Yossi Gitter an Israeli citizen lived there until 1995, when he moved to the United States. Miriam Gitter, his wife, maintained Israeli citizenship, but she immigrated to the United States when she was approximately three months old and maintained United States citizenship, as well. The parties met in 1999 in New York and married in May1999. In December of 2000, Miriam gave birth to their son, Eden. Shortly after Eden's birth, Mr. Gitter proposed that the couple move to Israel. He argued that such a move would save them money and provide a better family support structure because they could live with his mother. Mrs. Gitter had spent very little time in Israel and was not fond of the culture, and did not want to go to Israel. Mr. Gitter persuaded her to try living in Israel for one year, and the family moved in March of 2001. The Gitters made various arrangements in preparation for their move to Israel. Mr. Gitter closed their New York bank accounts, sold their cars, and placed their furniture in storage. Once the Gitters arrived in Israel, they made other arrangements consistent with the move to Israel. For example, after a few months in Israel, Mr. Gitter sold or gave the family's possessions in storage to Mrs. Gitter's sister. Once the Gitters arrived in Israel, they enrolled Eden in day care. In February 2002, after about eleven months in Israel, Mrs. Gitter returned to New York with Eden to visit her sister. Mr. Gitter joined Eden and Mrs. Gitter in the United States about a week later, and at that time Mrs. Gitter

expressed a desire to remain in the United States. However, Mr. Gitter convinced Mrs. Gitter to return to Israel by promising her that if she were still unhappy in six months, she could return to the United States. On June 30, 2002, Mrs. Gitter again returned to the United States with Eden, purportedly on a vacation, and did not return to Israel since then. It was unclear exactly when Mr. Gitter became aware of his wife's intentions not to return to Israel. On July 10, 2003 Mr. Gitter filed a petition in the District Court for Eden's return under the Hague Convention. It denied Mr. Gitter's petition after concluding that Eden's habitual residence remained the United States throughout the Gitters' stay in Israel.

The Second Circuit found the Ninth Circuit's opinion in Mozes v. Mozes, 239 F.3d 1067 particularly instructive. It noted that the primary insight of Mozes is its recognition of the importance of intentions (normally the shared intentions of the parents or others entitled to fix the child's residence) in determining a child's habitual residence. The Ninth Circuit, cautioned that simply observing the child's behavior was a flawed approach because "[i]t may yield strikingly different results depending on the observer's time frame." Judge Kozinski explained in Mozes that ..."a child who spends two months at Camp Chippewah, if observed only during that period, would appear to be habitually resident there. On the other hand, if we follow the same child through to adulthood, we might label a couple of years spent studying abroad a mere "temporary absence of long duration." This indeterminancy is unavoidable .... Courts should consequently "pay close attention" to intentions. The Second Circuit agreed and concluded that courts should begin an analysis of a child's habitual residence by considering the relevant intentions. This approach allows an observer to determine whether the child's presence at a given location is intended to be temporary, rather than permanent. For example, it allows an observer to distinguish between a child who went away to summer camp for a temporary duration and a child who moved permanently to a new location. In the case of the child away at summer camp, one would generally conclude that the child has not acquired a new habitual residence. As Mozes recognized, "[t]he obvious reason why the camper is not regarded as habitually resident is that he already has an established habitual residence elsewhere and his absence from it--even for an entire summer--is no indication that he means to abandon it." Thus, it concluded that, generally speaking "the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind."

The Second circuit noted that Mozes specifically focused on the intent of "the person or persons entitled to fix the place of the child's residence," which is likely to be the parents in most cases. It noted that the Hague Convention is interested in the habitual residence of only the child and it would seem logical to focus on the child's intentions. However, as the Ninth Circuit recognized, "[c]hildren ... normally lack the material and psychological wherewithal to decide where they will reside."

Thus, it held that it is more useful to focus on the intent of the child's parents or others who may fix the child's residence. However, regardless of the evidence relied upon, the parties' intent is "a question of fact to which we defer to the district court."

The Court pointed out that in the easy case, the parents (or others entitled to determine the child's residence) will agree on where the child's habitual residence is fixed, and the Court of Appeals is likely to conclude that the child's habitual residence is as intended. In nearly all of the cases that arise under the Convention, however, the parents have come to disagree as to the place of the child's habitual residence. It then becomes the court's task to determine the intentions of the parents as of the last time that their intentions were shared. This is a question of fact in which the findings of the district court are entitled to deference, and are reviewed for clear error.

