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In Whiting v
Krassner, ___F3d___, No. 03-1276 ( 3rd Cir, 2004) Whiting brought an action
under the Hague Convention for the return of her daughter, Christina, to
Canada. Christina had been taken by Krassner, her father, to the United
States without her consent. The District Court determined that Christina’s
place of habitual residence at the time of her removal from Whitings custody
was Canada, and ordered that Christina be returned to her in Canada. The
Third Circuit Court of Appeals, focusing on the settled purpose and shared
intent of the parents of a very young child, a test it established in Feder
v. Evans-Feder, 63 F.3d 217(3d Cir. 1995) and Delvoye v. Lee, 329 F.3d 330
(3d Cir. 2003), affirmed, holding that the District Court properly found
that the child’s habitual residence was Canada. It also held that the appeal
was not rendered moot by virtue of the child’s return to Canada during the
pendency of the appeal, rejecting the rationale of the Eleventh Circuit in
Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001), and adopting the rationale
of the Fourth Circuit in Fawcett v. McRoberts, 326 F.3d 491(4th Cir. 2003).
Christina Krassner was born on September 6, 2000, in Plainview, New York to
Whiting and Krassner. The two never married. They resided together with
Christina in New York until October 19, 2001. Their relationship had become
acrimonious, and the acrimony was intensified by the tragic events of
September 11, 2001. They reached a custody agreement which was presented to
Whiting as a condition of her departure with Christina for Canada, and after
they made her suggested changes it was signed by both parties on October 19,
2001. The Agreement provided that both parties would retain joint custody of
Christina, that Whiting was returning to Canada as a result of the events of
September 11, 2001, and that Krassner would have the right to have Christina
with him for a period of thirty (30) to forty-five (45) days during the
summer. The Agreement stipulated that Whiting and Christina would reside in
Wallaceburg, Ontario, Canada, and that Whiting could not move her residence
without Krassners knowledge. It also provided that Christina would be
returned to the United States no later than October 19, 2003 as long as
there is no imment [sic] danger of constant terroist [sic] attacks and as
long as Whiting was legally allowed to recide [sic] and work in the United
States. At the time the Agreement was signed, Whiting was not legally
permitted to reside or work in the U.S. and would have been unable to be the
custodial parent of Christina if they had remained in the U.S. because she
would not have been able to support her.
After signing the Agreement, Whiting left with Christina on a bus for
Canada. They lived there in a two-bedroom apartment across the hall from
Whitings mother and in close proximity to her sister. Whiting began to look
into childcare programs and applied for the necessary documentation for
Christina to live in Canada, including a medical card. The parties agreed
that Krassner would come to Canada to visit during the Christmas holidays.
It was planned that he would stay from December 22, 2001 through December
26th or 27th. On December 22, Whiting brought Christina to Krassners hotel
in Canada, along with her birth certificate and everything he would need to
care for Christina over the next four days. The parties agreed that Whiting
was to pick Christina up on Christmas day so that Christina could spend
Christmas with Whitings family at the home of Whitings mother. On December
24, Whiting called Krassner to check in on Christina and was told that she
was in New York with her father. He had taken her there without Whitings
consent. Both parties then initiated legal proceedings in their respective
countries and Whiting filed a petition under The Hague Convention for the
return of Christina. After a hearing, the District Court found that
Christina was a resident of Canada and that her removal was wrongful under
Canadian law. In reaching this conclusion, the District Court focused on the
Agreement and reasoned that, although the parties had agreed that Christina
should return to the United States if certain conditions were met, there was
no mutual agreement that she would be returned to New York. The Court
ordered her return to Canada and also ordered Krassner to pay Whitings
attorneys fees and costs in the amount of $46,441.68.
On appeal Krassner argued that an appeal from a decision under The Hague
Convention is not moot simply because the child had been returned to the
custody of the petitioner at the time of the appeal. Whiting agreed with
Krassners position concerning the issue of mootness, but argued that he was
judicially estopped from asserting this position because he took a contrary
position in his arguments to the District Court and to the Court of Appeals
as part of his initial motion for expedited appeal. The Court of Appeals
held that he was not judicially estopped from arguing against the mootness
of his appeal. The Court of Appeals noted that two courts of appeals have
dealt squarely with the issue of mootness of an appeal under The Hague
Convention once a child has been returned to the country from which he or
she was allegedly wrongfully removed, and that they have come to differing
conclusions on the issue. In Bekier v. Bekier, 248 F.3d 1051 (11th Cir.
