Karkkainen v. Kovalchuk ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-24-2006
Karkkainen v. Kovalchuk
Precedential or Non-Precedential: Precedential
Docket No. 05-1581
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-1581 and 05-2202
MILLA KARKKAINEN,
Appellant
v.
VLADIMIR IVANOVICH KOVALCHUK;
JULIE L. D’ITRI
Appeals from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 04-cv-00662)
District Judge: Honorable Joy F. Conti
Argued January 27, 2006
Before: RENDELL and SMITH, Circuit Judges,
and IRENAS*, District Judge.
* Honorable Joseph E. Irenas, Senior District Judge for the
District of New Jersey, sitting by designation.
(Filed: April 24, 2006)
Rebecca E. Lafferty
Gillotti, Capristo & Beck
310 Grant Street
215 Grant Building
Pittsburgh, PA 15219
Stephen J. Cullen [ARGUED]
Jeffrey M. Geller
Miles & Stockbridge
One West Pennsylvania Avenue
Suite 900
Towson, MD 21204
Counsel for Appellant
Linda S. Gardner [ARGUED]
Rooney, Mannicci & Gardner
7 West Morton Street
P.O. Box 5425
Bethlehem, PA 18015
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
Milla Karkkainen filed a Petition for Return of Child
2
under the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11670, 19 I.L.M. 1501 (“Hague Convention”). Karkkainen
alleged that her ex-husband, Vladimir Kovalchuk, and his
current wife, Julie d’Itri (collectively, the “Respondents”),
wrongfully retained her daughter, Maria Kovalchuk, when she
was eleven years old. The District Court denied the petition,
holding that there was no wrongful retention because Maria’s
habitual residence was the United States. Karkkainen appeals
this decision, arguing that Maria is habitually resident in
Finland. Although this is a close case, we believe that, prior to
her retention, Maria acclimatized to the United States and that
there was a degree of settled purpose from her perspective to
remain in this country. The existence of shared parental intent
to permit Maria to choose her country of residence bolsters this
conclusion. Thus, we agree with the District Court’s finding
that Maria is a habitual resident of the United States and will
affirm.
I. Facts and Procedural History
Maria was born on April 25, 1992 in Russia. Her
parents, Milla Karkkainen and Vladimir Kovalchuk, were
married at the time and remained so until 1997. After their
divorce, Karkkainen and Kovalchuk agreed that Maria would
live with her mother in Finland.
Both Karkkainen and Kovalchuk remarried after their
split. Karkkainen married Kimmo Karkkainen in January 1998,
and Kovalchuk married Julie d’Itri in September 2000.
Kovalchuk and d’Itri saw Maria periodically, either by traveling
3
to Europe or by bringing her for visits to the United States. In
2000, however, Maria was unable to obtain a tourist visa for a
visit to the United States due to the concerns of the United
States Consulate in Finland about Maria’s custody status.
As part of their effort to obtain a visa for Maria to visit
the United States, Kovalchuk and Karkkainen signed a
Stipulation in Custody in December 2000 that clarified their
custody arrangement. The Stipulation provided, inter alia, that
Karkkainen “shall have primary physical custody of [Maria],
including the right of the child’s residence in Finland, which for
purposes of The Hague Convention on the Civil Aspects of
Child Abduction, shall be considered the child’s ‘habitual
residence.’” (Stipulation in Custody ¶ 5 at App. 503.) The
parents continued to share legal custody of Maria such that both
had “the right and responsibility to make major decisions
affecting . . . [her] best interest.” (Stipulation in Custody ¶ 3 at
App. 503.) The terms of the Stipulation required that it be filed
with the Court of Common Pleas of Allegheny County,
Pennsylvania. Though the Stipulation was signed by a common
pleas judge, the parties never actually filed it with the court.
The record reflects that the primary purpose of the Stipulation
in Custody was to secure Maria’s tourist visa.
Despite these efforts to clarify Maria’s custody status,
Maria was unable to obtain a visa to visit the United States. In
February 2002, the parties began discussions about making
Maria a permanent resident of the United States for immigration
purposes, which would dispense with the need for a tourist visa.
In March 2002, Karkkainen granted permission for Maria to
become a permanent American resident in a signed and
4
notarized document. It was Karkkainen’s understanding at that
time that she would not lose any custody rights over her
daughter if she were made a permanent resident of the United
States, but that the change in immigration status would give
Maria the right to remain in the United States indefinitely.
Maria was granted an immigrant visa in September 2002 and
she officially became a permanent resident of the United States
when she visited the country in October 2002. She also visited
the United States in December 2002 during the Christmas
holiday and over her Easter break in April 2003.
During the winter of 2002 and spring of 2003, Maria, her
parents, and her stepparents began to plan for Maria to make a
longer visit to the United States. The parties agreed that she
would spend the entire summer here with her father and d’Itri.
In addition, Maria began increasingly to express her preference
to move permanently to the United States. Maria had a
conversation in May 2003 with her mother and stepfather in
which she stated that she wanted to live with her father. Maria’s
stepfather told her that she was free to make that decision.
