ABOU-HAIDAR v. SANIN VAZQUEZ
FINDINGS OF FACT AND CONCLUSIONS OF LAW. See attached for additional details. Signed by Judge Amit P. Mehta on 10/09/2019. (lcapm1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARIA EUGENIA SANIN VAZQUEZ,
Case No. 1:19-cv-01687
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Petitioner Sami Abou-Haidar resides in Paris, France.
His wife, Respondent Maria
Eugenia Sanin Vasquez, lives in Washington, D.C. The couple’s daughter, E.A.-H.S., age four,
presently lives with her mother in Washington, D.C. Petitioner filed this action on June 10, 2019,
seeking return of E.A.-H.S. to France, pursuant to the 1980 Hague Convention on the Civil Aspects
of International Child Abduction.
The court held a two-day evidentiary hearing on the Petition on August 1 and 2, 2019.
The principal contested issues were: (1) whether Respondent had “wrongfully retained” E.A.-H.S.,
and (2) if she had, whether the United States or France was the child’s “habitual residence” on the
date of wrongful retention. On August 21, 2019, in an abbreviated order, the court ruled in favor
of Petitioner. See Order, ECF No. 38. The court found that Respondent had wrongfully retained
the couple’s daughter as of May 7, 2019, when she served upon Petitioner a Complaint for Custody
filed in the D.C. Superior Court. The court also concluded that, as of that date, E.A.-H.S.’s place
of “habitual residence” was France, and not the United States. See id. at 3–4. The court therefore
ordered the child’s return to France. 1
This Memorandum Opinion provides a more fulsome explanation of the court’s reasons
for granting the Petition.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction
(“Convention”), T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, is a multilateral treaty designed to
address “the problem of international child abductions during domestic disputes,” Abbott v. Abbott,
560 U.S. 1, 8 (2010). The Convention seeks “to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected in the other Contracting States” and
creates protocols “to secure the prompt return of children wrongfully removed to or retained in
any Contracting State.” Id. at 8 (quoting Convention, art. 1 (internal quotation marks and citation
omitted)). The United States ratified the Convention in 1988, see Lozano v. Montoya Alvarez, 572
U.S. 1, 6 (2014), and implemented it the same year through the International Child Abduction
Remedies Act (“ICARA”), 42 U.S.C. § 11601 et seq.
A federal court’s inquiry under the Convention is limited. “The Convention and [ICARA]
empower courts in the United States to determine only rights under the Convention and not the
merits of any underlying child custody claims.” 42 U.S.C. § 11601(b)(4) (emphasis added).
Likewise, the Convention provides that “[a] decision under this Convention concerning the return
of the child shall not be taken to be a determination on the merits of any custody issue.”
The court left it to the parties to negotiate a date on which to return E.A.-H.S., such return to be “no sooner than the
expiration of Respondent’s first 18-month contract with the International Development Bank.” Order at 1.
The parties, however, were not able to reach an agreement. See Jt. Status Report on Arrangements for Return to
France, ECF No. 38. The court has not yet set a firm return date, because it understands that Respondent’s contract
will not expire until the end of the calendar year. The court intends to enter a return date now that it has issued this
Convention art. 19. Thus, “[t]he basic purpose and function of the Hague Convention and ICARA
are to ensure the home country should make the custody determination.” In re S.E.O., 873 F. Supp.
2d 536, 541 n.4 (S.D.N.Y. 2012) (quoting Navani v. Shahani, 496 F.3d 1121, 1129 (10th Cir.
2007) (internal quotation marks omitted), aff’d in part, vacated in part, remanded sub nom. Ozaltin
v. Ozaltin, 708 F.3d 355 (2d Cir. 2013); see also Abbott, 560 U.S. at 9 (noting that the Convention
does not “alter the pre-abduction allocation of custody rights but leaves custodial decisions to the
courts of the country of habitual residence”).
FINDINGS OF FACT
Having considered and weighed the testimony and evidence presented by the parties, the
court makes the following findings of fact.
Petitioner and Respondent were married in Paris, France, in October 2013. Trial Tr.
at 29. 2 Their daughter, E.A.-H.S., was born in 2014 in Paris, France. Id. at 30.
Petitioner is a medical doctor who provides house-call services, through a French
company called SOS Médecins. Id. at 28, 30. He is licensed to practice medicine only in France.
Id. at 28. Respondent is a Ph.D-level economist. Pet’r Ex. 7. Since 2013, she has worked
primarily as an associate professor at the Université d’ Evry Va’ d’ Essonne, located just outside
of Paris. See id.
