In Karkkainen v Kovalchuk , 445 F.3d 280 (3rd Cir. (Pa.) 2006) Milla Karkkainen filed a Petition for Return of Child under the Hague Convention. She alleged that her ex-husband, Vladimir Kovalchuk, and his current wife, Julie d'Itri (collectively, the "Respondents"), wrongfully retained her daughter, Maria Kovalchuk, when she was eleven years old. The District Court denied the petition, holding that there was no wrongful retention because Maria's habitual residence was the United States. Karkkainen appealed this decision, arguing that Maria is habitually resident in Finland. The Third Circuit held that prior to her retention, Maria acclimatized to the United States and that there was a degree of settled purpose from her perspective to remain in this country. The existence of shared parental intent to permit Maria to choose her country of residence bolstered this conclusion. Thus, it agreed with the District Court's finding that Maria was a habitual resident of the United States and affirmed.

Maria was born on April 25, 1992 in Russia. Her parents, Milla Karkkainen and Vladimir Kovalchuk, were married at the time. After their divorce, Karkkainen and Kovalchuk agreed that Maria would live with her mother in Finland.

Both Karkkainen and Kovalchuk remarried after their split. Karkkainen married Kimmo Karkkainen in January 1998, and Kovalchuk married Julie d'Itri in September 2000. Kovalchuk and d'Itri saw Maria periodically, either by traveling to Europe or by bringing her for visits to the United States. In 2000, however, Maria was unable to obtain a tourist visa for a visit to the United States due to the concerns of the United States Consulate in Finland about Maria's custody status.

As part of their effort to obtain a visa for Maria to visit the United States, Kovalchuk and Karkkainen signed a Stipulation in Custody in December 2000 that clarified their custody arrangement. The Stipulation provided, inter alia, that Karkkainen "shall have primary physical custody of [Maria], including the right of the child's residence in Finland, which for purposes of The Hague Convention on the Civil Aspects of Child Abduction, shall be considered the child's 'habitual residence." ' The parents continued to share legal custody of Maria such that both had "the right and responsibility to make major decisions affecting ... [her] best interest." The terms of the Stipulation required that it be filed with the Court of Common Pleas of Allegheny County, Pennsylvania. Though the Stipulation was signed by a common pleas judge, the parties never actually filed it with the court. The record reflects that the primary purpose of the Stipulation in Custody was to secure Maria's tourist visa.

Despite these efforts to clarify Maria's custody status, Maria was unable to obtain a visa to visit the United States. In February 2002, the parties began discussions about making Maria a permanent resident of the United States for immigration purposes, which would dispense with the need for a tourist visa. In March 2002, Karkkainen granted permission for Maria to become a permanent American resident in a signed and notarized document. It was Karkkainen's understanding at that time that she would not lose any custody rights over her daughter if she were made a permanent resident of the United States, but that the change in immigration status would give Maria the right to remain in the United States indefinitely. Maria was granted an immigrant visa in September 2002 and she officially became a permanent resident of the United States when she visited the country in October 2002. She also visited the United States in December 2002 during the Christmas holiday and over her Easter break in April 2003.

During the winter of 2002 and spring of 2003, Maria, her parents, and her stepparents began to plan for Maria to make a longer visit to the United States. The parties agreed that she would spend the entire summer here with her father and d'Itri. In addition, Maria began increasingly to express her preference to move permanently to the United States. Maria had a conversation in May 2003 with her mother and stepfather in which she stated that she wanted to live with her father. Maria's stepfather told her that she was free to make that decision. When Karkkainen did not disagree with this statement, Maria was left with the impression that she had been given permission to move permanently to the United States if she wished. After this conversation, Maria said goodbye to her teacher, Tuula Merenheimo, and to several friends, telling them that she was moving to the United States. As a parting gift, Merenheimo gave Maria the books that she would have used during the next school year in Finland. These books were usually kept by the teacher during the summer and handed out at the beginning of the academic year.

