In Holder v Holder, 392 F.3d 1009 (9^th Cir. 2004) Jeremiah Holder appealed from the district court's order dismissing his petition for the return of his children to Germany. Jeremiah was stationed at Sembach Air Force Base in Germany. He was accompanied by his wife, Carla, and their two children. The Holders were in Germany for only eight months in 1999 and early 2000 before Carla returned to the United States with the children. Soon after Carla's return, Jeremiah filed for divorce and filed a petition under the Convention in federal court alleging that Carla had wrongfully retained the children. Jeremiah visited the children in the United States and, in violation of a California court order, took the children back to Germany in early 2002. Ultimately, he agreed to return the children to Carla in Seattle. Jeremiah pled nolo contendere to a misdemeanor charge and was prohibited from seeing or talking with the children until 2005 without further court order. Although Jeremiah later moved temporarily to the Seattle area, he returned to Germany. The Ninth Circuit found that Jeremiah failed to sustained his burden to establish that Germany was the children's habitual residence immediately prior to their mother's alleged wrongful retention. ( In a prior appeal the Court vacated the district court's ruling staying the proceedings and remanded the case for consideration of the petition's merits, including whether Germany was the children's habitual residence for purposes of the Convention. See Holder v. Holder, 305 F.3d 854, 873 (9th Cir.2002)

The district court noted that the Magistrates recommendation that the children's habitual residence "was California, not Germany" and found that Jeremiah had not carried his burden of showing that "by the time of the children's removal, Germany had become their habitual residence."

The Ninth Circuit stated that it set out an analytical framework in Mozes v. Mozes, 239 F.3d 1067, 1071-73 (9th Cir.2001). "First, in order to acquire a new habitual residence, there must be a "settled intention to abandon the one left behind." Id. at 1075. This is a question of fact to which this court grants deference to the district court. Id. at 1075-76. Second, there must be (A) an "actual 'change in geography,' " id. at 1078 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir.1993)), combined with (B) the "passage of 'an appreciable period of time.' " Mozes, 239 F.3d at 1078 (quoting C v. S, 2 Eng. Rep. 961, 965 (Eng.H.L.1990)). This period of time must be "sufficient for acclimatization." Mozes, 239 F.3d at 1078  (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir.1995))."

In applying this framework, the court stated that it is keenly aware of the flexible, fact-specific nature of the habitual residence inquiry envisioned by the Convention. It recognized in Mozes that the habitual residence analysis is a mixed question of fact and law, see Mozes, 239 F.3d at 1073, under which it review "essentially factual" questions for clear error and the ultimate issue of habitual residency de novo. It emphasized that courts must consider the unique circumstances of each case when inquiring into a child's habitual residence. Thus, for example, no per se rule dictates that children of U.S. military personnel remain habitually resident in the United States when joining their parents at overseas posts. To the contrary, fact patterns vary considerably within the limited universe of Convention cases involving military personnel. The cases underscore that military families do not generate a typical fact pattern and, in all Convention cases, emphasis is on the details of the case at hand.

Turning to the first to the question of whether the Holders had a settled intention to abandon the United States as the children's habitual residence in favor of Germany, under the circumstances of this case, the court looked to the subjective intent of the parents, not the children. Upon leaving the United States, the Holders were committed to a four-year tour of duty in Germany. Carla emphasized her intent not to abandon the United States as the family's habitual residence, testifying that she expected that the family would stay in Germany for four years, "[j]ust to fulfill [Jeremiah's] assignment for the military." In contrast, Jeremiah maintained that he considered the move more permanent, that he had "reupped" his military obligation for six years in connection with the move to Germany, and that the couple had discussed the possibility of an extension of the obligation.

The Court stated that when the parents no longer agree on where the children's habitual residence has been fixed, it must look beyond the representations of the parties and consider "all available evidence." In reaching its conclusion that "[s]ubstantial evidence shows that the Holders did not consider Germany to be their settled home," the district court pointed in part to Jeremiah's sworn statement in the virtually simultaneous California litigation that the United States was his permanent residence. In addition, the district court noted that the document changing Jeremiah's military station stated the "tour length" as "a very definite 48 months."

That the Holders had previously left for a several-year tour of duty in Japan and had returned to the United States two years later bolstered the inference that their stay in Germany was but another temporary assignment that was part of Jeremiah's military duties.