Since the birth of their daughter, the parties have lived primarily in Paris, with
intermittent periods of stay in Barcelona, Spain. Pet’r Exs. 9 at 2, 10 at 3. Until June 30, 2018,
the family resided in a rented apartment, located at 255 Rue Saint-Jacques, in Paris. Trial Tr. at
Trial transcripts are docketed at ECF Nos. 36 and 37. Because the transcript is paginated consecutively, the court
simply cites to the “Trial Tr.” without specifying the date of testimony.
53; Pet’r Ex. 13. E.A.-H.S. attended preschool nearby. Trial Tr. at 116–17. The parties had an
active social life in Paris, often entertaining friends at their home. Id. at 140–41.
The parties own an apartment in Barcelona, Spain, in which they have stayed for
extended periods of time, sometimes for several months out of the year, typically during the spring
and summer months. Pet’r Exs. 9 at 2, 10 at 3. 3 For instance, from 2015 to 2017, Respondent
worked as a visiting professor (or in a similar capacity) at universities in Barcelona. See Trial Tr.
at 164–65. During these periods, Petitioner would travel back and forth to Paris for work. Id. at
165, 167–68. E.A.-H.S. would attend school when in Barcelona. Id. at 167.
According to Petitioner, E.A.-H.S. had more school friends and was involved in
more activities in Paris, than in Barcelona. See id. at 116–17. The court credits this testimony as
Respondent did not dispute it. See id. at 167 (testifying that E.A.-H.S. had friends in Barcelona,
but not disputing Petitioner’s characterization of their daughter’s relative friendships and activities
as between Paris and Barcelona).
Opportunity with the International Development Bank
In January 2018, Respondent was offered the opportunity to serve as a consultant
with the International Development Bank (“IDB”) in Washington, D.C. Id. at 34. Petitioner
supported Respondent’s pursuit of the opportunity.
Id. at 42, 89. He agreed to structure his
schedule in such a way that he would, for ten to twelve consecutive days, work in Paris and live in
a small apartment in Paris that he had purchased before marriage. Id. at 42. For the remaining
days of the month, he would live with his family in Washington, D.C. Id.
The court finds that the parties agreed to move their family to Washington, D.C.,
for at least 18 months—the term of Respondent’s contract with IDB—but left open the possibility
The parties disputed the actual dates they lived in Barcelona. See Trial Tr. at 113–14. Because neither party
attempted to firmly establish these dates, the court makes no finding as to the actual periods the parties lived in Spain.
of staying for a longer period. According to Respondent, the initial contract that IDB offered her
was for an 18-month term, which could be renewed only after a six-month period of separation.
Id. at 175. Petitioner and Respondent preferred that Respondent receive a contract that allowed
for successive renewal without a six-month separation period. See id. Such an arrangement
afforded the family flexibility to stay for longer than 18 months in Washington, D.C., if desired.
See id. Eventually, IDB offered Respondent a contract that would allow for successive renewals,
which she accepted. See id. at 175. Respondent began an 18-month term with the IDB on July 1,
2018. Id. at 53.
The court does not credit Petitioner’s insistence that he agreed to keep his family
in Washington, D.C., for no more than 18 months. See id. at 46, 126–27. Petitioner did not dispute
Respondent’s testimony that she negotiated her contract to allow for the possibility of successive
terms with IDB, so that the family potentially could live in Washington, D.C., for longer than 18
months. See Pet’r Ex. 14; Trial Tr. at 45–46.
Moreover, there is unrefuted evidence that Petitioner contemplated staying in
Washington, D.C., for up to three years. The parties rented out their Barcelona property under a
three-year lease. Trial Tr. at 116, 137; Resp. Ex. 7 (Respondent stating “[i]f we go to Washington
we are not going to come back to Barcelona before 3 years anyway”). Respondent also expressed
not wanting to live in the United States for “3 years” without proper U.S. identity papers. Resp.
Ex. 23. Respondent also obtained G-4 diplomatic visas, which allowed the family to remain in the
United States for up to five years, to which Respondent responded enthusiastically. Resp. Ex. 31.
And, tellingly, when the parties began to have marital trouble, Respondent said that he could not
continue to live as they were for “3 years” before their next move. Resp. Ex. 46.
At the same time, the court does not credit Respondent’s testimony that she and
Petitioner agreed to leave Paris behind for good and intended to make Washington, D.C., their new
home. See Trial Tr. at 347–48 (stating that “worst-case scenario was to stay three years” in
Washington, D.C.); see also Pet’r Ex. 14 at 2 (stating in a discovery response in family court that
the parties’ shared intent was to remain in the United States for an indefinite period of time). The
court so finds for a host of reasons.
Both Petitioner and Respondent kept their jobs in Paris when they left for
Washington, D.C. Petitioner remained a doctor with SOS Médecins. Although Petitioner initiated
the process of obtaining a medical license in Respondent’s home country of Uruguay, Trial Tr. at
107–08; Resp. Exs. 15, 16, 33, 34, 40, he never did the same in the United States.
