In divided en banc ruling, Eighth Circuit concludes that courts must determine child's "habitual residence" under Child Abduction Convention as of abduction date which, in this case, was Israel
Robert Silverman and Julie Hechter met in Israel in 1988 and married in Seattle, Washington, in 1989. They next moved to the U.S. where their two children, Samuel and Jacob, were born. In 1999, the family moved back to Israel. Julie intermittently returned to the U.S. to attend bankruptcy proceedings. The spouses filed a joint U.S. tax return giving a Minnesota address. In June 2000, Julie and the children returned to the U.S. for a summer trip. During that visit, she sued in state court for a legal separation from Robert and for custody of the two children.
Meanwhile in Israel, Robert filed a "Request for Return of Abducted Children" with the National Center for Missing and Exploited Children (NCMEC). He invoked the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670, 19 I.L.M. 1501 (1980)], as implemented in the U.S. by the International Child Abduction Remedies Act (ICARA) [42 U.S.C. Section 11601].
Robert also lodged a Hague Convention petition in a Minnesota federal court. While the state and federal matters were pending, an Israeli court ruled that Israel was the children's "habitual residence" under the Hague Convention. A few months later, the Minnesota state court awarded custody to Julie.
In May 2002, the district court ruled in Julie's favor on Robert's Hague Convention claim, finding that Minnesota was the children's "habitual residence" as defined by Minnesota law. Alternatively, even if Israel were their habitual residence, the gravity of the risk in returning them to Israel brought the matter within the Convention Article 13(b) exception.
Robert duly noted an appeal. The U.S. Court of Appeals for the Eighth Circuit, in an en banc opinion, reverses and remands.
In an increasingly international world, according to the Court, parents must be able to determine habitual residence while traveling or visiting other countries. The Court opines not only that habitual residence is a legal determination subject to de novo review, but also that that is the correct policy conclusion under the Convention and ICARA. Article 1 sets forth the goals of the Convention. They are (1) to secure the prompt return of children wrongfully removed to, or retained in, a Contracting State, and (2) to make sure that each Contracting State respects the laws of custody and the access rights of the other state parties. Here, the district court agreed with Julie that she had not taken the children from their "habitual residence" (the U.S.) and that the Convention thus does not apply.
""Habitual residence' is not defined in the language of the Hague Convention or by ICARA. However, the text of the Convention directs courts to only [one] point in time in determining habitual residence: ... "immediately before the removal or retention.' Art. 3. Additionally, the text of the Convention points to the child's, not the parents', habitual residence. Id. A person may have only one habitual residence, and it should not be confused with domicile. ... "The 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 involve some form of "settled purpose.' ... This settled purpose need not be to stay in the location forever, but the family must have a "sufficient degree of continuity to be properly described as settled.' ... Additionally, the settled purpose must be from the child's perspective, although parental intent is also taken into account." [Slip op. 29-30]
Thus, the district court should have looked at the habitual residence of the children as of the time Julie had taken them from Israel. Moreover, it should have taken into account factors such as the degree of settled purpose from the children's perspective, the passage of time, the family's abandonment of its prior U.S. residence, selling the house in the U.S., the family's application for immigrant benefits in Israel, the children's enrollment in an Israeli school and, to some degree, both parents' intentions at the time of the move to Israel. Considering these factors, the children had clearly become habitual residents of Israel. Robert has thus met his burden of a prima facie case under the Convention.
The Court then turns to a possible defense. The "grave risk of physical or psychological harm" defense under Article 13(b) of the Convention is an affirmative defense that Julie must prove with clear and convincing evidence. Precedents have referred to "a zone of war, famine or disease" or serious abuse or neglect as conditions that qualify for this exception. Even though some courts in the past had considered Israel a "zone of war," the Court could find no recent case that found Israel unduly dangerous. Therefore, Israel is not a "zone of war" for purposes of the Convention. Since Israel is the proper forum to determine custody, it remands for entry of an order that the children be returned to Israel.
Citation: Silverman v. Silverman, 2003 WL 21788087, No. 02-2496 (8th Cir. August 5, 2003).
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