Papakosmas v. Papakosmas ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIMITRIS PAPAKOSMAS,  No. 05-55211
Plaintiff-Appellant, D.C. No.
v.  CV-04-06726-
YVETTE PAPAKOSMAS, MMM
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted
February 8, 2007—Pasadena, California
Filed April 16, 2007
Before: Diarmuid F. O’Scannlain, Edward Leavy, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain
4245
4248 PAPAKOSMAS v. PAPAKOSMAS
COUNSEL
Adair Dyer, Austin, Texas, argued the cause and filed a brief
for the plaintiff-appellant.
Elizabeth Briceño-Velasco, Arcadia, California, argued the
cause and filed a brief for the defendant-appellee. Vincent W.
Davis, Arcadia, California, was also on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether the children of Dimitris and
Yvette Papakosmas were habitual residents of Greece within
PAPAKOSMAS v. PAPAKOSMAS 4249
the meaning of the Hague Convention on the Civil Aspects of
International Child Abduction and therefore wrongfully
removed from that country to the United States by their
mother.
I
A
The following facts emerged during an evidentiary hearing
on November 23 and 24, 2004, before the district court, U.S.
District Judge Margaret Morrow presiding. Dimitris and
Yvette Papakosmas were married in Las Vegas, Nevada, on
August 20, 1994, and subsequently resided in the Los Ange-
les, California area. The couple have two children together, a
son, born on March 6, 1995, and a daughter, born on Decem-
ber 29, 1997; both children were born in Los Angeles. Mr.
and Mrs. Papakosmas owned and operated two hotels in Hol-
lywood, the Liberty Hotel and the Hollywood International
Hotel, and leased and operated a third hotel, the Hollywood
International Youth Hostel.
In December 2003, the Papakosmas family left California
for Greece, the birthplace of Dimitris. At the evidentiary hear-
ing, he testified that the couple had always discussed the pos-
sibility of moving to Greece, but had made the ultimate
decision in April or May of 2002, after the September 11
attacks resulted in a negative effect upon the hotel business.
In October 2003, Dimitris completed the sale of the couple’s
two hotels, the Liberty and the Hollywood International.
Yvette asserts that she learned only in November 2003 that
one of the hotels had been sold, never learning of the other
sale until the family was in Greece. Dimitris also asked
Yvette to sign a quitclaim deed on a property owned by the
couple in Malibu, conveying her interest to Dimitris in full.
After Yvette executed the deed, Dimitris promptly sold the
property. In addition, in the months leading up to the move,
Yvette began selling or disposing of the couple’s furniture
4250 PAPAKOSMAS v. PAPAKOSMAS
and also sold the family dog, although she contends that such
sale was unrelated to the move but instead a result of the
dog’s behavior problems.
The family arrived in Greece on December 20 or 21, 2003,
and spent the Christmas holiday with Dimitris’ family in Orei,
located three hours from Athens. On January 6, 2004, they
went to Athens, where Dimitris had rented an apartment. On
January 23, 2004, Yvette returned to California to check on
the management of the hostel and to make a lease payment.
Dimitris contends that Yvette’s trip was to deal with a
bounced check and to return a passport to her son from a pre-
vious marriage.
Upon returning to Greece on February 3, 2004, Yvette
learned from her daughter that Dimitris’ alleged mistress from
the United States, Slima Boudour, was also in Greece.
Dimitris concedes that he had a “one-night stand” with Bou-
dour, but denies that she was his mistress. Before Judge Mor-
row, Yvette testified that she considered leaving Greece after
Dimitris refused to send Boudour home, but that she could not
because Dimitris controlled the children’s passports and her
own. Yvette contacted the United States Embassy, which
advised her to seek legal representation in Greece.
