In Silvestri v Oliva, 403 F.Supp.2d 378 ( D. New Jersey, 2005) Petitioner Francisco Oscar Silvestri sought an order requiring that his three minor children--Marianela Ivana, Antonella Lucia and Macarena Oriana Silvestri--be returned to Argentina for determination of custodial rights. Silvestri brought this action against Respondent Mara *Monica Oliva ("Respondent" or "Oliva"), his former wife and the mother of the three children, with whom the children currently resided in the United States. The court denied the petition. It found that Petitioner Silvestri was a citizen of Argentina living in Argentina. Respondent Oliva was a citizen of Argentina currently living in New Jersey. Both parties were born in Argentina. They married in Argentina and lived in vicente Lopez, a city outside of Buenos Aires. They had three children: Marianela Ivana, Antonella Lucia and Macarena Oriana, who are now fourteen, twelve and nine years old respectively. Petitioner worked and continues to work for a small family business which belongs to his father. In 2001, the business faced hard times due, at least in part, to the fact that Argentina was experiencing an economic crisis. The value of the family business plummeted, dropping to one-third of what it had previously been worth. It was at that time that Petitioner and Respondent began to formulate a plan to move to the United States. The plan was to live in the United States on a conditional basis and, after some undefined period of time, decide whether they wished to remain in the United States or return to Argentina.

The Petitioner and Respondent believed that their easiest route to the United States involved Respondent getting a work visa, which would then allow Petitioner and the children to obtain derivative visas. In order to obtain a work visa, Respondent needed to find a job sponsor. Respondent was and is a mental health professional, employed as a therapist. She interviewed for a position at the Metropolitan Center for Mental Health, Hispanic Family Services division on February 21, 2001. Metropolitan Center agreed to sponsor her. On March 11, 2002, Respondent's attorney began the process to obtain a work visa. In December 2002, her work visa was approved. Because Respondent spoke English better than Petitioner, it was decided that she would come to the United States alone to secure a place for the family to stay and establish herself before Petitioner and the children followed her up. Petitioner and Respondent decided to have the two-bedroom house in Argentina appraised so they could put it up for sale. Petitioner intended to establish a business in the form of a cafe in the United States, and the couple planned on using the proceeds from the sale of their house as seed money for that business. On February 25, 2003, Respondent arrived in the United States, specifically, New Jersey. She leased a two-bedroom apartment for one year. She began working full time as a therapist at Metropolitan Center in April 2003. While Respondent was busy establishing a foothold in New Jersey, the Petitioner remained in Argentina making the final preparations to move to the United States. He was responsible for preparing the contents of their house in Argentina for the move. He arranged to have approximately 20 % of their furniture, including the family's beds, as well as other belongings, e.g., dishes, pictures, books, photo albums and dolls, shipped by boat to the United States. As a result of the beds being shipped before the Petitioner and children moved, they spent their remaining days in Argentina sleeping on the floor of the house. Petitioner also shipped a portion of his miniature car collection, which he intended to use as decoration in the cafe he planned on opening in the United States.

The children began attended school in Argentina up to March 2003, when Petitioner removed them from school to move to the United States. On March 22, 2003, Petitioner and the children came to the United States, using round-trip tickets, returnable four days later. Respondent picked them up at Newark International Airport in New Jersey. Petitioner testified that on their way from the airport to the apartment he informed Respondent that he did not want to live in the United States and wanted the children to return with him to Argentina. The Court found tat testimony incredible.

Petitioner himself brought the children to the United States. If it was his intention to keep the children in Argentina, he could have left the children in Argentina with relatives, where they could have remained in school, and come up by himself. Instead, Petitioner removed the children from their schools, after they had just begun a new school year, and moved them to the United States. And within one week of their arrival, the children were enrolled in school. Petitioner himself frequently took the children to and from school. Moreover, Petitioner applied for a New Jersey driver's license several times. Although he never passed the test, his repeated efforts to obtain a license, as well as the other facts surrounding his move to the United States, belie Petitioner's assertion that he immediately objected to and opposed establishing roots in the United States. Rather, they demonstrated  that he acted pursuant to the plan that he and Respondent developed while living in Argentina.

Petitioner stayed in the New Jersey for two months. During that time, he apparently became uncomfortable with the size of the apartment, which was small relative to the house in Argentina, and with the fact that they had to sleep on the floor for some time while the family's beds were in transit. Essentially, Petitioner appeared to have had some problems adapting to living in the United States. In May 2003, Petitioner expressed his intention to return to Argentina, but in doing so, he did not object to the children staying in the United States at that time. Rather, he explained that he needed to take care of some business in Argentina and that afterwards he would return. In response, Respondent expressed her intent to remain with the children in the United States. Petitioner left for Argentina using a round-trip airplane ticket. In late May, early June 2003, Petitioner returned to the United States. At some point thereafter, in what appears to be early June, Petitioner informed  Respondent that he wanted everyone to return to Argentina. Respondent told Petitioner that she and the children would remain in the United States. 

