Download full text
EN
Case Law Search
New searchCASE
Case Name
Neergaard v. Neergaard-Colón, 752 F.3d 526 (1st Cir. 2014)
INCADAT reference
HC/E/US 1277
Court
UNITED STATES - FEDERAL JURISDICTION
United States Court of Appeals for the First Circuit
Appellate Court
Torruella and Selya (Circuit Judges), McAuliffe (District Judge)
States involved
SINGAPORE
UNITED STATES OF AMERICA
Decision
21 May 2014
Final
Habitual Residence - Art. 3
-
-
Abbott v. Abbott, 560 U.S. 1, 130 S. Ct. 1983, 176 L. Ed. 2d 789 (2010); Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010); DarÌn v. Olivero-Huffman, 746 F.3d 1 (1st Cir. 2014); Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010); Koch v. Koch, 450 F.3d 703 (7th Cir. 2006)); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012); Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995); McManus v. McManus, 354 F. Supp. 2d 62 (D. Mass. 2005).
INCADAT comment
Aims & Scope of the Convention
Habitual Residence
Relocations
SUMMARY
Summary available in
EN
Facts
In Singapore, the parents participated in marriage counseling. The mother sought to return to the United States of America after a year, but the father refused. In January 2014, mother and children went on vacation to the United States, but did not return as scheduled on 20 January.
The father petitioned for the return of the girls to Singapore on the basis that they were being wrongfully retained in the United States of America.
On 10 March, the United States District Court for the District of Massachusetts found the retention of the girls to be wrongful and ordered their return.
The mother appealed.
Ruling
Grounds
Habitual Residence - Art. 3
The District Court found that the parties had agreed to move to Singapore for three years, and the three-year period had not yet elapsed. Accordingly, it concluded that the parties' shared intent was that their children reside in Singapore at the time immediately prior to their retention.
The mother submitted that the District Court had misapplied the legal test for habitual residence by failing to analyze whether the parties had ever intended to abandon their habitual residence in the United States, and by placing undue weight on evidence of the children's acclimatization in Singapore.
The Court of Appeals agreed that the District Court's analysis of the children's habitual residence was erroneous.
The Court of Appeals noted that the starting point for the determination of habitual residence was the parents' shared intent or settled purpose regarding their child's residence, though evidence of a child's acclimatization to his or her place of residence could also be relevant. Where parents disagreed, reference was made to the intent of the parents at the latest time that their intent was shared. The wishes of one parent alone were not sufficient to change a child's habitual residence. Where a court was deciding between two potential habitual residences, it must distinguish between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one was not habitually residing, one was away for a temporary absence of long or short duration.
The District Court had found that the parents had agreed that the children would be present in a particular place for a particular period of time that had yet to elapse. The Court of Appeals ruled that if the latter constituted a sufficient finding of intent to establish habitual residence, any parents consenting to a child spending an academic year abroad or even a summer vacation visiting relatives would risk changing their child's habitual residence.
The District Court was found to have made no factual finding as to whether the parents had intended to abandon their habitual residence in the United States of America in favour of Singapore, or whether they had intended to retain their habitual residence while simply residing temporarily in Singapore.
Turning to the issue of acclimatization, absent a finding of abandonment, the Court of Appeals held that the facts as found by the District Court did not point unequivocally towards Singapore being the children's habitual residence. The Court added that acclimatization was rarely, if ever, a significant factor when children were very young. On the facts, the girls did not attend school and did not participate in sports. None of their extended family lived in Singapore, and they took multiple trips, each several weeks long, to the United States during the year and a half that they lived in Singapore.
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].