Robert H. Silverman v. Julie H. Silverman ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-2496
___________
Robert Hechter Silverman, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Julie Hechter Silverman, *
*
Appellee. *
___________
Submitted: April 16, 2003
Filed: August 5, 2003
___________
Before LOKEN, Chief Judge, HEANEY, McMILLIAN, BOWMAN, WOLLMAN,
BEAM, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY,
MELLOY, SMITH, Circuit Judges.1
___________
BEAM, Circuit Judge, with whom LOKEN, Chief Judge, BOWMAN, WOLLMAN,
MORRIS SHEPPARD ARNOLD, RILEY and SMITH, Circuit Judges, join.
1
Circuit Judges Murphy and McMillian were not present at oral arguments and
participated in this decision utilizing the parties' briefs and a tape recording of the
oral arguments. Circuit Judge Heaney participated via telephone.
Robert Silverman (Robert) appeals the district court's rulings on his claim
under the Hague Convention on the Civil Aspects of International Child Abduction
(Hague Convention), 19 I.L.M. 1501 (1980), as implemented by the United States in
the International Child Abduction Remedies Act, 42 U.S.C. § 11601-11610 (ICARA).
Because we find that the children's habitual residence was Israel at the time of their
removal and that there is no grave risk of harm to the children if they are returned to
Israel, we reverse the district court.
I. BACKGROUND
According to the facts found by the district court, Robert Silverman and Julie
Hechter (Julie) met in Israel in 1988 and married in Seattle, Washington, in 1989.
They moved throughout the United States and had two children, Sam and Jacob.2 The
family lived in Plymouth, Minnesota, until their move to Israel in late July of 1999.3
Both Robert and Julie testified in the district court that the move to Israel was Julie's
idea and that she was the one pushing for the family to make the move. They sold
their Minnesota home in January of 1999, Robert applied for and made Aliyah
(immigration) to Israel,4 and the family moved all of their possessions and their
family pets to Israel. While both Robert and Julie set the move up to be permanent,
Julie stated in the district court that she was torn about the move, but went ahead with
it as a final effort to reconcile the couple's failing marriage.5
2
Sam was born on March 2, 1992, and Jacob was born on July 5, 1995.
3
In the months leading up to the move, Robert worked and lived in Wisconsin,
while Julie and the children remained in Minnesota.
4
Julie had already made Aliyah in 1987.
5
Julie testified that she was "torn," not because she did not want to go to Israel,
but because she was not sure she wanted to stay in her marriage.
-2-
Both Robert and Julie obtained employment in Israel. The family lived with
relatives in Israel until November 1999, when they rented an apartment and signed
a one-year lease. In October 1999, Julie flew to the United States to file for
bankruptcy in Minnesota. Julie returned to Israel later that month to discover that
Robert had obtained a Tzav Ikuv (restraining order), which prevented her from
leaving Israel, and that he had put the children's passports and birth certificates in his
father's safe deposit box. Robert told her at this point that he knew about the affair
she had been having with a man from Massachusetts. Robert cancelled the
restraining order on November 3, 1999, after they decided to try to reconcile their
marriage. Robert testified in the district court that he would not have allowed Julie
to leave Israel with the children at any point between October 1999 and June 2000.
During this time, Julie stated that Robert threatened her, used force against her and
attempted to coerce her.6 In January 2000, Julie and Robert returned to Minnesota
without the children to complete bankruptcy proceedings and they both stated, under
oath, that their permanent address was Plymouth, Minnesota. Both of them
subsequently returned to Israel. In April 2000, Robert and Julie signed and filed a
joint United States income tax form for 1999, which listed their address as Plymouth,
Minnesota.
While in Israel, Sam enrolled in an elementary school and Jacob enrolled in
preschool. They made friends, learned to speak Hebrew and did well in school. Sam
participated in extracurricular activities at his school. During this time, Julie
counseled with an Israeli attorney and was told she would probably not get custody
of the children through the Israeli Rabbinical court if she separated from Robert in
6
The district court did not find, and Julie does not allege, that Robert committed
any violence against the children. While we do not find it necessary to overturn the
factual finding by the district court that there was physical violence against Julie by
Robert, we do find it prudent to note that Julie also engaged in physical violence
towards Robert.
-3-
Israel.7 Robert found out about this discussion and filed for divorce in Rabbinical
court. He later cancelled this proceeding.
At the end of June 2000, Robert allowed Julie to leave Israel with the two
children for what she represented would be a summer trip to the United States. She
purchased round-trip tickets with the return trip scheduled for August 30, 2000. At
the airport before their departure, Robert threatened Julie, apparently because of his
continuing concern that she would not return to Israel with the children, a fear soon
realized. She testified that it was at that moment at the airport that she decided not
to return to Israel. Julie filed for legal separation from Robert and for custody of the
two children in Minnesota state court on August 10, 2000. Robert was served
summons in Israel. Robert immediately moved for dismissal of the action, arguing
that the state court lacked authority to hear the custody issues because there had not
yet been the necessary determinations of "wrongful removal and retention" and
"habitual residence" as mandated by the Hague Convention and ICARA,
determinations designed to establish whether Israel or the United States had
jurisdiction to hear a child custody case.8
The record reveals that on August 24, 2000, fourteen days after Julie's
Minnesota action had been commenced, Robert filed in Israel a "Request for Return
of Abducted Children" with the National Center for Missing and Exploited Children
(NCMEC), pursuant to the Hague Convention. On September 22, 2000, a NCMEC
7
Apparently the attorney thought Julie would have a better chance in Israel civil
court. Whether this was because of Julie's continuing adulterous relationship with the
man from Massachusetts or for other unrelated reasons is not clear from the record.
8
Article 16 of the Hague Convention provides that proceedings in an abducted-
to nation, here the United States, may not determine custody issues. Hague
Convention Article 16; 42 U.S.C. § 11601(b)(4); March v. Levine, 249 F.3d 462, 468
(6th Cir. 2001). The Convention imposes and requires a preliminary determination
of which country has jurisdiction to consider custody questions.
-4-
agent contacted Robert's Israeli attorney and requested that the attorney obtain a
determination from the Israeli courts as to whether Julie had wrongfully removed or
retained the children within the meaning of the Hague Convention. Some time
shortly thereafter, Robert filed a Hague Convention petition in Israel seeking such a
determination. In addition to filing the Israeli action, Robert filed a Hague petition
on October 5, 2000, in the United States District Court for the District of Minnesota
seeking return of the children to Israel under the Convention. Julie was personally
served summons in this matter on October 10, 2000.9 This filing and service
preceded any determinations in the state custody matter. Indeed, it preceded the final
order of the Minnesota trial court by almost seven months.
On October 17, 2000, although on notice of Robert's Hague filings,10 a state
court referee issued an interlocutory administrative order granting Julie temporary
custody of the children. Armed with this temporary order, Julie testified that in
February 2001 she decided to move with the two children to Massachusetts to live
with her paramour. They subsequently moved.
