In dispute between Israeli citizens (who immigrated to
USA) over child custody, Eighth Circuit rules that habitual residence of
children was in U.S. based on Hague Abduction Convention and implementing
statute and Court rejects argument that Israeli consent decree and Missouri
divorce decree determine children's habitual residence; Israeli court is to be the sole authority
as to the children's immigration
In 1994, Sagi (F or father) and Tamar (M or mother)
Barzilay, both Israeli citizens, got married in Israel. Their first child
arrived two years later. In 2001, their employer transferred the family on
visas to the U.S. where they had two more children. The relationship eventually
became rocky, however, and so they divorced in January 2005 in Missouri. The divorce
decree gave them joint custody, with M having "primary parental
responsibility and physical custody." The divorce decree also contained a
repatriation clause, which required F, M and the children to live in the same
country.
Thus, if either F or M moved back to Israel, the other party
must do the same. F moved to Israel in September 2005 but M refused to do the
same. She did, however, take the children for a summer visit in June 2006.
During that visit, F obtained an ex parte order in the Kfar Saba court that
prohibited the removal of the children from Israel. Shortly before M's and the
children's scheduled return to the U.S., the parties filed a consent judgment
with the court. It provided [1] that M would repatriate to Israel in August
2009, [2] that M would not take any further action against F in Missouri family
court, and [3] that the Israeli court is to be the sole authority as to the
children's immigration, repatriation and custody.
Nevertheless, M went ahead and petitioned a Missouri court
to remove the repatriation agreement from the original decree, and to limit F's
visitation rights. The Missouri court granted the petition. In 2007, F filed
the instant case in federal court pursuant to the International Child Abduction
Remedies Act (ICARA), 42 U.S.C. § 11601, and the Hague Convention on the Civil
Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 49 (the Convention).
In his complaint, F alleged that Israel was the children's
"habitual residence" within the meaning of the Convention, and that M
and the children had a legal duty move back to Israel. Disagreeing, the
District Court found that the U.S. had become the children's habitual
residence, and dismissed F's petition because retention of a child in the state
of his or her habitual residence is not wrongful under the Convention.
M appealed. The Eighth Circuit, however, affirms. The
controlling issue is the children's habitual residence since the Convention
does not bar the retention of a child in the state of its habitual residence.
"The Hague Convention, to which the United States and
Israel are both signatories, was adopted to address the problem of child
abduction by family members, which not infrequently occurs in connection with
transnational custody disputes. The Convention's purpose is ‘to protect
children internationally from the harmful effects of their wrongful removal or
retention and to establish procedures to ensure their prompt return to the
State of their habitual residence....'"
"... The Convention seeks to deter abduction by
‘depriving the abductor's actions of any practical or juridical consequences.'
... It accomplishes this goal—not by establishing any new substantive law of
custody—but rather by acting as a forum selection mechanism, operating on ‘the
principle that the child's country of ‘habitual residence' is ‘best placed to
decide upon questions of custody and access.' ... The purpose of proceedings
under the Hague Convention is thus not to establish or enforce custody rights,
but only ‘to ‘provide for a reasoned determination of where jurisdiction over a
custody dispute is properly placed.'' ..." [...]
"‘The key inquiry under the Convention is whether a
child has been wrongfully removed from the country of its habitual residence or
wrongfully retained in a country other than that of its habitual
residence." ... According to the Convention,"
"The removal or the retention of a child is to be
considered wrongful where:
(a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or alone, under the
law of the State in which the child was habitually resident immediately before
the removal or retention; and
(b) At the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have been so exercised
but for the removal or retention. Hague Convention art. 3."
"Thus, in order to determine whether an ICARA petition
merits relief, ‘a court must ... determine [1] when the removal or retention
took place, [2] what the habitual residence of the child was immediately prior
to the removal, [3] whether the removal or retention violated the Petitioner's
custody rights under the law of the habitual residence, and [4] whether the
Petitioner was exercising those rights at the time of the removal or
retention.' ..." [...]
As the Court reminds us: "Proceedings under [Art. 19
of] the Hague Convention and pursuant to ICARA do not reach the merits of an
underlying custody dispute. (‘A decision under this Convention concerning the
return of the child shall not be taken to be a determination on the merits of
any custody issue.'); 42 U.S.C. § 11601(b)(4) [(‘The Convention and this
chapter empower courts in the United States to determine only rights under the
Convention and not the merits of any underlying child custody claims.')].
Rather, ‘the district court is to ascertain `only whether the removal or
retention' of a child was ‘wrongful' under the law of the child's ‘habitual
residence,' and if so, to order the return of the child to the place of ...
‘habitual residence' for the court there to decide the merits of the custody
dispute.' ..." [916‑7].
The Court then applies Convention law to the case at hand.
"The first step in determining a child's habitual residence is to discern
when the alleged wrongful removal or retention took place, for ‘the text of the
Convention directs courts to only one point in time in determining habitual
residence: the point in time ‘immediately before the removal or retention.' ...
