(1998) (Return denied) (Habitual residence) MOZES v MOZES. The Court ruled that the children were habitual residences of the United States and do not have to be returned to Israel. The mother had taken the children to the US for an extended stay with the father’s permission.


Mozes and Mozes (DC California 1998)19 F.Supp.2d 1108
Civil No: CV 98-3636 RAP (MANx)
10 International Abduction [USA 1998]


) CASE NO CV 98-3636 RAP (MANx)
Petitioner, )
v. )
Respondent. )

This action came on for hearing before the Court, Honorable
Richard A. Paez, District Judge, presiding, and the issues
having been duly heard and a decision having been duly

It is Ordered and Adjudged
that the petition for return of children pursuant to the
Hague Convention be DISMISSED on the merits.

Dated at Los Angeles, California, this 11th day of August,

/s/ Richard A. Paez
Richard A. Paez
United States District Judge



) CASE NO CV 98-3636 RAP (MANx)
Petitioner, )
Respondent. )

<* page 1110>



001 Pending before the Court is a petition filed by Arnon
Mozes for the return of three of his children to Israel
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction (“the Convention”), Sec.. 23,
1981, 51 Fed. Reg. 10494, 10498-502, as implemented by the
United States in the International Child Abduction Remedies
Act (“ICARA”) , 42 U.S.C.  11601-11610. Petitioner alleges
that pursuant to the ICARA, his children have been
wrongfully retained in the United States by respondent and
must be returned to Israel. Respondent Michal Mozes, who is
petitioner’s wife and the mother of their children, contests
the applicability of the Convention, denies that the
children have been wrongfully retained and opposes the
petition to remove the children to Israel.

002 Based on the reasons articulated below, this Court
finds that the Mozes children — Chen, Guy and Keren — are
habitual residents of the United States. Therefore, the
protections of the Convention are not invoked, and they need
not be returned to Israel pursuant to the International
Child Abduction Remedies Act. The Petition for Return of
Children is therefore DENIED.


Procedural History

003 On April 17, 1998, respondent Michal Mozes filed an
action for marital dissolution in Los Angeles County
Superior Court, incident to which she was granted temporary
custody of the four children, subject to petitioner Arnon
Mozes’s right to reasonable visitation. On April 19, 1998,
petitioner was served with the petition for marital
dissolution. On May 11, 1998, petitioner filed his Petition
for Return of Children to Their Habitual Residence with this
Court. The Court held an evidentiary hearing on August 4-5,
1998, to determine the children’s habitual residence.


Factual Background

004 Petitioner Arnon Mozes and respondent Michal Mozes are
husband and wife. They <* page 1111> have four minor
children: a daughter, Hadas, FN1 age 14; a daughter, Chen,
age 9; a son Guy and a daughter Keren, both age 5.

005 Until April 1997, petitioner, respondent, and their
children all lived in Israel and had done so for their
entire lives. Mr. Mozes is the CEO of Yedioth Aharanoth,
Ltd,, and the Publisher of the Yedioth Aharanoth, the
largest circulating newspaper in Israel. According to Mr.
Mozes, Yedioth Aharanoth Ltd. and its related entities is
the largest media group in Israel. Ms. Mozes is the primary
caretaker of the children, and does not work outside the

006 It is undisputed that petitioner consented to
respondent’s request to spend fifteen months in Los Angeles,
California with their four children, as it was her life long
dream to do so. Such an experience would enable the children
to attend American schools, improve their English, expose
them to American culture and allow them to make new friends.

007 Respondent and the children left for Los Angeles in
April 1997, and were to return to Israel in July 1998,
Petitioner testified that he believed their stay was
temporary, and that they would be in Los Angeles for a total
of fifteen months.

008 Before Ms. Mozes and the children departed for the
United States, Arnon and Michal Mozes sold two of their
vehicles, and shipped many household items, clothing and the
children’s toys to Los Angeles. Once in Los Angeles,
respondent rented a home in Beverly Hills for twelve months
with an option for an additional three months ending on July
10, 1998. She purchased two automobiles, and leased another
pursuant to a three year lease contract, for use in Los
Angeles. In addition, she purchased necessary insurance and
immediately enrolled the children in school and
extra-curricular activities. Ms. Mozes, with her husband’s
encouragement and assistance, made contacts and obtained
recommendations to work in California for the company
helping to promote Israel’s 50th Anniversary Celebration.

