HC/E/USf 878
États-Unis d'Amérique - Niveau fédéral
United States Court of Appeals for the Seventh Circuit (Etats-Unis)
Deuxième Instance
Allemagne
États-Unis d'Amérique - Niveau fédéral
13 June 2006
Définitif
Résidence habituelle - art. 3
Recours rejeté, retour ordonné
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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.