On February 14, 2004, in Athens, Yvette’s wrist was cut
and she was hospitalized. Yvette contends that Dimitris cut
her after she refused to accede to his wish that Boudour be
allowed to live in the apartment with the family. Dimitris tes-
tified at the evidentiary hearing, and a Greek doctor also
offered medical testimony, that Yvette’s wound was self-
inflicted. After Yvette was released from the hospital, she
hired an attorney and succeeded in getting a restraining order
from the Greek courts. Meanwhile, Dimitris moved the fami-
ly’s belongings from the Athens apartment to a new apart-
ment in Orei. Yvette’s restraining order dissolved after three
days, at which time she returned to the United States Embassy
seeking assistance. After the Embassy conducted its own
PAPAKOSMAS v. PAPAKOSMAS 4251
investigation, it determined that it would help Yvette and gave
her plane tickets and passports. On April 23, 2004, she and
the children left Greece for the United States.
B
On August 12, 2004, Dimitris instituted this action under
the Hague Convention on the Civil Aspects of International
Child Abduction (“Convention”) and the International Child
Abduction Remedies Act, 42 U.S.C. § 11601, et seq.,
(“ICARA”), in the United States District Court for the Central
District of California seeking the return of the children to
Greece.1 Following the evidentiary hearing noted above, on
December 31, 2004, the district court filed an order denying
Dimitris’ petition.
In its order, the district court first concluded that Dimitris
and Yvette agreed to move to Greece on a conditional basis,
and therefore determined that there was no shared, settled
intent to abandon their habitual residence in California. Next,
Judge Morrow concluded that at no time after their arrival in
Greece did they form such a settled intent. Finally, the district
court concluded that the “objective facts do not point
unequivocally to the conclusion that Greece had become the
children’s new habitual residence.” Accordingly, because the
court determined that Dimitris had failed to meet his burden
of proving that Greece is the children’s habitual residence, it
found that Dimitris could not establish a prima facie case for
wrongful removal and dismissed the action. Dimitris filed a
timely notice of appeal.
1
On May 6, 2004, Yvette filed a Petition for Dissolution of Marriage in
Los Angeles Superior Court and obtained a temporary restraining order
against Dimitris. Dimitris contests jurisdiction in that case, which is stayed
pending the outcome of these proceedings.
4252 PAPAKOSMAS v. PAPAKOSMAS
II
A
The Hague Convention on the Civil Aspects of Interna-
tional Child Abduction is intended to prevent “the use of force
to establish artificial jurisdictional links on an international
level, with a view to obtaining custody of a child.” Mozes v.
Mozes, 239 F.3d 1067, 1069 (9th Cir. 2001) (citing Elisa
Perez-Vera, Explanatory Report, ¶ 11, in 3 Hague Conference
Private International Law, Acts and Documents of the Four-
teenth Session, Child Abduction 426 (1982)). The Convention
has been implemented by Congress through the ICARA, 42
U.S.C. § 11601, et seq. The Convention’s focus is not the
underlying merits of a custody dispute but instead whether a
child should be returned to a country for custody proceedings
under that country’s domestic law. Holder v. Holder, 392
F.3d 1009, 1013 (9th Cir. 2004) (Holder II).2
[1] Under Article 3 of the Convention, the removal or
retention of a child is “wrongful” where:
2
Because the Hague Convention does not decide the merits of the cus-
tody dispute, any resolution of the merits must await the final outcome of
a petition filed under the Convention. Thus, “[t]he judicial or administra-
tive authorities of Contracting States shall act expeditiously in proceedings
for the return of children.” Hague Convention, art. 11, 19 I.L.M. 1501,
1502 (1980) (emphasis added). Our court recognized the Convention’s
concern with resolving disputes in an expeditious manner in Holder v.
Holder, 305 F.3d 854, 871 (9th Cir. 2002) (Holder I) (internal citations
omitted).
This proceeding has been anything but expeditious. We accept some of
the responsibility as a court for the delay of nearly two years between the
district court decision and our scheduled oral argument. However, a
degree of responsibility must also fall upon Dimitris and his attorney. Our
circuit rules allow parties to file “motions to expedite” which “will be
granted upon a showing of good cause.” Fed. R. App. P. 27-12. Counsel
for Dimitris acknowledged at oral argument that he was aware of this pro-
vision, but chose not to file such a motion.