When Karkkainen did not disagree with this statement, Maria
was left with the impression that she had been given permission
to move permanently to the United States if she wished. After
this conversation, Maria said goodbye to her teacher, Tuula
Merenheimo, and to several friends, telling them that she was
moving to the United States. As a parting gift, Merenheimo
gave Maria the books that she would have used during the next
school year in Finland. These books were usually kept by the
teacher during the summer and handed out at the beginning of
the academic year.
5
Several events reinforced Maria’s belief that she would
be permitted to move to the United States permanently. Milla
and Kimmo Karkkainen helped Maria apply to a private
American school for the fall semester of 2003 by faxing her
academic transcripts to the school. Maria heard her mother tell
her grandmother on the telephone that Maria was moving to the
United States. And Karkkainen let Maria travel to the United
States on June 6, 2003, moments after Maria told Karkkainen
that she was unsure she would return to Finland at the end of the
summer.
The central factual dispute of this case is what the
understanding of the parties was at the time Maria came to the
United States. The Respondents claim that the parties agreed
that the summer would be a trial period during which Maria
would decide whether she wanted to move to the United States
permanently. Karkkainen argues that she never granted
permission for Maria to live in the United States indefinitely
and that she expected Maria to return to Finland on August 10,
2003.
The record reflects that Maria is both mature and
intelligent for her age. An expert in teaching and training
children in the performing arts testified that Maria is “a very
focused, gifted, talented and . . . creative child” with particularly
strong skills in photography and drawing. An independent child
psychologist found that Maria was “uniquely talented and
highly intelligent,” an impression the District Court echoed after
hearing Maria’s testimony. Maria could communicate well in
Finnish, English, and Russian, and had extensive experience
traveling in Europe and the United States for visits with her
6
father. She was, in short, much more experienced and mature
than the average eleven year old when she came to the United
States on June 6, 2003.
During the summer of 2003, Maria took academic
classes, studied photography, traveled in the United States, and
cultivated her relationships with d’Itri and d’Itri’s family. In
addition, Maria was admitted to a private American school
named The Ellis School, where she enrolled to attend in the fall.
When Maria did not return to Finland in August 2003,
Karkkainen filed a Petition for Return under the Hague
Convention. The District Court determined that Maria had
become acclimatized during her stay in the United States prior
to the date of her retention. Accordingly, the Court found that
Maria was a habitual resident of the United States and refused
to return her to Finland.
The District Court had subject matter jurisdiction under
28 U.S.C. § 1331 and 42 U.S.C. § 11603(a). We have appellate
jurisdiction under 28 U.S.C. § 1291.
II. The Legal Framework of the Hague Convention
The two main purposes of the Hague Convention are “to
ensure the prompt return of children to the state of their habitual
residence when they have been wrongfully removed,” Hague
Convention, pmbl., and “to ensure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States,” id., art. 1. The
Convention’s procedures are not designed to settle international
custody disputes, but rather to restore the status quo prior to any
7
wrongful removal or retention, and to deter parents from
engaging in international forum shopping in custody cases.
Baxter v. Baxter, 423 F.3d 363, 367 (3d Cir. 2005).
Any person seeking the return of a child in the United
States may commence a civil action under the Convention by
filing a petition in a court of the jurisdiction in which the child
is located. 42 U.S.C. § 11603(b). To obtain an order for the
child’s return under the Hague Convention, the petitioner bears
the burden of proving by a preponderance of the evidence that
the removal or retention was wrongful under Article 3. 42
U.S.C. § 11603(e)(1)(A). Under Article 3 of the Hague
Convention, the removal or retention of a child is “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.
8
A petitioner cannot claim that the removal or retention of
a child is “wrongful” under the Hague Convention unless “the
child to whom the petition relates is ‘habitually resident’ in a
State signatory to the Convention and has been removed to or
retained in a different State.” Gitter v. Gitter, 396 F.3d 124, 130
(2d Cir. 2005) (emphasis added); see also Miller v. Miller, 240
F.3d 392, 398 (4th Cir. 2001) (requiring petitioner to prove that
children were habitually resident in a country other than the one
to which they were removed). Determination of a child’s
habitual residence immediately before the alleged wrongful
removal or retention is therefore a threshold question in
deciding a case under the Hague Convention. Feder v.
Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995).
Thus, we have noted that wrongful removal or retention
claims under Article 3 of the Convention typically raise 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 the habitual residence? (4) Was
the petitioner exercising those rights at the time of the removal
or retention? See Baxter, 423 F.3d at 368 (citing Mozes v.
Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001)). Because the
parties stipulated that Karkkainen had rights of custody under
Finnish law that she was exercising prior to Maria’s retention,
only the first two issues are in contention on this appeal.
Even when a court finds wrongful removal or retention,
it is not necessarily required to return a child to its habitual
residence. After a petitioner demonstrates wrongful removal or
9
retention, the burden shifts to the respondent to prove an
affirmative defense against the return of the child to the country
of habitual residence. Baxter, 423 F.3d at 368; see also Hon.
James D. Garbolino, International Child Custody Cases:
Handling Hague Convention Cases in U.S. Courts ch. 5 (3d ed.
