CASE

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Case Name

Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010)

INCADAT reference

HC/E/USf 1025

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

US Appeals Court for the 8th Circuit

Level

Appellate Court

Judge(s)
Murphy and Bye (Circuit Judges); Strom (District Judge)

States involved

Requesting State

ISRAEL

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

2 April 2010

Status

Final

Grounds

Habitual Residence - Art. 3

Order

Appeal dismissed, application dismissed

HC article(s) Considered

3

HC article(s) Relied Upon

3

Other provisions

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Authorities | Cases referred to
Barzilay v. Barzilay, 536 F.3d 844, (8th Cir. 2008); Sorenson v. Sorenson, 559 F.3d 871, (8th Cir. 2009); Silverman v. Silverman, 338 F.3d 886, (8th Cir. 2003); Villegas Duran v. Arribada Beaumont, 534 F.3d 142, (2d Cir. 2008); Shalit v. Coppe, 182 F.3d 1124, (9th Cir. 1999); Mozes v. Mozes, 239 F.3d 1067, (9th Cir. 2001)); Feder v. Evans-Feder, 63 F.3d 217, (3d Cir. 1995); Holder v. Holder, 305 F.3d 854, (9th Cir. 2002); Carrascosa v. McGuire, 520 F.3d 249, (3d Cir. 2008); Croll v. Croll, 229 F.3d 133, (2d Cir. 2000); Furnes v. Reeves, 362 F.3d 702, (11th Cir. 2004).
Published in

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INCADAT comment

Aims & Scope of the Convention

Habitual Residence
Habitual Residence

SUMMARY

Summary available in EN | ES

Facts

The application related to three children born to married, Israeli parents. The eldest child was born in Israel in 1996, the two younger children in the United States of America in 2002 and 2004 following the parents move there in 2001.The parents divorced in the United States in January 2005. A written parenting plan provided that if either parent left Missouri to return to Israel, then the other would return too.

The father returned to Israel in September 2005. The mother took the children there for a vacation in the summer of 2006. The father issued legal proceedings and he only agreed to the children returning to the United States when the mother signed a judicially approved consent agreement that she and the children would relocate to Israel by 1 August 2009.

The agreement provided that failure to do so could be regarded as kidnapping under the Hague Convention. In late 2006, when the mother did not comply with a contact provision of the agreement, the father issued contempt proceedings in Israel. This was successful and upheld on appeal.

In October 2007 the father filed a return petition. Following litigation over internal jurisdiction as between the competence of the state and federal courts, the United States District Court for the Eastern District of Missouri: Barzilay v. Barzilay, 609 F. Supp. 2d 867, (E.D. Mo., 2009) dismissed the application. The father appealed.

Ruling

Appeal dismissed and application dismissed; the children were habitually resident in the United States of America at the date of the alleged wrongful retention.

Grounds

Habitual Residence - Art. 3

The Court accepted the finding of the District Court that the alleged wrongful retention would have occurred sometime between the father returning to Israel in September 2005 and his first assertion of his Convention rights in early 2006. The Court of Appeals upheld the trial court's assessment that the relevant factors to the determination of habitual residence were the settled purpose of the move to the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country.

Given that two of the children had lived their whole lives in Missouri, the eldest had lived there for five years, and there was no indication the children had spent any significant amount of time in another country, the district court concluded that from the children's perspective, the settled purpose of the family's residence in Missouri was to remain there permanently.

Although the issue of the intent of the parents was less clear, the trial court found that they had abandoned their prior habitual residences when they moved to Missouri and intended to stay there indefinitely. Furthermore the children were deemed to have become acclimatized to life in the United States. The Court of Appeals concluded that there was no evidence suggesting the district court's factual findings were clearly erroneous or that its analysis was otherwise unsound.

The father's main argument centred on the repatriation agreement within the Missouri custody decree and the 2006 Israeli consent judgment which he argued conclusively established that the children's state of habitual residence was in Israel, and that the district court had erred in failing to give effect to these agreements.

The Court of Appeals rejected these arguments. It noted that the Israeli court which had approved the consent order, had itself subsequently accepted that the United States was the customary place of residence of the children and the competent forum.  It further held that parents could not contractually determine their children's habitual residence without regard to the actual circumstances of the children.

Such an approach would moreover change parental intent from being a relevant factor in determining habitual residence to being the dispositive factor. The basic purposes of the Convention would be undermined since effect would be given to artificial jurisdictional links.

The Court of Appeals additional rejected the father's submissions for it held that the two agreements were not in any event stipulations of habitual residence, neither using the term. The agreements were best understood as substantive custody decrees.

INCADAT comment

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.