PAPAKOSMAS v. PAPAKOSMAS 4253
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, 19 I.L.M. at 1501. In Mozes, we
stated that a court applying this provision must answer four
questions: (1) When did the removal or retention at issue take
place? (2) Immediately prior to the removal or retention, in
which state was the child habitually resident? (3) Did the
removal or retention breach the rights of custody attributed to
the petitioner under the law of habitual residence? (4) Was the
petitioner exercising those rights at the time of the removal or
retention? 239 F.3d at 1070; see also Von Kennel Gaudin v.
Remis, 282 F.3d 1178, 1182 (9th Cir. 2002).
[2] As was true in Mozes, the district court here denied
Dimitris’ petition based on its answer to the second question:
it found that as of April 23, 2004, the children’s “habitual res-
idence” was in the United States and not Greece. Although
the term “habitual residence” is intentionally left undefined in
the Convention, we have developed an analytical framework
to provide “intelligibility and consistency” in the determina-
tion of a child’s habitual residence. Holder II, 392 F.3d at
1015 (citing Mozes, 239 F.3d at 1071). Thus, in determining
whether a child has acquired a new habitual residence, we
first ask whether there is a settled intention to abandon a prior
habitual residence. Mozes, 239 F.3d at 1075. In this inquiry,
“the 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.” Id. at 1076 (citing E.M. Clive, The Con-
cept of Habitual Residence, 1997 Jurid. Rev. 137, 144). Here,
4254 PAPAKOSMAS v. PAPAKOSMAS
as in most cases, those persons are the parents. See Feder v.
Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) (looking to “the
parents’ present, shared intentions regarding their child’s
presence”).
[3] The parents’ settled intention is not alone sufficient to
change a child’s habitual residence. Mozes counsels that such
a transformation also requires (1) an actual change in geogra-
phy, and (2) the passage of an appreciable period of time, one
sufficient for acclimatization. 239 F.3d at 1078. Importantly,
“[h]abitual residence is intended to be a description of a fac-
tual state of affairs, and a child can lose its habitual attach-
ment to a place even without a parent’s consent.” Id. at 1081
(emphasis in original). Thus, even when the settled intent of
a child’s parent is not clear, a district court should “find a
change in habitual residence if ‘the objective facts point
unequivocally to a person’s ordinary or habitual residence
being in a particular place.’ ” Id. (citing Zenel v. Haddow,
1993 S.L.T. 975, 979 (Scot. 1st Div.)).
B
As a threshold matter, Dimitris asserts that the standard of
review of a district court’s judgment on an ICARA petition is
de novo. We have previously stated that a determination of
habitual residence under the Hague Convention is a mixed
question of law and fact. Mozes, 239 F.3d at 1073; see also
Feder, 63 F.3d at 222 n.9; Ruiz v. Tenorio, 392 F.3d 1247,
1251-52 (11th Cir. 2004) (adopting mixed standard of
review). Under this standard, “we accept the district court’s
historical or narrative facts unless they are clearly erroneous,
but exercise plenary review of the court’s choice of and inter-
pretation of legal precepts and its application of those pre-
cepts to the facts.” Mozes, 239 F.3d at 1073 (citing Feder, 63
F.3d at 222 n.9). The question of whether there is a settled
intention to abandon a prior residence is a question of histori-
cal fact “as to which we defer to the district court.” Id. at
1076.
PAPAKOSMAS v. PAPAKOSMAS 4255
In Holder II, we acknowledged “the flexible, fact-specific
nature of the habitual residence inquiry envisioned by the
Convention.” 392 F.3d at 1015. Nonetheless, we stated that
“[d]espite the factual focus of our inquiry, our conclusion
rests on a legal determination: After scrutinizing the circum-
stances of a particular case, we must determine whether the
discrete facts add up to a showing of habitual residence.” Id.
