Kijowska, Agnieszka v. Haines, Troy L. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2424
AGNIESZKA KIJOWSKA,
Plaintiff-Appellee,
v.
TROY L. HAINES,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 478—Ruben Castillo, Judge.
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ARGUED JULY 20, 2006—DECIDED JULY 20, 2006
OPINION SEPTEMBER 8, 2006
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Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The International Child Abduc-
tion Remedies Act, 42 U.S.C. §§ 11601 et seq., implement-
ing the Hague Convention on the Civil Aspects of Inter-
national Child Abduction, T.I.A.S. No. 11,670, 1343 U.N.T.S.
89 (Oct. 25, 1980), entitles a person whose child has been
wrongfully removed to the United States, usually by a
parent, to petition a federal court to order the child re-
turned. 42 U.S.C. § 11603(b). The convention is aimed at
parties to custody battles who remove the child from the
child’s domicile to a country whose courts the removing
2 No. 06-2424
parent thinks more likely to side with that parent. Koch v.
Koch, 450 F.3d 703, 712 (7th Cir. 2006); Bader v. Kramer, 445
F.3d 346, 349 (4th Cir. 2006); Silverman v. Silverman, 338 F.3d
886, 899 (8th Cir. 2003). To prevent this unsavory form of
forum shopping, the convention requires that the determi-
nation of whether the removal of the child was wrongful be
made under the law of the country in which the child has
his or her “habitual residence.” Hague Convention, Pream-
ble; International Child Abduction Remedies Act, 42 U.S.C.
§ 11603(f)(1); Koch v. Koch, supra, 450 F.3d at 711; Karkkainen
v. Kovalchuck, 445 F.3d 280, 287-88 (3d Cir. 2006). The
determination of “habitual residence” is to be made on the
basis of the everyday meaning of these words rather than
the legal meaning that a particular jurisdiction attaches to
them, as otherwise forum shopping would come in by the
back door—each contestant would seek a forum that would
define “habitual residence” in the contestant’s favor. Koch v.
Koch; supra, 450 F.3d at 712.
Agnieszka Kijowska, a citizen and resident of Poland,
filed a petition under the Hague Convention and its imple-
menting federal statute in the federal district court in
Chicago, seeking an order that her daughter, Maya
Kijowska, currently living in Illinois with Maya’s father,
Troy Haines, be returned to her mother in Poland. The
district judge, after conducting an evidentiary hearing,
ordered the child returned, and Haines appealed. On June
9 we stayed the district judge’s order pending appeal but at
the same time ordered accelerated briefing and argument.
After conferring following the oral argument on July 20, we
dissolved the stay and affirmed the district judge’s order,
with a notation that an opinion would follow.
Kijowska had entered the United States on a student
visa, had had an affair with Haines, and in October 2004
No. 06-2424 3
had given birth to Maya—by which time she had over-
stayed her visa and had thus become an illegal alien. Two
months later she returned with Maya to Poland without
notifying Haines, who had, however, disavowed seeking
custody of the infant. Six months after that, mother and
child flew back to the United States, on a tourist visa, to
meet Haines. Apparently Kijowska thought there was
some prospect of a reconciliation with Haines, from
whom she had been estranged since shortly after Maya’s
birth. But immigration officers at the Detroit airport,
where she landed with her daughter and was met by
Haines, refused entry to the United States to Kijowska
after Haines told an immigration officer (falsely, as we shall
see) that she was planning to remain in the United States
and thus overstay her tourist visa. Haines showed the
officer an order that he had obtained ex parte from an
Illinois state court, shortly after mother and child had
returned to Poland the previous December, granting him
custody of the child. Impressed by the order, the officer
permitted Haines to take Maya. The mother was forced
to return to Poland alone. She then filed this suit.
Haines argues that as of December 2004, when Kijowska
took the baby back with her to Poland, the baby’s habitual
residence was the United States and that Kijowska’s re-
moval of her was wrongful, that is, “in breach of [Haines’s]
rights of custody” under U.S., specifically Illinois, law.
Hague Convention Art. 3(a); 42 U.S.C. § 11603(e)(1)(A).
“Habitual residence” sounds like “domicile,” which in
law refers to the place that a person considers to be his
permanent home. E.g., Kanter v. Warner-Lambert Co., 265
F.3d 853, 857 (9th Cir. 2001); Eastman v. University of Michi-
gan, 30 F.3d 670, 672-73 (6th Cir. 1994). But it is not domicile,
Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993), and
4 No. 06-2424
not only or mainly because a small child lacks the state of
mind required for a determination of domicile so defined.
Rather, because domicile is defined differently in different
jurisdictions, see, e.g., Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 45-46 (1989), equating habitual
residence to domicile would re-raise the spectre of forum
shopping by encouraging a parent to remove the child to a
jurisdiction having a view of domicile more favorable to
that parent’s case. So, consistent with Congress’s recognition
of “the need for uniform international interpretation of the
Convention,” 42 U.S.C. § 11601(b)(3)(B), “habitual resi-
dence” should bear a uniform meaning, independent of any
jurisidiction’s notion of domicile. Koch v. Koch, supra, 450
F.3d at 712.
