In Robert v Tesson, 507 F.3d 981 (6th
Cir., 2008) the parties married on January 6, 1996 in France. Petitioner
received permanent resident status in the United States shortly
thereafter. On May 22, 1997, the couple's twin boys, Thomas J. Robert
and Alexis E. Robert, were born in Houston. In the Spring of 1998, the
parties formed a French company and purchased a lot in Cabris, France.
Petitioner alleged that the lot was purchased in order to build a family
home in France. Respondent claimed it was purchased as an investment. In
June 1998, the parties terminated their lease in Houston and put their
belongings in storage with instructions to ship them to Nice, France
upon future notice. During the next several months the parties lived in
several locations throughout the United States. In December of 1998, the
entire family moved to France. In July 1999, the parties separated.
Respondent returned to Baton Rouge with the twins to live with her
mother, where she eventually resumed the practice of anesthesiology on a
locum tenens basis. In June 2000, Respondent rented an apartment in
Baton Rouge. While in Louisiana, the twins attended pre-school and a
summer program from Fall 1999 through Summer 2001. Petitioner contacted
Respondent in Fall of 1999 and told her that he had found a house, named
"Mas Verdoline," in France. Petitioner told Respondent that he would
like to try and make their marriage work, and that he felt Mas Verdoline
would be a good place for them to settle and live as a family. Even
though the house required significant structural repairs, had no heat,
running water or electricity, and was located in an area where this kind
of rustic living was common his company purchased the house in December
of 1999, and Petitioner began a slow process of renovating the home.
Petitioner maintained that they agreed that Respondent would continue to
earn money in the United States in order to finance a permanent family
home in France, while Respondent insisted that the home was never
intended to be more than a temporary residence before the twins began
permanent schooling in the United States. In May of 2000, the parties
decided to "reunite." and agreed that Respondent and the twins would
return to France in September 2001, shortly after her locum tenens
contract expired, and that the boys would be enrolled in a pre-school
program in France. Respondent and the boys also made two brief trips to
France in March and November of 2000. In September 2001, Respondent and
the twins traveled to France. Because the repairs on Mas Verdoline were
still uncomplete, the family spent most of this time living in a rental
in Cabris. During this time, the boys attended French school and became
fluent in French. English remained the language which the family spoke
at home. The marriage soon grew strained again, however, and Respondent
began looking for another locum tenes position in the United States. In
July of 2002, she left for a position in Denver, Colorado. The parties
agreed that the twins would remain behind in France with their father.
From July until November 2002, Petitioner lived alone with his children
at Mas Verdoline, and the children were enrolled in the French
equivalent of kindergarten. In November of 2002, Respondent returned to
France. While she testified that she intended to stay only briefly and
then return with the children to the United States, her visit was
extended after Alexis was diagnosed with acute appendicitis requiring
hospitalization and a recovery period. Respondent also testified that
she and her husband spoke of divorce in this period. The parties agreed
to sell the lot in Cabris, and they considered, but decided to put off,
the sale of Mas Verdoline. In December 2002, the twins traveled to
Denver with their mother, and were enrolled in a Montessori school on
December 10, 2002. During their stay in Denver, the district court found
that "the children were becoming more and more socialized in the United
States and had scant contact with their father." Their father "rarely
telephoned ... and for the most part did not participate in holiday and
birthday celebrations for the boys." The district court found the boys
were "largely ignored by both Petitioner and all members of Petitioner's
family," during their time in the United States. At the end of their
stay in Denver, Respondent again made preparations to return to France
with the twins. Respondent terminated her apartment lease in September
2003, left Mas Verdoline as her forwarding address, and shipped several
boxes to France, including the twins' fall and winter clothing and many
of their books and toys. She also left some of her belongings behind in
Denver. Respondent purchased round-trip tickets to France, leaving
September 18, 2003, and returning to the United States on October 8,
2003.
On September 19, 2003, Respondent and the twins
landed in France, where they arrived to a "cool reception from
Petitioner at the airport." The family traveled together to Mas
Verdoline. Upon their arrival, Respondent and the boys discovered that
little progress had been made in renovating the house. According to the
district court's findings of fact: Mas Verdoline was inhabitable only in
the roughest terms and was not in a condition for a primary caregiver
and two young children. For instance, there was an open staircase, no
interior walls, and the floor boards on the second floor were only
partially laid. The bathroom facilities at Mas Verdoline were equivalent
to what might be termed "primitive." There was still no running water
and the family was required to take *sponge baths in a bucket of heated
rainwater. The toilet was not connected and consisted of a bucket with a
makeshift wooden seat. Respondent and the boys briefly remained in Mas
Verdoline, and the twins were enrolled in the French equivalent of the
first grade. On the morning of October 8, 2003, and Petitioner
eventually left the house alone. When he returned home, Mas Verdoline
was empty. Respondent left with the boys to the United States.
