In Barzilay v Barzilay, 600 F.3d 912 (8th Cir 2010) Sagi and Tamar, both Israeli citizens, were married in Israel in 1994. The eldest of their three children, born in Israel in 1996, was also an Israeli citizen. In 2001, Sagi and Tamar obtained American work visas through their employer and moved with their first child to Missouri from the Netherlands, where they had resided for approximately two years. The younger two Barzilay children were born in Missouri, in 2002 and 2004. They held dual Israeli and American citizenship. Tamar and the children resided in Missouri since 2001. The eldest child had not lived in Israel since her early years; the younger two had never lived there. In January 2005 a Missouri state court dissolved Sagi and Tamar's marriage. The divorce decree awarded them joint physical and legal custody of the children and incorporated a written parenting plan. The parenting plan specified that Tamar would have "primary parental responsibility and physical custody" of the children. It also included the following provision (referred to below as the repatriation agreement): "In the event either party leaves Missouri to return to the State of Israel, and regardless of whether such move is voluntary or involuntary on her or his part, the other party shall forthwith take such steps to move back to Israel so that Husband and Wife and the children shall reside within the same country". Sagi moved back to Israel in September 2005 and soon began pressuring Tamar to comply with the repatriation agreement. Tamar resisted committing to a definite timeline, but agreed to take the children to Israel for a summer visit in June 2006. She planned to return with them to Missouri on July 9. While Tamar and the children were visiting Israel, Sagi sought and obtained an ex parte order from the family court in Kfar Saba prohibiting the removal of the children from the country. He argued that Tamar had violated the repatriation agreement by failing to make arrangements to move back to Israel with the children and sought to compel her compliance. At or about the same time, he filed a petition in the Kfar Saba court under the Hague Convention. Tamar retained Israeli counsel and, after intensive negotiations, the parties reached an agreement only hours before she and the children were to catch their flight back to Missouri. Sagi withdrew his pending claims, and the Kfar Saba court gave the parties' agreement (referred to here as the consent judgment) the "status of a verdict." The consent judgment provided, inter alia, that Tamar and the children would repatriate to Israel by August 1, 2009 and that failing to do so could be "regarded as kidnapping as stated in The Hague treaty." It also provided that Tamar would not take any further action in the Missouri family court and that the "sole and only international authority in regards to the minors' immigration, repatriation and custody shall be the authority of the court in Kfar Saba." Tamar now asserted that her assent to the consent judgment was coerced, that she signed it only so she would be allowed to leave Israel with the children, and that she never intended to abide by its terms. Nor did she. Sagi therefore returned to the Kfar Saba court in December 2006, seeking an order of contempt because Tamar had refused to permit the children to visit Israel in accordance with the consent judgment. Tamar challenged the validity of the judgment, but the Kfar Saba court held her in contempt and its decision was affirmed on appeal. Meanwhile, Tamar petitioned the Missouri court to remove the repatriation agreement from the original custody decree and limit Sagi's visitation rights. Sagi challenged the Missouri court's jurisdiction, but it nevertheless modified the custody decree in Tamar's favor. Following the remand, the district court entered an order staying the state court proceedings pending the disposition of Sagi's ICARA petition. Sagi commenced this action by filing an ICARA petition in the district court in October 2007, claiming that Israel was the children's state of habitual residence within the meaning of the Hague Convention and seeking an order compelling them to move there. The district court determined that these claims had been raised in the Missouri court and therefore abstained from reaching the merits of the petition.
The Eight Circuit Court of Appeals reversed ( Barzilay v. Barzilay, 536 F.3d 844, 853 (8th Cir.2008), concluding that the Hague Convention issues had not been properly raised or fully addressed in the state court and that abstention was consequently inappropriate. It remanded to the district court for consideration of the merits.
After an evidentiary hearing, the district court determined that the children's country of habitual residence was the United States. Because retention of a child in the state of its habitual residence is not wrongful under the Convention, it dismissed Sagi's petition. appealed. His primary argument on appeal was that the repatriation agreement in the Missouri custody decree and the consent judgment from the Kfar Saba court conclusively established that the children's state of habitual residence was Israel, and that the district court erred in failing to give effect to these agreements. Because the Barzilay children had lived in Missouri for approximately five years before their alleged wrongful retention commenced, the district court concluded their country of habitual residence was the United States.
