Koch, Antonia P. v. Koch, Dane J. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1577
ANTONIA P. KOCH,
Petitioner-Appellee,
v.
DANE J. KOCH,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 C 1158—Lynn Adelman, Judge.
____________
ARGUED JUNE 5, 2006—DECIDED JUNE 13, 20061
____________
Before BAUER, ROVNER and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Dane J. Koch appeals from the
district court’s order granting Antonia P. Koch’s petition
under the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S., No.
11,670, 1343 U.N.T.S. 89 (“Convention”) and the Interna-
tional Child Abduction Remedies Act, 42 U.S.C. § 11601, et
seq. (“ICARA”). We affirm.
1
This opinion was originally issued in typescript.
2 No. 06-1577
I.
We take the facts as the district court found them,
supplementing as needed from the uncontested parts of the
record. Dane J. Koch (“Dane”) is a United States citizen who
has spent most of his adult life living and working in
Germany. At the time of the hearing before the district
court, Dane had lived and worked in Germany for fourteen
and a half of the prior eighteen years. He served in the
military in Germany from 1987 until 1990, after which
he remained in Germany where he worked, married, had
two children, and then divorced his wife. Those children,
with whom Dane has had no contact for several years, are
not the subject of this dispute. In 1997, Dane met Antonia
P. Koch (“Antonia”), a German citizen. After living together
for some period of time in Germany, Dane and Antonia
moved to the United States in February 1999. They were
married in Wisconsin in August of that year. Their first
child, Charles, was born in Wisconsin on February 20, 2000.
Their daughter, Annalena, was born on April 2, 2002, also
in Wisconsin. Both Charles and Annalena have dual
citizenship in the United States and Germany. The children
speak both English and German.
During their stay in Wisconsin, Dane started a business,
which failed, and the couple went through bankruptcy
proceedings. The marriage was also troubled. On at least
one occasion, Dane physically abused Antonia. With poor
financial prospects in the United States, Dane decided to
take a job offer from his former employer in Germany. On
April 13, 2002, when Annalena was just eleven days old, the
couple moved back to Germany with their children. Dane
and Antonia disagree about how long they intended to
remain in Germany. Dane insists they agreed to stay two or
three years, but Antonia believed they would be there for
five to ten years. Both Dane and Antonia concede that, at
the time they moved to Germany, they intended to stay long
enough to save money to make a down payment on a home
No. 06-1577 3
and purchase two cars, an amount they estimated to be
$20,000, and then return to the United States. Dane also
wanted to obtain a vice-president position at his German
employer because he believed holding a management
position for a few years would enhance his resume. Dane
did not believe he could otherwise obtain a management
position because he lacked a college degree. Antonia took all
of her personal belongings with her to Germany. Dane took
nearly all of his possessions as well, leaving behind only a
few items, including some tools, a shotgun and outdoor
furniture. These items he left with a friend with the
understanding that the friend could use the items in the
Kochs’ absence but that the Kochs might someday want the
items back. They closed all of their bank accounts in the
United States, leaving only a 401k plan that Dane held
from a former employer.
Once in Germany, Dane and Antonia settled in
Eschenbach and Dane obtained a three-year renewable
work permit, the longest permit available. Dane’s contract
with his German employer had no set duration and Dane
did not tell his employer that he planned to stay for a
limited time period. They enrolled Charles in kindergarten,
and Antonia was the primary caretaker for the children.
Dane signed a contract for a savings plan that restricted his
access to his deposits for three years.2
The couple continued to experience marital difficulties
and Dane continued to physically abuse Antonia. Dane’s
abuse caused Antonia to spend one night with a friend and
another in a shelter. In December 2004, Antonia told Dane
2
According to Dane, at the end of the three-year period, the
contract entitled him to remove his money without penalty and
also allowed him to take out a loan for home renovations. Accord-
ing to Antonia, use of the account funds was restricted to the
purchase or renovation of a home in Germany.
4 No. 06-1577
she wanted a divorce. Dane responded by angrily pushing
Antonia onto a bed and choking her in front of the children.
The next day, when Dane went to work, Antonia reported
the incident to the police and took the children to
Taunusstein, her hometown, a three- to four-hour drive
from Eschenbach. Despite this attack, Antonia allowed
Dane to visit the children. On December 17, 2004, Dane
picked up the children for a short visit. Instead of returning
them, however, he took them to the United States. He
called Antonia once he was in the United States and told
her that if she refused to come back to him, he and the
children would remain in the United States. In the mean-
time, Antonia found an apartment in Taunusstein, where
her mother lived, and procured an ex parte order from a
German court awarding her the right to determine where
the children would live.3 On January 21, 2005, Dane
returned to Eschenbach with the children. Antonia took the
children back to Taunusstein where she enrolled them in
kindergarten and cared for them with assistance from her
mother. Charles began to experience emotional problems
and, in March 2005, Antonia sent him to stay with Dane in
Eschenbach in an attempt to resolve these problems.
Because of his work schedule, however, Dane could not take
care of Charles and returned him to Antonia after ten days.
One night in April 2005, Dane called Antonia after
midnight and told her he was en route to Taunusstein to
pick up the children. According to Dane, Antonia told him
it was too late and he could not have the children that
night. Over the next three or four hours, as he drove to
Taunusstein, Dane called Antonia approximately fifty-five
times, making a variety of threats. According to Antonia,
Dane repeatedly threatened to kill her during these calls.
