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Civil Litigation & Procedure
Habitual Residence | Custody Rights
This case addresses the fundamental principles of habitual residence and discusses the significance of establishing custody rights and habitual residence when only one parent has the legal right to custody of the child.
Mother and father were unmarried and had a son in common. Father executed a declaration of paternity at the time of the child’s birth. The parties lived in Illinois, though mostly separate and apart during their ten-year relationship. The child lived exclusively with mother, and father had frequent visitation. In 2010 the parties memorialized a private arrangement for custody and visitation, but the child was never the subject of any court orders. When their son was seven years old, mother moved to Mexico and took the child with her. Approximately one year later, father convinced mother to send the child to him for a visit in Illinois but then refused to return the child. Mother filed a petition for return of the child to Mexico. The district court found that the child’s habitual residence was Illinois and ordered mother’s petition dismissed.
The Seventh Circuit reversed, finding that father did not have sufficient custody rights.
Custody Rights. Under Illinois law, the written memorandum that provided father with visitation rights was unenforceable. Moreover, father’s rights were for visitation only. Under the Convention, visitation rights are insufficient to establish an action for return of a child, and father did not benefit from a ne exeat provision. Father argued that the acknowledgment of paternity was sufficient to confer custody rights, but the Seventh Circuit rejected the claim. A judgment of paternity, under Illinois law, does not mean that custody or visitation rights are automatically conferred. Although an acknowledgment of paternity may have legal consequences for certain purposes, it does not confer custody rights. Mother had the absolute right to determine the child’s location and habitual residence.
Habitual Residence. The Seventh Circuit reiterated its Redmond v. Redmond adoption of a hybrid Mozes v. Mozes approach—habitual residence determined by parental intent and acclimatization—as follows:
The two most important factors in the analysis are parental intent and the child’s acclimatization to the proposed home jurisdiction. [Redmond] at 744–45. Courts have differed on the weight each factor should receive. We have tended to privilege the parents’ perspective, but even so, we have stressed that this emphasis is dependent on the circumstances. Id. at 746. We also have noted that “[t]he 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.” Id. at 747 (quoting Mozes, 239 F.3d at 1076). Importantly, shared intent “has less salience when only one parent has the legal right” to determine residence. Id.
. 724 F.3d 729 (7th Cir. 2013).
. 239 F.3d 1067, 1070 (9th Cir. 2001).
. Redmond, 724 F.3d at 745 (“‘[T]he 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’—usually, the parents. When parents jointly intend to raise a child in a place and actually live there, that place becomes the child’s habitual residence. The child’s habitual residence may change later if the parents mutually intend to abandon the residence in favor of a new one, but only a shared intent will do; the unilateral intent of a single parent will not.” (citations omitted) (quoting Mozes, 239 F.3d at 1076)).
. Id. at 745–47.
. Martinez v. Cahue, 826 F.3d 983, 990 (7th Cir. 2016).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Delay Defense | Settlement | Immigration Status
This is a case of first impression in the Fifth Circuit, addressing the meaning of the term settled in the context of a delay defense.
Mother and father are married citizens of Honduras. Their child, D.A.P.G., was born in 2009. The parties separated but did not obtain a divorce or custody order regarding the child. Mother was the child’s primary custodian and father maintained regular contact with the child. In May 2014 mother secretly removed the child and illegally entered the United States. Mother and the child were apprehended by U.S. authorities and placed in removal proceedings, but in the meantime, they were released from custody and settled in New Orleans. D.A.P.G. lives with mother, mother’s boyfriend, and their four-and-a-half-month-old baby.
Father located his child through the U.S. State Department in May 2015. Father filed a petition for return in August 2015, fourteen months after the child’s removal from Honduras. At trial, mother agreed that the child had been wrongfully removed from Honduras, but she relied upon the defense that the child was now settled in his new environment and that the child would suffer a grave risk of harm should he be returned to Honduras. Mother presented testimony that D.A.P.G. was happy and well-adjusted and had formed new friendships at church, school, and at home. Mother failed to appear for her immigration proceedings, however, and her failure to attend potentially triggered an order for removal. The district court found that the child was well-settled and denied father’s petition.
The Fifth Circuit reversed. Since this was a matter of first impression in the Fifth Circuit, the court looked to the Second and Ninth Circuits’ analyses of what factors to consider when assessing whether a child has become settled. These factors include (1) the child’s age, (2) the stability and duration of the child’s residence in the new environment, (3) whether the child attends school or day care consistently, (4) whether the child has friends and relatives in the new area, (5) the child’s participation in community or extracurricular activities, (6) the respondent’s employment and financial stability, and (7) the immigration status of the respondent and the child. The Fifth Circuit noted that although other circuits agree on some aspects of these analyses, there is no consensus on the relevance of immigration status when determining a child’s being settled.
