Shared Intent Affects Finding of Habitual Residence
The shared intention of a child's parents to abandon the family's habitual residence in favor of a new one is a valid benchmark in determining wrongful removal and retention of the child under the Hague Convention on child abduction, the U.S. Court of Appeals for the Seventh Circuit decided.
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Addressing for the first time the standard for determining habitual residence, the court looked with favor on the Ninth Circuit's analysis of the issue. It said that in disagreeing with that analysis, the trial court here had failed to see its flexibility. See Koch v. Koch, 7th Cir., No. 06-1577, 6/13/06.
The case involved an American father who has spent most of his adult life living and working in Germany. He and the mother, a German, married in Wisconsin, and their son was born there in 2000. Eleven days after their daughter's birth in 2002, the couple (who were experiencing financial and marital difficulties) moved with the children to Germany, where the father took a job with a former employer. They closed their U.S. bank accounts and took the majority of their possessions with them. The father obtained a three-year renewable German work permit, the longest available.
At trial, the couple agreed that at the time they moved to Germany, they intended to stay long enough to save money for a down payment on a home and to purchase two cars (an amount they estimated to be $20,000), and then return to the U.S. They disagreed, however, on how long they actually intended to remain in Germany--the father insisted that they planned to stay two or three years, the mother five to ten.
In 2004, the mother told the father that she wanted a divorce. She and the children moved out of the family home. In 2005, the father picked up the children for a weekend visit. Instead of returning them to the mother, he removed them to the U.S. without her knowledge. After the district court granted the mother's petition for the children's return pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (see 416 F.Supp. 2d 645, 32 FLR 1211 (E.D. Wis. 2006)), the father appealed. He contended that the court erred in finding that Germany was the children's habitual residence and that his removal of them to the U.S. was wrongful.
Habitual Residence
Writing for the Seventh Circuit, Judge Ilana Diamond Rovner acknowledged that it had not yet decided the standards for determining habitual residence, a term that is undefined in the Convention. Because this was an issue of first impression, she began by addressing the appropriate standard of review. Rovner agreed with those circuits that review a district court's findings of fact for clear error and its application of the law to those facts--as well as its interpretation of the Convention--de novo.
Rovner noted that the lower court had examined the Ninth Circuit's ruling in Mozes v. Mozes, 239 F.3d 1067, 27 FLR 1112 (9th Cir. 2001), which focused on parents' shared intent as to the abandonment of their previous habitual residence. Observing that although virtually every circuit to consider the issue of habitual residence after Mozes has adopted some variation of its approach, she noted that the district court here found the Mozes framework inconsistent with the intent of the Convention's drafters and the jurisprudence of the other signatories.
Rovner determined that instead, the lower court decided to apply a fact-based objective or behavioral approach, beginning "with the facts on the ground, most importantly those of geography and duration." 416 F. Supp. 2d at 652. It then went on to find that the facts--the duration of the family's stay, the father's employment, the older child's enrollment in school--supported the mother's claim that Germany was the children's habitual residence. In the alternative, it also found that under the Mozes standard, the parents had intended to abandon their habitual residence in the U.S.
Flexible Approach
"The district court reluctantly used Mozes in the alternative, but we see no reason to disavow the Mozes approach and believe it is far more flexible than the district court inferred," Rovner asserted. She said that under that approach, it is clear that when the parents moved to Germany, they shared a settled intention to move there for an indeterminate period, defined by their financial circumstances and the father's employment goals. "Although they also shared a subjective wish to someday return to the United States, habitual residence is not determined 'by wishful thinking alone.'... The establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time," she said, quoting Mozes.
Rovner also noted that there was "no meaningful difference" between this case and the situation presented in Whiting v. Krassner, 391 F.3d 540, 31 FLR 1087 (3d Cir. 2004), in which the fact that the mother and child were to return to the U.S. subject to certain conditions was held not to have diminished the parents' settled intention that the two were to remain in Canada for at least two years.
Going on to assert that "Mozes does not require courts to ignore reality," Rovner found that here, the parents' joint actions during the three years the family lived in Germany "clearly demonstrated that the move to Germany was of a settled nature, indicating an intent to abandon the United States as a habitual residence and set up a new habitual residence in Germany." Also deciding that the father appeared to have been seeking a "friendlier forum" for determining custody because he was facing criminal charges in Germany related to his alleged domestic violence against the mother, she upheld the district court's finding that the parents shared a settled intention to abandon the U.S. and take up Germany as their habitual residence.
