Murphy v. Sloan ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELAINE MARY MURPHY, No. 13-17339
Plaintiff-Appellant,
D.C. No.
v. 3:13-cv-04069-JST
WILLIAM MILLIGAN SLOAN,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted
August 13, 2014—San Francisco, California
Filed August 25, 2014
Before: Alex Kozinski, Chief Judge, and M. Margaret
McKeown and Richard R. Clifton, Circuit Judges.
Opinion by Judge McKeown
2 MURPHY V. SLOAN
SUMMARY*
Hague Convention
The panel affirmed the district court’s judgment in an
action under the Hague Convention on the Civil Aspects of
International Child Abduction, seeking the return of a child
to Ireland.
The panel affirmed the district court’s finding that the
child was a habitual resident of the United States, where she
resides with her father. Declining to adopt a habitual
residence standard that would focus on the subjective
experiences of the child, the panel held that the proper
standard, also adopted by other circuits, takes into account the
shared, settled intent of the parents and then asks whether
there has been sufficient acclimatization of the child to trump
this intent. The panel concluded that this standard was not
incompatible with international consensus. The panel
affirmed the district court’s finding that the child’s move to
Ireland was intended as a trial period, and there was no settled
mutual intent to abandon her prior habitual residence in the
United States. In addition, any acclimatization of the child to
Ireland did not overcome the absence of a shared settled
intention by the parents.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MURPHY V. SLOAN 3
COUNSEL
Thomas W. Wolfrum (argued), Walnut Creek, California;
Jeremy D. Morley, New York, New York, for Plaintiff-
Appellant.
William M. Sloan (argued), Mill Valley, California, In Pro
Per.
OPINION
McKEOWN, Circuit Judge:
In this case we consider the significance of a “trial
period” of residence on a child’s “habitual residence” under
the Hague Convention on the Civil Aspects of International
Child Abduction.1 Elaine Murphy seeks the return of her
child, E.S., to Ireland. We affirm the judgment of the district
court that E.S. was a habitual resident of the United States,
where she presently resides with her father, William Sloan.
Background2
Sloan, a citizen of the United States, and Murphy, a
citizen of Ireland, were married in California in 2000. They
lived together in Mill Valley, in California, and had a
1
Oct. 25, 1980, 19 I.L.M. 1501, as implemented by the International
Child Abduction Remedies Act (“ICARA”), 42 U.S.C. § 11601 et seq.
(hereinafter “the Hague Convention” or “the Convention”).
2
This background summary is based on the district court’s factual
findings.
4 MURPHY V. SLOAN
daughter, E.S., in 2005. In October 2009, Sloan told Murphy
that he felt their marriage was at an end, and moved to a
different bedroom in their house.
In January 2010, Murphy and Sloan enrolled E.S. in a
private California preschool for the next fall. But these plans
changed in the spring of 2010, after Murphy proposed
moving to Ireland so that she could get a master’s degree in
fine arts from University College Cork and so that E.S.
“could experience going to school” there. Murphy and Sloan
discussed the move to Ireland as a “trial period,” and Sloan
wrote to both the private preschool and the public school
district to inform them of E.S.’s move and the temporary
nature of the plan. (“This was very last minute, but we
decided to try living in Ireland for a year[.]”).
In early 2010, Sloan had purchased a second home in Mill
Valley so that E.S. could live easily with both parents. Sloan
and Murphy agreed to store Murphy’s belongings there
during Murphy’s time in Ireland, and to rent, rather than sell,
this home during her absence so that she would have a place
to live when she returned. Murphy moved with E.S. to Ireland
in August, and Sloan paid the rent on that home as well.
Sloan filed for divorce in October 2010, and served Murphy
shortly thereafter.
Over the next three years, E.S. attended school in Ireland,
but returned to the United States each February, April,
summer, Halloween and Thanksgiving to spend time with her
father and his extended family. Sloan visited Ireland each
December to spend Christmas with E.S. and Murphy.
Throughout E.S.’s time in Ireland, she continued to receive
her medical and dental care in California rather than in
Ireland.
MURPHY V. SLOAN 5
In the spring of 2013, Murphy applied to graduate school
in England. Over the previous two years, she had expressed
interest in applying to schools in New Haven, New York,
Providence and, as recently as October 2012, in California.