But that leaves the problem of defining “habitual resi-
dence,” and it is a difficult problem. “Residence” is pretty
clear, but what does “habitual” mean? The cases speak of
the “shared intent” of the parents, e.g., In re Application of
Ariel Adan, 437 F.3d 381, 392 (3d Cir. 2006); Gitter v. Gitter,
396 F.3d 124, 134 (2d Cir. 2005), but that formula does not
work when as in this case the parents are estranged essen-
tially from the outset, the birth of the child (or indeed
before). See Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003).
The length of the child’s residence in the country of one of
the parents cannot be decisive. “[A] parent cannot create a
new ‘habitual residence’ by the wrongful removal and
sequestering of a child.” Diorinou v. Mezitis, 237 F.3d 133,
142 (2d. Cir. 2001); see also Miller v. Miller, 240 F.3d 392, 400
(4th Cir. 2001); Friedrich v. Friedrich, supra, 983 F.2d at 1402.
That would invite abduction. Suppose the day after Maya
was born, Haines had surreptitiously removed her from her
bassinet, flown with her to Argentina, established his
domicile there, claimed Argentina as Maya’s habitual
residence, and invoked Argentinian custody law to define
No. 06-2424 5
his rights over her. That would be as inappropriate a basis
for locating habitual residence in Argentina as if Haines had
outright kidnapped Maya when she and her mother re-
turned to the United States in May of 2005, and was now
arguing that nevertheless Maya has acquired a new habitual
residence, in the United States, by virtue of having lived
here since then.
When Maya was taken by her mother from the United
States to Poland at the age of two months, she could not
be said to have acquired a “habitual” residence in the
United States. She was a citizen of this country, but only
because birth on U.S. soil automatically confers U.S. citizen-
ship. She was a citizen of Poland as well, and her brief
sojourn in the United States as an infant hardly warranted
an inference that she had obtained a residence separate from
that of her mother, which was of course Poland. Kijowska
was merely a temporary sojourner in the United States.
Indeed, as an illegal alien, she could be arrested and
deported at any time; her link to this country was particu-
larly tenuous. She can hardly be criticized, having become
estranged from Haines—who had even threatened to have
her deported, perhaps as a way of trying to separate Maya
from her—for deciding to return to Poland and take the
child with her. This was not abduction, because she was not
removing the child from the child’s habitual residence.
We are not saying that an infant’s residence is automati-
cally that of her mother. Nunez-Escudero v. Tice-Menley,
58 F.3d 374, 379 (8th Cir. 1995). Such a rule would imply
that a mother’s removal of an infant would never be wrong-
ful under the Hague Convention, even if she was engaged
in exactly the kind of forum shopping that the Convention
condemns. But it impossible to reconcile Haines’s initial
disavowal of custody over Maya, and Kijowska’s expecta-
6 No. 06-2424
tion (based on her immigration status but also on her family
circumstances in Poland, discussed below) that she would
be returning with Maya to Poland, with Maya’s having
acquired a habitual residence in the United States.
If this is correct, then it is inescapable that when Maya
and her mother returned to the United States in May 2005,
the child—who had been living in Poland with her mother
uninterruptedly for the six months since the move
there—was still a habitual resident of that country. See, e.g.,
Karkkainen v. Kovalchuk, supra, 445 F.3d at 291-92 (“habitual
residence is the place where [the child] has been physically
present for an amount of time sufficient for acclimatization
and which has a degree of settled purpose from the child’s
perspective”). The circumstances indicate that the trip in
May was intended to be a brief visit rather than a relocation.
Kijowska may have hoped for a reconciliation but she had
hedged by buying a round-trip ticket and leaving her other
daughter behind in Poland. Maya had lived in Poland for
most of her life at that point and her mother, who was
Maya’s primary caretaker, could not reside legally in the
United States unless she married an American, which she
had no plans to do. Maya’s half-sister, with whom Maya
evidently had a close relationship, likewise was a citizen of
Poland. So keeping Maya in the United States, as Haines
did, removed her from the family and social environment in
which her life had developed. Koch v. Koch, supra, 450 F.3d
at 711.
Even if we cast our eyes back to December 2004, when
Kijowska left the United States with Maya, there is no
evidence to suggest an intention on the part of either parent
that Maya would live in the United States. The parents had
no plans to marry and although Haines wanted to be
recognized as Maya’s father, he gave no indication of
seeking custody of her.
No. 06-2424 7
We conclude that Maya’s habitual residence at the time
she left the United States was her mother’s habitual resi-
dence, which was Poland. This made the taking of the child
from the mother’s custody in May 2005 a wrongful removal;
for under Polish law, the parties agree, an unwed mother
has custody of her child.
Against this Haines argues that the order of the Illinois
state court granting him custody of Maya makes the United
States her habitual residence. The order, quite apart from its
being ex parte, is irrelevant. Yang v. Tsui, 416 F.3d 199, 201
(3d Cir. 2005); Silverman v. Silverman, supra, 338 F.3d at 895;
Miller v. Miller, 240 F.3d at 399. The Hague Convention
requires that the child’s custody be determined under
the law of the child’s place of habitual residence, which
we have just seen is not Illinois but Poland. Haines can seek
to wrest custody of Maya from Kijowska, but only by
proceeding under the laws of Poland.
