Recent Hague Convention District Court Cases - Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020)

 [France][Habitual residence][Petition denied]

In Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020) the Court denied the petition return the Minor Children to France. It agreed with Respondent that the  family intended to move to Florida to pursue a business opportunity (a tea room) and the Minor Children were acclimated. As a result, the habitual residence of the Minor Children was Florida. 

Petitioner and Respondent were married in France and the Minor Children were born in France. Until October 3, 2018, the family lived together in France. Prior to moving to the United States, the family often vacationed to South Florida. Petitioner and Respondent purchased an apartment in Hallandale, Florida as a vacation home. The applied for and after an  E-2 Investor Visa was approved, the Petitioner and Minor Children were given derivative visas valid until September 2023. The family made the necessary arrangements to move to their apartment in Hallandale, Florida. Petitioner, a pilot,  applied for a work permit to legally assist Respondent with the Tearoom. Petitioner also notified his employer of his new residence and requested an adjustment to his flight schedules.. Petitioner and Respondent jointly agreed to enroll their children in an American school instead of a charter school for international students. And apart from the family car, a few articles of clothing, and family pictures, Petitioner and Respondent sold all their belongings in France. While living in Florida, the Minor Children learned English exceptionally well. They were both performing well academically, admired their teachers, had several friends, and enjoyed jujitsu—an activity they started while here in the United States. They did not stay in contact with many friends in France. And if given the choice, the Minor Children do not want to return to France. Respondent alleged the decision to start a business in the United States and move to Florida was intended to be a permanent transition. Respondent testified as to the financial burden in applying for the E-2 visa, buying the tearoom storefront, and operating the Tearoom. . She also focused on the joint decision to enroll the Minor Children in American schools as opposed to international schools.  Respondent also noted that the family packed all their necessities and sold all their furniture in France, leaving behind only a few mementos and a storage unit for delivery shipments to France. The evidence did not support a temporary transition or a “family adventure.” Petitioner and Respondent spent several months applying for a lottery visa and later the E-2 Investor Visa. They hired consultants and invested approximately $130,000 to purchase and maintain the Tearoom. And although it would be difficult to convert a European pilot’s license to an American pilot’s license, this, alone, did not give credence to the “family adventure” theory proposed by Petitioner—especially because Petitioner, according to testimony adduced at trial, intended to commute between Florida and France. Thus, the evidence, when viewed objectively, warranted the reasonable conclusion that Petitioner and Respondent intended to make the Tearoom a success and permanently transition to Florida. The Court’s conclusion was further supported by numerous facts indicating acclimatization by the Minor Children. They are well-adjusted, speak English fluently, have made many friends in South Florida over the past two years, participate in social activities, and did not wish to return to France.