USA – MA – ZUKER V ANDREWS – 1998 (1998) (Return denied) ZUKER v Andrews. Two children taken by their mother to USA. Judge ruled that Zuker’s (the father) petition for return of child to Argentina is dismissed as without merit. Children not returned.
Zuker v Andrews (D. Mass. 1998)2 F.Supp.2d 134
6 International Abduction [USA 1998]
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United States District Court
District of Massachusetts
ALEJANDRO ZUKER, ]
Plaintiff, ] Civil Action No 97-12099-RCL
] [Collings, U.S.M.J.]
V. ] 10 Apr 1998
]
PATRICIA K. ANDREWS, ]
Defendant. ]
______________________]
<* page 135>
I. INTRODUCTION
001 Petitioner, Alejandro G. Zuker (“Zuker”), a citizen of
Argentina, FN1 seeks relief under The Hague Convention on
the Civil Aspects of Child Abduction (“the Convention”), as
implemented by the International Child Abduction Remedies
Act (“ICARA”), 42 U.S. C. 11601 et seq. He has filed an
application with the United States Central Authority under
The Hague Convention on the Civil Aspects of Child Abduction
seeking the return of his child, Sasha, to Argentina.
Sasha’s mother, the respondent Patricia C. Andrews
(“Andrews”), is a citizen of the United States. FN2 She
and the child reside in Watertown, Massachusetts. A Petition
for Return of Child to the Petitioner was filed in this
Court on September 4, 1997. An evidentiary hearing was held
on December 19, 1997. FN3
<* page 136>
002 There is no dispute as to the times when Sasha and
Andrews were in the United States and when they were in
Argentina. Sasha was born in New York City on June 16, 1993.
(Def. Exh. # 17) For a few weeks in April, 1994, Sasha and
Andrews were in Argentina. From April to November, 1994,
they were in New York City. From November, 1994 until May,
1995, they were in Argentina. From May, 1995 to November,
1995, they were in Waltham, Massachusetts residing at
Andrews’ mother’s home. From November, 1995 to June, 1996,
they were in Argentina. They left Argentina and arrived in
New York on June 14, 1996. From June, 1996 until the
present, Sasha has lived in Massachusetts with Andrews,
first at his grandmother’s home in Waltham and later at an
apartment Andrews rented in Watertown. He has not returned
to Argentina.
003 It is also not disputed that Andrews and Sasha went to
Argentina in November, 1994 so that they could reside with
Zuker while he worked on a planned Compact Disc (“CD”) (Exh.
#8) and that Zuker worked on the production and marketing of
the CD in Argentina at least through June, 1996 when Andrews
and Sasha returned to the United States. Zuker alleges that
Andrews wrongfully retained the child in the United States
in June 1997, a year after she and Sasha returned to the
United States. (Exh. 3, p. 2) The Court’s task is to decide
what was the “habitual residence” of the child at the time
when the alleged wrongful retention is said to have
occurred. This task actually breaks down into resolving
subsidiary issues.
004 The Court is not bound to accept Zuker’s allegation
that the wrongful retention occurred in June, 1997. The date
of the retention is important because Article 12 of the
Convention provides that if the Court finds that Sasha has
been wrongfully retained and the filing of the petition in
this Court (“the judicial authority of the Contracting
State”) occurred more than a year after the wrongful
retention, the Court cannot order a return of the child if ”
. , . the child is now settled in its [sic] new
environment.” Since the petition was filed on September 4,
1997, if the wrongful retention was more than a year prior
to that date, the question of whether Sasha is now settled
in his new environment would have to be resolved. The date
on which the alleged wrongful retention occurred is
important from another perspective. Article 3 of the
Convention provides, in pertinent part, that:
The … retention of a child is to be considered
wrongful where —
(a) it is in breach of rights of custody
attributed to a person … 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. FN4
005 Thus, the question with respect to “habitual resident”
is tied to that period of time “immediately before” the
retention. The date of retention pinpoints the period of
time at which the “habitual residence” of the child is to be
determined.
