Neergaard v. Neergaard Colon , 752 F.3d 526 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 14-1278
LISETTE NEERGAARD-COLÓN,
Respondent, Appellant,
v.
PETER MOELLER NEERGAARD,
Petitioner, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella and Selya, Circuit Judges,
and McAuliffe,* District Judge.
Phillip Rakhunov, with whom Kevin M. Colmey and Sullivan &
Worcester LLP, were on brief for appellant.
Laura E. Gibbs, with whom Kristin S. Doeberl and Ginsburg
Leshin Gibbs & Jones, LLP, were on brief for appellee.
May 21, 2014
*
Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. Respondent-Appellant Lisette
Neergaard-Colón (the "mother") and Petitioner-Appellee Peter
Moeller Neergaard (the "father") have two young daughters, S.S.N.
and L.A.N. Although both girls were born in the United States,
they lived abroad with their parents for approximately a year and
a half after their father's employer temporarily relocated him to
Singapore in June 2012. The family's time in Singapore ended in
January 2014 when the mother traveled with the children to the
United States and refused to return. As a result, the father filed
a petition for the return of the children to Singapore pursuant to
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. 89
(the "Hague Convention"), as implemented by the International Child
Abduction Remedies Act, 42 U.S.C. § 11601 et seq.
The mother now appeals from the district court's grant of
the father's petition. She claims that the district court erred by
determining that the children's place of habitual residence was
Singapore without first considering whether the parties intended to
retain their habitual residence in the United States while living
abroad for a temporary period of fixed duration. We agree, and we
therefore remand to the district court for further proceedings.
I. Background
The mother, a citizen of the United States, was born in
Connecticut and moved to Boston in 1990. She began teaching in the
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Boston public schools in 1995. The father, a citizen of Denmark,
came to the United States around 1999 to pursue a Ph.D. at Boston
University. In 2004, he obtained employment as a software
consultant with Ab Initio Software Corporation, a company
headquartered in Massachusetts. The father became a permanent
resident of the United States and obtained a green card in 2011.
The couple married in Massachusetts that same year, and their
daughters were born in Massachusetts in February 2011 and February
2012. The children are citizens of both the United States and
Denmark.
At some point in late 2011 or early 2012, the father's
employer informed him that it wanted to relocate him temporarily to
Singapore for a three-year assignment. The father claims that he
discussed the assignment with his wife and that they agreed to live
in Singapore for at least three years. The mother asserts that she
agreed to a stay of no more than three years in Singapore, that the
father said it could be as short as two years, and that the couple
agreed to reevaluate the situation after a year to consider an
early return to the United States.
In June 2012, the family packed up their things and moved
to Singapore, where they rented an apartment. At that point,
S.S.N. was a little over a year old, while L.A.N. was roughly four
months old. The father obtained an employment pass authorizing him
to work in Singapore through 2015, and the mother and children each
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received a dependant's pass. While in Singapore, the father was
paid by the Singapore-based entity Ab Initio Software Private
Limited. The mother, who did not obtain an employment pass, was
not authorized to work in Singapore.
The family obtained health insurance in Singapore through
the father's employer, and the parties opened a bank account there.
They also found pediatricians for their daughters, arranged play
dates, and purchased a Singapore Zoo membership. The older
daughter, S.S.N., was enrolled in parent-accompanied "EduPlay"
classes, and the parents looked at a few Singapore preschools.
During their time in Singapore, the parents retained
ownership of their two properties in Boston, one of which they had
purchased just weeks before moving to Singapore. They rented both
properties to tenants on one-year leases. They kept open their
bank accounts and retirement accounts in the United States, as well
as their credit cards issued by U.S. banks. The mother preserved
her position with Boston public schools by requesting a three-year
extension of her maternity leave, and the father maintained his
green-card status. The family also visited the United States for
a span of several weeks for Christmas in 2012 and again during the
summer of 2013.
