Matter of E.Z., and S.Z. v Zarak, 2021 WL 5106637 ( S.D. New York, 2021)[Iceland][Habitual residence][Petition granted]

 

In Matter of  E.Z., and S.Z. v Zarak, 2021 WL 5106637 ( S.D. New York, 2021) the district court granted the Petition finding that the habitual residence of the two children was Iceland.

Petitioner Arnaldur Schram, a citizen of Iceland, and Respondent Tania Zarak, a citizen of Mexico, met in the summer of 2013 in New York City. They were married about two years later. The couple had two children in New York. Throughout their marriage, the couple was fairly transient, frequently relocating their home and their children. During the six years before the Petition was filed in this matter, the couple moved five times and lived for extended periods of time in four different cities. E.Z., born in 2014, lived for about four years in three different residences in New York where she was born, in Los Angeles for a year, then another eight months in New York, in Mexico for four months, and lastly, Iceland for about a year, until removed to New York by Respondent in July 2021. S.Z., born in 2019, lived for two months in Los Angeles where he was born, eight months in New York, four months in Mexico, and about a year in Iceland until he was likewise removed to New York by Respondent in July 2021. The family arrived in Iceland on August 1, 2020.  E.Z. had already been an Icelandic citizen from 2015, shortly after his birth, and the parties obtained Icelandic citizenship for R.Z. and S.Z. when they arrived in August 2020. Petitioner’s parents, two brothers, their children, and his extended family live in Iceland. While living in Iceland, Respondent declared herself a nonresident of New York for tax purposes. Respondent stopped making maintenance payments for their New York apartment  during her time in Iceland. The couple also took out a long-term car rental at Hertz and, in March 2021, purchased a car.  In the spring and summer of 2021, the couple talked about plans to travel to Mexico for a family visit in connection with a reunion of Respondent’s family long scheduled for June 2021 in Mexico. Respondent’s family held a family reunion every two to three years and Respondent told Petitioner that she wanted to go to the summer 2021 reunion with the children. . During their conversations, the parties discussed that the trip to Mexico in June 2021 would be a temporary visit and that Respondent, E.Z., and S.Z. would thereafter return to their home in Iceland. When she left for Mexico, Respondent told Petitioner that she would return to Iceland after her trip. In fact, Respondent told several others that she would return to Iceland after her trip to Mexico. In late spring 2021, Respondent mentioned to Ms. Thorsteinsson that their children could visit summer camps in Iceland in August after Respondent returned from her vacation to Mexico. About two weeks before her trip to Mexico, Respondent told Mr. Pedersen that she was about to travel there for a family reunion and that she would then return to Iceland.. On June 15, 2021, Respondent texted a close friend of hers in Iceland, Jonas Moody, that “things are better,” that she was going to Mexico, and that she would be returning to Iceland around mid-July. There was no evidence reflecting that at any time Respondent indicated that she intended to abandon Iceland after she visited Mexico for the family reunion. However, on June 2, 2021, shortly before the anticipated departure to Mexico for the family reunion, Petitioner received an email from P.S. 9 indicating that the children were enrolled in the school in New York for the upcoming school year. This enrollment was done by Respondent without Petitioner’s knowledge or consent.. This revelation led to an argument between the parties and Petitioner started to suspect that by secretly enrolling the children at P.S.9, Respondent was planning to remove the children to New York after her upcoming trip to Mexico.. Ultimately, Petitioner agreed to let Respondent go to Mexico, but with only E.Z. and S.Z. He did this because he was afraid that, due to their deteriorating marriage, Respondent would take the children out of Iceland.  

 

On June 17, 2021, Respondent flew from Iceland to Mexico with E.Z., S.Z., and the children’s nanny. The ostensible reason for the trip was for the family to visit Mexico to attend Respondent’s family reunion and thereafter return to Iceland. While in Mexico at this time, on June 20, 2021, Respondent wrote to a company that manages Airbnb properties in Reykjavik that her mother was coming to Iceland in August for a month and asked if apartments were available. Respondent testified that at this time she was still considering all her options. Sometime between June 20, 2021, and July 21, 2021, however, Respondent’s intent to return to Iceland apparently changed and, on July 21, 2021, Respondent traveled from Mexico to New York with E.Z. and S.Z. Petitioner became aware within about a week that Respondent was in New York with E.Z. and S.Z. The Court found that contrary to what Respondent now contended, the couple never changed their shared intent that, in the summer of 2021, the habitual residence of the children was Iceland. Rather, it was apparent that Respondent unilaterally decided to remove E.Z. and S.Z. to New York, rather than return to Iceland as she had told Petitioner and many of their friends she would do.. It appeared that Respondent removed the children and took them with her to New York perhaps due to the escalating marital difficulties. She offered no explanation whatsoever of how or why she ended up in New York in July 2021 with two of the couple’s three children.