2000) (discussing the affirmative defenses under the
Convention). These affirmative defenses are narrowly
construed to effectuate the purposes of the Convention and,
even where a defense applies, the court has the discretion to
order the child’s return. See Feder, 63 F.3d at 226; Hague
International Child Abduction Convention, Text and Legal
Analysis, 51 Fed. Reg. 10,494, 10,509 (Mar. 26, 1986).
III. The District Court’s Evidentiary and Factual Rulings
Though the fundamental issue in this appeal is whether
the District Court correctly determined Maria’s habitual
residence, Karkkainen also contends that the District Court
erred in several evidentiary rulings and in its fact-finding.
Because these rulings formed the basis for the District Court’s
holding that Maria was not wrongfully retained, we take them
up before turning to the merits of Karkkainen’s claim under
Article 3 of the Convention.1
1
Karkkainen also argues that the District Court made several
erroneous procedural rulings by (1) entering an order modifying
an existing child custody order, (2) denying appellant’s motion
to strike appellee’s late-filed answer and affirmative defenses,
(3) allowing counsel for the child to exceed her authority, (4)
denying appellant’s motion to correct the record, and (5) causing
10
We review the District Court’s determinations
concerning the admissibility of evidence for abuse of discretion.
Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005). To
the extent an evidentiary issue turns on the interpretation of a
Federal Rule of Evidence, rather than the mere application of
the rule, our review is plenary. Id.
Karkkainen claims that the District Court abused its
discretion by appointing an expert to evaluate Maria’s level of
maturity that lacked sufficient experience in “parental alienation
syndrome.” Karkkainen argues that one of the central themes
of her case was that Maria had been alienated from her mother
by the Respondents and that the District Court therefore should
not have considered Maria’s desire to move to the United States
permanently. As evidence of Maria’s alienation, Karkkainen
cites an instance in which Maria called her mother “aunt.”
However, as the District Court noted, Karkkainen raised the
claim of Maria’s alienation only as a way to rebut the
Respondents’ affirmative defenses. Because the District Court
ruled that the United States was Maria’s habitual residence,
Respondents’ affirmative defenses were not at issue and any
lack of knowledge on the part of the expert about “parental
alienation syndrome” was irrelevant.
the proceedings below, and the resolution thereof, to be delayed
excessively. Karkkainen provides no authority whereby we
would reverse the District Court’s order due to these alleged
errors and, more importantly, we find these procedural
arguments lacking in merit.
11
The District Court heard testimony from two witnesses
that Karkkainen argues should not have testified. The custodian
of records from The Ellis School testified as to whether the
school relied on documents sent by Maria’s Finnish teacher for
her admission. Though Karkkainen contends that this testimony
constituted unfair surprise, the records custodian was listed as
a witness on the witness list. The District Court did not abuse
its discretion in permitting her to testify as to factual matters
about which she had personal knowledge. Karkkainen also
argues that Maria should not have been permitted to testify.
However, the District Court held, based on expert evidence, that
Maria was mature enough to testify. Because Maria’s
perspective was central to the question of her habitual residence
under the Hague Convention, see Feder, 63 F.3d at 224
(defining a child’s habitual residence in terms of the child’s
perspective), it was clearly appropriate for the District Court to
admit her testimony.
The District Court admitted testimony about whether
Maria was “well-settled.” Karkkainen argues that the “well-
settled” defense of Article 12 of the Hague Convention is
inapplicable in this case and that the District Court should have
rejected testimony as to this issue. The District Court reserved
judgment on whether the well-settled defense applied and stated
that it would consider the testimony only if the defense later
became relevant. There is no evidence that the District Court
used such testimony to reach its decision on habitual residence,
the only subject of its holding. Likewise, we reject
Karkkainen’s claim that the District Court improperly permitted
testimony regarding Maria’s best interests. Karkkainen points
to no specific instances in which the District Court permitted
12
such testimony, and we have found none within the record. We
also conclude that the District Court admitted hearsay testimony
only under the exceptions of the Federal Rules and properly
limited its use. Thus, we find no abuse of discretion on these
points.
Finally, Karkkainen argues that the District Court erred
in finding that the parties agreed to allow Maria to choose
whether she would live in the United States indefinitely or
return to Finland at the end of the summer of 2003. We must
review this factual finding for clear error. Baxter, 423 F.3d at
367; Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir. 2003). We will
not reverse as long as the District Court’s account of the
evidence is “plausible in light of the record,” even if convinced
that we “would have weighed the evidence differently.”
Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985).
The record supports the District Court’s conclusion that
the parties agreed when Maria left for the United States in June
2003 that she would choose where she would reside after the
summer. At an interview at the American Embassy in Helsinki
in September 2002, d’Itri explained to a consular officer that
Maria would have the option of remaining in the United States
after her visit in the summer of 2003. Karkkainen was present
during the conversation and did not object to the proposed plan.