Once courts have resolved where the parents mutually intended the child's habitual residence to be, they have generally concluded that the child's habitual residence, in fact, accords with that parental intent. Thus, courts have generally determined that when parents have mutually intended that the child acquire a new habitual residence the child has consequently acquired a new habitual residence. In contrast, when the parents have mutually intended that the child not acquire a new habitual residence, courts have generally concluded that the child has not acquired a new habitual residence. Informed by these holdings, the Second Circuit stated that it will presume that a child's habitual residence is consistent with the intentions of those entitled to fix the child's residence at the time those intentions were mutually shared. However, parental intent cannot alone establish a child's habitual residence. First, a change in geography is a necessary condition to a child acquiring a new habitual residence. In addition, the Court must consider whether, notwithstanding the intent of those entitled to fix the child's habitual residence, the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted. It stated that it be hard pressed to conclude, for example, that a child who has spent fifteen years abroad in the same State is not habitually resident there, even if the parents intended some day to return and did not intend that the child acquire a new habitual residence. An analysis of the evidence of acclimatization allows courts to take account of the fifteen years spent abroad.

The Court noted that as the Mozes court observed: [A] child can lose its habitual attachment to a place even without a parent's consent. Even when there is no settled intent on the part of the parents to abandon the child's prior habitual residence, courts should find a change in habitual residence if "the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place." The question in these cases is not simply whether the child's life in the new country shows some minimal "degree of settled purpose," but whether we can say with confidence that the child's relative attachments to the two countries have changed to the point where requiring 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." As Mozes cautions, however, courts should be "slow to infer" that the child's acclimatization trumps the parents' shared intent. The object of the Convention is to dissuade parents and guardians from engaging in gamesmanship with a child's upbringing in order to secure an advantage in an anticipated custody battle. Permitting evidence of acclimatization to trump evidence of earlier parental agreement could "open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit." In relatively rare circumstances, however, it is possible that the child's acclimatization to the location abroad will be so complete that serious harm to the child can be expected to result from compelling his return to the family's intended residence. As noted earlier, a child who has spent fifteen years abroad, for example, would predictably suffer severe harm if returned to the state he had experienced only at birth. In such circumstances the likelihood that the child would be harmed from the deprivation of his acclimatized life in the new residence might overcome the showing that the parents' last shared intent was to return to the original domicile. The child's acclimatization might thus "point unequivocally" to a change in his habitual residence.

The Court of Appeals found that consistent with the first prong of the legal standard it articulated, the district court properly considered whether Mr. and Mrs. Gitter mutually intended that Eden acquired Israel as his habitual residence. The district court determined that there was no "settled mutual intent to make Israel Eden's permanent home," It could not conclude that the district court's findings were clearly erroneous. The district court found that Mr. and Mrs. Gitter "only mutually agreed to move to Israel on a conditional basis-- namely, that Mrs. Gitter would be satisfied with the new arrangements." In reaching this conclusion, the court credited Mrs. Gitter's testimony that the move to Israel was only temporary and of a trial nature. In addition, the district court reviewed other evidence of parental intent: Although Mr. Gitter did point to some indicators tending to suggest their stay in Israel might be of indefinite duration, this evidence only suggests that Mr. Gitter himself never had any intention of returning to live in New York. He emphasized that he closed their U.S. bank accounts and opened Israeli accounts, sold their cars in N.Y. and leased a new car in Israel, gave away their furniture that had been in storage and bought new furniture in Israel, and spent considerable time and money on renovations to his mother's house. I find he took these actions while telling his wife they could move back to New York if she wanted to do so after a trial period. These actions can not be read as reflective of Mrs. Gitter's intentions or the Gitters' mutual agreement.

In light of the district court's determination that Mrs. Gitter's testimony was more credible, we cannot conclude that the district court was clearly erroneous in its conclusion that this evidence only reflected Mr. Gitter's intentions and that Mrs. Gitter only intended to move to Israel conditionally."

The Court of Appeals continued that the shared intent of the parents is not dispositive of a child's habitual residence. A court must additionally examine the evidence to determine if it unequivocally points to the child having acclimatized and thus acquired Israel as his habitual residence. It expressed no view whether the circumstances in which Eden lived in Israel support a finding that his habitual residence changed from the United States to Israel, or whether his parents' last shared intent that his habitual residence be in the United States should control.

As the district court did not know at the time of its decision the legal standard by which the Court of Appeals would adjudicate Hague Convention disputes it remanded to permit the district court to consider the facts explicitly in light of its opinion, and to advise it of its conclusion.