In April 2013, without Sloan’s knowledge or consent,
Murphy took E.S. out of school before the term had ended to
visit her boyfriend in the Maldives.3 She did not respond to
Sloan’s inquiries for five days. On May 1, Sloan wrote to
Murphy asking when E.S. would return to Ireland to resume
school, and stated, “If you do not tell me when you are going
to get back to Ireland, I am going to start looking into getting
her into school here in California for the remainder of the
year, and I will come pick her up if I have to.” Sloan wrote to
Murphy twice the following day, still attempting to find out
when she planned to return to Ireland and sending her links
to furnished rental units near E.S.’s school. Murphy’s only
response was to ask Sloan to review the draft of a paper she
had written for graduate school. She did not return with E.S.
to Ireland until May 7, 2013, by which time E.S. had missed
nineteen days of school.
Sloan arrived in Ireland on June 12, 2013, planning to
celebrate E.S.’s birthday on June 13, depart on June 16, and
return to Ireland on June 26 to bring E.S. back to California
for the summer. On the day of Sloan’s arrival, Murphy
informed him that her landlord had terminated her lease, and
that she was planning to leave again for Asia with E.S.
3
Murphy has a boyfriend named Ahmed Abbas. The two became
friends at some point in 2009, and their relationship later developed into
a romantic one before Murphy moved to Ireland in 2010. Abbas, a
businessman, lives in Sri Lanka and spends considerable time in the
Maldives and provides Murphy with financial support.
6 MURPHY V. SLOAN
Sloan, concerned about E.S.’s absences from school,
objected strenuously and begged Murphy to allow E.S. to
finish her last two weeks of school in Ireland, offering to pay
for a hotel. When Murphy refused to consider this option, and
because Sloan’s work commitments prevented him from
remaining in Ireland until E.S.’s semester was complete two
weeks later, Sloan took E.S. with him to the United States
when he left Ireland on June 16. Murphy did not object, and
told Sloan she was applying to graduate programs in England
and the United States. The next day, Murphy flew to the
Maldives, and spent much of the summer there and in Sri
Lanka with her boyfriend.
Murphy and Sloan agree that on June 21, 2013, Sloan told
Murphy that he did not intend to return E.S. to Ireland, to
which Murphy responded that if E.S. was going to live in the
United States, Murphy would move next to him in Mill
Valley. Murphy took no action to compel E.S.’s return to
Ireland for nearly three months, until September 2013, when
she filed the action that led to the present appeal.
E.S. began third grade in Mill Valley in August 2013. In
October 2013, the Marin County Superior Court entered a
judgment dissolving the marriage, but left pending the state
court action for purposes of issuing further orders regarding
child custody, child support and spousal support.
Murphy brought suit under the Hague Convention to
compel E.S.’s return to Ireland, contending that Ireland was
E.S.’s “habitual residence.” The district court denied
Murphy’s petition after considering Murphy and Sloan’s
sworn declarations, testimony and documents presented at an
evidentiary hearing and depositions of Murphy’s boyfriend
and an expert witness. It determined with a “high degree of
MURPHY V. SLOAN 7
conviction” that “Murphy and Sloan never had the shared,
settled intent to shift E.S.’s habitual residence from the
United States to Ireland,” and found that the spring of 2010
was the last time that Sloan and Murphy had a shared, settled
intent, which was that E.S. reside in California. The court
concluded that “E.S. was, at the time of the alleged wrongful
retention, and now remains, a habitual resident of the United
States.”
DISCUSSION
I. The Hague Convention Framework for Habitual
Residence
The Hague Convention, which was drafted in response to
concerns about “unilateral removal or retention of children by
parents, guardians or close family members,” seeks to prevent
forum shopping in custody battles. Mozes v. Mozes, 239 F.3d
1067, 1070–72 (9th Cir. 2001) (internal quotation marks
omitted). Under Article 3 of the Convention,
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, 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
8 MURPHY V. SLOAN
alone, or would have been so exercised but for
the removal or retention.
Convention, art. 3, 19 I.L.M. at 1501 (emphasis added).
