USA – FEDERAL – FEDER – 1995 (1995) (Return ordered on appeal) FEDER v EVANS-FEDER. Court of Appeals reverses the lower court and finds that Australia was the habitual residence of the child.
Feder v Evans-Feder (3rd Cir. 1995)63 Fed.3d 217
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Edward M. Feder, Appellant
v
Melissa Ann Evans-Feder
No 94-2176; United States Court of Appeals, Third Circuit.
Argued 27 Jun 1995; Decided 08 Aug 1995; Rehearing and
Rehearing In Banc Denied 24 Aug 1995.
OPINION OF THE COURT [218]
MANSMANN, Circuit Judge.
In this case of first impression for this circuit, we have
before us a petition filed by one parent against the other
under the Hague Convention on the Civil Aspects of
International Child Abduction. Edward M. Feder asserts that
Melissa Ann Evans-Feder “wrongfully retained” their son,
Charles Evan Feder (“Evan”), in the United States and
requests that Evan be returned to him in Australia.
Concluding that the United States was Evan’s “habitual
residence”, Hague Convention, Article 3a, the district court
held that the retention was not wrongful and denied Mr.
Feder’s petition.
We, however, conclude that Australia was Evan’s habitual
residence and hold that Mrs. Feder’s FN1 retention of Evan
was wrongful within the meaning of the Convention. We will
therefore vacate the district court’s denial of Mr. Feder’s
petition and remand the case for a determination as to
whether the exception that Mrs. Feder raises to the
Convention’s general rule of return applies to preclude the
relief Mr. Feder seeks.
I
We begin by reviewing the evidence presented in this case.
The facts as found by the district court leading to Mrs.
Feder’s retention of Evan are not in dispute.
Mr. and Mrs. Feder are American citizens who met in 1987 in
Germany where each was working: she as an opera singer, and
he was an employee of Citibank. Evan, their only child, was
born in Germany on July 3, 1990.
In October, 1990, the family moved to Jenkintown,
Pennsylvania because Mr. Feder had accepted a management
position with CIGNA in Philadelphia. When CIGNA terminated
Mr. Feder’s employment in June of 1993, he began exploring
other employment opportunities, including a position with
the Commonwealth Bank of Australia. Although Mr. Feder
greeted the possibility of living and working in Australia
with enthusiasm, Mrs. Feder approached it with considerable
hesitation. Nonetheless, that August, the Feders traveled to
Australia to evaluate the opportunity, and while there,
toured Sydney, the city where Mr. Feder would work if he
were to accept the position with Commonwealth Bank. They
spoke with Americans who had moved to Australia, consulted
an accountant about the financial implications of living in
Australia and met with a relocation consultant and real
estate agents regarding housing and schools. Mrs. Feder also
spoke with a representative of the Australia Opera about
possible employment for herself.
In late August or early September of 1993, the Commonwealth
Bank offered Mr. Feder [219] the position of General Manager
of its Personal Banking Department. Finding the offer
satisfactory from a professional and financial standpoint,
Mr. Feder was prepared to accept it. Mrs. Feder, on the
other hand, was reluctant to move to Australia. She had deep
misgivings about the couple’s deteriorating marital
relationship; in October, 1993, she consulted with a
domestic relations attorney regarding her options, including
a divorce. Nevertheless, for both emotional and pragmatic
reasons, Mrs. Feder decided in favor of keeping the family
together and agreed to go to Australia, intending to work
toward salvaging her marriage.
Upon Mr. Feder’s acceptance of the bank’s offer, the Feders
listed their Jenkintown house for sale and sold numerous
household items that would not be of use in Australia.
Toward the end of October, 1993, Mr. Feder went to Australia
to begin work. Mrs. Feder remained behind with Evan to
oversee the sale of their house in Jenkintown; Mr. Feder, in
the meantime, looked for a house to buy in the Sydney area,
sending pictures and video tapes of houses to Mrs. Feder for
her consideration. In November of 1993, Mr. Feder purchased,
in both his and Mrs. Feder’s name, a 50% interest in a house
in St. Ives, New South Wales, as a “surprise birthday
present” for his wife. FN2
Mr. Feder returned to Pennsylvania on December 13, 1993.
Even though the Jenkintown house had not sold, Mr. Feder
arranged for a moving company to ship the family’s furniture
to Australia and bought airline tickets to Australia for
Mrs. Feder and Evan. The Feders left for Australia on
January 3, 1994, where they arrived on January 8, 1994,
after stopping briefly in California and Hawaii. Mrs. Feder
was ambivalent about the move; while she hoped her marriage
would be saved, she was not committed to remaining in
Australia.
Once in Australia, the Feders finalized the purchase of
their St. Ives house, but lived in a hotel and apartment for
about four and one-half months while Mrs. Feder supervised
extensive renovations to the house. Evan attended nursery
school three days a week and was enrolled to begin
kindergarten in February, 1995. Mrs. Feder applied to have
Evan admitted to a private school when he reached the fifth
grade, some seven years later. Although Evan is not an
Australian citizen and was not a permanent resident at the
time, Mrs. Feder represented to the contrary on the school
application.
In an effort to acclimate herself to Australia, Mrs. Feder
pursued the contacts she had made during the Feders’ August,
1993 trip and auditioned for the Australian Opera Company.
She accepted a role in one of the company’s performances set
for February, 1995, which was scheduled to begin rehearsals
in December, 1994.
Mr. Feder changed his driver’s license registration from
Pennsylvania to Australia before legally obligated to do so
and completed the paperwork necessary to obtain permanent
residency for the entire family; Mrs. Feder did not
surrender her Pennsylvania license nor submit to the
physical examination or sign the papers required of those
seeking permanent residency status. All of the Feders
obtained Australian Medicare cards, giving them access to
Australia’s health care system.
According to Mrs. Feder, her marriage worsened in Australia.
In the early spring of 1994, she and Mr. Feder discussed her
unhappiness in the marriage as well as her desire to return
to the United States. Mr. Feder attributed the couple’s
difficulties to the stress of his new job and requested that
Mrs. Feder stay in Australia, anticipating that their
problems would subside once the family moved into their new
home. Once again, for both personal and practical reasons,
Mrs. Feder agreed.
The family moved into the St. Ives home in May, 1994; the
Feders’ relationship, however, did not improve. Ultimately,
Mrs. Feder decided to leave her husband and return to the
United States with Evan. Believing that Mr. Feder would not
consent to her plans if her true intent were known, Mrs.