The court noted that the cases under the Convention tend to break down along continuum: On one side are cases where the court finds that the family as a unit has  manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move. Most commonly, this occurs when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country. When courts find that a family has jointly taken all the steps associated with abandoning habitual residence in one country to take it up in another, they are generally unwilling to let one parent's alleged reservations about the move stand in the way of finding a shared and settled purpose. On the other end of the spectrum "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period. In these cases, courts have generally refused to find that the changed intentions of one parent led to an alteration in the child's habitual residence." In the middle rest cases where a parent "had earlier consented to let the child stay abroad for some period of ambiguous duration." The Holders' case presented another marker on the continuum. It fell closer to the end of the continuum marked by moves for "specific, delimited" periods of time, such as sabbaticals and other conditional stays. The conditional move to Germany stands in contrast to situations in which the family definitively left the old residence and reestablished residence in a new location. In these cases, sister circuits have found a settled intention to acquire a new habitual residence based in part on the shipment of family possessions to the new location coupled with a failure to maintain a residence in the former location. The court did not view these factors as dispositive of Jeremiah's and Carla's intent considering that, as is customary, the military transported their belongings, thereby providing an incentive to move all possessions. The Holders' failure to maintain a residence in the United States was also not surprising given that they were living on a military base.

The Court stated that the move to Germany was no mere vacation. The Holders' stay might have been "intended to be of a specific, delimited period," but it was for a period of four years. Mindful of its caution in Mozes that being "settled" somewhere "need not mean that's where you plan to leave your bones," its review of the evidence persuaded it that the district court did not err in finding that Jeremiah and Carla lacked a shared intention to abandon the United States as the children's habitual residence and shift it to Germany.

Having determined that the Holders did not share a settled intention to adopt Germany as their children's habitual residence, the court considered whether the children had acclimatized to life in Germany. Although it is possible for a child's contacts standing alone to be sufficient for a change in habitual residence, in view of "the absence of settled parental intent, [we] should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Physical presence on German soil is not, as Jeremiah argued, sufficient for a change in habitual residence. (" 'Residence' is not the same as physical presence."). Rather, an actual change in geography is only one factor in the determination. The analysis also includes intangible factors for, at heart, the Convention is concerned with the situation where "the child is taken out of the family and social environment in which its life has developed." In determining whether a child's life has become embedded in a new country, the court cautioned that "acclimatization" should not be confused with "acculturation." The Convention does not direct a court to decide whether the children were acclimatized to a country, such as Germany, on the basis of whether they can count to ten in German or whether they prefer gummibaeren to Hershey bars. 

Instead, the inquiry is, more generally, whether the children's lives have become firmly rooted in their new surroundings. Simply put, would returning the children to Germany be tantamount to sending them home? In answering this question, the court discussed the children separately because the five-year age gap between the two boys was relevant to the acclimatization analysis.

The older son was in the process of transitioning his life to Germany: He attended kindergarten, participated in sports programs, and accompanied his parents on various excursions both on and off the base. The court nonetheless heed its admonition that while "[c]hildren can be remarkably adaptable[,] ... [i]t is quite possible to participate in all the activities of daily life while still retaining awareness that one has another life to go back to." Mozes, 239 F.3d at 1079. "It thus makes sense to regard the intentions of the parents as affecting the length of time necessary for a child to become habitually resident, because the child's knowledge of these intentions is likely to color its attitude toward the contacts it is making." Id. at 1079-80 (footnotes omitted). It could not conclude that the older son's mere eight months in Germany were sufficient to overcome the lack of shared parental intent to abandon the United States as the children's habitual residence. The younger son's youth added a twist to the analysis. When and how does a newborn child acquire a habitual residence? The place of birth is not automatically the child's habitual residence. Nonetheless, if a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country. These circumstances clearly applied to the younger son: He was born in California while both of his parents were habitual residents of the United States.

Once this initial habitual residence has been established, the court recognized that it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment of the parents. The court declined to delineate whether there are circumstances under which an infant can acquire a new habitual residence in the absence of shared parental intent. It held that is was sufficient for the present case to conclude that Jeremiah had not established that the infant's limited time in Germany so firmly embedded his life there that his habitual residence shifted overseas despite the lack of shared parental intent.

Neither child had developed deep-rooted ties to the family's new location. In reaching this conclusion, we emphasize that cultural attachments are not the sine qua non of a habitual residence determination.

In light of the parents' failure to share a settled intention to abandon the United States as the children's habitual residence and the children's lack of acclimatization to the family's new location, the district court did not err in concluding that the children's habitual residence remained the United States throughout their time in Germany. Carla's retention of the children was therefore not wrongful under the Convention.

The court also held that the district court did not err in turning to a magistrate judge to facilitate the proceedings. Other courts have similarly looked to magistrate judges in handling Convention petitions.