3
Although the order was entered ex parte, Antonia told Dane
that she was seeking this judicial determination, and Dane
was thus aware of the proceedings.
No. 06-1577 5
When Dane arrived at Antonia’s apartment building, she
called the police and they arrested Dane on the sidewalk
outside Antonia’s building. The police seized from Dane a
length of nylon rope he was carrying at the time of his
arrest. The next day, Antonia obtained a restraining order
against Dane, barring him from contacting her. Despite this
order, she continued to allow Dane to visit the children. On
May 5, 2005, Dane picked up the children for a weekend
visit. On May 7, 2005, instead of returning the children as
he had agreed, he again took them to the United States
without Antonia’s knowledge or consent. When Antonia was
unable to contact Dane that weekend, she called the police,
who attempted to prevent Dane from removing the children
from Germany. They arrived at the airport too late to do so.
Dane told neither his employer nor his landlord of his plan
to leave Germany, and directed his family and friends “not
to do Antonia’s work for her” if she sought their assistance
in finding him. He also took Antonia’s address book with
him, which made it difficult for her to contact friends and
family members in the United States and Germany who
might know where Dane was. The next week, Dane sent a
letter of resignation to his employer in care of a friend in
Germany (and asking the friend to deliver it) so that his
employer could not trace his whereabouts.
Antonia immediately contacted the German consulate
in Chicago, which directed her to the National Center for
Missing and Exploited Children (“Center”). She also called
Dane’s mother in Wisconsin, who falsely claimed not to
know the whereabouts of Dane and the children. In Septem-
ber 2005, Antonia discovered that Dane and the children
were in fact living with Dane’s parents in Wisconsin. The
Center referred Antonia to an attorney and she promptly
initiated this federal action to return the children to
Germany. Also in September 2005, Dane obtained an ex
parte order from a Wisconsin state court awarding him
temporary custody of the children. In his affidavit to the
6 No. 06-1577
Wisconsin court, Dane falsely told the court that he did not
know where Antonia was or how to get in touch with her,
even though he admittedly knew exactly where she was,
having visited her and called her at her apartment in
Taunusstein many times. He also failed to tell the Wiscon-
sin court that he had removed the children from Germany
without Antonia’s knowledge or consent.
Prior to their separation in Germany, Dane and Antonia
had accumulated nowhere near the $20,000 they planned to
save before returning to the United States. By Dane’s own
account of the couple’s finances, after three years in
Germany, the couple had $4,500 in a savings account. At
the time he departed to the United States, Dane also had
$3,000 from his regular paycheck. He owned a used Jeep
with 120,000 kilometers on it that he purchased for 1,100
Euros and which he inexplicably hoped to sell for 14,000
Euros. Before Dane’s December 2004 attack on Antonia, the
couple had no plans to return to the United States in the
foreseeable future and Dane had not achieved his goal of
obtaining a management position to enhance his resume. At
the time of their separation, other than the three-year stay
in Wisconsin, Antonia had lived in Germany for her entire
life. With the exception of that same three-year period, at
the time of the separation, Dane had lived his entire adult
life in Germany.
Antonia filed the present action under the Convention
and ICARA in the federal district court for the Eastern
District of Wisconsin, asking the court to return the chil-
dren to Germany so that the parties could litigate custody
issues in that forum. The district court noted that the
principal issue under the Convention and ICARA was
whether Dane had removed the children from Germany
wrongfully. That question turned on the “habitual resi-
dence” of the children at the time they were removed.
Because this circuit has not yet decided the standards for
determining habitual residence, a term that is undefined in
No. 06-1577 7
the Convention, the court surveyed our sister circuits and
also some international decisions. Many of the courts
treated the inquiry as purely factual until the Ninth Circuit
decided the case of Mozes v. Mozes, 239 F.3d 1067 (9th Cir.
2001). Following Mozes, most of the circuit courts adopted
the Ninth Circuit’s analysis, which required the court to
determine whether the parents intended to abandon their
previous habitual residence, judging that intent at the last
time the parents had a shared intent. That shared intent,
under the Ninth Circuit’s approach, could be overcome if the
child had become acclimatized to the new place. The district
court initially disavowed the Ninth Circuit’s approach,
finding it inconsistent with the intent of the drafters of the
Convention and with the jurisprudence of the other signato-
ries. Applying a purely fact-based approach, the court found
that the most important factors in determining habitual
residence were geography and duration. Charles and
Annalena had lived in Germany for more than three years,
which constituted the near entirety of Annalena’s life and
well over half of Charles’ life. The court found that in light
of this duration, the parents’ long-term plans regarding
residence were largely irrelevant:
Moreover, Dane, Antonia and the children were not
in Germany on a visit nor was this a situation where
one parent remained behind. Rather, the family moved
to Germany as a family because Dane found work there.
They took all of their belongings with them except for a
few large items and established a home and a life in
Germany. Dane worked, Antonia cared for the children
and Charles attended school. Further, Dane and
Antonia were not strangers to Germany, both having
lived there for most of their adult lives. Thus, there can
be little doubt that Charles and Annalena became
habitual residents of Germany.
Koch v. Koch, 416 F. Supp. 2d 645, 652-53 (E.D. Wis. 2006).