Feder told [220] Mr. Feder that she wanted to take Evan on a
visit to her parents in Waynesboro, Pennsylvania in July.
Mr. Feder made arrangements for the trip, buying two
round-trip tickets for departure to the United States on
June 29 and returning to Australia on August 2.
Mrs. Feder and Evan left Australia as scheduled and upon
their arrival in the United States stayed with her parents.
In July, 1994, Mr. Feder traveled to the United States on
business, and arranged to meet his wife and son at their
still unsold house in Jenkintown. When Mr. Feder went to the
house on July 20, 1994, he was served with a complaint that
Mrs. Feder had filed in the Court of Common Pleas of
Montgomery County, Pennsylvania on July 14, 1994, seeking a
divorce, property distribution, custody of Evan and
financial support. Shortly thereafter, Mr Feder returned to
Australia and Mrs. Feder and Evan moved into the Jenkintown
house.
In September, 1994, Mr. Feder commenced a proceeding in the
Family Court of Australia in Sydney, applying for, inter
alia, declarations under the Hague Convention on the Civil
Aspects of International Child Abduction. On October 4,
1994, the Judicial Registrar of the Family Court of
Australia heard argument and issued an opinion declaring
that Evan, Mr. Feder and Mrs. Feder were habitual residents
of Australia immediately prior to Mrs. Feder’s retention of
Evan in the United States; that Mr. Feder had joint rights
of custody of Evan under Australian law and was exercising
those rights at the time of Evan’s retention; and that Mrs.
Feder’s retention of Evan was wrongful within the meaning of
the Convention. FN3
On September 28, 1994, Mr. Feder commenced this action
against Mrs. Feder by filing a petition pursuant to the
Convention in the United States District Court for the
Eastern District of Pennsylvania, alleging that his parental
custody rights had been violated by Mrs. Feder’s “wrongful
removal and/or retention” FN4 of Evan and requesting the
child’s return. Mrs. Feder opposed the petition, denying
that Evan’s removal from Australia and retention in the
United States were wrongful and asserting that even if they
were, Evan cannot be returned to Australia because there is
a “grave risk” that his return will expose him to “physical
or psychological harm” or place him in an “intolerable
situation.”
On October 14, 1994, the district court conducted an
evidentiary hearing and on October 31, 1994, issued an
opinion and order denying Mr. Feder’s petition. Feder v
Evans-Feder (E.D.Pa. 1994) 866 F.Supp. 860. Concluding
that Mr. Feder failed to prove that “Evan’s habitual
residence in the United States as of January 8, 1994 had
changed to Australia by the time Mrs. Feder refused to
return him from Pennsylvania in the summer of 1994[,]” the
court held that “the habitual residence of Charles Evan
Feder is in the United States and that his mother has not
wrongfully retained him here.” Id. at 868.
The court’s holding was based on the view that although “Mr.
Feder may have considered and even established Australia as
his habitual residence by June of 1994 . . ., Mrs. Feder
assuredly did not[,]” as “she never developed a settled
purpose to remain [there].” Id. Because of its decision
regarding Evan’s habitual residence, the court did [221] not
reach the merits of Mrs. Feder’s claim that Evan’s return to
Australia would place him at risk. Id. This appeal followed.
II.
The Hague Convention on the Civil Aspects of International
Child Abduction reflects a universal concern about the harm
done to children by parental kidnapping and a strong desire
among the Contracting States to implement an effective
deterrent to such behavior. Hague Convention, Preamble; 42
U.S.C. 11601(a)(1) (4). Both the United States and
Australia are signatory nations. The United States Congress
implemented the Convention in the International Child
Abduction Remedies Ate, 42 U.S.C. 11601 et seq., expressly
recognizing its “international character” and the “need for
uniform international interpretation” of its provisions. 42
U.S.C. 11601(b)(2), (3)(B). In Australia, the Convention
was implemented by the Family Law (Child Abduction
Convention) Regulations made pursuant to s 111B of the
Family Law Act 1975.
The Convention’s approach to the phenomenon of international
child abduction is straightforward. It is designed to
restore the “factual” status quo which is unilaterally
altered when a parent abducts a child and aims to protect
the legal custody rights of the non-abducting parent. FN5
Pub. Notice 957, 51 Fed.Reg. 10494, 10505 (1986). Thus, the
cornerstone of the Convention is the mandated return of the
child to his or her circumstances prior to the abduction if
one parent’s removal of the child from or retention in a
Contracting State has violated the custody rights of the
other, and is, therefore, “wrongful”. Hague Convention,
Article 12. FN6 The general rule of return, however,
has exceptions. If, for example, “there is a grave risk that
[a child’s] return would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable situation[,]” return is not mandatory. Hague
Convention, Article 13(b).
Under Article 3 of the Convention, the removal or retention
of a child is “wrongful” where:
a It is in breach of rights of custody attributed to a
person, an institution or any other body, either
jointly or alone, under the law of the State in
which the child was habitually resident immediately
before the removal or retention; and
b at the time of removal or retention those rights
were actually exercised, either jointly or alone,
or would have been so exercised but for the removal
or retention. The rights of custody mentioned in
sub-paragraph a above, may arise in particular by
operation of law or by reason of a judicial or
administrative decision, or by reason of an
agreement having legal effect under the law of that
State.
Hague Convention, Article 3.
For purposes of the Convention, ” ‘rights of custody’ shall
include rights relating to the care of the person of the
child and, in particular, the right to determine the child’s
place of residence[.]” Hague Convention, Article 5a. The
conflict of laws rules as well as the internal law of the
child’s habitual residence apply in determining a parent’s
custody rights. Elisa Perez-Vera, Explanatory Report by
Elisa Perez-Vera, in 3 Actes et documents de la Quatorzieme
session 426, 445-46 (1982). FN7 If a child’s habitual
residence is a State which has more than one territorial
unit, the custody rights laws of the [222] territorial unit
apply. Hague Convention, Article 31. FN8
Pursuant to the International Child Abduction Remedies Act,
state and federal district courts have concurrent original
jurisdiction of actions arising under the Convention. 42
U.S.C. 11603(a). Any person seeking the return of a child
under the Convention may commence a civil action by filing a
petition in a court where the child is located. Id.
11603(b). The petitioner bears the burden of showing by a
preponderance of the evidence that the removal or retention
was wrongful under Article 3; the respondent must show by
clear and convincing evidence that one of Article 13’s
exceptions apply. Id 11603(e)(1)(A), (2)(A).
