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Case Name
Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013)
INCADAT reference
HC/E/US 1244
Court
UNITED STATES - FEDERAL JURISDICTION
United States Court of Appeals for the Second Circuit
Appellate Court
Hall, Droney (Circuit Judges); Restani (Judge)
States involved
CANADA
UNITED STATES OF AMERICA
Decision
14 May 2013
Final
Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters
Appeal dismissed, return ordered
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Abbott v. Abbott, 560 U.S. 1, 130 S.Ct. 1983, 176 L. Ed. 2d 789 (2010); Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012); Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005); Kalson v. Paterson, 542 F.3d 281 (2d Cir. 2008); Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001); Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004); Chafin v. Chafin, 133 S.Ct. 1017, 185 L. Ed. 2d 1 (2013); Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
INCADAT comment
Aims & Scope of the Convention
Habitual Residence
Relocations
Exceptions to Return
Establishing Consent
SUMMARY
Summary available in
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Facts
In 2010, the parents completed their medical training in Canada and the father took up employment there. The mother continued to travel to New York and New Jersey to look at schools and communities that might suit the family's needs if it was to relocate.
In the summer of 2011, the family moved apartments in Montreal. After the birth of the second child the parties agreed that the mother would take the children to stay with the maternal grandparents for a prolonged period. At trial the parents contested the purpose of this trip. For the mother, it was the first step in the family's permanent relocation to New York, for the father, it was temporary with mother and children to return after the winter.
In the spring of 2012, the parents continued to search in New York for a suitable community for the family and a suitable school for the children. The father continued locum work in Montreal but did not take a permanent position. He paid Canadian income taxes, while the mother filed tax returns in both Canada and the United States of America. In February or March of 2012, the mother cancelled her Quebec health insurance, informed her employer that she would not be returning to work, and repaid $25,000 to her insurance plan.
The father continued to make regular trips to New York to visit the family, and in the spring the parties' older son was accepted for enrolment at a school in New York. In May of 2012, the parties shipped their belongings to a storage unit in New York. That year the mother filed tax returns only in the United States of America.
In the summer of 2012, the mother began to speak with divorce attorneys. In late August 2012, she retained counsel. At the same time the family went on vacation together. At the end of the holiday, the father returned to Montreal. The mother asked the father to return on September 4 and 5. When he did so, he was served with divorce papers. The father returned to Canada and filed with the Canadian Central Authority a Hague Convention petition for return of the children.
On 17 December 2012 the United States District Court for the Southern District of New York found that the children had retained their habitual residence in Canada and that their retention was wrongful. Consequently it ordered the return of the children. The mother appealed. Subsequently, the Quebec Superior Court, Family Division issued an order granting temporary sole custody to the mother and directing that the children be returned to New York.
Ruling
Grounds
Habitual Residence - Art. 3
The mother argued that the District Court committed a clear error when it found that the father's agreement that the children move to the United States of America was conditioned upon their residing together as a family there. She further submitted that the parties shared the intention to relocate to New York and that there was no evidence to support the District Court's conclusion that the father's consent was conditional in any way.
She contended that the steps the parties had taken were sufficient to establish their joint intention that the children were to reside in New York. She added that were it to be accepted that a conditional consent controlled the determination of a child's habitual residence, it would "effectively preclude [] married couples that have consented to relocate [from one country to another] from ever separating or dissolving their union, lest one of the parties claim that remaining married with the family fully intact was an implied condition precedent to the consent to relocate." Finally, the mother contended that the children were now so well settled in the United States of America that under the Hague Convention their habitual residence had changed.
The 2d Circuit affirmed that the two-part test set forth in Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) [INCADAT Reference: HC/E/USf 776] should be applied to determine the country in which a child is habitually resident: "First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared.
In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent".
The 2d Circuit acknowledged the finding of the District Court that the father had demonstrated that he intended for the children to relocate to New York but on the condition that he would join the household and continue to be father to the children and husband to the mother. The parents therefore had a shared intent to relocate to New York, but the extent to which that intent was shared was limited by the father's conditional agreement that the relocation was to be accomplished as a family.
The mother's unilateral decision to retain the children in New York without the father thus precluded satisfaction of the condition on which the father's shared intent was based. The 2d Circuit ruled that the District Court properly determined under the Convention that the parties' last shared intention regarding the children's residence was that they live in Canada and for that reason the habitual residence of the children had remained in Canada.
Turning to the second limb of the Gitter test, and whether the children had acclimatized to the new location and had thus acquired a new habitual residence, notwithstanding any conflict with the parents last shared intention, the 2d Circuit noted that a finding that this standard was satisfied would only be appropriate "in 'relatively rare circumstances' in which a child's degree of acclimatization is so complete that serious harm . . . can be expected to result from compelling his [or her] return to the family's intended residence".
On the facts it was clear that the children had not become so acclimatized to life in New York that returning them to Canada would be tantamount to removing them from the environment where their lives had developed. Although the children had resided in New York for over a year, they had moved and changed communities within New York recently. And, whilst the older child was enrolled in school, he recently had close ties to friends and caretakers in Canada.
Rights of Custody - Art. 3
The 2d Circuit acknowledged the District Court's finding that the father's multiple visits to New York, as well as his participation in family vacations, demonstrated that he was exercising his custodial rights up to the time the divorce proceedings were initiated.
Consent - Art. 13(1)(a)
The 2d Circuit ruled that because the condition on which the father consented to his children moving to the United States of America had not been met, there was no basis to conclude that he had consented to the mother's retention of the children.
Procedural Matters
The 2d Circuit held that in line with the Supreme Court ruling in Chafin v. Chafin, 133 S.Ct. 1017, 185 L. Ed. 2d 1 (US 2013) [INCADAT Reference: HC/E/USf 1206] the fact that the children had already been returned to Canada pursuant to the District Court's order did not render the mother's appeal moot. It remained a live case and controversy.
Author of the summary: Peter McEleavy
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.
Relocations
Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.
In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:
Canada
DeHaan v. Gracia [2004] AJ No.94 (QL), [2004] ABQD 4, [INCADAT cite: HC/E/CA 576];
United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT cite: HC/E/UKe 2];
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548, [INCADAT cite: HC/E/UKe 40].
In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:
Switzerland
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].
Conditional Relocations
Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country?
Australia
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81, [INCADAT cite: HC/E/AU 995].
However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled. There did not need to be a settled intention to take up ‘long term' residence:
L.K. v. Director-General Department of Community Services [2009] HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].
Establishing Consent
Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.
United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:
Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].
This strict view has not been repeated in later first instance English cases, see:
Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];
Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].
In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing. Moreover, there could also be cases where consent could be inferred from conduct.
Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].
Convincing evidence is required to establish consent.
Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].
The Re K. approach was specifically endorsed by the Irish Supreme Court.
The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].
Consent need not be for a permanent stay. The only issue is that there must be consent and that it has been proved convincingly.
South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].
Consent could be express or tacit.
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];
5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];
5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];
The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child. To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.
United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].
There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.