Robert Silverman and Julie Hechter (Julie) met in Israel in 1988 and married in Seattle, Washington, in 1989. They had two children. The family lived in Plymouth, Minnesota, until their move to Israel in July of 1999. The the move to Israel was Julie's idea and that she was the one pushing for the family to make the move. They sold their Minnesota home in January of 1999, Robert applied for and made Aliyah (immigration) to Israel, and the family moved all of their possessions and their family pets to Israel. While both Robert and Julie set the move up to be permanent, Julie stated in the district court that she was torn about the move, but went ahead with it as a final effort to reconcile the couple's failing marriage. Both Robert and Julie obtained employment in Israel. The family lived with relatives in Israel until November 1999, when they rented an apartment and signed a one-year lease. In October 1999, Julie flew to the United States to file for bankruptcy in Minnesota. Julie returned to Israel later that month to discover that Robert had obtained a Tzav Ikuv (restraining order), which prevented her from leaving Israel, and that he had put the children's passports and birth certificates in his father's safe deposit box. Robert told her at this point that he knew about the affair she had been having with a man from Massachusetts. Robert cancelled the restraining order on November 3, 1999, after they decided to try to reconcile their marriage. Robert testified in the district court that he would not have allowed Julie to leave Israel with the children at any point between October 1999 and June 2000. During this time, Julie stated that Robert threatened her, used force against her and attempted to coerce her. In January 2000, Julie and Robert returned to Minnesota without the children to complete bankruptcy proceedings and they both stated, under oath, that their permanent address was Plymouth, Minnesota. Both of them subsequently returned to Israel. In April 2000, Robert and Julie signed and filed a joint United States income tax form for 1999, which listed their address as Plymouth, Minnesota.

While in Israel, Sam enrolled in an elementary school and Jacob enrolled in preschool. They made friends, learned to speak Hebrew and did well in school. Sam participated in extracurricular activities at his school. During this time, Julie counseled with an Israeli attorney and was told she would probably not get custody of the children through the Israeli Rabbinical court if she separated from Robert in Israel. Robert found out about this discussion and filed for divorce in Rabbinical court. He later cancelled this proceeding.

At the end of June 2000, Robert allowed Julie to leave Israel with the two children for what she represented would be a summer trip to the United States. She purchased round-trip tickets with the return trip scheduled for August 30, 2000. At the airport before their departure, Robert threatened Julie, apparently because of his continuing concern that she would not return to Israel with the children, a fear soon realized. She testified that it was at that moment at the airport that she decided not to return to Israel. Julie filed for legal separation from Robert and for custody of the two children in Minnesota state court on August 10, 2000. Robert was served summons in Israel. Robert immediately moved for dismissal of the action, arguing that the state court lacked authority to hear the custody issues because there had not yet been the necessary determinations of "wrongful removal and retention" and "habitual residence" as mandated by the Hague Convention and ICARA, determinations designed to establish whether Israel or the United States had jurisdiction to hear a child custody case.

On August 24, 2000, fourteen days after Julie's Minnesota action had been commenced, Robert filed in Israel a "Request for Return of Abducted Children" with the National Center for Missing and Exploited Children (NCMEC), pursuant to the Hague Convention. On September 22, 2000, a NCMEC agent contacted Robert's Israeli attorney and requested that the attorney obtain a determination from the Israeli courts as to whether Julie had wrongfully removed or retained the children within the meaning of the Hague Convention. Some time shortly thereafter, Robert filed a Hague Convention petition in Israel seeking such a determination. In addition to filing the Israeli action, Robert filed a Hague petition on October 5, 2000, in the United States District Court for the District of Minnesota seeking return of the children to Israel under the Convention. Julie was personally served summons in this matter on October 10, 2000.

On October 17, 2000, although on notice of Robert's Hague filings, a state court referee issued an interlocutory administrative order granting Julie temporary custody of the children. In February 2001 she decided to move with the two children to Massachusetts to live with her paramour. They subsequently moved.