Despite the parents' participation in marital counseling
in Singapore, their relationship deteriorated while they were
living abroad. The mother expressed her desire to return to the
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United States after a year, but the father disagreed. In December
2013, after a year and a half of living in Singapore, the family
traveled together to Denmark to visit the father's family. From
there, the father flew back to Singapore, while the mother and
children traveled to the United States to visit her friends and
family for two weeks. They arrived in the United States on
January 4, 2014, but they failed to board their return flight to
Singapore on January 20, 2014. The mother informed the father that
she would be staying in the United States with one-year-old L.A.N.
and two-year-old S.S.N.1
On February 21, 2014, the father petitioned the district
court for the return of the children to Singapore pursuant to the
Hague Convention. The district court granted the petition on
March 10, 2014, and this timely appeal followed. On March 18,
2014, this court granted a temporary stay of the district court's
order, which remains in effect.
II. Analysis
We begin our analysis by providing a brief sketch of the
relevant provisions of the Hague Convention. The Hague Convention
is a multilateral treaty designed to address "the problem of
international child abductions during domestic disputes." Abbott
v. Abbott, 560 U.S. 1, 8 (2010). It does so by providing for "the
1
The children both had birthdays in February, so they are now
ages two and three.
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prompt return of children wrongfully removed to or retained in any
Contracting State." Id. (internal quotation marks and citation
omitted). Notably, an order of return pursuant to the Hague
Convention is not a final determination of custody rights. It
simply ensures that custodial decisions will be made by the courts
of the children's country of habitual residence. Id. at 9.
The term "habitual residence" is not defined by the Hague
Convention, but this court -- in keeping with the approach of
several of our sister circuits -- "begins with the parents' shared
intent or settled purpose regarding their child's residence."
Nicolson v. Pappalardo, 605 F.3d 100, 104 (1st Cir. 2010). While
intent is our initial focus, evidence of a child's acclimatization
to his or her place of residence may also be relevant. See Darín
v. Olivero-Huffman, 746 F.3d 1, 11-13 (1st Cir. 2014).
In this case, the father has presented a claim of
wrongful retention. Wrongful retention is defined as the retention
of a child in breach of another's custody rights "under the law of
the State in which the child was habitually resident immediately
before the . . . retention."2 Hague Convention, art. 3.
Critically, the Hague Convention only provides for the return of a
2
The Hague Convention also requires a showing that "at the time
of . . . retention those [custody] rights were actually exercised,
either jointly or alone, or would have been so exercised but for
the . . . retention." Hague Convention, art. 3. As the parties do
not dispute the father's custody rights or exercise thereof,
neither of these factors are at issue in this case.
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child retained outside of his or her place of habitual residence.
If the state in which a child is retained was also the child's
place of habitual residence immediately prior to retention, that
retention is not wrongful under the Hague Convention. See Barzilay
v. Barzilay, 600 F.3d 912, 917 (8th Cir. 2010). Thus, in order to
establish wrongful retention, the father bears the burden of
showing by a preponderance of the evidence that Singapore was the
children's state of habitual residence immediately prior to their
retention in the United States. See Darín, 746 F.3d at 9.
The district court determined that the children's
habitual residence immediately prior to their retention in January
20143 was Singapore. It thus concluded that the retention of the
children in the United States was wrongful, and it ordered that the
children be returned to Singapore. The mother contests these
findings, arguing that the district court's determination of
habitual residence was erroneous. Specifically, she claims that
the district court misapplied the legal test for habitual residence
by failing to analyze whether the parties ever intended to abandon
their habitual residence in the United States, and by placing undue
weight on evidence of the children's acclimatization in Singapore.
We review a district court's factual findings for clear
error while reviewing its interpretation and application of the
Hague Convention de novo. Id. at 8-9. As to a finding of habitual
3
The parties do not dispute the date of retention.
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residence, we recently adopted the Seventh Circuit's approach,
whereby we defer to the court's findings of intent absent clear
error, but we review the ultimate determination of habitual
residence -- a mixed question of fact and law -- de novo. Id. at
9 (quoting Koch v. Koch, 450 F.3d 703, 710 (7th Cir. 2006)).