The Second Circuit has taken the position that immigration status is not dispositive, but is one of many factors to be taken into account in a fact-specific inquiry that may include (1) the likelihood of deportation or the ability to obtain legal status, (2) the age of the child, and (3) the extent of harm to the child due to the inability to obtain government benefits. On the other hand, the Ninth Circuit has declined to announce a formula for weighing the issue of immigration and has found that immigration status is relevant only if an “immediate threat of deportation” exists. The Fifth Circuit chose to follow the Second Circuit:
We join the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test. This approach recognizes that immigration status alone does not necessarily prevent a child from developing significant connections in a new environment, and is consistent with the text of the treaty, the State Department’s guidance, and the purpose of the well-settled defense. Like the other factors, however, immigration status should not be considered in the abstract. In other words, proper application of the framework does not assign automatic treatment to any particular type of immigration status. Instead, we agree with the Second Circuit that an individualized, fact-specific inquiry is necessary in every case.
The Fifth Circuit rejected the district court’s consideration of immigration status as an abstract concept rather than looking to the actual facts surrounding the status of the abducting parent. The court undertook a de novo review of the facts relating to the claim of settlement and considered the implications of the actual removal proceedings facing mother. After balancing all of the factors put forth by the Second and Ninth Circuits, the Fifth Circuit was not persuaded that the child had become settled in the new environment, and it vacated the order of the district court, ordering instead that the child be returned to Honduras.
. Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014); In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir. 2009).
. Lozano, 697 F.3d at 42–43.
. In re B. Del C.S.B., 559 F.3d at 1012–14.
. Hernandez v. Pena, 820 F.3d 782, 788–89 (5th Cir. 2016).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Acclimatization and Settlement | Equitable Tolling
This case deals with the 1980 Hague Convention’s Article 12 defense: if the child has become settled in his or her new environment and the petition for return of the child is filed more than one year from the date of the wrongful removal or retention, the court may deny the return of the child.
The district court found that the petition for return of a five-year-old child was filed more than one year after the child had been removed from Mexico to the United States. The district court also found that father was not diligent in locating the child in Tucson, Arizona. Mother’s psychological expert testified that the child had a normal emotional status, was well acclimated to her home and community, had friends with whom she was “very involved,” and liked her teacher.
When the case came before the Ninth Circuit, father attempted to assert the principle of equitable tolling of the Article 12 one-year period, asserting that mother actively concealed the child’s removal from Mexico. The court summarily rejected this argument based on the Supreme Court’s holding in Lozano v. Montoya Alvarez that the equitable defense of tolling is not available in cases that fall under the 1980 Hague Convention.
The Ninth Circuit also found there was sufficient evidence to support the district court’s determination that the child was now settled in her new environment.
. 134 S. Ct. 1224 (2014).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Grave Risk Defense | Intimate Partner Violence in Child’s Presence
In this case, the Seventh Circuit applied a clear error standard when reviewing factual determinations made by a district court and addressed whether there was sufficient evidence domestic violence to sustain the defense of grave risk.
Mother left Mexico with her two children, an eight-year-old son and a fourteen-year-old daughter. Mother’s removal of the children was in violation of the father’s custody rights. Approximately seven months after the children’s removal, father discovered that mother and the children were in Chicago, Illinois. Father demanded the return of the children to Mexico. In response, mother returned the daughter but refused to return the son. Father filed a petition for the return of his son in December 2015. At the evidentiary hearing, the district court found that mother credibly testified about a continuous pattern of physical abuse against both her and their son. Father deliberately abused mother in the presence of the children despite her attempts to insulate the children from the abuse. The son was questioned by the court in camera, and he substantiated mother’s claims. The district court found that returning the son to Mexico would expose him to grave risk of harm under Article 13(b) of the Convention, and it denied father’s petition for return.
The Seventh Circuit evaluated whether the district court’s determination of mother and the son’s credibility formed a sufficient basis upon which to deny father’s petition for return of the son to Mexico.
The circuit court affirmed the district court’s decision to deny return of the child due to grave risk of physical or psychological harm. Neither party disputed that the child had been wrongfully removed from Mexico. The only issue in the case was whether the grave risk defense was supported by sufficient evidence. The Seventh Circuit stated that the standard of review of factual determinations was whether the trial court’s determinations constituted clear error. Citing its decision in Ortiz v. Martinez, the Seventh Circuit reiterated,
“Under the clear error standard, we will not overturn the district court’s factual findings unless, after reviewing all the evidence, we are ‘left with [a] definite and firm conviction that a mistake has been [made].’ In other words, a district court’s credibility findings are ‘binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.’”
