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In Sorenson v Sorenson, 559 F.3d 871 (8th
Cir 2009) the Eighth Circuit found that Australia was the child's
habitual residence at the time of the allegedly wrongful retention and
affirmed the decision of the district court granting the petition for
return.
Eric and Janea Sorenson were married in October
of 2002 in Chicago, Illinois and had a daughter E.S.S. in Minnesota,
where the couple resided. In 2003, Eric accepted a work transfer to
Australia and the family moved to the Sydney-area under a three year
work visa. Before moving, Eric and Janea sold their residence,
automobiles, and shipped most of their personal belongings to Australia.
Within a few months of moving to Australia, their relationship
deteriorated and they separated in October of 2004. In May 2007, Janea
notified Eric of her intention to remain in Australia. Eric moved back
to Minnesota and filed for divorce, and for E.S.S.'s return. The
Hennepin County District Court found that it lacked jurisdiction. Eric
then filed a request for E.S.S.'s return in the Australian courts,
claiming that E.S.S. had been wrongfully retained. To facilitate this
claim, the Australian court asked Eric to file a petition to the
District Court of Minnesota for a determination of E.S.S.'s habitual
residence under the Hague Convention. Upon receiving Eric's petition,
the district court held a bench trial, and concluded that Australia was
E.S.S.'s habitual residence.
The Eighth Circuit held that determinations of
habitual residence under the Hague Convention raise mixed questions of
law and fact, and should be reviewed de novo. Determinations of intent
involve questions of fact and the Court must defer to the district
court's findings unless they are clearly erroneous.
The sole issue was whether the district court
erred in making its habitual residence determination. The Eighth Circuit
explained that: [a] person may have only one habitual residence, and it
should not be confused with domicile. [T]he court must focus on the
child, not the parents, and examine past experience, not future
intentions. Habitual residence may only be altered by a change in
geography and passage of time. Federal courts are agreed that "habitual
residence" must encompass some form of "settled purpose." The 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." Silverman v Silverman, 338 F.3d at 898. In Silverman, the
Court explained the nature of the intended review, explaining that: [t]he
[district] court should have determined the degree of settled purpose
from the children's perspective, including the family's change of
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 ...
immigrants, the children's enrollment in school, and to some degree,
both parents' intentions at the time of the move...."
Application of Silverman to the district
court's findings of fact compeled a similar conclusion. Settled purpose
is viewed from the child's perspective. See Nunez-Escudero v. Tice-Menley,
58 F.3d 374, 379 (8th Cir.1995). As of June 2007, E.S.S. had experienced
a clear change in geography as the Sorensons moved to Australia along
with most of their possessions. A substantial amount of time, three
years, had also passed prior to the alleged retention. By this point,
E.S.S. was settled and acclimatized to life in Australia, and even spoke
with an Australian accent. Additionally, all of E.S.S.'s friends lived
in Australia, and she was enrolled in preschool. E.S.S. had spent the
overwhelming majority of her life in, and the majority of her
connections were to, Australia as of June 2007. As the parents'
intentions at the time of the move are relevant, the court also
considered this factor. Here, the district court found that Eric and
Janea's shared intention was to live in Australia for an indefinite
period of time, but at the minimum, a period of three years. The
district court concluded that the parties did not have a mutual shared
intention to return to Minnesota, or the United States, upon completion
of the work transfer. This determination of intent was supported by the
witness John Vento, who stated that Eric would have had further
opportunities with the computing firm upon completion of the three year
term, which could have been in the firm's Australian offices or another
U.S. location. Thus, the district court's determination of intent was
not clearly erroneous, and added further support to the de novo review
of the district court's habitual residence determination.
The Silverman factors and to a lesser extent
the district court's determination of shared intent indicated that E.S.S.
had been in Australia long enough to have a "sufficient degree of
continuity to be properly described as settled." Feder v. Evans-Feder,
63 F.3d 217, 223 (3d Cir.1995). As such, E.S.S.'s habitual residence as
of June 2007 was Australia.
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