In Tenorio Ruiz v Tenorio, 388 F.3d 784, 17 Fla. L. Weekly Fed. C 1161, 17 Fla. L. Weekly Fed. C 1173 (11^th Cir.) the action, dealing with habitual residency under the Hague Convention on the Civil Aspects of International Child Abduction, presented two issues of first impression in the 11^th Circuit, the standard of review and the definition of "habitual residency". The Mexican father of children born in the United States and living in Mexico filed a petition in the United States District Court for the Middle District of Florida claiming "wrongful removal" after the American mother moved with the children from Mexico to Florida. The District Court denied the petition on the grounds that the "habitual residence" of the children was in the United States. The Court of Appeals affirmed. It held that a mixed standard of review is appropriate for determining the issue of child's habitual residency in appeals involving wrongful removal petitions brought under the International Child Abduction Remedies Act (ICARA). It also held that the opinion in Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), by Judge Kozinski sets out the most appropriate approach to determining "habitual residence", and that the father failed to prove that the children's prior United States habitual residence had been abandoned and a new habitual residence in Mexico established when they moved to Mexico.

Melissa Green Tenorio and Juan Tenorio Ruiz met when Melissa was an exchange student in Mexico. They began dating, and in May 1992, Melissa discovered she was pregnant. Melissa returned to Minnesota and had the baby, Juanito, in December. Juan visited when the baby was born and returned to Minnesota when he graduated from high school. He and Melissa married, moved in with Melissa's parents, and attended community college. Afterwards, Juan attended the University of Minnesota and graduated with a bachelor's degree. He then obtained employment with a St. Paul company. When Melissa finished community college, she went to nursing school. The family moved into its own apartment and had a second son, Javier, in 1998. The marriage was not a happy one.

In an attempt to save the marriage, the couple decided to move to Mexico in August 2000, after seven years in the United States. The move was largely financed by Juan's father, and Juan went to work for his family's business. At the time of the move, Juan and his father told Melissa's mother that it was for a trial period and that if it did not work out, the family would move back. Juan, testified that he intended to move the family to Mexico permanently. Juan and his father moved most of the family's possessions in a truck from Minnesota, leaving a few items behind. Melissa and the children flew to Mexico on tourist visas.

At first, the family lived with Juan's family, and eventually moved into an apartment, and Juan's father began building an "American-style" house for the family. At some point during the family's time there, Juan either posted a resume on or visited monster.com (a resume forwarding internet site) with the intention of seeking employment in the United States. Apparently, Juan was having difficulty with his father and brother in the family business. He began to drink more and more, and Melissa testified he missed at least one day a month because of his drinking. The domestic violence intensified. Juan was physically and verbally abusive, and Juan testified that Melissa "goaded" him. Melissa and the children visited the United States twice during their two years and ten months in Mexico; Melissa also visited by herself once. In each trip, Melissa went to Florida, where her sister lived. During her first visit, she opened a bank account, because she "planned on returning." On her second trip she went without the boys and obtained a Florida nursing license. Her last trip, in August 2002, took her and the children first to Minnesota and then to Florida. While there, she called Juan and said she was not returning. He convinced her to come back and give it another try, which she did. However, by November 2002, the couple had separated. On May 20, 2003, Melissa took the children to Florida without telling Juan and with no intention of returning. Juan learned of the abduction when he found no one at the home and the maid said that she had been fired.

Juan filed his petition for wrongful removal under the Hague Convention on July 29, 2003. The district court held a hearing and made findings of fact that the couple moved to Mexico in an attempt to save their marriage, with the idea of returning if it did not work; that within six months things were not working out; that Juan started to drink in excess; that even Juan was having second thoughts about staying; that Melissa's return to Mexico in 2002 was only an effort to save the marriage; and that the two never had a shared intent to make Mexico the habitual residence of their children, but rather that the family was in limbo during that time. The district court concluded that Juan did not prove that the habitual residence for the children was in Mexico.

The Court of Appeals pointed out that under ICARA, a person may petition a court authorized to exercise jurisdiction in the place where a child is located for the return of the child to his or her habitual residence in another signatory country. The court's inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle. The operative provision in the Hague Convention is Article 3. This article defines "wrongful" removal or retention of a child: 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. The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Thus, the petitioner is required to establish, by a preponderance of the evidence, that his children were "wrongfully removed or retained within the meaning of the Convention." Therefore, in order to prevail, Juan had to prove that: (1) the children were "habitually resident" in Mexico at the time Melissa removed them to the United States; (2) the removal was in breach of Juan's custody rights under Mexican law; and (3) he had been exercising those rights at the time of removal.

