Adkins v. Adkins

Filing 44

ORDER GRANTING #1 PETITION FOR RETURN OF CHILD UNDER SIXTEEN YEARS OLD. ***Civil Case Terminated.***Signed by Judge Haywood S. Gilliam, Jr. on 10/7/2019. (ndrS, COURT STAFF) (Filed on 10/7/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ARTEMIZ ADKINS, Plaintiff, 8 v. 9 10 GARRETT ADKINS, ORDER GRANTING PETITION FOR RETURN OF CHILD UNDER SIXTEEN YEARS OLD Re: Dkt. No. 1 Defendant. 11 United States District Court Northern District of California Case No. 19-cv-05535-HSG 12 Pending before the Court is the petition filed by Petitioner Artemiz Adkins for the return of 13 14 her daughter A.F.A. to Switzerland pursuant to the Hague Convention on the Civil Aspects of 15 International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, as implemented by the International 16 Child Abduction Remedies Act (“ICARA”), codified at 42 U.S.C. §§ 11601, et seq. (“the 17 Convention”). Dkt. No. 1. The Court has considered the parties’ testimony and evidence submitted at the evidentiary 18 19 hearing; each of the declarations submitted by Petitioner and Respondent Garett Adkins, including 20 their submissions in support of and in opposition to Petitioner’s motion for a Temporary 21 Restraining Order; the Verified Petition; and the Response to the Petition. Having considered the 22 evidence carefully, the Court now finds that at the time of the alleged wrongful retention, A.F.A. 23 was, and now remains, a habitual resident of Switzerland, and GRANTS the Petition. 24 25 I. BACKGROUND A. Procedural Background 26 Petitioner filed the instant petition on September 3, 2019, along with a motion for a 27 temporary restraining order. See Dkt. Nos. 1, 6–9. On September 13, 2019, the Court granted in 28 part Petitioner’s motion for a temporary restraining order. See Dkt. No. 26. The Court ordered 1 that Respondent, as he agreed, is prohibited from directly or indirectly removing A.F.A. from the 2 Northern District of California, until further order of the Court. Id. at 3. On October 1, the Court 3 held an evidentiary hearing. See Dkt. No. 41. During the evidentiary hearing, the Court heard the 4 parties’ direct testimony; the parties were cross-examined; and the Court also admitted and 5 considered exhibits regarding the parties’ communications about A.F.A. and the parties’ move to 6 Switzerland. See id. The Court also considered the parties’ trial briefs. See Dkt. Nos. 39, 40. 7 8 B. Findings of Fact Petitioner and Respondent married in 2005, and lived together in Scottsdale, Arizona. See Dkt. No. 1 at 3; Dkt. No. 8 at ¶ 1; Dkt. No. 27 at ¶ 2. In 2014, while they were living in Arizona, 10 their daughter, A.F.A., was born. See Dkt. No. 1 at 3; Dkt. No. 8 at ¶ 2; Dkt. No. 27 at ¶ 2, Ex. A. 11 United States District Court Northern District of California 9 In 2016, Petitioner and Respondent decided to move to Switzerland. See 10/1/2019 12 Evidentiary Hearing Transcript (“Tr.”) at 10:16–11:5; 24:5–21. They had been discussing the 13 move for several years, following a joint trip to Switzerland in 2012. Id. Petitioner, in turn, had 14 been considering refocusing her career away from her physically demanding position as a clinical 15 dentist to something more sustainable in the long term. See id. at 10:4–15; 12:25–13:6. 16 Petitioner and Respondent researched their move extensively, including quality of life, education, 17 healthcare, and pensions in Switzerland. See id. at 24:5–17; 34:22–35:9; 119:3–14. 18 The family then prepared for the move: Petitioner, who had owned a clinical dental 19 practice in Arizona, sold the practice in January 2017. See id. 11:14–16. The entire family then 20 took a trip to Zurich, from March to June 2017, to explore possible employment opportunities. 