Within a month after the October 17, 2000, temporary order, upon the request
of Julie, the district court dismissed the federal Hague claims on abstention grounds,
Silverman v. Silverman, No. 00-2274 (D. Minn. Nov. 13, 2000), but we reversed and
remanded the case for an evidentiary hearing, finding that abstention does not apply
in Hague Convention cases. Silverman v. Silverman, 267 F.3d 788, 792 (8th Cir.
2001). On November 16, 2000, while both the state custody and federal Hague
matters were pending in various courts in the United States, the Israeli court ruled that
9
Julie was served the day of the state court hearing.
10
"A court may get notice of a wrongful removal or retention in some manner
other than the filing of a petition for return, for instance . . . from the aggrieved party
(either directly or through counsel) . . . ." 51 Fed. Reg. 10494(III)(H) (Mar. 26,
1986).
-5-
Israel was the place of habitual residence of Sam and Jacob as defined in the
Convention and that Julie's failure to return them to Israel was prima facie evidence
of wrongful retention of the children in violation of the Convention.11 A copy of this
decision was furnished to the Israel Central Authority created by Articles 6 and 7 of
the Hague Convention for use in the United States under the terms of Article 15 of
the Convention.12 On May 4, 2001, the Minnesota trial court entered a final judgment
awarding full child custody to Julie, child support from Robert and attorney fees to
Julie. While this order specifically stated that the court was on notice of pending
11
Although this determination was apparently made without her presence, Julie
and her American attorney had been given notice of the Israeli petition and hearing
but she decided not to attend. On December 21, 2000, Julie retained a lawyer in
Israel and requested that the court reverse its November 16 decision. The Israeli
judge agreed to hold a second hearing. Julie was also notified of this hearing, but was
advised by her attorney not to attend. On October 30, 2001, the Israeli court refused
to reverse its November 16, 2000, holding that Israel was the habitual residence of
the children and that Julie had wrongfully removed them in violation of the Hague
Convention.
12
The Hague Convention provides that "[a] Contracting State shall designate
a Central Authority to discharge the duties which are imposed by the Convention
upon such authorities." Art. 6. The Central Authorities of each Contracting State
must cooperate with each other and with the competent authorities in their respective
states to secure the prompt return of abducted children. In particular, the Central
Authority shall take all appropriate measures,
(a) to discover the whereabouts of a child who has been wrongfully
removed or retained;
...
(i) to keep each other informed with respect to the operation of this
Convention and, as far as possible, to eliminate any obstacles to its
application.
See Hague Convention, Article 7. See also 22 C.F.R. § 94.6.
Egervary v. Young, 159 F. Supp. 2d 132, 138-39 (E.D. Pa. 2001).
-6-
Hague Convention litigation, the court decided the custody issues anyway, applying
only Minnesota law. The state court determined neither the "habitual residence" of
the children nor the issue of "wrongful removal or retention" as required by and
defined in the Hague Convention and ICARA. Indeed, it was not asked to do so. The
court, in awarding Julie custody and child support, found that Minnesota was the
children's "home state" as referenced in Minnesota Statutes § 518D.102. In section
518D.102(h), "home state" is defined as "the state in which a child lived with a parent
. . . for at least six consecutive months immediately before the commencement of a
child custody proceeding. . . . A period of temporary absence . . . is part of the
period." But, "state" is defined in the statute and includes only the fifty states,
District of Columbia, Puerto Rico, Virgin Islands, and other United States territories
and possessions. Thus, a determination of "home state" under the Minnesota statute
is clearly not equivalent to a determination of "habitual residence" under the Hague
Convention because under the Minnesota act, Israel could not have been determined
to be the "home state" of the children.
No appeal was taken from the May 4, 2001, judgment but after the October 17,
2000, interlocutory order, Robert, on October 27, 2000, sought a writ of prohibition
from the Minnesota Court of Appeals to restrain the implementation of the temporary
ruling. Before this request was heard, however, the federal district court entered its
abstention and dismissal order of November 13, 2000, an order later reversed by this
court, as earlier noted. Without reviewing the Minnesota trial court order on the
merits or considering any issues of federal law, including Hague Convention issues,
the Minnesota Court of Appeals, using the federal court dismissal as a basis, denied
the application for writ of prohibition as moot, indicating specifically that Robert was
free to file a Hague petition in Hennepin County (Minnesota) Court. Silverman v.
Silverman, Order C2-00-1879 (Minn. Ct. App., Nov. 21, 2000). So, to date, neither
Robert nor Julie has ever requested any Minnesota court to make any Hague
Convention or ICARA determinations and no such determinations have been made
by any state tribunal.
-7-
On May 9, 2002, the federal district court ruled in favor of Julie on Robert's
Hague Convention claim, finding that Minnesota was the "habitual residence" of the
children13 and, alternatively, that even if Israel was their habitual residence, that there
was a grave risk in returning the children to Israel under the Article 13(b) exception
to the Convention. Silverman v. Silverman, No. 00-2274, 2002 WL 971808 (D.
Minn. May 9, 2002). Robert appeals this decision.
II. DISCUSSION
A. Rooker-Feldman Doctrine
At the outset, we address the relevance and applicability of the Rooker-
Feldman doctrine to the claims in this case, an issue not raised by either party but by
the court itself at oral argument, and now advanced for the first time by Julie in this
appeal. More specifically, the Rooker-Feldman question is whether the state court
judgment of May 4, 2001, divested the lower federal courts of subject matter
jurisdiction to consider and review the Hague Convention and ICARA controversies
raised by Robert in the federal district court. We find the doctrine inapplicable.
The Rooker-Feldman doctrine holds that the inferior federal courts lack
jurisdiction to review a state court's final judicial determination. District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413, 416 (1923). "Under the legislation of Congress, no court of the United
States other than [the Supreme] court [can] entertain a proceeding to reverse or
13
The court found that the habitual residence of the children had never changed
to Israel, but remained in Minnesota the entire time. The law is clear that wrongful
removal from a country does not change a child's Hague Convention habitual
residence. Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995). Therefore, if the
children's habitual residence changed when they moved to Israel, it did not change
back when Julie removed them back to Minnesota.
-8-
modify the [state court] judgment . . . ." Rooker, 263 U.S. at 416; see 28 U.S.C. §
1257. However, applying such a simply stated rule has proven to be both complex
and difficult. This is because the doctrine, in practice, has become a fluid mix of
appellate subject matter jurisdiction, claim and issue preclusion, and, perhaps,
abstention concepts. It has been extended not only to straightforward review of state
court judgments, but also to "indirect attempts by federal plaintiffs to undermine state
court decisions." Lemonds v. St. Louis County, 222 F.3d 488, 492 (8th Cir. 2000).
In determining whether Rooker-Feldman applies in a particular case, a federal court
must determine whether the claim before it is "inextricably intertwined" with the
claim already decided in the state court. Id. at 492-93. "A claim brought in federal
court is inextricably intertwined with a state court judgment 'if the federal claim
succeeds only to the extent that the state court wrongly decided the issue before it.'"
Ballinger v. Culotta, 322 F.3d 546, 549 (8th Cir. 2003), (quoting Lemonds, 222 F.3d
at 493.) "Where the district court must hold that the state court was wrong in order
to find in favor of the plaintiff, the issues . . . are inextricably intertwined." Doe &
Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001).