The court further noted that finding the children to be
8 No. 06-1577
habitual residents of Germany best served the underlying
policy of the Convention, “to prevent the unilateral removal
of children by one parent and to identify the place where
the children are settled and where recent information about
the quality of family life is available.” Koch, 416 F. Supp. 2d
at 653.
In the alternative, the court found that, even using the
standards set forth in Mozes, Dane and Antonia had
intended to abandon their habitual residence in the United
States. The court based this finding on, among other things,
the fact that the couple had lived in Germany for three
years, that prior to their separation they had made no plans
to return to the United States anytime soon, and that they
had accumulated nowhere near the $20,000 that they
needed to save before returning to the United States. The
court found that, having abandoned the United States as
their habitual residence, Germany was the habitual
residence of the children at the time they were removed.
The court therefore ordered Dane to return the children to
Germany on or before March 1, 2006, and further ordered
that Dane pay the fees and costs incurred in connection
with Antonia’s petition, including legal fees, court costs and
transportation costs. Dane moved for a stay of this judg-
ment in the district court, which the district court promptly
denied. In denying the stay, the district court found that
“the facts weigh so heavily against him Dane is unlikely to
win [an appeal] under any approach.” Koch v. Koch, No. 05
C 1158 (E.D. Wis. filed Feb. 27, 2006). Dane then filed his
appeal in this court, and again moved for a stay. We
granted a stay pending the resolution of the appeal, and
ordered expedited briefing, in keeping with the intent of the
Convention to provide prompt resolution to these disputes.
We turn now to Dane’s appeal.
No. 06-1577 9
II.
This case turns on the determination of the children’s
habitual residence, a term that is undefined in the Con-
vention. If the habitual residence of the children at the time
of their removal was the United States, then Dane’s
removal of the children to the United States would not be
considered wrongful under the Convention. If, however, as
the district court found, the children habitually resided
in Germany at the time of their removal, then the children
must promptly be returned to Germany so that an appropri-
ate court of law there may determine the parties’ respective
custody and access rights. In his appeal, Dane argues that
habitual residence is to be determined by focusing on the
parents’ last shared intent and, to a lesser degree, on
evidence of the children’s acclimatization to their surround-
ings. According to Dane, when this standard is applied, it is
clear that the children were habitual residents of the
United States on the date he removed them from Germany.
Moreover, Dane argues, the children were not so acclima-
tized to Germany that Germany became their habitual
residence contrary to their parents’ intent. Dane complains
that the district court applied the wrong legal standard, but
maintains that we may simply reverse and remand with
instructions to dismiss the petition rather than remand for
application of the proper standard. Dane insists that a
proper application of the law to the facts requires a conclu-
sion that the children were habitual residents of the United
States. Antonia argues on appeal that, under any standard,
it is clear that the children were habitual residents of
Germany at the time of their removal and that we may
affirm outright.
A.
Because this is an issue of first impression in our cir-
cuit, we must begin by addressing the appropriate standard
10 No. 06-1577
of review. On this matter, our sister circuits are largely in
agreement. They review the district court’s findings of fact
for clear error and review the court’s application of the law
to those facts as well as its interpretation of the Convention
de novo. See Karkkainen v. Kovalchuk, 445 F.3d 280, 291
(11th Cir. 2006); In re Adan, 437 F.3d 381, 390 (3d Cir.
2006); Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir.
2004); Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.
2003), cert. denied, 540 U.S. 1107 (2004); Shealy v. Shealy,
295 F.3d 1117, 1121 (10th Cir.), cert. denied, 537 U.S. 1048(2002); Miller v. Miller, 240 F.3d 392, 399 (4th Cir. 2001);
Mozes, 239 F.3d at 1072; Blondin v. Dubois, 238 F.3d 153,
158 (2d Cir. 2001); Friedrich v. Friedrich, 78 F.3d 1060,
1064 (6th Cir. 1996). Seeing no reason to depart from the
considered approach of our sister circuits, we too will apply
this standard of review. To be clear, determinations of
intent involve questions of fact and we will defer to the
district court’s findings on intent unless they are clearly
erroneous. The ultimate determination of habitual resi-
dence is a mixed question of law and fact to which we will
apply de novo review. This approach is consistent with all
of the courts we have cited. See, e.g., Mozes, 239 F.3d at
1075-76 (“Whether there is a settled intention to abandon
a prior habitual residence is a question of fact as to which
we defer to the district court.”); Gitter v. Gitter, 396 F.3d
124, 133 (2d Cir. 2005) (the intention of the parents is a
question of fact in which the findings of the district court
are entitled to deference). Dane contests both the district
court’s factual findings as to intent as well as the district
court’s application of the law to the facts.
B.
Both the United States and Germany are signatories to
the Convention, which aims to prevent “the use of force to
establish artificial jurisdictional links on an international
No. 06-1577 11
level, with a view to obtaining custody of a child.” Elisa
Perez-Vera, Explanatory Report, ¶ 11, 3 Hague Conference
on Private International Law, Acts and Documents of the
Fourteenth Session, Child Abduction 426 (1982) (hereafter
“Perez-Vera Report”).4 The preamble to the Convention
specifies that the signatories desire “to protect children
internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure
their prompt return to the State of their habitual resi-
dence[.]” Convention, Preamble. The objects of the Con-
vention are:
a. to secure the prompt return of children wrongfully
removed to or retained in any Contracting State; and;
b. to ensure that rights of custody and of access under
the law of one Contracting State are effectively re-
spected in the other Contracting States.
