Christina Krassner was born on September 6, 2000, in Plainview, New York to Whiting and Krassner. The two never married. They resided together with Christina in New York until October 19, 2001. Their relationship had become acrimonious, and the acrimony was intensified by the tragic events of September 11, 2001. They reached a custody agreement which was presented to Whiting as a condition of her departure with Christina for Canada, and after they made her suggested changes it was signed by both parties on October 19, 2001. The Agreement provided that both parties would retain joint custody of Christina, that Whiting was returning to Canada as a result of the events of September 11, 2001, and that Krassner would have the right to have Christina with him for a period of thirty (30) to forty-five (45) days during the summer. The Agreement stipulated that Whiting and Christina would reside in Wallaceburg, Ontario, Canada, and that Whiting could not move her residence without Krassners knowledge. It also provided that Christina would be returned to the United States no later than October 19, 2003 as long as there is no imment [sic] danger of constant terroist [sic] attacks and as long as Whiting was legally allowed to recide [sic] and work in the United States. At the time the Agreement was signed, Whiting was not legally permitted to reside or work in the U.S. and would have been unable to be the custodial parent of Christina if they had remained in the U.S. because she would not have been able to support her.

After signing the Agreement, Whiting left with Christina on a bus for Canada. They lived there in a two-bedroom apartment across the hall from Whitings mother and in close proximity to her sister. Whiting began to look into childcare programs and applied for the necessary documentation for Christina to live in Canada, including a medical card. The parties agreed that Krassner would come to Canada to visit during the Christmas holidays. It was planned that he would stay from December 22, 2001 through December 26th or 27th. On December 22, Whiting brought Christina to Krassners hotel in Canada, along with her birth certificate and everything he would need to care for Christina over the next four days. The parties agreed that Whiting was to pick Christina up on Christmas day so that Christina could spend Christmas with Whitings family at the home of Whitings mother. On December 24, Whiting called Krassner to check in on Christina and was told that she was in New York with her father. He had taken her there without Whitings consent. Both parties then initiated legal proceedings in their respective countries and Whiting filed a petition under The Hague Convention for the return of Christina. After a hearing, the District Court found that Christina was a resident of Canada and that her removal was wrongful under Canadian law. In reaching this conclusion, the District Court focused on the Agreement and reasoned that, although the parties had agreed that Christina should return to the United States if certain conditions were met, there was no mutual agreement that she would be returned to New York. The Court ordered her return to Canada and also ordered Krassner to pay Whitings attorneys fees and costs in the amount of $46,441.68.

On appeal Krassner argued that an appeal from a decision under The Hague Convention is not moot simply because the child had been returned to the custody of the petitioner at the time of the appeal. Whiting agreed with Krassners position concerning the issue of mootness, but argued that he was judicially estopped from asserting this position because he took a contrary position in his arguments to the District Court and to the Court of Appeals as part of his initial motion for expedited appeal. The Court of Appeals held that he was not judicially estopped from arguing against the mootness of his appeal. The Court of Appeals noted that two courts of appeals have dealt squarely with the issue of mootness of an appeal under The Hague Convention once a child has been returned to the country from which he or she was allegedly wrongfully removed, and that they have come to differing conclusions on the issue. In Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001), the Court of Appeals for the Eleventh Circuit held that an appeal from a district court order directing the return of a child to his father in Israel under The Hague Convention was rendered moot by the child= s return there during the pendency of the appeal. The court followed the rationale of the Fourth Circuit in Fawcett v. McRoberts, 326 F.3d 491, 495-96 (4th Cir. 2003). In Fawcett, the district court had granted The Hague Convention petition of the mother and ordered the return of the child from the United States to Scotland and the father then appealed. The court of appeals reasoned that the appeal was not moot simply because the child had been returned to Scotland because no law of physics would make it impossible for Ms. Fawcett to comply with an order.

The main issue was whether the District Court correctly decided that Canada was Christina= s place of habitual residence at the time of the removal. The Court held that determination of a child= s habitual residence presents a mixed question of fact and law. It reviews the district courts underlying findings of historical and narrative facts for clear error, but exercises plenary review over the courts application of legal precepts to the facts.

The childs habitual residence immediately before the alleged wrongful removal or retention is a threshold question in deciding a case under The Hague Convention. The Hague Convention does not specifically define the term habitual residence. The inquiry into a childs habitual residence is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case. The court then discussed In Re Bates, No. CA 122-89, its decision in Feder v. Evans- Feder, supra, and its decision in Delvoye v. Lee, supra. It noted that in Feder it reversed, finding that the child= s habitual residence was Australia because it was the place where he had been physically present for an amount of time sufficient for him to become acclimatized, and which had a degree of settled purpose from the child= s perspective. In reaching this conclusion, it further noted that a determination of whether any particular place satisfied this standard must focus 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. In defining habitual residence in Feder, it found the court= s reasoning in the British case of In Re Bates to be instructive. There, the court stated that in deciding whether a place constitutes a child= s habitual residence: There must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode.... All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

The Court pointed out that since its decision in Feder, it examined the issue of a child= s habitual residence for purposes of The Hague Convention on another occasion. In Delvoye v. Lee, it concluded that because the mother had retained her ties to New York, had not taken most of her belongings with her to Belgium, was in Belgium on only a three-month visa and lived out of a suitcase there, there did not exist the degree of common purpose to habitually reside in Belgium. It focused on the intentions of the parents as indicative of the child= s habitual residence, noting that {w]here a child is very young it would, under ordinary circumstances, be very difficult for him . . . to have the capability or intention to acquire a separate habitual residence. It stated that because the parents lacked the shared intentions concerning their child= s presence in Belgium, the child was not a habitual resident of Belgium. These case demonstrate the importance of a shared parental intent in deciding the issue of habitual residence of a child lacking the capacity to form his or her own intentions concerning residency.

