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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