Petitioner filed a Petition for Return of
Children pursuant to the International Child Abduction Remedies Act
alleging that Respondent removed their children from France in violation
of the Hague Convention. The magistrate judge issued a report and
recommendation relying largely on the Ninth Circuit's decision in Mozes
v. Mozes, 239 F.3d 1067 (9th Cir.2001). The magistrate judge found that
the parties lacked a shared intent to remain in France, and recommended
that the petition seeking return of Thomas and Alexis be denied. The
district court adopted the magistrate judge's report in its entirety,
and this appeal followed.
The Sixth Circuit began its inquiry with its
sole precedent on this issue, Friedrich v. Friedrich , 983 F.2d 1396,
1400 (6th Cir.1993) ("Friedrich I"), where the Court
considered the petition of a German national whose son was removed to
the United States without his permission. Emanuel Friedrich, the
petitioner in that case, was married to Jeana, a member of the United
States Army stationed in Germany. Shortly after an argument which
culminated with Emanuel casting Jeana and their son Thomas out of the
family apartment, Jeana and Thomas left Germany for the United States.
Excluding a ten-day visit to Jeana's parents in the United States,
Thomas had lived his entire life in Germany prior to this incident.
Noting that Thomas had resided exclusively in Germany prior to his
removal, the court found Friedrich I to be a "simple case," and held him
to be a habitual resident of Germany. The Sixth Circuit pointed out that
Friedrich I provides five principles which guide the Court in weighing
more complicated decisions. First, habitual residence should not be
determined through the "technical" rules governing legal residence or
common law domicile. Instead, courts should look closely at the facts
and circumstances of each case. Second, because the Hague Convention is
concerned with the habitual residence of the child, the court should
consider only the child's experience in determining habitual residence.
Third, this inquiry should focus exclusively on the child's "past
experience. "Any future plans" that the parents may have "are irrelevant
to our inquiry." Fourth, a person can have only one habitual residence.
Finally, a child's habitual residence is not determined by the
nationality of the child's primary care-giver. Only a change in
geography and the passage of time" may combine to establish a new
habitual residence.
The Court recognized that some of the sister
Circuits have parted ways with its decision in Friedrich I. Rather than
limiting their inquiry to Friedrich I's five guiding principles, these
Circuits introduced an additional factor: the subjective intent of the
parents. (Citing Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir.1995). In
Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Ninth Circuit went
even further, holding that the subjective intentions of the parents are
all but dispositive of a child's habitual residence. Mozes divides Hague
Convention cases into three types. The first consists of cases where
"the court finds that the family as a unit has manifested a settled
purpose to change habitual residence....". In these cases, regardless of
any reservations held by one parent or the other concerning the move,
Mozes suggests that the child is a habitual resident of their new
residence. Similarly, "where the child's initial translocation from an
established habitual residence was clearly intended to be of a specific,
delimited period ... courts have generally refused to find that the
changed intentions of one parent led to an alteration in the child's
habitual residence." In the third Mozes category are cases where "the
court is able to find no settled mutual intent" as to whether the
parents intended to abandon one habitual residence in favor of another.
When a Hague Convention case falls into this third category, the Ninth
Circuit places a heavy thumb on the scale against a finding of a new
habitual residence. Mozes held that, absent a shared intent by the
parents to abandon a prior habitual residence, courts should only 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." The Ninth Circuit added that a court should not find that a new
habitual residence has been established unless "we can say with
confidence that the child'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 child 'out of the family and
social environment in which its life has developed." The Ninth Circuit
expressly acknowledged that, by focusing on the subjective intentions of
the parents, the rule established in Mozes was incompatible with the
decision in Friedrich I. According to Mozes, Friedrich I should have
issued a narrow holding that "habitual residence cannot be acquired
without physical presence." In the Ninth Circuit's view, "[t]he facts of
Friedrich ...provided no legitimate occasion for a broad pronouncement
that parental intent is irrelevant to the question of habitual
residence."
