In Koch v Koch, 416 F.Supp.2d 645 ( E. D. Wisconsin, 2006) Petitioner Antonia Koch ("Antonia") alleged that her estranged husband, respondent Dane Koch ("Dane"), wrongfully removed their children, Charles, age six, and Annalena, age three, from Germany to the United States. Dane, a United States citizen, served in the military in Germany from 1987 to 1990, after which he remained in Germany where he worked, married, had two children and divorced. In 1997, he met Antonia, a German citizen, and in 1999, they moved to the United States where they married. On February 20, 2000, Antonia give birth to Charles, and on April 2, 2002, to Annalena, both of whom have dual United States and German citizenship. Dane started a business, which failed, and Dane and Antonia went through bankruptcy. The couple also experienced marital difficulties, and on at least one occasion Dane physically abused Antonia. On April 13, 2002, after Dane's previous employer offered him a job, Dane and Antonia and their children returned to Germany. Although Dane and Antonia disagree about how long they intended to remain in Germany (Dane indicates two to three years and Antonia five to ten), they agree that they intended to save enough to make a down payment on a home and purchase two cars (an amount they estimated at about $20,000) and then return to the United States. In Germany, Antonia and Dane ultimately settled in Eschenbach where Dane obtained a three-year renewable work permit (the longest permit available), and they enrolled Charles in kindergarten. The couple continued to experience marital difficulties, and Dane's physical abuse continued causing Antonia to spend one night with a friend and another in a shelter. In December 2004, Antonia told Dane that she wanted a divorce, and he angrily pushed her onto their bed and choked her in front of the children. The next day, Antonia reported the incident to the police and took the children to Taunusstein, her home town, about 180 kilometers from Eschenbach. On December 17, 2004, Dane picked up the children for a visit. Instead of returning them, however, he took them to the United States. Dane called Antonia and told her that if she refused to come back to him, he and the children would remain in the United States. In the meantime, Antonia secured an apartment in Taunusstein and obtained an ex parte order from a German court awarding her the right to determine where the children would live. On January 21, 2005, Dane returned to Eschenbach with the children, and Antonia retrieved them and took them to Taunusstein where she enrolled them in school and cared for them with help from her mother. However, Charles experienced emotional problems, and in March 2005, he went to Eschenbach to stay with Dane. However, because of his work schedule, Dane could not provide adequate care for Charles and after about ten days returned him to Antonia. In April 2005, Dane called Antonia after midnight and said that he was en route to Taunusstein. During the three to four hour drive, he called her approximately fifty-five times and made a variety of threats. When he arrived, Antonia called the police, and they arrested Dane. The next day, Antonia obtained a restraining order barring Dane from contacting her. However, with her agreement, Dane continued to visit the children. On May 5, 2005, Dane picked up the children for what was supposed to be a weekend visit, but on May 7, he and the children flew to the United States. Antonia discovered his plan to depart and called the police, who attempted to prevent him from taking the children out of Germany but arrived at the airport too late to do so. Dane did not tell his employer or his landlord of his plan to leave Germany. In addition, he took Antonia's address book, which made it difficult for her to contact friends in the United States. Antonia immediately contacted the German consulate in Chicago, which directed her to the National Center for Missing and Exploited Children ("Center"). She also called Dane's mother in Wisconsin, who falsely informed her that she did not know the whereabouts of Dane and the children. In September 2005, Antonia discovered that Dane and the children were living with his parents, at which point the Center referred her to an attorney, who initiated the present action. In September 2005, Dane obtained an ex parte order from a Wisconsin court awarding him temporary custody of the children.

The court noted that the most important fact in the habitual residence calculus will usually be the duration of the child's stay in a country. Generally speaking, a child will be found to be habitually resident in a country if he or she has been living there for a sufficient period of time. Where there is geographic stability and adequate duration, questions as to the purpose of the residence will usually be pushed into the background. Further, to the extent that purpose plays a part in determining whether a child is habitually resident in a country, it is only necessary that there 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, or 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. In re Bates, No. C.A. 122-89 (Fam.Div.1989) (U.K.), available at www.hiltonhouse.com. It noted that courts in most signatory nations approach the issue of habitual residence as described above. In determining habitual residence, courts in the United States have also focused primarily on the factors of geography and duration. The court rejected the Ninth Circuit's decision in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), which rather than beginning the analysis by looking at the facts of geography and duration, asks whether the parents intended to abandon their previous habitual residence. See, e.g., Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir.2005); Holder v. Holder, 392 F.3d 1009 (9th Cir.2004); Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir.2004). While Mozes is a "carefully-reasoned opinion," which attempts to effectuate "the goals of the Convention" such as preventing "unilateral decisions to move a child," its assertion that the starting point of the habitual residence analysis is whether the parents intended to abandon a previous habitual residence appears to be inconsistent with the intent of the drafters of the Convention and with the jurisprudence of other signatories. Further, Mozes 's approach to the issue of habitual residence has had an unfortunate effect on Convention jurisprudence in United States courts. Courts relying on Mozes have in some instances made seemingly easy cases hard and reached results that are questionable at best. The court rejected the Mozes approach to the issue as inconsistent with that of most Convention signatories and with the goals of the Convention. While parental intent may be a factor in close habitual residence cases, it is not the starting point of the analysis. Rather, as discussed, the inquiry into habitual residence begins with the facts on the ground, most importantly those of geography and duration.

The court found that Charles and Annalena lived in Germany for a relatively long time--over three years. Thus, as previously discussed, their parents' long term plans regarding residence are 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.

Thus, at the time Dane removed them from Germany, Charles and Annalena were habitual residents of Germany. Further, at such time Antonia had rights of custody of the children and was exercising such rights. Even putting aside the court order granting her the right to determine where the children would live, she and Dane shared equal joint custody pursuant to German law. Burgerliches Gesetzbuch [BGB] [German Civil Code] § 1626(1). Therefore, Dane's removal of the children was wrongful under article 3 of the Convention.