Citing to its previous holding in Khan v. Fatima, the court found that the existence of repeated physical and psychological abuse of a child’s mother in the presence of the child “is likely to create a risk of psychological harm to the child.”
. 789 F.3d 722 (7th Cir 2015).
. Hernandez v. Cardoso, 844 F.3d 692, 695 (7th Cir. 2016) (citations omitted) (quoting Oritz, 789 F.3d at 728–29).
. 680 F.3d 781 (7th Cir. 2012).
. Hernandez, 844 F.3d at 696 (quoting Khan, 680 F.3d at 787).
Habitual Residence | Concurrent Habitual Residences | Stays
This case addresses (1) whether a child may have two concurrent habitual residences, (2) what factors are involved in determining habitual residence when children spend substantial time in two adjacent countries, and (3) whether lower courts should stay orders of return pending appeal.
Mother and father had a son, A.D., together. Mother had a daughter, J.D., from a previous relationship. The family lived in Saint Martin. Only thirty-four square miles, this island comprises two separate countries, the Dutch Sint Maarten and the French Saint Martin. The French side is a signatory to the 1980 Convention; the Dutch side is not. The family’s residence was in the Dutch side. Most other aspects of the family’s lives took place in French side: the children’s school, the family’s doctors, father’s employment, and the administrative affairs of the family, such as insurance.
In August 2014, mother took the children to the United States under the pretense of attending a wedding. She refused to return, however, and eventually moved with the children to Pennsylvania. Father contemporaneously filed a custody action in the French civil court, requesting custody of both children.
In August 2015, father filed a petition in the Middle District of Pennsylvania seeking the return of the children. The district court found that father had no custody rights over mother’s child from a previous relationship and so denied father’s petition for return of that child. However, the district court granted father’s petition for the return of A.D. (the biological child of both parents), finding that the child had two concurrent habitual residences, French Saint Martin and Dutch Sint Maarten. The district court noted that
“[t]he parties’ testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. . . . [F]or most purposes of its residents’ daily life, the island is essentially undivided.” . . . “[T]he record facts, in addition to the nature of the island itself, support a finding that J.D. and A.D. were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin.”
Upon denial of mother’s petition for an emergency stay, custody of A.D. was transferred from mother to father, and the child returned with father to Saint Martin.
The Third Circuit reversed.
Habitual Residence: The Hague Convention Precludes the Concept of Concurrent Habitual Residences. The Third Circuit concluded that “the text of the Hague Convention unambiguously contemplates that a child may have only one habitual residence country at a time.” This conclusion was supported by the actual text of the Convention’s repeated references to “the State” of a child’s habitual residence. Elisa Pérez-Vera’s Explanatory Report further supported this interpretation, referring to “one” state. Most U.S. and sister-state cases that have discussed the issue of multiple habitual residences have concluded that a child may have only one habitual residence.
Habitual Residence: Clarification of the Term “Concurrent.” The Third Circuit acknowledged that the Ninth Circuit discussed the concept of multiple habitual residences in two prior cases—Mozes v. Mozes and Reyes Valenzuela v. Michel. In Mozes, the Ninth Circuit expressed dicta that a person may only have a single habitual residence, but that “[t]he 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,” referencing Beaumont & McEleavy’s treatise that advocated for the possibility of concurrent habitual residences. In Reyes Valenzuela, the Ninth Circuit interpreted the above Mozes quote to apply to alternating habitual residences.
The Third Circuit declined to extend the Mozes concept of “alternating” habitual residences to the existence of “concurrent” habitual residences, noting that “to the extent that Mozes can be read to support concurrent habitual residence, we reject that interpretation of the Hague Convention as inconsistent with the Convention’s unambiguous text.”
The court was careful to delineate the meanings of words and phrases meant to signify different scenarios that might arise when children spend substantial time in two different countries, noting that
[t]he authorities on this issue are inconsistent in their usage of terminology. The phrases “concurrent habitual residence,” “alternating habitual residence,” and “dual habitual residence” are sometimes used interchangeably. However, “concurrent habitual residence” refers to a situation where a child is habitually resident in two countries at the same time, whereas “alternating habitual residence” refers to a distinct situation where a child is moved in between two countries on a regular basis (known as “shuttle custody”) such that her habitual residence alternates between those countries. “Dual habitual residence” can be used to refer to either or both situations. For the sake of clarity, we will refer to the phrases “concurrent habitual residence” and “alternating habitual residence” in the manner just described and will not use the term “dual habitual residence.”
