Yaacov Cohen v. Ocean Cohen , 858 F.3d 1150 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3757
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Yaccov Cohen
lllllllllllllllllllll Plaintiff - Appellant
v.
Ocean Ester Debora Cohen
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 7, 2017
Filed: June 7, 2017
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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
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GRUENDER, Circuit Judge.
Yaccov Cohen appeals the district court’s1 denial of his petition for return of
a child under the Hague Convention on the Civil Aspects of International Child
Abduction (“Convention”), as implemented by the International Child Abduction
1
The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
Remedies Act (“ICARA”), 22 U.S.C. §§ 9001-9011. For the following reasons, we
affirm.
I. Background
Yaccov Cohen and Ocean Ester Debora Cohen are the parents of O.N.C., who
was born on December 6, 2009 in Israel. Yaccov is a citizen of Israel, while Ocean
and O.N.C. are citizens of both Israel and the United States. During the first three
years of O.N.C.’s life, the Cohens lived together as a family in Israel. Between 2010
and 2011, Yaccov served approximately one year in jail on various criminal charges.
Shortly after Yaccov’s release, Ocean and two of her brothers, who live in St. Louis,
Missouri, discussed the possibility of her family moving to St. Louis to join them.
However, Yaccov was subject to a Stay of Exit Order placed on his visa that
prevented him from leaving Israel until he paid his accumulated debt, which included
criminal fines, penalties, and restitution payments. Yaccov and Ocean decided that
Ocean and O.N.C. would move to St. Louis, and that once there Ocean would work
to help Yaccov pay off his debt so he could join them. Ocean testified that they
intended to move permanently to the United States, while Yaccov testified that they
intended to move for a period of three to five years. To prepare for the move, Yaccov
and Ocean went to the United States Embassy together to submit naturalization
paperwork for O.N.C.
In December 2012, Ocean and O.N.C. traveled to St. Louis. Ocean promptly
enrolled O.N.C. in school and speech therapy, found O.N.C. a pediatrician, and
secured employment. Ocean purchased a vehicle, obtained a driver’s license, and
eventually rented an apartment. As arranged, Ocean sent money to Yaccov to help
pay off his debts. In May 2013 and April 2014, Ocean and O.N.C. visited Yaccov in
Israel for approximately two weeks each time. During the April 2014 visit, it became
apparent that the marriage was deteriorating. Shortly before Ocean and O.N.C. were
scheduled to return to St. Louis, Yaccov asked a lawyer to draft a “travel agreement”
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requiring Ocean and O.N.C. to return to Israel if Yaccov remained unable to join
them in St. Louis within six months. Ocean signed the agreement after adding a
clause requiring Yaccov to “stay away from crime and not get into trouble.”2 If he
breached this condition, Ocean and O.N.C. would not be obligated to return to Israel
at the end of the six-month period. In August 2014, Yaccov was arrested for driving
without a valid license.
In July 2014, Ocean filed for divorce in St. Louis County. On August 30,
2014, Yaccov learned of the divorce proceeding from a legal advertisement he
received from a St. Louis law firm, and on November 13, 2014, Yaccov was served
with the divorce petition. The St. Louis County Circuit Court entered a default
judgment granting the divorce in March 2015, giving Ocean sole custody of O.N.C.
and Yaccov supervised visitation.
In early September 2014, Yaccov filed a request with the Israeli Ministry of
Justice to open a file to return O.N.C. to Israel, and four months later he filed an
application for O.N.C.’s return under the Convention. Yaccov filed a complaint
requesting O.N.C.’s return under the Convention in the Eastern District of Missouri
on November 25, 2015. After conducting discovery and an evidentiary hearing, the
district court dismissed Yaccov’s complaint, concluding that O.N.C.’s country of
habitual residence is the United States and, accordingly, that Yaccov had failed to
make a prima facie case for return under the Convention. Yaccov appeals.
2
The parties dispute the circumstances under which Ocean signed the travel
agreement, but Yaccov does not seek to enforce the agreement. Rather, he offers it
only for the purpose of demonstrating parental intent. We note that even if Yaccov
had sought to enforce the agreement, parents cannot establish the child’s habitual
residence by contract. Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir. 2010).
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II. Discussion
ICARA implements the Convention, of which both Israel and the United States
are signatories. Barzilay, 600 F.3d at 917. In order to state a prima facie case for the
return of a child, the petitioner must establish by preponderance of the evidence “that
the child has been wrongfully removed or retained within the meaning of the
Convention.” 22 U.S.C. § 9003(e). “The key inquiry under the Convention is
whether a child has been wrongfully removed from the country of its habitual
residence or wrongfully retained in a country other than that of its habitual
residence.” Barzilay, 600 F.3d at 917 (quotation omitted). Thus, the “case turns on
the determination of the [child’s] habitual residence, for the retention of a child in the
state of its habitual residence is not wrongful under the Convention.” Id. In
resolving rights under the Convention, the court may not address the merits of an
underlying child custody dispute. 22 U.S.C. § 9001(b)(4).