A. The parents' shared intent
Particularly when the child in question is very young,
our habitual-residence inquiry focuses on the parents' shared
intent and settled purpose rather than the child's, as a very young
child "lack[s] both the material and psychological means to decide
where he or she will reside." Id. at 11 ("'[T]he intention or
purpose which has to be taken into account is that of the person or
persons entitled to fix the place of the child's residence.'"
(quoting Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir. 2001))). In
the event that the parents disagree as to their children's place of
habitual residence, we look to the intent of the parents "at the
latest time that their intent was shared." Mota v. Castillo, 692
F.3d 108, 112 (2d Cir. 2012). This finding of shared intent is
critical, as the wishes of one parent alone are not sufficient to
change a child's habitual residence. Darín, 746 F.3d at 11.
Often, a wrongful retention case will require the
district court to determine which of two potential habitual
residences is in fact the habitual residence of a child who has
spent time in two or more countries. In such a situation, it is
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imperative that the district court distinguish "between the
abandonment of a prior habitual residence and the acquisition of a
new one." Id. "A person cannot acquire a new habitual residence
without forming a settled intention to abandon the one left behind.
Otherwise, one is not habitually residing; one is away for a
temporary absence of long or short duration." Id. (internal
quotation marks and citations omitted).
In this case, the district court -- relying upon the
parties' affidavits and without the benefit of an evidentiary
hearing -- found that, "at a minimum, the parties agreed to move to
Singapore for three years, and the three-year period has not yet
elapsed." Accordingly, the court concluded that the parties'
shared intent was that their children reside in Singapore at the
time immediately prior to their retention.
The mother takes issue with this finding, noting that the
court seemingly ignored evidence that the family intended to retain
habitual residence in the United States. She argues that the court
erred when it failed to consider whether the parties intended to
abandon their prior habitual residence before concluding that they
acquired habitual residence in Singapore during the course of a
temporary stay. In short, we agree that the district court's
analysis of the children's habitual residence was erroneous.
The district court failed to differentiate between the
abandonment of a prior habitual residence and the creation of a new
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one as required by Darín.4 Instead, it merely found that the
parents agreed that the children would be present in a particular
place for a particular period of time that had yet to elapse. If
that constituted a sufficient finding of intent to establish
habitual residence, any parents consenting to a child spending an
academic year abroad or even a summer vacation visiting relatives
would risk changing their child's habitual residence. See Mozes,
239 F.3d at 1074 ("Even the child who goes off to summer camp
arguably has a settled purpose to live there continuously for a
limited period. . . . [But] he already has an established
residence elsewhere and his absence from it -- even for an entire
summer -- is no indication that he means to abandon it." (internal
quotation marks and citation omitted)).
Although the issue was squarely before the court, the
district court made no factual finding one way or the other as to
whether the parents intended to abandon their habitual residence in
the United States in favor of Singapore, or whether they intended
to retain their habitual residence while simply residing
temporarily in Singapore. As a result, the district court seems to
have overlooked an important factor in the habitual-residence
analysis. Cf. Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir. 2005)
(finding that parents did not intend to abandon the family's
4
In fairness to the district judge, she did not have the benefit
of our opinion in Darín, which was issued several days after she
issued her order in this case.
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habitual residence in favor of Israel where the parents only agreed
to move to Israel temporarily for a one-year conditional period);
Holder v. Holder, 392 F.3d 1009, 1018-19 (9th Cir. 2004) (holding
that the parties lacked shared intent to abandon their habitual
residence in the United States where the family moved to Germany
for the father's temporary, four-year military assignment).
The father, in an effort to persuade us that the district
court's legal analysis was sufficient, reminds us that parents need
not intend to stay in a place indefinitely in order to establish
habitual residence; in certain circumstances, a settled intention
to stay in a place for a limited period may suffice. See Feder v.
Evans-Feder, 63 F.3d 217, 223 (3d Cir. 1995). In Feder, the Third
Circuit found that where a family moved to Australia, bought a
home, obtained jobs, enrolled their son in school, and intended for
their child to live in Australia "for at . . . least the
foreseeable future," the fact that the mother had reservations
about staying indefinitely and ultimately spent only six months in
Australia before deciding to leave with her son did not prevent
Australia from becoming the child's habitual residence. Id. at
224-25.