Habitual Residence: Factors. The Third Circuit referred to the Black’s Law Dictionary definition of habitual residence as a person’s “customary place of residence” and further defined the term residence as “the place where one actually lives” or “where one has a home.” The court reasoned that the question of where a child has “lived” should precede the analysis of habitual residence based upon parental intent and acclimatization. In this case, the children “lived” in Dutch Sint Maarten because that was the place where the children’s home was situated. Since the Hague Convention is not in force between that nation and the United States, the Third Circuit vacated the district court’s judgment and denied father’s petition for return.
Stays Pending Appeal. The circuit court also instructed the district court to order the return of A.D. to the United States. On the subject of stays pending appeal, the court also advised as follows:
The result of our decision today is that A.D. must be transferred back to the United States from Saint Martin. After that transfer, A.D. will have been relocated between Saint Martin and the United States three times in two years. We are naturally concerned that these multiple relocations of the child have been or will be detrimental to his well-being. Accordingly, we reiterate here that a district court issuing a return order in a Hague Convention matter should seriously consider the possibility of staying that order pending appeal. While we do not endorse “[r]outine stays” in such matters, a district court should carefully consider the traditional stay factors when “considering whether to stay a return order”:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
. The parties obtained an order from French Saint Martin changing J.D.’s birth certificate to designate the petitioner as the child’s father. This order did not amount to a formal adoption.
. See U.S. Department of State, International Parental Child Abduction website, https://travel.state. gov/content/childabduction/en/country/SintMaarten.html.
. Didon v. Castillo, 838 F.3d 313, 319 (3rd Cir. 2016) (citations omitted).
. Id. at 321.
. Id. at 322 (quoting Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 434–35 ¶ 34 (1982)).
. 239 F.3d 1067 (9th Cir. 2001).
. 736 F.3d 1173 (9th Cir. 2013).
. 239 F.3d at 1075 n.17.
. Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 110 (1999).
. 736 F.3d at 1177−79.
. Didon v. Castillo, 838 F.3d 313, 323 (3rd Cir. 2016).
. Id. at 316 n.6.
. Id. at 324.
. Id. at 319 n.12 (citations omitted) (quoting Chafin v. Chafin, 133 S. Ct. 1017, 1026–27 (2013) (internal quotation marks omitted) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009))).
Habitual Residence | Parental Intent
This case involves the question whether a change in a child’s habitual residence may take place when parents share an intent to abandon a previous residence but have not agreed upon the particular place to establish their new home.
Father and mother had two sons, both born in Venezuela. Father was a urologist and a dual citizen of Spain and Venezuela, and mother was a citizen of Venezuela. The family resided in Venezuela. Due to civil unrest there, mother and father discussed relocating to another country, possibly the United States, Spain, Panama, Ecuador, or others.
The family planned to traveled to Miami in May 2014 for father to attend the annual Congress of Urology. Mother also planned to go to Frisco, Texas, to visit her sister. Two months before their departure, men approached mother, requesting that she pass a note to her father and uncle to “stop messing with the government” and making comments about her “beautiful” children. Mother took this incident as a threat to herself and her sons. Before their trip, the family packed all of their important documents including medical records and the children’s school records, as well as jewels and gold. Mother, with father’s approval, sent her older child’s paperwork to a school in Frisco, Texas, to prepare for his enrollment. The family obtained six-month visas, and when they arrived in Miami, they met with someone who assisted them with applications for political asylum in the United States.
Upon learning that it would require fourteen years of medical school and/or training for him to be able to practice in the U.S., father withdrew his application for asylum and returned to Venezuela a day later. Father testified that he intended that mother and the children would return “sometime” after the expiration of their six-month visas. Mother testified that she never intended to return to Venezuela, but that if father was successful in finding employment outside of Venezuela, she and the children would cancel their asylum requests and reunite with father. Ultimately, father filed for divorce in January 2015.
The district court entered a judgment dismissing father’s petition to return the children to Venezuela, finding that the parents had abandoned their prior habitual residence in Venezuela. The Fifth Circuit affirmed.
Father’s principal argument was that a shared parental intent to abandon a habitual residence must include an agreement to raise the child in the new country. This contention was based on the Fifth Circuit’s recent holding in Berezowsky I that the mother in that case “[did] not point to any case law supporting her novel argument that parents can form the shared intent necessary to abandon a prior habitual residence without—at some point in the child’s life—making a joint decision to raise the child in the new country.” The court rejected father’s interpretation of the Berezowsky I holding that an intent to abandon a prior habitual residence required an agreement to select a particular place as the new habitual residence. The court explained the distinction between the Delgado case and Berezowsky I:
Dr. Delgado relies on this language to support his position that parents must agree on “the new country of residence,” and not on an unspecified country to be determined at a later time in order to abandon a child’s habitual residence. But the argument rejected in Berezowsky is highly distinguishable from the situation here. Berezowsky involved a bitter custody dispute where the child was moved back and forth between the United States and Mexico largely because the parents sought more favorable forums for their custody dispute. The parents did not share an intent concerning the location of their child’s habitual residence, and this court rejected the mother’s argument that a shared intent could be established by the parents individually. Here, in contrast, the parents held a shared intent for their children to abandon Venezuela. Thus, Dr. Delgado’s reliance on Berezowsky is misplaced. Simply because the Berezowsky court used the term “the new country” as opposed to “a new country” does not inform our analysis here for an entirely different argument.