 

On the same day she arrived in New York, Respondent filed an action for divorce in Supreme Court, New York County. That same day, Respondent filed an Emergency Order to Show Cause seeking, among other things, a temporary restraining order for interim sole custody of the children and for Petitioner to return R.Z. to New York. Justice O’Neill Levy denied the application. On August 2, 2021, Petitioner filed custody proceedings in Iceland. On August 13, 2021, Petitioner filed a petition under the Hague Convention, seeking the return of E.Z. and S.Z. to Iceland.

 

 The District Court observed that Second Circuit has not defined the term, but has instructed that in determining “habitual residence,” district courts should apply a two-part test: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Hofmann v. Sender, 716 F.3d 282, 291–92 (2d Cir. 2013) (quoting Gitter, 396 F.3d at 134); see Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019).

 

Recently, the Supreme Court clarified that “a child’s habitual residence depends on the totality of the circumstances specific to [a given] case.” Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020). The Court noted that “locating a child’s home is a fact-driven inquiry,” and “courts must be sensitive to the unique circumstances of the case and informed by common sense.” Id. at 727 (internal quotation marks omitted). Accordingly, “[b]ecause children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases.” Id. “In other words, the parents’ last shared intent is a relevant consideration, but it is by no means dispositive of the habitual residence inquiry.” Grano v. Martin, 443 F. Supp. 3d 510, 535 (S.D.N.Y. 2020), aff’d, 821 F. App’x 26 (2d Cir. 2020).  “[A] wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ ” Monasky, 140 S. Ct. at 729. “The bottom line: There are no categorical requirements for establishing a child’s habitual residence – least of all an actual-agreement requirement for infants.” Id. at 728. In instructing courts to look at the totality of the circumstances, the Supreme Court has provided a nonexclusive list of facts the Court can consider: “a change in geography combined with the passage of an appreciable period of time,” “age of the child,” “immigration status of child and parent,” “academic activities,” “social engagements,” “participation in sports programs and excursions,” “meaningful connections with the people and places in the child’s new country,” “language proficiency,” and “location of personal belongings.”. It is the petitioner’s burden to “establish[ ] by a preponderance of the evidence a child’s habitual residence at the time of the contested removal.” Guzzo v. Cristofano, 719 F.3d 100, 107 (2d Cir. 2013). 

 

The Court began its analysis with an evaluation of the shared intent of the parties. It is the intent of the parents “at the latest time that their intent was shared” that is relevant to a determination of habitual residence. Gitter, 396 F.3d at 134. This inquiry in turn involves two questions: whether the parents formed a shared, “settled intention” to “abandon” the child’s previous habitual residence, id. at 132, and whether the parents “have mutually intended that the child acquire a new habitual residence” in a new location, id. at 133; accord Berezowsky v. Ojeda, 765 F.3d 456, 468 (5th Cir. 2014) (courts “usually [ ] try to determine when the parents last had a shared plan regarding their child’s future[ ] and what that plan entailed”). A settled intention to abandon a prior habitual residence need not be expressly declared “if it is manifest from one’s actions; indeed one’s actions may belie any declaration that no abandonment was intended.” Mozes, 239 F.3d at 1075. “Often parents will not agree about what their shared intentions were once litigation is underway, and so we must take account of the parents’ actions as well as what they say.” Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011). Moreover, “one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary.” Mozes, 239 F.3d at 1075.

