USA – FEDERAL – MOZES (APPEAL) – 2001 MOZES v MOZES. The lower court denied the return of the children to Israel. On appeal, the decision of the lower court was reversed and remanded back to the lower court to determine if there was a grave risk to the children if returned to Israel. If not they must be returned. The court determined that the habitual residence of the children is Israel and that the father was exercising his rights of custody when the children were retained in the USA.
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Mozes v Mozes (9th Cir. 2001)— F.3d —; No 98-56505
1 International Abduction (USA 2001)
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Filed
09 Jan 2001
Cathy A Catterson, Clerk
U.S. Court of Appeals
In re the Application of: ]
]
ARNON MOZES ]
Petitioner-Appellant, ] No 98-56505
]
v. ] D.C. No. CV-98-03636-RAP
]
MICHAL MOZES, ]
]
Respondent-Appellee ] OPINION
]
__________________________]
Appeal from the United States District Court
for the Central District of California
Richard A. Paez, District Judge, Presiding
Argued and Submitted August 4, 1999
Pasadena, California.
Before: KOZINSKI and THOMAS, Circuit Judges, and
ILLSTON, District Judge. *
* The Honorable Susan Y. Illston, United States District
JUdge for the Northern District of California, sitting
by designation.
KOZINSKI, Circuit Judge:
001 In a case of first impression in our court, we
interpret the term “habitual residence” in the Hague
Convention on the Civil Aspects of International Child
Abduction.
I
002 Arnon and Michal Mozes are Israeli citizens. Married
in 1982, they have four children, ranging in age from seven
to sixteen years. Until 1997, parents and children lived in
Israel, as they had their entire lives. In April 1997, with
Arnon’s consent, Michal and the children came to Los
Angeles. Michal had long wanted to live in the United
States, and both parents agreed that the children would
profit from a chance to attend school here, learn English
and partake of American culture. Accordingly, Michal moved
with the children to Beverly Hills, where she leased a home,
purchased automobiles and enrolled the children in school.
Arnon remained in Israel, but he paid for both the house and
the automobiles used by his family, and stayed with them at
the house during his visits to Los Angeles. The parties
agree that Arnon consented to have Michal and the children
remain in the United States for fifteen months, though they
disagree as to what understanding existed beyond that. What
we know for certain is that on April 17, 1998, a year after
they arrived in the United States, Michal filed an action in
the Los Angeles County Superior Court seeking dissolution of
the marriage and custody of the children. The court granted
temporary custody to Michal, and entered a temporary
restraining order enjoining Arnon from removing the children
from southern California. Less than a month later, Arnon
filed a petition in federal district court, seeking to have
the children returned to Israel under the Hague Convention.
The oldest child elected to return to Israel, and did so by
mutual agreement of the parents. Arnon now appeals the
district court’s denial of his petition with regard to the
three younger children. FN01
II
003 Adopted in 1980, the Hague Convention on the Civil
Aspects of International Child Abduction [“Convention”] FN02
is intended to prevent “the use of force to establish
artificial jurisdictional links on an international level,
with a view to obtaining custody of a child.” Elisa
Perez-Vera, Explanatory Report 11, in 3 Hague Conference
on Private International Law, Acts and Documents of the
Fourteenth Session, Child Abduction 426 (1982) [“Perez-Vera
Report”]. FN03 Despite the image conjured by words like
“abduction” and “force,” the Convention was not drafted in
response to any concern about violent kidnappings by
strangers. It was aimed, rather, at the “unilateral removal
or retention of children by parents, guardians or close
family members.” Beaumont & McEleavy, The Hague Convention
on International Child Abduction 1 (1999). Such an abductor
“rarely seeks material gain; rather, he or she will aspire
to the exercise of sole care and control over a son or
daughter in a new jurisdiction.” Id. The preamble to the
Convention describes the signatory states as “[d]esiring to
protect children internationally from the harmful effects of
their wrongful removal or retention,” effects which are
thought to follow when a child “is taken out of the family
and social environment in which its life has developed.”
Perez-Vera Report at 11. This may occur either through the
“removal [of a child] from its habitual environment,” or by
“a refusal to restore a child to its own environment after a
stay abroad.” Id. at 12.
004 The Convention seeks to deter those who would
undertake such abductions by eliminating their primary
motivation for doing so. Since the goal of the abductor
generally is “to obtain a right of custody from the
authorities of the country to which the child has been
taken,” Id. at 13, the signatories to the Convention have
agreed to “deprive his actions of any practical or juridical
consequences.” Id. at 16. To this end, when a child who
was habitually residing in one signatory state is wrongfully
removed to, or retained in, another, Article 12 provides
that the latter state “shall order the return of the child
forthwith.” Id., art. 12, 19 I.L.M. at 1502. Further,
Article 16 provides that “until it has been determined that
the child is not to be returned under this Convention,” the
judicial or administrative authorities of a signatory state
“shall not decide on the merits of rights of custody.”
Convention, art. 16, 19 I.L.M. at 1503. The United States
and Israel are both signatories to the Convention. FN04
005 The key operative concept of the Convention is that of
“wrongful” removal or retention. In order for a removal or
retention to trigger a state’s obligations under the
Convention, it must satisfy the requirements of Article 3:
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.
006 Convention, art. 3, 19 I.L.M. at 1501. A court
applying this provision must therefore answer a series of
four questions: (1) When did the removal or retention at
issue take place? (2) Immediately prior to the removal or
retention, in which state was the child habitually resident?
(3) Did the removal or retention breach the rights of
custody attributed to the petitioner under the law of the
habitual residence? (4) Was the petitioner exercising those
rights at the time of the removal or retention?
007 In this case, the answer to the first question is
clear. Arnon claims that Michal wrongfully retained the
children from the moment on April 17, 1998, when she asked
the Los Angeles County Superior Court to grant her custody
of them. FN05 The district court denied Arnon’s petition
based on its answer to the second question: It found that as
of that date, the children’s “habitual residence” was in the
United States, not Israel. See Mozes v. Mozes, 19 F. Supp.
2d 1108, 1116 (C.D. Cal. 1998). Our central task is to
review this finding, which we do immediately below. In the
interest of judicial economy, and in keeping with the policy
of expediting Hague Convention cases, we also address the
third and fourth questions below. See Part VI infra.
III
008 We begin by identifying the role of an appellate court
in reviewing a determination of habitual residence under the
Hague Convention. In doing so, we are mindful that Congress
has emphasized “the need for uniform international
interpretation of the Convention.” 42 U.S.C.
11601(b)(3)(B). The Perez-Vera Report describes “habitual
residence” as “a well-established concept in the Hague
Conference, which regards it as a question of pure fact,
differing in that respect from domicile.” Perez-Vera Report
at 66. In seeking to understand this “well-established
concept,” id., we discover that although the term “habitual
residence” appears throughout the various Hague Conventions,
FN06 none of them defines it. As one commentary explains,
“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 different
legal systems.” J.H.C. Morris, Dicey and Morris on the
Conflict of Laws 144 (10th ed. 1980) [“Dicey & Morris”].
009 Clearly, the Hague Conference wished to avoid linking
the determination of which country should exercise
jurisdiction over a custody dispute to the idiosyncratic
legal definitions of domicile and nationality of the forum
where the child happens to have been removed. This would
obviously undermine uniform application of the Convention
and encourage forum-shopping by would-be abductors. To avoid
this, courts have been instructed to interpret the
expression “habitual residence” according to “the ordinary
and natural meaning of the two words it contains[, as] a
question of fact to be decided by reference to all the
circumstances of any particular case.” C v S (minor:
abduction: illegitimate child), [1990] 2 All E.R. 961, 965
(Eng. H.L.).
