Kanth v. Kanth ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 2 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RAJANI K. KANTH,
Petitioner-Appellant,
v. No. 99-4246
(D.C. No. 99-CV-532-C)
COREY LEIGH KANTH, (D. Utah)
79 F. Supp. 2d 1317Respondent-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , KELLY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This appeal is taken from an order of the district court denying petitioner’s
petition under the International Child Abduction Remedies Act, 42 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§§ 11601-11610 (ICARA), and the Hague Convention on the Civil Aspects of
International Child Abduction. The underlying facts are adequately outlined in
the district court’s decision. See Kanth v. Kanth , 79 F. Supp. 2d 1317 (D. Utah
1999).
The purpose of the Hague Convention is to secure the prompt return of
children who have been wrongfully removed or retained in order that the court of
the country in which the children habitually reside can make a custody
determination. See id. at 1321. The petitioner is obligated to show, by
a preponderance of the evidence, that the retention or removal is wrongful.
See Shalit v. Coppe 182 F.3d 1124, 1128 (9th Cir. 1999) (citing 42 U.S.C.
§ 11603(e)(1)); In re Prevot , 59 F.3d 556, 560 (6th Cir. 1995) (same) . A removal
or retention is wrongful if it breaches a person’s custody rights under the law of
the state in which the child was habitually resident immediately prior to the
removal or retention and at the time of the removal or retention those rights were
actually exercised. See Lops v. Lops , 140 F.3d 927, 935 (11th Cir. 1998) (citing
Article 3 of Hague Convention); Ohlander v. Larson , 114 F.3d 1531, 1534
(10th Cir. 1997) (same). The term “habitual residence” is not defined by either
the Hague Convention, see Rydder v. Rydder , 49 F.3d 369, 373 (8th Cir. 1995), or
the ICARA. See Prevot , 59 F.3d at 560. Rather a child’s habitual residence is
defined by examining specific facts and circumstances and is a term courts should
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not interpret technically or restrictively. See Zuker v. Andrews , 2 F. Supp. 2d
134, 136-37 (D. Mass. 1998), aff’d , 181 F.3d 81 (1st Cir. 1999) (table); see also
Harkness v. Harkness , 577 N.W. 2d 116, 121 (Mich. Ct. App. 1998)
(“determination of ‘habitual residence’ depends largely on the facts of the
particular case”). Although it is the child’s habitual residence that the court must
determine, in the case of a young child 1
the conduct, intentions, and agreements
of the parents during the time preceding the abduction are important factors to be
considered. See Feder v. Evans-Feder , 63 F.3d 217, 223 (3d Cir. 1995); see also
Pesin v. Osorio Rodriguez , 77 F. Supp. 2d 1277, 1285 (S.D. Fla. 1999) (court
would focus on parents’ actions and shared intentions where children were four
and six at time of alleged wrongful retention). In addition
[T]here must be a degree of settled purpose. The purpose may be one
or there may be several. It may be specific or general. All that the
law requires is that there is a settled purpose. That is not to say that
the propositus intends to stay where he is indefinitely. Indeed his
purpose while settled may be for a limited period. Education,
business or profession, employment, health, family or merely love of
the place spring to mind as common reasons for a choice of regular
abode, and there may well be many others. All that is necessary is
that the purpose of living where one does has a sufficient degree of
continuity to be properly described as settled.
Feder , 63 F.3d at 223 (quotation omitted).
1
At the time the Kanth children were removed from Australia by their
mother and taken back to Utah, they were six and three years old.
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The district court used these definitions along with an analysis of the
children’s circumstances and the parents’ shared intentions regarding their
children’s presence in Australia in determining that their habitual residence
before being taken to the United States in 1999 was not Australia. The district
court’s factual finding that Australia was not the habitual residence of the
children is not clearly erroneous. See Harkness , 577 N.W. 2d at 124. Therefore
the legal conclusion that their removal to Utah was not wrongful necessarily
follows. See Osorio Rodriguez , 77 F. Supp. 2d at 1286 (on finding that parents
lacked shared intent that children stay in Florida, court concluded that Venezuela
was habitual residence immediately before date that family had intended to depart
Florida); Levesque v. Levesque , 816 F. Supp. 662, 665 (D. Kan. 1993) (“Removal
or retention of a child can be wrongful only if the removal or retention is from the
habitual residence of the child.”); Meredith v. Meredith , 759 F. Supp. 1432,
1434-35 (D. Ariz. 1991) (same).
Our review of the record persuades us that the district court’s determination
was correct. Insofar as petitioner’s supplementary documentation in support of
his opening brief was not before the district court, we have not considered it.
Respondent’s motion to file appellee’s appendix is GRANTED. Any other
outstanding motions are DENIED. Accordingly, for substantially the reasons
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stated in Kanth , 79 F. Supp. 2d 1317, the judgment of the United States District
Court for the District of Utah is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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