In making this legal determination, we must be mindful that
we are interpreting a treaty, and that uniformity and consis-
tency of interpretation is our goal. See Mozes, 239 F.3d at
1072 (“To achieve the uniformity of application across coun-
tries, upon which depends the realization of the Convention’s
goals, courts must be able to reconcile their decisions with
those reached by other courts in similar situations.”).
Thus, our proper function is not to engage in a full de novo
review; instead, we are to determine whether, giving appropri-
ate deference to the district court’s findings of fact and credi-
bility determinations, the evidence adds up to a showing of
habitual residence. Holder II, 392 F.3d at 1015.
III
A
Dimitris first contends that the district court erred in its
conclusion that there was no mutual settled intention between
Yvette and Dimitris to abandon their prior residence in Cali-
fornia. Such conclusion “is a finding of historical fact entitled
to review under the clearly erroneous standard.” Ruiz, 392
F.3d at 1254 (citing Mozes, 239 F.3d at 1077).
[4] The district court made three key credibility determina-
tions in reaching its conclusion. First, it found that Yvette’s
account of the family’s move to Greece and subsequent
events was credible. Second, it found that Dimitris’ account
was not credible and that he had lied or misrepresented signif-
icant facts, including facts related to the couple’s disposition
4256 PAPAKOSMAS v. PAPAKOSMAS
of property. Finally, the district court found the testimony of
key third parties, such as Yvette’s mother, the children’s
teachers, and the hostel manager, Mazam Mazzal, to be credi-
ble and supportive of Yvette’s claim of conditionality. These
credibility determinations are supported by the record, and
therefore were not clear error. See United States v. Lang, 149
F.3d 1044, 1046 (9th Cir. 1998) (reviewing credibility deter-
minations under a clear error standard); Ruiz, 392 F.3d at
1254 (upholding district court’s finding of no shared intent to
abandon United States as a habitual residence where, among
other things, “the court expressly credited [the wife’s] mother
who testified that [the husband] had promised that if it did not
work out in Mexico, they would come back to the United
States”).
[5] In particular, the district court’s finding on Dimitris’
lack of credibility is supported by the fact that he lied about
the date he entered into a two-year lease extension on the hos-
tel property. He alleged that the decision to move to Greece
was made by mutual agreement in April or May of 2002.
However, Mazzal, the property manager of the hostel, testi-
fied that he witnessed Dimitris sign a two-year lease for the
property on May 1, 2003. In addition, while Dimitris testified
at the hearing that he never signed such an extension, the leas-
ing document with Dimitris’ signature was entered into evi-
dence.
[6] The district court’s credibility finding is also supported
by the circumstances surrounding Yvette’s execution of a
quitclaim deed on the Malibu property. Although Dimitris tes-
tified that this legal maneuver was performed so that only he
would need to return from Greece when the company wanted
to sell the property, he actually sold the property less than a
week after Yvette’s signature. Yvette testified that she did not
learn of the sale of the property until she returned to the
United States in April 2004. The logical inference from this
sequence of events is that Dimitris was attempting to sell the
Malibu property without Yvette’s knowledge. If the couple
PAPAKOSMAS v. PAPAKOSMAS 4257
had agreed to sell their stateside property before they moved
to Greece, then the execution of a quitclaim deed a mere
seven days before the sale of the property was an unnecessary
step.3
B
[7] Nor do the objective facts surrounding the family’s
departure for Greece particularly support Dimitris’ version of
events such that it was clear error for the district court to find
that Yvette intended the move to be conditional. The court
found the cards written by Dimitris Jr.’s classmates to be
ambiguous at best and, in many cases, supportive of Yvette’s
contention that the move was temporary. It also found the
lack of a going away party to be an additional factor disprov-
ing Dimitris’ testimony. Finally, and perhaps most impor-
tantly, the district court did not err in concluding that the
Papakosmas family intended to continue doing business in the
United States. The court accepted as credible the testimony of
Yvette that she returned to the United States early in 2004 to
make lease payments on the hostel and to check on the busi-
ness. The existence of such payments was corroborated by
Mazzal. The ongoing business venture in the United States
and Yvette’s trip back are objective factors weighing in favor
of a finding that there was no mutual intent to abandon com-
pletely the family’s residence in California.