II. SASHA’S HABITUAL RESIDENCE IN JUNE9 1996
A. The Law Respecting Habitual Residence
006 In order to be entitled to the requested relief, Zuker
must show that respondent Andrews is wrongfully retaining
their son Sasha from the place of Sasha!s “habitual
residence.” Wanninger v. Wanninger, 850 F.Supp. 78, 80 (D.
Mass., 1994). Zuker argues that Argentina is Sasha’s
habitual residence.
007 The term “habitual residence” is not defined under the
Convention. Instead, a child’s “habitual residence” is to be
determined by examining the specific facts and circumstances
at hand. Meredith v. Meredith, <* page 137> 759 F. Supp. 143
2, 1434 (D. Ariz., 199 1). Courts should not interpret the
term technically or restrictively. Rydder v. Rydder, 49 F.3d
369, 373 (8 Cir., 1995).
008 One of the most frequently cited explanations of the
term “habitual residence” is that set out by the High Court
of Justice In re Bates, No. CA 122-89, High Court of
Justice, Family Div’n Ct. Royal Courts of Justice, United
Kingdom (1989); see, e.g., Feder v. Evans-Feder, 63 F.3d
217, 222-24 (3 Cir., 1995) (citing Bates); Falls v. Downie,
871 F. Supp. 100, 102 (D. Mass., 1994) (same); Slagenweit v.
Slagenweit, 841 F.Supp. 264, 268 (N.D.1a., 1993) (same); In
re Ponath, 829 F.Supp. 363, 367 (D. Utah, 1993) (same);
Levesque v. Levesque, 816 F. Supp. 662, 666 (D. Kan., 1993)
(same); Harsacky v. Harsacky, 930 S.W.2d 410, 413
(Ky.Ct.App, 1996) (same). The Bates court explained by
quoting a speech by Lord Scarman in 1983 as follows:
[T]here must be a degree of settled purpose. The
purpose may be one or there may be several. It
may be specific or general. All that the law
requires is that there is a settled purpose.
That is not to say that the propositus intends
to stay where he is indefinitely. Indeed his
purpose while settled may be for a limited
period. Education, business or profession,
employment, health, family or merely love of the
place spring to mind as common reasons for a
choice of regular abode, and there may well be
many others. All that is necessary is that the
purpose of living where one does has a
sufficient degree of continuity to be properly
described as settled.
009 American courts have used this explication in their
own determinations of where a child has his or her “habitual
residence.” In Feder, the Third Circuit cites Bates and
explained:
[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 . . . .
[A] determination of whether any particular
place satisfies this standard must focus on the
child and consists of an analysis of the child’s
circumstances in that place and the parent,
shared intentions regarding their child’s
presence there.
Feder, 63 F.3d at 224.
010 Cases similar to the one at bar illustrate further the
requirement that there be a “settled purpose.” For instance,
in Slagenweit, the parents had agreed that the child would
travel from Germany, where she lived with her mother, to
live with her father indefinitely in Iowa. The parties
agreed the child would live with her father while her mother
prepared to return to school, and that while in Iowa the
child would be able to obtain needed medical attention
superior to that which had been available to her in Germany.
Eight months later, the child’s mother demanded her return,
and the father refused. Slagenweit, 841 F.Supp. 266.
011 The court found that the child was not being
wrongfully retained in Iowa. While the parties agreed the
child’s habitual residence initially had been in Germany, it
had changed to Iowa as “a result of a change in geography
and a passage in time.” Id. at 269. Over that period of
eight months (which the court characterized as “a
substantial passage of time,” Slagenweit, 841 F.Supp. at
269, the court concluded the child had become a residence of
Iowa through her involvement with her father and his
girlfriend and through the medical community responsible for
her treatment. The court deemed it significant that the
parents initially had agreed that the child would live in
Iowa for an indefinite period of time, and by the time the
mother objected to the child’s continued presence there, she
was well-established in her new home in Iowa. Id.
012 In Levesque, a German citizen attempted to reconcile
with her estranged husband by moving with their child to the
United States, where he (the child’s father) had been
transferred from his army post in Germany. They lived in
Kansas for nearly a year, after which time she returned to
Germany with their child to visit her family. She returned
to Kansas five weeks later, only to go back to Germany with
the child almost immediately. He (the child’s father) agreed
that she could return with the child to Germany, but he <*
page 138> believed they would be gone only for a short time.