According to several commentators, Rooker-Feldman analysis is influenced,
in part, by the supremacy clause, full faith and credit concepts and congressional
concerns for comity with and respect for the rights of the sovereign states. See U.S.
Const. art. VI, § 1, cl. 2 & art. IV, § 1. The subject matter jurisdiction of the "inferior
courts" of the United States is assigned through and limited by acts of Congress. Id.
at art. III, §§ 1 & 2. Acting upon this Constitutional power,
the policy of the successive acts of Congress regulating the jurisdiction
of federal courts is one calling for [] strict construction . . . . Due regard
for the rightful independence of state governments, which should actuate
federal courts, requires that they scrupulously confine their own
jurisdiction to the precise limits . . . the statute has defined.
-9-
Breuer v. Jim's Concrete of Brevard, Inc., 123 S. Ct. 1882, 1886 (2003) (some
alterations in original) (internal quotations omitted). Rooker and Feldman noted that
Congress, in applying this policy, has limited federal subject matter jurisdiction over
issues of direct review of state court decisions to the Supreme Court. Rooker, 263
U.S. at 416 (citing Judicial Code, § 237, as amended September 6, 1916); Feldman,
460 U.S. at 464 (citing 28 U.S.C. § 1257). This does not mean, and the Rooker-
Feldman decisions do not hold, that Congress has prohibited federal appellate courts
from reviewing matters decided by federal district courts under specific grants of
original jurisdiction, even when concurrent grants of original jurisdiction lie with
both the state and federal courts in particular situations. See 28 U.S.C. § 1291.
Congress adopted the Hague Convention, an international treaty, making it,
under the Constitution, part of "the supreme Law of the Land." U.S. Const. art. VI,
§ 1, cl. 2; Asakura v. City of Seattle, 265 U.S. 332, 341 (1924). Congress then
implemented the Hague treaty by enactment of ICARA. While ICARA grants
original concurrent jurisdiction of actions arising under the Convention to the courts
of the states and the United States, 42 U.S.C. § 11603(a), several restrictions in the
treaty and ICARA guide these grants of jurisdiction in both sovereigns' courts. First,
full faith and credit shall be accorded a prior judgment in either state or federal court,
but only if the judgment arises through adjudication of a Hague Convention claim in
accordance with the dictates of the Convention and ICARA. 42 U.S.C. § 11603(g);
see, e.g., Holder v. Holder, 305 F.3d 854, 864 (9th Cir. 2002). As earlier noted,
neither Robert nor Julie has ever requested any Minnesota court to make Hague
Convention or ICARA determinations, and no state court has done so. Thus, the
May 4, 2001, order of the Minnesota court is not entitled to full faith and credit under
section 11603(g), and the Rooker-Feldman doctrine does not override federal
statutory grants of original jurisdiction under ICARA or this court's appellate
jurisdiction under section 1291.
-10-
In Holder, the Ninth Circuit addressed this issue in only a slightly different
context. No ICARA action was pending when a California state court rendered a
child custody determination, arguably, according to the state court plaintiff,
eliminating the need for a Hague proceeding. The Ninth Circuit disagreed, noting
correctly that "[i]t would [] undermine the very scheme created by the Hague
Convention and ICARA to hold that a Hague Convention claim is barred [in federal
district court] by a state court custody determination." 305 F.3d at 865 (emphasis in
original). Indeed, Article 16 of the Convention states,
[a]fter receiving notice of a wrongful removal . . . the judicial
. . . authorities of the Contracting State to which the child has been
removed or in which it has been retained [the United States] shall not
decide on the merits of rights of custody until it has been determined
that the child is not to be returned under this Convention or unless an
application under this Convention is not lodged within a reasonable time
following receipt of the notice [by the state court].
Further, as noted in footnote 8, Article 16 of the Hague Convention precludes a
determination of custody in an abducted-to nation, here the United States, unless and
until Israel is determined not to be the habitual residence of the children in a Hague
proceeding brought under ICARA.
In Mozes v. Mozes, 239 F.3d 1067, 1085 n.55 (9th Cir. 2001), upon facts very
similar to those in this case, Judge Kozinski noted that,
the [federal] district court would not be barred by the Rooker-Feldman
doctrine from vacating the [California] Superior Court's custodial decree
. . . . Because the doctrine is one of congressional intent, not
constitutional mandate, it follows that where Congress has specifically
granted jurisdiction to the federal courts, the doctrine does not apply.
-11-
We agree. Julie's late-blooming argument that a state court custody decision can
somehow trump clearly granted federal court jurisdiction to decide and review issues
of congressionally adopted policy and procedure is simply untenable. The Rooker-
Feldman doctrine has no application under the circumstances of this case.
Even if Julie had sought Hague Convention relief under ICARA in state court,
Rooker-Feldman would be inapposite. A final state court order arising under the
congressionally assigned subject matter would, of course, deserve full faith and
credit under section 11603(g) of ICARA and, perhaps, if necessary, issue and claim
preclusion protections under federal common law theories of res judicata and
collateral estoppel. However, Rooker-Feldman jurisdictional limitations would be
neither necessary nor applicable.
Assuming that the Rooker-Feldman doctrine was somehow applicable to this
case, the doctrine would strip away federal jurisdiction only if the issues in the state
and federal cases were the same or "inextricably intertwined." Lemonds, 222 F.3d
at 492-93. The question would be whether the federal district court was called upon
to review the same or similar issues as those decided by the state court at an earlier
time. But, the district court did not purport to review the merits of the state custody
decision or, even, the jurisdiction of the state court to make a child custody decision
applying state law. Thus, there was no intertwinement. More specifically, the
Minnesota decisions–the referee's temporary order, the trial judge's final order and
the Minnesota Court of Appeals judgment–dealt only with divorce, child custody,
child support and, perhaps, peripheral and limited procedural and interstate (not
international) jurisdictional issues.14 On the other hand, the district court made no
determinations whatsoever on the merits of the separation, custody, or support and,
14
In Cerit v. Cerit, 188 F. Supp. 2d 1239 (D. Haw. 2002), the father petitioned
the state court for a Hague Convention determination, and then subsequently
petitioned the federal district court for the same ruling. The district court abstained
on Younger and Colorado River abstention grounds. Id. at 1244-45.
-12-
as noted earlier, it would have been inappropriate for it to do so in a Hague
Convention case. The sole decision made by the district court was whether Julie
"wrongfully removed and retained" the children from their "habitual residence" in
violation of the Hague treaty as adopted by ICARA. Accordingly, the district court
was in no way stripped of its jurisdiction to make these determinations by even the
most broad-ranging view of Rooker-Feldman.15
Finally, it is also probable that the state judgment of May 4, 2001, is of dubious
validity for reasons other than the district court action. This is so because the
November 16, 2000, Israeli court order, finding both habitual residence of the
children in Israel and wrongful removal of the children from Israel, was enforceable
in the United States under the treaty and ICARA. The Israeli order directed the filing
of a copy of the order with the Central Agency of Israel for use in the United States
under Article 15 of the treaty. Upon such a finding and filing, Article 16 of the
Convention specifically precluded Minnesota from determining custody issues
involving these children.