009 While his family was in Los Angeles, petitioner was in
regular phone contact with them and visited in Los Angeles
several times between April 1997 and April 1998. During ouch
times, he assumed his role as husband and father and
entertained and greeted friends and acquaintances as their
host at the family’s residence in Beverly Hills. He openly
complimented Ms. Mozes and the children for how quickly and
successfully they had adjusted to America. Between April
1997 and April 1998, petitioner knowingly provided all
finances needed to support his wife and children in

010 According to respondent, the couple had marital
problems prior to her departure from Israel, and the
children’s and her stay in California was contemplated from
the outset to be of at least a year’s duration, and perhaps
longer. As evidence of this, she points out that in January
1997, she and Mr. Mozes leased the home they had built
together in Israel to another couple for a one-year period,
with an option to extend that lease for a second year. In
addition, respondent testified that petitioner personally
arranged for the children to follow her to Los Angeles on
April 23, 1997, as she had left earlier for Beverly Hills to
set up their new home. Petitioner paid all of the lease
payments on respondent’s new home in Beverly Hills, paid for
the automobiles she purchased and stayed at their home on
his visits to Los Angeles. At the hearing, Valerie Belsky, a
family friend in Los Angeles, testified that in
conversations with Mr. Mozes he seemingly assumed they would
stay another year, and mentioned this several times,

011 Respondent testified that in December 1997, while
visiting petitioner in Israel, she informed petitioner that
she and the children were “very happy” in California and
wanted to stay there permanently. According to respondent,
Mr. Mozes responded that she could stay there forever.
Petitioner allegedly told respondent to go ahead and make
plans to stay with the children in Beverly Hills for
another year, until July 1999.

012 Respondent further testified that on a visit to Israel
in January 1998 she made without the children, the couple
again spoke of respondent’s plans to remain in California
with <* page 1112> the children. At that time, petitioner
“confessed” that he had a girlfriend, and that he did not
object to respondent and the children staying in California.
He also allegedly stated that if his wife did remain in
California, he would move in with hie girlfriend.

013 Based on this conversation, respondent testified that
she leased another home in Beverly Hills for the period from
February 1, 1998 through July 31, 1999. Petitioner did not
object to the new lease, has since made all of the lease
payments on the newly leased home, and stayed there on his
April 1998 visit. Petitioner testified that he was told by
his wife that the lease could he terminated prior to July
31, 1999 with three months notice and that this is the only
reason he did not protest the lease of the second home.

014 According to respondent, on April 9, 1998, petitioner
told her he wanted a divorce, and asked her to sign a
financial agreement in which she would give up significant
property rights. He reportedly said that if she did not
agree to this financial agreement, he would fight to get her
and the children back to Israel. He allegedly repeated this
on several occasions.

015 On April 17, 1998, respondent filed an action for
marital dissolution in the Los Angeles County Superior
Court, incident to which she was granted temporary custody
of the four children, subject to Mr. Mozes’s right to
reasonable visitation. Respondent also obtained a temporary
restraining order enjoining Mr. Mozes from removing the
children from southern California. On April 19, 1998,
shortly before his return flight to Israel, petitioner was
served with the petition for marital dissolution and
temporary restraining order. Petitioner contends that in
commencing the action for custody and dissolution of
marriage on April 17, 1998, respondent, without the
knowledge or consent of petitioner, wrongfully retained the
minor children in Los Angeles. Respondent contends that
while she had intended eventually to return to Israel, the
children are now habitual residents of the United States
because they are settled into their lives in California, are
accustomed to and thriving in their new schools and
extra-curricular activities, and have many friends in Los



A. History, Purpose, and Jurisdiction of the Hague

016 The Hague Convention was adopted by the signatory
nations “to protect children internationally from the
harmful effects of their wrongful removal or retention and
to establish procedures to ensure their prompt return to the
State of their habitual residence.” The Hague Convention,
Preamble. Both Israel and the United States are signatory
nations. The United States ratified the Convention in 1988.
In the United States, the enabling legislation is codified
an the International Child Abduction Remedies Act (“ICARA”),
42 U.S.C. 11601 et seq. Pursuant to the ICARA, state and
federal district courts have concurrent original
jurisdiction over 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. at 

017 The purpose of the Convention is to preserve the
status quo and to deter parents from crossing international
boundaries in search of a more sympathetic court. See
Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993).
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 or retention
in a signatory state has violated the custody rights of the
other, and is, therefore, “wrongful.” See Feder v Feder, 63
F.3d 217, 221 (3rd Cir. 1995) (discussing Hague Convention,
Article 12).