Child’s Objection to Return | Mootness
The 1980 Convention ceases to apply to a child who reaches the age of sixteen during Convention proceedings, even if the petition for return was filed before the child turned sixteen. A mature child’s objection to return may be based on issues also relevant to a custody proceeding.
Father and mother were Peruvian citizens with two children. They married in 2002 and separated in 2004. Mother obtained permission from a Peruvian court to take the children to the United States to obtain medical treatment for the older child. She arrived in St. Louis in February 2014 and failed to return in March 2014, as required. Mother married an American citizen with whom she had another child.
Father petitioned for return of his two children. Their first child, M., turned sixteen years old during the pendency of father’s petition for return. Their second child, G., was fifteen years old. The district court denied the petition, and father appealed.
The Eighth Circuit addressed the following questions: (1) Is a child who turns sixteen during the pendency of return proceedings still subject to jurisdiction under the Convention? (2) What is the standard of review of a trial court’s determination regarding a child’s objection to return: de novo or clear error? (3) Can a child’s objection to return be based on considerations typically pertinent to custody decisions.
Mootness. The older child turned sixteen during the time that father’s petition was pending before the court. Despite the fact that the child was fifteen at the time of abduction, the circuit court found that when the child turned sixteen, the Convention no longer applied, and the court dismissed the appeal as moot. This conclusion was based upon the interpretation of the 1980 Convention by the State Department’s Text and Legal Analysis and Elisa Pérez-Vera’s Explanatory Report.
Objection of the Child. Ruling on a matter of first impression in the Eighth Circuit, the court held that appellate review of a trial court’s determination on a child’s objection to return should be accorded great deference and should be subject to clear error review. In reaching this conclusion, the Eighth Circuit relied on precedent from the Second, Third, Fifth, and Tenth Circuits. The court observed that when a child’s objection is the sole basis for refusing return, courts “must apply a stricter standard in considering a child’s wishes.”
In this case, the child objected to return to Peru because he wished to remain with his mother, stepfather, and two brothers. He also objected because he did not feel safe with father, noting his father’s aggressive nature, and because he preferred to remain at his school and with the friends he had made in the United States. The district court found the child to be very thoughtful and intelligent.
Father argued that the child’s reasons for objecting to return were relevant only to custody determinations and were therefore inappropriate to consider in support of a defense against return. The court acknowledged that the Convention generally eschews consideration of evidence of “custody claims” in Convention proceedings—consideration of evidence related to the best interests of the child cannot be considered when evaluating a grave risk defense. The court noted, however, that the Explanatory Report “makes clear that a mature child’s views on return can be ‘conclusive.’” Following the Fifth Circuit’s reasoning in Rodriguez v. Yanez, the Eighth Circuit observed that
the Explanatory Report “does not suggest the child’s interpretation of [his] ‘own interests’ is invalid if it is based” on custody considerations. Rather, “the drafters of the Convention simply deemed it inappropriate to return a mature child ‘against its will’—whatever the reason for the child’s objection.” We agree with the Fifth Circuit’s well-reasoned interpretation of the mature child defense. Requiring the district court to distinguish between a child’s custody-based and non-custody-based objections would likely be an impossible task—a task that the Convention does not require. Accordingly, the district court did not err in considering objections that may also be relevant to a custody proceeding.
. Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986); Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1982) [hereinafter Explanatory Report].
. Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001); Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007); Vasconcelos v. Batista, 512 F. App’x 403, 407 (5th Cir. 2013) (unpublished opinion); de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007).
. Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016) (quoting Tsai-Yi Yang, 499 F.3d at 278 (quoting de Silva, 481 F.3d at 1286)).
. Custodio, 842 F.3d at 1091 (quoting Explanatory Report, supra note 1, at 433 ¶ 30).
. Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016).
. Custodio, 842 F.3d at 1091 (citations omitted) (quoting Rodriguez, 817 F.3d at 475–76).
