In Panteleris v. Panteleris, ---
Fed.Appx. ----, 2015 WL 468197(6th Cir., 2015), the Sixth Circuit affirmed the
district court's grant of plaintiff Anthimos Panteleris's petition for return
of their three children to Australia.
Anthimos Panteleris, a citizen of
Australia, and Aalison Panteleris, a citizen of the United States, married in
the United States in 2005. Four months after their first child was born in the
United States, the family traveled to Australia in March 2007. The Pantelerises
had two more children in Australia. The family lived together in Australia
until they traveled to the United States in March 2012. Mr. Panteleris testified that the family
intended to take a six-month to one-year extended vacation to visit Ms.
Panteleris's family in Ohio, similar to a holiday Mr. Panteleris had taken with
his parents when he was four years old. Ms. Panteleris testified that the
family had relocated to the United States indefinitely. At the time of their
arrival in the United States, the children were aged five years, three years,
and four months. In April 2012, after visiting Hawaii for several weeks, the
family arrived in Ms. Panteleris's hometown of Salem, Ohio. They moved into an
apartment with a one-year lease. Ms. Panteleris obtained employment and Mr.
Panteleris, who could not work under his visa status, stayed at home with the
children. The eldest two children were enrolled in school. Ms. Panteleris later
quit her job in November 2012, and the family's savings were largely depleted.
On December 2, 2012, Mr. Panteleris returned to Australia alone. Mr. Panteleris
testified that he returned to Australia to obtain employment and prepare for
the family's return to Australia. According to Mr. Panteleris, after he secured
a stable job, he requested in May 2013 that Ms. Panteleris and the children
return to Australia but Ms. Panteleris refused.
Mr. Panteleris filed a petition for
return of the children in United States district court on February 28, 2014.
The court held a five-hour evidentiary hearing. In July 2014, the court issued
an opinion and order granting plaintiff's petition and ordering the children
returned to Australia. There the Sixth Circuit granted defendant's emergency
motion to stay the order pending appeal.
The Court pointed out that in a case
involving an action for return of a child under the Hague Convention, it
reviews the district court's findings of fact for clear error and reviews its
conclusions about American, foreign, and international law de novo. Simcox v.
Simcox, 511 F.3d 594, 601 (6th Cir.2007).
In this case, the district court found
that, at the time of wrongful retention, Mr. Panteleris was exercising his
custody rights under the Australian Family Law Act by maintaining a
relationship with his children. On appeal, Ms. Panteleris did not dispute that
Mr. Panteleris had custody rights, but argued that he voluntarily relinquished
his rights by returning to Australia and making only “sporadic” attempts to
contact the children. The Court found that this recharacterization of the facts
fells short of “clear and unequivocal abandonment.” The district court
addressed this issue in detail, observing that “courts should ‘liberally find
“exercise” whenever a parent with de jure custody rights keeps, or seeks to
keep, any sort of regular contact with his or her child. The district court
found that Mr. Panteleris “regularly” communicated with his children between
December 2012 and May 2013, the date of wrongful retention. Moreover, although
Mr. Panteleris did not provide direct financial support, Ms. Panteleris made
withdrawals from the parties' joint bank account in Salem, Ohio, and Mr.
Panteleris offered to reimburse her for family expenses if she provided him
with bills or receipts. There was no evidence that Ms. Panteleris had provided
Mr. Panteleris a bill or receipt that he refused to pay. Moreover, the court
observed that “[t]he record is replete with [Mr. Panteleris's] well-documented
visa difficulties and references to the poor financial situation of the
Panteleris family. It follows that the family members could ill afford airline
tickets to Australia, and the three children, one of whom was autistic and the
eldest of whom was now seven, could not safely fly unaccompanied. The district
court thus concluded that Mr. Panteleris had not failed to exercise his custody
rights during the relevant time period. The district court did not clearly err.
The Sixth Circuit pointed out
that a child's country of habitual residence is a question of fact that the
court reviews for clear error. Jenkins v. Jenkins, 569 F.3d 549, 556 (6th
Cir.2009); Robert v. Tesson, 507 F.3d 981, 995 (6th Cir.2007). Although the Convention does not define
“habitual residence,” the Court has held that 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. Robert, 507 F.3d at 998. It has established five principles to consider in
determining a child's habitual residence: First, habitual residence should not
be determined through the technical rules governing legal residence or common
law domicile. Instead, courts should look closely at the facts and
circumstances of each case. Second, because the Hague Convention is concerned
with the habitual residence of the child, the court should consider only the
child's experience in determining habitual residence. Third, this inquiry
should focus exclusively on the child's past experience. Any future plans that
the parents may have are irrelevant to its inquiry. Fourth, a person can have
only one habitual residence. Finally, a child's habitual residence is not
determined by the nationality of the child's primary care-giver. Only a change
in geography and the passage of time may combine to establish a new habitual
residence. Robert, 507 F.3d at 989
(citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993)
(“Friedrich I ”)).
In
this case, the district court considered the children's activities in
Australia, including school, social engagements, and meaningful connections to
people and places in Australia. It also considered the children's activities
and meaningful connections in the United States, but observed that it could not
accept evidence of habitual residence for dates after May 2013 because Sixth
Circuit precedent instructs courts to look back in time from the period of
wrongful retention, not forward. The district court also considered the
children's belongings that the family brought to the United States and items
left in Australia. Weighing all the evidence, the district court concluded that
Mr. Panteleris had established by a preponderance of the evidence that the
children were habitual residents of Australia at the time of the wrongful
retention.
On appeal, Ms. Panteleris argued that
the court's factual finding was clear error because a period of one year is
significant in the lives of young children and, under the Friedrich I factors,
the children had acclimatized to the United States. The Sixth Circuit held that
Ms. Panteleris's first argument reflected a difference of opinion on how to
weigh the evidence, but not clear error. Ms. Panteleris failed to establish
that the district court clearly erred in finding that, in light of all the
evidence, Australia was still the children's habitual residence from their
perspective.
The Sixth Circuit rejected Ms.
Panteleris argument that the court should consider “the subjective intent of
the parents” as an additional factor in determining a child's habitual
residence, at least with respect to young children and those with developmental
disabilities. The Court noted that it had previously considered similar
arguments. In Robert v. Tesson, 507 F.3d at 990–91, it rejected the Ninth
Circuit's approach in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), which
considers “the subjective intentions of the parents [as] all but dispositive of
a child's habitual residence.” It found the Ninth Circuit's rule “inconsistent”
with Friedrich I and “the Convention's goal of deterring parents from crossing
borders in search of a more sympathetic court” because such a rule “empowers a
future abductor to lay the foundation for an abduction by expressing
reservations over an upcoming move.”
Robert, 507 F.3d at 992. Nevertheless, it left open the possibility that
“a very young or developmentally disabled child may lack cognizance of their
surroundings sufficient to become acclimatized to a particular country or to
develop a sense of settled purpose.” However, because that case did not present
such facts, it “express[ed] no opinion on whether the habitual residence of a
child who lacks cognizance of his or her surroundings should be determined by
considering the subjective intentions of his or her parents.” It did not need
to decide whether the Pantelerises' subjective intent should be considered
because it would not change the outcome in this case under the deferential
standard of review. The district court explicitly found that even if it were to
consider the subjective intent of the parents, “the evidence submitted as to
the intent of the parents favors [Mr. Panteleris's] version that the parties
intended to stay in Ohio for one year.” Just as the district court's factual
finding of the children's habitual residence was not clear error, Ms. Panteleris did not show that the
district court's implicit credibility determination favoring Mr. Panteleris's
version was clear error in light of all the evidence.