018 The Convention 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. See Feder, 63 F.3d at 221
(citing Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1966)),
Under the Convention, a court may determine the merits of a
wrongful abduction case. The Convention, however, does not
settle custody disputes, explicitly <* page 1113> stating
that “[a] decision under this Convention concerning the
return of the child shall not be taken to he a determination
on the merits of any custody issue.” Hague Convention,
Article 19.

B. Wrongful Removal or Retention

019 Under the Convention and the ICARA, petitioner has the
burden of showing by a preponderance of the evidence that
the removal or retention was wrongful. 42 U.S.C. 
11603(e)(1). Under Article 3 of the Convention, the removal
or retention of a child is “wrongful” where:

1. 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

2. At the time of removal or retention actually
exercised, either jointly or alone, exercised but
for the removal or retention. those rights were or
would have been so (emphasis added) .

020 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

021 Thus, to demonstrate the removal or retention was
wrongful, as a threshold matter, Mr. Mozes must show that:
(1) Ms. Mozes removed the children from their habitual
residence; and (2) Mr. Mozes was exercising his right of
custody at the time of removal or retention. See Krishna v
Krishna 1997 WL 195439 *2 (N.D. Cal. 1997).

C. Habitual Residence

1. Standard

022 To invoke the protection of the Convention, the taking
or retention of a minor child must have occurred from a
place where the child habitually resides. See Meredith v.
Meredith, 759 F. Supp. 1432, 143G (D. Ariz. 1991).
Otherwise, by definition, no wrongful removal or retention
will have occurred. In other words, if the United States is
the children’s habitual residence, then they have not been
wrongfully retained here and the protections of the
Convention cannot be invoked. On the other hand, if Israel
is the habitual residence of the children, then they may
have been wrongfully removed, and the Court must continue
its inquiry. Thus, the children’s habitual residence is the
threshold issue the Court must determine.

023 The Convention does not provide a definition for
“habitual residence.” A few circuit courts, however, and
the High Court of Justice of the United Kingdom, and other
state and federal courts have considered the meaning of
“habitual residence” in Hague Convention cases. A frequently
cited British case concluded that there is no real
distinction between habitual and ordinary residence. See Re
Rates, No. CA 122.89, 1, 10, High Court of Justice, United
Kingdom, (1989). The Court in Bates 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 as common law
domicile. The facts and circumstances of each
case should continue to be assessed without resort
to presumptions or presuppositions.

See Bates at 9-10.

024 Bates involved a two and one-half year old child who
had been removed from her mother’s apartment in New York and
taken by the nanny to the father’s home in England, with the
father’s knowledge and approval. Although the child and her
parents had lived most of their lives in England, and had
only recently rented an apartment in New York where they
were to stay three months, the Bates court held that the
child’s habitual residence was in the United States because
her care, accommodation and therapy treatment in New York
during the period of three months [or so] that would 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.” See Bates, No. CA 122.89 at

025 A child can have only one habitual residence. See
Friedrich, 983 F.2d at 1402. To determine habitual
residence, the Court <* page 1114> must focus on the child,
not the parents, and examine past experience, not future
intentions. Id. A frequently cited Sixth Circuit case held
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. See Friedrich, 983
F.2d at 1402. “The change in geography must occur before the
questionable removal.” Otherwise, “it would be an open
invitation to all parents who abduct their children to
characterize their wrongful removals as alterations of
habitual residence, rendering the Convention “meaningless.”
See id at 1402.

026 The Third Circuit in Feder “guided by the aims and
spirit of the Convention and assisted by the tenets
enunciated in Friedrich v. Friedrich and Bates,” 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. Feder, 63 F.3d at 224. The
court added that any 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 parental present, shared intentions regarding
their child’s presence there,” Id. at 224. In Feder the
court disagreed with the district court’s conclusion that
the United States, not Australia, was the child’s habitual
residence and stated that the district court placed “undue
emphasis” on the fact that the majority of the child’s years
had been spent in the United States, ignoring the
approximately six months that the child lived in Australia
(where the child appeared to be settled indefinitely)
immediately preceding his return to the United States. Id
The court added that the district court had disregarded the
parents, shared intentions with regard to their son’s stay
in Australia.