Convention, Article 1. See also Holder, 392 F.3d at 1013(the primary object of the Convention is to secure the
prompt return of children wrongfully removed to or retained
in a Contracting State so as to deprive parties of any
tactical advantage gained by absconding with a child to a
more favorable forum); Ruiz v. Tenorio, 392 F.3d 1247,
1250-51 (11th Cir. 2004) (the purpose of the Convention is
4
Professor Elisa Perez-Vera was the official Hague Conference
reporter. “Her explanatory report is recognized by the Conference
as the official history and commentary on the Convention and is
a source of background on the meaning of the provisions of the
Convention available to all States becoming parties to it.” Hague
International Child Abduction Convention; Text and Legal
Analysis, 51 Fed. Reg. 10494, 10503 (1986). Many of our sister
circuits treat the Perez-Vera Report as an authoritative source for
interpreting the Convention’s provisions. See, e.g., Gitter, 396 F.3d
at 129 n.4; Mozes, 239 F.3d at 1069 n.3. The full text of the Perez-
Vera Report is available on the Internet at
www.hiltonhouse.com/articles/Perez_rpt.txt.
12 No. 06-1577
to secure the return of wrongfully removed children and to
ensure that rights of custody and access under the law of
Contracting States are respected in the other Contracting
States); Silverman, 338 F.3d at 897 (same). ICARA, the
federal statute implementing the Convention, entitles a
person whose child has been abducted to the United States
to petition in federal court for the return of the child. 42
U.S.C. § 11603(b); Van De Sande v. Van De Sande, 431 F.3d
567, 568 (7th Cir. 2005). An action under the Convention
and ICARA is not an action to determine the merits of
custody rights. Convention, Article 19 (“A decision under
this Convention concerning the return of the child shall not
be taken to be a determination on the merits of any custody
issue.”); Perez-Vera Report, ¶¶ 9, 19; Ruiz, 392 F.3d at 1250(the court’s inquiry under the Convention and ICARA is
limited to the merits of the abduction claim and not the
merits of the underlying custody battle). The court’s task is
to simply determine which country is the proper forum for
that custody determination.
The Perez-Vera Report explains the common elements
present in all wrongful removal cases: first, when a child is
wrongfully removed, the “child is taken out of the family
and social environment in which its life has developed.”
Perez-Vera Report, ¶12.5 Second, the person who removes
the child hopes to obtain a right of custody from the author-
ities of the country to which the child has been taken.
Perez-Vera Report, ¶ 13. As Perez-Vera notes, the abductor
typically hopes to gain an advantage by choosing a forum
that he or she regards as more favorable to his or her claim.
Perez-Vera Report, ¶ 14. The Convention seeks to discour-
age forum shopping in this manner by depriving the abduc-
5
These comments apply to wrongful retentions as well as
wrongful removals. Because we are addressing here a wrongful
removal, for ease of understanding, we will focus our remarks
on removal cases.
No. 06-1577 13
tor’s actions of any practical or jurisdictional consequences.
Perez-Vera Report, ¶ 16. “The Convention, in order to bring
this about, places at the head of its objectives the restora-
tion of the status quo, by means of prompt return of chil-
dren wrongfully removed to . . . any Contracting State.”
Perez-Vera Report, ¶ 16; Ruiz, 392 F.3d at 1250 (the
Convention is intended as a rapid remedy for the left-
behind parent to return to the status quo before the wrong-
ful removal or retention). If the Convention is applied, in
most cases the final decision on custody will be made by the
authorities of the child’s habitual residence prior to its
wrongful removal. Perez-Vera Report, ¶ 16.6
A removal is considered 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.
Convention, Article 3. The only element in this formulation
that is under dispute in the instant case is the place of the
children’s habitual residence prior to their removal from
Germany in May 2005. The Convention does not define the
term habitual residence. In the legislation implementing
the Convention, Congress recognized “the need for uniform
international interpretation of the Convention” but did not
attempt to define the term. 42 U.S.C. § 11601(b)(3)(B).
6
There are certain defenses, not at issue here, that might result
in a district court declining to return a child to its habitual
residence. For example, if a child faces a “grave risk of harm” in
the place where it habitually resides, the court may decline to
return the child to that place. 42 U.S.C. § 11603(e)(2)(A).
14 No. 06-1577
Perez-Vera described the notion of habitual residence as “a
well-established concept in the Hague Conference, which
regards it as a question of pure fact, differing in that
respect from domicile.” Perez-Vera Report, ¶ 66.7 “[T]he
Hague Conference wished to avoid linking the determina-
tion of which country should exercise jurisdiction over a
custody dispute to the idiosyncratic legal definitions of
domicile and nationality of the forum where the child
happens to have been removed. This would obviously
undermine uniform application of the Convention and
encourage forum-shopping by would-be abductors.” Mozes,
239 F.3d at 1071. Thus, courts are instructed to “interpret
the expression ‘habitual residence’ according to ‘the ordi-
nary and natural meaning of the two words it contains[, as]
a question of fact to be decided by reference to all the
circumstances of any particular case.’ ” Mozes, 239 F.3d at
1071 (quoting C v. S., 2 All. E. R. 961, 965 (Eng. H.L.
1990)); Ruiz, 392 F.3d at 1252 (same); Holder, 392 F.3d at
1015 (same).
