Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Goldberg, Judge.
Submitted: December 12, 2008
Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG,*fn1 Judge.
Eric Sorenson appeals the district court's*fn2 rulings on his claim under Article 15 of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), 19 I.L.M. 1501 (1980), as implemented by the United States in the International Child Abduction Remedies Act, 42 U.S.C. § 11601-11610 ("ICARA"). Because we find that Australia was the child's habitual residence at the time of the allegedly wrongful retention, we affirm the decision of the district court.
Eric and Janea Sorenson were married in October of 2002 in Chicago, Illinois. The same year, they had a daughter E.S.S. in Minnesota, where the couple resided. In 2003, Eric accepted a work transfer to Australia and the family moved to the Sydney-area under a three year work visa. Before moving, Eric and Janea sold their residence, automobiles, and they also shipped most of their personal belongings to Australia. Within a few months of moving to Australia, their relationship deteriorated and they separated in October of 2004. In May 2007, Janea notified Eric of her intention to remain in Australia. Eric moved back to Minnesota and filed for divorce, and for E.S.S.'s return. However, the Hennepin County District Court found that it lacked jurisdiction. Eric then filed a request for E.S.S.'s return in the Australian courts, claiming that E.S.S. had been wrongfully retained. To facilitate this claim, the Australian court asked Eric to file a petition to the District Court of Minnesota for a determination of E.S.S.'s habitual residence under the Hague Convention. Upon receiving Eric's petition, the district court held a bench trial, and concluded that Australia was E.S.S.'s habitual residence. Eric now appeals this determination.
II. JURISDICTION & STANDARD OF REVIEW
The Court has jurisdiction pursuant to 28 U.S.C. § 1291 (2000). Determinations of habitual residence under the Hague Convention raise mixed questions of law and fact, and should be reviewed de novo. Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir. 2003) (en banc). Determinations of intent, however, involve questions of fact and the Court must defer to the district court's findings unless they are clearly erroneous. See, e.g., Koch v. Koch, 450 F.3d 703, 710 (7th Cir. 2006).
The sole issue in this case is whether the district court erred in making its habitual residence determination. Under the Hague Convention, the retention of a child is wrongful if it breaches the rights of a custodian "under the law of the State in which the child was habitually resident immediately before removal or retention. . . ." Dept. of State, Hague Int'l Child Abduction Convention; Text & Legal Analysis (Mar. 26, 1986), 51 Fed. Reg. 10494, 10505. Accordingly, if E.S.S.'s habitual residence was Australia at the time of the retention, the Convention would not compel E.S.S.'s return to the United States.*fn3
Habitual residence was not defined by the Hague Convention, and subsequent courts have had some difficulty in interpreting this term. See Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004). The Eighth Circuit has, however, provided guidance, explaining that:
[a] person may have only one habitual residence, and it should not be confused with domicile. [T]he court must focus on the child, not the parents, and examine past experience, not future intentions. Habitual residence may only be altered by a change in geography and passage of time.
Federal courts are agreed that "habitual residence" must encompass some form of "settled purpose." The settled purpose need not be to stay in a new location forever, but the family must have a "sufficient degree of continuity to be properly described as settled."
Silverman, 338 F.3d at 898 (citations omitted). In Silverman, the Court further explained the nature of the ...