On November 16, 2000, while both the state custody and federal Hague matters were pending in various courts in the United States, the Israeli court ruled that Israel was the place of habitual residence of Sam and Jacob as defined in the Convention and that Julie's failure to return them to Israel was prima facie evidence of wrongful retention of the children in violation of the Convention. A copy of this decision was furnished to the Israel Central Authority created by Articles 6 and 7 of the Hague Convention for use in the United States under the terms of Article 15 of the Convention. On May 4, 2001, the Minnesota trial court entered a final judgment awarding full child custody to Julie, child support from Robert and attorney fees to Julie. While this order specifically stated that the court was on notice of pending Hague Convention litigation, the court decided the custody issues anyway, applying only Minnesota law. The court pointed out that "A court may get notice of a wrongful removal or retention in some manner other than the filing of a petition for return, for instance ... from the aggrieved party (either directly or through counsel) ...." 51 Fed.Reg. 10494(III)(H) (Mar. 26, 1986)

The state court determined neither the "habitual residence" of the children nor the issue of "wrongful removal or retention" as required by and defined in the Hague Convention and ICARA. It was not asked to do so. The court, in awarding Julie custody and child support, found that Minnesota was the children's "home state" as referenced in Minnesota Statutes ' 518D.102

On May 9, 2002, the federal district court ruled in favor of Julie on Robert's Hague Convention claim, finding that Minnesota was the "habitual residence" of the children and, alternatively, that even if Israel was their habitual residence, that there was a grave risk in returning the children to Israel under the Article 13(b) exception to the Convention. Robert appealed.

The Circuit court found that the habitual residence of the children had never changed to Israel, but remained in Minnesota the entire time. It held that wrongful removal from a country does not change a child's Hague Convention habitual residence. Therefore, if the children's habitual residence changed when they moved to Israel, it did not change back when Julie removed them back to Minnesota.

It concluded that the Rooker- Feldman doctrine did not divest the lower federal courts of subject matter jurisdiction to consider and review the Hague Convention and ICARA controversies raised by Robert in the federal district court. This doctrine holds that the inferior federal courts lack jurisdiction to review a state court's final judicial determination. "Under the legislation of Congress, no court of the United States other than [the Supreme] court [can] entertain a proceeding to reverse or modify the [state court] judgment ....

It was also probable that the state judgment of May 4, 2001, was of dubious validity because the November 16, 2000, Israeli court order, finding both habitual residence of the children in Israel and wrongful removal of the children from Israel, was enforceable in the United States under the treaty and ICARA. The Israeli order directed the filing of a copy of the order with the Central Agency of Israel for use in the United States under Article 15 of the treaty. Upon such a finding and filing, Article 16 of the Convention specifically precluded Minnesota from determining custody issues involving these children.

The court articulated that the standard of review for habitual residence determinations under the Hague Convention raise mixed questions of fact and law and therefore should be reviewed de novo.

Julie conceded that she retained the children in the United States without Robert's permission and that Robert was exercising, and would have continued to exercise, his custody rights in Israel except for the removal. She argued, however, that the removal was not from the country of the children's "habitual residence," thus the Hague Convention does not apply. The district court agreed with her contention.

It stated that "Habitual residence" is not defined in the language of the Hague Convention or by ICARA. However, the text of the Convention directs courts to only one point in time in determining habitual residence: the point in time "immediately before the removal or retention." Additionally, the text of the Convention points to the child's, not the parents', habitual residence. A person may have only one habitual residence, and it should not be confused with domicile. Federal courts are agreed that "habitual residence" must encompass some form of "settled purpose." This settled purpose need not be to stay in a new location forever, but the family must have a "sufficient degree of continuity to be properly described as settled." Additionally, the settled purpose must be from the child's perspective, although parental intent is also taken into account.

The Court of Appeals held that the District court should have looked at the habitual residence of the Silverman children at the time Julie removed them from Israel, keeping in mind that they could only have one habitual residence. The court should have determined the degree of settled purpose from the children's perspective, including the family's change in geography along with their personal possessions and pets, the passage of time, the family abandoning its prior residence and selling the house, the application for and securing of benefits only available to Israeli immigrants, the children's enrollment in school, and, to some degree, both parents' intentions at the time of the move to Israel. Fairly assessing these facts, there was only one acceptable legal conclusion regarding the children's habitual residence: they were habitual residents of Israel.

The district court found that even if the children's habitual residence was in Israel, they need not be returned to Israel because they will face a "grave risk of physical harm" there. The district court reached this conclusion, in part, because the violence in Israel makes it a "zone of war," which is dangerous for the children. The Court of Appeals held that the "grave risk of physical or psychological harm" defense is an affirmative defense under Article 13(b) of the Convention that Julie must prove with clear and convincing evidence. The District Court did not court cite any evidence that these children are in any more specific danger living in Israel than they were when their mother voluntarily moved them there in 1999. Rather, the evidence centered on general regional violence, such as suicide bombers, that threaten everyone in Israel. This is not sufficient to establish a "zone of war" which puts the children in "grave risk of physical or psychological harm" under the Convention.