The Mozes court intended that the means for determining
habitual residence should provide consistency and predict-
ability in the result. 239 F.3d at 1072. Considering English
law, the Mozes court noted that one way to determine
habitual residence would be to observe behavior, an ap-
proach that the court believed suffered from the flaw of
yielding differing results depending on the observer’s time
frame. 239 F.3d at 1073-74. The court therefore rejected an
approach based purely on observation of behavior and
turned instead to an assessment of intent:
[T]he first step toward acquiring a new habitual resi-
dence is forming a settled intention to abandon the one
7
In the United States, domicile is a person’s legal home, the
“permanent residence of a person or the place to which he [or she]
intends to return even though he [or she] may actually reside
elsewhere.” Black’s Law Dictionary 484 (6th Ed. 1990).
No. 06-1577 15
left behind. Otherwise, one is not habitually residing;
one is away for a temporary absence of long or short
duration. Of course, one need not have this settled
intention at the moment of departure; it could coalesce
during the course of a stay abroad originally intended
to be temporary. Nor need the intention be expressly
declared, if it is manifest from one’s actions; indeed,
one’s actions may belie any declaration that
no abandonment was intended. If you’ve lived con-
tinuously in the same place for several years on end, for
example, we would be hard-pressed to conclude that you
had not abandoned any prior habitual residence. On the
other hand, one may effectively abandon a prior habit-
ual residence without intending to occupy the next one
for more than a limited period. Whether there is a
settled intention to abandon a prior habitual residence
is a question of fact as to which we defer to the district
court.
Mozes, 239 F.3d at 1075-76 (footnotes omitted). In the
case of young children, the court found it most prudent to
focus on the intent of the parents rather than the intent
of the child in determining the child’s habitual residence.
239 F.3d at 1076.
Often, by the time one parent has filed an action under
the Convention for the return of a child, the parents no
longer share an intent on the child’s habitual residence.
Because of this complication, the Mozes court acknowledged
that the representations of the parties likely cannot be
accepted at face value, and the court should determine
“from all available evidence whether the parent petition-
ing for return of a child has already agreed to the child’s
taking up habitual residence where it is.” 239 F.3d at 1076.
The court included at one end of the spectrum families
which jointly take all the steps associated with abandoning
habitual residence in one country to take it up in another;
in such a case, courts would generally be unwilling to let
16 No. 06-1577
one parent’s reservations about the move stand in the way
of finding a shared and settled purpose. 239 F.3d at 1076-
77. At the other end of the spectrum are cases where the
child’s initial move from an established residence was
clearly intended to be of a specific, delimited period; in
these cases, courts have generally refused to allow the
changed intentions of one parent to alter the habitual
residence. 239 F.3d at 1077. In the middle are the cases
where the petitioning parent earlier consented to let the
child stay abroad for some period of ambiguous duration. In
these cases, the circumstances surrounding the child’s stay
may sometimes suggest that, despite the lack of perfect
consensus, the parents intended the stay to be indefinite,
leading to an abandonment of the prior habitual residence.
In other cases, the circumstances might suggest that there
was no settled mutual intent to abandon the prior habitual
residence. 239 F.3d at 1077. “Clearly, this is one of those
questions of ‘historical and narrative facts’ in which the
findings of the district court are entitled to great deference.”
Mozes, 239 F.3d at 1077-78 (citing Feder v. Evans-Feder, 63
F.3d 217, 222 n.2 (3d Cir. 1995)).
The Mozes court allowed for circumstances in which,
although the parents shared a settled intention on the
habitual residence of a child, the child nonetheless became
acclimatized to the new environment to such a degree that
the child became a habitual resident of the new country
despite the parents’ shared intentions. 239 F.3d at 1078-79.
Mozes noted that some courts consider whether the child is
doing well in school, has friends, has family and social
contacts in the new environment, and so forth, as a more
straightforward and objective inquiry than whether the
parents shared a settled intent. Nonetheless, the
court concluded that, in the absence of settled parental
intent, “courts should be slow to infer from such contacts
that an earlier habitual residence has been abandoned.” 239
F.3d at 1079. See also Gitter, 396 F.3d at 133 (to determine
No. 06-1577 17
habitual residence, the court should look first to the par-
ents’ last shared intention but should also consider whether
the evidence points unequivocally to the conclusion that the
child has become acclimatized to its new surroundings).
Although virtually every circuit court to consider the
issue of habitual residence since Mozes has adopted some
variation of its approach, the district court found the Mozes
framework inconsistent with the intent of the drafters of
the Convention and with the jurisprudence of the other
signatories. Koch, 416 F. Supp. 2d at 651. In particular the
district court objected to Mozes’ assertion that the starting
point of the habitual residence analysis is whether the
parents intended to abandon the previous residence. Setting
such a rule represented to the district court a departure
from the purely fact-based inquiry followed by many courts
around the world. The district court also opined that Mozes
unnecessarily departed from the view that a joint intent by
the parents to move plus some settled purpose was enough
to change a child’s habitual residence. The Mozes rule had
the unfortunate effect, according to the district court, of
making seemingly easy cases hard, and sometimes leading
to questionable results. The court decided instead to apply
a fact-based objective or behavioral approach, beginning
“with the facts on the ground, most importantly those of
geography and duration.” Koch, 416 F. Supp. 2d at 652. As
we noted above, the court then found that the children lived
in Germany for more than three years, a relatively long
time. The court noted that this was not simply a visit to
Germany nor a situation where one parent remained
behind. Rather, the entire family moved to Germany
because that is where Dane found work. They took all of
their possessions except for a few large items and estab-
lished a home and life in Germany where Dane worked,
Antonia cared for the children, and the children attended
school. The district court noted that Dane and Antonia were
not strangers to Germany; both had spent nearly their
18 No. 06-1577
entire adult lives there. Based on these facts, the court
found there was no doubt that Germany was the habitual
residence of the children at the time Dane removed them.