010 Certain commentators, however, have gone considerably
farther than this, decrying as an unwelcome technical rule
any attempt to develop guiding principles for courts to
consult when making findings of “habitual residence.” FN07
This has not, of course, prevented courts faced with
disputes under the Convention from articulating what they
understand the “ordinary and natural meaning” of the two
words to be, or from looking to cases decided by other
courts for help in refining and applying that meaning. Nor
should it. Facts, after all, do not come with labels
attached, and the family situations of petitioners under the
Convention are likely to be quite different from what most
people consider “ordinary.” In order for decisions under the
Convention to be intelligible, courts must be able to
explain these conclusions and the reasoning used to reach
them. To achieve the uniformity of application across
countries, which depends upon the realization of the
Convention’s goals, courts must be able to reconcile their
decisions with those reached by other courts in similar
situations. As the leading treatise on the Convention has
observed, “[o]nly in exchanging and considering other views
will a sophisticated and uniform interpretation evolve.”
Beaumont & McEleavy, page 4 supra, at 238. Cutting
fact-finding tribunals adrift with only the Bellman’s map to
guide them does not lead to consistency; it leads only to
the absence of any common standard by which inconsistency
can be identified. FN08
011 The Convention seeks to protect children by creating a
system of rules that will inform certain decisions made by
their parents. “Habitual residence” is the central–often
outcome-determinative–concept on which the entire system is
founded. FN09 Without intelligibility and consistency in
its application, parents are deprived of crucial information
they need to make decisions, and children are more likely to
suffer the harms the Convention seeks to prevent. FN10
Imagine, for example, a parent trying to decide whether to
travel with a child to attempt reconciliation with an
estranged spouse in another country, FN11 or whether to
consent to a child’s trip abroad to stay with in-laws. FN12
Such parents would be vitally interested in knowing under
what circumstances a child’s habitual residence is likely to
be altered, and it is cold comfort to be told only that this
is “a question of fact to be decided by reference to all the
circumstances of any particular case.” C v S, [1990] 2 All
E.R. at 965. Parents faced with this response would likely
regard the introduction of a few judicial “presuppositions
and presumptions,” Dicey & Morris, page 8 supra at 145, with
more relief than alarm.
012 This explains why, while a determination of “habitual
residence” under the Convention is primarily factual, it has
not been understood to mean that it is left entirely within
the unreviewed discretion of the trial court. Rather,
reviewing courts have taken the approach articulated by Lord
Scarman:
Though the meaning of ordinary words is . . . a
question of fact, the meaning to be attributed to
enacted words is a question of law, being a
matter of statutory interpretation. So . . . a
question of law arises as to the meaning of
[habitual residence], even though it arises only
at a preliminary stage in the process of
determining a question of fact . . . . It is with
this preliminary stage that the [reviewing]
courts are concerned.
Shah v. Barnet London Borough Council and other appeals,
[1983] 1 All E.R. 226, 233 (Eng. H.L.). FN13 This is what
we refer to in American legal parlance as a mixed question
of law and fact, leading the Third Circuit to conclude that
findings of habitual residence call for a standard of review
where we “accept[] the district court’s historical or
narrative facts unless they are clearly erroneous, but
exercis[e] plenary review of the court’s choice of and
interpretation of legal precepts and its application of
those precepts to the facts.” Feder v. Evans-Feder, 63 F.3d
217, 222 n.9 (3d Cir. 1995). FN14 Our own precedent puts
it somewhat differently: To the extent that the question is
essentially factual, one “founded ‘on the application of the
fact-finding tribunal’s experience with the mainsprings of
human conduct,'” we review the district court’s
determination only for clear error. United States v.
McConney, 728 F.2d 1195, 1202 (9th Cir. 1984) (en banc)
(quoting Commissioner v. Duberstein, 363 U.S. 278, 289
(1960)), abrogated on other grounds, Pierce v. Underwood,
487 U.S. 552 (1988). Where, however,
the question requires us to consider legal
concepts in the mix of fact and law and to
exercise judgment about the values that animate
legal principles, then the concerns of judicial
administration will favor the appellate court,
and the question should be classified as one of
law and reviewed de novo.
Id.
IV
A: The Relevance of Intent
013 Perhaps the most straightforward way to determine
someone’s habitual residence would be to observe his
behavior. As Lord Scarman put it, “in their natural and
ordinary meaning the words mean that the person must be
habitually and normally resident here, apart from temporary
or occasional absences of long or short duration.” Shah,
[1983] 1 All E.R. at 234 (internal quotation marks omitted).
Under this approach, we might say that if we observe someone
centering his life around a particular location during a
given period, so that every time he goes away from it he
also comes back, we will call this his habitual residence.
014 This approach, while intuitively appealing, suffers
from a fatal flaw: It may yield strikingly different results
depending on the observer’s time frame. A child who spends
two months at Camp Chippewah, if observed only during that
period, would appear to be habitually resident there. On the
other hand, if we follow the same child through to
adulthood, we might label a couple of years spent studying
abroad a mere “temporary absence of long duration.” This
indeterminacy is unavoidable, as it is “not desirable,
indeed it is not possible, to enter into any game of numbers
on the duration required.” Adderson v. Adderson, 51 Alta.
L.R. (2d) 193, 198 (Alberta C.A. 1987). The absence of an
objective temporal baseline however, requires that we pay
close attention to subjective intent when evaluating
someone’s habitual residence. FN15 Elaborating on the
subjective element of the inquiry, Lord Scarman reasoned
that for habitual residence to accrue, there must be a
“settled purpose”:
The purpose may be one or there may be several.
It may be specific or general. All the law
requires is that there is [sic] 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.
Shah, [1983] 1 All E.R. at 235.
015 This passage makes some intuitive sense. Being
habitually resident in a place must mean that you are, in
some sense, “settled” there–but it need not mean that’s
where you plan to leave your bones. Nor could we justify
limiting habitual residence to persons who settle in an area
for some particular motive. All of this is true. None of it
is very useful, however, when attempting to decide a
borderline case. Even the child who goes off to summer camp
arguably has a “settled purpose” to live there continuously
“for a limited period.” Id. No one would seriously contend
that the summer camp is the child’s habitual residence, but
the notion of “settled purpose” alone is powerless to tell
us why not. FN16
016 The obvious reason why the camper is not regarded as
habitually resident is that he already has an established
habitual residence elsewhere and his absence from it–even
for an entire summer–is no indication that he means to
abandon it. Lord Brandon has discussed the distinction
between abandoning a prior habitual residence and acquiring
a new one:
[T]here is a significant difference between a
person ceasing to be habitually resident in
country A, and his subsequently becoming
habitually resident in country B. A person may
cease to be habitually resident in country A in a
single day if he or she leaves it with a settled
intention not to return to it but to take up
long-term residence in country B instead. Such a
person cannot, however, become habitually
resident in country B in a single day. An
appreciable period of time and a settled
intention will be necessary to enable him or her
to become so.
C v S (minor: abduction: illegitimate child), [1990] 2 All
E.R. at 965. As this passage illustrates, the first step
toward acquiring a new habitual residence is forming a
settled intention to abandon the one left behind. FN17
Otherwise, one is not habitually residing; one is away for a
temporary absence of long or short duration. FN18 Of
course, one need not have this settled intention at the
moment of departure; it could coalesce during the course of
a stay abroad originally intended to be temporary. Nor need
the intention be expressly declared, if it is manifest from
one’s actions; indeed, one’s actions may belie any
declaration that no abandonment was intended. FN19 If
you’ve lived continuously in the same place for several
years on end, for example, we would be hard-pressed to
conclude that you had not abandoned any prior habitual
residence. FN20
017 On the other hand, one may effectively abandon a prior
habitual residence without intending to occupy the next one
for more than a limited period. FN21 Whether there is a
settled intention to abandon a prior habitual residence is a
question of fact as to which we defer to the district court.
B: Whose intent is it, anyway?