Because the district court determined that the habitual residence of the children had not changed to Mexico, the dispositive issue on the appeal was whether the prior United States habitual residence of the children had been abandoned and a new habitual residence in Mexico had been established. Before addressing that issue, however, the Court of Appeals had to determine the appropriate standard of review.

Noting that most of the circuits that have reached this issue have decided on a mixed standard, and being persuaded by the reasoning of the court in Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) that a mixed standdard of review is appropriate for determining habitual residency the court adopted this standard and held that it would accept the district court's finding of historical facts unless clearly erroneous, and would review de novo the ultimate issue of habitual residency, "consider[ing] legal concepts in the mix of facts and law and exercising judgment about the values that animate legal principles."

The Court of Appeals noted that the opinion in Mozes v. Mozes, 239 F.3d 1067, 1074 (9th Cir.2001), by Judge Kozinski sets out the most appropriate approach to determinng habitual residence. It summarized the approach suggested in Mozes and adopted it as its own: "The first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. It is not necessary to have this settled intention at the time of departure, as it could develop during the course of a stay originally intended to be temporary. "Whether there is a settled intention to abandon a prior habitual residence is a question of fact as to which we defer to the district court." This settled intention is crucial because there can be no bright line rule with respect to the length of an absence. ("The absence of an objective temporal baseline, however, requires that we pay close attention to subjective intent."). With respect to whose intent is relevant, for the reasons set out in Mozes, we agree that the relevant " '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.' " The Mozes court noted that the difficult cases arise when the persons entitled to fix the child's residence do not agree on where it has been fixed. Mozes divided those cases into three categories: (1) where the court finds a shared settled purpose, despite one parent having "had qualms about the move," and where there is a finding that the "family has jointly taken all the steps associated with abandoning habitual residence in one country to take it up in another"; and pointing in the other direction, (2) cases where the "initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." In between those cases, which are not so difficult, the Mozes court described the more difficult category 3 cases "where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration." With respect to these more difficult category 3 cases, the court stated: 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. Clearly, this is one of those questions of "historical and narrative facts" in which the findings of the district court are entitled to great deference.

Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence. In addition, there must be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. The Mozes court provided the following guidelines with respect to the sufficiency of the child's acclimatization in cases in which there is uncertain or contrary parental intent. The court was critical of some cases which placed too much emphasis on facts like the child doing well in school and with friends, concluding: "[D]espite the superficial appeal of focusing primarily on the child's contacts in the new country, however, we conclude that, in the absence of settled parental intent, courts should be slow to infer from such contacts that an earli/er habitual residence has been abandoned." The court explained its reasons: "The greater the ease with which habitual residence may be shifted without the consent of both parents, the greater the incentive to try." The court also noted that divining the significance of such contacts is extremely difficult, and that children can be remarkably adaptable even in short time periods without any necessary significance with respect to habitual residence. Thus, the court concluded that it made 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." Finally, the Mozes court suggested that when there is no shared settled intent on the part of the parents to abandon the child's prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence, or if the court could "say with confidence that the child's relative attachments to the two countries have changed to the point where requiring a 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."

Applying the foregoing approach to the facts of this case, the Court of Appeals concluded that the district court correctly determined that Juan failed to prove that the children's prior United States habitual residence had been abandoned and a new habitual residence in Mexico established. The case seemed to fall within the more difficult category 3 cases described by Judge Kozinski in Mozes, 239 F.3d at 1077. Here, as in Judge Kozinski's category 3 cases, "the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration." The Mozes court held, and the 11^th Circuit agreed, that in such circumstances the finding of "settled mutual intent from which such abandonment can be inferred," is a finding of historical fact entitled to review under the clearly erroneous standard.

The Court of Appeals deferred to the district court's finding of fact that the couple did not have a shared, settled intention to abandon the previous United States habitual residence and take up residency in Mexico. Accepting that finding of fact, and taking into consideration all of the facts and circumstances its de novo review persuaded it that the previous United States habitual residence of the children had not been abandoned and that the children did not take up a new habitual residency in Mexico.