The court found that this result best served the policy of the
Convention to prevent unilateral removal of children by one
parent and to identify the place where the children are
settled and where recent information about their family life
is most available. Koch, 416 F. Supp. 2d at 652-53. The
court found in the alternative that, under the Mozes
standard, Dane and Antonia intended to abandon their
habitual residence in the United States. Koch, 416 F. Supp.
2d at 653. The court cited Mozes for the proposition that
where a family has lived in one place for several years on
end, “we would be hard-pressed to conclude that you had
not abandoned any prior habitual residence.” Koch, 416 F.
Supp. 2d at 653 (quoting Mozes, 239 F.3d at 1075). Further
applying Mozes, the court noted that, prior to their separa-
tion, Dane and Antonia had made no plans to return to the
United States in the near future and had accumulated
nowhere near the $20,000 they planned to save before
returning. Koch, 416 F. Supp. 2d at 653. The court con-
cluded from these facts that at the time Dane removed the
children from Germany, Charles and Annalena were
habitual residents of Germany.
C.
The district court reluctantly used Mozes in the alterna-
tive, but we see no reason to disavow the Mozes approach
and believe it is far more flexible than the district court
inferred. Mozes asks the court to determine first whether
the parents shared an intent to abandon the prior habitual
residence, in this case, the United States. In determining
the parents’ intent, the court should look at actions as
well as declarations. Gitter, 396 F.3d at 134. When Dane
and Antonia moved to Germany, they shared a settled
No. 06-1577 19
intention to move there for an indeterminate period of time,
delimited by their financial circumstances and by Dane’s
employment goals. Although they also shared a subjective
wish to someday return to the United States, habitual
residence is not determined “by wishful thinking alone.”
Mozes, 239 F.3d at 1078. The establishment of a habitual
residence requires an actual change in geography, as well
as the passage of an appreciable amount of time. Mozes, 239
F.3d at 1078. “When the child moves to a new country
accompanied by both parents, who take steps to set up a
regular household together, the period need not be long.” Id.Following Mozes, most of our sister circuits focused on the
parents’ last shared intent in determining habitual resi-
dence. See, e.g., Gitter, 396 F.3d at 131-33 (finding the
Mozes opinion “particularly instructive” in determining
habitual residence by considering the intentions of the
parents as of the last time their intentions were shared);
Ruiz, 392 F.3d at 1252-55 (agreeing with Mozes that the
settled intention of the parents is a “crucial factor” in
determining habitual residence); Whiting v. Krassner, 391
F.3d 540, 548-550 (3d Cir. 2004), cert. denied, 125 S.Ct.
2938 (2005) (agreeing in part with Mozes that the parents’
shared intent determines whether a prior habitual resi-
dence has been abandoned and a new one formed);
Silverman, 338 F.3d at 899 (citing Mozes in support of using
the parents’ shared intent to determine habitual residence).
Dane encourages us to assume that the couple’s shared
intent to someday return to the United States is therefore
determinative on the issue of habitual residence here. But
shared intent to someday return to a prior place of resi-
dence does not answer the primary question of whether that
residence was effectively abandoned and a new residence
established by the shared actions and intent of the parents
coupled with the passage of time. See Whiting, 391 F.3d at
550; Gitter, 396 F.3d at 134.
In Whiting, the parents of an infant agreed that their
child would reside with the mother in Canada for a period
20 No. 06-1577
of two years and then would return to the United States
depending on certain conditions. 391 F.3d at 549. The court
found that the fact that the mother and child were to return
to the United States subject to certain conditions did not in
any way diminish the parents’ settled intention that the two
were to remain in Canada for at least two years. The court
characterized this as an intent to abandon the United
States for a definite and extended period in the life of the
infant. Together with a settled purpose, this agreement
shifted the habitual residence of the child to Canada:
[T]he fact that the agreed-upon stay was of a limited
duration in no way hinders the finding of a change in
habitual residence. . . . Rather . . . the parties’ settled
purpose in moving may be for a limited period of time.
Logic does not prevent us from finding that the shared
intent of parents to move their eighteen-month old
daughter to Canada for two years could result in the
abandonment of the daughter’s prior place of habitual
residence. Put more succinctly, in our view, the intent
to abandon need not be forever; rather, intent to aban-
don a former place of residency of a one year old child
for at least two years certainly can effectuate an aban-
donment of that former habitual residence.
Whiting, 391 F.3d at 550 (citations omitted). There is no
meaningful difference between the situation presented in
Whiting and the facts of the instant case.