III
A
The question of Evan’s habitual residence immediately prior
to the retention is the threshold issue we must first
address. FN9 The Hague Convention on the Civil Aspects of
International Child Abduction does not provide a definition
for habitual residence; case law analyzing the term is now
developing. We are not, however, without guidance; the Court
of Appeals for the Sixth Circuit and the High Court of
Justice of the United Kingdom have considered the meaning of
“habitual residence” in a Hague Convention case.
In Friedrich v Friedrich (6th Cir. 1993) 983 F.2d 1396, a
German father filed a petition for the return of his son,
Thomas, alleging that Thomas’ mother, a citizen of the
United States and a member of the United States Army
stationed in Bad Aibling, Germany, had wrongfully removed
the child from Germany, where the family lived, to Ironton,
Ohio. A few days before Mrs. Friedrich left Germany with
Thomas, Mr. Friedrich had forced his wife and child from the
family’s apartment and Mrs. Friedrich had assumed the role
of Thomas’ primary caretaker. Emphasizing her caretaking
role and intentions to return eventually to the United
States with Thomas, Mrs. Friedrich argued that Thomas’
habitual residence had shifted from Germany to the United
States. The court, however, held that Germany was Thomas’
habitual residence. Focusing on the child, “look[ing] back
in time, not forward[,]” and finding any future intentions
that Mrs. Friedrich had harbored for Thomas to reside in the
United States irrelevant to its inquiry, the court concluded
that Thomas’ habitual residence could be “‘altered’ only by
a change in geography [which must occur before the
questionable removal] and the passage of time, not by
changes in parental affection and responsibility.” Id at
1401-1402 FN10
In re Bates, No. CA 122 89, High Court of Justice, Family
Div’n Ct. Royal Courts of Justice, United Kingdom (1989), a
mother petitioned the court under the Convention for the
return of her child, Tatjana, asserting that Tatjana had
been wrongfully removed from New York to London by the
child’s nanny at the father’s request. The father, born and
raised in England, was a successful musician who enjoyed
international fame; [223] the mother was a United States
Citizen who shared her husband’s life of world-wide public
engagements, rehearsals and recording sessions. The father
owned a home in London which served as the family’s “base”.
In the early part of 1989, the father’s band was about to
embark on a tour, starting with the United States, going
next to the Far East, and ending with a stay of indefinite
duration in London. The parents rented or borrowed a
friend’s New York apartment, having decided that Tatjana and
her mother would live in New York while the father was on
tour. Because Tatjana’s speech skills were deficient for a
two-and-a-half year old child, the mother consulted a New
York speech therapist with whom she discussed arrangements
for therapy sessions for Tatjana during their stay. Toward
the end of January, 1989, the family moved into the New York
apartment. After accompanying the father on various
engagements in British Columbia and the United States during
the first week of February, 1989, Tatjana, her mother and
her nanny returned to New York, even though her father only
reluctantly agreed to that course, preferring to have
Tatjana return with the nanny to the London home. Two days
after the father’s departure for the Far East, Tatjana’s
nanny telephoned him to report a heated argument with
Tatjana’s mother. The father authorized the nanny to take
Tatjana immediately to England, which she did.
In her petition, the mother alleged that Tatjana’s habitual
residence was New York and that her rights of parental
guardianship under New York law had been breached by the
child’s removal. In deciding the question of habitual
residence, the court initially observed that the concept is
fluid, fact-infused and largely free from technical rules
and presumptions, id slip op. at 9, FN11 and recognized
that although “[t]he residence whose habituality has to be
established is that of the child[,] [i]n the case of a child
as young a Tatjana, the conduct and the overtly stated
intentions and agreements of the parents during the period
preceding the act of abduction are bound to be important
factors and it would be unrealistic to exclude them”. Id.
slip op. at 10.
In its opinion, the court set forth a governing principle
for ascertaining the elements of habitual residence, which
we find instructive:
[T]here must be a degree of settled purpose. The
purpose may be one or there may be several. It may
be specific or general. All that the law requires
is that there is a settled purpose. That is not to
say that the propositus intends to stay where he is
indefinitely. Indeed his purpose while settled may
be for a limited period. Education, business or
profession, employment, health, family or merely
love of the place spring to mind as common reasons
for a choice of regular abode, and there may well
be many others. All that is necessary is that the
purpose of living where one does has a sufficient
degree of continuity to be properly described as
settled.
Id. (citation omitted).
Applying this principle to the facts, the court concluded
that because New York had acquired a “sufficient degree of
continuity to enable it properly to be described as
settled[,]” it was Tatjana’s habitual residence within the
meaning of Article 3 of the Convention:
The New York plan had acquired a more settled
purpose by the time that the parties were in
Seattle and Vancouver in the first few days of
February, and the father’s departure on his Far
East tour was immediately imminent. New York had by
then become the city in which the mother wanted to
stay and in which the father had reluctantly agreed
to allow her to stay with Tatjana, at least until
the band returned to London in April 1989. The
extent to which New York would feature in their
lives thereafter would depend very much on [224]
the decision which the parents then made about
their personal lives….
… I am satisfied that the arrangements that had
been agreed, however acrimoniously, before the
abduction date between the two parents for
Tatjana’s care, accommodation and therapy treatment
in New York during the period of three months or so
that would be due to elapse before the father’s
return to London amounted to a purpose with a
sufficient degree of continuity to enable it
properly to be described as settled.
Id slip op. at 9-1. FN12
Guided by the aims and spirit of the Convention and assisted
by the tenets enunciated in Friedrich v Friedrich and Re
Bates, we believe 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.
We further believe that a determination of whether any
particular place satisfies this standard must focus on the
child and consists of an analysis of the child’s
circumstances in that place and the parents’ present, shared
intentions regarding their child’s presence there.
When we apply our definition of habitual residence to the
facts, we conclude that Australia was Evan’s habitual
residence immediately prior to his retention in the United
States by Mrs. Feder. Evan moved, with his mother and
father, from Pennsylvania to Australia where he was to live
for at the very least the foreseeable future, and stayed in
Australia for close to six months, a significant period of
time for a four-year old child. In Australia, Evan attended
preschool and was enrolled in kindergarten for the upcoming
year, participating in one of the most central activities in
a child’s life. Although Mr. and Mrs. Feder viewed Australia
very differently, both agreed to move to that country and
live there with one another and their son, and did what
parents intent on making a new home for themselves and their
child do — they purchased and renovated a house, pursued
interests and employment, and arranged for Evan’s immediate
and long-term schooling. That Mrs. Feder did not intend to
remain in Australia permanently and believed that she would
leave if her marriage did not improve does not void the
couple’s settled purpose to live as a family in the place
where Mr. Feder had found work.