018 Having concluded that a settled intention to abandon
one’s prior habitual residence is a crucial part of
acquiring a new one, we confront an additional problem:
Whose settled intention determines whether a child has
abandoned a prior habitual residence? One obvious response
would be, the child’s. It is, after all, the child whose
habitual residence we are out to determine. And indeed we
sometimes find courts declaring the intentions of the
parents to be irrelevant. FN22
019 There is an obvious problem with this approach,
however. Children, particularly the ones whose return may be
ordered under the Convention, FN23 normally lack the
material and psychological wherewithal to decide where they
will reside. This leads to the conclusion that, “in those
cases where intention or purpose is relevant–for example,
where it is necessary to decide whether an absence is
intended to be temporary and short-term–the intention or
purpose which has to be taken into account is that of the
person or persons entitled to fix the place of the child’s
residence.” FN24
020 Difficulty arises, of course, when the persons
entitled to fix the child’s residence no longer agree on
where it has been fixed–a situation that, for obvious
reasons, is likely to arise in cases under the Convention.
In these cases, the representations of the parties cannot be
accepted at face value, and courts must determine from all
available evidence whether the parent petitioning for return
of a child has already agreed to the child’s taking up
habitual residence where it is. The factual circumstances in
which this question arises are diverse, but we can divide
the cases into three broad categories.
021 On one side are cases where the court finds that the
family as a unit has manifested a settled purpose to change
habitual residence, despite the fact that one parent may
have had qualms about the move. FN25 Most commonly, this
occurs when both parents and the child translocate together
under circumstances suggesting that they intend to make
their home in the new country. When courts find that a
family has jointly taken all the steps associated with
abandoning habitual residence in one country to take it up
in another, they are generally unwilling to let one parent’s
alleged reservations about the move stand in the way of
finding a shared and settled purpose. FN26
022 On the other side are cases where the child’s initial
translocation from an established habitual residence was
clearly intended to be of a specific, delimited period. In
these cases, courts have generally refused to find that the
changed intentions of one parent led to an alteration in the
child’s habitual residence. FN27
023 In between are cases where the petitioning parent had
earlier consented to let the child stay abroad for some
period of ambiguous duration. Sometimes the circumstances
surrounding the child’s stay are such that, despite the lack
of perfect consensus, the court finds the parents to have
shared a settled mutual intent that the stay last
indefinitely. FN28 When this is the case, we can reasonably
infer a mutual abandonment of the child’s prior habitual
residence. Other times, however, circumstances are such
that, even though the exact length of the stay was left open
to negotiation, the court is able to find no settled mutual
intent from which such abandonment can be inferred. FN29
Clearly, this is one of those questions of “historical and
narrative facts” in which the findings of the district court
are entitled to great deference. Feder, 63 F.3d at 222 n.9.
C: Parental Intent and the Circumstances of the Child
024 While the decision to alter a child’s habitual
residence depends on the settled intention of the parents,
they cannot accomplish this transformation by wishful
thinking alone. First, it requires an actual “change in
geography.” Friedrich, 983 F.2d at 1402. Second, home isn’t
built in a day. It requires the passage of “[a]n appreciable
period of time,” C v S (minor: abduction: illegitimate
child), [1990] 2 All E.R. 961, 965 (Eng. H.L.), one that is
“sufficient for acclimatization.” Feder, 63 F.3d at 224.
When the child moves to a new country accompanied by both
parents, who take steps to set up a regular household
together, the period need not be long. FN30 On the other
hand, when circumstances are such as to hinder
acclimatization, even a lengthy period spent in this manner
may not suffice. FN31
025 A more difficult question is when evidence of
acclimatization should suffice to establish a child’s
habitual residence, despite uncertain or contrary parental
intent. Most agree that, given enough time and positive
experience, a child’s life may become so firmly embedded in
the new country as to make it habitually resident even
though there be lingering parental intentions to the
contrary. FN32 The question is how readily courts should
reach the conclusion that this has occurred. Since the
Convention seeks to prevent harms thought to flow from
wrenching or keeping a child from its familiar surroundings,
it is tempting to regard any sign of a child’s familiarity
with the new country as lessening the need for return and
making a finding of altered habitual residence desirable.
Further, some courts regard the question whether a child is
doing well in school, has friends, and so on, as more
straightforward and objective than asking whether the
parents share a “settled intent.” FN33 Despite the
superficial appeal of focusing primarily on the child’s
contacts in the new country, however, we conclude that, in
the absence of settled parental intent, courts should be
slow to infer from such contacts that an earlier habitual
residence has been abandoned.
026 The Convention is designed to prevent child abduction
by reducing the incentive of the would-be abductor to seek
unilateral custody over a child in another country. The
greater the ease with which habitual residence may be
shifted without the consent of both parents, the greater the
incentive to try. The question whether a child is in some
sense “settled” in its new environment is so vague as to
allow findings of habitual residence based on virtually any
indication that the child has generally adjusted to life
there. FN34 Further, attempting to make the standard more
rigorous might actually make matters worse, as it could open
children to harmful manipulation when one parent seeks to
foster residential attachments during what was intended to
be a temporary visit–such as having the child profess
allegiance to the new sovereign. See note 34 supra. The
function of a court applying the Convention is not to
determine whether a child is happy where it currently is,
but whether one parent is seeking unilaterally to alter the
status quo with regard to the primary locus of the child’s
life. FN35
027 Even if deliberate manipulation were not a danger,
divining from a child’s observed contacts in a new country
whether it has come to reside there habitually would be an
enterprise fraught with difficulty. Children can be
remarkably adaptable and form intense attachments even in
short periods of time–yet this does not necessarily mean
that the child expects or intends those relationships to be
long-lived. It is quite possible to participate in all the
activities of daily life while still retaining awareness
that one has another life to go back to. In such instances
one may be “acclimatized” in the sense of being
well-adjusted in one’s present environment, yet not regard
that environment as one’s habitual residence. FN36 It thus
makes sense to regard the intentions of the parents as
affecting the length of time necessary for a child to become
habitually resident, FN37 because the child’s knowledge of
these intentions is likely to color its attitude toward the
contacts it is making. FN38
028 As these considerations illustrate, the broad claim
that observing “la r‚alit‚ que vivent les enfants” obviates
any need to consider the intent of the parents, Y.D., [1996]
R.J.Q. at 2523, is unsound. It also runs counter to the idea
that determinations of habitual residence should take into
account “all the circumstances of any particular case.” C v
S, [1990] 2 All E.R. at 965. It is easy enough for a court
to eschew inquiry into parental intent in cases where other
factors are conclusive. But just as hard cases make bad law,
easy cases can make for overly broad law–particularly when
unqualified statements come to be applied outside of the
factual contexts that inspired them. In Friedrich, for
example, the court’s statement that we must “focus on the
child, not the parents,” 983 F.2d at 1401, came in response
to the claims of a mother that her child was habitually
resident in the U.S. even though it had always lived in
Germany, because she intended to move there with it upon
discharge from the military. See id. All the Friedrich court
needed to say in order to reach the correct and obvious
result was that, whatever the parents’ intent, habitual
residence cannot be acquired without physical presence. The
facts of Friedrich thus provided no legitimate occasion for
a broad pronouncement that parental intent is irrelevant to
the question of habitual residence. FN39
029 Similarly, the Quebec Court of Appeal in Y.D. made a
rhetorical argument against the use of parental intent in
general, FN40 based on a conflict that most courts would
consider trivial. Both parents had moved to California with
their children and lived with them there continuously for
three years, leaving behind no possessions in Canada. See
Y.D., [1996] R.J.Q. at 2516. When the marriage deteriorated,
one parent claimed that the stay had been intended to be
temporary. See id. There is little room for doubt that the
children had become acclimatized in California, but the same
facts also support a finding that the couple had manifested
a shared intent to abandon the family’s prior habitual
residence. FN41 Y.D., then, does not illustrate the
superiority of focusing exclusively on the circumstances of
the child; it illustrates that easy cases are easy, however
one analyzes them.
030 Recognizing the importance of parental intent, some
courts have gone off in the other direction, announcing a
bright line rule that “where both parents have equal rights
of custody no unilateral action by one of them can change
the habitual residence of the children, save by the
agreement or acquiescence over time of the other parent . .