The readily distinguishable facts of Feder provide little
support for the father's argument. Most critically, here, the
parties did not agree to move to Singapore for "the foreseeable
future." While there is an ongoing dispute as to the precise
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nature of the parties' shared intent, both parties agree that their
time in Singapore was intended to be temporary, corresponding to a
three-year job placement. Additionally, the Feder family put their
home in the United States up for sale, but the parents in this case
did not, nor did they purchase a home in Singapore. Unlike Mrs.
Feder, the mother here was unable to work while abroad, and unlike
Mr. Feder, the father here was on temporary assignment and did not
pursue permanent resident status for his family in Singapore.
Thus, it is far from clear that the family in this case intended to
abandon their habitual residence in the United States and establish
a new one in Singapore.
B. Acclimatization
Although we have recognized that in certain
circumstances, "'a child can lose its habitual attachment to a
place even without a parent's consent . . . if the objective facts
point unequivocally to a person's ordinary or habitual residence
being in a particular place,'" Darín, 746 F.3d at 11-12 (alteration
in original) (quoting Mozes, 239 F.3d at 1081), we have also
cautioned that "[i]n the absence of shared parental intent, the
district court should . . . be[] slow to infer an earlier habitual
residence has been abandoned," id. at 13 (internal quotation marks
and citation omitted). In the typical case, "[e]vidence of
acclimatization is not enough to establish a child's habitual
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residence in a new country when contrary parental intent exists."
Id. at 12.
The facts found by the district court in this case do not
point so unequivocally towards Singapore being the children's
habitual residence that we can conclude the same in the absence of
a finding that the parties intended to abandon their habitual
residence in the United States. While "a child's life may become
so firmly embedded in [a] new country as to make it habitually
resident even though there be lingering parental intentions to the
contrary," id. at 12 n.14 (internal quotation marks and citation
omitted), here, the factual basis of the district court's
conclusion was very limited. In sum, the court found that the
children spent a substantial amount of time in Singapore and that
they had friends, books, and toys there. Although the district
court relied on McManus v. McManus, 354 F. Supp. 2d 62 (D. Mass.
2005), to support its acclimatization finding, McManus involved
children between the ages of eleven and fourteen who, over the
course of two years living abroad, "enrolled in and attended
schools, joined organized sports teams, participated in church
activities, and engaged in other activities as residents of the
country would." Id. at 67 (finding habitual residence in Northern
Ireland when parents intended to live there indefinitely and
children were acclimatized).
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Here, in contrast, the children were ages one and two at
the time of retention. These ages are important, because
acclimatization is rarely, if ever, a significant factor when
children are very young. See Holder, 392 F.3d at 1020-21 (holding
that in the case of a ten-month-old child, it is "practically
impossible" for a child so young, "who is entirely dependent on its
parents, to acclimatize independent of the immediate home
environment of the parents"). They did not attend school and did
not participate in sports. None of their extended family lived in
Singapore, and they took multiple trips -- each several weeks long
-- to the United States during the year and a half that they lived
in Singapore. On these facts, we cannot conclude that the record
points unequivocally to the children's habitual residence being in
a particular place. Accordingly, we must remand the case to the
district court for a determination of the children's place of
habitual residence that considers whether or not the parents
intended to abandon their habitual residence in the United States.
III. Conclusion
The district court's habitual-residence analysis was
incomplete. The court erred by failing to determine whether the
parties intended to abandon their habitual residence in the United
States or whether they intended to retain it while residing abroad
temporarily. We therefore vacate the grant of the father's
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petition and remand the case for further proceedings consistent
with this opinion.
Recognizing that the district court is in the best
position to weigh the evidence and to assess the credibility of the
parties, we take no position as to whether the parents did or did
not intend to abandon their habitual residence in the United
States. No costs are awarded.
VACATED AND REMANDED.
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