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In Deloyve v Lee 329 F.3d 330 (3rd Cir.,2003) the father
appealed from an order of the district court denying the fathers
petition to return Baby S to Belgium under the Hague Convention on the
Civil Aspects of International Child Abduction. The district court found
and concluded that petitioner had failed to meet his burden of proving
that Baby S was an habitual resident of Belgium and thus was wrongfully
removed from that country. The Court of Appeals affirmed. Petitioner and
respondent met in New York early in 2000. Petitioner resided in Belgium
but made several trips to visit respondent. On his visits to New York, a
romantic relationship developed between them. In August 2000, respondent
moved into petitioner's New York apartment. While continuing to live in
Belgium, petitioner spent about a quarter of his time in New York. In
September 2000, respondent learned that she was pregnant with
petitioner's child. Respondent began prenatal care in New York, but
because petitioner refused to pay the cost of delivery of the baby in
the United States and Belgium offered free medical services, respondent
agreed to have the baby in Belgium. In November 2000, she traveled to
Belgium on a three-month tourist visa, bringing along only one or two
suitcases. She left the rest of her belongings, including her
non-maternity clothes, in the New York apartment. While in Belgium
respondent lived out of her suitcases. When her visa expired she did not
extend it. The baby was born on May 14, 2001. By then the relationship
between the parties had deteriorated. After initially resisting,
petitioner signed the consent form that enabled respondent to get an
American passport for Baby S and agreed to respondent's return to the
United States with Baby S in July 2001. Over the next two months,
petitioner made several trips to the United States and the parties made
several attempts to reconcile. When those efforts failed, petitioner
filed this petition.
The court pointed out that Article 3 of the Convention provides in
relevant part: The removal ... of a child is to be considered wrongful
where - a) it is in breach of rights of custody attributed to a person
... either jointly or alone, under the law of the State in which the
child was habitually resident immediately before the removal....
(Emphasis added.) The determination of a person's habitual residence is
a mixed question of fact and law. It noted that the Standard for review
of the district court's findings of historical and narrative facts is
A clear error@
, but the court exercises plenary review over the district court's
application of legal precepts to the facts. (Citing Feder v. Evans-Feder,
63 F.3d 217, 222 n. 9 (3d Cir.1995); see also Mozes v. Mozes,239 F.3d
1067, 1073 (9th Cir.2001).
The issue was whether Baby S was "habitually resident" in Belgium at
the time of his removal to the United States. In Feder, the court
defined the relevant concept:
[A] child's habitual residence is the place where he ... has been
physically present for an amount of time sufficient for acclimatization
and which has a "degree of settled purpose" from the child's
perspective.... [A] determination of whether any particular place
satisfies this standard must focus on the child and consists of an
analysis of the child's circumstances in that place and the parents'
present, shared intentions regarding their child's presence there. The
district court held that petitioner had failed to meet his burden of
proving that Baby S was an habitual resident of Belgium. It reasoned
that a two-month-old infant, who is still nursing, has not been present
long enough to have an acclimatization apart from his parents.
The district court found that respondent, at petitioner's urging, had
traveled to Belgium to avoid the cost of the birth of the child and
intended to live there only temporarily. She retained her ties to New
York, not having taken her non-maternity clothes, holding only a
three-month visa and living out of the two suitcases she brought with
her. Thus, there was lacking the requisite "degree of common purpose" to
habitually reside in Belgium. There must be a degree of 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. Because petitioner and respondent lacked the "shared
intentions regarding their child's presence [in Belgium]," Feder, Baby S
did not become an habitual resident there. Even if petitioner intended
that he become an habitual resident, respondent evidenced no such
intention.
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