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In Stern v Stern--- F.3d ----, 2011 WL 1706912
(8th Cir.(Iowa)) the Eight Circuit reiterated the rule it established in
Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir.2010) and Silverman v.
Silverman, 338 F.3d 886, 897 (8th Cir.2003) (en banc) that
the factors relevant to the determination of habitual residence include
"the settled purpose of the move from the new country from the child’s
perspective....", rejecting the approach of the Ninth Circuit.
Michelle, a dual citizen of the United States
and Israel, met Martin, on a visit to Israel in 2000. He was a dual
citizen of Israel and Canada. Michelle moved from the United States to
Israel with her two children. Martin and Michelle were married in a
religious ceremony in Israel. Their son DJ was born in 2003. In 2005
Michelle was accepted in a doctoral program at Iowa State University,
and Martin signed a document consenting to her traveling to Iowa with DJ
"for as long as she is enrolled in her PhD studies." Martin
characterizes the document as memorializing a mutual agreement that
Michelle and DJ would return to Israel as soon as her studies ended.
Michelle denied there was such an agreement, and only Martin signed it.
The document did not specify what would happen after Michelle's studies
ended. In August 2005 Michelle moved to Iowa with her older children and
DJ, who was then two. Martin followed in October 2005, after closing his
taxi business in Israel. Michelle filed for divorce in October 2007
although she did not serve Martin with any papers. Martin returned to
Israel in February 2008. At that time he believed Michelle would soon
follow him there with the children. Shortly after Martin left the United
States, Michelle proceeded with the divorce and requested temporary
custody of DJ. During divorce proceedings, Michelle revealed that she
would return to Israel with DJ and her other children only if she could
find work there in her field.
Martin brought an action in the district court
for DJ's return to Israel under ICARA. The district found after trial
that DJ habitually resided in the United States. It found DJ had
"considerable connections with his current [Iowa] environment." At the
time DJ was seven years old and had been living in Iowa since he was
two. He had visited Israel once when he was three. DJ had finished one
year of kindergarten in Iowa and had celebrated holidays with Michelle's
family in Des Moines. In sum, the district court found that DJ had
acclimated to Iowa. Regarding the intentions of DJ's parents, the
district court found that the couple had intended to make Iowa DJ's
habitual residence, at least during Michelle's studies, even though they
planned to return to Israel eventually. Based on its findings it denied
Martin's petition. The Eighth Circuit affirmed.
On appeal, Martin argued that the district
court gave insufficient weight to the parties' intention to return to
Israel after Michelle graduated. The Eight Circuit pointed out that in
Barzilay, supra, it explained that "factors relevant to the
determination of habitual residence [include] 'the settled purpose of
the move from the new country from the child's perspective, parental
intent regarding the move, the change in geography, the passage of time,
and the acclimatization of the child to the new country.' " 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.' " It concluded that from the perspective of the child, who had
lived in Missouri for five years, the settled purpose of the family's
move was to remain there permanently despite an agreement by the parents
to move the whole family to Israel should either spouse return. Here,
the district court found that from DJ's perspective, the settled purpose
of his relocation to Iowa was to reside there habitually. In reaching
this decision, the court relied on Barzilay and a Third Circuit case
discussing the element of settled purpose, Whiting v. Krassner, 391 F.3d
540 (3rd Cir.2004). Whiting held that settled purpose does not require
an intention to stay in a new location forever. Rather, one's "purpose
while settled may be for a limited period," and education could prompt
such a move.(quoting In re Bates, CA 122-89, High Court of Justice,
Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)).
Martin argued that the district court gave too
much weight to DJ's perspective in considering the move's "settled
purpose" and too little to the Sterns' intent to return to Israel after
Michelle finished her degree. He argued that the Court should focus on
the parents' intention to return to Israel rather than on DJ's
acclimatization and perceptions. He cited Mozes v. Mozes, 239 F.3d 1067,
1074 (9th Cir.2001), a Ninth Circuit case that did not consider the
settled purpose concept "very useful" which held, in contrast to its
decisions in Barzilay and Silverman, that without "settled parental
intent, courts should be slow to infer from [a child's] contacts that an
earlier habitual residence has been abandoned." The Eighth Circuit
rejected this approach, pointing out that the settled purpose of a
child's move must be viewed from the child's perspective, and observing
it had been rejected by the Sixth Circuit, which characterized it as
having "made seemingly easy cases hard and reached results that are
questionable at best." Robert v. Tesson, 507 F.3d 981, 988 (6th
Cir.2007). It held that the child's perspective should be paramount in
construing this convention whose very purpose is to "protect children,"
and declined to adopt a framework that would contradict its own
precedent and frustrate the Convention's goal of 'deter [ring] parents
from crossing borders in search of a more sympathetic court.
The record here favored Iowa as DJ's habitual
residence whether the Court emphasized DJ's perspective or that of his
parents. The district court found that the parties' intent at the time
of the move was to make Iowa DJ's habitual residence. It did not clearly
err in doing so. The Court concluded that under the Hague Convention
"the court must focus on the child, not the parents, and [must] examine
past experience, not future intentions," Silverman, 338 F.3d at 898.
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