21 See id. 11:7–24. Petitioner began talking with the Straumann Group about a possible employment 22 opportunity in Basel, Switzerland, and eventually signed a contract accepting full-time 23 employment in July 2017. See id. at 10:6–11; 13:12–16; Pet. Trial Exs. 4, 22. Petitioner was set 24 to begin work in November 2017. Id. Upon the family’s return to Arizona, they lived in 25 temporary housing and Petitioner sought temporary work as she was the primary breadwinner at 26 the time. See Tr. at 11:21–12:5; 13:20–14:23. She worked as a contract dentist temporarily in 27 Arizona. Id. But Petitioner canceled her professional liability insurance in July 2017. See id. at 28 13:17–21; Pet. Trial Ex. 3. The family also either sold or packed most of their belongings. See 2 1 Tr. at 25:3–10. 2 In late October 2017, Petitioner, Respondent, and A.F.A. moved to Switzerland. See Dkt. 3 No. 1 at 3; Dkt. No. 8 at ¶ 2; Dkt. No. 27 at ¶ 4; Tr. at 15:7–9. Through Petitioner’s position with 4 the Straumann Group, the parties and A.F.A. obtained Swiss “B permits,” which allowed them to 5 reside in Switzerland. See Dkt. No. 27 ¶ 4; Tr. at 18:12–20:2; 50:12–22; 70:14–71:11; 99:4–5; 6 Pet. Trial Ex. 35. The permits may be renewed annually. See Tr. at 19:5–12. After five years, 7 permit holders may apply for permanent residency. See id. During the parties’ first three months 8 in Switzerland, they lived in temporary corporate housing through the Straumann Group, but they 9 signed a lease on a home in Basel, Switzerland on January 27, 2018. See Tr. at 16:18–18:9; Pet. Trial Ex. 6. The lease has no fixed term; neither Petitioner nor Respondent has cancelled the 11 United States District Court Northern District of California 10 lease; and it remains in effect. Id. 12 From November 2017 to December 2018, A.F.A. lived in Switzerland continuously with 13 Petitioner and Respondent. See Dkt. No. 8 at ¶ 3; Dkt. No. 27 at ¶¶ 4–5, 10. She attended daycare 14 in Basel, Switzerland, beginning in January 2018. See Dkt. No. 30 ¶ 4; Dkt. No. 30-1, Ex. A; Tr. 15 at 27:25–29:4. She had a network of friends from daycare and through Petitioner’s colleagues, 16 who have children of similar ages. See Dkt. No. 30 ¶ 5; Tr. at 29:10–25. Petitioner and 17 Respondent also anticipated sending A.F.A. to a German-speaking kindergarten in Basel 18 beginning in 2019. See Tr. at 28:14–24; 30:1–31:19; 85:23–87:17; Dkt. No. 30-3, Ex. C. Thus, in 19 June 2018, Petitioner and Respondent filled out a language competency questionnaire. See id. 20 The Basel Department of Education directed the parties to confirm A.F.A.’s attendance at a 21 German-speaking institution from August 2018 to June 2019 in preparation for kindergarten. See 22 Dkt. No. 30-3, Ex. C. A.F.A.’s daycare qualified, as its base language was German, though 23 children and teachers spoke multiple languages. See Dkt. No. 30 ¶ 8; Tr. at 28:19–24. 24 During the evidentiary hearing, Respondent raised for the first time that he and his family 25 only moved to Switzerland on a trial or other temporary basis, and that the move was conditioned 26 on him finding employment once there. See Tr. at 111:16–115:2. The Court does not find 27 Respondent’s testimony on this issue credible. As an initial matter, Respondent did not proffer 28 these facts in his prior declaration to the Court, though he had the opportunity to do so. See Dkt. 3 No. 27; see also Tr. at 97:23–98:5; 110:7–12. Rather, he acknowledged that the family moved to 2 Switzerland in 2017, and he moved back to the United States only after it was clear that he and 3 Petitioner would not reconcile. See Dkt. No. 27 at ¶¶ 4–6, 10–11, 15; cf. Mozes, 239 F.3d at 1076 4 (acknowledging circumstances where “the family as a unit has manifested a settled purpose to 5 change habitual residence, despite the fact that one parent may have had qualms about the move”). 