B. Standard of Review
Having determined that the district court had jurisdiction to decide the Hague
Convention issues, we now consider which standard of review we should apply in this
appeal. Both parties agree that the "grave risk of harm" determination should be
reviewed de novo. The conflict arises regarding the standard of review for the district
court's habitual residence determination.
This court has not yet articulated a standard of review for habitual residence
determinations under the Hague Convention. Julie and the dissent argue that the
15
Our jurisdiction to hear this appeal would not be affected by Rooker-Feldman
unless the district court's jurisdiction was affected.
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habitual residence determination is one of fact, to be reviewed for clear error. We
disagree, being more persuaded by the Ninth and Third Circuits, which have
determined that habitual residence determinations raise mixed questions of fact and
law and therefore should be reviewed de novo. Mozes, 239 F.3d at 1073; Feder v.
Evans-Feder, 63 F.3d 217, 222 n.9 (3d Cir. 1995) ("[T]he determination of habitual
residence is not purely factual, but requires the application of a legal standard . . . to
historical and narrative facts. It is, therefore, a conclusion of law or at least a
determination of a mixed question of law and fact.").
We recognize that a habitual residence determination must be based on facts
and that the facts will vary considerably in each situation. But a district court's
determination of habitual residence is not devoid of legal principles. It is not a
question of pure fact, to be decided without reference to statutory language and
established legal precedent. It must contain an objective standard. Whether "habitual
residence" is labeled an application of facts to a legal principle, analogous to a
probable cause determination,16 or an "ultimate fact[] based upon the application of
legal principles to subsidiary facts," McNeilus Truck and Mfg., Inc. v. Ohio ex. rel.
Montgomery, 226 F.3d 429, 437 (6th Cir. 2000), it is necessarily a determination
subject to de novo appellate review.
As the court pointed out in Mozes, it is imperative that parents be able to assess
the status of the law on habitual residence and wrongful removal and retention. 239
F.3d at 1072-73. If habitual residence is treated as a purely factual matter, to be
decided by an individual judge in individual circumstances unique to each case,
parents will never be able to guess, let alone determine, whether they are at risk of
losing custody by allowing their children to visit overseas or in allowing them to
16
Probable cause determinations involve the application of historical facts to
a legal principle and are reviewed de novo. Ornelas v. United States, 517 U.S. 690,
696-97 (1996).
-14-
make international trips with an estranged spouse. With such uncertainty, parents
experiencing marital difficulties will be less likely to allow children to travel with one
parent and less likely to allow children to maintain relationships with families in other
countries. Congress must have intended that there be enough consistency in these
cases to prevent such a result. Indeed, we find it difficult to believe that American
legislators intended to launch American citizens into such unchartable waters. Thus,
we think it is not only the correct conclusion that habitual residence be a legal
determination subject to de novo review, we also think it is the correct policy
conclusion under the language of the Hague Convention and ICARA.
C. Habitual Residence
The Hague Convention has two objects: (1) "to secure the prompt return of
children wrongfully removed to or retained in any Contracting State" and (2) "to
ensure that rights of custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States." 19 I.L.M. 1501, Art. 1. The
Hague Convention protects children from "wrongful removal or retention" from their
"habitual residence." The Hague Convention defines wrongful removal,
The removal or the retention of a child is to be considered wrongful
where – a) it is in breach of rights of custody attributed to a person . . .
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.
Id. at Art. 3.
Generally speaking, "wrongful removal" refers to the taking of a child
from the person who was actually exercising custody of the child.
"Wrongful retention" refers to the act of keeping the child without the
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consent of the person who was actually exercising custody. The
archetype of this conduct is the refusal by the noncustodial parent to
return a child at the end of an authorized visitation period.
51 Fed. Reg. 10494. Julie concedes that she retained the children in the United States
without Robert's permission and that Robert was exercising, and would have
continued to exercise, his custody rights in Israel except for the removal. She argues,
however, that the removal was not from the country of the children's "habitual
residence," thus the Hague Convention does not apply. The district court agreed with
her contention. Silverman, 2002 WL 971808.17
"Habitual residence" is not defined in the language of the Hague Convention
or by ICARA. However, the text of the Convention directs courts to only one point
in time in determining habitual residence: the point in time "immediately before the
removal or retention." Art. 3. Additionally, the text of the Convention points to the
child's, not the parents', habitual residence. Id. A person may have only one habitual
17
The district court actually stated, "the Court determines that the habitual
residence of Sam and Jacob never changed from the United States to Israel and
therefore, Julie's retention of the children in the United States since June 2000 was
not wrongful." Silverman, 2002 WL 971808, at *6. This is an inaccurate application
of the law under the Hague Convention, because the issues of "wrongful retention"
and "habitual residence" are separate inquiries. Feder, 63 F.3d at 225. A wrongful
removal/retention determination involves two questions: whether the custody rights
of Robert were breached by the retention and whether he was exercising those rights
at the time. See id. Julie does not challenge Robert's assertion that he was exercising
his custody rights at the time of the retention, therefore, she does not challenge
"wrongful retention" under the Hague Convention if Israel is determined to be the
place of habitual residence. On the other hand, a finding that the children's habitual
residence was not Israel denies Robert relief under the Convention because a removal
from Israel of any sort, wrongful or not, would not be prohibited by the treaty. Robert
cannot prevail under the reach of the Convention if Julie was simply returning the
children to their habitual residence in the United States.
-16-
residence, and it should not be confused with domicile. Nunez-Escudero v. Tice-
Menley, 58 F.3d 374, 379 (8th Cir. 1995); Friedrich v. Friedrich, 983 F.2d 1396, 1401
(6th Cir. 1995) (hereinafter "Friedrich I"). "[T]he court must focus on the child, not
the parents, and examine past experience, not future intentions." Nunez-Escudero,
58 F.3d at 379, (citing Friedrich I, 983 F.2d at 1401). Habitual residence may only
be altered by a change in geography and passage of time. Id.
Federal courts are agreed that "habitual residence" must encompass some form
of "settled purpose." Feder, 63 F.3d at 222-23. This settled purpose need not be to
stay in a new location forever, but the family must have a "sufficient degree of
continuity to be properly described as settled." Id. at 223, (citing In re Bates, No. CA
122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United
Kingdom (1989)). Additionally, the settled purpose must be from the child's
perspective, although parental intent is also taken into account. Feder, 63 F.3d at
222; Friedrich I, 983 F.2d at 1401.
In its determination that the Silvermans' habitual residence never changed from
Minnesota to Israel, the district court enumerated its factual findings. The district
court determined that 1) Robert and Julie sold their home in Minnesota prior to their
move to Israel; 2) Julie wanted to move to Israel to raise her children; 3) the move
was set up by the parents to be permanent; 4) the family shipped their household
goods to Israel prior to their move; 5) the family rented an apartment in Israel; and
6) the children were enrolled in school in Israel and participated in activities there.