Subsequently, and for reasons that are disputed but need not be explained, Petitioner and Respondent had a severe argument that degenerated into a  physical confrontation. That confrontation effectively ended their marriage. Within a day of that confrontation, Petitioner left the United States without the children and returned to Argentina where he has resided since. In October 2003, when Respondent learned that Petitioner intended on visiting the children in New Jersey, Respondent sought a temporary restraining order against Petitioner predicated on the confrontation in June and sought a formal declaration of custody of the children. On October 9, 2003, the temporary restraining order issued temporarily awarding custody of the children to Respondent pending a final hearing. Respondent visited New Jersey in October and saw his children for approximately twenty to thirty days.

In February 2004, Respondent initiated divorce proceedings in a State court in Bergen County, New Jersey. On July 6, 2004, the Bergen County court issued an order dissolving the Petitioner's and Respondent's marriage and awarding custody of the children to Respondent. On March 15, 2005, Respondent further obtained an order that prohibited Petitioner from removing the children from the State of New Jersey. Apparently Petitioner did not make an appearance to oppose these proceedings. The Respondent and children remained in the same town and the children have attended the same school system since moving to New Jersey in 2003. The children have put down roots in their community. They are fluent in English, and speak in English except when speaking with their mother. Respondent insists that they speak with her in Spanish so they do not forget their first language. Nonetheless, they take classes in English, speak to their friends in English, and sometimes have difficulty expressing themselves in Spanish.

The children have also done well in school, having received good grades and recognition for their progress and performance. The children made friends in school as well as friends they see after school. Specifically, Macarena, the youngest, is particularly close to her neighbor, Sharon, with whom she spends time with after school doing homework and socializing. Antonella, the middle child, has two close friends with whom she spends her afternoons. And Marianela, the eldest, has three close friends that she associates with outside of school.

Since June 2003, the father has visited the children eight times. Generally, he visits for two to three weeks per trip and times his visits to coincide with the children's birthdays. Respondent has permitted the children to see and stay with Petitioner when he visits.

Respondent's work visa expires in 2008. Respondent filed for permanent resident status in December 2003, and has represented that if she does not acquire permanent resident status before the expiration of her work visa, she will request that her work visa be extended. Respondent remains employed at two different locations--a mental health clinic in Manhattan and a hospital-- where she works as a therapist.

On May 6, 2005, Petitioner filed his petition in this case seeking the return of his children to Argentina. The court found that the Children Were Habitual Residents of the United States Prior to Retention. The threshold was what was the habitual residence of the children immediately prior to their retention in the United States. See Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir.1995). Although the "habitual residence" of a child is not defined by the Hague Convention, the Third Circuit has defined it as "the place where [the child] 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." This determination focuses on "the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there."

The Petitioner argued that the children's habitual residence prior to etention was Argentina. Petitioner took the position that the children were wrongfully retained as of his arrival in the United States on March 22, 2003, when he allegedly told the Respondent that he had no intention of living in the United States and he wanted the children to return with him to Argentina. The court found that the retention occurred in early June 2003.

Prior to that time, Petitioner may have expressed qualms about living in the United States, but there was no credible evidence of record that he definitively objected to living in the United States or the children remaining in the United States. It was not until early June 2003, after he returned from his trip to Argentina, that he insisted the children go back to Argentina with him. Respondent refused, telling the Petitioner that the children would remain with her in the United States. A confrontation erupted that resulted in the Petitioner leaving the house immediately and leaving the country the next day without his children. At that time, the marriage for all practical  purposes ended. And it was at that time that a retention could be said to  have occurred. That being the case, the issue is what was the habitual  residence of the children immediately prior to early June 2003.

The court noted that in Whiting v. Krassner, 391 F.3d 540 (3d Cir.2004), the Third Circuit discussed the three broad categories of fact patterns that give rise to cases under the Hague Convention where habitual residence is an issue. The three categories are: (1) "the situation in which the court finds that the family as a unit has translocated and 'manifested a settled purpose to  change its habitual residence, despite the fact that one parent may have had qualms about the move' "; (2) the situation in which the "petitioning parent  initially agreed to allow the child to stay abroad for an indefinite  duration"; and (3) the situation where "the child's initial move from an  established habitual residence was clearly intended to be for a specific, limited duration." This case most closely resembled the first category. As the Third Circuit recognized, cases falling within that category usually lead courts to find a change of habitual residence. The determination of a child's habitual residence is informed by the circumstances surrounding the child's living environment prior to retention  and the parents' shared intentions (or purpose) regarding their child's  presence there. Addressing the latter factor first, a settled purpose need not be an intent to remain in a location permanently; rather, it is sufficient if the purpose is to remain in a location for a limited period of time. Here, the evidence of record demonstrated the parties' shared purpose was to discard Argentina as the habitual residence, and at least for a limited period of time, acquire a new habitual residence in the United States. The parties' actions demonstrated a clear and settled purpose to establish a residence in the United States. Although they moved to the United States on a conditional rather than permanent basis, that does not diminish the clear parties' settled intention.