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In Papakosmas v Papakosmas,
483 F.3d 617 (9th Cir.(Cal.) 2007) Dimitris and Yvette Papakosmas
were married in Las Vegas, Nevada, in 1994, and subsequently resided in
the Los Angeles, California area. They had two children, both born in
Los Angeles. They owned and operated two hotels in Hollywood,, and
leased and operated a third hotel. In December 2003, the family left
California for Greece, the birthplace of Dimitris. At the evidentiary
hearing, he testified that the couple had always discussed the
possibility of moving to Greece, but had made the ultimate decision in
April or May of 2002, after the September 11 attacks resulted in a
negative effect upon the hotel business. In October 2003, Dimitris
completed the sale of the couple's two hotels. Yvette asserted that she
learned only in November 2003 that one of the hotels had been sold,
never learning of the other sale until the family was in Greece.
Dimitris also asked Yvette to sign a quitclaim deed on a property owned
by the couple in Malibu, conveying her interest to Dimitris in full.
After Yvette executed the deed, Dimitris sold the property. In the
months leading up to the move, Yvette began selling or disposing of the
couple's furniture and also sold the family dog. She contended that the
sale was unrelated to the move but instead a result of the dog's
behavior problems. The family arrived in Greece on December 20 or 21,
2003, and spent the Christmas holiday with Dimitris' family in Orei,
located three hours from Athens. On January 6, 2004, they went to
Athens, where Dimitris had rented an apartment. On January 23, 2004,
Yvette returned to California to check on the management of the hostel
and to make a lease payment. Dimitris contended that Yvette's trip was
to deal with a bounced check and to return a passport to her son from a
previous marriage. Upon returning to Greece on February 3, 2004, Yvette
learned from her daughter that Dimitris' alleged mistress from the
United States, Slima Boudour, was also in Greece. Dimitris conceded that
he had a "one-night stand" with Boudour, but denied that she was his
mistress. Yvette testified that she considered leaving Greece after
Dimitris refused to send Boudour home, but that she could not because
Dimitris controlled the children's passports and her own. Yvette
contacted the United States Embassy, which advised her to seek legal
representation in Greece. On February 14, 2004, in Athens, Yvette's
wrist was cut and she was hospitalized. Yvette contends that Dimitris
cut her after she refused to accede to his wish that Boudour be allowed
to live in the apartment with the family. Dimitris testified at the
evidentiary hearing, and a Greek doctor also offered medical testimony,
that Yvette's wound was self-inflicted. After Yvette was released from
the hospital, she hired an attorney and succeeded in getting a
restraining order from the Greek courts. Meanwhile, Dimitris moved the
family's belongings from the Athens apartment to a new apartment in
Orei. Yvette's restraining order dissolved after three days, at which
time she returned to the United States Embassy seeking assistance. After
the Embassy conducted its own investigation, it determined that it would
help Yvette and gave her plane tickets and passports. On April 23, 2004,
she and the children left Greece for the United States. On August 12,
2004, Dimitris instituted this action under the Hague Convention seeking
the return of the children to Greece. Following the evidentiary hearing
the district court filed an order denying Dimitris' petition. The
district court first concluded that Dimitris and Yvette agreed to move
to Greece on a conditional basis, and therefore determined that there
was no shared, settled intent to abandon their habitual residence in
California. Next, the court concluded that at no time after their
arrival in Greece did they form such a settled intent. Finally, I
concluded that the "objective facts did not point unequivocally to the
conclusion that Greece had become the children's new habitual
residence." The court determined that Dimitris had failed to meet his
burden of proving that Greece was the children's habitual residence and
dismissed the action.
The Ninth Circuit affirmed. It noted that in
Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir.2001) it stated that a
court applying this provision must answer four questions: (1) When did
the removal or retention at issue take place? (2) Immediately prior to
the removal or retention, in which state was the child habitually
resident? (3) Did the removal or retention breach the rights of custody
attributed to the petitioner under the law of habitual residence? (4)
Was the petitioner exercising those rights at the time of the removal or
retention? It pointed out that in determining whether a child has
acquired a new habitual residence, "we first ask whether there is a
settled intention to abandon a prior habitual residence". In this
inquiry, "the intention or purpose which has to be taken into account is
that of the person or persons entitled to fix the place of the child's
residence." Here, as in most cases, those persons were the parents. The
parents' settled intention is not alone sufficient to change a child's
habitual residence. Mozes counsels that such a transformation also
requires (1) an actual change in geography, and (2) the passage of an
appreciable period of time, one sufficient for acclimatization.
Importantly, habitual residence is intended to be a description of a
factual state of affairs, and a child can lose its habitual attachment
to a place even without a parent's consent. Thus, even when the settled
intent of a child's parent is not clear, a district court 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.' " A determination of habitual residence under the Hague
Convention is a mixed question of law and fact. Under this standard, "we
accept the district court's historical or narrative facts unless they
are clearly erroneous, but exercise plenary review of the court's choice
of and interpretation of legal precepts and its application of those
precepts to the facts." The question of whether there is a settled
intention to abandon a prior residence is a question of historical fact
"as to which we defer to the district court."
Dimitris contended that the district court
erred in its conclusion that there was no mutual settled intention
between Yvette and Dimitris to abandon their prior residence in
California. Such conclusion "is a finding of historical fact entitled to
review under the clearly erroneous standard." The district court made
three key credibility determinations in reaching its conclusion. First,
it found that Yvette's account of the family's move to Greece and
subsequent events was credible. Second, it found that Dimitris' account
was not credible and that he had lied or misrepresented significant
facts, including facts related to the couple's disposition of property.
