Elaine Murphy v. William Sloan
FILED OPINION (ALEX KOZINSKI, M. MARGARET MCKEOWN and RICHARD R. CLIFTON) AFFIRMED. Judge: AK , Judge: MMM Authoring, Judge: RRC . FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
AUG 25 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELAINE MARY MURPHY,
Plaintiff - Appellant,
D.C. No. 3:13-cv-04069-JST
WILLIAM MILLIGAN SLOAN,
Defendant - Appellee.
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
Before: KOZINSKI, Chief Judge, and McKEOWN and CLIFTON, Circuit Judges.
Opinion by Judge 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
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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, 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 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
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”).
This background summary is based on the district court’s factual findings.
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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
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.
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.
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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
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
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that her landlord had terminated her lease, and that she was planning to leave again
for Asia with E.S.
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
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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 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.”
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,
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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
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
b) at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but
for the removal or retention.
Convention, 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
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
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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 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
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
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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 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
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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.
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  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”).
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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
“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
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).
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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 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
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.
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[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 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
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.
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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
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
unequivocally to [the child’s] ordinary or habitual residence being in [the new
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.
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country].”9 Mozes, 239 F.3d at 1081 (emphasis added) (internal quotation marks
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
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
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).
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.”)
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627. We agree with the district court that the facts here do not point
“unequivocally” to the conclusion that Ireland had become 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 . . .
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).
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any acclimatization did not overcome the absence of a shared settled intention by
the parents to abandon the United States as a habitual residence.”
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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.
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