“Determination of habitual residence under the Hague Convention raises mixed
questions of law and fact,” and, therefore, we review the district court’s decision de
novo. Barzilay, 600 F.3d at 916. “We defer to the district court’s underlying factual
findings, however, unless they are clearly erroneous.” Id.
Habitual residence is determined as of the time “immediately before the
removal or retention” and depends on “past experience, not future intentions.”
Silverman v. Silverman, 338 F.3d 886, 897-98 (8th Cir. 2003) (en banc). Habitual
residence encompasses “some form of settled purpose” but only requires that “the
family . . . have a sufficient degree of continuity to be properly described as settled.”
Id. at 898 (quotation omitted). However, “[t]his settled purpose need not be to stay
in a new location forever.” Id. The Eighth Circuit determines settled purpose “from
the child’s perspective, although parental intent is also taken into account.” Id. That
said, parental intent need not be completely clear, see Barzilay, 600 F.3d at 918, and
“one spouse harboring reluctance during a move does not eliminate the settled
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purpose from the [child’s] perspective,” Silverman, 338 F.3d at 899. In addition to
settled purpose and parental intent, relevant factors include “the change in geography,
the passage of time, and the acclimatization of the child to the new country.” Stern
v. Stern, 639 F.3d 449, 451 (8th Cir. 2011) (quotation omitted).3
The district court did not err in finding that O.N.C.’s habitual residence is the
United States. From O.N.C.’s perspective, his move to the United States has resulted
in “a sufficient degree of continuity to be properly described as settled.” Barzilay,
600 F.3d at 918 (quotation omitted). The record supports that the alleged wrongful
retention occurred either in July 2014, when Ocean filed for divorce, or in October
2014, when the six-month period under the travel agreement expired. At either of
these junctures, O.N.C. had been living in the United States for almost two years—a
significant portion of his young life. From his perspective, his family had moved to
the United States indefinitely and established a home there, and he maintained
considerable connections to his environment. O.N.C.’s mother obtained employment,
purchased a vehicle, and rented an apartment for the family. O.N.C. attended school
and speech-therapy classes, had a pediatrician, socialized with friends, and had
extended family in the area. During the relevant time period, he primarily spoke
English and participated in activities at his local Jewish Community Center. At the
same time, little evidence establishes O.N.C.’s connection to Israel. In sum, O.N.C.
experienced “a clear change in geography” and had acclimated to life in the United
States. See Sorenson v. Sorenson, 559 F.3d 871, 873-74 (8th Cir. 2009) (finding
3
Yaccov urges the court to adopt the standard applied in the Second Circuit,
among others, which gives dispositive weight to parental intent. See, e.g., Gitter v.
Gitter, 396 F.3d 124, 134 (2d Cir. 2005) (concluding that the first step in determining
a child’s habitual residence is to “inquire into the shared intent of those entitled to fix
the child’s residence (usually the parents) at the latest time that their intent was
shared”). However, this court, sitting en banc, declined to adopt this standard and
decided that we determine habitual residence from “the child’s perspective.”
Silverman, 338 F.3d at 898; see also Stern, 639 F.3d 452 (noting the circuit split).
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habitual residence in Australia where the child moved to Australia with her family
and their possessions, had spent most of her life in Australia, attended preschool and
had friends in Australia, and spoke with an Australian accent).
Moreover, the parents’ intent supports this conclusion. Both Yaccov and
Ocean intended to move O.N.C. to the United States for at least three to five years,
if not indefinitely. They applied together for O.N.C.’s U.S. citizenship and planned
for Ocean and O.N.C. to settle in St. Louis and establish a home there until Yaccov
could join them. In furtherance of this plan, Ocean established a life in St. Louis—all
the while sending money to Yaccov in an effort to enable him to join his family. Both
parties understood that O.N.C. would be without Yaccov for a significant period of
time and that Ocean would establish a home in his absence.
Although Yaccov claims that the relocation was temporary and purely
conditioned on his ability to join the family, this idea first appears in the travel
agreement, which was drafted and signed well after the move and coincided with the
deterioration of the marriage in April 2014. Moreover, even if we consider the
agreement as conveying parental intent, the agreement itself contemplates an
eventuality in which Ocean and O.N.C. would remain in the United States. That is,
if Yaccov breached the condition that he “stay away from crime and not get into
trouble,” then he could not expect Ocean and O.N.C. to return to Israel. The record
reflects that this is precisely what occurred, as Yaccov was arrested for driving
without a valid license in August 2014. Given the lower weight afforded parental
intent and that the record cuts against Yaccov’s interpretation, we agree with the
district court that Yaccov has not demonstrated by a preponderance of the evidence
that O.N.C.’s habitual residence is Israel.
Accordingly, the district court did not err in finding that O.N.C.’s habitual
residence is the United States and, thus, that the retention was not wrongful within
the meaning of the Convention.
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III. Conclusion
For the foregoing reasons, we affirm.
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