Problems had developed in the marriage again, and shortly
after the mother and child returned to Germany, it became
apparent that she planned to remain in Germany with the
child. Approximately three weeks later, the child’s father
flew to Germany, took the child without the mother’s
consent, and returned with the child to the United States.
Levesque, 816 F.Supp. at 663.
013 The court ordered that the child be returned to
Germany. Even though the child had lived with both parents
in Kansas for nearly a year, the court concluded that the
child’s habitual residence switched to Germany after the
couple agreed that the mother would return there with the
child for an indefinite period of time. Id. at 666. This
arrangement “amounted to a purpose with a sufficient degree
of continuity to enable it properly to be described as
settled.” Id. (quoting Bates).
014 In Falls, a German woman agreed that her child and the
child’s father would move from the family’s residence in
Germany to the United States for an indefinite period of
time. The couple was experiencing financial difficulty, so
they intended that he and the child would live with his
parents in Massachusetts and look for work. The couple’s
relationship deteriorated during the separation, and eight
months later, she sought her child’s return to Germany.
Falls, 871 F.Supp. at 100-01. The court held that during
those eight months, the child had become sufficiently
settled in Massachusetts so that it had become the child’s
habitual residence. Id. at 102.
015 An additional factor which seemed important to the
Falls court was the child’s young age; he was twenty-one
months old when his mother sought his return to Germany,
after a stay in this country of eight months. The court
remarked, “He [the child] had become completely accustomed
to life in this country with his father and grandparents; he
barely knew his mother.” Falls, 871 F.Supp. at 102. Indeed,
at least one other court has noted that a short period of
time can be quite significant in the life of a young child.
In Feder, the child’s habitual residence was found to be
Australia, even though he had lived there only six months.
“Evan moved, with his mother and father, from Pennsylvania,
to Australia . . . and stayed in Australia for close to six
months, a significant period of time for a four-year old
child.” Feder, 63 F.3d at 224 (emphasis added). This
approach is consistent with the directive in Feder that the
court must look to the child’s circumstances, and to whether
the child has become acclimated to the new locale, in
determining the habitual residence, rather than to the
parents’ future intentions for the child. Id
B. Findings of Fact Respecting Sasha’s Habitual Residence
016 Applying this law to the facts of this case, I find
that for three periods (November, 1994 to May, 1995; May,
1995 to November, 1995; and November, 1995 to June, 1996),
Sasha was a habitual resident of the country in which he was
actually situated. This is certainly true from the point of
view of Sasha. It is also true from the point of view of the
shared intentions of the parents. Both parents intended that
Andrews and Sasha would live in Argentina while Zuker
finished the CD, both parents agreed to Andrews and Sasha
returning to the United States for six months in 1995, and
both parents agreed to Andrews’ return with Sasha to
Argentina in November, 1995. While I find that the
expectation of both parents differed as to how long they and
Sasha would stay in Argentina in on each occasion, each of
the trips back and forth was essentially the product of an
agreement between the parents, at least to the extent that
the trips would take place. In fact, Andrews’ return to the
United States in June, 1996 with Sasha was agreed to between
the parents, FN5 but there was no agreement at that time
on the length of stay in the United States. FN6
<* page 139>
017 While I credit Andrews’ testimony that she never
intended that she and Sasha would live in Argentina forever
and that when she moved to Argentina in November, 1994, she
intended to come back to the United States when Zuker’s work
in Argentina was finished, that does not establish that
Sasha’s habitual residence was not in Argentina during the
months-long periods he and Andrews lived there. Thus, I
find that in June, 1996, after seven months in Argentina,
Argentina was Sasha’s habitual residence even though Andrews
wanted desperately to return to the United States with him
months before the actual return.