Habitual Residence of Infants | Wrongful Retention | Delay and Settlement of Child
Father, an American serviceman stationed in Japan, met mother, a Japanese citizen, in Okinawa. They married in May 2014. Neither spoke the other’s language. Mother became pregnant. In March 2015, father, mother and her teenage son from another relationship relocated to the United States. Father made arrangements for on-base housing in Fort Detrick, Maryland. The marital relationship deteriorated rapidly. Mother made claims that father was not providing her with sufficient food and was physically abusive. Three weeks after her arrival in the United States, and with the assistance of father and the Army command, mother and her teenage son returned to Japan.
The child was born in July 2015 in Okinawa. On September 18, 2015, mother, her teenage son, and the infant flew to the United States, joining father on the base. On October 9, 2015, the family traveled to Florida to attend a family wedding. Following a significant argument, mother insisted on returning to Japan. After a second altercation, mother was arrested for domestic violence.
Hearings were held in state court and the child was placed with paternal grandmother. Mother and her teenage son returned to Japan. Father obtained a state court judgment of dissolution of the marriage and was awarded sole custody of the child. On October 26, 2016, mother filed a petition for return under the 1980 Hague Convention in the Middle District of Florida.
The court addressed the following issues: (1) the role of parental intent in fixing the habitual residence of an infant, (2) the relevance of foreign law (of the country of a child’s habitual residence) to a determination of wrongful retention, and (3) whether a child under the age of two can become “settled” in a new environment.
The district court granted mother’s petition for return of the child to Japan. The court noted that the facts of the case were difficult to ascertain due to limited evidence and a finding that the testimony of both parents was “remarkably untruthful.” The court nevertheless undertook an in-depth analysis of the evidence that was presented.
Habitual Residence. The court ruled that the child’s habitual residence was Japan. The court noted that the Mozes v. Mozes analysis followed by the Eleventh Circuit was not relevant because Mozes addresses a change in habitual residence rather than an infant’s initial acquisition of a habitual residence. The court reviewed principles cited by other courts to determine the habitual residence of infants: (1) place of birth does not automatically become the child’s habitual residence; (2) a mother’s habitual residence does not automatically become the child’s habitual residence; (3) acclimatization of the child is not relevant because an infant lacks the ability to become acclimatized.
The court focused its analysis on whether the parties had a shared intent for where the child would live. The evidence showed that the parties were initially in agreement that the child would be raised in the United States, but that after the rapid deterioration of the marital relationship before the child’s birth, father agreed to, and assisted with, mother’s return to Japan.
Mother’s return to the United States with the newborn child in 2015 was an attempt at reconciliation. However, the court found that both parents agreed mother and child would return to Japan if reconciliation failed.
Wrongful Retention. Father argued that under Japanese law, when he removed the child from mother after the altercation of October 9, 2015, he did not breach her custody rights. Experts in Japanese law testified that domestic parental abduction in Japan is not illegal. The court rejected father’s argument, holding that
from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise.
The court found that even if father’s actions in retaining the child were not in violation of Japanese law, his violation of mother’s jointly held custody rights was wrongful within the meaning of the 1980 Hague Convention.
Delay and Settlement of the Child. Father also argued that mother’s delay in filing her application for return could be raised as a defense and that the child was now settled in the United States. The court noted that Eleventh Circuit rulings were inconsistent on whether a parent with physical custody of a child can claim wrongful retention and also noted that it was not necessary to reach a conclusion on this issue because the child had not become settled within the meaning of Article 12.
Reviewing the factors ordinarily considered relevant when determining whether a child has become “settled” in a new environment, the court found that the eighteen-month-old child was stable in her grandparents’ home, significantly bonded to her grandparents, not subject to deportation, was well-adjusted, happy, and healthy, and that the family was financially stable.
However, the court found that the child’s very young age precluded her from forming meaningful attachments to the community (such as church, school, or community activities). The court noted the dearth of legal authority to support a conclusion that a child under two years of age can become well-settled, citing in fact that in one case a judge found that “children of such tender years are too young ‘to allow meaningful connections to the new environment to evolve.’” Finding this observation persuasive, the court ruled that the evidence failed to demonstrate that the very young child had “substantial and meaningful connections to Florida.”
. See Barzilay v. Barzilay, 600 F.3d 912, 920 (“[D]etermination of habitual residence under the Hague Convention is a fact intensive inquiry particularly sensitive to the perspective and circumstances of the child.”).
. 239 F.3d 1067 (9th Cir. 2001).
. Cunningham v. Cunningham, 237 F. Supp. 3d 1246, 1265 (M.D. Fla. 2017) (citing McKie v. Jude, No. 10-103-DLB, 2011 WL 53058, at 10 (E.D. Ky. 2011) (citing Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004) and Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir. 2003)); Uzoh v. Uzoh, No. 11-cv-09124, 2012 WL 1565345, at 5 (N.D. Ill. 2012) (citing Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir. 2006))).