Mozes does not require courts to ignore reality. Because
the parents both hoped to someday return to the United
States, the district court apparently assumed that under
Mozes this shared hope would conclusively determine that
there was no shared intent to abandon the United States as
the children’s habitual residence. But Mozes was not
so rigid, instead reflecting the realities of children’s and
family’s lives despite the parent’s hopes for the future. In
applying the Mozes framework in a subsequent case, the
No. 06-1577 21
Ninth Circuit stated that it was “keenly aware of the
flexible, fact-specific nature of the habitual residence
inquiry envisioned by the Convention.” Holder, 392 F.3d
at 1015. The Holder court emphasized that “courts must
consider the unique circumstances of each case when
inquiring into a child’s habitual residence.” 392 F.3d at
1016. See also Adan, 437 F.3d at 392 (the determination of
habitual residence is not formulaic; rather it is a fact-
intensive determination that varies with the circumstances
of each case); Miller, 240 F.3d at 400 (same). At the moment
of departure and for some period thereafter, Dane and
Antonia shared an intent, perhaps better described as a
hope, to return someday to the United States. But this hope
must be viewed in light of what the family actually did and
the larger scope of what the parents intended. Dane and
Antonia intended to move their family to Germany for an
indeterminate period that they predicted would last any-
where from two to ten years. They took nearly all their
possessions with them, leaving no home to which to return
in the United States. They closed their bank accounts in the
United States. They set up a new home in Germany,
including an employment contract of indefinite duration for
Dane and schooling for the children. They opened a savings
plan in Germany and developed a social life for themselves
and their children. As time passed, they failed to meet their
financial and employment goals. At the rate they were
saving, they would have been in Germany for approximately
ten more years before they saved $20,000.8 They failed to
8
At the time Dane removed the children from Germany, the
couple had $4,500 in a savings account after three years in
Germany. That means the couple was saving approximately
$1,500 per year. We do not include in the savings figure the
$3,000 paycheck Dane took to the United States, as this was not
part of the couple’s savings. We also do not include the used
Jeep for which Dane paid 1,100 Euros as there was no evidence
(continued...)
22 No. 06-1577
make any plans to return. There is no evidence that Dane
was looking for work in the United States; nor is there
evidence that the couple sought legal status for Antonia, a
German citizen, to live in the United States. See Ruiz, 392
F.3d at 1255 (failure of couple to seek legal status or
citizenship for non-citizen parent is a factor to consider in
determining intent to establish habitual residence). See also
Silverman, 338 F.3d at 898-99 (in determining the degree
of settled purpose from the children’s perspective, the court
should consider a family’s change in geography along with
personal possessions, the passage of time, the family
abandoning its prior residence, the children’s enrollment in
school, and both parents’ intentions at the time of the move,
among other factors); Holder, 392 F.3d at 1018 (collecting
cases where a change in habitual residence was evidenced
by sale of a family home and shipment of family possessions
to a new location). Their joint actions over those three years
clearly demonstrated that the move to Germany was of a
settled nature, indicating an intent to abandon the United
States as a habitual residence and set up a new habitual
residence in Germany. See Silverman, 338 F.3d at 898(habitual residence must encompass some form of settled
purpose but the settled purpose need not be to stay in the
new location forever; rather the family must have a suffi-
cient degree of continuity to be described as settled). As the
Mozes court noted, one need not have a settled intention at
the moment of departure; the intention may coalesce during
the course of a stay abroad originally intended to be
temporary. 239 F.3d at 1075. As in Whiting, Dane and
Antonia agreed that their infant children would move to
Germany for an indefinite, extended period of time for a
settled purpose, and would return when certain conditions
8
(...continued)
that this car was appreciating in value or was part of the
couple’s savings.
No. 06-1577 23
were met. At the time Dane removed the children from
Germany, those financial and employment conditions had
not yet been met and thus the settled purpose of the move
was still in force.
As Mozes stated, “[h]abitual 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.” 239 F.3d at 1081 (emphasis on original). Dane’s
counsel conceded at oral argument that after some period of
time in the new environment, the habitual residence of the
children will change regardless of the parents’ hopes to
someday return to the prior residence. That is what hap-
pened here, and the fact-findings of the district court
support that conclusion. A description of the factual state of
affairs can lead to only one conclusion here: as the district
court found, the children’s habitual residence was in
Germany. The “objective facts point unequivocally” to the
children’s “ordinary or habitual residence being in” Ger-
many. Mozes, 239 F.3d at 1081 (citing Zenel v. Haddow,
1993 S.L.T. 975, 979 (Scot. 1st Div.)). The question, as
Mozes determined, is “whether we can say with confidence
that the child’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 child
‘out of the family and social environment in which its life
has developed.’ ” Mozes, 239 F.3d at 1081 (quoting Perez-
Vera Report, ¶ 11). In Annalena’s case, this should be self-
evident. Before her father removed her to the United States,
Annalena had lived in the United States for 11 days of her
three-year life. Charles had lived in the United States for
the first two years of his five-year life. Removal to the
United States at that time was tantamount to taking the
children out of the family and social environment in which
their lives had developed. See Feder, 63 F.3d at 224 (habit-
ual residence of a four-year old changed after six months
when parents moved to new location intending to stay “for
24 No. 06-1577
at the very least the foreseeable future”). Mozes reminds us
too that although residing habitually in a place means that
a person has, in some sense, settled there, “it need not
mean that’s where you plan to leave your bones.” 239 F.3d
at 1074. Although we should be slow to infer in the absence
of shared parental intent that children have changed their
habitual residence through acclimatization, Mozes, 239 F.3d
at 1079, a person “may effectively abandon a prior habitual
residence without intending to occupy the next one for more
than a limited period. Whether there is a settled intention
to abandon a prior habitual residence is a question of fact
as to which we defer to the district court.” Mozes, 239 F.3d
at 1075-76 (footnotes omitted). See also Feder, 63 F.3d at
224 (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; the determina-
tion of whether a particular place satisfies the standard
must focus on the child and consist of an analysis of the
child’s circumstances in that place and the parents’ present
shared intentions regarding their child’s presence in that
place). In light of all of the facts, we see no reason to disturb
the district court’s finding that Dane and Antonia shared a
settled intention to abandon the United States as their
habitual residence and take up Germany as their new
habitual residence.