Email exchanges and multiple discussions between the parties
leading up to Maria’s 2003 trip to the United States also
suggested that Karkkainen agreed Maria was “free to go” to the
United States indefinitely. In addition, Karkkainen aided the
Respondents in their efforts to place Maria in The Ellis School
for the Fall 2003 school semester and never contacted the
13
school to indicate that she did not wish Maria to attend. Indeed,
on the very day Maria left for the United States, she and her
mother discussed the possibility that Maria would not return to
Finland at the end of the summer. Taken together, this and
other evidence in the record supports the District Court’s
finding that Karkkainen, the Respondents, and Maria all
understood that Maria would have the choice of remaining in
the United States and that she would not necessarily return to
Finland in August 2003.
At the same time, there is evidence in the record that
could support a different conclusion. For example, Karkkainen
never expressly gave permission for Maria to attend school in
the United States. Moreover, the Respondents stated in a
January 2003 email that it was their understanding that Maria
would return to Finland in August 2003. The fact that Maria
had a round-trip ticket with which she could return to Finland
on August 10, 2003 may also suggest that the parties did not
intend Maria to remain in the United States indefinitely.
Despite such evidence, we will not set aside the District Court’s
finding given our deferential clear error standard.
IV. Date of Retention
Having resolved Karkkainen’s evidentiary and factual
objections, we must determine when the alleged wrongful
retention occurred so as to establish the relevant date of Maria’s
habitual residence for purposes of the Hague Convention. The
District Court held that the date of retention was August 28,
2003, the date on which Karkkainen filed her petition for
Maria’s return. Prior to that time, the Court found that there
14
was an ongoing dispute between the parties about whether the
agreement to allow Maria to stay permanently in the United
States remained in effect. Once Karkkainen filed the petition
for Maria’s return, she unequivocally signaled her opposition to
Maria’s presence in the United States. After that date, there was
no doubt that Maria remained with her father against her
mother’s wishes and was therefore retained. See Slagenweit v.
Slagenweit, 841 F. Supp. 264, 270 (N.D. Iowa 1993) (“The
wrongful retention does not begin until the noncustodial parent
. . . clearly communicates her desire to regain custody and
asserts her parental right to have [her child] live with her.”
(emphasis added)).
Karkkainen argues that August 10, 2003, not August 28,
2003, is the proper date of retention. This was the date of
Maria’s return airline ticket to Finland and the date after which
Kimmo Karkkainen indicated in a July 2003 email to the
Respondents that Maria’s presence in the United States would
constitute kidnapping. Karkkainen argues that there is no legal
basis for setting the date of retention as the day on which she
unequivocally communicated her opposition to Maria’s
presence in the United States and that, in any event, she had
clearly communicated her opposition prior to August 28, 2003.
This case does not require us to decide whether a child is
not retained under the Convention until a parent unequivocally
communicates his or her desire to regain custody. We assume
that this standard applies, but hold that it was clearly erroneous
for the District Court to find that Karkkainen had not clearly
communicated her opposition to Maria’s presence in the United
States until she filed the petition for return. There is unrebutted
15
evidence in the record showing that, by mid-July 2003,
Karkkainen had withdrawn her consent to have Maria remain in
the United States beyond August 10, 2003 and that the
Respondents were fully aware of this. Neither the District Court
nor the Respondents pointed to anything in the record that
suggests there was confusion about Karkkainen’s opposition
after mid-July 2003, and we have found no such evidence
ourselves. Under these circumstances, we must set aside the
District Court’s factual finding and accept as the date of
retention August 10, 2003, prior to which it is undisputed that
Maria was present in the United States with Karkkainen’s
permission. See Toren v. Toren, 191 F.3d 23, 27-28 (1st Cir.
1999) (finding no retention where child’s presence in United
States was consistent with agreement of parents).
V. Habitual Residence
Whether the Respondents wrongfully retained Maria
under the Hague Convention will be determined by where Maria
habitually resided immediately prior to her alleged wrongful
retention on August 10, 2003. If we find Finland was Maria’s
habitual residence on that date, we must also find that her
retention in the United States was wrongful; if we conclude that
Maria was a habitual resident of the United States, her retention
here would not be wrongful under Article 3 of the Convention.
See Gitter, 396 F.3d at 130; Miller, 240 F.3d at 398; Feder, 63
F.3d at 222. The determination of a child’s habitual residence
presents a mixed question of fact and law. Id. at 546. We
therefore “review the [D]istrict [C]ourt’s underlying findings of
historical and narrative facts for clear error, but exercise plenary
review over the court’s application of legal precepts to the
16
facts.” Delvoye, 329 F.3d at 332.