Because this case does not present the typical abduction scenario, it is not
entirely clear when the alleged wrongful retention commenced. ... Based on
[F's] testimony and a series of e‑mails exchanged between the parties, the
district court determined that it began in early Spring 2006, by which time F
had informed M that he considered her to be in breach of the repatriation
agreement." [...]
"Having concluded that the alleged wrongful retention
began in early 2006, the district court proceeded to consider the factors
relevant to the determination of habitual residence: ‘[1] the settled purpose
of the move to the new country from the child's perspective, [2] parental
intent regarding the move, [3] the change in geography, [4] the passage of
time, and [5] the acclimatization of the child to the new country.' ..."
"The ‘settled purpose' of a family's move to a new
country is a central element of the habitual residence inquiry. ... ‘This
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.' ... Because two of the Barzilay children had lived their whole lives
in Missouri, the eldest had lived there for five years, and there was no
indication in the record that the children had spent any significant amount of
time in another country, the district court concluded that—from the children's
perspective—the settled purpose of the family's residence in Missouri was to
remain there permanently." [...]
"Finally, the district court considered ‘the change in
geography, the passage of time, and the acclimatization of the children to the
new country.' ... It concluded that the children were well acclimatized to life
in the U.S.. The eldest child was, after all, the only one who had experienced
a significant change in geography, and by 2006, she had been in the U.S. for
approximately five years ... The younger two had lived their entire lives in
Missouri. ..."
"Based on the foregoing considerations, we agree with
the district court's conclusion that the children's country of habitual
residence under the Hague Convention was the United States. [F] has pointed to
no evidence suggesting [that] the district court's factual findings are clearly
erroneous or that its analysis is otherwise unsound. Indeed, he has offered no
evidence that his children have spent any significant amount of time outside
the United States since 2001 or that they have been given any reason to believe
[that] their home is anywhere but Missouri. The United States is the country
where the Barzilay children have spent most or all of their young lives, and
there can be little question that it is consequently their habitual residence
within the meaning of the Hague Convention. ..." [...]
"We also reject the claim that either the Kfar Saba
consent judgment or the Missouri repatriation agreement is an enforceable
stipulation of the children's habitual residence. We have held that ‘habitual
residence may only be altered by a change in geography and passage of time.'
... The notion that parents can contractually determine their children's
habitual residence without regard to the actual circumstances of the children
is thus entirely incompatible with our precedent. Indeed, [F] has not cited a
decision by any court anywhere in the world embracing such a proposition."
[...]
"Any idea that parents could contractually determine
their children's habitual residence is also at odds with the basic purposes of
the Hague Convention. The Convention seeks to prevent the establishment of ‘artificial
jurisdictional links' as a means to remove the child from the ‘family and
social environment in which its life has developed.' ... It is difficult to
imagine a jurisdictional link more artificial than an agreement between parents
stating that their child habitually resides in a country where it has never
lived." [...]
"... [W]hile [F] characterizes the Missouri
repatriation agreement and the Kfar Saba consent judgment as prospective
stipulations of habitual residence, they are in fact [merely] custody decrees.
... Indeed, F must agree with that proposition, for they are the bases for his
claim that retention of the children in Missouri is wrongful. See Hague
Convention art. 3 [(‘The removal or retention of a child is to be considered
wrongful where ... it is in breach of rights of custody attributed to a
person....').]"
"Once the agreements are seen in this way, the
fundamental problem with [F's] argument becomes clear. He is trying to use the
Hague Convention as a vehicle to enforce his custody rights, simply by
relabeling them as stipulations of habitual residence. ... Regardless of how
they are labeled, however, these agreements amount to provisions relating to
the custody of the children, and ‘the Convention is certainly not a treaty on
the recognition and enforcement of decisions on custody.' ..."
"While [F] has framed this case as a complex matter of
first impression, it is in fact relatively simple. Immediately before the
alleged wrongful retention in this case began, the children's habitual
residence under the Hague Convention was in Missouri, where they had lived
without interruption for five years. Under the Convention, it was consequently
for the courts of Missouri to determine whether [M's] refusal to bring the
children back to Israel was indeed wrongful and if so, to fashion an
appropriate remedy."
"Instead of seeking to enforce his custody rights in
the Missouri courts, however, [F] went to the court in Kfar Saba because, as he
candidly testified in the district court, ‘it proposed better chances for me
winning.' Having obtained a favorable judgment there, he then turned to the
federal court seeking enforcement of his newly minted custody rights through an
ICARA petition. This course of litigation not only betrays a fundamental misunderstanding
of the Hague Convention, but also precisely the sort of international forum
shopping the Convention seeks to prevent. The district court correctly withheld
the relief [F had] requested." [600 F.3d 918‑922]
Citation: Barzilay v. Barzilay, 600 F.3d 912 (8th
Cir. 2010).
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