As for Respondent, she maintained her associate professorship at the Université d’
Evry Va’ d’ Essonne. She requested a “détachement”—a French term meaning “temporary
assignment” or “secondment”—from her university position for a period of 18 months. Pet’r Ex.
3 at 1; Resp. Ex. 5. She expressly asked to keep her affiliation with the university during this
period, and she indicated she would continue to supervise her two doctoral students. Resp. Ex. 5.
Also, during the period of the détachement, Respondent continued to accrue seniority, retirement,
and pension credit with the Université d’ Evry Va’ d’ Essonne. Pet’r Ex. 4 at 1. Respondent
described herself as “nowadays on leave” from her teaching position at the Université d’ Evry.
Pet’r Ex. 6 at 1. Although Respondent testified that she kept her university affiliation to preserve
her pension rights consistent with French law, Trial Tr. at 180, that fact only underscores the
family’s interest in keeping France, and not the United States, as their place of habitual residence.
The parties’ departure from Paris in the summer of 2018 did not resemble a
permanent departure. The parties obtained a large storage unit in Paris, in the same building as
the family’s home at 255 Rue Saint-Jacques. Pet’r Ex. 8. The family did not sell large personal
belongings, such as household appliances and furniture. Instead, they left such items in the storage
unit in Paris. Id.
The couple’s friends understood their move to Washington, D.C., was temporary.
Respondent told family friend, Massimo Fedel, during a visit to Padua, Italy in spring 2018, that
the position was a temporary 18-month position and that Petitioner would go back and forth
between Paris and Washington, D.C., for that period. Trial Tr. at 16–19. Similarly, Geronimo
Roussopoulos, who was Petitioner’s best man and lives in Paris, testified that he had discussed the
IDB position with Respondent during one of their social events together. Id. at 142. Respondent
described her position to Mr. Roussopoulos as an 18-month contract with a bank in Washington,
D.C. Id. The court credits Mr. Fedel’s and Mr. Roussopoulos’s testimony.
Critically, Mr. Roussopoulos also testified that there was no going-away party,
social event, or announcement that the family was leaving Paris indefinitely or permanently. Id.
at 143–44. The court would have expected some social recognition of the parties’ long-term
departure from Paris had they intended to leave for good.
The terms of the IDB contract offered no certainty that the family could remain in
the United States beyond 18 months. The contract term is from July 1, 2018, to December 31,
2019. Pet’r Ex. 5 at 1. The contract contemplates renewal, but expressly states that IDB “has no
obligation to extend or renew this Agreement or to offer you a new one, even if your performance
is outstanding, but it may do so if agreed to in writing at the time of the expiration of the
appointment, and if compatible with the institution’s regulation.” Id. at 4. There is nothing in the
contract—including the Annex that accompanied it, Pet’r Ex. 5—that would support a term of an
Arrival in Washington, D.C.
Before leaving for Washington, D.C., the parties discussed whether to buy a home
in Washington, D.C. Resp. Exs. 10, 11. Once in Washington, D.C., they settled in the Woodley
Park neighborhood and rented an apartment. They hired a real estate agent to look for a property
to buy in that neighborhood. In October 2018, the parties made an offer on at least one home that
was not accepted. Trial Tr. at 60–61; Resp. Exs. 41, 42, 44. Petitioner was actively involved in
the parties’ search for a property to purchase in Washington, D.C., including the type, location,
price, financing, touring, and eventual selection of properties. Trial Tr. at 191–97; Resp. Ex. 9
(emails from Petitioner identifying possible properties), 35–38 (texts concerning possible purchase
of a home).
The parties enrolled E.A.-H.S. at Oyster Adams, a Spanish bilingual elementary
school, for the 2018-2019 school year. Trial Tr. at 79, 186. E.A.-H.S. is now comfortable speaking
English, id. at 311, has made friends at school, id. at 290–91, 307–10, attends birthday parties and
other social outings, and participates in various activities, like soccer. Id.
Respondent has made friends, as well, living in Washington, D.C. Two were called
as witnesses. Daniela Felcman testified that she had not discussed the family moving from
Washington, D.C., with either party. Id. at 292, 295. Sweta Shah similarly testified that neither
party had discussed with her moving away from Washington, D.C. Id. at 309–10. Although the
court credits these witnesses, their testimony carries little weight with respect to the disputed
issues. The general absence of a conversation with recently made friends about moving away from
Washington, D.C., tells the court little about the parties’ mutual understanding upon leaving Paris
as to whether they would return. Additionally, neither Ms. Felcman nor Ms. Shah testified to
having a specific conversation with either party as to their intention to remain long term in
Respondent also called as witnesses her mother, Maria Cristina Vazquez Pedrouzo,
and her step-father, Manuel Javier Paulino. Ms. Vazquez Pedrouzo testified that she offered
financial assistance to the parties to purchase a home in Washington, D.C. Id. at 419. Ms. Vazquez
Pedrouzo was asked whether she had ever discussed leaving Washington, D.C., with Petitioner,
and her response was that she understood that the family would live in Washington, D.C., and their
daughter would go to school there, even possibly to university in the United States. Id. at 420–22.