6 Additionally, Respondent was evasive and vague when questioned about the nature of the 7 conversations that he had with Petitioner about the move. See Tr. at 111:16–115:2. Both before 8 and after the move, however, Respondent actively sought employment in Switzerland. See Dkt. 9 No. 27 at ¶ 5; Tr. at 111:9–10. Indeed, Respondent repeatedly told prospective employers—as late 10 as July 2018—that he was living with his family in Switzerland “on a permanent basis.” See, e.g., 11 United States District Court Northern District of California 1 Tr. at 25:7–27:18; 110:13–111:10; Pet. Trial Exs. 7, 9, 12–13, 15–16. During the hearing, 12 Respondent suggested that he made less-than-candid representations in the letters to appear more 13 employable. See Tr. at 110:13–111:10; 111:16–21. Of course, Respondent’s supposed 14 willingness to shade the truth when he thinks it to his advantage to do so hardly helps his 15 credibility before the Court.1 Petitioner, on the other hand, credibly explained that the parties had 16 agreed to move to Switzerland permanently, and her account is supported by other external 17 evidence as explained above. See, e.g., Tr. at 116:1–117:11, 119:3–120:15. In short, the Court 18 finds that the parties intended to move to Switzerland permanently. 19 However, in December 2018, before A.F.A. began kindergarten, Petitioner and 20 Respondent separated. See Dkt. No. 8 at ¶ 4; Dkt. No. 27 at ¶ 10; Tr. at 32:2–8. Petitioner and 21 Respondent discussed how they would manage sharing time with A.F.A. See Tr. at 34:4–35:24. 22 Petitioner and Respondent determined that A.F.A. would reside in Switzerland with Petitioner, 23 where A.F.A. would go to school as planned. See Tr. at 34:4–35:24; 48:22–49:1. Respondent, on 24 the other hand, intended to return to California, where he grew up and where his family still lives, 25 26 27 28 Compare also Pet. Trial Ex. 19 at 3–4 (email in which Respondent represented that “[Petitioner] and I discussed the opportunity last night and concluded that me pursuing the role at Straumann was not in either of our best interests”) with Tr. at 82:13–83:1 (Respondent eventually asserted that his statement in the this email was “untrue,” and that he made this supposedly false statement “for [Petitioner’s] sake,” so as not to “jeopardize her job or her possibilities of advancement or anything like that”). 4 1 1 to live and find work. See Dkt. No. 8 at ¶ 4; Dkt. No. 27 at ¶ 6; Tr. at 34:22–35:9. The parties had 2 previously planned to visit their families in the United States for the winter holidays, so they 3 decided to keep these plans and tell their families about the separation in person. See Tr. at 32: 4 21–33:6. They returned to Switzerland in January 2019. See id. 33:9–12. At that time, 5 Respondent returned his Swiss B permit to the migration office in Basel. See Tr. at 18:21–19:3; 6 98: 23–99:3; Pet. Trial Ex. 35 at 2. 7 Before leaving for the United States again, Respondent helped register A.F.A. for kindergarten in Basel. See Pet. Trial Ex. 20. He signed and submitted the school registration 9 form. See id.; Tr. at 35:25–38:14; 85:17–87:20; 93:17–95:6; 98:12–20; 100:11–19; see also Dkt. 10 No. 27 at ¶ 11. In May 2019, the parties received the confirmation notice that indicated which of 11 United States District Court Northern District of California 8 the two local kindergartens A.F.A. would be attending. See Tr. at 39:10–20; 41:9–42:6. The 12 school year was set to begin August 12, 2019. See id. at 39:21–24. 13 Respondent left Switzerland voluntarily on January 31, 2019. See Pet. Trial Ex. 35 at 2. 14 To make the transition easier on A.F.A., Petitioner and Respondent shared time roughly equally 15 with their daughter before she was scheduled to begin school, with A.F.A. traveling back and forth 16 from Switzerland to the United States. See Tr. at 6:13–7:1; 38:15–25; 39:25–41:1; 43:22–46:16; 17 94:25–95:6. But as Respondent acknowledged, this arrangement was only temporary: once 18 A.F.A. began school in Switzerland, she would not be able to travel as readily. See Tr. at 93:17– 19 95:6; Pet. Trial Ex. 23. During the evidentiary hearing, Respondent suggested that he thought 20 A.F.A. would continue to fly back and forth to the United States even after starting school. See 21 Tr. at 94:25–95:6. Again, the Court does not find Respondent’s testimony credible, especially 22 when viewed in context. For example, via text message, Respondent told Petitioner in April 2019, 23 “[r]emember after [A.F.A.’s] Kindergarten starts and I get a job, I won’t be able to see her as 24 frequent[ly].” See Pet. Ex. 23 at 2; see also Tr. at 103:17–104:14; Pet. Ex. 25. 