“[W]hen a child who was habitually residing in one signatory
state is wrongfully removed to, or retained in, another, Article
12 provides that the latter state ‘shall order the return of the
child forthwith.’” Mozes, 239 F.3d at 1070 (quoting
Convention, art. 12, 19 I.L.M. at 1502). The United States
and Ireland are both signatories to the Convention.
Determination of “habitual residence” is “perhaps the
most important inquiry under the Convention.” Asvesta v.
Petroutsas, 580 F.3d 1000, 1017 (9th Cir. 2009). In giving
practical application to this term, we are bound by the
language of the Convention, along with our decision in
Mozes, which sets forth the governing framework.
To determine a child’s habitual residence, we “look for
the last shared, settled intent of the parents.” Valenzuela v.
Michel, 736 F.3d 1173, 1177 (9th Cir. 2013). Where a child
has a “well-established habitual residence, simple consent to
[her] presence in another forum is not usually enough to
shift” the habitual residence to the new forum. Mozes,
239 F.3d at 1081. “Rather, 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.” Id.The parents’ intent is not the only factor to consider. As
we explained in Mozes, the question is “whether we can say
with confidence that the child’s relative attachments to the
two countries have changed to the point where requiring
MURPHY V. SLOAN 9
return to the original forum would now be tantamount to
taking the child out of the family and social life in which its
life has developed.” Id. (internal quotation marks omitted).
Murphy urges us to adopt a habitual residence standard
that would focus on the subjective experiences of the child,
contending that Mozes is out of step with our sister circuits
and international consensus. We decline to accept Murphy’s
formulation. For one, nearly every circuit has adopted our
view of the proper standard for habitual residence, which
takes into account the shared, settled intent of the parents and
then asks whether there has been sufficient acclimatization of
the child to trump this intent. Id. at 1076–79; see, e.g., Darín
v. Olivero-Huffman, 746 F.3d 1, 11 (1st Cir. 2014); Gitter v.
Gitter, 396 F.3d 124, 134 (2d Cir. 2005); Karkkainen v.
Kovalchuk, 445 F.3d 280, 292 (3d Cir. 2006); Maxwell v.
Maxwell, 588 F.3d 245, 253–54 (4th Cir. 2009); Larbie v.
Larbie, 690 F.3d 295, 310–11 (5th Cir. 2012); Koch v. Koch,
450 F.3d 703, 717–18 (7th Cir. 2006); Ruiz v. Tenorio,
392 F.3d 1247, 1252–54 (11th Cir. 2004) (per curiam). But
see Robert v. Tesson, 507 F.3d 981, 991 (6th Cir. 2007)
(focusing “solely on the past experiences of the child, not the
intentions of the parents”).
For another, we do not view Mozes as incompatible with
international consensus. Murphy argues that in foreign courts,
parental intent is “only one of the factors that may be
relevant” to the habitual residence inquiry. She points to
decisions of courts in Australia, Canada, the European Union,
Ireland, New Zealand and the United Kingdom, contending
that some of these countries place a greater emphasis on a
child’s surroundings or “actual centre of interests” in
determining habitual residence than we do. Although the
language of the Convention is universal, we recognize that
10 MURPHY V. SLOAN
courts around the world may have somewhat varied
approaches to balancing the factors relevant to the
determination of a child’s habitual residence, including
parental intent and the child’s circumstances. But even
counsel for Murphy acknowledges that courts in Britain, the
European Union and New Zealand, among others, look to
many factors in determining a child’s habitual residence,
including parental intent. In this regard, our decision in
Mozes—by which we are bound—is not inconsistent with
recent decisions of international courts.4 We are not
persuaded that there has been a worldwide sea change since
Mozes—let alone a new worldwide consensus—that would
warrant a suggestion to reconsider our decision. Nor, of
course, are we free to ignore binding circuit precedent.
II. Shared, Settled Intent
Because the issue of “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, we begin
with the court’s findings.5 In conducting our review, we give
4
We note, for example, that although counsel for Murphy emphasizes
a recent change in British law, post-dating Mozes, even the newest British
cases emphasize that parental intent plays a role in determining a child’s
habitual residence, alongside other considerations. See, e.g., In re KL
[2013] UKSC 75 at ¶ 23 (noting that “it is clear that parental intent does
play a part in establishing or changing the habitual residence of a child”).