A. Legal Standards for Habitual Residence
The Convention does not specifically define the term
“habitual residence.” Though the Courts of Appeals have
employed slightly different tests for habitual residence, each test
has in common the goal of determining where a child’s home is
at the time of removal or retention. These tests facilitate the
primary objective of the Hague Convention: to ensure stability
in a child’s family and social environment. See Elisa
Perez-Vera, Explanatory Report ¶¶ 11, 24, 72, in 3 Hague
Conference on Private International Law, Acts and Documents
of the Fourteenth Session, Child Abduction 426 (1982)
(“Perez-Vera Report”).2
The inquiry into a child’s habitual residence is a
fact-intensive determination that cannot be reduced to a
predetermined formula and necessarily varies with the
circumstances of each case. Whiting v. Krassner, 391 F.3d 540,
546 (3d Cir. 2004). This is especially true in cases such as this
one, where the petitioning parent initially agreed to allow the
child to stay abroad for an indefinite duration, but subsequently
2
Elisa Perez-Vera was the official Hague Conference
Reporter, and her report is generally recognized as “the official
history and commentary on the Convention.” Legal Analysis of
the Hague Convention, 51 Fed. Reg. at 10,503. Her full report
is available at http://www.hiltonhouse.com/
articles/Perez_rpt.txt.
17
had second thoughts about that decision. Mozes, 239 F.3d at
1077. “These cases . . . generally have no clear answer and are
very fact-dependent.” Whiting, 391 F.3d at 549.3
We have stated that a child’s habitual residence is “the
place where he or she 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.” Feder, 63 F.3d
at 224. This approach considers a child’s experience in and
contacts with her surroundings, focusing on whether she
“develop[ed] a certain routine and acquire[d] a sense of
environmental normalcy” by “form[ing] meaningful
connections with the people and places [she] encountered” in a
country prior to the retention date. Id. at 550-51. We examine
a child’s conduct and experiences to determine whether she
became “firmly rooted” in her new surroundings, not merely
whether she acculturated to a country’s language or customs.
Holder v. Holder, 392 F.3d 1009, 1019 (9th Cir. 2004); see also
Mozes, 239 F.3d at 1078-79 (describing acclimatization as being
3
Karkkainen characterizes the instant case differently as one
in which “the child’s initial move from an established habitual
residence was clearly intended to be for a specific, limited
duration.” Whiting, 391 F.3d at 549. Courts faced with these
types of cases generally find no change in habitual residence.
Id.; Mozes, 239 F.3d at 1076. However, because we uphold the
District Court’s finding that there was an agreement among the
parties when Maria came to the United States that she would
choose her residence at the end of the summer, we reject
Karkkainen’s characterization of the instant case.
18
“firmly embedded in the new country” or “being well-adjusted
in one’s present environment”). Thus, if a child becomes rooted
in one country, we will not return her to another one where
doing so would take her “out of the family and social
environment in which [her] life has developed.” Perez-Vera
Report ¶ 11. Simply put, this inquiry considers whether a child
has made a country her home before the date of her removal or
retention. See Holder, 392 F.3d at 1019.
Though we examine acclimatization and settled purpose
“from the child’s perspective,” Feder, 63 F.3d at 224, we
consider parental intent as part of this inquiry “because the
child’s knowledge of these intentions is likely to color its
attitude to the contacts it is making,” Mozes, 239 F.3d at 1079-
80. See also Silverman v. Silverman, 338 F.3d 886, 898 (8th
Cir. 2003) (noting that, although courts must focus on the child,
“parental intent is also taken into account”). As the Court of
Appeals for the Ninth Circuit noted, the intentions of a child’s
parents may affect the length of time necessary for a child to
become habitually resident or otherwise influence a child’s
ability to acclimatize. Mozes, 239 F.3d at 1079-80.
In addition to considering how parental intent affected a
child’s perspective, we must also give some independent weight
to “the parents’ present, shared intentions regarding their child’s
presence” in a particular place. Feder, 63 F.3d at 224 (emphasis
added). This approach helps courts ensure that neither parent is
acting unilaterally to alter a joint understanding reached by the
parents. Thus, given the facts of this case, the agreement
between Maria’s parents is relevant in two ways. First, it affects
the amount of time required for Maria to become acclimatized
19
and to demonstrate a degree of settled purpose to live in the
United States. Second, the agreement is relevant on its own
under the shared intent inquiry.
It obvious based on these standards that Maria was a
habitual resident of Finland prior to her arrival in the United
States on June 6, 2003. She lived in that country for years and
was acclimatized to her environment there in every way. In
addition, Finland was the country that Maria’s parents had set
as her habitual residence in their Stipulation in Custody. The
question before us, then, is whether Maria’s habitual residence
changed from Finland to the United States prior to the retention
date.
B. The Stipulation in Custody
Before applying these standards to the instant case, we
address Karkkainen’s claim that the Stipulation in Custody
prevented a change in Maria’s habitual residence, as it remained
binding and rendered Maria habitually resident in Finland on
the retention date. The District Court disagreed with this
argument and found that the parties had modified the Stipulation
by developing a shared intention that Maria would be permitted
to decide during the summer of 2003 whether she wished to
move to the United States or return to Finland. Because we will
not set aside the District Court’s finding that the parties agreed
Maria would decide for herself whether to return to Finland, we
must determine whether this shared intention effectively
modified the Stipulation in Custody.
Though it was signed by a common pleas judge, the
20
Stipulation in Custody was never filed with the Court of
Common Pleas of Allegheny County, as its terms required.
Consequently, it is an informal custody agreement under
Pennsylvania law, not a binding court order. Witmayer v.
