In Nisbet v Bridger, 2024 WL 5178814 (9th Cir, 2024) the Ninth Circuit, construing the Supreme Court decision in Monasky v Taglieri, 589 U.S. 681, 40 S.Ct. 719, 206 L.Ed.2d 9, affirmed an order of the district court which denied Andrew Nisbet's petition under the Hague Convention for the return to Scotland of his two young children,1 ACN (born in February 2018) and KRN (born in February 2020).
Nisbet and Bridger met in 2012 in New York City when they were both on vacation. Nisbet lived and worked in Scotland as a radiologist. Bridger, a United States citizen, lived in Oregon and was unemployed. Bridger moved to Scotland in 2012 to be with Nisbet because he purportedly could not work in the United States as a radiologist. They lived in an apartment in Edinburgh that Nisbet owned. In Spring 2017, Bridger became pregnant with ACN in Scotland. Adamant about their residence, Nisbet asked to live with his parents. His parents turned them down. Shortly thereafter, Nisbet attempted suicide. Nisbet then took Bridger to Jersey, and they showed up on the doorstep of Nisbet’s parents who relented and allowed them to stay at an annex of the Jersey Residence temporarily while Bridger was pregnant with ACN. In January 2018, Nisbet again attempted suicide. In February 2018, ACN was born in Jersey. Bridger took care of both ACN and Nisbet for six months in Jersey, with minimal assistance from Nisbet’s parents. In August 2018, Bridger moved from Jersey to Scotland with ACN. Nisbet still lived in Jersey but commuted between Jersey and Edinburgh. During this period, Bridger prepared to leave for the United States, but Nisbet convinced her to stay for a few more months. In February 2019, Bridger returned to Jersey with ACN after Nisbet assured her that he had reconciled with his parents. Despite this assurance, Nisbet’s relationship with his parents deteriorated. Nisbet would bang his head against the wall every day, sometimes several times a day. He punched walls and broke a table. The police were called when Nisbet once cornered his father and pulled his mother’s hair. Bridger told Nisbet she no longer loved him and wanted to return to the United States. In early August 2019, Nisbet’s parents served a notice of eviction on Nisbet and Bridger. On August 6, 2019, Nisbet killed his mother by stabbing her in the neck with a pocketknife. He was arrested and pleaded guilty to manslaughter on the grounds of diminished responsibility owing to a mental disorder. The Royal Court of Jersey sentenced Nisbet to indefinite psychiatric confinement at Brockfield House in Essex, England. The district court found that Nisbet’s family had since severed contact with Nisbet, Bridger, and ACN. Around the same time, by August 2019, Bridger had become pregnant with KRN. After Nisbet was arrested, Bridger and ACN were taken to a refuge and then to a halfway house in Jersey. Bridger planned to return to the United States once she was no longer needed for the police’s investigation of Nisbet. As KRN’s due date neared, Bridger instead moved to the Edinburgh Residence in late 2019 to give birth to KRN because she did not have health insurance in the United States, she had no other place in the United Kingdom to live with her children, and she believed she needed to remain in the country while Nisbet’s criminal case was pending, Bridger still planned to leave for the United States shortly thereafter, if she were released by the police authorities. KRN was born in February 2020. Then, the COVID-19 pandemic hit; country borders and airlines were closed. From then until June 2022, and during the COVID-19 restrictions period, Bridger lived in the Edinburgh Residence with ACN and KRN. Bridger kept in contact with Nisbet because she needed Nisbet’s signature to apply for KRN’s U.S. passport, she needed financial support from Nisbet, and her U.K. visa was expiring. Bridger told Nisbet multiple times she needed to return to the United States and reunite with her family. While in Edinburgh, ACN and KRN attended a nursery school, and they received regular medical and dental care. Bridger testified that ACN and KRN “didn’t actually make friends when they were in Scotland at nursery.” They made acquaintances elsewhere, “but they never knew anyone on a name basis.” ACN and KRN visited Nisbet several times at St. Andrew’s Hospital in Northampton, England, where Nisbet has been in custody since April 2021. Nisbet scheduled Skype calls with ACN and KRN from his psychiatric facility in England every day for an hour. He tried to read stories and play games with them, but often after a short period, ACN and KRN stopped paying attention to Nisbet on the screen. Bridger never intended Scotland to be more than a temporary location for her and her children. In December 2021, Nisbet finally signed the necessary documentation for KRN’s U.S. passport, knowing Bridger intended to take KRN to the United States. Bridger immediately applied for a U.S. passport for KRN. While waiting for months to receive KRN’s U.S. passport, Bridger began packing and sent belongings to the United States. On June 17, 2022, Bridger left Scotland for the United States with ACN and KRN. On June 12, 2023, Nisbet filed a petition under the Hague Convention. On October 24, 2023, six days after the trial, the District Court denied Nisbet’s petition, finding, inter alia, that Nisbet failed to prove by a preponderance of the evidence that Scotland was ACN and KRN’s habitual residence. Nisbet appealed.