In Robert v Tesson the magistrate judge applied
the Ninth Circuit's rule in determining that Thomas and Alexis Robert
were habitual residents of the United States. The magistrate judge
determined that "the parties held no shared intent to abandon the United
States," and concluded that "[i]n the absence of shared intent, the
Court examines the evidence to determine whether 'the objective facts
point unequivocally' to the conclusion of a new habitual residence in
France." This test, which looks first to the subjective intentions of
the parents and then engages in a heavy presumption that the child did
not acquire a new habitual residence, is identical to the rule handed
down in Mozes, and is incompatible with this Court decision in Friedrich
I. Rather than apply the Ninth Circuit's rule in Mozes, the magistrate
judge should have followed the decision in Friedrich I--that is, the
court below should have focused solely on the past experiences of the
child, not the intentions of the parents. The Sixth Circuit held that
Ninth Circuit's rule is inconsistent with its precedent.
The Robert Court stated, among other things,
that the reasons for this determination is that the Hague Convention is
intended to prevent a case where the child is taken out of the family
and social environment in which its life has developed and the Mozes
decision runs counter to this goal. Such a rule turns the Hague
Convention on its head, and could not be followed by the Sixth Circuit
in light of its Friedrich I decision. The Mozes rule is also
inconsistent with the Convention's goal of deterring parents from
crossing borders in search of a more sympathetic court. By considering
the subjective intentions of the parents, the Mozes rule empowers a
future abductor to lay the foundation for an abduction by expressing
reservations over an upcoming move. Once the future abductor has laid
this foundation, the non-abducting parent may only seek their children's
return by proving that "the objective facts point unequivocally" to the
child's home being in the new country. The Hague Convention is intended
to secure the prompt return of children wrongfully removed, not to erect
such barriers to a child's return.
The Sixth Circuit also held that while the
Mozes rule is inconsistent with Friedrich I, not all post-Friedrich I
developments should be rejected by the Sixth Circuit. Friedrich I was a
"simple case." , and as such, did not provide the Court with an
opportunity to determine what standard should apply when a child has
alternated residences between two or more nations. It noted that several
other Circuits have considered this issue, and their precedents reveal a
growing consensus around two factors which are consistent with this
Court's holding in Friedrich I. In Feder, the Third Circuit held 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...." Feder, 63 F.3d at 224. This Feder test--that a child's
habitual residence is a nation where the child has been present long
enough to allow "acclimatization," and where this presence has a "degree
of settled purpose from the child's perspective" has influenced numerous
other Circuits. (Citing, Kijowska v. Haines, 463 F.3d 583, 588 (7th
Cir.2006); Karkkainen v. Kovalchuk, 445 F.3d 280, 291- 92 (3d Cir.2006);
Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir.2003); In re
Tsarbopoulos, 243 F.3d 550, 2000 WL 1721800, at *1 (9th Cir.2000)
(unpublished opinion); Zuker v. Andrews, 181 F.3d 81, 1999 WL 525936, at
*1 (1st Cir.1999) (unpublished opinion).
The Court declared that the Hague Convention
protects the right of children "not to have the emotional, social etc.
aspects of their lives altered, unless legal arguments exist which would
guarantee their stability in a new situation." It believed that this
goal was well served by the Third Circuit's decision in Feder v.
Evans-Feder, 63 F.3d 217 (3rd Cir.1995). Accordingly, it held that a
child's habitual residence is the nation where, at the time of their
removal, the child has been present long enough to allow
acclimatization, and where this presence has a "degree of settled
purpose from the child's perspective." It held that such a holding was
consistent with Friedrich I's holding that a habitual residence inquiry
must "focus on the child, not the parents, and examine past experience,
not future intentions."
The Court held that even though the district
court applied an incorrect legal standard in determining Thomas and
Alexis' habitual residence, it reached the correct result in holding
that they were habitual residents of the United States at the time of
their removal from France. It found that the decision in Karkkainen v.