5
Although the official report of the Convention describes habitual
residence as a “question of pure fact,” “this has not been understood to
mean that [the determination] is left entirely within the unreviewed
discretion of the trial court.” Mozes, 239 F.3d at 1071, 1073. Instead, we
review “essentially factual questions for clear error and the ultimate issue
of habitual residence de novo.” Valenzuela, 736 F.3d at 1176 (internal
quotation marks omitted).
MURPHY V. SLOAN 11
“appropriate deference to the district court’s findings of fact
and credibility determinations.” Papakosmas v. Papakosmas,
483 F.3d 617, 623 (9th Cir. 2007).
It is undisputed that before she left for Ireland, E.S.’s
habitual residence was the United States. In concluding that
“the parties never had a ‘shared settled intent’ that E.S.’s
habitual residence would be Ireland,” and that “E.S. never
abandoned her habitual residence in the United States,” the
district court made a number of factual findings. These
include the finding that the last “shared, settled intent
regarding E.S.’s habitual residence” was in the spring of 2010
(United States); that “Murphy’s move to Ireland with E.S.
was intended as a ‘trial period,’ and that E.S. never
abandoned her habitual residence in the United States”; that
E.S. retains strong ties to community and family in California
and elsewhere in the United States; that Murphy had no fixed
residence in Ireland as of the date of the wrongful retention;
that many of Murphy’s and E.S.’s possessions remained in
California; and that E.S. was continuing to spend part of the
year in California with Sloan. The district court further noted
that E.S. retained both U.S. and Irish citizenship; that Murphy
has a California driver’s license, but not an Irish one; and that
Murphy had no permanent home or longer-term lease or
means of support in Ireland, and no longer had any
attachment to Ireland in terms of work or schooling after she
completed her master’s degree in October 2013.
To be sure, in cases in which parents “have shared a
settled mutual intent that [a] stay [abroad] last indefinitely,”
“we can reasonably infer a mutual abandonment of the child’s
12 MURPHY V. SLOAN
prior habitual residence.” Mozes, 239 F.3d at 1077.6 But this
is not such a case. Rather, this case falls in the alternative
category identified in Mozes: one in which the “circumstances
are such that, even though the exact length of the [child’s]
stay was left open to negotiation, the court is able to find no
settled mutual intent from which abandonment can be
inferred.” Id.; see id. at 1077–78 (noting that “[c]learly, this
is one of those questions of ‘historical and narrative facts’ in
which the findings of the district court are entitled to great
deference”). Indeed, there was never any discussion, let alone
agreement, that the stay abroad would be indefinite. As the
district court expressly found, the move to Ireland was
“intended as a ‘trial period,’” not as a permanent relocation.
The facts do not evince a shared, settled intent to abandon
the United States as E.S.’s residence. Instead, they point to
the opposite conclusion. Sloan never intended that the stay in
Ireland be anything but a “trial period.” Murphy, moreover,
did not have a settled intent to remain in Ireland, either alone
or with E.S., as in the last two years she had applied or had
considered applying to graduate schools outside of Ireland,
including in the United States, and had not enrolled E.S. in
6
Mozes notes that where a parent who “agrees to . . . an arrangement
without any clear limitations” whereby a “child goes to live with a parent
in that parent’s native land,” the parent “may well be held to have
accepted th[e] eventuality” that the child “will soon begin to lose its
habitual ties to any prior residence.” 239 F.3d at 1082. The scenario in
Mozes, however, describes a situation in which the parents agree to an
arrangement “on an open-ended basis,” or have a “settled intent in favor
of indefinite residence.” Id. As noted above, the present case falls into a
different category: arrangements whose exact length are left open but
where there is no settled intent. Notably, Sloan never “accepted th[e]
eventuality” that E.S. would lose her ties to him or to his country. See id.MURPHY V. SLOAN 13
school in Ireland for the fall of 2013.7 When Sloan took E.S.
back to California and told Murphy that E.S. would be
enrolling in school in Mill Valley, Murphy did not object, and
instead stated “th[at] she was applying to graduate programs.”
Murphy told Sloan on June 21, 2013 that if E.S. was moving
back to the United States, she would move next to him in Mill
Valley.8
The district court’s factual findings are not clearly
erroneous, nor do we disagree with its conclusion that E.S.
never abandoned her habitual residence in the United States.