The Ninth Circuit observed that in general, a child’s habitual residence is “the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant.” Monasky, 589 U.S. at 78. Such facts include “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,” “language proficiency,” and “location of personal belongings.” Id. at 78 n.3. “Because 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.”. Courts determine a child’s habitual residence by looking at “the totality of the circumstances specific to [each] case,”, and they must be “sensitive to the unique circumstances of [each] case and informed by common sense,” id. at 78. “The bottom line: There are no categorical requirements for establishing a child’s habitual residence.” A habitual-residence determination is a mixed question of law and fact. A trial court must first correctly identify the totality-of-the-circumstances standard. Once it has done so, what remains is a factual question that can be reviewed on appeal only for clear error. Under this standard of review, it cannot reverse a district court’s finding that is “plausible in light of the record viewed in its entirety,” even if convinced that it would have found differently. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). If “there are two permissible views of the evidence,” the trial court’s “choice between them cannot be clearly erroneous.” This standard of review is deferential, so much so that the Supreme Court has adopted it in the Hague Convention context with the goal to “speed [] up appeals.” Monasky, 589 U.S. at 84.
The Ninth Circuit pointed out that when Bridger lived with ACN and KRN in Scotland from late 2019 through June 2022, ACN was approximately two to four years old, and KRN was less than two and a half years old. Their ability to acclimatize to society was limited at the time. That said, the district court considered whether ACN and KRN could have acclimatized to Scotland through three likely ties: people in the societal surroundings, Nisbet’s family and friends, and Nisbet. The district court found ACN and KRN did not make any friends at their nursery school or elsewhere in Scotland. Nisbet’s family severed contact with Nisbet, Bridger, and their children. The district court considered ACN and KRN’s lack of connection with Nisbet. Nisbet had been incarcerated since KRN’s birth; he lived with ACN only intermittently for at most a year, half of which time he was bedbound because of his second suicide attempt. Nisbet himself had not lived in Scotland since 2017—he first lived in Jersey, then he was confined at Brockfield House in Essex, England, and thereafter transferred to St. Andrew’s Hospital in Northampton, England. Granted, Nisbet tried to interact with ACN and KRN over Skype from his psychiatric internment in England every day for an hour. Often after a short period, however, ACN and KRN stopped paying attention to Nisbet on the screen. There was no clear error when the district court concluded ACN and KRN “had no family or friends in Scotland” and “no meaningful relationship with their father.”
The Court observed that district court followed the Supreme Court’s teaching in Monasky that “the intentions and circumstances of caregiving parents are relevant considerations,” when a child,like ACN, less than four and a half years old by June 2022, and KRN, less than two and a half years old at the time, is unable to acclimate due to his very young age or other reasons. On the mother’s side, Bridger’s intention and circumstances militated against finding Scotland to be ACN and KRN’s habitual residence because, as the district court observed, Bridger “had been shuttled through Jersey shelters,” “repeatedly contemplated moving back to Oregon,” and was in the United Kingdom “on an expiring visa.” Therefore, the district did not clearly err in placing significant weight on Bridger’s lack of ties to Scotland when ascertaining ACN and KRN’s habitual residence. See Monasky, 589 U.S. at 80 n.4 (recognizing the mother’s integration to a country as a “highly relevant” factor, if a young child is “in fact looked after by her mother”. On the father’s side, the district court afforded little weight to his role as a caregiver. The district court found Nisbet arguably “raised ACN in earnest” only “for the six months between February and August 2019,” and he did not raise KRN at all because he had been imprisoned before KRN’s birth. It did not find the district court committed a clear error in focusing on the intention and circumstances of Bridger, the sole caregiving parent of ACN and KRN.
Nisbet contended the district court clearly erred simply because it found ACN and KRN lacked habitual residence altogether. The Court responded that this contention is tantamount to a categorical ban against finding no habitual residence. As the Supreme Court has made clear, the “bottom line” is “[t]here are no categorical requirements for establishing a child’s habitual residence.” Monasky, 589 U.S. at 80. While a finding of no habitual residence is rare and should be disfavored, it is not a clear error to render such a finding if the totality of the circumstances of a particular case so warrants.
Nisbet maintained the district court clearly erred in finding ACN and KRN had not habitually resided in Scotland, “where they had lived for two years and four months in the same apartment, where they had attended the same preschool, [and] where all of their medical and dental visits had occurred.” The Majority responded that Supreme Court has held a child’s “mere physical presence” in a country “is not a dispositive indicator of” his habitual residence. Monasky, 589 U.S. at 81; see also id. at 78 (reasoning that a place is just “likely” to be a child’s habitual residence, if the child has lived there “with her family indefinitely”. Nor is the attendance in any preschool determinative. See id. at 78 (“No single fact” “is dispositive across all cases.”). The ultimate object for evaluating a child’s social engagement is to assess acclimatization. Id. at 78 & n.3. Where, as here, factors such as physical presence and preschool attendance did not yield any meaningful social connections for a child, they are not entitled to much salience in courts’ habitual-residence determinations. Therefore, there was no clear error on the district court’s part.
The Ninth Circuit emphasized that it owed obedience to the Supreme Court, which has encouraged trial courts to make habitual-residence determinations based on “a quick impression gained on a panoramic view of the evidence.” Monasky, 589 U.S. at 82. Reviewing such determinations for clear error, it owes deference to trial courts, which enjoy the vantage point of observing witnesses’ demeanor, candor, and other indicia of credibility.
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