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Monday, September 30, 2024

Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024)[Israel][Petition denied] [Habitual residence]


In Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024) the Eleventh Circuit affirmed the judgment of the district court which denied the petition for return.

Brooke Goldstein and Matthew Simon, the mother and father, had three children together. All three children were born in New York, but the family often traveled domestically and internationally. Before 2020, the family lived in Brooklyn, the Hamptons, and Los Angeles. The family moved to Israel in December 2020, and halfway through 2021, the children became Israeli citizens and obtained Israeli passports. During the next few years in Israel, the children visited doctors, were enrolled in schools, and participated in extracurricular activities. The children speak English, but not Hebrew. The family went on vacation to Italy in October 2023, and during that time, Hamas attacked Israel. As a result, the family decided to move elsewhere because of the war. They settled in Miami where the children enrolled in school and participated in extracurricular activities. The children visited doctors and spent time with extended family in the area. For the 2024–2025 school year, the children are enrolled in schools in Miami and Israel.

In late 2023, the mother and father began to disagree about keeping the family in Miami versus returning to Israel. As a result, the mother filed an ICARA petition in federal district court seeking to require the father to return the children to Israel. The mother and father continued living together in Miami with their children when the mother filed her petition, alleging the father’s wrongful retention. The district court denied the petition. It determined that the children’s habitual residence was Florida. Alternatively, the district court concluded that, even if the children’s habitual residence were in Israel, the father did not wrongfully retain the children or prevent the mother from taking them to Israel.

 

          The Court observed that a child’s habitual residence presents ... a ‘mixed question’ of law and fact—albeit barely so.” Monasky, 589 U.S. at 84. This review is considered “mixed” because it first reviews, under a de novo standard, whether the judge applied the correct legal standard to determine the habitual residence.  If the trial judge correctly applies the “totality of the circumstances” standard to determine habitual residence, then it reviews the factual findings made by the court for clear error. Review for clear error is highly deferential. This deference is overcome only when “ ‘on the entire evidence’ we are ‘left with the definite and firm conviction that a mistake has been committed.’ ”

 

          It rejected the mothers arguments that (10 Israel was the correct habitual residence of the children; (2) that  the father wrongfully retained the children by refusing to approve of their return to Israel; and (3) that even though the district court did not reach the issue, that the father failed to present sufficient evidence that the children would be in grave danger if returned to Israel. The father disagrees with the mother’s contentions. The Court started and ened with the first issue. It pointed out that the Hague Convention, as implemented by ICARA, applies to “Contracting States,” which, here, are the United States and Israel. So, even though the district court’s determination was specific to Florida, we must determine whether the district court clearly erred in finding that the United States is the children’s habitual residence. Because it concluded the district court did not clearly err in finding the children’s habitual residence to be in the United States, we need not address the other issues on appeal. The district court correctly applied the totality of circumstances as the legal standard to determine habitual residence. This standard is a “fact-driven inquiry” depending on the “specific circumstances of the particular case.” Monasky, 589 U.S. at 78. The only question is whether the district court clearly erred in any fact findings. The mother points to several fact findings that she says are clearly erroneous. We disagree.

 

First, it rejected the mother’s argument that the district court used an incorrect wrongful retention date in its habitual residence determination. Habitual residence is determined “at the time of removal or retention[.]” Monasky, 589 U.S. at 77. To establish this date, ICARA requires the mother to prove, by a preponderance of evidence, when the father wrongfully retained the children. See Seaman, 766 F.3d at 1257. The district court found that the mother neither alleged a specific date nor did she dispute the father’s proposed date. Based on this finding, the district court determined that the date of the filed petition would serve as the date of wrongful retention. Although the record reflects a disagreement between the mother and father before the filed petition, it could not say the district court clearly erred in its finding that, if the father wrongfully retained the children, he did so as of the date of the mother’s petition.

 

     It also rejected her argument that the district court disregarded the parties’ shared intent (or lack thereof) when they returned to the United States from Israel. Shared intent is not “dispositive[,]” Monasky, 589 U.S. at 78, and “it cannot alone transform the habitual residence.” Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). Contrary to the mother’s argument, the district court found that the parties shared an intention of staying in Florida until the war in Israel ended—or, at a minimum for six months to a year. Ample evidence in the record supported that intention, and the mother filed her petition during this period. Accordingly, it was not left with a “definite and firm conviction” that the court erred..

 

The mother contended that the children’s habitual residence never changed from Israel. It rejected this argument. It could not say that the record compelled that finding. The mother had to show, by a preponderance of evidence, that the children were “habitual resident[s] of [Israel] immediately before retention in the United States[.]” Chafin v. Chafin, 742 F.3d 934, at 938 (11th Cir. 2013) To determine the children’s habitual residence, the district court relied on “objective facts,” Ruiz, 392 F.3d at 1255, like the children’s enrollment in schools and extracurriculars in the United States. It also based its finding, in part, on the father’s “credible testimony,” to conclude that the children’s residence was the United States at the time of the filed petition. When a district court makes determinations based on witness credibility, we give “even greater deference to the trial court’s findings[.]”. Being “sensitive to the unique circumstances of the case[,]” Monasky, 589 U.S. at 78 (quoting Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir. 2013)), the district court also considered the family’s transitory history—they had often moved to different cities, states, and countries for short periods of time—as relevant to whether the children had established a habitual residence in the United States. In light of the unique circumstances of this case, the district court determined that the mother did not meet her burden in demonstrating that Israel was the children’s habitual residence at the time of the alleged retention, and we cannot say the district court committed clear error in making that determination.

 

Finally, it rejected the mother’s challenge to the district court’s assessment of the children’s acclimatization to the United States. Applying the Monasky factors, the district court considered, among other facts, the children’s extracurricular activities, the location of their belongings, and their relationship with family in Florida. While the mother argued that the youngest child could not have acclimated, it could not say the district court erred in evaluating this evidence as to the children. Facts pertaining to the children’s acclimatization to the United States are relevant to assess a child’s habitual residence, and therefore, the district court did not clearly err in its consideration of them.

 

 

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