Kovalchuk, 445 F.3d 280 (3d Cir.2006) provided helpful guidance to
courts determining whether a child has been acclimatized to a new
country and whether their stay in that new country has a settled
purpose. Karkkainen involved a child named Maria whose mother lived in
Finland and whose father resided in the United States.. Maria was fluent
in Finnish, English and Russian, and had extensive experience traveling
in both Europe and the United States. After being told by her
stepfather--in the presence of her mother--that she was free to move
permanently to the United States if she chose, Maria left to live with
her father and enrolled in an American school. Maria had resided in the
United States for three months when her mother filed a petition seeking
her return under the Hague Convention. The Third Circuit's opinion
denying the petition was instructive. First, it considered parental
conduct in a manner which is consistent with Friedrich I. Rather than
focusing on her mother's subjective intentions regarding Maria's nation
of residence, the Third Circuit focused on how Maria's mother and
stepfather "colored her attitude" towards her stay in the United States
by communicating to her that she would be "permitted to choose where she
would live..... This focus on Maria's experience was consistent with the
Sixth Circuit's dictate that a habitual residence inquiry must "focus on
the child, not the parents, and examine past experience, not future
intentions." Karkkainen also listed several factual circumstances which
a court could consider in determining whether or not a child's stay in a
new country meets the tests of "acclimatization," and "settled purpose."
Among these factual circumstances, the Third Circuit held that "academic
activities are among 'the most central ... in a child's life' and
therefore highly suggestive of acclimatization." The court also noted
that "social engagements," "participation in sports programs and
excursions," and "meaningful connections with the people and places" in
the child's new country all point to the child being acclimatized.
Additionally, the court held that the fact that Maria "brought more
personal belongings with her than usual, in anticipation that she would
remain [in the United States]" was evidence of a settled purpose to
reside in the United States. Finally, the court considered Maria's own
stated desire to reside in the United States, combined with her parents'
communication to her that she was free to act on this desire, and held
this to be a significant factor in determining that she had a settled
purpose to reside in the United States.
Many of the factors considered by the Third
Circuit in Karkkainen were present in the case. A preponderance of the
evidence demonstrated that the boys were habitual residents of the
United States at the time of their removal from France. Even assuming
that the boys acquired an habitual residence in France during their 15
month stay in that country, the boys took up a new habitual residence in
the United States during the period beginning December 2002 when they
lived in Denver. While in Denver, the boys attended an American
kindergarten. They vacationed with Respondent's sister and family to
Yellowstone National Park, and they visited their maternal grandmother
in Baton Rouge. The children became "more and more socialized in the
United States." They attended American schools, formed meaningful
relationships with their American relatives, and participated in
excursions throughout the United States. This America-centered
experience contrasted dramatically with the boys' contact with France
during this period. The children had "scant contact with their father,"
contact which could have helped them maintain a sense of French
identity. Similarly, the boys were "largely ignored" by their French
relatives, and they celebrated holidays and birthdays almost exclusively
with the American side of their family. In effect, the boys' ties with
France were cut while they lived in Denver, and all of these facts
pointed to a finding that the boys were habitual residents of the United
States. Having determined that the boys were habitual residents of the
United States at the time they boarded their September 2003 flight to
France, their habitual residence did not change from the United States
to France during their three week stay at Mas Verdoline. The evidence
suggested that the boys would have perceived their stay in France to be
merely a temporary journey before they returned to a permanent residence
in the United States. Their French father did little to welcome them to
France or communicate that they should expect a long stay. The boys
received a "cool reception from Petitioner at the airport" upon their
arrival in France. Petitioner did not hug or even acknowledge the boys,
and he even expressed surprise that they actually came to France in the
first place. Unlike the child in Karkkainen who brought significant
amounts of her possessions to her new residence in anticipation that she
would remain there, Thomas and Alexis brought only "two seasons worth of
clothing" to France, a fact that suggested a return to the United States
when the weather became warmer. The actual length of the boys' stay in
France was only three weeks, hardly enough time for them to become
"acclimatized" to a new residence, and far less than the ten months they
had recently spent in the United States. Finally, the rough state of Mas
Verdoline would suggest to any child that the French house was
completely unlivable. Pictures of Mas Verdoline depicted a half-complete
interior, strewn with power-tools, exposed wires and plumbing, wooden
boards waiting to be attached to the house, and other objects including
several bottles containing unknown liquids. The only access to the
second floor was an aluminum ladder of the sort available at any
hardware store, and the only access to one section of the upstairs was a
makeshift bridge consisting of two wooden planks. No child, having lived
in the relative safety and comfort of a Denver apartment, could believe
that they had arrived at this hazard-riddled construction site with the
settled purpose to leave the United States behind and make a new
habitual residence in France. The twins' final trip to France lasted
only three short weeks. In that time, they had few experiences that
would have acclimatized them to their new surroundings, or which would
indicate a settled purpose to remain in France.