. .” Re S and another (minors) (abduction: wrongful
detention), [1994] 1 All E.R. 237, 249 (Eng. Fam. Div.).
While this rule certainly furthers the policy of
discouraging child abductions, it has been criticized as
needing to be “carefully qualified if it [is] not to lead to
absurd results.” FN42 The point is well taken: Habitual
residence is intended to be a description of a factual state
of affairs, and a child can lose its habitual attachment to
a place even without a parent’s consent. Even when there is
no settled intent on the part of the parents to abandon the
child’s prior habitual residence, courts should find a
change in habitual residence if “the objective facts point
unequivocally to a person’s ordinary or habitual residence
being in a particular place.” Zenel v. Haddow, 1993 S.L.T.
975, 979 (Scot. 1st Div.). The question in these cases is
not simply whether the child’s life in the new country shows
some minimal “degree of settled purpose,” Shah, [1983] 1 All
E.R. at 235, but whether we can say with confidence that the
child’s relative attachments to the two countries have
changed to the point where requiring return to the original
forum would now be tantamount to taking the child “out of
the family and social environment in which its life has
developed.” Perez-Vera Report, page 3 supra, at 11.
V
031 The district court held that the habitual residence of
the Mozes children had shifted from Israel to the United
States between April 1997 and April 1998. It did so based on
the following understanding of the applicable standard:
[T]o 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.
Mozes, 19 F. Supp. 2d at 1115. As we have explained, this
formulation does not reflect certain considerations that
other courts applying the Convention have, for good reason,
recognized. Where, as here, children already have a
well-established habitual residence, simple consent to their
presence in another forum is not usually enough to shift it
there. Rather, the agreement between the parents and the
circumstances surrounding it must enable the court to infer
a shared intent to abandon the previous habitual residence,
such as when there is effective agreement on a stay of
indefinite duration.
032 Here, the district court’s findings of fact with
regard to the shared intentions of the parents, findings to
which we defer, were as follows:
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 wanted the children to
return to Israel as originally planned by July
1998.
Mozes, 19 F. Supp. 2d at 1115-16. Absent from this
discussion is a finding that the parents shared an
understanding that their children’s stay in the United
States would last indefinitely. Having heard the conflicting
testimony of both parties and reviewed all the evidence, the
district court was able to say only that Arnon and Michal
had “discussed the possibility” of extending the stay for
one additional year, and that they “may have even come to
such an understanding.” Id. (emphasis added). FN43 The
district court did not find that they had actually reached
such an understanding.
033 The district court’s reticence is not surprising,
given the striking difference between this case and those
where courts faced with similarly ambiguous facts have found
a settled intent in favor of indefinite residence. In those
cases, the country in which it had been agreed the child
should spend time was the native country of one of the
parents. FN44 It is entirely natural and foreseeable that,
if a child goes to live with a parent in that parent’s
native land on an open-ended basis, the child will soon
begin to lose its habitual ties to any prior residence. A
parent who agrees to such an arrangement without any clear
limitations may well be held to have accepted this
eventuality.
034 The situation here is far different. Michal had never
lived in the United States. Prior to their departure, all of
her life and the lives of the children had been spent in
Israel. All of the family’s relatives were there. Further,
Michal and the children left for the United States with a
temporary visa, casting considerable doubt on whether they
would be allowed to remain here indefinitely even if they
wished to. FN45 Finally, while Michal took steps to obtain
work in the United States, the economic base on which the
family depended for sustenance remained entirely in Israel.
Under these circumstances, the district court was clearly
right to refrain from finding that the parents had agreed to
an indefinite stay.
035 The district court reasoned, however, that “[t]he fact
that a child is to remain indefinitely in a new forum . . .
is not a necessary condition to establishing the habitual
residence of a child.” Mozes, 19 F. Supp. 2d at 1115. This
is true; it is not a necessary condition. When a child has
no clearly established habitual residence elsewhere, it may
become habitually resident even in a place where it was
intended to live only for a limited time. FN46 The same is
true if the child’s prior habitual residence has been
effectively abandoned by the shared intent of the parents.
Where there is no such intent, however, a prior habitual
residence should be deemed supplanted only where “the
objective facts point unequivocally” to this conclusion.
Zenel, 1993 S.L.T. at 979. This, too, may occur during the
course of a stay which is not intended to be indefinite.
FN47
The objective facts found here are as follows:
[B]y 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.
Mozes, 19 F. Supp. 2d at 1116. These facts certainly show
that the Mozes children, as the district court remarked,
spent a “very full year” in the United States. Id. But they
do not point unequivocally to the conclusion that, at the
time Michal petitioned for their custody, the children had
ceased to be habitually resident in Israel.
036 The academic year abroad has become a familiar
phenomenon in which thousands of families across the globe
participate every year. Older children sometimes do so
through organized exchange programs; FN48 Informal
arrangements among friends or relatives may include children
who are much younger. FN49 Children who spend time
studying abroad in this manner are obviously expected to
form close cultural and personal ties to the countries they
visit–that’s the whole point of sending them there for a
year rather than simply for a brief tourist visit. Yet the
ordinary expectation–shared by both parents and
children–is that, upon completion of the year, the students
will resume residence in their home countries. If this were
not the expectation, one would find few parents willing to
let their children have these valuable experiences. The
Mozes children departed from Israel with this normal
expectation, and there is no evidence that anyone questioned
it until their mother decided to file for divorce. The case,
then, does not reflect the sort of “brute facts” that
require a finding of altered habitual residence so as to
avoid an “absurd result[].” Clive, note 7 supra, at 145-46.
037 The district court appears to have believed that its
decision should be governed by a number of cases in which
temporary stays abroad resulted in a change of habitual
residence. See Mozes, 19 F. Supp. 2d at 1114-15 (citing
Zenel v. Haddow, 1993 S.L.T. 975; Johnson v. Johnson, No.
7505-1995 (Swed. Sup. Admin. Ct. 1996); Re A and others
(minors) (abduction: habitual residence), [1996] 1 All E.R.
24 (Eng. Fam. Div.); Re S (a minor) (abduction), [1991] 2
F.L.R. 1 (Eng. C.A.)). Three of these cases involved factual
situations significantly different from that presented here.
038 In Zenel and Re A and others, both parents had resided
together with the child for an extended period in the forum
found to be the habitual residence. In Zenel, both parents
had lived in Australia continuously for fifteen months,
during which they had made renovations to the house they
lived in, and considered purchasing another home elsewhere
in the country. See Zenel, 1993 S.L.T. at 979. Five months
prior to her sudden decision to remove the child to
Scotland, the mother herself had obtained full-time
employment in Australia. See id. These are the sorts of
objective actions that ordinarily lead courts to find a
settled intent on the part of a family to take up habitual
residence. In Re A and others, the family had lived together
in Iceland for two years, and the court found that, while
the stay was not expected to last indefinitely, “[t]hey had
no home base of their own elsewhere.” [1996] 1 All E.R. at
32.
039 In Johnson, the child had lived with its mother for
over two years in Sweden, pursuant to a custody arrangement
under which it was to spend a total of eight years there.
FN50 Its acquisition of a habitual residence in Sweden was
thus surely contemplated by the parties. In Re S, the court
took a position which we have rejected above: that an
agreement to let a child spend a school year abroad is
sufficient to transfer its habitual residence after only
four months. See Re S, [1991] 2 F.L.R. at 1, 20.
040 In conclusion, the district court’s determination of
habitual residence in this case appears to have relied upon
an understanding of that term that gives insufficient weight
to the importance of shared parental intent under the
Convention. Given that the Mozes children had a clearly
established habitual residence in Israel in April 1997, and
that the district court did not find an intent to abandon
this residence in favor of the United States, the question
it needed to answer was not simply whether the children had
in some sense “become settled” in this country. Rather, the
appropriate inquiry under the Convention is whether the
United States had supplanted Israel as the locus of the
children’s family and social development. As the district
court did not answer this question, we must remand and allow
it to do so.
