USA – FEDERAL – ISAAC – 1998 (Return Denied) (Habitual residence) (Age of maturity) ISAAC v RICE. The father took the children to Israel and hid them from the mother for eleven years. The father’s mother intervened, after eleven years, and told the mother that the father was in Israel and arranged for the mother to talk with her children by phone. The mother went to Israel and brought the son back to the US. The father applied for his return, the petition for return was denied. The court found that the habitual residence was the US and the child had reached an age of maturity.
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Isaac v Rice (N.D.Miss. 1998)Civil Action No 1:97CV353
9 International Abduction [USA 1998]
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DANIEL ISAAC Petitioner
V. Civil Action No. 1:97CV353
SHERRY BENNETT RICE Respondent
ORDER DENYING PETITION
Pursuant to a memorandum opinion issued this day, the
court denies the “Petition for the Return of Child to the
Petitioner.”
THEREFORE, it is hereby ORDERED that:
(1) the “Petition for the Return of Child to the
Petitioner” is DENIED;
(2) the property bond executed by the Respondent and
Frank Rice in the amount of $10,000 is RELEASED;
and
(3) this case is CLOSED.
All memoranda and other materials considered by the
court in ruling on this petition are hereby incorporated
into and made a part of the record in this action.
SO ORDERED, this the 28th day of July 1998.
/s/ Glen H. Davidson
____________________________
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DANIEL ISAAC Petitioner
V. Civil Action No. 1:97CV353
SHERRY BENNETT RICE Respondent
MEMORANDUM OPINION
001 Presently before the court is the “Petition for the
Return of Child to the Petitioner.” After carefully
considering the petition, the submissions of the parties,
and the hearing evidence gathered in this action, the court
finds that the petition should be denied.
I. Findings of Fact
002 Benjamin Isaac is fifteen years old. His natural
parents arc the Petitioner Daniel Isaac and the Respondent
Sherry Rice. Sherry gave birth to Benjamin on April 17,
1983. Daniel and Sherry divorced on February 28, 1986, by
decree of the Superior Court of California, County of San
Bernardino, Central District. In the decree, Daniel and
Sherry were awarded joint legal custody of Benjamin, Daniel
was awarded sole physical custody of Benjamin, and Sherry
was awarded reasonable visitation rights,
003 Sometime in April of 1986. Daniel traveled to Israel.
With him Daniel took Benjamin, as well as Elisheva Kara
Isaac, who is Daniel and Sherry’s other child born March 4,
1981. Daniel did not take the children to Israel with
Sherry’s consent. Indeed, he did so without Sherry’s
knowledge. Sherry discovered the children were missing
sometime later, and for the next eleven years she searched
unsuccessfully for them with the assistance of the Federal
Bureau of Investigation.
004 On or about February 28, 1997, Daniel’s mother visited
Sherry in Iuka, Mississippi, where Sherry had moved and now
resides with her new husband Frank Rice. Daniel’s mother
informed Sherry that Benjamin and Elisheva were living with
Daniel in Israel. Daniel’s mother arranged for Sherry to
speak with her children by telephone. Thereafter Sherry and
Benjamin talked by telephone almost daily for approximately
two months.
005 In late April or early May of 1997, Sherry visited
Israel. Upon her arrival there, Sherry asked Benjamin over
the telephone if he wished to move to the United States with
her. Benjamin told her that he did, and he took a taxi to
her hotel. Sherry took Benjamin to the United States embassy
in Israel to obtain a passport for Benjamin and then flew
her son to the United States. Now Sherry provides a home for
Benjamin in Iuka, Mississippi. Since arriving in the United
States, Benjamin has successfully completed the eighth grade
at Iuka Middle School.
006 On October 31, 1997, Daniel filed a petition in this
court entitled “Petition for the Return of Child to the
Petitioner.” On November 5, 1997, the court conducted a
hearing regarding the temporary location of Benjamin pending
a final adjudication of the petition. Following that
hearing, the court held that Benjamin shall be allowed to
stay home with Sherry until such final adjudication. On July
23, 1998, the court conducted another hearing, this time on
the merits of the “Petition for the Return of Child to the
Petitioner.”
II Conclusions of Law
007 Daniel has petitioned the court for the return of
Benjamin to Israel pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction, 51 Fed. Reg.
10,494 (1986) (hereinafter “the Convention”), as implemented
in the United States by the International Child Abduction
Remedies Act, 42 U.S.C. 11601-11610 (1994), (hereinafter
“the Act”). The object of the Convention is “to secure the
prompt return of children wrongfully removed to or retained
in any Contracting State; and to ensure that rights of
custody and of access under the law of one Contracting
States an effectively respected in the other Contracting
States.” The Convention, art 1 (emphasis added).
The removal or the retention of a child is to be
considered 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.
008 The Convention, art. 3 (emphasis added) “No definition
of ‘habitual residence’ has ever been included in a Hague
Convention. This has been a matter of deliberate policy,
the aim being to leave the notion free from technical rules,
which can produce rigidity and inconsistencies as between
legal systems.” Walton v. Walton, 925 F.Supp, 453, 457
(S.D. Miss. 1996) (quoting Re Bates No. CA122.89 at 9-10,
High Court of Justice, Fam. Div’n Ct. Royal Court of
Justice, United Kingdom (1989)). However, the Sixth Circuit
has provided an oft-quoted discussion of “habitual
residence,” as follows:
The Convention does not define “habitual
residence.” . . . The British courts have
provided the most complete analysis. In Re Bates,
the High Court of Justice (of the United Kingdom)
concluded that there is no real distinction
between ordinary residence and habitual residence.
