CASE

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Case Name

Headifen v. Harker, 549 Fed.Appx. 300 (5th Cir. 2013)

INCADAT reference

HC/E/US 1268

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States Court of Appeals for the Fifth Circuit

Level

Appellate Court

Judge(s)
Reavley, Davis, Higginson (Circuit Judges)

States involved

Requesting State

NEW ZEALAND

Requested State

UNITED STATES OF AMERICA

Decision

Date

18 December 2013

Status

-

Grounds

Habitual Residence - Art. 3

Order

Appeal dismissed, application dismissed

HC article(s) Considered

3

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to
Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012).

INCADAT comment

Aims & Scope of the Convention

Habitual Residence
Habitual Residence

SUMMARY

Summary available in EN | FR | ES

Facts

The proceedings concerned a child who was born in the United States of America in August 2008 and adopted shortly thereafter. The adoptive parents had married in 2005. The father was a New Zealand national, the mother South African. Both were naturalised citizens of the United States.

The family moved to New Zealand on 3 December 2009, the purpose of the move was the subject of dispute between the parents. The parents separated in August 2012 but remained living in New Zealand, with the child splitting her time each week between both parents.

The mother's case was that she, the father and the child would return to Texas in March 2013. The mother had given notice to her employer. On 18 February 2013, the father emailed the mother stating it was his desire that the child stay in New Zealand for her schooling. On 2 April, the mother emptied joint banks accounts and removed the child to the United States. She had previously arranged for her possessions to be shipped to Texas.

The father filed a return petition on 24 April. The application was dismissed by the District Court for the Western District of Texas on 7 June, on the basis that the child had retained her habitual residence in Texas throughout the stay in New Zealand. The father appealed.

Ruling

Appeal dismissed and application dismissed; the removal was not wrongful as the child had never lost her original habitual residence in Texas.

Grounds

Habitual Residence - Art. 3


The Court of Appeals observed that interpretative variability presently existed among United States circuit courts applying the Hague Convention. It noted that the District Court had followed the earlier authority of the Fifth Circuit in Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012) [INCADAT Reference: HC/E/USf 1236].

The focus on parents' intentions was held to have value because it fixed a child's habitual residence for purposes of the Hague Convention in the country where the parents, prior to separation, shared a common purpose to reside permanently. The Court stated that the determination of shared parental intent would generally be determinative of a young child's habitual residence.

The Court of Appeals further noted that in both Larbie and the present case the child's overseas residence was intended to be temporary, not indefinite. This was held to be the decisive point, more than that a change of habitual residence could only be established if parents intended to "abandon" or "supplant" their originating country altogether.

The Court of Appeals held that the finding of the District Court that the shared intent of both parents was for Texas and not New Zealand to be their habitual residence was supported by compelling evidence. It further held that the finding the child was not integrated into the New Zealand setting or acclimated there, was also supported by the evidence.

The District Court had therefore correctly found that the habitual residence of the child was Texas and not New Zealand. The Court of Appeals acknowledged that a finding that an original habitual residence had been maintained would foreclose treaty relief against what otherwise might be a unilateral absconding with a child.

Author of the summary: Peter McEleavy

INCADAT comment

See also the decision rendered by the court of first instance: Headifen v. Harker 2013 U.S. Dist. LEXIS 80819 (W.D. Tex., 2013) [INCADAT Reference: HC/E/USf 1265].

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.