25 As late as August 2019, Petitioner believed her agreement with Respondent remained 26 intact, and Respondent would return A.F.A. to begin school in Switzerland by August 12. At that 27 time, A.F.A. had been visiting Respondent since July 2019 in the United States. See Tr. at 6:13– 28 7:1; 38:15–25; 39:25–41:1; 43:22–46:16; 94:25–95:6. On August 2, 2019, Petitioner asked when 5 1 Respondent would bring A.F.A. back to Switzerland for kindergarten, and he gave no indication 2 that he disagreed with A.F.A. beginning school on August 12. See Pet. Trial Ex. 28. Rather, he 3 reassured Petitioner, explaining “I’m working on everything honey.” Id. Only later did 4 Respondent explain to Petitioner that he had changed his mind about where A.F.A. should live and 5 go to school. See Tr. at 99:23–102:1. Respondent retained an attorney who helped him (1) file for 6 dissolution of marriage in California on August 1, 2019; and (2) explain to Petitioner via email 7 dated August 5, 2019, that Respondent would not return A.F.A. to Switzerland unless Petitioner 8 agreed not to put her in any formal schooling there. See Tr. at 46:24–49:1; 105:12–109:14; Dkt. 9 No. 8-5 Ex. E; Dkt. No 27, Ex. A. Thus, A.F.A. remained with Respondent in California from early July 2019. See Dkt. No. 8 at ¶ 7; Dkt. No. 27 at ¶ 10. Petitioner, in turn, filed petitions with 11 United States District Court Northern District of California 10 a Swiss court, on August 13 and 16, 2019, seeking various relief prior to filing this petition 12 pursuant to the Hague Convention. See Dkt. No. 8-7, Ex. G. 13 II. JURISDICTION This Court has jurisdiction over actions brought under the Hague Convention through 14 15 ICARA. See 42 U.S.C. §§ 11601 et. seq. 16 III. 17 LEGAL STANDARD The Convention “was adopted in 1980 in response to the problem of international child 18 abductions during domestic disputes [and] . . . seeks to secure the prompt return of children 19 wrongfully removed to or retained in any Contracting State.” Abbott v. Abbott, 560 U.S. 1, 8 20 (2010) (quotation omitted). “The Convention’s central operating feature is the return remedy. 21 When a child under the age of 16 has been wrongfully removed or retained, the country to which 22 the child has been brought must order the return of the child forthwith, unless certain exceptions 23 apply.” Id. (quotation omitted). 24 “[T]he Hague Convention analysis is not a determination of custody rights.” Shalit v. 25 Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999). Rather, “[t]he Convention . . . empower[s] courts in 26 the United States to determine only rights under the Convention and not the merits of any 27 underlying child custody claims.” 42 U.S.C. § 11601(b)(4); see also Cuellar v. Joyce, 596 F.3d 28 505, 508 (9th Cir. 2010) (“A court that receives a petition under the Hague Convention may not 6 1 resolve the question of who, as between the parents, is best suited to have custody of the child. 2 With a few narrow exceptions, the court must return the abducted child to [his or her] country of 3 habitual residence so that the courts of that country can determine custody.”). A petitioner seeking return of a child under the Convention must prove by a preponderance 4 5 of the evidence that the child “was wrongfully removed or retained” within the meaning of the 6 Convention. See 42 U.S.C. § 11603(e)(1)(A). A “wrongful removal or retention” involves a 7 breach of the non-removing parent’s “rights of custody,” which includes the right to care for the 8 child and determine his or her place of residence. The right at issue must (1) arise under “the law 9 of the state in which the child was habitually resident immediately before the removal and retention”; (2) have been “actually exercised” at the time of the removal or retention; and (3) relate 11 United States District Court Northern District of California 10 to a child under the age of sixteen. If the foregoing elements are proven, the court must “order the 12 return of the child forthwith.” Abbott, 560 U.S. at 8–9. The Ninth Circuit has created a four-step inquiry to determine whether a wrongful removal 13 14 or retention has occurred: “(1) When did the removal or retention at issue take place? 