AFFAIRE

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Nom de l'affaire

Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012)

Référence INCADAT

HC/E/US 1243

Juridiction

Pays

États-Unis d'Amérique - Niveau fédéral

Nom

United States Court of Appeals for the Second Circuit

Degré

Deuxième Instance

Juge(s)

Hall, Carney (Circuit Judges); Berman (District Judge)

États concernés

État requérant

Mexique

État requis

États-Unis d'Amérique

Décision

Date

15 August 2012

Statut

-

Motifs

Résidence habituelle - art. 3 | Consentement - art. 13(1)(a)

Décision

Recours rejeté, retour ordonné

Article(s) de la Convention visé(s)

3 13(1)(a)

Article(s) de la Convention visé(s) par le dispositif

3 13(1)(a)

Autres dispositions

-

Jurisprudence | Affaires invoquées

Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); In re B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009); Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005).

INCADAT commentaire

Exceptions au retour

Consentement
Établissement du consentement

Objectifs et domaine d’application de la Convention

Résidence habituelle
Résidence habituelle

RÉSUMÉ

Résumé disponible en EN | FR

Facts

The proceedings concerned a child born in Mexico to married Mexican parents in September 2006. In March 2007, the father entered the United States of America illegally and began to work there, sending financial support to mother and child. The mother assumed sole responsibility for the child.

In the spring of 2010, the parents decided to reunite the family, with the intention of living together in New York, where the father had found employment. The child was successfully smuggled across the border and she began living with the father. The mother's attempts at entry failed and ultimately led to her receiving a 75 day prison term in the United States of America before being deported to Mexico.

The father began living with another woman and stopped sending financial support to the mother. The mother sought the return of the child. The father refused. In October 2010, the mother contacted the Mexican authorities for assistance in securing the return of the child.

In April 2011, the United States Department of State invited the father to return the child voluntarily. Within two weeks of this contact, the father instituted custody proceedings in the New York Family Court, seeking sole custody of the child.
In November 2011, the mother filed a return petition in the United States District Court for the Eastern District of New York.

The District Court found that the child had retained her Mexican habitual residence, that her retention was wrongful and ordered her return: A.A.M. v. J.L.R.C., 840 F. Supp. 2d 624 (E.D.N.Y. 2012). The father appealed.

Ruling

Appeal dismissed and return ordered; the retention was wrongful, the child having retained her habitual residence in Mexico and none of the exceptions was applicable.

Grounds

Habitual Residence - Art. 3

In interpreting habitual residence, the 2d Circuit recalled the two-part test it had set forth in Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) [INCADAT Reference: HC/E/USf 776]: "First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations.

Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent."

The father argued that the parents had a settled intention that the child move to the United States of America. This intention negated the conclusion that she continued to be habitually resident in Mexico. He submitted that the District Court had made a clear error in finding that the parents' agreement that the child would move to New York was conditioned upon her joining a household that included both the father and the mother.

The 2d Circuit found that the mother was a committed parent who had sought to keep her child close to her. There was no suggestion the mother intended permanently to abandon the child. It was more likely than not that the mother intended for the child to live in the United States of America only if she herself could join the household and continue to raise her child.

The 2d Circuit held that the mother's intention that the child live in the United States of America only if she, as mother, were able to join the child there was dispositive of the determination of habitual residence. If the father shared this conditional intention the child's habitual residence would lie in Mexico, because the condition was not satisfied.

Were the mother unable to join her daughter in America, the child's stay would be temporary, and the daughter would rejoin her mother in Mexico, her habitual residence. And if the father did not share the mother's understanding, the child's habitual residence would still lie in Mexico: if the parents did not agree that the child would live indefinitely in America regardless of her mother's presence, it could not be said the parents "shared an intent" in April 2010 that America would be the child's state of habitual residence

Thus, the "latest time" in which mother and father shared an intention regarding the child's habitual residence would have occurred earlier--before they decided to have the child and her mother join the father in New York, and when both parents intended that the child would live indefinitely in Mexico.

Turning to the second limb of the Gitter test (acclimatization), the 2d Circuit held that the duration of time the child had spent in New York was not nearly so great that it could be presumed that returning her to Mexico would expose her to the "severe harm" associated with a child's "deprivation of [her] acclimatized life". The evidence did not point unequivocally to the conclusion that the child had become acclimatized to her new surroundings and that her habitual residence had shifted to the United States of America as a consequence.
 

Consent - Art. 13(1)(a)


The 2d Circuit held that the mother's consent to her daughter's relocation was conditioned upon her own ability to join father and daughter in New York. The failure of this condition annulled the mother's consent and so the consent exception was not applicable.

Author of the summary: Peter McEleavy

INCADAT comment

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.

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.