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Case Commentary: Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)

James D. Garbolino
February 23, 2016
Available Online Only

Habitual Residence

Mozes remains the most-followed case for determining habitual residence and stands out as the most-cited circuit case dealing with the 1980 Convention.


The case involved a mother who moved from Israel to Beverly Hills with the parties’ four children for a period of fifteen months so that the children could be exposed to an “American experience.” Father agreed to the move, but the parents disagreed as to what would occur after the expiration of the fifteen-month period.


The opinion focuses on the general principle that one may not acquire a new habitual residence unless there is a mutual intent to abandon the old one:

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.[1]

On the question of acclimatization, the court observed,

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.[2]

The Mozes opinion found the Sixth Circuit’s test for determining habitual residence unduly broad (“focus on the child, not the parents”[3]) and also concluded that the court improperly disregarded parental intent.

The Third, Sixth, and Eighth Circuits’ holdings regarding the issue of habitual residence all, to some extent, contradict the holding in Mozes. Those circuits focus on an analysis of the facts and circumstances surrounding the child’s existence in the particular place in question.[4]

[1]. Mozes v. Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001).
[2]. Id. at 1079.
[3]. Friedrich v. Friedrich (Friedrich I), 983 F.2d at 1401.
[4]. See Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995); Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006); Friedrich I, 983 F.2d 1396 (6th Cir. 1993); and Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.