Several events reinforced Maria's belief that she would be permitted to move to the United States permanently. Milla and Kimmo Karkkainen helped Maria apply to a private American school for the fall semester of 2003 by faxing her academic transcripts to the school. Maria heard her mother tell her grandmother on the telephone that Maria was moving to the United States. And Karkkainen let Maria travel to the United States on June 6, 2003, moments after Maria told Karkkainen that she was unsure she would return to Finland at the end of the summer.

The Respondents claimed that the parties agreed that the summer would be a trial period during which Maria would decide whether she wanted to move to the United States permanently. Karkkainen argues that she never granted permission for Maria to live in the United States indefinitely and that she expected Maria to return to Finland on August 10, 2003.

The record reflected that Maria was both mature and intelligent for her age. An expert in teaching and training children in the performing arts testified that Maria is "a very focused, gifted, talented and ... creative child" with particularly strong skills in photography and drawing. An independent child psychologist found that Maria was "uniquely talented and highly intelligent," an impression the District Court echoed after hearing Maria's testimony. Maria could communicate well in Finnish, English, and Russian, and had extensive experience traveling in Europe and the United States for visits with her father. She was, much more experienced and mature than the average eleven year old when she came to the United States on June 6, 2003.

During the summer of 2003, Maria took academic classes, studied photography, traveled in the United States, and cultivated her relationships with d'Itri and d'Itri's family. In addition, Maria was admitted to a private American school named The Ellis School, where she enrolled to attend in the fall. When Maria did not return to Finland in August 2003, Karkkainen filed a Petition for Return under the Hague Convention. The District Court determined that Maria had become acclimatized during her stay in the United States prior to the date of her retention. Accordingly, the Court found that Maria was a habitual resident of the United States and refused to return her to Finland.

The Third Circuit noted that the parties agreed when Maria left for the United States in June 2003 that she would choose where she would reside after the summer. The District Court held that the date of retention was August 28, 2003, the date on which Karkkainen filed her petition for Maria's return. The Third Circuit agreed with Karkkainen that August 10, 2003, not August 28, 2003, was the proper date of retention. This was the date of Maria's return airline ticket to Finland and the date after which Kimmo Karkkainen indicated in a July 2003 email to the Respondents that Maria's presence in the United States would constitute kidnapping.

The Third circuit noted that the inquiry into a child's habitual residence is a fact-intensive determination that cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case. Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). This is especially true in cases such as this one, where the petitioning parent initially agreed to allow the child to stay abroad for an indefinite duration, but subsequently had second thoughts about that decision. Mozes, 239 F.3d at 1077. "These cases ... generally have no clear answer and are very fact-dependent." Whiting, 391 F.3d at 549. The Court stated that a child's 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 child's perspective." This approach considers a child's experience in and contacts with her surroundings, focusing on whether she "develop[ed] a certain routine and acquire[d] a sense of environmental normalcy" by "form[ing] meaningful connections with the people and places [she] encountered" in a country prior to the retention date. It examines a child's conduct and experiences to determine whether she became "firmly rooted" in her new surroundings, not merely whether she acculturated to a country's language or customs. Thus, if a child becomes rooted in one country, the court will not return her to another one where doing so would take her "out of the family and social environment in which [her] life has developed." This inquiry considers whether a child has made a country her home before the date of her removal or retention. Although it examines acclimatization and settled purpose "from the child's perspective," it consders parental intent as part of this inquiry "because the child's knowledge of these intentions is likely to color its attitude to the contacts it is making." As the Court of Appeals for the Ninth Circuit noted, the intentions of a child's parents may affect the length of time necessary for a child to become habitually resident or otherwise influence a child's ability to acclimatize. Mozes, 239 F.3d at 1079-80.

In addition to considering how parental intent affected a child's perspective, we must also give some independent weight to "the parents' present, shared intentions regarding their child's presence" in a particular place. Feder, 63 F.3d at 224 (emphasis added). This approach helps courts ensure that neither parent is acting unilaterally to alter a joint understanding reached by the parents. Thus, given the facts of this case, the agreement between Maria's parents was relevant in two ways. First, it affects the amount of time required for Maria to become acclimatized and to demonstrate a degree of settled purpose to live in the United States. Second, the agreement was relevant on its own under the shared intent inquiry.