. Id. (citing Delvoye, 329 F.3d at 333; In re A.L.C., 607 Fed. App’x 658, 662 (9th Cir. 2015); Kijowska, 463 F.3d at 587; Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir. 1995)).
. Id. (citing Redmond v. Redmond, 724 F.3d 729, 746 (7th Cir. 2013) (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006)); Holder, 392 F.3d at 1020–21; Simcox v. Simcox, 511 F.3d 594, 602 n. 2 (6th Cir. 2007); and Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004)).
. Id. at 1273 (quoting Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426, 447–48 ¶ 71 (1982) (emphasis added); also citing Ozaltin v. Ozaltin, 708 F.3d 355, 368–70 (2d Cir. 2013) (“[A] removal under the Hague Convention can still be ‘wrongful’ even if it is lawful.”)).
. Pielage v. McConnell, 516 F.3d 1282, 1289 (11th Cir. 2008), held that a state court order that prohibited the removal of a child from the state was not a wrongful retention, since the mother who was petitioning for return of the child to the Netherlands still had physical custody of the child; but see Sewald v. Resinger, No. 09-10563, 2009 U.S. App. LEXIS 29458 (11th Cir. Nov. 19, 2009), where father’s withholding of the child’s passport, which prevented mother from returning to Germany with the child, was sufficient for a finding of wrongful retention.
. Article 12 states in part that “[w]here a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”
. Cunningham, 237 F. Supp. 3d, at 1281 (“Generally, courts consider . . . ‘(1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent’s employment and financial stability.’” (quoting Fuentes-Rangel v. Woodman, 617 Fed. App’x 920, 922 (11th Cir. 2015) (quoting In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009))).
. Id. at 1282 (quoting Moreno v. Martin, No. 08-cv-22432-CIV, 2008 WL 4716958, at *21 (S.D. Fla. Oct. 23, 2008) (quoting In re Robinson, 983 F. Supp. 1339, 1345 (D. Colo. 1997) and Riley v. Gooch, Civ. No. 09-1019-PA, 2010 WL 373993, at *11 (D. Or. 2010))).
. Id. at 1282–83.
Re-Return Orders Following Reversal of Lower Court Order on Appeal
In keeping with a district court order for return of the child to Mexico from Texas, mother took the child to Mexico. The Fifth Circuit reversed, remanding the case and directing the district court to vacate its order of return and dismiss the case (Berezowsky I). On remand, the district court denied father’s request for a “re-return” (that is, that the child be returned back to Texas from Mexico). This decision was affirmed by the Fifth Circuit (Berezowsky II).
Berezowsky I involved a complex history of mother and father’s contemporaneous child custody litigation in both Mexico and Texas, each seeking a friendly forum for their claims. In November 2012, mother filed a Hague Convention petition in the Southern District of Texas and obtained an order returning the child to Mexico, where mother had obtained a judgment granting her custody. Pursuant to the district court order, mother returned to Mexico with the child. On appeal, the Fifth Circuit found that the child’s habitual residence was Texas, not Mexico, so it reversed and directed that the district court vacate the return order and dismiss the case. In light of the Fifth Circuit’s holding that Texas was the child’s habitual residence, father requested that the district court issue a re-return order, compelling the return of the child back to Texas. The district court refused the order. Father appealed to the Fifth Circuit, contending that the district court’s refusal to grant an order compelling the child’s return was an abuse of discretion, allowing mother to possess the child by virtue of a vacated return order.
In question were the following: first, whether the Fifth Circuit’s order on remand to the district court to vacate its order of return and to dismiss the case foreclosed the issuance of an order of re-return of the child to Texas, and second, whether the district court’s refusal to grant father’s request for a re-return order was an abuse of discretion.
The Fifth Circuit found that courts possessed inherent power to order the re-return of children, citing the Supreme Court’s decision in Chafin v. Chafin.
The court also ruled that its failure to direct the district court to order the child re-returned did not foreclose the district court from issuing such an order. Although issues decided implicitly by courts of appeals may be reexamined by trial courts, a court may not proceed on matters decided by “necessary implication.” Given that a re-return order was not foreclosed by the circuit court’s order on remand (to vacate the order of return and order the case dismissed), the district court was free to consider the issue of re-return and grant or deny the same. Finding no abuse of discretion in the lower court’s denial of father’s re-return motion, the judgment was affirmed.
. Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014).
. Re-return orders are also discussed in the case analysis of In re A.L.C., 607 Fed. App’x 658 (9th Cir. 2015), reviewed concurrently with this case.