15 (2) Immediately prior to the removal or retention, in which state was the child habitually resident? 16 (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the 17 law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the 18 removal or retention?” Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). 19 IV. DISCUSSION 20 There is no dispute that Respondent retained A.F.A. during her visit to the United States in 21 August 2019. At that point, Respondent explained through his attorney that he would not arrange 22 for A.F.A. to return to Switzerland if Petitioner intended to put her in school there. See, e.g., Dkt. 23 No. 27, Ex. A. Accordingly, the critical question in this action is A.F.A.’s habitual residence as of 24 August 2019. See Asvesta v. Petroutsas, 580 F.3d 1000, 1017 (9th Cir. 2009) (identifying 25 “habitual residence” as “perhaps the most important inquiry under the Convention”). Petitioner 26 contends that A.F.A.’s habitual residence is Switzerland. See Dkt. No. 40 at 3–6. Respondent, on 27 the other hand, suggests that A.F.A.’s habitual residence is the United States because he had no 28 settled intent with Petitioner to change A.F.A.’s residence to Switzerland when they moved there 7 1 2 3 in 2017. See Dkt. No. 39 at 8–9. A. Habitual Residence The Hague Convention left “habitual residence” undefined to “leave the notion free from 4 technical rules which can produce rigidity and inconsistencies as between different legal systems.” 5 Mozes, 239 F.3d at 1071, & n.7. Nevertheless, the Ninth Circuit has noted the importance of 6 “intelligibility and consistency” over ad hoc determinations when analyzing a child’s habitual 7 residence. Id. at 1072, & n.10. The Ninth Circuit, therefore, has created an analytical framework 8 for district courts to follow. A court must “look for the last shared, settled intent of the parents.” 9 Murphy v. Sloan, 764 F.3d 1144, 1150 (9th Cir. 2014) (quotation omitted). Before a child may acquire a new habitual residence, the court must determine “whether there is a settled intention to 11 United States District Court Northern District of California 10 abandon a prior habitual residence.” Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir. 12 2007) (citing Mozes, 239 F.3d at 1075). “Where the child has a well-established habitual 13 residence, simple consent to [her] presence in another forum is not usually enough to shift the 14 habitual residence to the new forum.” Murphy, 764 at 1150 (quoting Mozes, 239 F.3d at 1081). 15 “Rather, the agreement between the parents and the circumstances surrounding it must enable the 16 court to infer a shared intent to abandon the previous habitual residence, such as when there is 17 effective agreement on a stay of indefinite duration.” Id. 18 The Ninth Circuit has further explained that shared parental intent is not always 19 dispositive. See Murphy, 764 F.3d at 1152–53. “Certain circumstances related to a child’s 20 residence and socialization in another country—a process called ‘acclimatization’—may change 21 the calculus.” Id. at 1152. However, “[t]o infer abandonment of a habitual residence by 22 acclimatization, the objective facts [must] point unequivocally to [the child’s] ordinary or habitual 23 residence being in [the new country].” Id. The Court addresses shared settled intent and 24 acclimatization in turn. 25 26 i. Shared Settled Intent The shared settled intent of the parents is a highly fact intensive inquiry. Courts have 27 considered myriad factors to determine intent, such as “parental employment in the new country of 28 residence; the purchase of a home in the new country and the sale of a home in the former country; 8 1 marital stability; the retention of close ties to the former country; the storage and shipment of 2 family possessions; the citizenship status of the parents and children; and the stability of the home 3 environment in the new country of residence.” Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 4 2009) (citing cases). 