AFFAIRE

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Nom de l'affaire

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.)

Référence INCADAT

HC/E/USf 878

Juridiction

Pays

États-Unis d'Amérique - Niveau fédéral

Nom

United States Court of Appeals for the Seventh Circuit (Etats-Unis)

Degré

Deuxième Instance

États concernés

État requérant

Allemagne

État requis

États-Unis d'Amérique - Niveau fédéral

Décision

Date

13 June 2006

Statut

Définitif

Motifs

Résidence habituelle - art. 3

Décision

Recours rejeté, retour ordonné

Article(s) de la Convention visé(s)

3

Article(s) de la Convention visé(s) par le dispositif

3

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

RÉSUMÉ

Résumé disponible en EN | FR

Facts

The application related to a boy and a girl born in February 2000 and April 2002 respectively. The American father and German mother married in the United States in August 1999 and lived there until just after the birth of the second child when they returned to Germany, where they had previously lived.

There was agreement that the family would stay in Germany long enough to save $20 000. For the mother this would be a period of 5 - 10 years, for the father a period of 2 - 3 years. The parents experienced marital difficulties and there was evidence of physical abuse by the father on the mother.

In December 2004 after the mother stated that she wished to divorce, the father unilaterally removed the children to the United States. He returned with them 4 weeks later. The parents lived apart, but the father continued to have contact with the children. On 7 May 2005, during a period of visitation the father again removed the children to the United States.

On 21 February 2006 the United States District Court for the Eastern District of Wisconsin ordered the return of the children finding them to have been habitually resident in Germany at the time of the removal, see: Koch v. Koch, 416 F. Supp. 2d 645, (E.D. Wis., 2006) [INCADAT Reference: HC/E/USf 877]. The father appealed.

Ruling

Appeal dismissed and return ordered; the children were habitually resident in Germany at the time of the removal, albeit the primary reasoning of the trial court was not followed.

Grounds

Habitual Residence - Art. 3

The Court of Appeals upheld the finding that the children were habitually resident in Germany and that their removal was therefore wrongful. However it dismissed the trial judge's rejection of the Mozes line of jurisprudence, finding the latter to be more flexible and cognizant of reality than had been inferred. The Court of Appeals noted that in Mozes the 9th Circuit wanted parents to be able to predict the circumstances that would lead to a change in their children's habitual residence so that they could make intelligent and informed decisions about their children. For example, the court wanted parents to be able to predict the legal effect of traveling with a child to attempt a reconciliation with an estranged spouse or of consenting to a child's trip abroad to stay with relatives. Applying the approach adopted to the facts of the case it was clear that the move to Germany was of a settled nature and that the parents had an intention to abandon their habitual residence in the United States and acquire a new one in Germany.