2001), the Court of Appeals for the Eleventh Circuit held that an appeal
from a district court order directing the return of a child to his father in
Israel under The Hague Convention was rendered moot by the child’s return
there during the pendency of the appeal. The court followed the rationale of
the Fourth Circuit in Fawcett v. McRoberts, 326 F.3d 491, 495-96 (4th Cir.
2003). In Fawcett, the district court had granted The Hague Convention
petition of the mother and ordered the return of the child from the United
States to Scotland and the father then appealed. The court of appeals
reasoned that the appeal was not moot simply because the child had been
returned to Scotland because no law of physics would make it impossible for
Ms. Fawcett to comply with an order.
The main issue was whether the District Court correctly decided that Canada
was Christina’s place of habitual residence at the time of the removal. The
Court held that determination of a child’s habitual residence presents a
mixed question of fact and law. It reviews the district courts underlying
findings of historical and narrative facts for clear error, but exercises
plenary review over the courts application of legal precepts to the facts.
The childs habitual residence immediately before the alleged wrongful
removal or retention is a threshold question in deciding a case under The
Hague Convention. The Hague Convention does not specifically define the term
habitual residence. The inquiry into a childs habitual residence is not
formulaic; rather, it is a fact-intensive determination that necessarily
varies with the circumstances of each case. The court then discussed In Re
Bates, No. CA 122-89, its decision in Feder v. Evans- Feder, supra, and its
decision in Delvoye v. Lee, supra. It noted that in Feder it reversed,
finding that the child’s habitual residence was Australia because it was the
place where he had been physically present for an amount of time sufficient
for him to become acclimatized, and which had a degree of settled purpose
from the child’s perspective. In reaching this conclusion, it further noted
that a determination of whether any particular place satisfied 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. In defining habitual residence in
Feder, it found the court’s reasoning in the British case of In Re Bates to
be instructive. There, the court stated that in deciding whether a place
constitutes a child’s habitual residence: There must be a degree of settled
purpose. The purpose may be one or there may be several. It may be specific
or general. All that the law requires is that there is a settled purpose.
That is not to say that the propositus intends to stay where he is
indefinitely. Indeed his purpose while settled may be for a limited period.
Education, business or profession, employment, health, family or merely love
of the place spring to mind as common reasons for a choice of regular
abode.... 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.
The Court pointed out that since its decision in Feder, it examined the
issue of a child’s habitual residence for purposes of The Hague Convention
on another occasion. In Delvoye v. Lee, it concluded that because the mother
had retained her ties to New York, had not taken most of her belongings with
her to Belgium, was in Belgium on only a three-month visa and lived out of a
suitcase there, there did not exist the degree of common purpose to
habitually reside in Belgium. It focused on the intentions of the parents as
indicative of the child’s habitual residence, noting that {w]here a child is
very young it would, under ordinary circumstances, be very difficult for him
. . . to have the capability or intention to acquire a separate habitual
residence. It stated that because the parents lacked the shared intentions
concerning their child’s presence in Belgium, the child was not a habitual
resident of Belgium. These case demonstrate the importance of a shared
parental intent in deciding the issue of habitual residence of a child
lacking the capacity to form his or her own intentions concerning residency.
The Court noted that the Court of Appeals for the Ninth Circuit examined
this issue in Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir. 2001). In the
opinion, the Ninth Circuit took the opportunity to more clearly define the
term habitual residence. The court explained that, in its view, the first
step toward acquiring a new habitual residence is forming a settled
intention to abandon the one left behind. The court went on to declare that
the intentions that should be examined are those not of the child, but
rather of the person or persons entitled to fix the place of the childs
residence. The Court was in agreement with the Ninth Circuit on this point,
at least when the child whose habitual residence is being determined is of
such a young age that he or she cannot possibly decide the issue of
residency for himself or herself.
The Ninth Circuit then went on to delineate three broad categories of fact
patterns that arise in cases under The Hague Convention in which parents are
contesting where the child habitually resides. The first of these is the
situation in which the court finds that the family as a unit has
translocated and manifested a settled purpose to change its habitual
residence, despite the fact that one parent may have had qualms about the
move. This usually leads courts to find a change of habitual residence.
Secondly, there are cases where the petitioning parent initially agreed to
allow the child to stay abroad for an indefinite duration. These cases, the
court declared, generally have no clear answer and are very fact-dependent.