We thus disagree with the district court’s conclusion that
the United States, not Australia, was Evan’s habitual
residence and with its analysis of the issue in several
respects. In rejecting Australia, the court placed undue
emphasis on the fact that the majority of Evan’s years had
been spent in the United States, ignoring the approximately
six months that Evan lived in Australia immediately
preceding his return to the [225] United States and the
circumstances of his life in Australia. Moreover, the court
disregarded the present, shared intentions of both Mr. and
Mrs. Feder with regard to Evan’s stay in Australia, focusing
instead on Mrs. Feder exclusively and on the facts which
indicated that she did not intend to remain in Australia if
her marriage ended at some future date. FN13 Finally, we
find the court’s reliance on In re Application of Ponath
(D.Utah 1983) 829 F.Supp. 363 where the court found that a
child was habitually resident in the United States as
alleged by the respondent-mother, not in Germany as alleged
by the petitioner-father, misplaced. There, what began as a
voluntary visit to the father’s family in Germany by the
mother and child, both of whom resided in the United States,
turned into “coerced residence” by virtue of the verbal,
emotional and physical abuse that the father successfully
used to prevent his wife’s and child’s return to the United
States. Id at 368. Such is clearly not the case here.
We thus hold that Evan was habitually resident in Australia
immediately prior to his retention by Mrs. Feder in the
United States.
B
Our analysis, however, does not end here. Having concluded
that Evan was a habitual resident of Australia, we must now
determine whether his retention by Mrs. Feder was wrongful
under Article 3 of the Convention. This determination
involves two inquiries: whether the custody rights Mr. Feder
enjoyed under Australian law were breached by the retention
and whether Mr. Feder was exercising those rights at the
time. FN14
With regard to Mr. Feder’s custody rights under Australian
law, we recall that the Convention calls into play a State’s
choice of law rules as well as its internal custody rights
laws. See supra p. 221. We must, therefore, initially
determine what law Australia would apply in this case. Among
the documents included in the minutes of the discussions of
the Fourteenth Session of The Hague Conference are a
“Questionnaire on international child abduction by one
parent”, and the “Replies of the Governments to the
Questionnaire”. 3 Actes et documents de la Quatorzieme
session 9, 9-11, 61, 61-129 (1982) [“Convention Documents”].
Australia’s reply to questions 17 and 18, which ask
respectively “[w]hat are your choice-of-law rules in child
custody cases?” and “[a]re there any norms of constitutional
or other fundamental law in your country which would
override the usual choice-of-law rules in custody cases?”,
Convention Documents at 11, provides in pertinent part that
Australian courts apply Australia’s Family Law Act 1975 to
custody questions:
Under the Family Law Aet [1975], if the court has
jurisdiction FN15 to hear an application for
custody of, or access to, a child . . . it applies
the provisions of the Aet governing the
determination of custody and aeeess applications
regardless of the nationality or place of domicile
or habitual residenee of the child.
Convention Documents at 65. See also PETER E. NYGH, CONFLICT
OF LAWS IN AUSTRALIA, Ch. 27 (5th ed. 1991).
Thus, Mr. Feder’s custody rights are determined by
Australia’s Family Law Act 1975, of which we may “take
notice directly … without recourse to the specific
procedures for the proof of that law….” Hague Convention,
Article 14. FN16 Under the Act, in the absence of any
orders of court, each parent is a joint guardian and a joint
custodian of the child, FN17 and guardianship and custody
rights involve essentially the right to have and make
decisions concerning daily care and control of the child.
FN18 Family Law Act 1975 [226] s 63(E)(1) (2), (F)(1).
See also Hague Convention, Art. 5(a).
Turning next to the Convention’s requirement that Mr. Feder
was actually exercising the custody rights he had at the
time of the retention, Hague Convention, Article 3b, we
observe that Mrs. Feder conceded both in the district court
and before us on appeal that Mr. Feder had and was
exercising joint custody with respect to decisions
concerning their son. Accordingly, we hold that Mrs. Feder’s
unilateral decision to retain Evan in the United States was
wrongful within the meaning of Article 3 of the Convention.
IV
As we recognized, there are exceptions to the Hague
Convention on the Civil Aspects of International Child
Abduction general rule that a child’s return is mandatory
where he or she has been wrongfully retained by a parent.
Hague Convention, Article 13. Here, Mrs. Feder raised one
of the exceptions, asserting that Evan’s return would expose
him to a grave risk of psychological or physical harm or
otherwise place him in an intolerable situation. Hague
Convention, Art. 13(b). In light of its conclusion that Mr.
Feder failed to satisfy his burden of proof on the threshold
question, the district court did not reach this issue.
This case, therefore, must be remanded for the district
court to consider in the first instance whether as the
International Child Abduction Remedies Act requires, Mrs.
Feder can establish the exception by clear and convincing
evidence. 42 U.S.C. 11603(b). We note that the exceptions
are narrowly drawn, lest their application undermines the
express purposes of the Convention. Indeed, the courts
retain the discretion to order return even if one of the
exceptions is proven. Pub. Notice 957,. 51 Fed.Reg. 10494,
10509 (1986). If needed, the district court should
supplement the record on this issue, and as it so
appropriately did before, render its decision as
expeditiously as is possible since time is of the essence
given Evan’s young age.
We also note that in order to ameliorate any short-term harm
to the child, courts in the appropriate circumstances have
made return contingent upon “undertakings” from the
petitioning parent. Thomson v. Thomson, 119 D.L.R.4th 253
(Can.Sup. 1994). The district court, on its own initiative,
heard testimony about the undertakings Mr. Feder was willing
to make in the event that Evan returned to Australia and was
not accompanied by Mrs. Feder. Given its denial of Mr.
Feder’s petition, however, the court did not assess the need
for or the adequacy of those undertakings. If on remand the
court decides that Evan’s return is in order, but determines
that Mrs. Feder has shown that an unqualified return order
would be detrimental to Evan, the court should investigate
the adequacy of the undertakings from Mr. Feder to ensure
that Evan does not suffer shortterm harm. See Re O, 2 FLR
349 (U.K.Fam. 1994) (exacting appropriate undertakings is
legitimate in Convention cases).
Finally, Mr. Feder has requested fees and costs. Section
11607(b)(3) of the International Child Abduction Remedies
Act requires any court ordering the return of a child under
the Convention to award fees and costs to the petitioner
unless the respondent establishes that such order would be
“clearly inappropriate”. 42 U.S.C. 11607(b)(3). In the
event that Mr. Feder ultimately prevails on remand, the
district court should also consider and decide this issue.