III. DATE OF RETENTION
A. The Law Respecting When Retention Occurs
018 The court must first determine when the alleged
wrongful retention began. As indicated, supra, Zucker
contends that the wrongful retention commenced in July,
1997. In Slagenweit, the court held that the wrongful
retention began when “the noncustodial parent … clearly
communicate[d] [the] desire to regain custody and assert[ed]
[the] parental right to have [the child] live with [him or]
her.” Slagenweit, 841 F.Supp. at 270. In that case, the
court determined that this occurred when the noncustodial
parent first asked that the child be returned to her in
Germany and the custodial parent refused. FN7 And in
Falls, the court likewise stated that the retention became
wrongful, if at all, when the child’s mother asked that the
child be returned to her in Germany and the father refused.
Falls, 871 F.Supp. at 102.
B. Findings of Fact as to Date of Retention
019 I find that Zuker first asked that Andrews and Sasha
return to live with him in Argentina in or about July, 1996,
a month after Andrews and Sasha left Argentina. (Exh. 1) It
is more difficult to determine when it was that Andrews
refused to return to Argentina because she has admitted
lying to Zuker, albeit allegedly under duress, as to her
intentions. FN8 She also admitted to giving mixed messages
as to her intentions when she was in the United States in
1995. (Tr. 113).
020 There is also another dimension to the problem. On the
record before me, although it is undoubtedly true that after
her return to the United States in June, 1996, she told
Zuker that she did not want to return to Argentina, it was
not until July of 1997 that she told him that she and Sasha
would not live with him in the United States and that she
did not “want anything to do with him.” (Tr. 75) Evidently,
it had been a shared intention for a long period of time
that when Zuker finished his work in Argentina, the couple
would live together in the United States, perhaps in
California. (Tr. 74, 110-111, 126, 13 1) While I credit
Andrews’ testimony that by February, 1997 when she learned
that Zuker had been unfaithful to her, she resolved not to
live with him again, there is nothing in the record to
indicate that she informed Zuker of this until July, 1997.
While this was due to the fact that she wanted to be able to
retrieve the property she had left in Argentina and to
collect the money which Zuker owed her, it nonetheless <*
page 140> left Zuker in the dark as to her true intentions.
021 However, the petition alleges that Andrews wrongfully
retained Sasha in the United States away from his habitual
place of residence which Zuker alleges was Argentina. The
retention occurred when Zuker knew that Andrews was not
going to return Sasha to Argentina. Until he knew that
Andrews would not return, it would be unfair to require
Zuker to file a petition based on alleged wrongful
retention.
022 Based on all the evidence, however, I find that
Andrews, by moving out of her mother’s apartment and renting
her own place in Watertown, clearly communicated to Zuker
that she was refusing to return to Argentina with Sasha.
Until that time, Zuker more or less acquiesced in her
remaining in Massachusetts. As he wrote on June 27, 1997
(Exh. I at p. 3):
After a month or so [after Andrews and Sasha
went to the United States in June, 1996] I
requested their return to Argentina to which
Patricia answered that the summer was nice in
[sic] USA and in Argentina was winter. She
continued extending their visit with excuses
like “I have some patients I’m treating”, etc.
During that time she requested some items which
I sent, and some money, which I wired, always
thinking it would help their promp [sic] return
to Argentina.
023 However, as soon Andrews got her own apartment, it was
clear to Zuker that Andrews did not intend to comply with
his request that she and Sasha return to Argentina. As he
further stated on June 27, 1997 (Exh. 1 at p. 3):
To compose, produce, record and publish a CD is
a very complex attainment with many people
involved so I was busy and time was flying for
me to realize what was going on. Suddenly a few
months ago she moved out her [sic] mother’s
place and rented her own. For a while I didn’t
know where they were since although she was
calling, she wouldn’t give me her new address.
024 Accordingly, I find that applying the law to the facts
of this case, that Andrews’ retention of Sasha occurred in
or about February, 1997 when she moved into her own
apartment in Watertown, Massachusetts because, based on all
that occurred up until that point, it was by that act that
Andrews communicated to Zuker that she was not going back to
Argentina.
025 I further find that Zuker knew that Andrews had moved
into her own apartment shortly after it happened. (Tr. 101)
He asked his friend, Maxie, to help Andrews move. (Tr. 102)
On May 7, 1997, he gave Andrews a document authorizing her
to sell the New York City apartment and referred to Andrews’
Watertown address in the body of the document. (Exh. 14) In
sum, the retention of Sasha from what was his habitual
residence in June, 1996 did not occur until February, 1997.