There is an alternative basis for our conclusion. Suppose
that Maya’s habitual residence when her mother took her to
Poland in December 2004 was the United States and that
Kijowska’s removal of her was wrongful. Haines’s remedy
would have been to file a petition under the Hague Conven-
tion and its implementing federal statute. He did not
do that. He merely sought a custody order from an Illi-
nois state court and then used that order to help obtain the
self-help remedy of taking the child from the airport. To
give a legal advantage to an abductor who has a perfectly
good legal remedy in lieu of abduction yet failed to pursue
it would be contrary to the Hague Convention’s goal of
discouraging abductions by denying to the abductor any
legal advantage from the abduction. By failing to pursue his
legal remedy, Haines enabled Maya to obtain a habitual
residence in the country to which her mother took her, even
8 No. 06-2424
if the initial taking was wrongful. For as we have seen, there
is no doubt that if the circumstances in which Maya was
taken to Poland are set to one side, by May 2005 she was
indeed a habitual resident of Poland.
Still another alternative that leads to the same result is to
assume that Maya had no habitual residence as of December
2004. Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004)
Delvoye v. Lee, supra, 329 F.3d at 333. If so, her mother’s
taking her to Poland was not wrongful, and her acquisition
of habitual residence there was unproblematic.
This completes our consideration of the appeal. But for
future reference we want to explain why we denied
Kijowska’s motion to dissolve the stay, pending resolution
of the appeal, that we had granted on Haines’s motion.
Kijowska’s principal argument was that the Uniform Child
Custody Jurisdiction and Enforcement Act, in force in
Illinois, prohibits such a stay. The Act forbids the stay of “an
order enforcing a child-custody determination pending
appeal” unless the court “enters a temporary emergency
order,” which it can do only if “the child has been aban-
doned or it is necessary in an emergency to protect the child
because the child, or a sibling or parent of the child, is
subjected to or threatened with mistreatment or abuse.” 750
ILCS 36/204(a), 36/314. Neither condition is fulfilled here.
But procedure in federal courts is governed by federal
rather than state law even in cases in which state law
provides the rule of decision. E.g., Gasperini v. Center for
Humanities, Inc., 518 U.S. 415, 427 (1996); Anderson v. Griffin,
397 F.3d 515, 520 (7th Cir. 2005); Camacho v. Texas Workforce
Comm’n, 445 F.3d 407, 409 (5th Cir. 2006) (“federal law,
rather than state law, invariably governs procedural matters
in federal courts”). Granted, there is no sharp line between
procedure and substance, e.g., Gasperini v. Center for Human-
ities, Inc., supra, 518 U.S. at 427; Houben v. Telular Corp., 309
No. 06-2424 9
F.3d 1028, 1039 (7th Cir. 2002); Ashland Chemicals, Inc. v.
Barco, Inc., 123 F.3d 261, 265 (5th Cir. 1997), and
the conditions for the grant of a stay, which is a form of
injunction, may, like an injunction, reflect substantive
policy. See Kelly v. Golden, 352 F.3d 344, 353 (8th Cir. 2003);
Capital Tool & Mfg. Co. v. Maschinenfabrik Herkules, 837 F.2d
171, 172 (4th Cir. 1988). That is true, for example, of the
automatic stay in bankruptcy. It is true of the uniform child-
custody law as well, which is based on concerns for child
welfare rather than on concerns with appellate procedure in
general. However, the Hague Convention, which as we
know seeks to discourage forum shopping in international
child-custody disputes when it takes the form of removing
a child to the jurisdiction preferred by one of the parents,
Koch v. Koch, supra, 450 F.3d at 712; Bader v. Kramer, supra,445 F.3d at 349; Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir.
2005); Silverman v. Silverman, supra, 338 F.3d at 899, pre-
empts conflicting state policies. Yang v. Tsui, supra, 416 F.3d
at 201; Mozes v. Mozes, 239 F.3d 1067, 1085 n. 55 (9th Cir.
2001); Silverman v. Silverman, supra, 338 F.3d at 895. And this
is apart from the irony of Kijowska’s appealing to Illinois
child-custody law, the very law behind which Haines seeks
to shelter.
The Hague Convention and its implementing federal
statute do not set forth a standard for the granting of stays
pending appeal of orders directing (or refusing to direct) the
return of children to foreign countries; and we are given no
reason to think that a thumb should be placed, as the
uniform child-custody law does, on the normal balancing
that federal courts use to decide whether to grant a stay.
Maya had been living in the United States for more than a
year (May 2005 to June 2006) when we granted the stay
pending appeal, and to have sent her to Poland at a time
when Haines’s appeal was pending could have caused
10 No. 06-2424
serious harm to the child by reuniting her with her mother
for only a short period of time should the district court’s
order be reversed. It was best to continue the stay in force
until the appeal was decided, but to accelerate the appeal
proceedings, as we did. Illinois law could not control the
process.
JUDGMENT AFFIRMED; STAY DISSOLVED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-8-06