Cohen v. Cohen

• Decision Date: 07 June 2017
• Docket Number: No. 16-3757,16-3757
• Citation: 858 F.3d 1150
• Parties: Yaccov COHEN Plaintiff – Appellant v. Ocean Ester Debora COHEN Defendant –Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

858 F.3d 1150

Yaccov COHEN Plaintiff – Appellant

v.Ocean Ester Debora COHEN Defendant –Appellee

No. 16-3757

United States Court of Appeals, Eighth Circuit.

Submitted: April 7, 2017

Filed: June 7, 2017

Julia Todd Farrell, Megan R. Galey, Aleksandra O. Rushing, Joann T. Sandifer, Husch & Blackwell, Saint Louis, MO, for Yaccov Cohen, Plaintiff –Appellant.

Nathan S. Cohen, Saint Louis, MO, for Ocean Ester Debora Cohen Defendant – Appellee.

Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

GRUENDER, Circuit Judge.

Yaccov Cohen appeals the district court's¹ denial of his petition for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention"), as implemented by the International Child Abduction Remedies Act ("ICARA"), 22 U.S.C. §§ 9001 -9011. For the following reasons, we affirm.

I. Background

Yaccov Cohen and Ocean Ester Debora Cohen are the parents of O.N.C., who was born on December 6, 2009 in Israel. Yaccov is a citizen of Israel, while Ocean and O.N.C. are citizens of both Israel and the United States. During the first three years of O.N.C.'s life, the Cohens lived together as a family in Israel. Between 2010 and 2011, Yaccov served approximately one year in jail on various criminal charges. Shortly after Yaccov's release, Ocean and two of her brothers, who live in St. Louis, Missouri, discussed the possibility of her family moving to St. Louis to join them. However, Yaccov was subject to a Stay of Exit Order placed on his visa that prevented him from leaving Israel until he paid his accumulated debt, which included criminal fines, penalties, and restitution payments. Yaccov and Ocean decided that Ocean and O.N.C. would move to St. Louis, and that once there Ocean would work to help Yaccov pay off his debt so he could join them. Ocean testified that they intended to move permanently to the United States, while Yaccov testified that they intended to move for a period of three to five years. To prepare for the move, Yaccov and Ocean went to the United States Embassy together to submit naturalization paperwork for O.N.C.

In December 2012, Ocean and O.N.C. traveled to St. Louis. Ocean promptly enrolled O.N.C. in school and speech therapy, found O.N.C. a pediatrician, and secured employment. Ocean purchased a vehicle, obtained a driver's license, and eventually rented an apartment. As arranged, Ocean sent money to Yaccov to help pay off his debts. In May 2013 and April 2014, Ocean and O.N.C. visited Yaccov in Israel for approximately two weeks each time. During the April 2014 visit, it became apparent that the marriage was deteriorating. Shortly before Ocean and O.N.C. were scheduled to return to St. Louis, Yaccov asked a lawyer to draft a "travel agreement" requiring Ocean and O.N.C. to return to Israel if Yaccov remained unable to join them in St. Louis within six months. Ocean signed the agreement after adding a clause requiring Yaccov to "stay away from crime and not get into trouble."² If he breached this condition, Ocean and O.N.C. would not be obligated to return to Israel at the end of the six-month period. In August 2014, Yaccov was arrested for driving without a valid license.

In July 2014, Ocean filed for divorce in St. Louis County. On August 30, 2014, Yaccov learned of the divorce proceeding from a legal advertisement he received from a St. Louis law firm, and on November 13, 2014, Yaccov was served with the divorce petition. The St. Louis County Circuit Court entered a default judgment granting the divorce in March 2015, giving Ocean sole custody of O.N.C. and Yaccov supervised visitation.

In early September 2014, Yaccov filed a request with the Israeli Ministry of Justice to open a file to return O.N.C. to Israel, and four months later he filed an application for O.N.C.'s return under the Convention. Yaccov filed a complaint requesting O.N.C.'s return under the Convention in the Eastern District of Missouri on November 25, 2015. After conducting discovery and an evidentiary hearing, the district court dismissed Yaccov's complaint, concluding that O.N.C.'s country of habitual residence is the United States and, accordingly, that Yaccov had failed to make a prima facie case for return under the Convention. Yaccov appeals.

II. Discussion

ICARA implements the Convention, of which both Israel and the United States are signatories. Barzilay , 600 F.3d at 917. In order to state a prima facie case for the return of a child, the petitioner must establish by 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). "The key inquiry under the Convention is whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence." Barzilay , 600 F.3d at 917 (quotation omitted). Thus, the "case turns on the determination of the [child's] habitual residence, for the retention of a child in the state of its habitual residence is not wrongful under the Convention." Id. In resolving rights under the Convention, the court may not address the merits of an underlying child custody dispute. 22 U.S.C. § 9001(b)(4).

"Determination of habitual residence under the Hague Convention raises mixed questions of law and fact," and, therefore, we review the district court's decision de novo . Barzilay , 600 F.3d at 916. "We defer to the district court's underlying factual findings, however, unless they are clearly erroneous." Id.

Habitual residence is determined as of the time "immediately before the removal or retention" and depends on "past experience, not future intentions." Silverman v. Silverman , 338 F.3d 886, 897-98 (8th Cir. 2003) (en banc). Habitual residence encompasses "some form of settled purpose" but only requires that "the family ... have a sufficient degree of continuity to be properly described as settled." Id. at 898 (quotation omitted). However, "[t]his settled purpose need not be to stay in a new location forever." Id. The Eighth Circuit determines settled purpose "from the child's perspective, although parental intent is also taken into account." Id. That said, parental intent need not be completely clear, see Barzilay , 600 F.3d at 918, and "one spouse harboring reluctance during a move does not eliminate the settled purpose from the [child's] perspective," Silverman , 338 F.3d at 899. In addition to settled purpose and parental intent, relevant factors include "the change in geography, the passage of time, and the acclimatization of the child to the new country." Stern v. Stern , 639 F.3d 449, 451 (8th Cir. 2011) (quotation omitted).³

The district court did not err in finding that O.N.C.'s habitual residence is the United States. From O.N.C.'s perspective, his move to the United States has resulted in "a sufficient degree of continuity to be properly described as settled." Barzilay , 600 F.3d at 918 (quotation omitted). The record supports that the alleged wrongful retention occurred either in July 2014, when Ocean filed for divorce, or in October 2014, when the six-month period under the travel agreement expired. At either of these junctures,...