Silverman, 2002 WL 971808, at *2-3. We need not disturb these findings. The
district court coupled these facts with its factual conclusion that Julie was prevented
from leaving Israel by the Tzav Ikuv from October to November of 1999 and that
Robert would not have allowed Julie to leave Israel with the children from October
1999 until June 2000. Applying these facts to the Hague Convention, the district
court concluded that, despite the intent present at the time of the move to Israel and
the outward appearance of a permanent move, Julie's unilateral desire to return to the
-17-
United States, coupled with the alleged abuse from October 1999, eliminated the
settled intent necessary to establish habitual residence. The district court erred.
The court should have looked at the habitual residence of the Silverman
children at the time Julie removed them from Israel, keeping in mind that they could
only have one habitual residence. The court should have determined the degree of
settled purpose from the children's perspective, including the family's change in
geography along with their personal possessions and pets, the passage of time, the
family abandoning its prior residence and selling the house, the application for and
securing of benefits only available to Israeli immigrants,18 the children's enrollment
in school, and, to some degree, both parents' intentions at the time of the move to
Israel. Fairly assessing these facts, there is only one acceptable legal conclusion
regarding the children's habitual residence: they were habitual residents of Israel.
The Ninth Circuit anticipated the exact type of situation faced by the district
court.
[There are] cases where the court finds that the family as a unit has
manifested a settled purpose to change habitual residence, despite the
fact that one parent may have had qualms about the move. Most
commonly, this occurs when both parents and the child translocate
together under circumstances suggesting that they intend to make their
18
The district court also relied upon the fact that the Silvermans swore in a
Minnesota bankruptcy proceeding that their permanent address was Minnesota and
they signed an income tax return listing Minnesota as their permanent address. While
these are interesting facts showing the lack of integrity of both parties, they are not
legally sufficient to overcome the overwhelming facts showing that the Silvermans
physically left Minnesota, moved everything to Israel, and swore to the Israeli
government that they were permanent immigrants. The Minnesota address listed on
the bankruptcy proceeding is not the only misstatement by the Silvermans in that
proceeding. Julie also concealed a $9000 "gift" to her father before she filed for the
bankruptcy.
-18-
home in the new country. When courts find that a family has jointly
taken all the steps associated with abandoning habitual residence in one
country to take it up in another, they are generally unwilling to let one
parent's alleged reservations about the move stand in the way of finding
a shared and settled purpose.
Mozes, 239 F.3d at 1076-77.
In Feder, the Third Circuit reversed a trial court's determination of habitual
residence in a case with several facts similar to this one. 63 F.3d at 220 & 224. The
parents moved to Australia with their son. The father intended to stay there, while
the mother had doubts about her marriage and about Australia. The family did not
sell their house in the United States, but did buy one in Australia. Six months after
moving to Australia, the mother took the son on a "vacation" to the United States and,
while there, filed for divorce and custody. Id. The trial court found that the son's
habitual residence was the United States because the mother never decided for sure
to stay in Australia. The Third Circuit reversed, emphasizing the need to look at both
parents' intentions and the lifestyle of the son (who had enrolled in school in
Australia), discounting the mother's plan to return to the United States if the marriage
failed while in Australia. Id. These facts are analogous to the facts in this case and
we agree with the Third Circuit that one spouse harboring reluctance during a move
does not eliminate the settled purpose from the children's perspective.
The district court also failed to consider that Julie initially contemplated a
divorce in Israel, although the record supports this fact, especially given her
testimony that her reluctance was not based upon living in Israel but upon the
viability of her marriage. When she contacted an attorney in Israel, however, she was
told that she would lose custody of her children in the Israeli Rabbinical courts. In
Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995), this court addressed a "habitual
residence" issue by referring to the primary purpose of the Hague Convention: "to
restore the status quo ante and to deter parents from crossing international boundaries
-19-
in search of a more sympathetic court." This court upheld the district court's decision
to return children to their father in Poland after their mother, who was having marital
difficulties, took them to the United States, without the consent of her husband, to
obtain a divorce and custody. Id. This case is analogous. After speaking with her
attorney in Israel, but without filing for a divorce or custody there, Julie moved to the
United States and promptly obtained the desired custody decision here. This appears
to be the sort of forum shopping addressed in Rydder that the Convention was
designed to prevent. Id.Finally, the district court also found that the habitual residence of the children
did not change because Julie's residence in Israel was coerced due to the abuse she
suffered. Habitual residence is not established when the removing spouse is coerced
involuntarily to move to or remain in another country. Tsarbopoulos v. Tsarbopoulos,
176 F. Supp. 2d 1045, 1055 (E.D. Wash. 2001) (father's intent to remain in foreign
country concealed from mother and abuse of mother and children eliminated any
choice in the move); Ponath v. Ponath, 829 F. Supp. 363, 367 (D. Utah 1993) (move
was expressed to be, and intended by mother to be, an extended vacation). Unlike the
situations in Tsarbopoulos and Ponath, the record here establishes that there was no
abuse prior to the move or for at least two months after the move, there was no
coercion in getting Julie to move to Israel, and there is no alleged abuse of the
children. Julie intended to move permanently to Israel prior to the move and, upon
arrival in July, she intended to make Israel her home. She was the primary force
behind the family's relocation to Israel and she always intended to return to Israel to
raise her children.19 Her subsequent, post-move desire to return to the United States,
and the finding by the district court that she was subjected to coercion and abuse
beginning two months after her arrival, does not change the legal conclusion that the
habitual residence of the children changed from Minnesota to Israel.
19
Prior to marrying Robert, Julie spent two years of high school, one year of
college, and two years working (1987-1989) in Israel.
-20-
For these reasons, we find that the children's habitual residence is in Israel and
that Robert has met his burden of presenting a prima facie case under the Convention.
D. Grave Risk of Harm
The district court found that even if the children's habitual residence is in
Israel, they need not be returned to Israel because they will face a "grave risk of
physical harm" there. Silverman, 2002 WL 971808, at *8. The district court reached
this conclusion, in part, because the violence in Israel makes it a "zone of war," which
is dangerous for the children. Id.The "grave risk of physical or psychological harm" defense is an affirmative
defense under Article 13(b) of the Convention that Julie must prove with clear and
convincing evidence. 42 U.S.C. § 11603(e)(2)(A); Friedrich I, 983 F.2d at 1400. In
Rydder, this court held that in order to apply the Article 13(b) exception, the court
would need to cite specific evidence of potential harm to the individual children. 49
F. 3d at 373. There are two types of grave risk that are appropriate under Article
13(b): sending a child to a "zone of war, famine, or disease," or in cases of serious
abuse or neglect. Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996)
(hereinafter "Friedrich II"); Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).
The district court found that the current situation in Israel constitutes a "zone
of war," warranting application of the "grave risk" exception. In Freier v. Freier, 969
F. Supp. 436, 443 (E.D. Mich. 1996), the district court found that Israel in 1996 was
not a "zone of war" under Article 13(b). In so finding, the court determined that the
fighting was fifteen to ninety minutes from the children's home, no schools were
closed, businesses were open, and the mother was able to travel to and from the
country. Id. No subsequent case has found that Israel is a "zone of war" under the
Convention. In fact, there does not appear to be another case that finds any country
-21-
a "zone of war" under the Convention.20 Nor does the district court cite any evidence
that these children are in any more specific danger living in Israel than they were
when their mother voluntarily moved them there in 1999. Rather, the evidence
centered on general regional violence, such as suicide bombers, that threaten
everyone in Israel. This is not sufficient to establish a "zone of war" which puts the
children in "grave risk of physical or psychological harm" under the Convention.