IV. SASHA’S HABITUAL RESIDENCE IN FEBRUARY, 1997
026 The same reasoning which led to the conclusion that
Sasha’s habitual residence from November, 1995 to June, 1996
was in Argentina leads inexorably to the conclusion that his
habitual residence in February, 1997 was in Massachusetts.
While I find that during the period June, 1996 to February,
1997 the expectation of both parents as to how long Andrews
and Sasha would remain in the United States differed, their
remaining here was in substance the subject of a tacit
agreement, or at least, an acquiescence on Zuker’s part.
(Tr. 87-88) Accordingly, I rule that in February, 1997,
Sasha!s habitual residence was in Massachusetts.
V. THE ALTERNATIVE ISSUE
027 As I indicated, I find that as of June, 1996,
Argentina was Sasha’s habitual residence. If I am incorrect
and that the retention occurred in July, 1996 when Zuker
asked Andrews to return Sasha to his habitual residence in
Argentina, Zuker’s petition was not filed until over a year
later, i.e., in September, 1997. The issue becomes whether
the requested return of Sasha to Argentina should be denied
because at the time the petition was filed, i.e., September,
1997, Sa- <* page 141> sha had become “settled” in his new
environment in Massachusetts.
A. The Law Respecting When a Child Has Become Settled
028 When the petition is filed more than a year after the
retention, the respondent must show “evidence that the child
[is] in fact settled in or connected to the new environment
so that, at least inferentially, return would be disruptive
with likely harmful effects. . .. [T]here must be
‘substantial evidence of the child’s significant
connections.'” In re Robinson, 983 F.Supp. 1339, 1345 (D.
Colo. 1997) (quoting Public Notice 957, 51 Fed.Reg. at
10,509).
029 In Robinson, the court found the children had become
sufficiently settled in their new environment, since they
enjoyed active involvement with the respondent’s extended
family, were enrolled in school and doing well, were active
in extracurricular activities, and had established
friendships. Id at 1346. In In re Wojcik, 959 F.Supp. 413
(E.D.Mich. 1997), the court likewise found the children were
settled in their new environment because they had been
attending school or day care consistently; they had friends
and relatives in the area; and they attended church
regularly with their mother. Id. at 421. In contrast, the
court noted that the uncontroverted evidence demonstrated
the father’s family in France was “indifferent to the
children at best.” Id
030 The court in In re Petition for Writ of Habeas Corpus
for Coffield, 644 N.E.2d 662 (Ohio Ct.App, 1994), held that
the child in question there had not become settled in his
new environment at the time the petition for his return had
been filed. But the child’s father apparently had been
trying to conceal their whereabouts, and so over a period of
three years he had exposed the child only to a limited group
of friends and relatives, “i.e., people whom [the father]
could trust.” The child was not enrolled in school or other
activities and had not made friends in the community at
large. Thus, the court held the boy was not settled in his
new environment, so the Article 12 defense did not apply. In
re Petition for Writ of Habeas Corpus for Coffield, 644
N.E.2d at 666.
031 Both the Wojcik and Robinson courts relied in part on
the fact that the children at issue in those cases were “old
enough to allow meaningful connections to the new
environment to evolve.” Robinson, 983 F.Supp. 1345. Both
courts contrasted David S. v. Zamira S., 151 Misc.2d 630,
574 N.Y.S.2d 429 (1991), in which the court held that
children who were 3 and 1 1/2 years old were “not yet
involved in school, extracurricular, community, religious or
social activities which children of an older age would be,”
and so were not settled in their new environment. Id at 636,
574 N.Y.S.2d at 433. In contrast, the children in Wojcik
were 8 and 5 years old at the time of the hearing, Wojcik,
959 F.Supp. at 421; the children in Robinson were
approximately 10 and 6 years of age. Robinson, 983 F.Supp.
at 1341.
B. Findings of Fact as to Whether Sasha was
Settled as of September, 1997
032 As of September, 1997, Sasha was four years, two
months old. Since June, 1996, he has attended the Waltham
Day Care Center on a full-time basis even though Andrews
moved from her mother’s apartment in Waltham to Watertown.
