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In Paz v. De Paz, 47 Fed. Appx. 22 (2d
Cir.,2002) [not selected for publication in the Federal Reporter] the
district court denied the petition, holding that the child (Jordana) was
not habitually resident in New Zealand at the time she traveled to New
York with respondent. The court held that Jordana was not sufficiently
acclimated to her surroundings in New Zealand to support a finding of
habitual residence, and further found that there was a shared parental
intent that Jordana's stay in New Zealand would be temporary. Paz v.
Mejia de Paz, 169 F.Supp.2d 254, 259 (S.D.N.Y.2001). The Second Circuit
noted that Parental intent is an important and in some cases dispositive
factor in determining the habitual residence of a child. For habitual
residence to be established, there generally must be a "settled purpose"
for the child to live in a particular location. Courts addressing this
issue have thus held that when a child's parents intend to prevent that
child from acquiring habitual residence during a temporary stay in
another country--either for a long holiday, parental sabbatical,
study-abroad period, or other reason-- they can generally do so by
explicit intent not to create it. The court also noted that parental
intent is not always dispositive of the question of habitual residence.
Intent to prevent habitual residence from forming can sometimes fail:
for example, where a child "has no clearly established habitual
residence elsewhere, [she] may become habitually resident even in a
place where [she] was intended to live only for a limited time." In
addition, a parent's intent to create habitual residence will be
unsuccessful where the factual basis for showing habitual residence does
not otherwise exist. These factors did not apply in the instant case.
The district court found as a factual matter
that petitioner and respondent had agreed before Jordana traveled to New
Zealand in early 2000 that her stay there would be a temporary one for
the duration of the school year only. There was nothing in the record to
suggest that the district court's findings in this regard were clearly
erroneous.
Accordingly, the district court's denial of
petitioner's claim under the Abduction Convention was affirmed.
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