VI
041 Given the need to resolve these regrettably prolonged
proceedings as expeditiously as possible, FN51 judicial
economy counsels that we address certain issues the district
court may confront on remand. Should the district court,
after considering our discussion of the applicable
principles, reaffirm its holding that the children’s
habitual residence had shifted to the United States by April
17, 1998, the case should end there. If, on the other hand,
the district court decides that the facts do not warrant
such a finding, it will have to resolve a series of
additional questions. The first of these is whether the
retention breached rights of custody attributed to Arnon
under Israeli law. FN52 See pages 6-7 supra. Only if this
is the case is the retention wrongful under Article 3 of the
Convention. See Convention, art. 3, 19 I.L.M. at 1501.
042 Article 14 of the Convention provides that we may take
direct judicial notice of the law of the habitual residence
in order to answer this question. FN53 The applicable
Israeli law, in turn, states that “[i]n any matter within
the scope of their guardianship the parents shall act in
agreement.” Capacity and Guardianship Law, 1962, 16 L.S.I.
106, 108 (1961-62) (Section 18). By seeking sole custody
over the children outside their state of habitual residence
then, Michal “disregarded the rights of the other parent
which are also protected by law, and . . . interfered with
their normal exercise.” Perez-Vera Report, page 3 supra, at
71. FN54 Nor is there any doubt that Arnon was
exercising his parental rights and responsibilities up until
the time Michal sought custody. As the district court noted,
he had remained in regular contact with his family, visited
them several times, and “provided all finances needed to
support his wife and children in California.” Mozes, 19 F.
Supp. 2d at 1111. This means that if the children’s habitual
residence was still in Israel on April 17, 1998, their
retention here would be wrongful under the Convention, and
the United States would be required under Article 12 to
order their return forthwith so that an Israeli court may
consider the question of custody. FN55
043 Article 13 of the Convention, however, provides
certain exceptions to the duty to return a wrongfully
retained child to its state of habitual residence. FN56
Because the district court decided that there was no
wrongful retention under Article 3, it had no occasion to
examine whether any of these exceptions were applicable.
Unlike Article 3, which restricts a court’s inquiry to the
state of affairs prevailing immediately prior to the
retention or removal alleged to be wrongful, see page 6
supra, two of the exceptions in Article 13–namely, the risk
of physical or psychological harm and objection by a mature
child to its return–depend on circumstances at the time a
child’s return is to be ordered. FN57 Should the district
court find a wrongful retention to have occurred, it must
make a prompt determination as to whether either of these
exceptions is applicable FN58 and, if not, order the return
of the childen to Israel forthwith.
REVERSED and REMANDED.
The mandate shall issue at once. Fed. R. App. P. 2.
Counsel
Adair Dyer, Austin, TX; William M. Hilton, Santa Clara,
California for Petitioner-Appellant.
Ira H. Lurvey, and Judith Salkow Shapiro, Lurvey & Shapiro,
Los Angeles, California, for the Respondent-Appellee.
——————–
1. One was aged nine years, and the other two five years, at
the time of the district court’s decision.
2. 19 I.L.M. 1501 (entered into force October 25, 1980),
also available at
http://www.hcch.net/e/conventions/text28e.html.
3. Elisa Perez-Vera was the official Hague Conference
reporter, and her explanatory report is “‘recognized by the
Conference as the official history and commentary on the
Convention and is a source of background on the meaning of
the provisions of the Convention available to all States
becoming parties to it.'” Shalit v. Coppe, 020 F.3d 1124,
1127-28 (9th Cir. 1999) (quoting Legal Analysis of the Hague
Convention on the Civil Aspects of International Child
Abduction, 51 Fed. Reg. 10503 (1986)). The full text of the
Perez-Vera Report is available online at
4. See Hague Conference of Private International Law: Report
of the Second Special Commission Meeting to Review the
Operation of the Hague Convention on the Civil Aspects of
International Child Abduction, 33 I.L.M. 225, 225 (1994).
The Convention has been implemented by Congress in the
International Child Abduction Remedies Act, 42 U.S.C. 11601
et. seq.
5. See Re S and another (minors) (abduction: wrongful
detention), [1994] 1 All E.R. 237, 248 (Eng. Fam. Div.)
(mother wrongfully retained children by announcing her
intent not to return them to Israel, and asserting that she
and they had acquired habitual residence in England, even
though this occurred before the agreed-upon period of their
stay abroad had ended).
6. See generally Hague Conventions on Private International
Law, at http://www.hcch.net/e/conventions/index.html>. The
term “habitual residence” first appears in the Convention
Relating to Civil Procedure, March 1, 1954, Articles 21, 32.
7. See, e.g., Dicey & Morris, page 8 supra at 144-45:
[T]he aim being to leave the notion free from technical
rules which can produce rigidity. . . . It is greatly to be
hoped that the courts will resist the temptation to develop
restrictive rules as to habitual residence, so that the
facts and circumstances of each case can be assessed free of
presuppositions and presumptions.
See also E.M. Clive, The Concept of Habitual Residence, 1997
Jurid. Rev. 137, 147:
[H]abitual residence is a simple concept which should be
applied by concentrating on the ordinary and natural meaning
of the two words which it contains and on the facts of the
particular case. It should not be embellished by technical
rules. . . . The two words “habitual” and “residence” are
quite capable of doing all the work which is required of
them without the addition of spurious legal propositions.
Dr. Clive surely overstated his point. We have yet to see a
court succeed in applying the words “habitual” and
“residence” without the aid of other words to explain why
they do or do not apply to the “facts of the particular
case.” Whether the other words amount to “spurious legal
propositions” depends on whether they help or hinder courts
in taking into account, and making sense of, all the
circumstances of the cases before them.
8. See Lewis Carroll, The Hunting of the Snark, Fit the
Second (1872):
He had bought a large map representing the sea,
Without the least vestige of land:
And the crew were much pleased when they found it to be
A map they could all understand.
“What’s the good of Mercator’s North Poles and Equators,
Tropics, Zones, and Meridian Lines?”
So the Bellman would cry: and the crew would reply
“They are merely conventional signs!
“Other maps are such shapes, with their islands and capes!
But we’ve got our brave Captain to thank”
(So the crew would protest) “that he’s bought us the best–
A perfect and absolute blank!”
See also Carol S. Bruch, Temporary or Contingent Changes in
Location Under the Hague Child Abduction Convention,
Gedachtnisschrift Alexander Luderitz 43, 45 (H. Schack, ed.
2000) (“This deliberate ambiguity gives courts flexibility
in applying the Convention to varying situations. As might
be expected, however, it also permits inconsistent and
poorly reasoned decisions.”) (footnote omitted).
9. See Linda Silberman, Hague Convention on International
Child Abduction: A Brief Overview and Case Law Analysis, 28
Fam. L.Q. 9, 20 (1994) (“The Convention does not provide a
definition of habitual residence, but identifying the State
of habitual residence is critical.”).
10. See Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th
Cir. 1993):
It is important to understand that “wrongful removal” is a
legal term strictly defined in the Convention. It does not
require an ad hoc determination or a balancing of the
equities. Such action by a court would be contrary to a
primary purpose of the Convention: to preserve the status
quo and to deter parents from crossing international
boundaries in search of a more sympathetic court.
Since the strict definition of “wrongful removal” is based
on the concept of “habitual residence,” an ad hoc
determination of the latter amounts to an ad hoc
determination of the former.
11. A dilemma discussed in Bruch, note 8 supra, at 58-60.
See also Beaumont & McEleavy, page 4 supra, at 105.
12. See Re A (Wardship: Jurisdiction), [1995] 1 F.L.R. 767,
769 (Eng. Fam. Div.).
