In Mozes v Mozes, 239 F.3d 1067 (9^th Cir, 2001), the father appealed from an order of the United States District Court which denied his petition seeking to have his three younger children returned to Israel pursuant to Hague Convention on the Civil Aspects of International Child Abduction. The Court of Appeals held that the court's determination of habitual residence of parties' children was erroneously based upon an understanding of that term that gave insufficient weight to importance of shared parental intent under the Convention, and that the question the court needed to answer was not simply whether the children had in some sense "become settled" in United States, but rather, whether United States had supplanted Israel as the locus of children's family and social development at time that mother petitioned for their custody. It reversed and remanded for a hearing. In a case of first impression in our court, we interpret the term "habitual residence" in the Hague Convention on the Civil Aspects of International Child Abduction. Arnon and Michal Mozes were Israeli citizens. They were married in 1982 and hadfour children, ranging in age from seven to sixteen years. Until 1997, the parents and children lived in Israel, as they had their entire lives. In April 1997, with Arnon's consent, Michal and the children came to Los Angeles. Michal had long wanted to live in the United States, and both parents agreed that the children would profit from a chance to attend school here, learn English and partake of American culture. Michal moved with the children to Beverly Hills, where she leased a home, purchased automobiles and enrolled the children in school. Arnon remained in Israel, but he paid for both the house and the automobiles used by his family, and stayed with them at the house during his visits to Los Angeles. The parties agreed that Arnon consented to have Michal and the children remain in the United States for fifteen months. On April 17, 1998, a year after they arrived in the United States, Michal filed an action in the Los Angeles County Superior Court seeking dissolution of the marriage and custody of the children. The court granted temporary custody to Michal, and entered a temporary restraining order enjoining Arnon from removing the children from southern California. Less than a month later, Arnon filed a petition in federal district court, seeking to have the children returned to Israel under the Hague Convention. The oldest child elected to return to Israel, and did so by mutual agreement of the parents. Arnon appealed the district court's denial of his petition with regard to the three younger children.

The Court of Appeals pointed out that the key operative concept of the Convention is that of "wrongful" removal or retention. In order for a removal or retention to trigger a state's obligations under the Convention, it must satisfy the requirements of Article 3: The removal or the retention of a child is to be considered wrongful where-- a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. A court applying this provision must therefore answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?

In this case, the answer to the first was that Michal wrongfully retained the children from the moment on April 17, 1998, when she asked the Los Angeles County Superior Court to grant her custody of them. The district court denied Arnon's petition based on its answer to the second question: It found that as of that date, the children's "habitual residence" was in the United States, not Israel. In reviewing this question the court states that it requires it to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.

Determining whether there has been a change of habitual residence is a question of intent The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is [sic] a settled purpose. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. Having concluded that a settled intention to abandon one's prior habitual residence is a crucial part of acquiring a new one, we confront an additional problem: Whose settled intention determines whether a child has abandoned a prior habitual residence? One obvious response would be, the child's. There is an obvious problem with this approach, however. Children, particularly the ones whose return may be ordered under the Convention, normally lack the material and psychological wherewithal to decide where they will reside.

