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In case of minor children being taken to the U.S. from France without French parent's consent the Sixth Circuit holds that the Children's habitual residence was in the U.S., under the Hague Convention, where they had returned to France for three weeks after an eleven month stay in the U.S.

Ivan Nicholas Robert (Petitioner), a citizen of France, married Gayle M. Tesson (Respondent), as citizen of the United States, on January 6, 1996 in France. They had meet in 1994 in Houston, Texas where Petitioner was training to be a helicopter pilot. On May 22, 1997 Respondent gave birth to twin boys, Thomas J. Robert and Alexis E. Robert in Houston, Texas.

In December of 1998 the family moved to France, after establishing a French company called SCI-TAGIR, which was used to purchase a lot in Cabris, France. The family lived in an apartment near the lot they had purchased until July 1999, when the parties decided that their marriage was not working, and separated. Respondent took the boys to Baton Rouge where they lived in a rented apartment and the boys attended school.

In September of 2001 the Respondent and the boys returned to France to reunite with Petitioner. The parties agreed to purchase and renovate a rustic house named "Mas Verdoline", which lacked electricity and running water. The family lived in a rental in Cabris during their stay in France because the renovations on Mas Verdoline had not been completed. The boys attended French school and became fluent in French during this time. The marriage became strained once again and in July of 2002, Respondent left to take a temporary position in Denver, Colorado. The boys stayed in France with Petitioner due to the demanding nature of Respondents employment.

Respondent returned to France in November of 2002 and returned to Denver with the boys in December of 2002. The boys attended school in Denver and had little contact with the Petitioner during this time. In September of 2003, Respondent took the boys back to France after purchasing round trip tickets with a return date of October 8, 2003. The family stayed together at Mas Verdoline and the boys were enrolled in French school. On October 8, 2003 the parties had an argument after which the Petitioner left the house alone. Respondent took the children back to Denver while the Petitioner was away, leaving a note stating that Respondent was taking the children to see sick mother.

Respondent filed for legal separation from Petitioner in Ohio on December 3, 2003. Petitioner filed for divorce in a French court on January 23, 2004 and then filed a criminal complaint alleging that Respondent had abducted the children. The French court granted temporary custody of the boys to Petitioner on September 22, 2004. Respondent was convicted of the criminal charges on December 12, 2005, receiving a one year suspended sentence.

Petitioner filed a Petition for Return of Children in the Southern District of Ohio, pursuant to the International Child Abduction Remedies Act, 42 U.S.C. Section 11601, alleging that Respondent removed the boys from France in violation of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). A magistrate judge issued a report and recommendation on June 29, 2005. "Relying largely on the Ninth Circuit's decision in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) ("Mozes"), the magistrate judge found that the parties lacked a shared intent to remain in France, and recommended that the petition seeking return of Thomas and Alexis be denied. The district court adopted the magistrate judge's report in its entirety on May 19, 2006 " [Slip op. 7]. Petitioner filed an appeal in the United States Court of Appeals for the Sixth Circuit, which affirmed the decision of the district court.

The Circuit Court first addressed the issue of the proper legal standard to be applied. The Circuit Court had previously addressed this issue in Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) ("Friedrich I"). The Circuit Court held that in assessing habitual residence under the Hague Convention. "Inquiry should focus exclusively on the child's 'past experience.'" "'Any future plans' that the parents may have 'are irrelevant to our inquiry.'" [Slip op. 9].

The Ninth Circuit had elaborated a different standard in Mozes, which according to the Sixth Circuit held that "the subjective intentions of the parents are all but dispositive of a child's habitual residence." [Slip op. 10].

"Ignoring this Court's binding decision in Friedrich I, the magistrate judge applied the Ninth Circuit's rule in determining that Thomas and Alexis Robert are habitual residents of the United States. The magistrate judge determined that 'the parties held no shared intent to abandon the United States '" [Slip op. 11].

"Rather than apply the Ninth Circuit's rule in Mozes, the magistrate judge should have followed this Court's decision in Friedrich I-that is, the court below should have focused solely on the past experiences of the child, not the intentions of the parents. [Cite]." [Slip op. 12].

The Sixth Circuit did, however adopt the Third Circuits Ruling in Feder v. Evans-Feder, 63 F.3d 217 (3d. Cir 1995), which held that "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective " Feder, 63 F.3d at 224.

Addressing the standard of review the Sixth Circuit found fault with the district court because "[r]ather than apply this preponderance of the evidence standard the magistrate judge applied the heightened standard of evidence adopted by the Ninth Circuit in Mozes." [Slip op. 15].

"The International Child Abduction Remedies Act expressly states that courts should apply a preponderance of the evidence standard, 42 U.S.C. Section 11603(e)(1), not the unequivocal evidence standard adopted by Scotland and the Ninth Circuit. As a United States Court of Appeals, this Court is bound by Congress' decision." [Slip op. 16].

"Turning now to the merits of the case, we hold that even though the district court applied an incorrect legal standard in determining Thomas and Alexis' habitual residence, it reached the correct result in holding that they were habitual residents of the United States at the time of their removal from France." [Slip op. 18].

Even assuming that the boys acquired an habitual residence in France during their 15 month stay in that country, the boys took up a new habitual residence in the United States during the period beginning December 2002 when they lived in Denver As the magistrate judge found, the children became "more and more socialized in the United States." [Cite]. They attended American schools, formed meaningful relationships with their American relatives, and participated in excursions throughout the United States." [Slip op. 19].

"Having determined that the boys were habitual residents of the United States at the time they boarded their September 2003 flight to France, the remaining question is whether or not their habitual residence changed from the United States to France during their three week stay at Mas Verdoline."

"[S]ome evidence points to a conclusion that the boys did acquire a new habitual residence while in France. The boys were already fluent in French, and they were briefly enrolled in a French school."

"These facts, however are not sufficient to outweigh the volumes of evidence suggesting that the boys would have perceived their stay in France to be merely a temporary journey before they returned to a permanent residence in the United States. First, their French father did little to welcome them to France or communicate that they should expect a long stay. Second Thomas and Alexis brought only "two seasons worth of clothing" to France, a fact that suggests a return to the United States when the weather became warmer. Third, the actual length of the boys' stay in France was only three weeks, hardly enough time for them to become "acclimatized" to a new residence, and far less than the ten months they had recently spent in the United States. Finally, the rough state of Mas Verdoline would suggest to any child that the French house was completely unlivable." [Slip op. 20].

"The twins' final trip to France lasted only three short weeks. In that time, they had few experiences that would have acclimatized them to their new surroundings, or which would indicate a settled purpose to remain in France. Indeed, most of their experiences at Mas Verdoline suggest the opposite. Accordingly, we hold that the twins' habitual residence at the time of their removal from France was the United States." [Slip op. 21].

Citation: Robert v. Tesson, No. 06-3889 (6th Cir. November 14, 2007).
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Publication:International Law Update
Geographic Code:4EUFR
Date:Oct 1, 2007
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