Based on these standards that Maria was a habitual resident of Finland prior to her arrival in the United States on June 6, 2003. She lived in that country for years and was acclimatized to her environment there in every way. In addition, Finland was the country that Maria's parents had set as her habitual residence in their Stipulation in Custody. The question was whether Maria's habitual residence changed from Finland to the United States prior to the retention date.

The shared intention of Maria's parents changed the underlying assumption of the Stipulation when it was prepared, namely, that Maria would necessarily live with her mother. Once the parties reached a new agreement about how Maria's residence would be determined and gave her the option to live in the United States with her father, circumstances had changed and the habitual residence term of the Stipulation in Custody was no longer binding.

To determine whether Maria's habitual residence changed from Finland to the United States, the court considered whether she acclimatized to the United States prior to the date of retention and whether there was a degree of settled purpose from her perspective to remain in this country beyond August 10, 2003. Whiting, 391 F.3d at 550. Courts have identified a number of specific factors that are indicative of acclimatization and a degree of settled purpose from the child's perspective. In Feder, we noted that academic activities are among "the most central .. in a child's life" and therefore highly suggestive of acclimatization. The Court of Appeals for the Eleventh Circuit has taken school attendance, social engagements, and lessons to be evidence of acclimatization. Ruiz v. Tenorio, 392 F.3d 1247, 1255 (11th Cir.2004). The Ninth Circuit Court of Appeals weighed a child's participation in sports programs and excursions in his new country in favor of acclimatization. Holder, 392 F.3d at 1020.

Applying the lessons of such cases there was evidence in the record that Maria acclimatized herself to the United States during the summer of 2003. She enrolled in The Ellis School and took summer classes to prepare for her attendance there in the fall. She also took photography classes that summer, traveled in the country, and developed relationships with d'Itri and her family that she had established during previous visits to the United States in October 2002, December 2002, and April 2003. The court viewed these events in the context of record evidence that Maria was "uniquely talented and highly intelligent," an experienced traveler with strong English skills, and mature for her age. Taken together, these factors suggest that Maria "form[ed] meaningful connections with the people and places she encounter[ed]" in the United States and was therefore acclimatized prior to the date of her retention.

Furthermore, there was evidence in the record that Maria abandoned Finland as her habitual residence. When Maria came to the United States in June 2003, she brought more personal belongings with her than usual, in anticipation that she would remain here after the summer. Maria's decision in July 2003 to remain in the United States, which she communicated to her parents and stepparents, was essentially a choice to abandon Finland as her habitual residence. "[W]hile our jurisprudence on habitual residency ... has not heretofore enunciated a need for an intent to abandon a former habitual residency in order to establish a new one, it does seem implicit in the concept of acquiring a new 'habitual' residence that the previous 'habitual' residence has been left behind or discarded."

There were also factors that weigh against a finding of acclimatization. "Habitual residence may only be altered by a change in geography and passage of time," Silverman, 338 F.3d at 898, and is a concept that focuses on past experience, not future intentions, Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993). The intentions of a child's parents "affect[ ] 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 to the contacts it is making." Maria's parents intended when Maria left for the United States in June 2003 that Maria would be able to choose where she would live at the end of the summer and that her choice would be respected. This agreement, unusual in cases under the Hague Convention, provided the defining context for Maria's visit in the summer of 2003.

There was considerable evidence that the agreement between Maria's parents "colored her attitude" towards her visit to the United States during the summer of 2003. Maria thought when she arrived that she would be permitted to choose, before the end of the summer, the country in which she would reside permanently. In multiple conversations with parents and stepparents, Maria expressed her desire to pick her residence. She indicated to her friends and teacher prior to leaving Finland that her parents would allow her to choose where she would live after the summer of 2003. Furthermore, Maria told her mother on the day that she was leaving for the United States that she was not sure she would return. The fact that Maria believed that she controlled her own destiny influenced her entire experience in the United States prior to her retention here. Indeed, Maria strongly suspected even before she arrived that she would choose to remain here. Under these circumstances, less time was required for Maria to acclimatize and demonstrate a degree of settled purpose to stay in the United States than would normally be the case.