Mr. Paulino testified with greater specificity. He recalled speaking to Petitioner, who said that
“his intention was for the family to reside in Washington.” Id. at 426–27. Yet Mr. Paulino also
testified that he and Petitioner did not discuss how long the family would remain in Washington,
D.C., but did talk about the possibility of moving to Uruguay after the IDB contract expired, if
Petitioner could get medically licensed there. Id. at 427–28. Ms. Pedrouzo’s and Mr. Paulino’s
testimony confirms that when the parties moved to Washington, D.C., they did not intend to make
it their permanent home. They left open the possibility of remaining in Washington, D.C., for
more than 18 months, but only contemplated living somewhere other than France long term—
namely, Uruguay—if Petitioner could obtain a medical license there. Again, Petitioner never took
any steps to obtain a medical license in the United States.
By December 2018, six months after their move to Washington, D.C., the parties’
marriage began to show strain. Resp. Exs. 46–52.
In April 2019, unbeknownst to Petitioner, Respondent met with a family-law
attorney. Trial Tr. at 397–398. She then filed on May 2, 2019, a Complaint for Custody in the
Superior Court of the District of Columbia (the “D.C. Superior Court”). Pet’r Ex. 9. The
Complaint demanded primary physical custody of E.A.-H.S. “with reasonable rights of visitation
to Defendant, pendente lite and permanently” and “joint legal custody, pendente lite and
permanently” with Petitioner. Id. at 4.
On May 7, 2019, Respondent told Petitioner that she wished to separate, and then
had Petitioner served with the D.C. Superior Court Complaint for Custody. Trial Tr. at 62–63.
The court credits Petitioner’s testimony that he was surprised by Respondent’s filing of a
complaint for custody of their daughter.
The parties met at a park near the apartment on May 10, 2019, to discuss the
family’s situation. Id. at 80–81. There, according to Petitioner, Respondent told him that she
wished to remain in Washington, D.C., with their daughter and that the two of them would not be
returning to France. Id. Although Respondent denies that this conversation took place, id. at 388–
91, the court credits Petitioner’s testimony on this point, as it is consistent with Respondent’s
demand for permanent primary physical custody of their child and her later decision to opt into a
second 18-month contract with IDB. Also, on cross-examination, Respondent conceded that she
has no plans to return the child to France in December 2019 absent a court order. Id. at 390–97.
On May 23, 2019, Petitioner answered and filed a counterclaim in response to
Petitioner’s Complaint for Custody. Pet’r Ex. 10. In his counterclaim, Petitioner demanded “joint
physical and legal custody” of E.A.-H.S. See id. at 4. The D.C. Superior Court stayed the childcustody matter pending resolution of this case.
CONCLUSIONS OF LAW
A petitioner seeking the return of a child under the Convention must prove by a
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)(1)(A). “A removal or retention is ‘wrongful’
under the Convention when (1) ‘it is in breach of rights of custody attributed to a person . . . under
the law of the State in which the child was habitually resident immediately before the removal or
retention; and’ (2) ‘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.’” Larbie v.
Larbie, 690 F.3d 295, 307 (5th Cir. 2012) (quoting Convention art. 3). Under the Convention, a
petitioner must make a three-part showing to prevail. The petitioner must establish that (1) the
child was “habitually resident” in the petitioner’s country of residence when he or she was removed
or retained; (2) the removal or retention breached the petitioner’s custody rights under the law of
the petitioner’s home state; and (3) the petitioner was exercising his custody rights at the time of
removal or retention. See id.; see also Bader v. Kramer, 484 F.3d 666, 668 (4th Cir. 2007); TsaiYi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270–71 (3d Cir. 2007); Miller v. Miller, 240 F.3d 392,
398 (4th Cir. 2001). If the petitioner satisfies his burden, the court must order return of the child,
unless the respondent establishes an applicable affirmative defense. See Bader, 484 F.3d at 668;
Tsai-Yi Yang, 499 F.3d at 271, n.11.
This case involves two disputed questions. First, did Respondent wrongfully retain E.A.H.S and, if so, on what date did that retention occur? Second, what was E.A.-H.S.’s habitual
residence on the date of purported wrongful retention? The parties do not dispute whether, if
wrongfully retained, Petitioner’s custody rights under French law would be violated. They would
be. See Pet’r Ex. 1 (Aff. of French Law). Nor do they contest whether Petitioner was exercising
his custody rights at the time of wrongful retention. He was. Finally, Respondent does not assert
any affirmative defense under the Convention. The court’s conclusions of law therefore focus on
resolving the issues of wrongful retention and habitual residence.