Finally, there are cases, like this, where the child’s initial move from an
established habitual residence was clearly intended to be for a specific,
limited duration. The court noted that in these types of cases, most courts
will find no change in habitual residence. However, the court went on to
point out that a child may become habitually resident even in a place where
he or she was intended to live only for a limited time if the child’s
original habitual residence has been effectively abandoned by the shared
intent of the parents.
This caveat regarding shared intent brought the Ninth Circuits decision into
alignment with the Court’s reasoning in Feder and Delvoye. Feder requires
only a degree of settled purpose to accompany the move, even if such purpose
is only for a limited period. This was the present case. The parents’ intent
in this case was embodied in the Agreement and need not be inferred from
their actions. The District Court found that the Agreement specifically
stated that Whiting and Christina would reside in Wallaceburg, Ontario,
Canada, and Christina would return to the United States no later than
October 19, 2003, depending upon certain conditions. Krassner agreed that
this case falls into this category of cases as described by the Mozes court.
United States no later than October 19, 2003, depending upon certain
conditions. He failed to recognize that while the court in Mozes did state
that most of these cases will result in a determination that habitual
residence has not changed, the court then went on to make an exception for
cases where the move, albeit for a limited time, is an effectuation of the
shared intent of the parents. Therefore, although it agreed with Krassner
that when classified in the terms of the Mozes court, this case would be one
of intent to move for a limited period, it did not agree that such a finding
necessitates the conclusion that this could not work a change in habitual
residence.
Here there was a shared intent by Christina’s parents that she live in
Canada for a period of two years. This fulfilled the requirement set out by
the Court in Feder that Whiting and Christina’s move to Canada was
accompanied by a degree of settled purpose.
Krassner argued that Canada could not be considered Christina’s place of
habitual residence because there was never an intent to abandon New York as
her habitual residence. The court noted that it does seem implicit in the
concept of acquiring a new habitual residence that the previous habitual
residence has been left behind or discarded. To the extent that
consideration of intent to abandon informs the basic inquiry and helps to
elucidate the precise contours of parties’ mutual understanding, it is a
useful test. In this case, the court did not find an intent to abandon New
York for a definite and extended period in the life of an infant. The fact
that Whiting and Christina were to return to the United States, subject to
certain conditions, did not in any way diminish the parties’ settled
intention that the two were to remain in Canada for at least two years. The
return of Christina to the state of New York was never specifically agreed
upon. The fact that the agreed-upon stay was of a limited duration in no way
hindered the finding of a change in habitual residence. Rather, as stated in
Feder, the parties’ settled purpose in moving may be for a limited period of
time. Logic did not prevent the court from finding that the shared intent of
parents’ to move their eighteen-month old daughter to Canada for two years
could result in the abandonment of the daughter’s prior place of habitual
residence. In its view the intent to abandon, need not be forever; rather,
intent to abandon a former place of residency of a one year old child for at
least two years certainly can effectuate an abandonment of that former
habitual residence.
The framework it established in Feder and Delvoye continued to provide the
best guidance for determining a childs habitual residency. In Feder, the
court stated that a childs habitual residence is the place where he or she
has been physically present for an amount of time sufficient for
acclimatization and which has a degree of settled purpose from the childs
perspective. It went on to modify this requirement both in Feder, itself,
and later in Delvoye when the situation involves a very young child. In
these circumstances, it recognized that the shared intent of the parents in
determining the residence of their children was of paramount importance.
The Court further attempted to clarify the definition of habitual residence
when the child involved is very young. In such a case, acclimatization is
not nearly as important as the settled purpose and shared intent of the
child’s parents in choosing a particular habitual residence. In recognizing
acclimatization as an element of habitual residency in Feder, the court was
attempting to develop a definition of habitual residence which would comport
with one of the main objectives of The Hague Convention- i.e., restoring the
child to the status quo before the abduction.
Focusing on the settled purpose to establish a habitual residence from the
parents perspective in the case of a young child provides a more workable
framework in this context, and furthers another objective of The Hague
Convention, the deterrence of child abduction.
Applying the analysis to the facts the court held that Canada was
Christina’s place of habitual residence immediately before she was taken by
her father. The shared intent of her parents, as clearly evidenced in the
Agreement, was that she would remain in Canada for at least two years. When
Krassner removed Christina from Canada and took her to the United States,
his acts were disruptive of an agreed-upon intention. This is exactly the
type of settled purpose it contemplated in Feder.
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