5 A.F.A. was born in the United States and lived there in Arizona with her parents from 6 December 2014 to October 2017. See Dkt. No. 8-1, Ex. A. However, applying the factors above, 7 the Court finds that Petitioner and Respondent had the shared settled intent to abandon the United 8 States when they moved to Switzerland in October 2017. Professionally, Petitioner and 9 Respondent severed their ties with the United States. Petitioner sold her dental practice; she cancelled her liability insurance; and both she and Respondent searched for positions in 11 United States District Court Northern District of California 10 Switzerland. See Dkt. No. 27 at ¶ 5; Tr. at 11:14–16; 13:17–21; 111:9–10; Pet. Trial Ex. 3. 12 Although Respondent was unsuccessful in his search, Petitioner accepted employment with the 13 Straumann Group in Basel, Switzerland, after discussing the opportunity with Respondent. See 14 Tr. at 10:6–11; 12:6–24; 13:12–16; 24:19–25:2; Pet. Trial Exs. 4, 22. The contract was not term- 15 or time-limited, and Petitioner continues to work for the company. See id. 16 This position enabled Petitioner, Respondent, and A.F.A. to reside in Switzerland and 17 obtain Swiss B permits. See Dkt. No. 27 ¶ 4; Tr. at 18:12–20:2; 50:12–22; 70:14–71:11; 99:4–5; 18 Pet. Trial Ex. 35. Respondent provided no evidence, and the Court has found none, to suggest that 19 if the parties had not separated, the entire family could not have continued living in Switzerland. 20 See id. Indeed, although Respondent returned his permit, both Petitioner and A.F.A. retain theirs. 21 See Tr. at 18:21–19:3; 98: 23–99:3; Pet. Trial Ex. 35 at 2. 22 Although Petitioner and Respondent had considered opening an investment clinic in the 23 United States prior to moving to Switzerland, and even continued inquiries a few months into their 24 move, neither Petitioner nor Respondent intended to work in the clinic. See Tr. at 20:9–23:17. 25 Rather, they anticipated hiring clinicians and using a property manager to run the day-to-day 26 matters. Id. As Petitioner explained, their efforts were intended to secure an investment property 27 that they could oversee from abroad for added revenue. Id. Despite these exploratory inquiries, 28 the clinic was never opened. See id.; Pet. Trial Ex. 11. 9 1 Petitioner and Respondent also owned no property in Arizona, living instead in temporary 2 housing while they sold or packed their belongings in anticipation of their move to Switzerland. 3 See Tr. at 11:21–12:5; 13:20–14:23; 25:3–10. The Court acknowledges that neither Petitioner nor 4 Respondent is from Switzerland, and that they have family who live in the United States. 5 However, that does not preclude Petitioner and Respondent from moving to a new country 6 permanently. Here, in advance of their move, they researched extensively what living in—not just 7 visiting—Switzerland would be like. Factors such as the quality of education, healthcare, 8 pensions, and longevity for people in Switzerland would be irrelevant had the move been intended 9 as a mere short-term “European experiment,” as suggested by Respondent. See Tr. at 24:5–17; 10 United States District Court Northern District of California 11 34:22–35:9; 111:22–112:5; 119:3–14. Once the family moved to Switzerland, they built a home there together for over a year. 12 See Mozes, 239 F.3d at 1078 (“[H]ome isn’t built in a day. It requires the passage of an 13 appreciable period of time . . . When the child moves to a new country accompanied by both 14 parents, who take steps to set up a regular household together, the period need not be long.”). 15 They secured a lease on a home with an indefinite term. See Tr. at 16:18–18:9; Pet. Trial Ex. 6. 16 Petitioner and Respondent enrolled A.F.A. in a German-speaking daycare. And even after their 17 separation, they enrolled her in kindergarten in Basel, Switzerland. See Tr. at 28:14–24; 30:1– 18 31:19; 85:23–87:17; Dkt. No. 30-3, Ex. C. Switzerland does not necessarily need to be where the 19 parties intended to live forever or “leave [their] bones.” Mozes, 239 F.3d at 1074. However, the 20 parties intended to abandon the United States for Petitioner’s position in Switzerland; they 21 intended to raise A.F.A. in Switzerland; and they intended to live in Switzerland for the 22 foreseeable future. 