The court finds that Respondent wrongfully retained E.A.-H.S. on May 7, 2019, when she
served upon Petitioner the Complaint for Custody that she filed in the D.C. Superior Court. Before
that date, the parties enjoyed joint physical and legal custody of their child. Respondent’s
Complaint for Custody, however, sought to alter the status quo, by asking that she be awarded
permanent primary physical custody of E.A.-H.S. Pet’r Ex. 9 at 4. She also advised Petitioner
three days later that she would not be returning to Paris with their daughter. Trial Tr. 80–81.
Respondent’s initiation of a legal action for greater custody rights, plus her announcement that she
would not return to Paris with E.A.-H.S., constitutes a wrongful retention under the Convention.
See Mozes v. Mozes, 239 F.3d 1067, 1069–70, n.5 (9th Cir. 2001) (determining that wrongful
retention occurred when the respondent asked a domestic court to grant custody of children).
The date of retention did not extend beyond May 23, 2019, the date on which Petitioner
answered and filed a counterclaim in response to Respondent’s Complaint for Custody. Pet’r Ex.
10. The Third Circuit has defined the “retention date” as “the date beyond which the noncustodial
parent no longer consents to the child’s continued habitation with the custodial parent and instead
seeks to reassert custody rights, as clearly and unequivocally communicated through words,
actions, or some combination thereof.” Blackledge v. Blackledge, 866 F.3d 169, 179 (3d Cir.
2017); see also Marks on behalf of SM, AM, and BM v. Hochhauser, 876 F.3d 416, 422 (2d Cir.
2017) (identifying date of wrongful retention as that “on which the child ought to have been
returned to its custodians or on which the holder of the right of custody refused to agree to an
extension of the child’s stay in a place other than that of its habitual residence” (internal quotation
marks and citation omitted)). Here, Petitioner’s counterclaim sought to maintain joint physical
and legal custody of E.A.-H.S. This counterclaim was a clear assertion of his custody rights and
signaled that he did not consent to allowing his daughter’s “continued habitation with the custodial
parent.” May 23, 2019, therefore is the latest date of wrongful retention.
For her part, Respondent contends that Petitioner’s claim arises under the rubric of an
“anticipatory retention,” which, according to Respondent, federal courts have not recognized.
See Resp. Proposed Findings of Fact and Conclusions of Law, ECF No. 34, ¶¶ 68–78. She asserts
that the court cannot fix a wrongful retention date, because “the wrongful retention has not taken
place yet, and may not ever take place, especially given the ongoing custody and visitation
proceedings in the District of Columbia.” Id. ¶ 74. The Petition is “anticipatory” in the sense that
the date until which the parties agreed to remain in Washington, D.C., has yet to arrive—at the
earliest, December 31, 2019, the date Respondent’s first contract ends with IDB. Thus, she
maintains, the petition is not ripe for consideration. See id. ¶ 68.
The court disagrees. One of the primary cases upon which Respondent relies—the Ninth
Circuit’s decision in Mozes—is to the contrary. See id. ¶ 73; Draft Hr’g Tr., Aug. 12, 2019, at 51.
Mozes is arguably the leading circuit court decision regarding the issue of habitual residence under
the Convention. See Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009) (describing Mozes as
“serv[ing] as a guide for federal courts in determining parental intentions in Hague Convention
cases”). Mozes is clearly an “anticipatory retention” case. Much like here, in Mozes, the mother
and father had agreed that the children would remain in the United States for a time certain—there,
fifteen months—“though they disagree[d] as to what understanding existed beyond that.” See 239
F.3d at 1069. However, after a year in the United States, the mother sought dissolution of the
marriage and custody of the children in California state court. See id. The Ninth Circuit had no
difficulty identifying the date of wrongful detention as “the moment . . . when [the mother] asked
the Los Angeles County Superior Court to grant her custody of [the children].” Id. at 1070. So,
too, here. Respondent sought to alter the parties’ status quo as it relates to custody of their daughter
when she sought primary physical custody in D.C. Superior Court. That is the earliest date of
wrongful retention. The court is not aware of any case that requires a petitioner to wait to sue for
custody until the date on which the parties agreed to allow their child to remain in the United States
passes, when the custodial parent seeks to assert dominant custody rights, physical or legal, over
the child. Tellingly, other circuit courts have found acts of wrongful retention to precede the
agreed-upon date for a child to remain in the United States. See e.g., Blackledge, 866 F.3d at 179
(rejecting “the notion that the original agreement for a longer period vitiated the noncustodial
parent’s ability to clearly communicate her desire to regain custody of the child” and recognizing
that a parent may “accelerate a retention date by” withdrawing consent to have the child remain
with the custodial parent); Marks on behalf of SM v. Hochauser, 876 F.3d 416, 417 (2d Cir. 2017)
(holding that mother’s email declaring she would not return to Thailand three days before planned
return was wrongful retention date); Darin v. Olivero-Huffman, 746 F.3d 1, 10–11 (1st Cir. 2014)
(finding wrongful retention occurred when respondent “made clear” to petitioner that child would
permanently reside in United States).
