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Case Name
Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010)
INCADAT reference
HC/E/US 1263
Court
UNITED STATES - FEDERAL JURISDICTION
United States Court of Appeals for the First Circuit
Appellate Court
Boudin, Lipez, Howard (Circuit Judges)
States involved
AUSTRALIA
UNITED STATES OF AMERICA
Decision
30 April 2010
Final
Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a)
Appeal dismissed, return ordered
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Zuker v. Andrews, No. 98-1622, 1999 U.S. App. LEXIS 6964 (1st Cir. Apr. 9, 1999); Barzilay v. Barzilay, 600 F.3d 912, (8th Cir. 2010); Maxwell v. Maxwell, 588 F.3d 245, (4th Cir. 2009); Koch v. Koch, 450 F.3d 703, (7th Cir. 2006); Gitter v. Gitter, 396 F.3d 124, (2d Cir. 2005); Mozes v. Mozes, 239 F.3d 1067, (9th Cir. 2001); Feder v. Evans-Feder, 63 F.3d 217, (3d Cir. 1995); Robert v. Tesson, 507 F.3d 981, (6th Cir. 2007); Delvoye v. Lee, 329 F.3d 330, (3d Cir. 2003); Ruiz v. Tenorio, 392 F.3d 1247, (11th Cir. 2004); Whallon v. Lynn, 230 F.3d 450, (1st Cir. 2000); Bolton v. Taylor, 367 F.3d 5, (1st Cir. 2004); Friedrich v. Friedrich, 78 F.3d 1060, (6th Cir. 1996); Gonzalez-Caballero v. Mena, 251 F.3d 789, (9th Cir. 2001); Journe v. Journe, 911 F. Supp. 43, 47-48 (D.P.R. 1995); Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, (N.D. Iowa 2003); Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, (S.D. Fla. 1999); Re: D (Abduction: Acquiescence), (1998) 1 Fam. 686 (Fam. Div.), aff'd, (1998) 2 F.L.R. 335 (C.A.); In re H. and Others, [1998] A.C. 72.
INCADAT comment
Aims & Scope of the Convention
Habitual Residence
Exceptions to Return
Establishing Consent
Acquiescence
SUMMARY
Summary available in
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Facts
The parents had met in Australia whilst the mother was travelling there. The mother became pregnant and returned to the United States of America. After her return, the father proposed marriage and the couple married in Australia in August 2008.
In November 2008, the father advised the mother that he did not love her and he questioned the marriage. The mother stated that she wished to go back to the United States of America with the child, once the latter was born and permitted to travel. The parents continued to live together.
In March 2009, the mother obtained a United States passport for the child. In exchange for the father signing for the child's passport, the mother agreed to give the marriage another chance.
On 29 March, the father drove mother and child to a local airport to take a flight to Sydney. In Sydney, mother and child were assisted by the paternal grandmother. The mother advised the grandmother that she did not intend to return from the United States of America. The father flew to Sydney and sought legal advice. He decided not to pursue legal action as he wanted mother and child to return voluntarily. The mother advised that she was open to working on the relationship.
On 2 April, mother and child flew to the United States of America. The mother reserved a return ticket for late May. Initially the parents communicated, but the relationship deteriorated and on 4 May the mother advised the father that she would not be returning.
On 14 May, the mother sought a "Protection From Abuse" (PFA) order.
The father filed a return petition with the Australian Central Authority.
On 4 September, the father's lawyer attended the final PFA order hearing. The father's return application was not disclosed to the mother, in case she might leave the jurisdiction. The father agreed to the PFA order, which included elements relating to custody.
On 22 October, the father's return petition was filed in the District Court for the District of Maine.
The District Court found that the retention of the child was wrongful, the child being habitually resident in Australia. Equally, the father was found to have neither consented to nor acquiesced in the permanent retention of the child. The return of the child was ordered: Nicolson v. Pappalardo, 2009 U.S. Dist. LEXIS 120542 (D. Me., Dec. 28, 2009).
The mother appealed.
Ruling
Grounds
Habitual Residence - Art. 3
The mother submitted that she never shared the father's intention for the child to reside habitually in Australia before the marriage broke down and she formed the intention to leave with the child before the child was born.