C
We are particularly sensitive to our duty to strive for uni-
form interpretation of the provisions of a treaty. See 42 U.S.C.
3
In his briefs on appeal, Dimitris advances an argument that he had not
raised before the district court, namely that because Yvette filed a petition
for a restraining order and for sole custody of the “family home” in Greek
courts, she is precluded from arguing that the family’s move to Greece
was conditional. Because this judicial estoppel argument was not raised in
the district court, we deem it waived. Bolker v. Comm’r, 760 F.2d 1039,
1042 (9th Cir. 1985).
4258 PAPAKOSMAS v. PAPAKOSMAS
§ 11601(b)(3)(B) (stating that in enacting ICARA, Congress
recognized “the need for uniform international interpretation
of the Convention”). As part of our mixed standard of review
under Mozes, therefore, we consider whether the district
court’s ultimate conclusion that there was no shared settled
intention on the part of the parents to shift the children’s
habitual residence is consistent with the body of treaty law
under the Hague Convention. Such consideration is intended
to further the goal of “intelligibility and consistency” of appli-
cation that Mozes quite correctly identified as a crucial pur-
pose of the treaty. 239 F.3d at 1072.
[8] We are satisfied that the district court’s conclusion that
the family’s move to Greece was “conditional” is consistent
with the reasoning of other courts interpreting the Conven-
tion. The Eleventh Circuit’s recent decision in Ruiz v. Tenorio
is particularly on point, as the district court itself recognized.
392 F.3d at 1249. In that case, Melissa Tenorio and Juan Ruiz
decided, after seven years in the United States, to move to
Mexico “[i]n an attempt to save the marriage.” Id. at 1249.
Juan testified that he intended the family to move perma-
nently, while Melissa and a third-party testified that the move
was on a trial basis. Id. The Ruiz family started out in Mexico
living with Juan’s family, but eventually moved into an apart-
ment and even began building an “American-style” house. Id.
at 1249-50. As in this case, there was evidence that the couple
continued to fight in Mexico and that Melissa returned with
the children to the United States twice during the 34 months
that the family lived in Mexico. Id. at 1250. The district court
determined that there was no shared intention between Juan
and Melissa to make Mexico their permanent residence;
instead, Melissa had agreed to the move on a conditional basis
only. In reaching its decision, the district court in that case, as
did the district court here, expressly credited the testimony of
the mother and family members who testified on the mother’s
behalf. Relying upon these credibility findings, as well as the
objective facts indicating Melissa’s conditional intent, the
PAPAKOSMAS v. PAPAKOSMAS 4259
Eleventh Circuit found no clear error in the district court’s
conclusion and affirmed. Id. at 1254.
The Second Circuit’s decision in Gitter v. Gitter, 396 F.3d
124 (2d Cir. 2005), is also instructive. There, Yossi and Mir-
iam Gitter, along with their son Eden, moved from New York
to Israel, the birthplace of both parents. Yossi Gitter argued
that the move would save them money and provide a better
family support structure because they could live with his
mother in Israel. Id. at 128. The couple closed bank accounts,
placed their furniture in storage, and moved to Israel. Id. After
well over a year, Miriam returned to the United States with
Eden and resolved to stay. The district court determined that
there was no settled mutual intent to make Israel Eden’s per-
manent home because Miriam Gitter had agreed to the move
only on a conditional basis. Id. at 135. The Second Circuit
affirmed, holding that the district court’s findings were not
clearly erroneous. Id. It acknowledged that Yossi Gitter did
point to certain evidence suggesting that their stay might be
indefinite, including the closing of bank accounts and the sale
of furniture that had been placed in storage. Id. Nonetheless,
the court concluded that “[i]n light of the district court’s
determination that Mrs. Gitter’s testimony was more credible,
we cannot conclude that the district court was clearly errone-
ous in its conclusion that this evidence only reflected Mr. Git-
ter’s intentions and that Mrs. Gitter only intended to move to
Israel conditionally.” Id.