Equally persuasive authority can be found across the Atlantic in the decision of the
Supreme Court of the United Kingdom in In the matter of C (Children)  U.K.S.C. 8 (appeal
taken from EWCA Civ).
Our own Supreme Court has instructed that when interpreting
international conventions and treaties “the opinions of our sister signatories [are] entitled to
considerable weight.” Air France v. Saks, 470 U.S. 392, 404, (1985) (citation omitted). In
addition, Congress has recognized “the need for uniform international interpretation of the
Convention.” 22 U.S.C. § (b)(3)(B); see also Abbott, 560 U.S. at 16 (observing that the principle
of giving “considerable weight” to the opinions of “sister signatories” “applies with special force
here, for Congress has directed that uniform interpretation of the Convention is part of the
Convention’s framework”). In In re Matter of Children, the U.K. Supreme Court thoroughly
analyzed how courts in various countries have treated the question of anticipatory repudiation and
held that “repudiatory retention is possible in law.” In re Matter of Children ¶ 50. “The
objections” to anticipatory repudiation, the court summarized, “are insubstantial whereas the
arguments against requiring the left-behind parent to do nothing when it is clear that the child will
not be returned are convincing and conform to the scheme of the Abduction Convention.” Id.
The only case on which Respondent relies to support her position, the First Circuit’s
decision in Toren v. Toren, is distinguishable. In Toren, the parents, already divorced, had agreed
to allow the children to remain in the United States until July 21, 2000. See 191 F.3d 23, 25 (1st
Cir. 1999). In 1997, just prior to the father’s scheduled visit to the United States, the mother filed
a verified complaint in state court asking to modify the terms of visitation. See id. at 26. The state
court agreed to do so and granted the mother additional custody rights. See id. The First Circuit
found that the mother had not wrongfully retained the children, because her complaint only sought
modification of the parents’ visitation agreement and did not manifest an intent not to return the
children after the agreed-upon date of July 21, 2000. See id. at 28. Here, by contrast, Respondent
did not merely ask for a change in visitation but sought primary custody of the minor child—a
change in the status quo that, if granted, would have allowed Respondent to establish Washington,
D.C., as the child’s habitual residence. Moreover, the court credits Petitioner’s testimony that
Respondent expressed her intention not to return to France. Respondent notably renewed her IDB
contract for another 18 months after filing for primary physical custody and apparently did so
without consulting Petitioner. These acts are not consistent with an intent to return to France. This
case therefore is different than Toren.
The court turns next to deciding E.A.-H.S.’s “habitual residence” as of the date of unlawful
retention. Habitual residence, or “the place where [the child] customarily lives,” Taglieri v.
Monasky, 907 F.3d 404, 407 (6th Cir. 2018), is “the central—often outcome-determinative—
concept on which the [Convention] is founded.” Mozes, 239 F.3d at 1072. The Convention,
however, does not define the term, see Gitter v. Gitter, 396 F.3d 124, 131 (2d Cir. 2005); nor has
the D.C. Circuit addressed what constitutes a child’s “habitual residence” under the Convention.
But other circuits have done so extensively. Following the Ninth Circuit’s decision in Mozes, the
majority of circuit courts define habitual residence in terms of “shared parental intent,” and
secondarily consider whether the child has become “acclimatized.” Blackledge, 866 F.3d at 180;
see also Mozes, 239 F.3d at 1074–75; Taglieri, 907 F.3d at 407 (noting that “[e]very circuit to
consider the question [of habitual residence] looks to both standards”). The Sixth Circuit is the
only circuit that gives greater priority to acclimatization, but it does so only in cases involving
older children. See Taglieri, 907 F.3d at 407–08 (describing the acclimatization inquiry as “the
primary approach” and the “shared parental intent” inquiry as a “secondary” and “alternative”
approach used when young children are “incapable of acclimating”); see also Koch v. Koch, 450
F.3d 703, 713 (7th Cir. 2006) (“In the case of young children, the court found it most prudent to
focus on the intent of the parents rather than the intent of the child in determining the child’s
Shared Parental Intent
The question of shared parental intent focuses on the parents’ “settled purpose” as to a
child’s place of residence. Mozes, 239 F.3d at 1074. The inquiry is necessarily fact intensive, and
trial courts are advised to look beyond the parents’ testimony and to consider the record as a whole.
See Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009) (“In cases where there is a dispute
regarding a child’s habitual residence, ‘the representations of the parties cannot be accepted at face
value, and courts must determine [habitual residence] from all available evidence.’”
(quoting Gitter, 396 F.3d at 135)). In the end, “[h]abitual residence is intended to be a description
of a factual state of affairs . . . .” Mozes, 239 F.3d at 1081.
The parties agree that, in determining habitual residence, the court must first ask whether
the parents “form[ed] a settled intention to abandon the one left behind.” Id. at 1075; see also
Resp.’s Proposed Findings ¶ 80 (citing Mozes, 239 F.3d at 1075). “[T]he agreement between the
parents and the circumstances surrounding it must enable the court to infer a shared intent to
abandon the previous habitual residence.” Mozes, 239 F.3d at 1081. That said, “[t]he mere fact
that the parents have consented for the child to move to a new country does not prove that they
share the necessary intent to make that new location the child’s habitual residence.” Berezowsky
v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014). Indeed, courts have cautioned that, “in the absence
of settled parental intent, courts should be slow to infer from [the child’s contact in the new
country] that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. That
is especially true when the child’s move is intended to be for a “specific, limited duration.”
Blackledge, 866 F.3d at 180–81 (describing a “presumption” against recognizing a change in
habitual residence when the child’s move is for a “specific, limited duration”). In such cases,
“court have generally refused to find that the changed intentions of one parent led to an alteration
in the child’s habitual residence.” Mozes, 239 F.3d at 1077.
In light of these principles, the question the court faces here is whether, as of May 2019,
the parties’ shared settled intent was to abandon France as E.A.-H.S.’s habitual residence in favor
of the United States. The answer to that question is no. There is no real dispute that the child’s
habitual residence was France before the family relocated to the United States in the summer of
2018 for Respondent’s détachement with IDB. The parties married in France, E.A.-H.S. was born
in France, the family lived primarily in an apartment in Paris, the child attended nursery school
there, and the parents and child had strong social ties in that country. The parties’ respective jobs
were in Paris, with Petitioner licensed to practice medicine only in France and Respondent a
university professor accruing a pension under French law. To be sure, the family did spend
extended time in Barcelona, but Spain was clearly their secondary home, used primarily when
Respondent secured a visiting professorship or in the summer months.
When the family left Paris, the parties’ clear intent was to remain in Washington, D.C., for
at least 18 months, consistent with Respondent’s contract term with IDB. Beyond that “specific,
limited” time period, however, the parties’ plans were aspirational and contingent. The parties
were prepared to extend their stay for an additional 18 months, but as of May 2019, the date of
E.A.-H.S.’s wrongful retention, that prospect remained uncertain. Renewal of Respondent’s
contract rested entirely within the discretion of IDB, and Respondent presented no evidence that
IDB had renewed her contract before May 7, 2019, or that Petitioner had agreed to her seeking a
new 18-month contract by that date. The absence of such evidence is important. Given the marital
strife that manifested in December 2018, which appears due, at least in part, to the parties living
on different continents for weeks at a time, the court cannot find that whatever enthusiasm they
shared about remaining in Washington, D.C., for more than 18 months persisted after their
marriage began to deteriorate.
What is clear, based on the full record, is that the parties did not leave France in a manner
that supports a shared intent to relocate indefinitely to the United States. Ample evidence supports
this conclusion. First, Petitioner remained in France to work and took no steps to obtain a medical
license or employment in the United States. He did make efforts to qualify for medical practice in
Uruguay but took no comparable steps in the United States. Second, Respondent did not dissociate
herself from her university position, instead she took leave akin to a sabbatical.
Respondent explained that she maintained her university position to continue her pension
eligibility, that action only reinforces the parties’ intent to return to France. Third, the parties did
not dispose of valuable personal property, such as furniture and appliances. Instead, they rented a
storage unit in the same building as their former shared home in Paris. See Berezowsky v. Ojeda,
765 F.3d 456, 472 (5th Cir. 2014) (“Selling the family’s home or cars, for example, may indicate
the intention to make a more permanent move.”); see also Larbie, 690 F.3d at 299 (citing as
evidence of non-abandonment of habitual residence in the United States that the mother left
substantially all of her belongings in United States when flying to England); cf. Maxwell, 588 F.3d
at 248 (mother brought a number of household items from the United States to Australia, including
bedding, dishes, kitchen supplies, and summer clothing); Koch, 450 F.3d at 714 (family took all
possessions except a few large items from the United States to Germany). Finally, the parties did
not communicate an intention to leave permanently to family and friends. The absence of a goingaway party or a similar acknowledgement of permanent departure is telling. 4
Respondent emphasizes the parties’ efforts to buy property in Washington, D.C., as proof of their intent to make the
United States their habitual residence. The record evidence is not so clear, however. The parties discussed purchasing
a home as more economical than renting. Also, as demonstrated by their ownership of the apartment in Barcelona,
the parties also view buying property as an investment.