Witmayer, 467 A.2d 371, 374 (Pa. Super. Ct. 1983). While a
court will generally look favorably upon an informal custody
agreement, “if circumstances change after the making of the
agreement . . . , then lesser or no weight should be afforded” to
it. Id. at 375. The District Court believed that the shared
intention of the parties that Maria would choose where to live
constituted a changed circumstance that modified the
Stipulation in Custody. We agree. The shared intention of
Maria’s parents changed the underlying assumption of the
Stipulation when it was prepared, namely, that Maria would
necessarily live with her mother. Once the parties reached a
new agreement about how Maria’s residence would be
determined and gave her the option to live in the United States
with her father, circumstances had changed and the habitual
residence term of the Stipulation in Custody was no longer
binding.
Furthermore, the Stipulation was prepared for the express
purpose of obtaining a tourist visa for Maria. Maria has since
become a permanent legal resident of the United States, making
a tourist visa unnecessary for her to visit or remain in this
country. Because Maria’s immigration status was critical to the
factual context in which the parties drafted the Stipulation, this
change buttresses our conclusion that the instant case involves
different circumstances from those present when the parties
entered the Stipulation and that the Stipulation’s lasting
effectiveness is suspect. Id. We therefore afford no weight to
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the provision of the Stipulation in Custody that sets Finland as
Maria’s habitual residence.
C. Acclimatization and Degree of Settled Purpose
To determine whether Maria’s habitual residence
changed from Finland to the United States, we first consider
whether she acclimatized to the United States prior to the date
of retention and whether there was a degree of settled purpose
from her perspective to remain in this country beyond August
10, 2003. Whiting, 391 F.3d at 550. Courts have identified a
number of specific factors that are indicative of acclimatization
and a degree of settled purpose from the child’s perspective. In
Feder, we noted that academic activities are among “the most
central . . . in a child’s life” and therefore highly suggestive of
acclimatization. 63 F.3d at 224. The Court of Appeals for the
Eleventh Circuit has taken school attendance, social
engagements, and lessons to be evidence of acclimatization.
Ruiz v. Tenorio, 392 F.3d 1247, 1255 (11th Cir. 2004). The
Ninth Circuit Court of Appeals weighed a child’s participation
in sports programs and excursions in his new country in favor
of acclimatization. Holder, 392 F.3d at 1020.
Applying the lessons of such cases to the circumstances
before us, there is evidence in the record that Maria
acclimatized herself to the United States during the summer of
2003. She enrolled in The Ellis School and took summer
classes to prepare for her attendance there in the fall. She also
took photography classes that summer, traveled in the country,
and developed relationships with d’Itri and her family that she
had established during previous visits to the United States in
22
October 2002, December 2002, and April 2003. We view these
events in the context of record evidence that Maria is “uniquely
talented and highly intelligent,” an experienced traveler with
strong English skills, and mature for her age. Taken together,
these factors suggest that Maria “form[ed] meaningful
connections with the people and places she encounter[ed]” in
the United States and was therefore acclimatized prior to the
date of her retention. Whiting, 391 F.3d at 551.
Furthermore, there is evidence in the record that Maria
abandoned Finland as her habitual residence. When Maria
came to the United States in June 2003, she brought more
personal belongings with her than usual, in anticipation that she
would remain here after the summer. See Silverman, 338 F.3d
at 898 (noting that transfer of personal possessions indicates
settled purpose to remain in new country). Maria’s decision in
July 2003 to remain in the United States, which she
communicated to her parents and stepparents, was essentially a
choice to abandon Finland as her habitual residence. “[W]hile
our jurisprudence on habitual residency . . . has not heretofore
enunciated a need for an intent to abandon a former habitual
residency in order to establish a new one, it does seem implicit
in the concept of acquiring a new ‘habitual’ residence that the
previous ‘habitual’ residence has been left behind or discarded.”
Whiting, 391 F.3d at 550.
There are also factors that weigh against a finding of
acclimatization. “Habitual residence may only be altered by a
change in geography and passage of time,” Silverman, 338 F.3d
at 898, and is a concept that focuses on past experience, not
future intentions, Friedrich v. Friedrich, 983 F.2d 1396, 1401
23
(6th Cir. 1993). It is fair to ask whether Maria was physically
present in the United States for an amount of time sufficient to
provide the experiences required to acclimatize to a new
country. Maria visited the United States for less than three
months in the summer of 2003. Even a mature eleven-year old
may not be able to acclimatize to a new country in such a short
period of time, especially since Maria did not decide until mid-
July 2003 that she wanted to stay permanently with her father
in the United States.
As stated above, the intentions of a child’s parents
“affect[] the length of time necessary for a child to become
habitually resident, because the child’s knowledge of these
intentions is likely to color its attitude to the contacts it is
making.” Mozes, 239 F.3d at 1079-80. In this case, Maria’s
parents intended when Maria left for the United States in June
2003 that Maria would be able to choose where she would live
at the end of the summer and that her choice would be
respected. This agreement, unusual in cases under the Hague
Convention, provided the defining context for Maria’s visit in
the summer of 2003.