. 133 S. Ct. 1017 (2013); see also In re A.L.C., 607 Fed. App’x at 663.
. Berezowsky v. Ojeda (Berezowsky II), 652 Fed. App’x 249, 252 (5th Cir. 2016).
Settlement | Immigration Status | Return Despite Existing Defense
This case deals with what factors may establish the Article 12 defense of delay plus settlement. Here the parties conceded that father’s petition for return of his two children was filed more than one year after the children were removed. The Fourth Circuit affirmed the district court’s finding that the children were settled. The court also examined immigration status and whether return should be granted despite proof of a valid defense.
Mother, father, and their two children were all Mexican nationals living in Cosolapa, Oaxaca. In June 2013, mother surreptitiously left Mexico with the children, then eight and two years of age, and illegally entered the United States two weeks later.
She and the children settled in South Carolina close to her family members, including her mother and two sisters. Her sisters had also entered the United States illegally eight to nine years before, and they now owned and operated two small businesses in Florence, South Carolina; they also participated in the Deferred Action for Childhood Arrivals (DACA) program. Neither mother nor the children spoke English when they arrived in the United States. Mother enrolled her eight-year-old son in elementary school upon arrival in Florence, and over the next fourteen months she changed his school twice to accommodate short-distance moves she made to improve their living conditions.
Sixteen months after the children’s removal from Mexico, father filed a petition for their return. By May 2015, at the time of trial, the parties’ older son spoke English in school, was getting mostly As and Bs on his report card, and was performing “exceptionally well” in school according to school officials. The mother and children had family ties nearby. The son had made friends at school, church, and within the family. Mother was gainfully employed and able to provide for the children’s needs. After a two-day bench trial, the district court found that although mother and the children were present illegally in the United States, the children had become well settled in their new environment, and the court denied father’s petition for return to Mexico. The Fourth Circuit affirmed.
Settlement Generally. The issue of settlement of a child under Article 12 presented a case of first impression for the Fourth Circuit. The court adopted a definition of settlement consistent with Lozano v. Montoya Alvarez and the Second and Fifth Circuits' standards. Citing these, the court reasoned that “for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.”
Although approving the district court’s consideration of the factors set forth by the Second Circuit, the Fourth Circuit found that the ultimate purpose of the settlement inquiry is to determine, from a “holistic” standpoint, whether a child has significant connections demonstrating a secure, stable, and permanent life; it is not an inquiry into the child’s “best interests,” which is relevant when determining custody. The circuit court found sufficient evidence to sustain the district court’s determination that the older child was well settled, rejecting father’s objections to mother’s financial security and son’s degree of settlement.
Immigration Status. The court also agreed with three other circuits in adopting a rule that immigration status should be considered along with the totality of circumstances and “is neither dispositive nor subject to categorical rules.” Here, the district court had found nothing to suggest that the child was likely to be deported in the near future and had found no indications that ineligibility for government benefits would upset his stability. Taken as a whole, the degree of the settlement of the child compensated for any impact caused by his immigration status.
The Fourth Circuit confirmed these findings, holding that
[n]either the Hague Convention nor ICARA makes a lack of immigration status a bar to finding that a child is settled. Indeed, it runs counter to the purpose of the exception to read such a categorical bar into the treaty. If a child is functionally settled, such that ordering his or her return would be harmfully disruptive, it would be odd to nevertheless order that disruption based on a formal categorization.
Return Request Despite Establishment of Defense. Father urged the circuit court to return the children regardless, citing Article 18, a provision that gives courts discretion to order a child’s return despite the demonstration of a valid defense to return. The Fourth Circuit acknowledged that it retained the power to order the children’s return despite the establishment of an Article 12 defense; however, the exercise of discretion to return a child in the face of an established defense is grounded in equitable principles, and by itself, a mere wrongful removal would not suffice to justify such a return, since wrongful removal is prerequisite to the establishment of the defense itself.
. 134 S. Ct. 1224 (2014).
. Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012); Hernandez v. Pena, 820 F.3d 782, 787–88 (5th Cir. 2016).
. Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016).
. Id. at 171 (“The district court here looked to . . . ‘(1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.’”) (quoting Lozano, 697 F.3d at 57).
. The Second, Fifth, and Ninth Circuits. See In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009); Lozano, 697 F.3d at 56; and Hernandez, 820 F.3d at 787–88.
. Alcala, 826 F.3d at 174 (citing Lozano, 697 F.3d at 56–57).
. Id. at 173.
. “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.” Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980, Article 18.
. Alcala, 826 F.3d at 175.
. Id. at 175 (citing Yaman v. Yaman, 730 F.3d 1, 4, 21 (1st Cir. 2013).
. Id. at 175.