The Mozes court wanted parents to be able to predict
the circumstances that will lead to a change in their chil-
dren’s habitual residence so that they may make intelligent
and informed decisions about their children. 239 F.3d at
1072. For example, the court wanted parents to be able to
predict the legal effect of traveling with a child to attempt
a reconciliation with an estranged spouse or of consenting
to a child’s trip abroad to stay with relatives. Id. Our
application of Mozes today falls well within those goals. As
Mozes itself noted:
No. 06-1577 25
It is entirely natural and foreseeable that, if a child
goes to live with a parent in that parent’s native land
on an open-ended basis, the child will soon begin to lose
its habitual ties to any prior residence. A parent who
agrees to such an arrangement without any
clear limitations may well be held to have accepted this
eventuality.
Mozes, 239 F.3d at 1082. See also Mozes, 239 F.3d at 1081(“the agreement between the parents and the circumstances
surrounding it must enable the court to infer a shared
intent to abandon the previous habitual residence, such as
when there is effective agreement on a stay of indefinite
duration.”) (emphasis added). Such is the case here where
the children went to live with both parents in a country that
was the mother’s native land and the father’s chosen
residence for most of his adult life. The move was on an
open-ended basis, tied to financial and employment goals,
without any clear limitations. It should come as no surprise
to Dane that settling his family in Germany for at least
three and as many as ten or more years resulted in Ger-
many becoming the habitual residence of his children. As
Mozes aptly stated, a settled intention to abandon a prior
habitual residence need not be expressly declared “if it is
manifest from one’s actions; indeed one’s actions may belie
any declaration that no abandonment was intended.” 239
F.3d at 1075. In this case, Dane and Antonia’s actions
undoubtedly manifested a shared intent to remain in
Germany for the foreseeable future.
As the district court noted, this conclusion also supports
the goals of the Convention to return the parties to the
status quo and discourage any would-be abductors from
engaging in forum-shopping. See 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.”). Virtually all of the evidence relevant to the
26 No. 06-1577
custody dispute, virtually all of the evidence about the
children’s lives as of May 2005, is in Germany. Dane
appears to have been seeking a friendlier forum to deter-
mine custody when he unilaterally removed the children
from the place where they had lived in a settled fashion for
three years. Indeed, Dane was facing criminal charges
in Germany related to his attack on Antonia.9 Dane has not
contested on appeal the district court’s finding that he in
fact attacked Antonia and choked her in front of the
children, and that this was one of many physical attacks
perpetrated by Dane against Antonia during their time
in Germany. Rather Dane argues that these facts are
irrelevant to our determination of the children’s habitual
residence and are instead related to the merits of the
custody dispute, merits we may not address. At least one
other court has found that the physical abuse of one spouse
by another is a relevant factor in the court’s determina-
tion of the existence of shared intent to make a place the
family’s habitual residence. Tsarbopoulos v. Tsarbopoulos,
176 F. Supp. 2d 1045, 1056 (E.D. Wash. 2001). Dane’s
physical attacks against Antonia certainly gave him an
incentive to seek a friendlier forum for custody, in contra-
vention of the goals of the Convention and ICARA. And
these physical attacks on Antonia, of course, would be
relevant to certain defenses to allowing the children to
remain in the United States even if that was their habitual
residence at the time of their removal from Germany. See
Note 5, supra. We are mindful that spouse abusers some-
times abuse the children as well, and that choking the
mother in view of the children can itself be considered a
form of child abuse. Van De Sande, 431 F.3d at 570 (father’s
threat to children could not be dismissed in light of gross
9
Antonia’s counsel indicated at oral argument in response to
our question that there are still charges pending against Dane
in Germany.
No. 06-1577 27
disregard of children’s welfare displayed by beating and
verbally abusing wife in the presence of the children). Thus
physical attacks have some relevance in some situations to
determining habitual residence issues, but we need not
address those issues any further here because Antonia has
not relied on them. We affirm the district court’s finding
that Germany was the habitual residence of Charles and
Annalena at the time of their removal to the United States.
III.
We affirm the district court’s judgment for the reasons we
have stated above. The district court ordered that the
children be returned to Germany by March 1, 2006. We
stayed that order pending the appeal and that date has now
passed. In order to return the children expeditiously to their
habitual residence, we lift our stay and order that the
children be returned to Germany as soon as is practicable
but no later than seven days from the entry of this opinion.
We also affirm the district court’s order that Dane pay the
fees and costs that Antonia incurred in connection with the
petition, including but not limited to legal fees, court costs
and transportation costs, including transportation costs
related to the return of the children. 42 U.S.C.
§ 11607(b)(3). The mandate shall issue forthwith.
AFFIRMED.
28 No. 06-1577
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-21-06