23 The Court understands that sometime after January 2019, following his separation from 24 Petitioner, Respondent changed his mind about where he wanted to live and where he wanted 25 A.F.A. to grow up. See Tr. at 99:23–102:1. In early 2019, Respondent tried to convince 26 Petitioner that they should move to California, where they have close family, describing it as “kind 27 of a win/win situation for the family unit instead of being half a world apart.” Id. at 49:3–24; 28 90:9–24. The Court acknowledges that Respondent may have wanted A.F.A. to move to 10 1 2 California, but this unilateral desire is not in itself sufficient to alter A.F.A.’s habitual residence. Respondent attempts to compare this case to the facts in Murphy v. Sloan, 764 F.3d 1144, 3 1151–53 (9th Cir. 2014), and Holder v. Holder, 392 F.3d 1009, 1018–20 (9th Cir. 2004), where 4 the courts found the families’ respective moves were only temporary. The Court is not persuaded. 5 In Murphy, following the parents’ separation, the father agreed that the child could accompany the 6 mother to Ireland for a “trial period” while she pursued a master’s degree. 764 F.3d at 1148–49, 7 1151–52. The district court found that not even the mother intended to live in Ireland 8 permanently, as she applied to graduate schools outside Ireland. Id. And in Holder, the family’s 9 move was based on the father’s military duty. 392 F.3d at 1017. The Ninth Circuit concluded that although the family sold their home in the United States, the family did not abandon the United 11 United States District Court Northern District of California 10 States as their place of habitual residence during the four-year tour of duty in Germany. Id. The 12 Court there noted that it was a close call, but the unique nature of military service persuaded it that 13 the parties did not have a shared intention to abandon the United States as the children’s habitual 14 residence. Id. The Court finds no such limitations on the parties’ move to Switzerland. 15 Having examined the facts for evidence of shared settled intent on the part of A.F.A.’s 16 parents regarding her residence, the Court finds that January 2019 was the last time that Petitioner 17 and Respondent had a shared, settled intent regarding A.F.A.’s habitual residence. At this time, 18 although separated, Petitioner and Respondent intended that A.F.A. would reside in Switzerland 19 and attend school there. 20 ii. 21 Acclimatization To the extent that Respondent attempts to argue, in the alternative, that A.F.A. has 22 somehow acclimatized to the United States such that it is her current—or second—habitual 23 residence, the Court is not persuaded. See Dkt. No. 39 at 8–9. Acclimatization occurs only in a 24 limited set of circumstances. First, “[w]hen a child has no clearly established habitual residence 25 elsewhere, it may become habitually resident even in a place where it was intended to live only for 26 a limited time.” Mozes, 239 F.3d at 1082. Second, a child’s residence may change by the passage 27 of time “if the child’s prior habitual residence has been effectively abandoned by the shared intent 28 of the parents.” Id. In the absence of either of these circumstances, however, “a prior habitual 11 1 residence should be deemed supplanted only where “the objective facts point unequivocally” to 2 this conclusion.” Id. To satisfy this test, the Court must be able to “say with confidence that the 3 child’s relative attachments to the two countries have changed to the point where requiring return 4 to the original forum would now be tantamount to taking the child ‘out of the family and social 5 environment in which its life has developed.’” Id. at 1081 (citing Elisa Perez–Vera, Explanatory 6 Report ¶ 11, in 3 Hague Conference on Private International Law, Acts and Documents of the 7 Fourteenth Session, Child Abduction 426 (1982)). Here, Respondent testified that he believed A.F.A. was “thriving” in the United States, 8 9 learning to swim and to ride a bike, for example. See Tr. at 95:9–97:14. Respondent also emphasized that she is close to Respondent’s family, who live in California. Id. at 112:13–113:2. 