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In Koch v Koch, 450 F.3d 703 (7th Cir.,2006) Dane Koch appealed from
the district court's order granting Antonia Koch's petition under the
Hague Convention. Dane was a U.S. citizen who had spent most of his
adult life living and working in Germany. Antonia filed the present
action under the Convention and ICARA in the federal district court,
asking the court to return the children to Germany so that the parties
could litigate custody issues in that forum. The district court noted
that the principal issue under the Convention and ICARA was whether Dane
had removed the children from Germany wrongfully. That question turned
on the "habitual residence" of the children at the time they were
removed. The district court initially disavowed the Ninth Circuit's
approach, finding it inconsistent with the intent of the drafters of the
Convention and with the jurisprudence of the other signatories. Applying
a purely fact-based approach, the court found that the most important
factors in determining habitual residence were geography and duration.
Charles and Annalena had lived in Germany for more than three years,
which constituted the near entirety of Annalena's life and well over
half of Charles' life. The court found that in light of this duration,
the parents' long-term plans regarding residence were largely
irrelevant: Moreover, Dane, Antonia and the children were not in Germany
on a visit nor was this a situation where one parent remained behind.
Rather, the family moved to Germany as a family because Dane found work
there. They took all of their belongings with them except for a few
large items and established a home and a life in Germany. Dane worked,
Antonia cared for the children and Charles attended school. Further,
Dane and Antonia were not strangers to Germany, both having lived there
for most of their adult lives. Thus, there can be little doubt that
Charles and Annalena became habitual residents of Germany. Koch v. Koch,
416 F.Supp.2d 645, 652-53 (E.D.Wis.2006). In the alternative, the court
found that, even using the standards set forth in Mozes, Dane and
Antonia had intended to abandon their habitual residence in the United
States. The court based this finding on, among other things, the fact
that the couple had lived in Germany for three years, that prior to
their separation they had made no plans to return to the United States
anytime soon, and that they had accumulated nowhere near the $20,000
that they needed to save before returning to the United States. The
court found that, having abandoned the United States as their habitual
residence, Germany was the habitual residence of the children at the
time they were removed. The court therefore ordered Dane to return the
children to Germany and ordered that Dane pay the fees and costs
incurred in connection with Antonia's petition, including legal fees,
court costs and transportation costs.
Because the Seventh Circuit had not yet decided the standards for
determining habitual residence, the court surveyed the other circuits
and some international decisions. It noted that many of the courts
treated the inquiry as purely factual until the Ninth Circuit decided
the case of Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). Following
Mozes, most of the circuit courts adopted the Ninth Circuit's analysis,
which required the court to determine whether the parents intended to
abandon their previous habitual residence, judging that intent at the
last time the parents had a shared intent. That shared intent, under the
Ninth Circuit's approach, could be overcome if the child had become
acclimatized to the new place. The Seventh Circuit found that its sister
circuits review the district court's findings of fact for clear error
and review the court's application of the law to those facts as well as
its interpretation of the Convention de novo. See Karkkainen v.
Kovalchuk, 445 F.3d 280, 291 (3rd Cir.2006); In re Adan, 437 F.3d 381,
390 (3rd Cir.2006); Holder v. Holder, 392 F.3d 1009, 1015 (9th
Cir.2004); Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003),
cert. denied, 540 U.S. 1107, 124 S.Ct. 1062, 157 L.Ed.2d 893 (2004);
Shealy v. Shealy, 295 F.3d 1117, 1121 (10th Cir.), cert. denied, 537
U.S. 1048, 123 S.Ct. 603, 154 L.Ed.2d 521 (2002); Miller v. Miller, 240
F.3d 392, 399 (4th Cir.2001); Mozes, 239 F.3d at 1072; Blondin v.
Dubois, 238 F.3d 153, 158 (2d Cir.2001); Friedrich v. Friedrich, 78 F.3d
1060, 1064 (6th Cir.1996). Seeing no reason to depart from the
considered approach of our sister circuits, it decided to apply this
standard of review. Determinations of intent involve questions of fact
and it would defer to the district court's findings on intent unless
they are clearly erroneous. The ultimate determination of habitual
residence is a mixed question of law and fact to which it would apply de
novo review.
The Seventh Circuit saw no reason to disavow the Mozes approach.
Mozes asks the court to determine first whether the parents shared an
intent to abandon the prior habitual residence, in this case, the United
States. In determining the parents' intent, the court should look at
actions as well as declarations. When Dane and Antonia moved to Germany,
they shared a settled intention to move there for an indeterminate
period of time, delimited by their financial circumstances and by Dane's
employment goals. Although they also shared a subjective wish to someday
return to the United States, habitual residence is not determined "by
wishful thinking alone." The establishment of a habitual residence
requires an actual change in geography, as well as the passage of an
appreciable amount of time. "When the child moves to a new country
accompanied by both parents, who take steps to set up a regular
household together, the period need not be long." Following Mozes, most
of the sister circuits focused on the parents' last shared intent in
determining habitual residence. See e.g. Gitter, 396 F.3d at 131-33
(finding the Mozes opinion "particularly instructive" in determining
habitual residence by considering the intentions of the parents as of
the last time their intentions were shared); Ruiz v. Tenorio, 392 F.3d
1247, 1252-1255 (11th Cir.2004) (agreeing with Mozes that the settled
intention of the parents is a "crucial factor" in determining habitual
residence); Whiting v. Krassner, 391 F.3d 540, 548-550 (3d Cir.2004),
cert. denied, --- U.S. ----, 125 S.Ct. 2938, 162 L.Ed.2d 871 (2005)
(agreeing in part with Mozes that the parents' shared intent determines
whether a prior habitual residence has been abandoned and a new one
formed); Silverman, 338 F.3d at 899 (citing Mozes in support of using
the parents' shared intent to determine habitual residence). Dane argued
that the couple's shared intent to someday return to the United States
was therefore determinative on the issue of habitual residence here. But
shared intent to someday return to a prior place of residence does not
answer the primary question of whether that residence was effectively
abandoned and a new residence established by the shared actions and
intent of the parents coupled with the passage of time. In Whiting, the
parents of an infant agreed that their child would reside with the
mother in Canada for a period of two years and then would return to the
United States depending on certain conditions. The court found that the
fact that the mother and child were to return to the United States
subject to certain conditions did not in any way diminish the parents'
settled intention that the two were to remain in Canada for at least two
years. The court characterized this as an intent to abandon the United
States for a definite and extended period in the life of the infant.
Together with a settled purpose, this agreement shifted the habitual
residence of the child to Canada. The Seventh Circuit found that there
was no meaningful difference between the situation presented in Whiting
and the facts of the case and affirmed the judgment.
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