Additionally, the district court erred in taking into account the "fact that Sam
and Jacob are settled in their new environment." Silverman, 2002 WL 971808, at
*10. A removing parent "must not be allowed to abduct a child and then–when
brought to court–complain that the child has grown used to the surroundings to which
they were abducted." Friedrich II, 78 F.3d at 1068.
Israel is not a "zone of war" as meant by the Convention and, therefore, Julie
has not met her burden of proving that a grave risk of harm exists. As no other
exception applies, the district court erred in denying Robert's Hague petition.
III. CONCLUSION
For the reasons stated above, we reverse the district court. Israel is the habitual
residence of the Silverman children and Julie wrongfully removed the children from
their habitual residence. The Convention requires us to return wrongfully removed
children to their habitual residence, unless specific, limited exceptions apply. No
exceptions to the Hague Convention apply, and the Minnesota court's custody
determination cannot be used to prevent us from returning the children to Israel. 51
Fed. Reg. 10494-01, § ID1. Israel is the proper forum for a custody determination.
20
The district court and Julie did not cite any cases to the contrary. On August
13, 2002, in Mendez Lynch v. Mendez Lynch, the District Court of Florida
considered, and rejected, a claim that Argentina is a zone of war under the
Convention. 220 F. Supp. 2d 1347, 1365-66 (M.D. Fla. 2002).
-22-
We remand for entry of an order that the Silverman children be returned to Israel for
a custody determination in the Israeli courts.
MELLOY, Circuit Judge, concurring in part and dissenting in part.
I concur with all of the majority opinion in this case, with the exception of
Division III. Division III states that no exceptions to the Hague Convention apply
and remands the case for entry of an order returning the children to Israel. I dissent
from that portion of the majority opinion for the reason that it does not address Judge
Heaney's argument that one of the Hague Convention defenses as to removal is a
finding: ". . . that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views." Hague
Convention on the Civil Aspects of International Child Abduction, Art. 13, 19 I.L.M.
1501, 1502-03 (1980).
In this case, the district court made a finding that Samuel is of sufficient age
and maturity to express his views and that he does not wish to be returned to Israel.
The majority does not address that finding. I find nothing in the record to indicate
that such a finding is clearly erroneous. At a minimum, I agree with the dissent that
the case should be remanded for further proceedings to determine the views, if any,
of both Samuel and Jacob, and for a further determination as to whether each child
has attained an age and degree of maturity for which it would be appropriate to take
into consideration their views.
Accordingly, I concur in the well-reasoned decision of the majority, with the
exception of that portion of the conclusion which failed to remand the case for a
further determination as to the views of each child and their level of maturity.
HEANEY, Circuit Judge, with whom McMILLIAN, MURPHY, and BYE, Circuit
Judges, join dissenting.
-23-
I respectfully dissent. Assuming a habitual residence determination raises
mixed questions of law and fact, the result reached by the majority is inconsistent
with Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), a case upon which the majority
heavily relies. It is well settled that where the primary issue is whether the parents
intended to abandon a prior habitual residence, great deference must be given to the
factual findings of the district court. Here, the district court unequivocally found that,
based on the entirety of the evidence, Robert and Julie Silverman did not have a
mutual, settled intent to abandon the United States as their children’s primary
residence. The district court found their habitual residence remained the United
States, and this finding is not clearly erroneous. Thus, the district court must be
affirmed.
Even if one agrees with the holding of the majority that Israel is the habitual
residence of the Silverman children, Samuel and Jacob, the Hague Convention
dictates that it is still necessary to remand the case to the district court for a
determination of whether Samuel should return to Israel in view of his strongly stated
desire to remain in the United States with his mother. If it finds that Samuel’s views
are sufficiently mature to require acquiescence by the district court, that should end
the matter. If not, the court must still consider the psychological harm he may suffer
from being ordered to return to Israel. Moreover, the district court must also consider
Jacob’s views on the matter. If Jacob’s views are not sufficiently mature to be
controlling, the district court must still consider whether he would be psychologically
harmed by being removed from his family in the United States.21
21
I do not disagree with the majority’s view with respect to the Rooker-Feldman
doctrine.
-24-
I. BACKGROUND
At the outset, it is important that we set straight the background facts recited
in the majority’s opinion. Although the majority quotes Julie as testifying that she
was always the one pushing to move to Israel, (Tr. 8), it neglects to point out that
Julie subsequently testified, “I couldn’t imagine making a permanent move so far
away from my family and my home if my marriage was going to not work.” (Tr. 89.)
Robert seconded this view of Julie’s intentions. He testified that he had examined e-
mails sent to Julie by her current husband: “It was never [Julie’s] intention to leave
and be [with me] in Israel, but to be with this gentleman.” (Tr. 42.)
The majority states that Robert and Julie lived with relatives in Israel from July
1999 to November 1999, when they signed a one-year lease for an apartment.
Notably, it concedes that Robert would not have allowed Julie to leave Israel with the
children at any point between October 1999 and June 2000. In fact, Robert’s
testimony was that he would not have permitted the children to leave Israel as early
as September of 1999. (Tr. 59.) Thus, even by Robert’s own testimony, Julie
remained in Israel of her own free will for only one month, hardly a sufficient period
of time to establish a joint intention that Israel would be the habitual residence of
Samuel and Jacob. See, e.g., In re Application of Ponath, 829 F.Supp. 363, 367 (D.
Utah 1993) (finding no habitual residence where mother and child detained for
months by means of coercion).
Sometime in January 2000, Robert and Julie returned to Minnesota to complete
bankruptcy proceedings. At that time both stated that their permanent address was
Plymouth, Minnesota. (Tr. 57.) While living in Israel in April 2000, Robert and Julie
signed and filed a joint United States income tax form for 1999, listing their address
as Plymouth, Minnesota. (Tr. 58.) They made these declarations either under oath
or under penalty of perjury. The majority gives little weight to these factors,
suggesting this could only mean that both Robert and Julie lied when they claimed
-25-
Minnesota as their address. The fact is that Julie considered the United States to be
her habitual residence and that of Samuel and Jacob at all times during these
proceedings, a position adopted by the district court. Julie’s position as to residency
has been consistent throughout; it is only Robert who has claimed different
residences–first Minnesota for tax and bankruptcy proceedings, then Israel for family
law proceedings–to suit his needs. In my view, the district court properly considered
the documents indicating the Silvermans were Minnesota residents as adding to the
weight of the evidence that the couple never shared a intention to make Israel their
habitual residence.