The mother sought to rely on the proposition in Delvoye v. Lee, 329 F.3d 330, (3d Cir. 2003) [INCADAT Reference: HC/E/USf 529] that where the parents' relationship has broken down contemporaneously with the birth of the child, then no habitual residence may ever come into existence. The 1st Circuit held however that the facts of the present case were different, noting that whilst the marriage was troubled, the evidence did not require the District Court to make a finding that a definitive breakdown had occurred before or at the time of the child's birth. The mother's behaviour even after the birth remained equivocal as to her ultimate plans. Indeed, she was willing to consider a reconciliation even after her arrival in the United States of America.
The Court rejected the mother's assumption that if she were credited with a fixed subjective intent to take her daughter permanently to the United States of America, then all other circumstances would be irrelevant. Standing alone, the mother's intention that the child should one day live in the United States could not support a finding of habitual residence. Tests of habitual residence must be applied to the circumstances of the case.
Consent - Art. 13(1)(a)
The mother argued that a variety of conduct and circumstances established that the father both knew and consented to the child's permanent departure from Australia. The 1st Circuit found that the father's behaviour was at least as consistent with that of a man who wanted to continue the marriage and, therefore, to avoid forcing a final choice on his wife. There was no basis for reversing the finding of the District Court.
Acquiescence - Art. 13(1)(a)
The District Court had concluded that the "Protection from Abuse" (PFA) order could not bar the father's petition because the Hague Convention took precedence over state custody determinations. For the 1st Circuit it was hard to think of a more formal acquiescence than entering into a consent order providing that the other parent be awarded custody. The consent order in the present case provided only for temporary custody but, if it were read as agreeing to let the Maine courts determine final custody (as the mother claimed), the 1st Circuit would have found that this was an acquiescence or, alternatively, a waiver of Hague Convention rights.
The 1st Circuit noted that the District Court had referred to existing federal authority which treated acquiescence as a pure subjective intention inquiry. In this the father was deemed to have had no subjective intent in participating in the state court proceedings to have the child remain in the United States of America or to confer final authority to decide her custody on an American court, since he was privately seeking Hague Convention relief through the Australian Central Authority.
The 1st Circuit held that American case law seemed to recognize the need for exceptions to the subjective intent standard for acquiescence and that there was some support for its view that a clear-cut formal consent order would be sufficient for acquiescence. In the present case, however, the State Court order was not a clear and unequivocal expression of an agreement by the father to have final custody determined in a Maine court, nor a convincing written renunciation of rights.
The judgment of the District Court was affirmed.
Author of the summary: Peter McEleavy
INCADAT comment
Habitual Residence
The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.
Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.
General Trends:
United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.
Child Centred Focus
The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].
See also:
Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].
Combined Child's Connection / Parental Intention Focus
The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.
The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].
See also:
Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].
In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.
Parental Intention Focus
The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.
This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:
Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;
Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.
The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:
Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];
Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].
It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.
Other Jurisdictions
There are variations of approach in other jurisdictions:
Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).
8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].
Canada
In the Province of Quebec, a child centred focus is adopted:
In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.
Germany
A child centred, factual approach is also evident in German case law:
2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].
This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:
Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998 [INCADAT Reference: HC/E/DE 233].
The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.
Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:
Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];
Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].
However, reference has been made to a more child centred approach in other cases. See:
decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;
FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].
New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See
S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].
Switzerland
A child centred, factual approach is evident in Swiss case law:
5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].
United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:
R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;
R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.
Establishing Consent
Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.
United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:
Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].
This strict view has not been repeated in later first instance English cases, see:
Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];
Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].
In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing. Moreover, there could also be cases where consent could be inferred from conduct.
Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].
Convincing evidence is required to establish consent.
Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].
The Re K. approach was specifically endorsed by the Irish Supreme Court.
The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].
Consent need not be for a permanent stay. The only issue is that there must be consent and that it has been proved convincingly.
South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].
Consent could be express or tacit.
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];
5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];
5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];
The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child. To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.
United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].
There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.
Acquiescence
There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:
Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213];
Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];
Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].
Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.
Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];
Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.
Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];
Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];
New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];
United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];
South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];
Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].
In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:
United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];
P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite: HC/E/UKe 179];
Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];
United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];
In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.