Id. at 10, The court also added a word of caution:
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 pre-suppositions.
Id. (quoting Dicey & Morris, The Conflicts of Laws
166 (11th ed.)). We agree that habitual residence
must not be confused with domicile. To determine
the habitual residence, the court must focus on
the child, not the parents, and examine past
experience, not future intentions.
Friedrich v Friedrich 983 F.2d 1396, 1400-01 (6th Cir. 1993)
(citations partially omitted). Important to the case at
bar, the Sixth Circuit added that “habitual residence can be
‘altered’ only by a change in geography and the passage of
time, not by changes in parental affection and
responsibility. The change in geography must occur before
[a] questionable removal . . . ” Id. at 1402.
009 Following the Sixth Circuit in Friedrich, as well as
the High Court of Justice of the United Kingdom in Re Bates,
the Third Circuit analyzed the phrase “habitual residence”
as follows:
[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 [the
child’s habitual residence immediately prior to
his retention in the United States by [his mother]
Mrs. Feder. [The child] 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, [the child]
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 [the child’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
couples 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 [the child]’s habitual residence.
Feder v Evans-Feder 63 F.2d 217, 224 (3d Cir. 1995)
(emphases added).
010 These cases indicate that a court analyzing whether a
country is a Child’s habitual residence should consider,
inter alia, the shared intentions of the parents regarding
the child’s presence in that country. See Zucker v.
Andrews, Civil Action No. 97-12099-RCL. 1998 WL, 169506, at
*4 (D.Mass, April 10, 1998) (considering point of view of
child and “shared intentions of the parents”). Here, Daniel
and Sherry did not share intentions regarding Benjamin’s
presence in Israel. Daniel moved Benjamin to Israel in 1986
without Sherry’s knowledge or consent. At no point during
the years Benjamin lived in Israel did Sherry intend for him
to live there. In fact, Sherry did not even know Benjamin
was living in Israel until 1997.
011 This court finds that it would render the Convention
meaningless to determine that Daniel altered Benjamin’s
habitual residence by removing him from California in 1986
without Sherry’s knowledge or consent. As the Sixth Circuit
explained in Friedrich, such a determination “would be an
open invitation for all parents who abduct their children to
characterize their wrongful removals as alterations of
habitual residence.” Friedrich 983 F.2d at 1402 (If we were
to determine that by removing Thomas from his habitual
residence without Mr. Friedrich’s knowledge or consent Mrs.
Friedrich ‘altered’ Thomas’s habitual residence, we would
render the Convention, meaningless.”). To be sure, Benjamin
did live in Israel approximately eleven years, which is a
long time easily sufficient for “acclimatization and … a
degree of settled purpose from the child’s perspective.” See
Feder, 63 F.2d at 224. However, it would be a technical and
restrictive reading of the “habitual residence” requirement
for a court always to look solely at a child’s perspective
regarding a country, much less the number of years the child
spends in that country, in determining the child’s habitual
residence, especially where one of the parents carried the
child to that country without the other parent’s knowledge
or consent. See Zucker at *2. (“Courts should not interpret
the term technically or restrictively.”) (citing Rydder v.
Rydder 49 F3d 369, 373 (8th Cir. 1995)), In sum, the
Petitioner has failed to prove that Israel is Benjamin’s
habitual residence. Therefore, the court shall deny the
“Petition for the Return of Child to the Petitioner.”
012 Even if the Petitioner could meet his burden of proof
regarding the child’s habitual residence, this court finds
that the Respondent has successfully proved an exception
under the Convention. The Convention provides in pertinent
part, “The judicial or administrative authority may also
refuse to order the return of the child if it finds that the
child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take
account of its views.” The Convention, art. 13, sec also 42
U.S.C. 11603(c)(2) (providing exception must be proved by
preponderance of evidence). Of course, in less than nine
months, Benjamin will turn sixteen, at which time the
Convention no longer applies to him. See the Convention,
art. 4. Therefore, the court notes that the effect of the
exception is to avoid unsettling Benjamin during these
remaining nine months. The court also notes that when
Benjamin stated his views in chambers to the court, he did
not “reject” his father. Benjamin even told Dr. Collin
Billingsley, a child psychologist who testified at the
hearing on July 23, 1998, that Benjamin is not “rejecting”
his father by choosing not to return to Israel right now.
Benjamin simply chooses not to return to Israel as the
petition proposes because he wants to get to know the
members of his family in the United States better. Benjamin
further favors living in a family environment with his
mother and stepfather in the United States rather than in
the boarding school he attended in Israel. Considering
Benjamin’s age and the testimony of Dr. Billingsley, who
stated that Benjamin has advanced cognitive maturity and the
social maturity expected of a boy his age, the court finds
that Benjamin is an intelligent, thoughtful boy who is of
sufficient age and maturity for the court to take account of
his views. The court further finds that there is no evidence
that anyone coerced him to state those views. Therefore,
the court shall not order the return of Benjamin to Israel
during the nine months Benjamin Is still subject to the
Convention.
Ill. Conclusion
013 The court shall deny the petition. The Petitioner
failed to prove that Israel is the child’s habitual
residence. Also, an exception to the Convention applies,
014 A separate order in accordance with this opinion shall
issue this day.
This the 28th day of July 1998
/s/ Glen H. Davidson
___________________________________
United States District Judge