Julie contends that Robert engaged in threats, physical abuse, and coercion to
force her to remain in Israel. In footnote six of its opinion, the majority concurred
with the district court that there was physical violence against Julie by Robert, but
went on to state: “[W]e do find it prudent to note that Julie also engaged in physical
violence towards Robert.” Ante at 3, n.6. Julie’s testimony about the incident paints
a different picture:
[Robert] picked me up from the airport after I had stayed a few extra
days for the bankruptcy. He started screaming at me that I had been
with Steve. He pushed my head against the window, so I flung back this
way. I hit him in the mouth, on this corner, and I made him bleed.
And at that point, he leaned over and opened the car door while
he was driving. He couldn’t get the seat belt undone.
(Tr. 96-97.) In response to the question, “How did you interpret when he leaned over
to open the car door?” Julie answered, “That he was going to push me out of the car.”
(Tr. 97.) Julie also testified that at other times Robert would “hold me up against the
wall and bang me. There were stone walls in our apartment. And he would ask me
to tell him that I didn’t love Steve.” When asked if she was physically injured as a
-26-
result, she responded, “I was not injured. I was hurt. I mean he was slamming me
against the wall.” Id.II. ANALYSIS
A. Habitual Residence of the Children
I begin my analysis by considering the applicable standard of review. The
majority overstates the matter, leaving one with the impression that we should
essentially impose our own view of habitual residence, giving no deference to the
district court’s superior position in assessing the circumstances. The Second Circuit
recently stated the applicable standard of review in cases arising under the Hague
Convention. See Blondin v. DuBois, 238 F.3d 153 (2d Cir. 2001). The district
court’s factual determinations are reviewed for clear error, while the district court’s
legal analysis is subject to de novo review. Blondin, 238 F.3d at 158 (citing Croll v.
Croll, 229 F.3d 133, 136 (2d Cir. 2000); Walsh v. Walsh, 221 F.3d 204, 214 (1st Cir.
2000); Shalit v. Coppe, 182 F.3d 1124, 1127 (9th Cir. 1999); Lops v. Lops, 140 F.3d
927, 935 (11th Cir. 1998); and Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.
1996)). Stated another way, the interpretation and application of treaty language is
reviewed de novo, but the underlying factual findings are reviewed for clear error.
Blondin, 238 F.3d at 158 (citing Feder v. Evans-Feder, 63 F.3d 217, 222 n.9 (3d Cir.
1995); and Cree v. Flores, 157 F.3d 762, 768 (9th Cir. 1998)). Accepting this
analysis, we review the district court’s factual findings, including its finding that
there was no settled intent to abandon the United States, for clear error. Accord
Mozes v. Mozes, 239 F.3d 1067, 1075-76 (9th Cir. 2001) (“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.”)
The majority’s reliance on Mozes to support its position that we review the
district court’s habitual residence determination de novo standard is specious. A
-27-
close reading of Mozes reveals that it is indeed a slender reed upon which to base the
conclusion reached by the majority. Mozes clearly stands for the proposition that the
intent of the parties to abandon a prior habitual residence is an issue of fact to be
determined by the district court, to which we owe great deference. Here, the district
court unequivocally found that the Silvermans had not abandoned their habitual
residence in the United States.
In Mozes, Arnon and Michal were Israeli citizens who married in 1982. They
had four children ranging in age from seven to sixteen years old. In April 1997, with
Arnon’s consent, Michal and the children moved to Los Angeles, where she leased
a home, purchased an automobile, and enrolled the children in school. Arnon
remained in Israel, but he paid for both the house and the car used by the family, and
stayed with them during his visits to Los Angeles. One year after Michal and the
children arrived in the United States, she filed an action in California state court
seeking a dissolution of the marriage and custody of the children. The court granted
temporary custody to Michal and entered a temporary restraining order enjoining
Arnon from removing the children from southern California. Less than one month
later, Arnon filed a petition in federal district court seeking to have the children
returned to Israel under the Hague Convention. The oldest child elected to return to
Israel and did so by mutual agreement. The district court denied the petition of the
father with respect to the other three children, one age nine and two age five, and the
husband appealed to the Ninth Circuit.22
In a lengthy opinion, the appellate court stated that the first question to be
answered is whether there was a settled intention to abandon the family’s prior
22
In Mozes, the children had lived in Israel their entire lives and were taken by
their mother, Michal, to Los Angeles where they remained for one year before Michal
began an action to obtain custody of the children. Here, we have the reverse
situation. The children lived in the United States their entire lives, were taken to
Israel, and remained there voluntarily for only one month.
-28-
habitual residence. Mozes, 239 F.3d at 1075-76. The court emphasized that this was
a question of fact, to which we defer to the district court. Id. at 1076. “[T]he
intention or purpose which has to be taken into account is that of the person or
persons entitled to fix the place of a child’s residence,” id. (citation and internal
quotation marks omitted), which in this case would be both parents. Where the
parents disagree, the courts must determine from all available evidence whether the
parent petitioning for the return of the child has established by a preponderance of the
evidence that the habitual residence is the place where petitioner claims it to be. 42
U.S.C. § 11603(e)(1); see Mozes, 239 F.3d at 1083 (stating petitioner bears burden
of showing “brute facts” that point unequivocally to conclusion that parents jointly
intended to alter habitual residence). Where the evidence is conflicting, the finding
of the district court is entitled to great deference. Mozes, 238 F.3d at 1077-78.23
The majority errs in this regard by focusing only on Robert’s intent and
disregarding the intentions of Julie. The district court found:
[T]he habitual residence of Sam and Jacob never changed from the
United States to Israel and therefore, Julie’s retention of the children in
the United States since June 2000 was not wrongful. With the exception
of the eleven months spent in Israel, Sam and Jacob have spent their
entire lives in the United States. The evidence also indicates that their
time in Israel would have been much shorter had Julie not been
prevented from leaving Israel with the children from [September] 1999
until June of 2000.
23
In Feder v. Evans-Feder, 63 F.3 217 (3d Cir. 1995), the Third Circuit
recognized that a determination of the habitual residence necessitates consideration
of the shared intention of the parents, id. at 224, and that where parents disagree the
question is whether the petitioner has established by a preponderance of the evidence
that the habitual residence is where petitioner claims it to be, id. at 222. The Feder
court did not discuss the important question decided in Mozes, i.e., whether the
determination of the parents’ settled intent to alter their habitual residence is a factual
finding.
-29-
Silverman v. Silverman, No. 00-2274, 2002 WL 971808, at *6 (D. Minn. May 9,
2002). Where the intent to abandon a prior habitual residence is a critical issue, as
it is here, the district court’s findings effectively control the decision as to the
habitual residence of the children. Mozes, 239 F.3d at 1072-73. These are obviously
factual findings, entitled to great deference, and we are obligated to accept them
unless they are clearly erroneous. In my view, they are not.
Contrary to the impression left by the majority, the court in Mozes did not find
that the parents had a settled intent to abandon Israel as their habitual residence. In
fact, it did not decide that issue. It rather remanded the matter to the district court to
make that determination, reaffirming that the burden of proof rested with the
petitioner.24 In this case, the district court has already made those findings, and
concluded that the children’s habitual residence remained the United States because
the Silvermans did not have a shared intention to abandon the United States.