13. Lord Scarman was reviewing a local education authority’s
application of the term “ordinary residence” in a domestic
British statute. In what has become a leading case on
“habitual residence” under the Convention, Justice Waite
adopted Lord Scarman’s discussion, holding that “there is no
real distinction between ordinary residence [under British
law] and habitual residence [under the Convention].” Re
Bates, No. CA 122/89, High Court of Justice, Fam. Div’l Ct.
Royal Courts of Justice, United Kingdom, 33 (1989).
14. See also Friedrich, 983 F.2d at 1398 (reversing district
court’s finding of habitual residence as an erroneous
application of the concept); Flores v. Contreras, 981 S.W.2d
246, 249 (Tex. App. 1998) (“We believe this presents a
classic mixed question of law and fact.”).
15. See, e.g., Smith v. The Central Auth., No. AP 36/98,
High Court, Christchurch, New Zealand (Mar. 2, 1999) (“[T]he
fact and duration of residence in a country is not
necessarily decisive, especially where a child comes from a
settled long-term background and there is then a move,
rather the intention which accompanies it is all
important.”); Shah, [1983] 1 All E.R. at 234 (“The
significance of the adverb ‘habitually’ is that it recalls
two necessary features . . . namely residence adopted
voluntarily and for settled purposes.”); Cruse v. Chittum,
[1974] 2 All E.R. 940, 942-43 (Eng. Fam. Div.) (habitual
residence requires an element of intention; the residence
must not be temporary or of a secondary nature).
16. Cf. Bruch, note 8 supra, at 46 (“While useful in many
particulars, [Lord Scarman’s] gloss has also caused
problems.”).
17. This is consistent with the view held by many courts
that a person can only have one habitual residence at a time
under the Convention. See, e.g., Friedrich, 983 F.2d at
1401; Freier v. Freier, 969 F. Supp. 436, 440 (E.D. Mich.
1996). The exception would be the rare situation where
someone consistently splits time more or less evenly between
two locations, so as to retain alternating habitual
residences in each. See, e.g., Johnson v. Johnson, 493
S.E.2d 668, 669 (Va. Ct. App. 1997) (child had a fully
established home in both Virginia and in New York); Beaumont
& McEleavy, page 4 supra, at 110-11.
18. See, e.g., Harkness v. Harkness, 577 N.W.2d 116, 123
(Mich. Ct. App. 1998) (upholding trial court’s finding that
habitual residence had not changed because “the apartment in
Germany was the last place the parties had resided together
as a family unit,” and “the court found no indication that
the parties intended to abandon that residence and to
establish a new residence in the United States.”). Professor
Bruch has suggested an analogous inquiry. See Bruch, note 8
supra, at 51 (“[R]ather than ask whether a ‘settled purpose’
is present, [courts] should ask instead whether a merely
transitory, contingent, or other temporary purpose is
apparent.”).
19. See, e.g., Zenel v. Haddow, 1993 S.L.T. 975, 979 (Scot.
1st Div.) (respondent had renovated kitchen, considered
purchasing a new home, and obtained full-time employment in
new forum).
20. For an example of such a fact pattern, see Y.D. v. J.B.
(Droit de la famille – 2454), [1996] R.D.F. 512 (Quebec
Super. Ct.) (children had lived continuously with both
parents and attended school in California for three years).
While the trial court in this case declared the only
relevant question to be “where the children lived
immediately before their removal,” id. at 516, it
nevertheless made what we would call a finding of settled
purpose, remarking that “the members of this family were
neither visitors nor tourists in California.” Id. See also
Beaumont & McEleavy, page 4 supra, at 94 (“[I]t would be
difficult to affirm that whatever an individual’s alleged
intention he should not be connected to a country that has
been his place of residence over a period of years.”). But
see Director General et al and M.S., No. SY8917 of 1997,
Family Court of Australia at Sydney, 86 (1998) (two years
spent by mother and children in Austria lacked the
“necessary settled purpose” to shift their habitual
residence there).
21. The leading example of this is Re Bates, though one
might characterize this case either as one in which the
child had no prior habitual residence, (“Her life until now
must have been the most nomadic almost, ever to have been
experienced by any child of her age.”), 10, or as one in
which the child did have one, (“The father owns a house in
London . . . . to which they have returned after overseas
tours and during such brief respites as the father has
enjoyed from his professional engagements. . . .”), id., but
it was abandoned:
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 [, pending whatever] decision .
. . the parents then made about their personal lives, both
generally in relation to the future of their marriage and
specifically in relation to the problem of reconciling
Tatjana’s special needs with the demands of the father’s
working career.
Id. at 34. The important point is that focusing on the
question of settled intent to abandon a prior habitual
residence in those cases where one exists does not equate
habitual residence to domicile, which requires “a
combination of residence and intention of permanent or
indefinite residence.” Re B (minors) (abduction), [1993] 1
F.L.R. 993, 998 (Eng. Fam. Div.).
22. See Friedrich, 983 F.2d at 1401 (“To determine the
habitual residence, the court must focus on the child, not
the parents, and examine past experience, not future
intentions.”). See also Y.D. v. J.B. (Droit de la famille –
2454), [1996] R.J.Q. 2509, 2523 (Quebec Ct. App.) (“La
r‚alit‚ des enfants doit seule ˆtre prise en compte pour
d‚terminer le lieu de leur <
‚gard . . . les d‚sirs, souhaits ou intentions de leurs
parents ne comptant pas . . . .”).
23. If a child has attained the age of sixteen, the
Convention no longer applies to it. See Convention, art. 4,
19 I.L.M. at 1501. Further, any child that has “attained an
age and degree of maturity at which it is appropriate to
take account of its views” may object to being returned and
have its wishes considered. Id., art. 13, 19 I.L.M. at
1502-03. Children who fall under neither of these provisions
are clearly not in a position to make independent choices as
to where they wish to reside. Cf. Gonzales v. Reno, 212 F.3d
1338 (11th Cir. 2000) (upholding INS determination that
six-year-old child lacked sufficient capacity to assert
asylum claims unless represented by adult).
24. Clive, note 7 supra, at 144. See also Feder v.
Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) (determination
of habitual residence requires analysis of “the parents’
present, shared intentions regarding their child’s
presence”); In re Ponath, 829 F. Supp. 363, 367 (D. Utah
1993) (“Although it is the habitual residence of the child
that must be determined, the desires and actions of the
parents cannot be ignored . . . . The concept of habitual
residence must . . . entail some element of voluntariness
and purposeful design.”). As Dr. Clive has pointed out,
“[t]his is not to introduce a legal technicality into the
law on habitual residence . . . . The technicality is
already there in the law on decision making for children.”
Clive, note 7 supra, at 144-45.
25. See Clive, note 7 supra, at 145 (“In some cases it may
be possible to conclude on the evidence that in fact they
had the same intention.”).
26. See, e.g., Feder, 63 F.3d at 224 (“That Mrs. Feder did
not intend to remain in Australia permanently and believed
that she would leave if her marriage did not improve did not
void the couple’s settled purpose to live as a family in the
place where [the husband] had found work.”); Walton v.
Walton, 925 F. Supp. 453, 457 (S.D. Miss. 1996) (“Clearly,
even if we accept Mrs. Walton’s statement that she did not
wish to move to Australia, it cannot be seriously argued
that the move was portrayed to her as a mere visit. . . .
the evidence does not support a finding that the Waltons’
life in Australia . . . lacked ‘settled purpose.'”); Prevot
v. Prevot, 855 F. Supp. 915, 920 (W.D. Tenn. 1994) (“[T]he
parties clearly went to France with the intention of
settling there and opening a restaurant.”), overruled on
other grounds, 59 F.3d 556 (6th Cir. 1994); Harsacky v.
Harsacky, 930 S.W.2d 410, 415 (Ken. Ct. App. 1996) (“[T]he
Harsackys had the settled purpose of bringing their family
to the United States in order to locate here on an
indefinite basis in the hope that Mr. Harsacky could find
employment.”); Re F (a minor) (child abduction), [1992] 1
F.L.R. 548, 555 (Eng. C.A. 1991) (“[T]he family did intend
to emigrate from the UK and settle in Australia.”).