V
For the foregoing reasons, we will vacate the district
court’s denial of Mr. Feder’s petition and remand the case
to the district court for further proceedings on the
exception [227] raised by Mrs. Feder and if necessary, on
the questions of undertakings by Mr. Feder and his request
for an award of fees and costs.
SAROKIN, Circuit Judge, dissenting.
I respectfully dissent, not necessarily because I disagree
with the majority’s analysis of the facts, but rather with
the standard by which these facts are reviewed. The issue
presented to the district court was the determination of a
four year-old boy’s “habitual residence,” either Jenkintown,
Pennsylvania, where he has lived almost his entire life and
where his mother now resides, or Sydney, Australia, where he
stayed for five months in 1994 and his father now resides.
Resolution of this issue determines where the child shall
reside pending conclusion of his parents’ custody dispute.
The district court held an evidentiary hearing and ruled
that the boy was habitually resident in Jenkintown. The
majority subjects this determination to plenary review and
vacates the order of the district court, which likely will
result in an order that the child be sent to Sydney where
his father lives. Although the majority’s opinion does not
and is not meant to resolve the ultimate issue of custody,
it has immediate impact on the child’s place of residence,
and ultimately and realistically it will impact upon the
final custody determination. Where a child resides and
develops ties awaiting a final decision on custody
invariably affects that decision. Therefore, we should
disturb the existing relationship and a finding of habitual
residency, even on a temporary basis, with great hesitancy
and only when the facts and law clearly mandate it. WMHFN 1
In my view the issue of habitual residence is essentially a
factual one, and the findings of the district court should
not be disturbed unless they are clearly erroneous. Because
I respectfully believe that the majority has established an
incorrect standard of review,
and because I would affirm the district court’s finding as
supported by the evidence and not clearly erroneous, I
dissent…
I
The U.S. Senate ratified the 1980 Hague Convention on Civil
Aspects of International Child Abduction (“the Convention”)
and enacted supplementary implementing legislation, the
International Child Abduction Remedies Act of 1988, 42
U.S.C.A. 11601 et seq. (West 1995) (“ICARA” or “the Act”),
only recently, and thus reported cases pursuant to the
Convention are relatively scarce. Although three appellate
decisions have reviewed ICARA petitions disposed of after an
evidentiary hearing, none has enunciated an. explicit
standard of review. See Prevot v. Prevot (In re Prevot)
(6th Cir. 1995) 59 F.3d 556; Rydder u Rydder (8th Cir.
1995) 49 F.3d 369; Friedrich u Friedrich (6th Cir. 1993) 983
F.2d 1396. Hence, ours is the first court of appeals in the
nation to analyze the appropriate standard of review for
determinations of “habitual residence,” and we must tread
carefully because of its immediate effect upon the residency
of the child involved.
In a footnote, the majority announces that because the
determination of habitual residence is a mixed question of
fact and law, historical or narrative facts will be reviewed
for clear error, and the “choice and interpretation of legal
precepts and its application of those precepts to the facts”
will be subjected to plenary review. Maj. Op. at 222, n. 9.
This is certainly the proper standard for mixed questions of
law and fact, but I cannot agree that “habitual residence”
presents such a question.
Preliminarily, I remark that federal and state FN(01)19
courts l have struggled over this precise issue, with some
making findings of fact and others conclusions of law
regarding a child’s habitual residence. Compare Wanninger v.
Wanninger (D.Mass. 1994) 850 F.Supp. 78, 81 (“the court
finds that the chil- [228] dren were ‘habitually resident’
in Germany”); Meredith u Meredith (D.Ariz. 1991) 759
F.Supp. 1432, 1436 (habitual residence is finding of fact);
David B. v Helen O. (Fam.Ct. 1995) 164 Misc.2d 566 [625
N.Y.S.2d 436, 438] (“the court’s finding with respect to the
habitual residence issue is dispositive”) & 441 n. 3;
Roszkowski u Roszkowska (Ch.Div. 1993) 644 A.2d 1150, 1157,
274 N.J.Super. 620, 634; Cohen v Cohen (Sup.Ct. 1993) 158
Misc.2d 1018, 1024 [602 N.Y.S.2d 994, 998] (habitual
residence is “factual determination”); with Prevot u Prevot
(In re Prevot) (W.D.Tenn. 1994) 855 F.Supp. 915, 920
(habitual residence is conclusion of law), rev’d on other
grounds, 59 F.3d 556 (6th Cir. 1995); In re Ponath (D.Utah
1993) 829 F.Supp. 363, 367; Slagenweit v. Slagenweit
(N.D.Iowa 1993) 841 F.Supp. 264, 269, appeal dismissed
without op., 43 F.3d 1476 (8th Cir. 1994); FaUs v Downie
(D.Mass. 1994) 871 F.Supp. 100, 102. Encompassing all, the
district court here wrote that it “finds and concludes that
the habitual residence of Charles Evan Feder is in the
United States.” Feder v Evans-Feder (E.D.Pa. 1994) 866
F.Supp. 860, 868 (emphasis added). FN(02)20
First, “habitual residence” is not defined in either the
Convention or the Act, and consequently one must look to the
legislative and negotiating history. Unfortunately, neither
the legislative history of the Act nor the U.S. Department
of State legal analysis submitted to the Senate by President
Reagan during ratification reveal the proper standard of
review. See H. Report No. 525, 100th Cong., 2d Sess., 1988
U.S.C.CAN. 386, 392-96; U.S. Department of State, Legal
Analysis, Hague. International Child Abduction Convention
(“Legal Analysis”), 51 Fed.Reg. at 10504.
The term is discussed in one document, however, that reveals
its meaning to the Convention. According to the U.S.
Department of State, the report by the official Hague
Conference Reporter for the Convention is “recognized by the
Conference as the official history and commentary on the
Convention.” Legal Analysis, 51 Fed.Reg. at 10503. This
“official history and commentary” explains:
‘habitual residence’ … is, in fact, a familiar
notion of the Hague Conference, where it is
understood as a purely factual concept, to be
differentiated especially from that of the
‘domicile.’
Elisa Perez-Vera, “Report of the Special Commission,”
Conference de La Haye de droit international prive: Actes et
documents de la Quatorzieme session, Vol. III, Child
Abduction, 1160 at 189 (emphasis added). Examination of a
treaty’s negotiating history is appropriate where the plain
language itself is unclear. See Sale v. Haitian Ctrs.