(Exh. 9) The Executive Director states that since 1996, ” .
. . Sasha has grown and thrived academically and socially”
and ” . . . attends birthday parties and playdates at his
home and at the home of his friends.” (Exh. 9) He has
“established relationships with teachers, children and other
staff.” (Id.) He sees his grandmother two or three times a
week and has “bonded” with her. (Tr. 31)
This evidence is both substantial and persuasive. No
contrary evidence was introduced. Accordingly, I find that
as of September, 1997, Sasha had become “settled in his new
environment. ” FN9
<* page 142>
VI. CONCLUSION
033 In sum, I rule that as of June, 1996, Sasha’s habitual
residence was Argentina. I rule that it was in February,
1997 that Andrews communicated by both word and deed that
she would not return to Argentina with Sasha as Zuker had
requested in July, 1996. Thus, any wrongful retention
occurred in February, 1997. However, I further find that in
February, 1997, Sasha’s habitual residence was in
Massachusetts and it remained so. Thus, Andrews’ retention
of Sasha was not “wrongful” because she was not retaining
him from what was then his habitual place of residence.
Alternatively, if the date of Andrews’ retention was July,
1996, I rule that when the Zuker’s petition was filed over a
year later on September 4, 1997, Sasha was settled in his
new environment.
Accordingly, it is ORDERED that Zuker’s Petition for return
of Sasha to Argentina be, and the same hereby is, DISMISSED
as without merit and judgment to that effect shall enter
forthwith.
/s/
ROBERT B. COLLINGS
United States Magistrate Judge
10 Apr 1998
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FOOTNOTES
1 Zuker is also a permanent resident alien of the United
States.
2 Zuker and Andrews never married.
3 Prior to the evidentiary hearing, the parties
consented to have the case reassigned to the
undersigned United States magistrate judge for all
purposes, including trial and entry of judgment,
pursuant to 28 U.S.C. 636(c).
4 There is no dispute in this case that at whatever time
the retention, wrongful or otherwise, took place,
Zuker had rights of custody and was actually
exercising those rights or would have been exercising
them but for the retention. See Tr. 160.
5 Zuker drove Andrews and Sasha to the airport and
arranged for them to leave when Argentine authorities
raised questions about the fact that they had over
stayed the period in which they were allowed to be in
the country. (Tr. 109, 131)
6 This fact distinguishes this case from the case of
Levesque v. Levesque, 816 F.Supp. 662, discussed,
supra, at pp. 7-8. In that case, the parents had
agreed that the child would return to Germany with the
mother for an indefinite period of time. I find that
in the instant case, there was no agreement between
the parents that Sasha would return to the United
States with Andrews for an indefinite period of time
in the sense that the period would be lengthy. It is
true that there was no agreement on a “definite”
period of time during which Andrews and Sasha would
remain in the United States in the sense of agreement
on a particular span of days or months. But Zuker
expected that the time would be short and Andrews
expected that Sasha would never return to Argentina to
reside. Put another way, I do not find that Zuker
agreed in June, 1996 that Andrews’ and Sasha’s visit
to the United States would be more than a few weeks to
a month.
7 In Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc.2d
25, 664 N.E.2d 627 (1995), the court cited Slagenweit
with approval in a case involving similar facts. The
court in that case held that any wrongful retention
did not begin until the parties actually “began a
battle over custody of the child.” Id. at 33-34, 664
N.E.2d at 632 (citing Slagenweit).
8 When she and Sasha left Argentina in June, 1996, she
told him that she’d come back for a visit when they
had enough money and also told him that they would be
back in two weeks. (Tr. 134).
9 The case of David S., 151 Msc.2d 630, 574 N.Y. S.2d
429, is not to the contrary. The holding of that case
was based on a lack of evidence submitted that the
children had become settled in their new environment.
There was no evidence that the children had “formed
meaningful relationships” or that they attended
“nursery school.” Id., 151 Msc.2d at 636, 574 N.Y.S.2d
at 433.
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22 May 1998: Comments by William M. Hilton, CFLS
I wish to thank Advocates Dr. Dov I. Frimer and Yosef
Mendelson of Israel for their review of this Comment and
their very helpful remarks.