27. See, e.g., Pesin v. Rodriguez, 77 F. Supp. 2d 1277, 1285
(S.D. Fla. 1999) (settled purpose of family trip was a
vacation of finite duration); In re Morris, 55 F. Supp. 2d.
1156, 1159 (D. Colo. 1999) (when family left Colorado for
10-month teaching appointment in Switzerland, the parties
had a “shared, settled intention to return to Colorado with
the child,” and mother’s unilateral change of position could
not make Switzerland the habitual residence); Freier v.
Freir, 969 F. Supp. 436, 438 (E.D. Mich. 1996) (when mother
left with child, she informed father that she would be
vacationing with parents for one month); Flores v.
Contreras, 981 S.W.2d 246, 248 (Tex. App. 1998) (mother
brought child to Texas for two-week vacation); Brennan v.
Cibault, 227 A.D.2d 965, 965 (N.Y. App. Div. 1996) (mother
agreed that child should remain with father in New York for
six months, but expected her to return to France on a
specific date). Some periods, on the other hand, though
sharply delimited, may be too long to expect children to
live abroad without acquiring habitual residence. See, e.g.,
Toren v. Toren, 26 F. Supp. 2d 240, 242 (D. Mass. 1998)
(parents had written agreement under which children were to
live and study in the United States for four years, after
which they were to return to Israel).
28. See, e.g., Falls v. Downie, 871 F. Supp. 100, 101 (D.
Mass. 1994) (“Falls understood when Downie left with Patrick
that he and their child would be staying in the United
States for an indefinite period of time.”); Slagenweit v.
Slagenweit, 841 F. Supp. 264, 269 (N.D. Iowa 1993) (“The
parties mutually agreed that Sandra would remain in the
custody of Steven for an indefinite period of time in
Iowa.”); Levesque v. Levesque, 816 F. Supp. 662, 667 (D.
Kan. 1993) (“[W]hen Britta and Vallery returned to Germany .
. . there was an intent to remain, at least for a period of
time which was indefinite. This was by mutual agreement.”);
Schroeder v. Perez, 664 N.E.2d 627, 632-33 (Ohio Com. Pl.
1995) (“The parties had mutually agreed that Gabriela would
remain in the custody of the plaintiff for an indefinite
period in Ohio.”).
29. See, e.g., Meredith v. Meredith, 759 F. Supp. 1432, 1433
(D. Ariz. 1991) (petitioner suggested that respondent take
children to France to visit her parents for unspecified
period); Harkness v. Harkness, 577 N.W.2d 116, 118-19 (Mich.
Ct. App. 1998) (children were left with respondent’s parents
in Michigan for eight months while both parents were in
Germany); Re A, [1995] 1 F.L.R. at 773 (mother’s agreement
that child should attend school in Pakistan for two years
while living with father’s relatives was “temporary and
conditional” and not sufficient to change the child’s
habitual residence); Re S and another (minors) (abduction:
wrongful detention), [1994] 1 All E.R. at 241 (Eng. Fam.
Div. 1993) (family moved from Israel to England, where
parents each had one year teaching appointments, though “it
was not beyond the realms of possibility that they would
have stayed longer”). See also Beaumont & McEleavy, page 4
supra, at 96 (“[A] child might leave with the consent of its
primary carer to spend an extended, yet undefined, period of
time with its other parent, but then not be returned. Prima
facie, this would amount to a wrongful retention. . . .”);
Clive, note 7 supra, at 145:
If . . . there is a genuine difference [of parental
intention] then the conclusion must be that there is no
settled purpose or intention. The position is like that of
an adult who cannot decide whether a move is short-term or
long-term. In such a case the habitual residence would not
be changed until a lengthy period of time had elapsed.
30. See, e.g. Feder, 63 F.3d at 219 (six months); Harsacky,
930 S.W.2d at 412 (four months); Re F (a minor) (child
abduction), [1992] 1 F.L.R. 548, 555 (Eng. C.A.) (“[T]he
family did intend to emigrate from the UK and settle in
Australia. With that settled intention, a month can be, as I
believe it to be in this case, an appreciable period of
time.”).
31. See, e.g., In re Ponath, 829 F. Supp. 363, 367 (D. Utah
1993) (habitual residence not acquired where mother and
child were detained in forum against her desires for ten
months by means of verbal, emotional, and physical abuse);
Director General et al and M.S., No. SY8917 of 1997, Family
Court of Australia at Sydney, 28, 29 (1998) (habitual
residence not acquired despite two years in Austria, where
husband’s family was hostile to wife, and wife and children
were linguistically and socially isolated). Interestingly,
even though these seem to be cases where a lack of effective
acclimatization could easily have been found, the courts
relied instead on failure of settled parental intent. See In
re Ponath, 829 F. Supp. at 368 (“Petitioner’s coercion of
respondent by means of verbal, emotional and physical abuse
removed any element of choice and settled purpose which
earlier may have been present in the family’s decision to
visit Germany.”); Director General at 91 (“Ultimately I am
not persuaded on the evidence in this case that these
parents ever formed a shared intention to remain in Austria
and for it to be the permanent residence of these
children.”).
32. See, e.g., Clive, note 7 supra, at 145.
33. See, e.g., Y.D. v. J.B. (Droit de la famille – 2454),
[1996] R.J.Q. 2509, 2523 (Quebec Ct. App.) (“L’approche ax‚e
sur la r‚alit‚ que vivent les enfants permet d’eviter
d’avoir … sonder les reins et les coeurs des parents.”);
Shah, [1983] 1 All E.R. at 235-36 (“The legal advantage of
adopting the natural and ordinary meaning . . . is that it
results in the proof of ordinary residence . . . depending
more on the evidence of matters susceptible of objective
proof than on evidence as to state of mind.”).
34. See, e.g., Brooke v. Willis, 907 F. Supp. 57, 61 (S.D.
N.Y. 1995) (finding that a six-year-old child had acquired
habitual residence during a summer spent in England, because
the child was “well accustomed to her surroundings,” had
been “happy and well taken care of during her stay,” and
“even stood in the town square with a flag in hand and
recited the British Pledge of Allegiance”).
35. See 42 U.S.C. 11601(b)(4) (“The Convention and this
chapter empower courts in the United States to determine
only rights under the Convention and not the merits of any
underlying child custody claims.”).
36. See Beaumont & McEleavy, page 4 supra, at 97 (“Logic
would suggest that connections with the former State of
residence will weaken slowly, while assimilation in the new
State will progressively increase.”).
37. See, e.g., Clive, note 7 supra, at 145:
The truth of the matter, it seems to me, is that where both
parents have the right to fix the child’s place of residence
and where they are not in agreement on that question, there
is a lack of the type of settled intention which enables
habitual residence to be changed quickly. Accordingly it
will take a considerable period of time for a child to
acquire a new habitual residence after a wrongful removal.
38. Cf. Beaumont & McEleavy, page 4 supra, at 92 (“‘In the
case of children . . . their relationship with their parents
. . . provides the ties which establish the habit of so
residing irrespective of their intentions, likes and
dislikes.'”) (citation omitted).
39. Cf. Walton v. Walton, 925 F. Supp. 453, 457 (S.D. Miss.
1996) (“Probably the most confusing, though often quoted,
statement regarding how one determines habitual residence is
that penned by the Friedrich court . . . .”).
40. La sagesse de l’approche ax‚e sur la r‚alit‚ des
enfants, plut“t que sur les intentions des parents, saute
aux yeux dans un cas comme celui-ci; madame n’a pas
l’intention de demeurer plus longtemps en Californie,
monsieur oui. L’intention duquel des deux parents devrait
prevaloir pour d‚terminer le lieu de la “r‚sidence
habituelle” des enfants? L’approche ax‚e sur la r‚alit‚ que
vivent les enfants permet d’‚viter d’avoir … sonder les
reins et les coeurs des parents.
Y.D., [1996] R.J.Q. at 2523.