Council (1993) — U.S. — [113 S.Ct. 2549, 2565-67, 125
L.Ed.2d 128]. In this regard, analysis of negotiating
history is akin to consideration of legislative history in a
case of statutory construction. Accordingly, the official
history’s characterization of habitual residence as “a
purely factual concept” is powerful evidence that its
drafters intended a determination of habitual residence to
be one of fact, not of law.
Second, the jurisprudence of habitual residence has
generally reflected the fact-bound nature of the inquiry.
The Sixth and Eighth Circuits have approved a British
construction of the term:
It is greatly to be hoped that the courts will
resist the temptation to develop detailed and
restrictive rules as to habitual residence, which
might make it as technical a term of art as common
law domicile. The facts and circumstances of each
case should continue to be assessed without resort
to presumptions or presuppositions.
In re Bates, No. CA 122-89, slip op., High Court of Justice,
Family Div’n Ct. Royal Courts of Justice, United Kingdom
(1989), at 9 (quoting Dicey and Morris, The Conflict of
Laws, at 166); Rydder, 49 F.3d at 373; Friedrich, 983 F.2d
at 1401. See also Ponath, 829 F.Supp. at 365. “The intent is
for the concept [habitual residence] to remain fluid and
fact based, without becoming rigid.” [229] Levesque v.
Levesque, 816 F.Supp. 662, 666 (D.Kan.1993). Even the Bates
decision, treated by the majority as authoritative, referred
to a “finding of wrongful removal,” Bates, slip op. at 9,
which of course depends on a determination of habitual
residence. Such descriptions are consistent with my
conviction that habitual residence is a factual finding.
Third, very recently the Sixth Circuit has characterized the
question of whether a parent is exercising his or her
custodial rights as a “finding.” Prevot, 59 F.3d at 560, n.
4. The actual exercise of custodial rights, like “habitual
residence,” is an element of a petitioner’s proof that a
removal or retention was “wrongful.” See Convention, Article
3; 42 U.S.C.A. 11603(e)(1). I agree with the Sixth Circuit
and perceive absolutely no reason to treat a determination
of habitual residence, as required in Article 3(a), as a
legal conclusion, but that of the actual exercise of
custodial rights, as required in Article 3(b), as a factual
finding.
Fourth, the Act’s use of the phrase “establish by a
preponderance of the evidence” to describe a petitioner’s
burden of proving wrongful removal from a place of habitual
residence signals that habitual residence is a fact
question. 42 U.S.C.A. 11603(e)(1).
Finally, the majority’s treatment of habitual residence
confuses “ultimate facts” with “mixed questions of fact and
law.” While an ultimate fact may depend on subsidiary
findings of fact, it is nonetheless a factual finding and
must be reviewed for clear error. Pullman-Standard, Div. of
Pullman, Ine. v. Swint (1982) 456 U.S. 273, 287 [102 S.Ct.
1781, 1789, 72 L.Ed.2d 66]. For example, the following
determinations have been characterized as “ultimate facts”
and reviewed for clear error: intentional discrimination,
Pullman-Standard, 456 U.S. at 287 [102 S.Ct. at 1789]; “more
than minimal planning,” United States v Cianscewski (3d Cir.
1990) 894 F.2d 74, 83; “equivalence” in a patent dispute
Interdynamics, Inc. v. Wolf (3d Cir. 1982) 698 F.2d 157 176
n. 36; and “a bankruptcy court’s ultimate finding of fact,”
Bittner v Borne Chemical Co. (3d Cir. 1982) 691 F.2d 134,
138. To scrutinize ultimate facts by a standard less
deferential than that of clear error is “untenable,”
American Home Products Corp. v. Barr Laboratories, Inc. (3d
Cir. 1987) 834 F.2d 368, 371 and to the extent our circuit
once reviewed ultimate facts in part for legal mistake, “we
were wrong.” Martin v. Cooper Electric Supply Co. (3d
Cir.1991) 940 F.2d 896, 908 n. 11, cert. denied, 503 U.S.
936 (1992) 112 S.Ct. 1473, 117 L.Ed.2d 617]. Indeed, if the
question of Evan’s habitual residence had been submitted to
a jury rather than a judge, I would doubt that we would set
aside the same decision on the grounds that it was mandated
as a matter of law.
Accordingly, I conclude that the determination of a child’s
habitual residence is best described as a factual finding. I
would review the district court’s ruling on Evan’s habitual
residence for clear error, see Fed. R.Civ.P. 52(a), and I
would not disturb it unless left with the definite and firm
conviction that a mistake had been committed. Oberti u
Board of Educ (3d Cir. 1993) 995 F.2d 1204, 1220. Even if I
“might have come to different factual conclusions based on
this record, [I] defer to the findings of the district court
unless [I am] convinced that the record cannot support those
findings.” Id.
II
I agree with the majority opinion 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.” Maj. Op. at 224. Yet, “the desires and actions
of the parents cannot be ignored by the court in making that
determination when the child was at the time of removal or
retention an infant.” Ponath, 829 F.Supp. at 367. Having
reviewed the findings of the district court, however, I am
not left with a “definite and firm conviction” that a
mistake has been committed. Oberti, 995 F.2d at 1220.
Therefore, I would affirm.
[230] I believe the habitual residence determination
requires a weighing of those facts which indicate a settled
purpose to reside in one location or another, as well as
those which suggest close ties to a particular community.
As of January 8, 1994, the parties agreed that the scales
tipped decisively in favor of Jenkintown as Evan’s habitual
residence. Maj. Op. at 220; Feder, 866 F.Supp. at 865. Yet
as of this date, a number of the facts relied on by the
majority had already been placed on the Sydney side of the
balance. As of that date: (a) Mr. Feder had a settled
purpose to live in Australia; (b) Mrs. Feder had agreed to
go to Australia, with Evan but “without any commitment to
remain there,” Feder, 866 F.Supp. at 863; (e) Mr. Feder had
purchased a home in Australia for the family; (d) the couple
had put their Jenkintown home on the market; (e) the couple
had sold many of their household possessions in
Pennsylvania; and (f) Mrs. Feder and Evan had temporary
immigration status to reside in Australia. Nonetheless, the
parties agreed that these factors, alone or in sum, did not
make Australia Evan’s habitual residence, absent some
dispositive subsequent conduct.
The question thus becomes, what if anything occurred in the
subsequent five and one-half months sufficient to alter the
balance? The district court carefully canvassed the evidence
introduced at the hearing and determined that it was
insufficient to alter the balance that existed before Mrs.