Dimitris contends, however, that the district court’s finding
of a conditional move was legal error because the “condition”
upon which the move was made was too vague. As support,
he points to the Third Circuit’s decision in Feder v. Evans-
Feder, 63 F.3d 217, 224 (3d Cir. 1995). There, the court
reversed the district court and found that the child’s habitual
residence was in Australia. But that court first determined that
the parents “both agreed to move to that country and live
there with another and their son.” Id. at 224. The Third Circuit
found that given such apparent settled intention, the district
4260 PAPAKOSMAS v. PAPAKOSMAS
court had relied too heavily on Mrs. Feder and her intention
not “to remain in Australia permanently if her marriage did
not improve does not void the couple’s settled purpose to live
as a family in the place where Mr. Feder had found work.” Id.
Our reading of Feder, however, suggests that the objective
factors indicating a shared intent on the part of the couple
were demonstrably stronger than they are here. In Feder, the
family purchased and renovated a house in Australia, both
parents pursued social interests and employment in Australia
(he with a bank, she with an opera house), and arranged for
their child’s short and long-term schooling there. Id. In addi-
tion, the family all received Australian medicare cards, allow-
ing them access to state-sponsored healthcare. Id. at 220.
Further, before the move to Australia, Mr. Feder had taken
photographs of new houses there and sent them to his wife to
get her input on which house to purchase. The couple ulti-
mately purchased a new home prior to moving to Australia.
Thus, unlike in the present case, the Feders had agreed mutu-
ally to sell their house in the United States, to purchase a new
house in Australia, and to seek employment and integration
there.
The objective facts here, coupled with the district court’s
credibility determinations, distinguish Feder and instead
make this case quite comparable to Ruiz-Tenorio and Gitter.
The district court here found, and the record supports, that
Dimitris was selling the couple’s American property out from
under Yvette and without her knowledge; that the couple had
no set employment in Greece; that the couple continued to
operate a business in the United States; that the family had not
purchased nor even sought out a permanent home in Greece;
and that Yvette had not sought employment or otherwise inte-
grated into Greek society. The district court, as did the court
in Ruiz-Tenorio, also relied upon key third-party testimony of
Yvette’s mother, the children’s teachers, and the hostel man-
ager, to establish that Yvette had not agreed to discard fully
the family’s residence in California.
PAPAKOSMAS v. PAPAKOSMAS 4261
[9] Accordingly, because the district court’s credibility
determinations and findings as to intent are supported by the
record, and because the ultimate decision comports with prior
precedent under ICARA and the Hague Convention, there
was no error in finding that there was no mutual settled inten-
tion on the part of the parents to shift the habitual residence
of their children from California to Greece.
IV
Such conclusion does not end our inquiry. Under Mozes,
we must also consider whether objective facts establish that
the children’s habitual residence had changed from California
to Greece. 239 F.3d at 1078. In performing this inquiry, we
are mindful that in “the absence of settled parental intent,
courts should be slow to infer from such contacts that an ear-
lier habitual residence has been abandoned.” Id. at 1079.
A
The district court found that the objective facts did not
point unequivocally to the conclusion that Greece had become
the children’s habitual residence. The court noted that the
children attended English-speaking schools because they did
not speak or write Greek. The district court also considered it
relevant that the children did not have “anything resembling
a permanent home during their four months in Greece.” The
family first stayed at Dimitris’ parents home in Orei, then in
a rented apartment in Athens, and finally at an apartment in
Orei. In addition, the district court noted that the evidence
showed that the couple’s son was not adapting well to his new
environment, and often had headaches and crying fits. Finally,
the court noted that Yvette took one trip back to California
and tried to leave with the children again after less than two
months. Thus, the court concluded that based upon objective
factors, the roughly four-month period was not sufficient to
allow the children to acclimate to their surroundings in such
a way as to change their habitual residence to Greece.