Finally, the district court found the testimony of key third parties,
such as Yvette's mother, the children's teachers, and the hostel
manager, to be credible and supportive of Yvette's claim of
conditionality. These credibility determinations were supported by the
record, and therefore were not clear error. Nor did the objective facts
surrounding the family's departure for Greece particularly support
Dimitris' version of events such that it was clear error for the
district court to find that Yvette intended the move to be conditional.
Most importantly, the district court did not err in concluding that the
Papakosmas family intended to continue doing business in the United
States. The court accepted as credible the testimony of Yvette that she
returned to the United States early in 2004 to make lease payments on
the hostel and to check on the business. The existence of such payments
was corroborated. The ongoing business venture in the United States and
Yvette's trip back were objective factors weighing in favor of a finding
that there was no mutual intent to abandon completely the family's
residence in California.
The Court was sensitive to its duty to strive
for uniform interpretation of the provisions of a treaty. As part of its
mixed standard of review under Mozes, it considered whether the district
court's ultimate conclusion that there was no shared settled intention
on the part of the parents to shift the children's habitual residence
was consistent with the body of treaty law under the Hague Convention.
The Court was satisfied that the district court's conclusion that the
family's move to Greece was "conditional" was consistent with the
reasoning of other courts interpreting the Convention. It found the
Eleventh Circuit's decision in Ruiz v. Tenorio particularly on point.
392 F.3d at 1249. The Second Circuit's decision in Gitter v. Gitter, 396
F.3d 124 (2d Cir.2005) was also instructive. The district court found,
and the record supported that Dimitris was selling the couple's American
property out from under Yvette and without her knowledge; that the
couple had no set employment in Greece; that the couple continued to
operate a business in the United States; that the family had not
purchased nor even sought out a permanent home in Greece; and that
Yvette had not sought employment or otherwise integrated into Greek
society. The district court, also relied upon key third-party testimony
of Yvette's mother, the children's teachers, and the hostel manager, to
establish that Yvette had not agreed to discard fully the family's
residence in California.
Because the district court's credibility
determinations and findings as to intent are supported by the record,
and because the ultimate decision comports with prior precedent under
ICARA and the Hague Convention, there was no error in finding that there
was no mutual settled intention on the part of the parents to shift the
habitual residence of their children from California to Greece.
This conclusion did not end the inquiry. Under
Mozes, the court was also obligated to consider whether objective facts
established that the children's habitual residence had changed from
California to Greece. In performing this inquiry, it was mindful that in
"the absence of settled parental intent, courts should be slow to infer
from such contacts that an earlier habitual residence has been
abandoned." The district court found that the objective facts did not
point unequivocally to the conclusion that Greece had become the
children's habitual residence. The court noted that the children
attended English-speaking schools because they did not speak or write
Greek. The district court also considered it relevant that the children
did not have "anything resembling a permanent home during their four
months in Greece." The family first stayed at Dimitris' parents home in
Orei, then in a rented apartment in Athens, and finally at an apartment
in Orei. In addition, the district court noted that the evidence showed
that the couple's son was not adapting well to his new environment, and
often had headaches and crying fits. Finally, the court noted that
Yvette took one trip back to California and tried to leave with the
children again after less than two months. Thus, the court
concluded that based upon objective factors, the roughly four-month
period was not sufficient to allow the children to acclimate to
their surroundings in such a way as to change their habitual residence
to Greece.
The court noted that it is possible that a
child's acclimatization to the location abroad will be so complete that
serious harm can be expected to result from compelling his return to the
family's intended residence. (Citing Gitter, 396 F.3d at 134). It noted
that its decision in Holder v. Holder, 392 F.3d 1009, 1013 (9th
Cir.2004) (Holder II ). Holder II cautions that acclimatization should
not be confused with acculturation; the question more generally is
whether Greece had supplanted California as the locus of the children's
development. It concluded that that the district court did not err in
determining that the children's stay in Greece did not shift the locus
of their development and that any acclimatization did not overcome the
absence of a shared settled intention by the parents to abandon the
United States as a habitual residence. The children's life in Greece
appeared to have been in a permanent state of flux. After their arrival,
they went to Orei to stay with Dimitris' family. After the holidays, the
family went to Athens to stay in a rented apartment. There, the children
began attending English-speaking schools. There was no evidence that the
parents ever considered a Greek language institution. Ultimately, after
only a few months in Athens, Dimitris determined to move thefamily again
back to Orei, this time to a new apartment. Thus, in less than four
months, the record established that the children lived in three
different homes; in addition, there was no action by the parents to
purchase their own home. Though the precise nature of their relationship
was a matter of dispute, there was no doubt that the presence of Slima
Boudour, Dimitris' mistress, exacerbated the tensions between Yvette and
Dimitris at home and supported the district court's conclusion that as a
unit, the family's life in Greece was anything but stable. Indeed, the
deterioration in the children's well-being was seen through Yvette's
mother's testimony, expressly credited by the district court, that the
son suddenly seemed moody, irritable, and often engaged in bouts of
crying for no apparent reason.
Finally, the Ninth Circuit noted that although
the passage of time itself is not dispositive on the issue of
acclimatization, it is instructive that the children spent nearly all of
their lives in the United States, spoke little Greek, and had visited
the country only three or four times for two to three weeks at a time.
With the irregular set-up of their household in Greece, four months was
an insufficient time for the children to "develop[ ] deep-rooted ties to
the family's new location." It cited Mozes, 239 F.3d at 1078 ("[H]ome
isn't built in a day. It requires the passage of an appreciable period
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. On the other hand, when circumstances are such
as to hinder acclimatization, even a lengthy period spent in this manner
may not suffice.")
The facts here were such that the court could
not "say with confidence that the [children'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 [children] out
of the family and social environment in which [their] life has
developed." Mozes, 239 F.3d at 1081).
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