There is considerable evidence that the agreement
between Maria’s parents “colored her attitude” towards her visit
to the United States during the summer of 2003. Maria thought
when she arrived that she would be permitted to choose, before
the end of the summer, the country in which she would reside
permanently. In multiple conversations with parents and
stepparents, Maria expressed her desire to pick her residence.
She indicated to her friends and teacher prior to leaving Finland
that her parents would allow her to choose where she would live
24
after the summer of 2003. Furthermore, Maria told her mother
on the day that she was leaving for the United States that she
was not sure she would return. The fact that Maria believed that
she controlled her own destiny influenced her entire experience
in the United States prior to her retention here. Indeed, Maria
strongly suspected even before she arrived that she would
choose to remain here. Under these circumstances, less time
was required for Maria to acclimatize and demonstrate a degree
of settled purpose to stay in the United States than would
normally be the case.
We are presented with a unique fact pattern, in that
Maria’s parents agreed in June 2003 that she possessed “the
material and psychological wherewithal” to decide where she
would reside. Mozes, 239 F.3d at 1076. Any eleven year-old
girl could conceivably tell her mother that she prefers to remain
in a country where she is visiting, yet this would not necessarily
alter her habitual residence. Here, Maria’s actions during the
summer of 2003, and her declaration that she would remain with
her father thereafter, are especially indicative of her settled
purpose in light of her parents’ agreement to permit her to
decide to remain in the United States permanently and to respect
whatever choice she made. Viewed in the context of this
understanding, Maria’s conduct, including her preparatory
academic work, enrollment in an American school, and her
efforts to connect with d’Itri’s family, reflects her
acclimatization and a degree of settled purpose to remain more
clearly than it would if considered in isolation.
Karkkainen argues that the agreement among the parties
was nullified once she withdrew her consent that Maria could
25
remain with her father beyond August 10, 2003, which the
record shows occurred in mid-July. One could hardly question
the proposition that Karkkainen’s protests changed the intent of
the parties as it existed in June 2003, but this misses the point.
“Habitual residence is intended to be a description of a factual
state of affairs, and a child can lose its habitual attachment to a
place even without a parent’s consent.” Mozes, 239 F.3d at
1081. Karkkainen would have us ignore the fact that an
understanding existed between the parents at the outset in
evaluating Maria’s perspective. We cannot do so because this
understanding was at the heart of Maria’s experiences in the
United States. We do not view the agreement that existed in
June 2003 as itself determinative of Maria’s habitual residence,
but rather as important in our consideration as to how Maria
experienced her contacts in the United States and, consequently,
as a factor that influenced the amount of time required for Maria
to acclimatize and demonstrate a degree of settled purpose to
remain with her father.
Though the relatively short period of time Maria was
present in the United States makes it a close question, we hold
that Maria was acclimatized to the United States on the date of
her retention and that her conduct demonstrated a degree of
settled purpose to remain here. We base this conclusion on the
specific facts and circumstances before us, Whiting, 391 F.3d at
546, and rely heavily on Maria’s maturity and intelligence, her
development of relationships with family and friends in the
United States prior to her retention, and her academic work
during the summer of 2003 to prepare for attendance at The
Ellis School. Importantly, we view these factors against the
backdrop of the agreement between Maria’s parents to permit
26
Maria choose her own residence. We are mindful that we
should avoid setting the bar for acclimatization too low, lest we
create an incentive for a parent to remove or retain a child in the
hope that the child will quickly acclimatize and not be returned.
See id. at 551 (recognizing the problematic incentives in Hague
Convention cases); Mozes, 239 F.3d at 1079 (“The greater the
ease with which habitual residence may be shifted without the
consent of both parents, the greater the incentive to try.”).
However, we are satisfied that in the unique circumstances of
this case, Maria’s experiences in the United States prior to her
retention crossed the line that demarcates acclimatization and
indicate a degree of settled purpose from her perspective.
D. Shared Intent
In addition to considering habitual residence from
Maria’s perspective, Feder requires that we give independent
weight to her parents’ shared intent. 64 F.3d at 224. We have
held that, in cases involving very young children, “the shared
intent of the parents in determining the residence of their
children [is] of paramount importance” and acclimatization is
secondary. Whiting, 391 F.3d at 550. Acclimatization is an
ineffectual standard by which to judge habitual residence in
such circumstances because the child lacks the ability to truly
acclimatize to a new environment. See id. at 550-51
(considering the shared intentions of parents where child is too
young to “form meaningful connections with the people and
places he encounters each day”); Delvoye, 329 F.3d at 334
(determining habitual residence of a newborn baby through
analysis of parents’ shared intent). Thus, shared parental intent
that a very young child will reside in a new country, even for a
27
limited period of time, is sufficient to establish the child’s
habitual residence in that country. Whiting, 391 F.3d at 549;
Feder, 63 F.3d at 223.