4262 PAPAKOSMAS v. PAPAKOSMAS
B
[10] It is possible that a child’s acclimatization to the loca-
tion abroad will be so complete that serious harm can be
expected to result from compelling his return to the family’s
intended residence. Gitter, 396 F.3d at 134. Holder II cautions
that acclimatization should not be confused with accultura-
tion; the question more generally is whether Greece had sup-
planted California as the locus of the children’s development.
392 F.3d at 1019. We conclude that the district court did not
err in determining that the children’s stay in Greece did not
shift the locus of their development and that any acclimatiza-
tion did not overcome the absence of a shared settled intention
by the parents to abandon the United States as a habitual resi-
dence.
[11] The children’s life in Greece appears to have been in
a permanent state of flux. After their arrival, they went to Orei
to stay with Dimitris’ family. After the holidays, the family
went to Athens to stay in a rented apartment. There, the chil-
dren began attending English-speaking schools. There is no
evidence that the parents ever considered a Greek language
institution. Ultimately, after only a few months in Athens,
Dimitris determined to move the family again back to Orei,
this time to a new apartment. Thus, in less than four months,
the record establishes that the children lived in three different
homes; in addition, unlike the families in Ruiz and Feder,
there was no action by the parents to purchase their own
home.
Further, though the precise nature of their relationship is a
matter of dispute, there is no doubt that the presence of Slima
Boudour, Dimitris’ mistress, exacerbated the tensions
between Yvette and Dimitris at home. After Yvette returned
from her trip to the United States, she learned from her daugh-
ter that Boudour had arrived in Greece and had spent time in
the family’s apartment. The mysterious presence of Boudour
in the lives of the Papakosmas family supports the district
PAPAKOSMAS v. PAPAKOSMAS 4263
court’s conclusion that as a unit, the family’s life in Greece
was anything but stable. Indeed, the deterioration in the chil-
dren’s well-being was seen through Yvette’s mother’s testi-
mony, expressly credited by the district court, that the son
suddenly seemed moody, irritable, and often engaged in bouts
of crying for no apparent reason.
[12] Finally, we note that although the passage of time
itself is not dispositive on the issue of acclimatization, it is
instructive that the children spent nearly all of their lives in
the United States, spoke little Greek, and had visited the coun-
try only three or four times for two to three weeks at a time.
With the irregular set-up of their household in Greece, four
months was an insufficient time for the children to “develop[ ]
deep-rooted ties to the family’s new location.” Holder II, 392
F.3d at 1021; see also Mozes, 239 F.3d at 1078 (“[H]ome isn’t
built in a day. It requires the passage of an appreciable period
of time . . . When the child moves to a new country accompa-
nied by both parents, who take steps to set up a regular
household together, the period need not be long. On the other
hand, when circumstances are such as to hinder acclimatiza-
tion, even a lengthy period spent in this manner may not suf-
fice.”) (emphasis added)).
[13] The facts here are such that we cannot “say with confi-
dence that the [children’s] relative attachments to the two
countries have changed to the point where requiring return to
the original forum would now be tantamount to taking the
[children] out of the family and social environment in which
[their] life has developed.” Mozes, 239 F.3d at 1081 (internal
quotations omitted).
V
[14] In sum, we agree with the district court that there was
no shared settled intention on the part of the parents to shift
the habitual residence of their children to Greece. We also
agree with the district court that the four-month period spent
4264 PAPAKOSMAS v. PAPAKOSMAS
by the children in Greece was insufficient to acclimatize them
to that country. We therefore conclude that on the date of the
children’s removal from Greece, their habitual residence
remained in the state of California and accordingly, their
mother’s removal of them from Greece was not wrongful
within the meaning of the Hague Convention and ICARA.
The judgment of the district court is
AFFIRMED.