a new habitual residence without forsaking their existing one. A “person cannot acquire a new habitual residence without ‘forming a settled intention to abandon the one left behind.’” Darin, 746 F.3d at 11 (quoting Mozes, 239 F.3d at 1075). Mozes tells us that “[w]hether there is a settled intention to abandon a prior habitual residence is a question of fact as to which we defer to the district court.”. Here, the district court canvassed all of the record evidence and found that the parties intended to remain in Washington, D.C. for the eighteen months of Sanin Vazquez’s initial contract, but that any plans to stay beyond that period were “aspirational and contingent.” Sanin Vazquez did not articulate why any of these factual findings was clearly erroneous. Mozes recognizes a conceptual difference between abandoning a habitual residence and establishing a new one: a person can abandon a habitual residence “in a single day if he or she leaves it with a settled intention not to return to it,” but an “appreciable period of time and a settled intention will be necessary to enable him or her to become” habitually resident in a new country. Mozes, 239 F.3d at 1074-75). The district court explicitly acknowledged this conceptual difference, and held only that the parents did not have a settled intention to abandon France, regardless of their intentions with respect to Washington, D.C. The district court’s factual finding of the absence of settled intention to abandon France sufficed to support its habitual-residence holding. There was no legal error in its analysis of the point. 

        The second inquiry, subsidiary under the parties’ stipulated Mozes framework, was the child’s acclimatization to the new country. “Evidence of acclimatization is not enough to establish a child’s habitual residence in a new country when contrary parental intent exists.” Darin, 746 F.3d at 12 (citing Mozes, 239 F.3d at 1078-79). Mozes further counsels that courts should “be slow to infer from [a child’s contacts] that an earlier habitual residence has been abandoned” in the absence of shared parental intent to do so. 239 F.3d at 1079. Courts view a variety of factors as relevant to acclimatization, including “school enrollment, participation in social activities, the length of stay in the relative countries, and the child’s age.” Maxwell, 588 F.3d at 254. Here, Sanin Vazquez had not identified any error in the district court’s findings regarding the child’s acclimatization. The district court recognized that the child had adjusted to a new school, made friends, and participated in extracurricular activities in the ten months she spent in the United States prior to the retention in May 2019. But, until the sojourn in Washington, the child’s life was based almost entirely in Paris: her parents married there, she was born there, and she attended nursery school there. Sanin Vazquez did not argue that the district court committed any legal error in applying the Mozes framework to its findings relating to the parents’ shared intentions and the child’s acclimatization. Because the parties chose the Mozes framework, and Sanin Vazquez had not challenged the district court’s findings under the remaining questions or asserted any defenses, the Court affirmed the district court’s judgment granting Abou-Haidar’s petition for return.