 

The Court concluded that the family intended to abandon New York when they moved to Iceland in August 2020. The inquiry here was not straightforward because, throughout their marriage, the parties were indecisive with respect to their permanent long-term plans and both parties were in agreement that the decision to move to Iceland was not meant to be a definitive plan to move to Iceland permanently. However, although “[d]etermining intent when the parents disagree about their child’s habitual residence is an Augean chore[,] ... it is necessary to look beyond the subjective intent of the parents to the objective manifestations of that intent.” Armiliato, 169 F. Supp. 2d at 237. Here, the objective facts surrounding the parties’ move to Iceland supported the Court’s finding of a shared intent to abandon New York indefinitely when the couple moved its family to Iceland and set down roots in Iceland. The Court found that once the couple decided to move to Iceland, their shared intent was to remain there indefinitely, though not necessarily permanently. Grano, 443 F. Supp. 3d at 537 (finding that the child’s habitual residence was where the family intended to relocate indefinitely). The Court found credible Petitioner’s candid explanation that they intended to stay for a few years, “see how it goes,” and see if they would have a better life there. While the couple left the door open to returning to the United States or elsewhere at some point, at the relevant time when Respondent took the children from Iceland under the pretext of visiting family in Mexico, clearly the family’s home was Iceland. Mozes, at 1077 (even if “the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration[,] [s]ometimes the circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely”); see also Koch v. Koch, 450 F.3d 703, 713 (7th Cir. 2006); Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004).

 

This shared intent was not only supported by some of Respondent’s messages to her friends, but also the parties’ “objective manifestations of that intent” in planning their move and once they arrived in Iceland. Other facts supported the conclusion that the parties made Iceland the habitual residence of their family, including E.Z. and S.Z., when they moved to Iceland in the summer of 2020. Respondent began taking Icelandic language lessons. The couple signed E.Z. up for extracurricular activities in Iceland including music lessons, karate, soccer, basketball, and a swimming class.. The parties registered E.Z. at a gymnastics club for the 2021–2022 school year. The couple took steps to enroll E.Z. in school in Iceland for the 2021–2022 school year. On June 10, 2021, only one week before her trip to Mexico, Respondent emailed Landakotsskoli about enrolling E.Z. into both violin and piano lessons. In June 2021, Petitioner and Respondent also enrolled S.Z. in school in Iceland. The shared intent of the parties to make Iceland the family’s habitual residence when they moved there in 2020 was also supported by a comparison with the objective facts surrounding the family’s other relocations. As such, the Court found that the parties had a shared intent in the fall of 2020 to abandon New York and to establish a new habitual residence for themselves and the children in Iceland.

 

The Court pointed out that under Monasky, the parties’ last shared intent is not, in and of itself, dispositive of what the “habitual residence” of E.Z. and S.Z. was at the time they were removed to New York. The conclusion that the family’s habitual residence was Iceland at the time the two children were removed by Respondent is also strongly supported by the totality of the evidence set forth above — i.e., objective facts suggesting that E.Z. and S.Z. were at home in Iceland. As the Supreme Court instructs, at bottom, the habitual residence inquiry is designed simply to ascertain where a child “is at home[ ] at the time of removal or retention.” Monasky, 140 S. Ct. at 726. While intent is helpful to that determination, so too are the objective facts regarding where the child actually lives. Not only do the couple’s actions while in Iceland suggest that their intent was to live there for an indeterminate amount of time, but relevant facts also suggest that E.Z. and S.Z. were at home in Iceland when Respondent removed them to New York. To the extent that S.Z. may have been too young to acclimate to his new environment in Iceland, it would only put more weight on the Court’s conclusion that the parents’ last shared intent was to make Iceland the family’s habitual residence. See Guzzo, 719 F.3d at 109 n.7. Nevertheless, the facts here supported the conclusion that both E.Z. and S.Z. had acclimated to and were at home in Iceland. E.Z. and S.Z. were citizens of Iceland. E.Z. was attending school in Iceland and had several friends there. She also had an active social life, which included playdates and sleepovers with the three or four friends she made in Iceland.. While in Iceland, she attended birthday parties her friends’ hockey classes, extracurriculars such as music lessons, karate, soccer, and basketball, and ice skating and swimming classes. She also enjoyed family and social activities, including visiting museums and zoos, and sight-seeing some of Iceland’s scenic natural attractions. S.Z., only about two years old at the time, had also begun to socialize in Iceland with other children. And he participated in family activities, went on family outings, and visited along with his parents and siblings with Petitioner’s parents, brothers, and their cousins.

  

The Court found that Petitioner has proven by a preponderance of the evidence that E.Z. and S.Z. were habitual residents of Iceland at the time Respondent removed them to New York. Respondent did not contest that Petitioner had otherwise established the other two elements of his claim under the Convention. The petition was granted.