Feder and Evan traveled to Sydney. The court observed that
Mrs. Feder had obtained one day of employment, a single
performance with the Sydney Opera, scheduled for thirteen
months after her arrival; Evan attended pre-school
part-time, enrolled in kindergarten for the upcoming year,
and was placed on a waiting list for a private school; and
Mrs. Feder and Evan had obtained Australian Medicare cards.
Feder, 866 F.Supp. at 864. On the other hand, unlike her
husband, Mrs. Feder declined to surrender her Pennsylvania
driver’s license or to obtain an Australian one.’ Nor did
she or Evan submit to the physical examination necessary to
acquire permanent immigration status in Sydney, or sign any
papers in support of the application Mr. Feder filed on
their behalf Id. These events, all comparatively trivial, do
not persuade me that the district court committed clear
error. Rather, they seem to confirm that Mr. Feder always
had a settled purpose to reside in Sydney, but Mrs. Feder
arrived without a settled purpose to remain, and departed
never having developed one. Nor do these events indicate
anything about Evan’s own intentions. WMHFN 2
I agree with the majority that there is a temporal element
to this inquiry. For example, two weeks in Australia
certainly would not suffice for Evan to establish a habitual
residence there, and after two years his mother would have
been hard put to argue that Jenkintown remained his home.
Moreover, given that “habitual residence” should not be
over-encumbered with legal rules, I would not establish a
bright-line time period necessary to establish residence.
Yet I cannot conclude that five and one-half months is so
obviously sufficient that I would reverse the district
court’s finding as clearly erroneous. In this regard, I note
that Article 12 of the Convention directs that even when a
child has been wrongfully removed from his habitual
residence, if the child has spent a year (prior to the
filing of the petition) in a new location, return may be
thwarted by a demonstration that the child “is now settled.”
Thus in another context, the Convention recognizes that at
least one year must pass before a child can be sufficiently
“settled” so as to affect the location where custody will be
adjudicated.
In addition, as of the date of the alleged wrongful removal,
Evan had lived far longer in Jenkintown than in Sydney.
While it may be that Mr. Feder had, and Mrs. Feder did not
have, a settled purpose to reside in Sydney, it is
significant that Evan stayed with his mother in Jenkintown
until she left, traveling to Sydney only when she did. This
indicates some correspondence between the purposes of mother
and child. While it is virtually impossible to ascertain the
settled purpose of such a young child, it is more closely
aligned here to that of the mother. [231] That is not meant
to indicate that the mother’s purpose should necessarily
predominate, hut rather that the facts of this matter
support that conclusion.
Finally, we must be mindful of the consequence of a reversal
here, since it will likely result in an order for the
child’s return to Australia, unless Mrs. Feder can prove by
clear and convincing evidence that Evan would be at “grave
risk” were he returned to Sydney. Absent such proof, the
child will be taken from his mother’s home in Jenkintown,
where he has spent virtually all of his years, in contrast
to the time spent with his father in Australia. Since this
ruling is temporary pending a custody adjudication, he may
again be ordered back to the United States. Although the
best interests of the child will be determined ultimately,
they should not be ignored in these preliminary proceedings.
Such tugging and shuttling can only be detrimental. Thus,
absent clearly erroneous fact-finding by the district court,
its ruling should remain undisturbed.
Accordingly, I would affirm the district court’s finding
that Evan’s habitual residence is the United States. FN(03)
21
——————–
1. Although the caption reads “Evans-Feder”, Melissa Ann
Evans-Feder refers to herself in her brief as “Mrs.
Feder” and we adopt that designation.
2. The Commonwealth Bank purchased the remaining 50%
interest and financed the Feder’s interest in the
house.
3. Mrs. Feder was served with the Judicial Registrar’s
opinion on October 7, 1994. Mrs. Feder did not enter an
appearance in the Australian court, although the record
indicates that she received notice of the proceeding.
In his brief, Mr. Feder informs us that the Australian
action is pending and includes a request on his part
for custody of Evan.
In the district court, Mr. Feder requested that “full
faith and credit” be extended to the Judicial
Registrar’s declaration that Evan was a habitual
resident of Australia. The court refused Mr. Feder’s
request. Feder v. Evans-Feder, 866 F.Supp. 860, 866
(E.D.Pa. 1994). This issue was not raised on appeal.
4. According to the Hague International Child Abduction
Convention; Text and Legal Analysis found at Pub.Notice
957, 51 Fed.Reg. 10494 (1986), “‘wrongful removal’
refers to the taking of a child from the person who was
actually exercising custody of the child. ‘Wrongful
retention’ refers to the act of keeping the child
without consent of the person who was actually
exercising custody.” Id. at 10503. Since Mr. Feder
consented to Mrs. Feder’s removing Evan from Australia
to the United States, but did not consent to the
child’s being retained there, we view this case as
involving an alleged “wrongful retention”
5. The Hague Convention on the Civil Aspects of
International Child Abduction does not settle custody
disputes, stating that “[a] decision under this
Convention concerning the return of the child shall not
be taken to be a determination on the merits of any
custody issue.” Hague Convention, Article 19.
6. Article 12 provides that “[w]here a child has been
wrongfully removed or retained in terms of Article 3 .
. . the authority concerned shall order the return of
the child forthwith.” Hague Convention, Article 12. The
Convention does not require that a child be returned to
his or her habitual residence, although in the classic
abduction case, this occurs. Where a prevailing party
has moved from the child’s habitual residence, the
child is returned to that party, wherever he or she may
be. Pub.Notice 957, 51 Fed.Reg. at 10511.
7. Elisa Perez-Vera was the official Hague Conference
reporter. Her Explanatory Report is recognized as the
official history and commentary on the Convention.
Pub.Notice 957, 51 Fed.Reg. at 10503.
8. In the United States, the law in force in the state in
which the child was habitually resident (as possibly
pre-empted by the International Child Abduction
Remedies Act, 42 U.S.C. 11601 et seq.) would apply to
determine whether a removal or retention was wrongful.
Pub.Notice 957, 51 Fed.Reg. at 10506.
9. Unlike the dissent, we believe that the determination
of habitual residence is not purely factual, but
requires the application of a legal standard, which
defines the concept of habitual residence, to
historical and narrative facts. It is, therefore, a
conclusion of law or at least a determination of a
mixed question of law and fact. Universal Minerals,
Inc. v. C.A. Hughes & Co. (3d Cir.1981) 669 F.2d
98, 102-03. On such questions we employ a mixed
standard of review, accepting the district court’s
historical or narrative facts unless they are clearly
erroneous, but exercising plenary review of the court’s
choice of and interpretation of legal precepts and its
application of those precepts to the facts. Id.