41. See, e.g., cases cited in note 26, supra. The Quebec
court’s comment about “reins” and “coeurs”, Y.D., [1996]
R.J.Q. at 2523, demonstrates undue skepticism toward
judicial inquiry into intent, which is a routine and
indispensable aspect of many legal doctrines, such as the
distinction between murder and manslaughter. Such inquiry
does not, as the Quebec court suggests, require exploratory
surgery, only attention to the objective manifestations of
intent found in words and deeds.
42. Clive, note 7 supra, at 145:
Suppose, for example, that a child has lived for 15 years in
a new country after a wrongful removal. It would be an abuse
of ordinary language to say that the child had been
habitually resident for all of that time in the country from
which he or she had been removed and had not become
habitually resident in the new country.
43. Cf. cases cited in note 29, supra.
44. See e.g., Falls, 871 F. Supp. at 101 (child went to live
with father and father’s parents in their home community of
western Massachusetts); Slagenweit, 841 F. Supp. at 265-66
(child moved to United States with father, who was U.S.
citizen); Levesque, 816 F. Supp. at 663 (mother took child
back to its birthplace in Germany, where the mother’s
grandmother still resided); Schroeder, 664 N.E.2d at 632-33
(child lived with mother and mother’s relatives in Ohio).
45. While an unlawful or precarious immigration status does
not preclude one from becoming a habitual resident under the
Convention, it prevents one from doing so rapidly. See
Clive, note 7 supra, at 147. It is also a highly relevant
circumstance where, as here, the shared intent of the
parents is in dispute. See, e.g., In re Morris, 55 F. Supp.
2d. 1156, 1158-59 (D. Col. 1999) (noting that the family
lacked Swiss citizenship and passports, and rejecting the
mother’s testimony that she intended to abandon habitual
residence in Colorado when moving from there to
Switzerland). Conversely, had Arnon helped Michal obtain a
permanent residence visa for herself and the children, we
could infer his consent to a residence of indefinite
duration.
46. See, e.g., Re A and others (minors) (abduction: habitual
residence), [1996] 1 All E.R. 24, 32 (Eng. Fam. Div.)
(family who took up residence at U.S. military base in
Iceland “had no home base of their own elsewhere”); Re
Bates, No. CA 122/89 at 10 (prior to taking up residence
in New York apartment for three months, child’s life had
been “the most nomadic almost, ever to have been experienced
by any child of her age”).
47. See, e.g., Johnson v. Johnson, No. 7505-1995 (Swed. Sup.
Admin. Ct. 1996) (child had been living with mother in
Sweden for more than two years, under an alternating custody
agreement which provided that the child would spend eight
years there and four in the United States).
48. The Rotary and AFS Youth Exchange Programs alone send
annually over 14,000 students aged 15 and older to study and
live for a year in foreign countries. See information
available at http://www.rotary.org> and
49. See, e.g., Re A (Wardship: Jurisdiction), [1995] 1
F.L.R. 767, 770, 773 (Eng. Fam. Div.) (eight-year-old child
sent to live and study with father’s family in Pakistan had
not lost habitual residence in England after one year).
50. See Johnson at 22. Indeed, had the custody agreement
been followed, the child would have spent regularly
alternating periods with each parent, see id. at 3, and
might thus have acquired dual habitual residences. See
Beaumont & McEleavy, page 4 supra, at 110 (arguing that such
a conclusion may in certain cases be theoretically
appropriate, and would not call for return under the
Convention).
51. See 42 U.S.C. 11601(a)(4) (“Children who are wrongfully
removed or retained within the meaning of the Convention are
to be promptly returned unless one of the narrow exceptions
set forth in the Convention applies.”).
52. Since some jurisdictions recognize the custody rights of
parents as joint and several, it is possible for the
unilateral retention of a child in a foreign jurisdiction to
be irremediable under the Convention. See Beaumont &
McEleavy, page 4 supra, at 62.
53. In ascertaining whether there has been a wrongful
removal or retention within the meaning of Article 3, the
judicial or administrative authorities of the requested
State may take notice directly of the law of, and of
judicial or administrative decisions, formally recognized or
not in the State of the habitual residence of the child,
without recourse to the specific procedures for the proof of
that law or for the recognition of foreign decisions which
would otherwise be applicable.
Convention, art. 14, 19 I.L.M. at 1503.
54. When parents who do not live together fail to agree on
matters within the scope of their guardianship, the Israeli
courts are to determine them in the best interests of the
children. See Capacity and Guardianship Law, 16 L.S.I. at
109-10 (Section 25). By seeking to have this determination
made in the United States rather than in the country of the
children’s habitual residence, Michal did precisely what the
Convention was intended to prevent. See Perez-Vera Report,
page 3 supra, at 13, 16.
55. We take judicial notice of the fact that, after the
district court decided the case and while it was on appeal
before us, the Los Angeles Superior Court entered an award
in the custody proceeding which it had previously stayed
pending resolution of Arnon’s claim in the district court.
Article 16 of the Convention provides, in pertinent part,
that “[a]fter receiving notice of a wrongful removal or
retention of a child in the sense of Article 3, the judicial
or administrative authorities of the Contracting State to
which the child has been removed or in which it has been
retained shall not decide on the merits of rights of custody
until it has been determined that the child is not to be
returned under this Convention . . .” Convention, art. 17,
19 I.L.M. at 1503 (emphasis added). Because it has not yet
been determined whether the Mozes children must be returned
under the Convention, the Superior Court’s custody decree is
premature. We presume that the Superior Court, or the
district court on remand, will take appropriate steps to
ensure its compliance with the Convention.
It is worth noting that the district court would not be
barred by the Rooker-Feldman doctrine from vacating the
Superior Court’s custodial decree or its order enjoining
removal of the children from California. See Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415-16 (1923) (holding
federal statutory jurisdiction over direct appeals from
state courts beyond the original jurisdiction of federal
district courts); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 486-87 (1983) (holding that claims
“inextricably intertwined” with those a state court has
already decided beyond the jurisdiction of lower federal
courts). Because the doctrine is one of congressional
intent, not constitutional mandate, it follows that where
Congress has specifically granted jurisdiction to the
federal courts, the doctrine does not apply. See, e.g., In
re Gruntz, 202 F.3d 1074, 1078-79 (9th Cir. 2000) (en banc)
(noting that through statutory writ of habeas corpus and
bankruptcy statutes Congress permits federal collateral
review of state court and criminal bankruptcy judgments). In
this case, Congress has expressly granted the federal courts
jurisdiction to vindicate rights arising under the
Convention. See 42 U.S.C. 11603(a). Thus, federal courts
must have the power to vacate state custody determinations
and other state court orders that contravene the treaty.
56. Notwithstanding the provisions of the preceding Article,
the judicial or administrative authority of the requested
State is not bound to order the return of the child if the
person, institution or other body which opposes its return
establishes that –
a) the person, institution or other body having the care of
the person of the child was not actually exercising the
custody rights at the time of removal or retention, or had
consented to or subsequently acquiesced in the removal or
retention; or
b) there is a grave risk that his or her return would expose
the child to physical or psychological harm or otherwise
place the child in an intolerable situation.
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.
Convention, art. 13, 19 I.L.M. at 1502.
57. The remaining exception is clearly inapplicable. As we
have pointed out above, the district court found that Arnon
continued to exercise his parental rights up until the time
of the retention. See page 44 supra. Given that he has
litigated continually for the children’s return since then,
he obviously has not “subsequently acquiesced” in their
retention. Convention, art. 13, 19 I.L.M. at 1502.
58. In making the first of these determinations, the
district court must be mindful that it is not deciding the
ultimate question of custody, or even permanent return of
the children to Israel. That decision will be made by the
appropriate Israeli tribunal. The district court must
determine only whether returning the children to Israel for
long enough for the Israeli courts to make the custody
determination will be physically or psychologically risky to
them, and, if not, order the return of the children to
Israel forthwith.