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Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)
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In Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) the
Ninth Circuit interpreted the term "habitual residence" to mean that
both parents had a settled intent that their children would remain in a
particular country. Therefore, even though the children had been in
California for fifteen months, the United States did not become the new
habitual residence because the parents had not agreed that their
children would abandon their residence in Israel and live permanently in
the United States. The fact that the children had become adjusted
to new surroundings did not mean that a new habitual residence had been
acquired. The Ninth Circuit outlined the four questions that need to be
answered when reviewing a Hague Abduction Convention petition: (1) When
did the removal or retention at issue take place?; (2) Immediately prior
to 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?; and (4) Was the
petitioner exercising those rights at the time of removal or retention?
In defining "habitual residence" the court has examine whether the
parents both formed a "settled intent" to change the child's residence.
Even when children had been in the United States for a couple of years,
if the intent was always to return to Israel, then the habitual
residence would be Israel.
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