027 In line with the reasoning of Feder, a number of
federal district courts throughout the country have held
that a child’s “state of habitual residence” is the country
in which the child has been living with the prospect of an
indefinite continuance of residence in that country, by
mutual agreement or acquiescence by both parents. See Falls
v Downie, 871 F. Supp. 100, 102 (D. Mass. 1994) (holding
that although the two-year-old child had been living in the
United States for only eight months, the child’s habitual
residence was the United States because he had become
completely accustomed to life in the U.S. with his father,
barely knew his mother, and had completely “settled” with
the consent of his mother indefinitely in the U.S.);
Levesque, 816 F. Supp. at 66G (holding that the child’s
habitual residence was Germany because “arrangements as to
residence had been agreed to and amounted to a purpose with
a sufficient degree of continuity to enable it properly to
be described as settled” and because there was an intent to
remain in Germany for an indefinite period of time by mutual

028 The courts in Feder, Falls and Levesque found it
convincing that the children were to remain indefinitely in
their new forum. However, according to the Bates court, it
is not necessary “that the propositus intends to stay where
he is indefinitely. Indeed his purpose while settled may be
for a limited period.” Bates, at 10; see also Ponath v.
Ponath, 829 F.Supp. 363, 367 (C.D. Utah 1993). The Bates
court listed education, business or profession, employment,
health, family or merely love of the place as common reasons
for a choice of regular abode. See Bates at 10, see also
Ponath, 829 F. Supp. at 367. All that is necessary, the
Bates court emphasized, “is that the purpose of living where
one does has a sufficient degree of continuity to be
properly described as settled. Bates at 10.

029 The mere fact that a move is to be temporary or for a
fixed period of time is not always sufficient to prevent a
shift in habitual residence from one forum to another.
Indeed, the duration of the residence in the new location
when combined with other factors may be sufficient to
outweigh such factors as the temporary purpose of the
residence. See Dr. E. M. Clive, The Concept of Habitual
Residence, JURID. REV., Part 3, 137, 140 (1997) (hereinafter
“Clive”). In his article, Clive states that he has not
located any case where a child has been found not to be
habitually resident in a country where he or <* page 1115>
she has lived for a year or more. Clive at 141. In Zenel v
Haddow, the Lord Ordinary found that after fifteen months a
child was habitually resident in Australia although there
was no settled intention on the part of the parents to
remain in Australia. “It seems to me that, while intention
is undoubtedly a very important consideration, there must
come a state when the objective facts point unequivocally to
a person’s ordinary or habitual residence being in a
particular place.” See id. at 141 (citing Zenel v Haddow
1993 S.L.T. 975; 1993 S.C.L.R. 872).

030 In a Swedish case, Johnson v Johnson, an American court
had confirmed an agreement between the parents of a child
that they were to have custody on an alternating basis —
just over two years with the mother in Sweden followed by
two years with the father in the United States, with the
father to have substantially shorter periods of custody in
later years, At the end of the first period in Sweden the
mother retained the child in spite of an attempt by the
father to use the Convention to obtain her return. The
Supreme Administrative Court of Sweden held that by that
time the child had become habitually resident in Sweden. The
Court noted that the child had been staying with the mother
in Sweden for more than two years when the question of
return became relevant and had adjusted to circumstances in
the place where she was living. The fact that the stay in
Sweden was initially intended to he limited in time did not
prevail over the “brute facts of location, duration and
settlement.” See Clive at 140 (citing Johnson v Johnson
Judgment of the Supreme Administrative Court of Sweden, May
9, 199G (Case No,. 7505-1995).

031 In Re A a family had been in Iceland for two years
where the father had been stationed as a United States
serviceman on a military base. The court held that the
children were habitually resident in Iceland. In that case,
their settled residence there prevailed over the fact that
the father’s posting was temporary and was expected to last
only for some three years. See Clive at 141 (citing Re A.
(Minors) (Abduction: Habitual Residence) [1996] 1 All E.R.
24). One English court held that a child who was sent from
Canada to stay with her father in Minnesota for a school
year was habitually resident in Minnesota when removed by
her mother after only four months. See Clive at 141, (citing
Re S. (A Minor) (Abduction) [1991] 2 F.L.R. 224).