This was a unique fact pattern, in that Maria's parents agreed in June 2003 that she possessed "the material and psychological wherewithal" to decide where she would reside. Mozes, 239 F.3d at 1076. Any eleven year-old girl could conceivably tell her mother that she prefers to remain in a country where she is visiting, yet this would not necessarily alter her habitual residence. Here, Maria's actions during the summer of 2003, and her declaration that she would remain with her father thereafter, were especially indicative of her settled purpose in light of her parents' agreement to permit her to decide to remain in the United States permanently and to respect whatever choice she made. Viewed in the context of this understanding, Maria's conduct, including her preparatory academic work, enrollment in an American school, and her efforts to connect with d'Itri's family, reflected her acclimatization and a degree of settled purpose to remain more clearly than it would if considered in isolation.

The Court did not view the agreement that existed in June 2003 as itself determinative of Maria's habitual residence, but rather as important in our consideration as to how Maria experienced her contacts in the United States and, consequently, as a factor that influenced the amount of time required for Maria to acclimatize and demonstrate a degree of settled purpose to remain with her father. Though the relatively short period of time Maria was present in the United States made it a close question, the court held that Maria was acclimatized to the United States on the date of her retention and that her conduct demonstrated a degree of settled purpose to remain here. It based this conclusion on the specific facts and circumstances before it, and relied heavily on Maria's maturity and intelligence, her development of relationships with family and friends in the United States prior to her retention, and her academic work during the summer of 2003 to prepare for attendance at The Ellis School. Importantly, it viewed these factors against the backdrop of the agreement between Maria's parents to permit Maria choose her own residence. The court was mindful that it should avoid setting the bar for acclimatization too low, lest it create an incentive for a parent to remove or retain a child in the hope that the child will quickly acclimatize and not be returned. The court was satisfied that in the unique circumstances of this case, Maria's experiences in the United States prior to her retention crossed the line that demarcates acclimatization and indicate a degree of settled purpose from her perspective.

In addition to considering habitual residence from Maria's perspective, Feder requires that the court give independent weight to her parents' shared intent. 64 F.3d at 224. It has held that, in cases involving very young children, "the shared intent of the parents in determining the residence of their children [is] of paramount importance" and acclimatization is secondary. Acclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment. Somewhat less weight to shared parental intent in cases involving older children, like Maria, who have reached an age where they are capable of becoming "firmly rooted" in a new country. In such cases, attention generally turns first to the child's perspective, not the parents' intent. But shared parental intent remains relevant to habitual residence in all cases under the Hague Convention.

The Third Circuit noted that consistent with its instruction in Feder, courts must consider "the parents' present, shared intentions" as part of the habitual residence analysis.

When a removal or retention is in accordance with the shared intent of both

parents, there is no unilateral action, and therefore no harm for a court to remedy under the Hague Convention. There was record evidence from as early as September 2002 of shared parental intent to permit Maria to move permanently to the United States. Only as it became clear that Maria would choose to remain with her father did Karkkainen retract her consent to allow Maria to choose her residence. Yet, by that time, Maria had already begun to settle in the United States in reliance on the agreement that she would be permitted to remain here permanently. Thus, the mutual understanding during the summer of 2003 was that Maria would have the opportunity to remain in the United States permanently (that is, to live here with a degree of settled purpose). Karkkainen's change of heart in July 2003 is the type of unilateral act that the Hague Convention was designed to prevent, namely, one that disrupts a child's residential environment and thwarts shared parental intent. The court gave weight to the agreement that existed when Maria left Finland and not to Karkkainen's subsequent retraction of consent.

Though it found it to be a close question, the Third Circuit agreed with the District Court's holding that Maria acclimatized to the United States prior to her retention and that her conduct demonstrated a degree of settled purpose to remain here. This weighed in favor of a finding that Maria was habitually resident in the United States on the retention date. The shared parental intent that Maria would choose her country of residence during the summer of 2003 further bolstered this conclusion. Consequently, it held that Maria was a habitual resident of the United States and that she was not wrongfully retained under Article 3 of the Hague Convention.