11 United States District Court Northern District of California 10 However, even accepting this as true, the Court cannot find that the months A.F.A. has spent in 12 the United States and these positive experiences render her life “so firmly embedded in the 13 [United States] as to make [her] habitually resident” there. Mozes, 239 F.3d at 1078. The Court 14 is also cognizant of the inherent risk in inferring that a child’s habitual residence has changed 15 based on acclimatizing to the country in which she is being retained. As the Ninth Circuit 16 explained, this could “circumvent the purpose of the Convention” because: 17 [I]t could open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit—such as having the child profess allegiance to the new sovereign. The function of a court applying the Convention is not to determine whether a child is happy where it currently is, but whether one parent is seeking unilaterally to alter the status quo with regard to the primary locus of the child’s life. 18 19 20 21 22 Mozes, 239 F.3d at 1079. Here, A.F.A.’s circumstances and quality of life in the United States 23 may be relevant to any future custody determination, but the record does not unequivocally 24 establish that A.F.A.’s habitual residence has changed from Switzerland to the United States. 25 26 B. Breach and Exercise of Petitioner’s Custody Rights Respondent does not appear to contest that, if Switzerland is A.F.A.’s habitual residence, 27 then he has wrongly retained her under the Hague Convention. Nor can he. At the time 28 Respondent retained A.F.A. in the United States, he and Petitioner were still (and remain) legally 12 1 married. Respondent has proffered no basis for the Court to find that Petitioner and Respondent 2 did not have joint custody of A.F.A. when he retained her in the United States. And the Ninth 3 Circuit has held that Petitioner’s burden in proving that she was exercising parental rights is 4 “minimal.” Asvesta, 580 F.3d at 1018. As the Court of Appeals noted, “requiring a petitioning 5 party to meet a high bar in demonstrating the actual exercise of custody rights contradict[s] the 6 Convention’s objective to reserve custody determinations for the country of habitual residence.” 7 Id. The Ninth Circuit has explained: 8 [I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. Once it determines that the parent exercised custody rights in any manner, the Court should stop – completely avoiding the question whether the parent exercised the custody rights well or badly. 9 10 United States District Court Northern District of California 11 12 13 Id. (quotation omitted). Here, there is no basis for the Court to conclude that Petitioner did not 14 exercise her custody rights. To the contrary, throughout A.F.A.’s visit to the United States, 15 Petitioner stayed in contact, and urged Respondent to return A.F.A. for kindergarten, which was 16 set to begin on August 12, 2019. See, e.g., Tr. at 42:16–48:21; Pet. Trial Exs. 23, 28. 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 13 1 2 V. CONCLUSION Having found that A.F.A.’s habitual residence is Switzerland, the Court concludes that 3 Respondent’s retention of A.F.A. in the United States is wrongful, and the Court GRANTS the 4 Petition. 5 • remain there until the courts of that country can resolve the custody issues; and 6 7 8 9 10 United States District Court Northern District of California 11 12 13 A.F.A. shall be returned to Switzerland within 14 days of this order and shall • Petitioner may file a motion pursuant to 42 U.S.C. § 9007(3), to recoup the fees and costs that she incurred to bring this petition, within 14 days of this order. The Clerk is directed to enter judgment in favor of Petitioner and close the case. IT IS SO ORDERED. Dated: 10/7/2019 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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