The district court here did precisely what was required of it under the Hague
Convention–it examined all of the circumstances and determined that the Silvermans
did not have a mutual, settled intent to abandon the United States as the habitual
residence of their children. Its decision is fully supported by the record evidence in
this case. The majority selectively emphasizes a few facts that might have led the
district court to a contrary conclusion, particularly that the Silvermans had sold their
house and moved their belongings to Israel. However, by training its focus so
intently on these few facts, the majority glosses over those that weaken its position:
the family was only away from the United States for a short time (even shorter when
one considers that ten of the eleven months Julie and the children spent there were
24
The appellate court stated that “the appropriate inquiry under the Convention
is whether the United States had supplanted Israel as the locus of the children’s
family and social development. As the district court did not answer this question, we
must remand and allow it to do so.” Mozes, 239 F.3d at 1084.
-30-
under duress); they never bought real property while in Israel; and, perhaps most
importantly, they maintained that Minnesota was their home in two separate
proceedings, both of which occurred while they were living in Israel. In light of the
complete record, it is clear that the district court was well within its discretion in
finding that Robert did not carry his burden. I would affirm the district court’s
habitual residency determination.
B. Affirmative Defenses to Removal
I next come to the question of whether Samuel and Jacob should be returned
to Israel if it is their habitual residence. Article 13 of the Hague Convention
provides:
[T]he judicial or administrative authority of the requested State is not
bound to order the return of the child if the person, institution or other
body which opposes its return establishes that –
....
there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation.
The judicial or administrative authority may also refuse to order the
return of the child if it finds that the child objects to being returned and
has attained an age and degree of maturity at which it is appropriate to
take account of its views.
Hague Convention on the Civil Aspects of International Child Abduction, art. 13, 19
I.L.M. 1501, 1502-03 (1980).
Here, the district court held that even if it had determined that Israel was the
habitual residence of Samuel and Jacob, it found in the alternative “that their return
-31-
to Israel would pose a grave risk of physical harm or otherwise place them in an
intolerable situation.” Silverman, 2002 WL 971808, at *8. The district court noted
that in Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996), evidence of unrest in
Israel was insufficient to establish the grave risk defense. The district court went on
to say that it did not agree with Freier’s conclusion in this case because:
Significant differences exist between the violence occurring at the time
Freir [sic] was decided and the violence occurring in Israel today.
Unlike before, the violence has permeated areas that were previously
unaffected by the conflict. Furthermore, the type of violence, through
suicide bombings, has placed civilians, including children, at much
greater risk. The level and intensity of violence occurring in Israel today
thus goes well beyond “some unrest” described in Freier. In the Court’s
view, the current situation in Israel meets the “zone of war” standard
contemplated by the Sixth Circuit in Friedrich.25
Silverman, 2002 WL 971808, at *10.
The majority rejects these findings, and instead resolves that Israel is not a zone
of war as meant by the Convention. While I agree with this conclusion, neither the
district court nor this court have answered the question of whether returning the
children to Israel, given its current conditions, may cause them to suffer
psychological harm. In my view, the fact that the specific area in which Samuel and
Jacob would live is not a zone of war, still does not answer the question of whether
they will be psychologically harmed because of the situation that currently exists in
Israel.26 Moreover, it would clearly be harmful for the children to be removed from
25
Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).
26
On this point, I believe it particularly relevant to reference a lengthy letter
written by Samuel to the district court. In it, he expressed his concern about returning
to Israel, and made clear that he was worried about his own and his brother’s safety
if they were forced back. (Appellant’s App. at 286-87.) As this is direct evidence of
-32-
the United States and their mother, or each other, after spending the great majority of
their lives here. Therefore, I believe we have no alternative but to remand to the
district court to determine whether Samuel and Jacob will be subjected to
psychological harm if they are separately or collectively removed from their mother’s
home in the United States and forced to return to Israel27.
Additionally, the majority does not consider the finding of the district court that
Samuel objects to returning to Israel and that he is mature and old enough for the
court to consider his views.28 The district court notes:
The evidence presented at the hearing reveal[s] that Sam is a very
bright and intelligent individual. He is a gifted child, which means he
is in a class that is on par with his academics. He reads newspapers each
day to follow events in Israel. The Court is particularly impressed by his
behavior in learning of the upcoming legal proceedings and his desire
to express his views in a letter and have them considered by the Court.
The Court witnessed Sam’s maturity firsthand in discussions with him
the psychological harm Samuel would suffer if returned, I believe it proper for the
district court to consider the letter for that purpose.
27
Of course, Julie would bear the burden of proving by clear and convincing
evidence the children would be harmed psychologically by removal. 42 U.S.C. §
11603(e)(2)(A).
28
As mentioned in footnote six of this dissent, Samuel wrote a lengthy letter to
the district court in which he made clear his wishes. He stated that he was writing to
inform the court that he wanted to live in the United States, largely because of his
familial, social, and educational ties. He also noted that while he misses his father
and some friends in Israel, he would not want to live there in large part because he
believes it to be a dangerous place for him and his brother. The majority opinion
makes no mention of Samuel’s letter. I agree with the district court that it is relevant
and helpful to our decision.
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in chambers after the hearing. In both the Court’s private discussions
with Sam and in the presence of counsel, the Court was impressed by the
level of maturity exhibited by Sam. It was evident that he understood
the purpose and significance of these proceedings. . . . Finally, the
Court finds that Sam, at age 10, is sufficiently old enough to have his
views considered.
Silverman, 2002 WL 971808, at *10.
I agree with the district court that Samuel is mature enough to make his own
decisions on this matter, and he clearly articulates the reasons he does not want to
return to Israel. His decision on that matter should be respected. Blondin, 238 F.3d
at 165-66. Because Article 13 gives courts authority to refuse to return children
where 1) the child, of sufficient age and maturity, objects to returning to his habitual
residence, or 2) there is evidence that returning the child will expose the child to
psychological harm, the district court, on remand, should strongly consider these
exceptions for Samuel, in light of his letter and other evidence.
This leaves the question of Jacob’s fate. Jacob will be eight years old in July
of 2003. He has not yet expressed his views to the court on this matter, nor has the
district court determined if he is sufficiently mature to bring Article 13 into play. If
Jacob now wishes to be heard, the district court should allow him to state his feelings.
If his views are sufficiently mature and he wants to stay in the United States, that
would end the matter. However, in light of Samuel’s stated wishes, even if Jacob
does not make his views known, the district court must still assess the psychological
harm that would result if Jacob were returned to Israel and likely separated from his
older brother.
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CONCLUSION
I agree with the district court that this case should be settled by the parties
rather than by the court. There is no good reason why Robert and Julie should not be
able to agree on a plan which would permit both parents to share custody of the
children. Failing an agreement between the parents, we have no alternative but to
affirm the district court. The Ninth Circuit, the font of many decided cases in this
difficult area of law, makes it crystal clear that the question of whether the parents of
minor children have a joint, settled intention to abandon a habitual residence is a
question of fact. This must, of course, be determined by the district court and
reviewed by our court on the clearly erroneous standard. Having found no reported
cases to the contrary, I would affirm the district court’s well-supported decision.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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