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Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)

  

 

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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