The Eighth Circuit held that the district court did not err in concluding that immediately before the alleged wrongful retention in this case commenced, the Barzilay children's country of habitual residence was the United States, and that their retention in Missouri was therefore not wrongful under the Hague Convention. The district court therefore did not err in dismissing the petition.
The Court of Appeals noted that having concluded that the alleged wrongful retention began in early 2006, the district court proceeded to consider the factors relevant to the determination of habitual residence: "the settled purpose of the move to the new country from the child's perspective, parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country." Barzilay, 536 F.3d at 851-52 (citing Silverman, 338 F.3d at 897-98). As the district court noted Sagi and Tamar moved to the United States on temporary work visas, and it was therefore uncertain whether they intended to remain here permanently. Nevertheless, because the record did not indicate that the family maintained a home or other property in Israel (nor did it disclose any other evidence of an intention to return to Israel), the district court concluded that Sagi and Tamar abandoned their prior habitual residences when they moved to Missouri and intended to stay there indefinitely. The district court also considered the repatriation agreement as potential evidence of the parties' intent. Since the agreement was conditional and gave no indication of actual intent to move back to Israel at a particular time, however, the court concluded that it was not an expression of settled intent, but rather a precautionary measure. Finally, the district court considered "the change in geography, the passage of time, and the acclimatization of the child[ren] to the new country." It concluded that the children were well acclimatized to life in the United States.
The eldest child was the only one who had experienced a significant change in
geography, and by 2006 she had been in the United States for approximately five
years--half of her life. The younger two had lived their entire lives in Missouri. In
addition, the children of school age had been attending school in the United States; none of them had gone to school in Israel. Based on the foregoing considerations, it agreed with the district court's conclusion that the children's country of habitual residence under the Hague Convention was the United States.
The Eight Circuit pointed out that Sagi did not seriously challenge the district court's habitual residence determination on factual grounds. Rather, he argued that he and Tamar stipulated, both in the Missouri repatriation agreement and in the Kfar Saba consent judgment, that the children's country of habitual residence was Israel, and that the district court erred in failing to give effect to these agreements. He claimed that the Kfar Saba consent judgment rendered the matter of habitual residence res judicata and was entitled to recognition in the district court. Second, he argued that these agreements as to habitual residence should be enforceable in the manner of contracts.
The Eighth Circuit rejected both arguments indicating that the Ninth Circuit had recognized that "federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention." (Citing Holder v. Holder, 305 F.3d 854, 864 (9th Cir.2002). The same principle applies to judgments of foreign courts. The Kfar Saba consent judgment did not actually adjudicate a Hague Convention claim. Despite the conclusory statement that "[n]ot returning the minors to the state of Israel by the appointed time is regarded as kidnapping as stated in the Hague Treaty," the consent judgment was silent on the "key inquir[ies] under the Convention"--habitual residence and wrongful removal or retention. Because it did not actually determine the relevant issues, the consent judgment would have no preclusive effect in these proceedings.
It also rejected the claim that either the Kfar Saba consent judgment or the Missouri repatriation agreement was an enforceable stipulation of the children's habitual residence. It has held that habitual residence may only be altered by a change in geography and passage of time. (Citing Silverman, 338 F.3d at 898). It follows that it may not be altered by simple parental fiat. In other words, 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. The notion that parents can contractually determine their children's habitual residence without regard to the actual circumstances of the children is thus entirely incompatible with precedent. It noted that Sagi had not cited a decision by any court anywhere in the world embracing such a proposition. The determination of habitual residence under the Hague Convention is a fact intensive inquiry particularly sensitive to the perspective and circumstances of the child. To allow parents simply to stipulate to any habitual residence they choose would render these factual considerations irrelevant. Moreover, the claim that the consent judgment and repatriation agreement determined his children's habitual residence failed for the simple reason that those agreements were not stipulations of habitual residence. They were custody decrees.
|