032 Thus, the temporary nature of a move must not
necessarily trump other factors such as settlement and
acculturation in the determination of habitual residence.
This would lead to absurd results. Clive at 145. Suppose,
for example, that a child has lived for many years in a new
country, it would be “an abuse of ordinary language” to say
that the child had been habitually resident for all that
time in the country from which he or she had been removed,
and had not become habitually resident in the new country.
See Clive at 145.

033 In sum, to establish that the habitual residence of a
child has shifted, the law requires that a child be in the
new forum by mutual consent of the parents and that the
child has become settled in that new forum. The fact that a
child is to remain indefinitely in a new forum may
strengthen the argument that the new forum is the child’s
habitual residence, as it did in Feder, Falls, and Levesque;
yet it is not a necessary condition to establishing the
habitual residence of a child.

2. Application

034 According to petitioner, the wrongful retention of the
children began on April 17, 1998, when Me. Mozes filed for
dissolution of her marriage in the Los Angeles Superior
Court and obtained a temporary restraining order. By that
time, however, the children had been living in Los Angeles
for approximately one year. The parties stipulate that they
agreed that the children would remain in the United States
until July 1998. However, there is a dispute as to whether
the parties agreed that the date of return had been extended
to July 1999, if it had become indefinite or remained
unchanged. At the very least, the parties discussed the
possibility of the children remaining in the United States
for another year, and may have even come to such an
understanding. In April 1998, it is clear that petitioner
decided he <* page 1116> wanted the children to return to
Israel as originally planned by July 1998. FN2

035 The undisputed evidence establishes that by April 17,
1998, the children had settled into their new home, were
enrolled and participating full time in schools and social,
cultural and religious activities. They had successfully
completed a year of school in the United States, quickly
learned English, made new friends, and were accustomed to
and thriving in their new life in Beverly Hills. It is clear
that from the children’s perspective this very full year
amounts to a “purpose with sufficient degree of continuity
to enable it to be properly described as settled.” Bates No.
CA 122.89 at 10. FN3 Stated in the language of the Hague
Convention, the Court finds that by April 17, 1998, the
habitual residence of the Mozes children – Chen, Guy and
Kereri – was the United States (Beverly Hills, California).


036 After careful review of all the evidence and arguments,
and without making any determination as to the custody of
the children, the court finds that Chen, Guy and Keren Mozes
are habitual residents of the United States. Therefore, the
protections of the Convention cannot be invoked by
petitioner, and they need not be returned to Israel pursuant
to the International Child Abduction Remedies Act. The
Petition for Return of Children is DENIED.

037 The foregoing shall constitute the Court’s findings of
fact and conclusions of law as required by Fed. R. Civ. P.
52. Judgment shall be entered forthwith.


DATED: August 11, 1998

/s/ Richard A Paez
Richard A. Paez
United States District Judge


1 Hadas Mozes has returned to Israel by mutual agreement
of the parents. Accordingly, her residency in Israel is
not affected by the Court’s resolution of the issues
raised in the petition.

2 Normally, the Court must determine the date of the
actual “retention.” The date of retention is important
as it “pinpoints the period of time at which the
habitual residence of the child is to be determined.
Zucker v Andrews, 1998 WL 169506 *1 (D.Mass. 1998).
Petitioner asserts that by filing a petition for
dissolution of marriage, respondent Michal Mozes
terminated any agreement (alleged or otherwise) between
the parties and has, as a matter of law, “wrongfully
retained” the children in California. Respondent
asserts that she was merely seeking the protection of
the Los Angeles Superior Court to keep petitioner from
summarily abducting the children, and that this cannot
be considered a “wrongful retention” by her.

Regardless of whether respondent’s Superior Court
action constituted a retention, the Hague Convention
requires that for a retention to he “wrongful,” it must
keep the children away from their habitual residence at
the time of the retention. Thus, because the Court
finds that the United States was the children’s
habitual residence as of the date of the filing of the
marital dissolution petition, April 17, 1998 (the
earliest possible retention date), it need not
determine whether the retention occurred at that time
or at some later date (July 1998).

3 Petitioner asserts that this case is similar to that of
In re S. in which a family was to live in Britain for a
year while the father was on sabbatical and then return
to Israel. In that case, the court held that Israel
had remained the habitual residence of the children. At
the time of the court’s decision, however, the children
had lived in England for only six months. See In Re S.
(Minors) (Abduction: Wrongful Retention) [1984] F.L.R.
70 (Exh. 08)