Robert Hechter Silverman v. Julie Hechter Silverman , 312 F.3d 914 ( 2002 )

HEANEY, Circuit Judge.

Robert Silverman appeals the district court’s ruling that his children were not habitual residents of Israel at the time their mother brought them to the United States and that, even if they were, their return to Israel would be denied because doing so would pose a grave risk of harm to them. The issues before us are whether the district court (1) improperly determined that the Silverman children’s habitual residence is the United States; and (2) improperly applied the grave risk of harm defense by refusing to return the children to Israel. Because we affirm the district court on the first issue, we do not reach the second issue.

I. Standard of Review

Neither the Eighth Circuit nor international jurisprudence has articulated a standard of review for the consideration of habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, Dec. 23, 1981, 51 Fed.Reg. 10494, as implemented by the United States in the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610. Furthermore, “habitual residence” has not been defined in either the Convention or the Act, and courts must look to the legislative history for guidance on the matter. The official history and commentary in the Federal Register explains that “ ‘habitual residence’ ... is, in fact, a familiar notion of the Hague Conference, where it is understood as a ;purely factual concept, to be differentiated especially from that of the ‘domicile.’ ” Feder v. Evans-Feder, 63 F.3d 217, 228 (3d Cir.1995) (quoting Elisa Perez-Vera, “Report of the Special Commission,” Conference de law Haye de droit international prive: Actes et documents de la Quatorzieme session, Vol. III, Child Abduction, ¶ 60 at 189). “[T]he official history’s characterization of habitual residence as ‘a purely factual concept’ is powerful evidence that its drafters intended a determination of habitual residence to be one of fact, not of law.” Evans-Feder, 63 F.3d at 228 (Sarokin, J., dissenting).

The Ninth and Third Circuits have determined that habitual residence can raise mixed questions of fact and law and therefore should be reviewed de novo. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) (“Where, however, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then ... the question should be classified as one of law and reviewed de novo.”); Evans-Feder, 63 F.3d 217, 222 n. 9 (3d Cir.1995) (“[W]e believe that the 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 are not persuaded that in this circumstance the Silverman children’s habitual residence inquiry raises mixed questions of law and fact. Resolution of this case is largely fact-based, as are most cases arising under the Hague Convention. See, e.g., Mozes, 239 F.3d at 1076 (“[I]n those cases where intention or purpose is relevant — for example, where it is necessary to decide whether an absence is intended to be temporary and short-term — the intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child’s residence.”) (citation omitted); Evans-Feder, 63 F.3d at 229 (“[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.”); Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993) (“To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.”). In Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995), this circuit held that there is “no real distinction between habitual and ordinary residence,” and relied on In Re Bates, No. CA 122.89, High Court of Justice, United Kingdom (1989), which observed that:

It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or presuppositions.

It is quite evident that “[t]he jurisprudence of habitual residence has generally reflected the fact-bound nature of the inquiry.” Evans-Feder, 63 F.3d at 228 (Sarokin, J., dissenting).

In its conclusions of law, the district court found that the determination of habitual residence is a fact-based inquiry to be analyzed on a case-by-case basis. We agree with the court below that the Silverman children’s habitual residence is solely a question of fact, and we therefore review the district court’s holding for clear error.

Pursuant to the Hague Convention, Robert Silverman (Robert) must initially prove by a preponderance of the evidence that Julie Silverman (Julie) removed their children from their habitual residence, which Robert alleges is Israel. 42 U.S.C. § 11603(e)(1)(A). If he meets this burden, Julie must show by clear and convincing evidence the applicability of one of the exceptions set forth in Articles 13b or 20 of the Convention. 42 U.S.C. § 11603(e)(2)(A); Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 375-76 (8th Cir.1995). Because we believe the district court properly concluded that the boys’ habitual residence is the United States, we do not reach the affirmative defense presented by Julie.

The district court concluded that Sam and Jacob’s habitual residence never changed from the United States to Israel for the following reasons: with the exception of the eleven months that the boys lived in Israel (July 1999 through June 2000), they have lived their entire lives in the United States; their time in Israel would have been shortened had Julie been free to travel outside of Israel sooner; Julie’s residence in Israel was coerced; she moved to Israel to attempt to preserve her marriage, but did not intend to make Israel the family’s habitual residence; and there are questions regarding the family’s intent to live in Israel permanently. Furthermore, in January 2000, Julie and Robert returned to Minnesota to complete bankruptcy proceedings, where they both stated under oath that their permanent address was Plymouth, Minnesota. In April 2000, they filed a joint United States income tax form for 1999, which listed their address as Plymouth, Minnesota.

We conclude that the determination of Sam and Jacob’s habitual residence is a factual finding, and hold that the district court’s findings are not clearly erroneous. We affirm its ruling that the boys’ habitual residence is the United States.