This leads to the conclusion that, "in those cases where intention or purpose is relevant--for example, where it is necessary to decide whether an absence is intended to be temporary and short-term--the intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child's residence." On one side were 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 side 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 between are cases where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration. Sometimes the circumstances surrounding the child's stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely. When this is the case, we can reasonably infer a mutual abandonment of the child's prior habitual residence. Other times, however, circumstances are such that, even though the exact length of the stay was left open to negotiation, the court is able to find no settled mutual intent from which such abandonment can be inferred. This is one of those questions of "historical and narrative facts" in which the findings of the district court are entitled to great deference. While the decision to alter a child's habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone. First, it requires an actual "change in geography." Second, home isn't built in a day. It requires the passage of "[a]n appreciable period of time," one that is "sufficient for acclimatization." When the child moves to a new country accompanied by both parents, who take steps to set up a regular household together, the period need not be long. On the other hand, when circumstances are such as to hinder acclimatization, even a lengthy period spent in this manner may not suffice. A more difficult question is when evidence of acclimatization should suffice to establish a child's habitual residence, despite uncertain or contrary parental intent. Most agree that, given enough time and positive experience, a child's life may become so firmly embedded in the new country as to make it habitually resident even though there be lingering parental intentions to the contrary. The question is how readily courts should reach the conclusion that this has occurred. Since the Convention seeks to prevent harms thought to flow from wrenching or keeping a child from its familiar surroundings, it is tempting to regard any sign of a child's familiarity with the new country as lessening the need for return and making a finding of altered habitual residence desirable. Further, some courts regard the question whether a child is doing well in school, has friends, and so on, as more straightforward and objective than asking whether the parents share a "settled intent." Despite the superficial appeal of focusing primarily on the child's contactsin the new country, the court concluded that, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned. 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.

Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its habitual attachment to a place even without a parent's consent. Even when there is no settled intent on the part of the parents to abandon the child's prior habitual residence, courts should find a change in habitual residence if "the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place." The question in these cases is not simply whether the child's life in the new country shows some minimal "degree of settled purpose," but whether we can say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child "out of the family and social environment in which its life has developed." Suppose, for example, that a child has lived for 15 years in a new country after a wrongful removal. It would be an abuse of ordinary language to say that the child had been habitually resident for all of that time in the country from which he or she had been removed and had not become habitually resident in the new country.

The district court held that the habitual residence of the Mozes children had shifted from Israel to the United States between April 1997 and April 1998. It did so based on an inapplicable standard, as there was no finding that the parents shared an understanding that their children's stay in the United States would last indefinitely.

When a child has no clearly established habitual residence elsewhere, it may become habitually resident even in a place where it was intended to live only for a limited time. The same is true if the child's prior habitual residence has been effectively abandoned by the shared intent of the parents. Where there is no such intent, however, a prior habitual residence should be deemed supplanted only where "the objective facts point unequivocally" to this conclusion. This, too, may occur during the course of a stay which is not intended to be indefinite.

The objective facts found here were that by April 17, 1998, the children had settled into their new home, were enrolled and participating full time in schools and social, cultural, and religious activities. They had successfully completed a year of school in the United States, quickly learned English, made new friends, and were accustomed to and thriving in their new life in Beverly Hills. These facts certainly show that the Mozes children, as the district court remarked, spent a "very full year" in the United States. But they did not point unequivocally to the conclusion that, at the time Michal petitioned for their custody, the children had ceased to be habitually resident in Israel.

The district court's determination of habitual residence appeared to have relied upon an understanding of that term that gives insufficient weight to the importance of shared parental intent under the Convention. Given that the Mozes children had a clearly established habitual residence in Israel in April 1997, and that the district court did not find an intent to abandon this residence in favor of the United States, the question it needed to answer was not simply whether the children had in some sense "become settled" in this country. Rather, the appropriate inquiry under the Convention is whether the United States had supplanted Israel as the locus of the children's family and social development. As the district court did not answer this question, the court remanded to allow it to do so.

The court noted that the district court would not be barred by the Rooker-Feldman doctrine from vacating the Superior Court's subsequent custodial decree or its order enjoining removal of the children from California. ( citing Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923) (holding federal statutory jurisdiction over direct appeals from state courts beyond the original jurisdiction of federal district courts); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486-87, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (holding that claims "inextricably intertwined" with those a state court has already decided beyond the jurisdiction of lower federal courts) Because the doctrine is one of congressional intent, not constitutional mandate, it follows that where Congress has specifically granted jurisdiction to the federal courts, the doctrine does not apply. In this case, Congress has expressly granted the federal courts jurisdiction to vindicate rights arising under the Convention. Thus, federal courts must have the power to vacate state custody determinations and other state court orders that contravene the treaty.