We give somewhat less weight to shared parental intent
in cases involving older children, like Maria, who have reached
an age where they are capable of becoming “firmly rooted” in
a new country. Holder, 392 F.3d at 1019. In such cases, our
attention generally turns first to the child’s perspective, not the
parents’ intent. See Feder, 63 F.3d at 224 (noting that the test
for acclimatization and degree of settled purpose “must focus on
the child”); see also Silverman, 338 F.3d at 898 (“The court
should have determined the degree of settled purpose from the
children’s perspective.”); Friedrich, 983 F.2d at 1401 (“To
determine the habitual residence, the court must focus on the
child, not the parents . . . .”). But shared parental intent remains
relevant to habitual residence in all cases under the Hague
Convention. The Convention “is designed to restore the
‘factual’ status quo which is unilaterally altered when a parent
abducts a child and aims to protect the legal custody rights of
the non-abducting parent.” Feder, 63 F.3d at 221 (emphasis
added); see also Mozes, 239 F.3d at 1079 (“The function of a
court applying the Convention is . . . to determine . . . whether
one parent is seeking unilaterally to alter the status quo with
regard to the primary locus of the child’s life.”). When the
parents share an intent as to the child’s habitual residence, it
must be given some weight. Were a court to exclude shared
parental intent entirely from the habitual residence inquiry, and
instead focus solely on a child’s contacts and experiences, it
would fail to consider whether a parent is acting unilaterally to
alter what was jointly intended or agreed upon. Factoring
28
shared parental intent into habitual residence therefore serves
one of the primary goals of the Hague Convention.
Our cases have not established with any precision how
a court should balance shared parental intent against evidence
of acclimatization and settled purpose from the child’s
perspective where the child is not very young. As the Court of
Appeals for the Ninth Circuit noted in Mozes, perhaps the most
difficult question in this regard is “when evidence of
acclimatization should suffice to establish a child’s habitual
residence” in the face of “uncertain or contrary parental intent.”
239 F.3d at 1078. Proceeding from the premise that it is the
parents, not the child, who decide where a child lives, the Mozes
Court concluded that, in the absence of settled parental intent,
courts should be “slow to infer” merely from a child’s contacts
with a new country that he or she has abandoned an earlier
habitual residence. Id. at 1079. “[A] child can lose its habitual
attachment to a place even without a parent’s consent,” but only
when “the objective facts point unequivocally” to the
conclusion that a child’s relative attachments to two countries
have changed. Id. at 1081 (internal quotations omitted). Thus,
Mozes established a presumption that shared parental intent (or
lack thereof) regarding a change in habitual residence generally
trumps evidence of acclimatization. See Gitter, 396 F.3d at 134
(adopting the analysis of Mozes and noting that only in
“relatively rare circumstances” would evidence of
acclimatization outweigh parental intent); Holder, 392 F.3d at
1020 (requiring showing of acclimatization that “overcome[s]
the lack of shared parental intent to abandon . . . the children’s
habitual residence”). The Mozes Court adopted this approach
in order to minimize the incentives for unilateral action on the
29
part of either parent, Mozes, 239 F.3d at 1079, and because it
believed that “[c]hildren . . . normally lack the material and
psychological wherewithal to decide where they will reside,” id.
at 1076.
Here, because both shared parental intent and
acclimatization support a finding that Maria was habitually
resident in the United States, we need not decide how we would
weigh these factors against each other if they conflicted, which
was the focus of Mozes. Accordingly, we note only that,
consistent with our instruction in Feder, courts must consider
“the parents’ present, shared intentions” as part of the habitual
residence analysis. 63 F.3d at 224.
When a removal or retention is in accordance with the
shared intent of both parents, there is no unilateral action, and
therefore no harm for a court to remedy under the Hague
Convention. See Toren, 191 F.3d at 28 (“[T]he children’s mere
presence in the United States cannot constitute a retention
because it is entirely consistent with the parties’ . . .
agreement.”). There is record evidence from as early as
September 2002 of shared parental intent to permit Maria to
move permanently to the United States. Only as it became clear
that Maria would choose to remain with her father did
Karkkainen retract her consent to allow Maria to choose her
residence. Yet, by that time, Maria had already begun to settle
in the United States in reliance on the agreement that she would
be permitted to remain here permanently. Thus, the mutual
understanding during the summer of 2003 was that Maria would
have the opportunity to remain in the United States permanently
(that is, to live here with a degree of settled purpose).
30
Karkkainen’s change of heart in July 2003 is the type of
unilateral act that the Hague Convention was designed to
prevent, namely, one that disrupts a child’s residential
environment and thwarts shared parental intent. We therefore
give weight to the agreement that existed when Maria left
Finland and not to Karkkainen’s subsequent retraction of
consent.
In summary, though we find it to be a close question, we
agree with the District Court’s holding that Maria acclimatized
to the United States prior to her retention and that her conduct
demonstrated a degree of settled purpose to remain here. This
weighs in favor of a finding that Maria was habitually resident
in the United States on the retention date. The shared parental
intent that Maria would choose her country of residence during
the summer of 2003 further bolsters this conclusion.
Consequently, we hold that Maria is a habitual resident of the
United States and that she was not wrongfully retained under
Article 3 of the Hague Convention.
For the foregoing reasons, we will affirm the District
Court.
31