The court recognizes that habitual residence can change even when the minor child is
moved only for a definite period of time with the intent to return to the original country. See, e.g.,
Blackledge, 866 F.3d at 182–83; Mozes, 239 F.3d at 1077. However, the cases that have found a
settled intent to change habitual residence when the child’s move was for a “specific, limited”
duration are distinguishable.
Such cases typically have involved the non-custodial parent
withdrawing consent for the child to remain in the new country before the end of the agreed-upon
time to do so, and the child having significant familial and other ties in the new country. See, e.g.,
Whiting v. Krassner, 391 F.3d 540, 542 (3d Cir. 2004) (holding that Canada, not the United States,
was the habitual residence where the parents had agreed that the child would spend two years in
Canada and the mother and young child had familial ties in Canada, even though U.S.-based noncustodial parent withdrew his consent after two months); Blackledge, 866 F.3d at 184 (finding the
minor child to be habitually resident in the United States because “by the time of the retention
date, [the United States] was the longest and most stable residence he had known in his fairly
nomadic early years,” and the child also had extended family in the United States and was a United
States citizen); Koch, 450 F.3d at 716–17 (finding change in habitual residence where the couple
moved with the “hope” of returning to the United States, but otherwise expected to remain in
Germany for an extended period and one parent was a German citizen). No similar circumstances
exist here. Neither parent had a prior connection to the United States. The family entered the
United States on temporary visas so Respondent could work on a contract of finite duration. And,
importantly, the custodial parent in this case sought to alter the status quo. Thus, this is not a case
like Whiting where the non-custodial parent unilaterally withdrew his consent to the child living
in a different country before the agreed-upon time to live elsewhere expired.
This case instead closely resembles the facts of Mozes.
There, the children, Israeli
residents, traveled with their mother to the United States for a fifteen-month visit to “partake of
American culture,” Mozes, 239 F.3d at 1069, which the court analogized to a “study[ ] abroad”
program, id. at 1083. A year into that visit, however, the mother filed for divorce and retained the
children in the United States. Id. at 1069. In rejecting the mother’s argument that the United States
had become the children’s then-habitual residence, the Ninth Circuit concluded that, when the
children moved to the United States, the “normal expectation,” shared by both the parents and the
children, was that the family would reunite and Israel would remain their habitual residence. Id. at
1083. The court explained that the parents and the children were Israeli citizens; they had lived
all their lives in Israel and entered the United States on a temporary visa; and neither parent had a
prior connection to the United States. Id. at 1069, 1082. Similar facts are present in this case.
Although Respondent attempts to cast the parties’ agreement as one to reside here “indefinitely,”
in truth, they agreed to a finite stay in the United States of 18 months, and possibly more, if IDB
renewed Respondent’s contract. In no event, however, did they agree that E.A.-H.S. would live
here permanently. Like the parents in Mozes, the parties in this case did not intend to change their
daughter’s habitual residence by coming to the United States. See also Sundberg v. Bailey, 765
Fed. Appx. 910, 912 (4th Cir. 2019) (finding that parents did not have shared intent to make the
United States the child’s habitual residence instead of Sweden where the parents only agreed to
bring the child to the United States for several months).
Having determined the parties’ habitual residence to be France as of May 7, 2019, the court
briefly discusses acclimatization. The court gives this factor less weight. See Mozes, 239 F.3d at
1079. The parties here did as any responsible parent would do: they took steps to create a normal
life for E.A.-H.S. in Washington, D.C. They enrolled her in school, and E.A.-H.S. made friends
and participated in extra-curricular activities. But E.A.-H.S., age four, had lived in the United
States for only about ten months when Respondent filed a custody action that sought to alter the
status quo. Evidence of acclimatization over such a short period of time for such a young child is
not enough to overcome the parties’ lack of intent to abandon France as their daughter’s habitual
residence. See Papakosmas v. Papakosmas, 483 F.3d 617, 626 (9th Cir. 2007) (noting that “in the
absence of settled parental intent, courts should be slow to infer from such contacts [in the new
country] that an earlier habitual residence has been abandoned” (internal citation and quotation
marks omitted)); Sundberg, 765 Fed. Appx. at 914 (finding that “[a]ttending school for one school
year does little to show that the child’s life has sufficiently ‘developed’ in her new surroundings
to make it her home”).
For the reasons stated in these Findings of Fact and Conclusions of Law, and in the court’s
Order, issued on Aug. 21, 2019, ECF No. 38, the court grants the Petition for E.A.-S.H.’s return
to France. The court will issue a separate, final order that contains the child’s return date.
Dated: October 9, 2019
Amit P. Mehta
United States District Court Judge
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