The Court noted that the Court of Appeals for the Ninth Circuit examined this issue in Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir. 2001). In the opinion, the Ninth Circuit took the opportunity to more clearly define the term habitual residence. The court explained that, in its view, the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. The court went on to declare that the intentions that should be examined are those not of the child, but rather of the person or persons entitled to fix the place of the childs residence. The Court was in agreement with the Ninth Circuit on this point, at least when the child whose habitual residence is being determined is of such a young age that he or she cannot possibly decide the issue of residency for himself or herself.

The Ninth Circuit then went on to delineate three broad categories of fact patterns that arise in cases under The Hague Convention in which parents are contesting where the child habitually resides. The first of these is 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. This usually leads courts to find a change of habitual residence. Secondly, there are cases where the petitioning parent initially agreed to allow the child to stay abroad for an indefinite duration. These cases, the court declared, generally have no clear answer and are very fact-dependent. Finally, there are cases, like this, where the child= s initial move from an established habitual residence was clearly intended to be for a specific, limited duration. The court noted that in these types of cases, most courts will find no change in habitual residence. However, the court went on to point out that a child may become habitually resident even in a place where he or she was intended to live only for a limited time if the child= s original habitual residence has been effectively abandoned by the shared intent of the parents.

This caveat regarding shared intent brought the Ninth Circuits decision into alignment with the Court= s reasoning in Feder and Delvoye. Feder requires only a degree of settled purpose to accompany the move, even if such purpose is only for a limited period. This was the present case. The parents= intent in this case was embodied in the Agreement and need not be inferred from their actions. The District Court found that the Agreement specifically stated that Whiting and Christina would reside in Wallaceburg, Ontario, Canada, and Christina would return to the United States no later than October 19, 2003, depending upon certain conditions. Krassner agreed that this case falls into this category of cases as described by the Mozes court. United States no later than October 19, 2003, depending upon certain conditions. He failed to recognize that while the court in Mozes did state that most of these cases will result in a determination that habitual residence has not changed, the court then went on to make an exception for cases where the move, albeit for a limited time, is an effectuation of the shared intent of the parents. Therefore, although it agreed with Krassner that when classified in the terms of the Mozes court, this case would be one of intent to move for a limited period, it did not agree that such a finding necessitates the conclusion that this could not work a change in habitual residence.

Here there was a shared intent by Christina= s parents that she live in Canada for a period of two years. This fulfilled the requirement set out by the Court in Feder that Whiting and Christina= s move to Canada was accompanied by a degree of settled purpose.

Krassner argued that Canada could not be considered Christina= s place of habitual residence because there was never an intent to abandon New York as her habitual residence. The court noted that it does seem implicit in the concept of acquiring a new habitual residence that the previous habitual residence has been left behind or discarded. To the extent that consideration of intent to abandon informs the basic inquiry and helps to elucidate the precise contours of parties= mutual understanding, it is a useful test. In this case, the court did not find an intent to abandon New York for a definite and extended period in the life of an infant. The fact that Whiting and Christina were to return to the United States, subject to certain conditions, did not in any way diminish the parties= settled intention that the two were to remain in Canada for at least two years. The return of Christina to the state of New York was never specifically agreed upon. The fact that the agreed-upon stay was of a limited duration in no way hindered the finding of a change in habitual residence. Rather, as stated in Feder, the parties= settled purpose in moving may be for a limited period of time. Logic did not prevent the court from finding that the shared intent of parents= to move their eighteen-month old daughter to Canada for two years could result in the abandonment of the daughter= s prior place of habitual residence. In its view the intent to abandon, need not be forever; rather, intent to abandon a former place of residency of a one year old child for at least two years certainly can effectuate an abandonment of that former habitual residence.

The framework it established in Feder and Delvoye continued to provide the best guidance for determining a childs habitual residency. In Feder, the court stated that a childs 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 childs perspective. It went on to modify this requirement both in Feder, itself, and later in Delvoye when the situation involves a very young child. In these circumstances, it recognized that the shared intent of the parents in determining the residence of their children was of paramount importance.

The Court further attempted to clarify the definition of habitual residence when the child involved is very young. In such a case, acclimatization is not nearly as important as the settled purpose and shared intent of the child= s parents in choosing a particular habitual residence. In recognizing acclimatization as an element of habitual residency in Feder, the court was attempting to develop a definition of habitual residence which would comport with one of the main objectives of The Hague Convention- i.e., restoring the child to the status quo before the abduction.

Focusing on the settled purpose to establish a habitual residence from the parents perspective in the case of a young child provides a more workable framework in this context, and furthers another objective of The Hague Convention, the deterrence of child abduction.

Applying the analysis to the facts the court held that Canada was Christina= s place of habitual residence immediately before she was taken by her father. The shared intent of her parents, as clearly evidenced in the Agreement, was that she would remain in Canada for at least two years. When Krassner removed Christina from Canada and took her to the United States, his acts were disruptive of an agreed-upon intention. This is exactly the type of settled purpose it contemplated in Feder.