This decision discusses Habitual Residence (H/R), Date of
Retention and Well Settled.
One should always keep in mind that in any action under The
Convention there is a presumption that, everything being
equal, the child is to be returned to the child’s habitual
residence and that all inferences should be made for that
outcome.
The discussions on Date of Retention and Well Settled are in
accord with mainstream decisions. Where I part company with
the learned judge is in his discussion of H/R.
While a significant part of his H/R discussion follows the
current international trend, he does not give due weight to
the requirement that the child’s change of H/R must be done
with the shared intent of the parties.
In the cases he cites to support his proposition that H/R
shifted after about eight months, all of these decision had
two points in common: a) The parents both agreed that the
child was to be were the child was and b) it was agreed that
the child was to be in the new forum for an “indefinite
period” of time.
While I do agree that “mutual consent” can be inferred from
the actions of the parties, it should be kept in mind that,
as a general rule, one should presume that if the child is
in a place less than one year (cf. Art. 12), then that place
has not become the H/R and the burden is on the retaining
party to demonstrate that it is. Contra wise, if the child
is in the requested forum for over one year then it may be
presumed that the requested forum is now the H/R and it will
be the burden of the requesting parent to demonstrate that
it is not.
Here the court seem almost anxious to prove that the H/R had
shifted from Argentina to Massachusetts during the seven or
eight month period the child was in Massachusetts before the
date of Wrongful Retention.
At any event due deference was not given to the one year
presumptions that flow from Art. 12.
What this decision appears to say is that any time a child
is sent to a requested forum for an indefinite period of
time and the child is in the requested forum for a
substantial period of time, usually interpreted to be a
substantial period of the child’s life, then it can be
argued that the H/R may shift.
Consider: The parents, after mutual negotiation, agree that
a child can be sent from Forum 1 to Forum 2 for the academic
year. Both parents agree, in writing, that Forum 1 remains
the H/R of the child, that the length of stay in Forum 2
will not cause Forum 2 to become the H/R and that if the
child is not returned to Forum 1 at the end of the academic
term, then this will be deemed a “Wrongful Retention”.
Despite this agreement between the parties and the definite
time frame, does the H/R shift from Forum 1 to Forum 2?
Zucker seems to say that it does not, since the Zucker court
based its finding that the H/R had shifted on the fact that
the child had been sent to Froum 2 for an indefinite period
of time: “. . . but there was no agreement at that time on
the length of stay in the United States.” (No. 016, above).
If a court were to hold that, in the example given, the H/R
had shifted from Forum 1 to Forum 2, then parents would
never send a child out of Forum 1 to Forum 2 since The
Convention would not apply due to the shift of “H/R” and
accordingly one of the principle purposes of The Convention
would be eliminated, that is, to secure rights of access.
Even where the child is sent for an indefinite period of
time, I believe, more weight should be given to two factors:
1) The change in H/R must be based on mutual intent,
explicit or implicit and 2) Deference to the one year
presumptions under Art. 12.
If these two steps had been taken in this case it would have
been the mother’s burden to show that there was mutual
consent to the child’s presence in Massachusetts until Feb
1997 (I can accept the Court’s finding that the “wrongful
retention” occurred when she moved out of the apartment,
this is a “hostile act” if you will and it should have been
recognized as such by the father) and that it would also be
her burden to show that Massachusetts had become the child’s
H/R during this time.
Since, under this hypotheses, the “Wrongful Act” occured on
Feb 1997, the father would have one year (under Art. 12) to
bring an action under The Convention, that is, he had until
Feb 1998.
Since the child had been in Massachusetts for less then one
year when the wrongful act occured, it should have been
presumed that Massachusetts was not the H/R at the time of
the wrongful act and that the burden would be on the mother
to show that Massachusetts was the H/R.
For further discussion on this point see In re S. (Minors)
(Abduction: Wrongful Retention); [1994] F.L.R. 70; 1
International Abduction [UK 1994] and Re AZ (A
Minor)(Abduction; Acquiescence); [1993] 1 F.L.R. 682; 2
International Abduction [UK 1993].