10. Having determined that Germany was Thomas’ habitual
residence, the Court of Appeals remanded the case to
the district court with instructions to determine
whether any of Mr. Friedrich’s actions had terminated
his custody rights under German law and whether any of
the exceptions to the Hague Convention on the Civil
Aspects of International Child Abduction general rule
of return applied. Friedrich v. Friedrich (6th Cir.
1993) 983 F.2d 1396, 1403.
11. In Rydder v. Rydder (8th Cir. 1995) 49 F.3d 369 , a
case arising under the Convention, th Court of Appeals
for the Eighth Circuit was guided by this observation
from Re Bates, No. CA 122-89, High Court of Justice,
Family Div’n Ct Royal Courts of Justice, United Kingdom
(1989 in affirming the district court’s treatment of
the children’s Swedish residence registration as a
legal fiction of little consequence to the
determination of their habitual residence. Rydder, 49
F.3d at 373.
12. The court then determined that the mother’s rights of
parental guardianship under New York law had been
breached and that Tatjana’s return would not expose her
to a grave risk of physical or psychological harm, as
the father asserted. Accordingly, the court granted the
mother’s petition. Re Bates, No. CA 122-89, slip op.
at 11.
13. For essentially the same reasons, we disagree with the
dissent’s view that the United States was Evan’s
habitual residence immediately prior to the retention.
As the country of Evan’s relatively distant past and
Mrs. Feder’s unilaterally chosen future, it does not
coincide with our understanding of habitual residence
nor satisfy the definition we have enunciated.
14. We may decide both of these questions since the first
is a question of law and the second involves an
admission on Mrs. Feder’s part. See infra p. 226.
15. In reply to question 9 of the “Questionnaire on
international child abduction by one parent”, “[w]hat
bases do your courts use for assuming jurisdiction in
child custody cases?”, 3 Actes et documents de la
Quatorzieme session 9, 10 (1982) [“Convention
Documents”], Australia stated that under the Family Law
Act 1975, such proceedings may be instituted if either
party to the marriage is an Australian citizen or
either party to, or the child of, the marriage is
present in Australia. Convention Documents at 64.
16. We observe that the Australian court to which Mr. Feder
made application for declarations under the Hague
Convention applied Australia’s Family Law Act 1975 to
determine whether Mrs. Feder’s retention of Evan was
wrongful. See supra p. 220. The court’s opinion,
however, does not indicate whether a conflict of laws
analysis was done.
17. Section 63(F)(I) states:
Subject to any order of a court for the time being in
force (whether or not made under this Act and whether
made before or after the commencement of this section)
each of the parents of a child who has not attained 18
years of age is a guardian of the child and the parents
have the joint custody of the child. Family Law Act
1975 s 63(F)(1).
18. Subsections 63E(I) and (2) provide:
63E(I) [Guardianship of child] A person who is the
guardian of a child under this Act has responsibility
for the long-term welfare of the child and has, in
relation to the child, all the powers, rights and
duties that are, apart from this Act, vested by law or
custom in the guardian of a child, other than:
(a) the right to have the daily care and control of the
child; and (b) the right and responsibility to make
decisions concerning the daily care and control of the
child.
63E(2) [Custody of child] A person who has or is
granted custody of a child under this Act has:
(a) the right to have daily care and control Of the
child; and
(b) the right and responsibility to make decisions
concerning the daily care and control of the child.
Family Law Act 1975 s 63(E)(1), (2).
19. 1. Under the Act, state and federal courts have
concurrent jurisdiction over ICARA petitions. 42
U.S.C.A. Sec 11603(a).
20. 2. I thus think the majority errs by characterizing the
district court as “concluding that the United States
was Evan’s ‘habitual residence.'” Maj. Op. at 218
(emphasis added).
21. 3. I add a note to endorse the majority’s suggestion
that, in the event the district court determines a
return order would pose no “grave risk” to Evan but
would nonetheless be detrimental to him, the court may
evaluate the adequacy of undertakings offered by Mr.
Feder. Maj. Op. at 226. The “permissible involvement”
of a court deciding a petition “extends beyond bluntly
saying that there shall be a return or that there shall
not. The court can influence the outcome by making
clear that without undertakings, or with only the
undertakings that are offered. Article 13(b) will
apply, but that further or other undertakings are a
prerequisite for a child’s return.” Re O, 2 FLR 349
(U.K.Fam.Div 1994). The district court may, for
example, require Mr. Feder to pay for mother and child
to fly back to Sydney, permit them to live at the
former matrimonial home while he lives elsewhere, and
provide them with a car and living expenses. Id. The
district court may also need to investigate whether
undertakings offered in the United States would be
binding and enforceable in Australia, if their
implementation is necessary to avoid “grave risk” to
the child returned. See id.
Footnotes by Wm. M. Hilton
——————–
WMHFN 1: The dissent seems to be making a case that if a
child is settled into an environment because of judicial
delay, the child should not be taken from that environment.
This in fact is contra to the intent of The Convention which
is to return the child to his or her “habitual residence”
promptly. The issue of judicial delay was discussed in
Gunsburg v Gunsburg (Israel 1995) Civil Appeal No. 5532/93,
stating: “As stated, the convention itself does not
recognize the length of the proceedings as being a defense.
The position of American case law in this matter is
unequivocal, and states that the length of proceedings is
irrelevant. See, for example, Rexford vs. Rexford (Alaska
1980) 631 P. 2d 475, 478; Plas vs. Superior Court (1984) 155
Cal.App. 3d 1008, 1015, [202 Cal.Rptr. 490, 494]; Bull vs.
Bull (Mich. App. 19881) 311 N.W. 2d 768, 744; Boyd vs. Boyd
(Tenn. App. 1983) 653 S.W. 2d 732, 738; Irving vs. lrving
(Tex. App. 1985) 682 S.W. 2d 718, 721.” See also The Effect
of Judicial Delay in International Child Abduction
Convention Proceedings; Published in American Journal of
Family Law, Vol. 9, No. 3, Fall 1995. 9 Am.J.Fam.L. 155
(1995).
WMHFN 2: The dissent seems to ignore the fact that the
mother deceived the father when she left Australia for
Pennsylvania for a “visit”. The dissent seems to agree that
one cannot obtain “habitual residence” by coercion (Ponath).
Why should he then object to this rule being applied to
deception?