III. Acclimatization
Shared parental intent is not always dispositive. Certain
circumstances related to a child’s residence and socialization
in another country—a process called “acclimatization”—may
change the calculus. To infer abandonment of a habitual
residence by acclimatization, the “objective facts [must] point
7
We cite the uncertainty of Murphy’s plans—which included the
possibility of returning to the United States—not to penalize her for
weighing her options, but as evidence that there was no settled intent on
her part, let alone an intent shared with Sloan, to change E.S.’s habitual
residence.
8
Murphy argues that Sloan’s proposed draft marital settlement proves
that Sloan had conceded that E.S.’s habitual residence would be Ireland.
To begin, the specifics of the settlement proposals can hardly be
characterized as evidence of anything. The initial draft of the proposal,
noting that E.S. would spend part of her time in Ireland, was replaced by
a subsequent draft that omitted the country of Murphy’s future residence.
At best, the draft documents speak to possible future residence, not the last
shared, settled intent of the parents. These documents simply show that the
parties were continuing to use courts in California to arrange their affairs,
including child custody.
14 MURPHY V. SLOAN
unequivocally to [the child’s] ordinary or habitual residence
being in [the new country].”9 Mozes, 239 F.3d at 1081(emphasis added) (internal quotation marks omitted).
We have cautioned that “courts should be slow to infer
from . . . contacts [with the new country] that an earlier
habitual residence has been abandoned,” id. at 1079, both
because the inquiry is fraught with difficulty,10 and because
readily inferring abandonment would circumvent the
purposes of the Convention.
Determinations regarding acclimatization are highly fact-
bound, and there is no bright line as to the temporal limits for
such adjustment. Nor should “acclimatization . . . be confused
with acculturation.” Papakosmas, 483 F.3d at 627. We agree
with the district court that the facts here do not point
“unequivocally” to the conclusion that Ireland had become
9
At oral argument, Murphy’s counsel argued that imposing an
“unequivocal” standard is at odds with the Convention. This position was
not advanced in the district court or in the briefs on appeal, and is thus
deemed waived. McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir.
2009).
10
See Mozes, 239 F.3d at 1079 (noting that the acclimatization inquiry
is “so vague as to allow findings of habitual residence based on virtually
any indication that the child has generally adjusted to life [in the new
country],” and that “[e]ven if deliberate manipulation [of a child or a
child’s residence by a parent] were not a danger, divining from a child’s
observed contacts in a new country whether it has come to reside there
habitually would be an enterprise fraught with difficulty. Children can be
remarkably adaptable and form intense attachments even in short periods
of time—yet this does not necessarily mean that the child expects or
intends those relationships to be long-lived. It is quite possible to
participate in all the activities of daily life while still retaining awareness
that one has another life to go back to.”)
MURPHY V. SLOAN 15
E.S.’s habitual residence. Although E.S. developed strong ties
to Ireland through school, extracurricular activities, and
contacts with Murphy’s family, she also maintained broad
and deep “family, cultural, and developmental ties to the
United States,” spent Halloween, Thanksgiving, Easter and
summers in the United States while living in Ireland,
“maintain[ed] a relationship with Sloan’s extended family,”
“maintain[ed] a community in Mill Valley” and “receive[d]
her dental and medical care in California” while living
overseas. The district court characterized her ties to the
United States as “robust.”
In light of these substantial ties to the United States and
our traditional caution about inferring abandonment, E.S.’s
time in Ireland, though significant, did not “unequivocally”
establish that she had abandoned the United States as her
habitual residence.11 In short, we agree with the district
court’s finding that E.S.’s attachments to Ireland “did not
shift the locus of [E.S.’s] development[,] and . . . any
acclimatization did not overcome the absence of a shared
settled intention by the parents to abandon the United States
as a habitual residence.”
AFFIRMED.
11
Where, as here, a child retains strong ties to the parent in the former
country, it “makes sense to regard the intentions of the parents as affecting
the length of time necessary for a child to become habitually resident,
because the child’s knowledge of these intentions is likely to color its
attitude toward the contacts it is making.” Mozes, 239 F.3d at 1079–80
(footnotes omitted).