CASE

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Case Name

Asvesta v. Petroutsas, 2010 U.S. Dist. LEXIS 47872 (N.D. Cal., Apr. 19, 2010)

INCADAT reference

HC/E/US 1282

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States District Court for the Northern District of California, San Jose Division

Level

First Instance

Judge(s)
Fogel (United States District Judge)

States involved

Requesting State

GREECE

Requested State

UNITED STATES OF AMERICA

Decision

Date

19 April 2010

Status

Final

Grounds

Habitual Residence - Art. 3

Order

Application dismissed

HC article(s) Considered

3

HC article(s) Relied Upon

3

Other provisions

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Authorities | Cases referred to
Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009); In re Pervot, 59 F.3d 556 (6th Cir. 1995); Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001); Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Zenel v. Haddow, 1993 S.L.T. 975 (Scot. 1st Div.).
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 proceedings concerned a child born in 2005 to a Greek-American father and a Greek mother. The parents had married in California in 2002. By late 2005, the marriage had deteriorated. The father wished to remain in the United States of America, the mother wished to return to Greece.

On 8 November 2005, with the father's consent, the mother took the child to Greece for a one-month vacation. Prior to the scheduled return date, the mother advised the father that she would not be returning. The father then issued divorce and custody proceedings in California, the mother in Greece.

On 25 January 2006, after contested proceedings, the Superior Court of California, County of Santa Cruz found that the child's habitual residence was Santa Cruz County, California, and concluded that it had jurisdiction to hear the case. The court entered a permanent modifiable order granting the father sole legal and physical custody of the child and ordering the mother to return the child immediately.

On 20 February 2006, the father filed a Hague return petition with the United States Central Authority. On 24 March, the Piraeus One-Member Court of First Instance dismissed the father's petition. The Greek court found that the child had not been illegally removed to or retained in Greece; that the father had not been actually exercising his rights of custody and that, in any event, the child would face a grave risk of harm if returned and separated from his mother.

The father issued a legal challenge before the Court of Cassation. He also filed a petition in the Athens Multimember Court seeking contact with the child in Greece. However, whilst this petition and the mother's custody petition were pending, the parents entered into a voluntary settlement on contact. The father's attempts to have the Californian custody order recognised in Greece were unsuccessful.

On 23 April 2007, the Athens One-Member Court awarded temporary custody to the mother and supervised contact in Greece to the father. In May 2007, the Californian court modified its earlier order, granting the father sole temporary custody and ordering the parents to mediate their dispute in Greece.

In July 2007, during a period of supervised contact, the father took the child out of the jurisdiction, first to Canada and then to California. The mother filed charges with the Greek police for kidnapping and petitioned for the return of the child under the Hague Convention. On 17 January 2008, the United States District Court for the Northern District of California ordered the return of the child to Greece, the latter being his place of habitual residence.

The father appealed and the Ninth Circuit concluded that the Greek order rejecting the father's return petition was not entitled to comity since its "failure to comply with the Hague Convention was so egregious": Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009). The case was then remitted back to the original trial court.

Ruling

Application dismissed; the removal was not wrongful as the child was not habitually resident in Greece when taken.

Grounds

Habitual Residence - Art. 3

The issue for the Court was whether the father's removal of the child from Greece in July 2007 had been wrongful. In this it first had to consider where the child was habitually resident when removed. If the child was then habitually resident in the United States, the mother's petition would fail, even if aspects of the father's conduct were objectionable.

Referring to earlier authority of the Ninth Circuit Court of Appeals in Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004) [INCADAT Reference: HC/E/USf 777], the Court noted that the place of birth was not automatically a child's habitual residence. Rather, if a child was born where the parents had their habitual residence, the child would normally be regarded as a habitual resident of that country.

The Court found that the mother had abandoned Greece as her place of habitual residence sometime before the child's birth, and, by a preponderance of the evidence, that the parents were both habitually resident in California when the child was born, and thus California was the child's habitual residence as well.

The mother submitted that the child's country of residence had changed to Greece by the time the father took him back to the United States in July 2007. The Court found that the parents did not share the intent to abandon the United States as the child's habitual residence at the time of mother's departure from the United States in November 2005.

The mother further argued that even if the father had not agreed to the child's relocation initially, by coming to Greece, participating in Greek court actions and engaging in custody negotiations in Greece outside of the formal Hague proceedings, he had consented or subsequently acquiesced to the change in the child's habitual residence.

This argument was rejected by the Court which held that acquiescence was a defence to be considered after the wrongfulness of a removal or retention had been established. Moreover, the Court did not find evidence of acquiescence in any event. The Court concluded that the mother had not met her burden of demonstrating that the child's habitual residence had shifted to Greece by July 2007, therefore the return petition would be denied.

Author of the summary: Peter McEleavy, United Kingdom

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.