Gitter v. Gitter

Decision Date05 January 2005
Docket NumberNo. 03-9299.,03-9299.
Citation396 F.3d 124
PartiesYossi GITTER, in the matter of Eden Moshe Gitter: infant under the age of 16, Petitioner-Appellant, v. Miriam GITTER, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Erick M. Sandler, Dewey Ballantine LLP, New York, NY, for Petitioner-Appellant Yossi Gitter.

Paul M. Gamble, New York, NY, for Respondent-Appellee Miriam Gitter.

Before: LEVAL and KATZMANN, Circuit Judges1.

KATZMANN, Circuit Judge.

This is a case of first impression in which we must interpret the phrase "habitually resident" within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25.1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (Mar. 26, 1986) [hereinafter Hague Convention or Convention], implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2000).

I.
A.

Yossi Gitter is an Israeli citizen. He was born in Yavneh, Israel and lived there until around 1995, when he moved to the United States. Miriam Gitter, his wife, also was born in Israel and maintains Israeli citizenship, but she immigrated to the United States when she was approximately three months old and maintains United States citizenship, as well.

The couple met early in 1999 in Monsey, New York, where Mrs. Gitter was living with her parents. After dating briefly, Mr. and Mrs. Gitter began cohabiting, and in May of 1999 the couple married. In December of 2000, Miriam gave birth to their son, Eden Moshe Gitter ("Eden").

Shortly after Eden's birth, Mr. Gitter proposed that the couple move to Israel. He argued that such a move would save them money and provide a better family support structure because they could live with his mother.2 Mrs. Gitter, however, had spent very little time in Israel and was not fond of the culture, and she consequently did not want to go to Israel. However, Mr. Gitter persuaded her to try living in Israel for one year, and the family moved in March of 2001.

The Gitters made various arrangements in preparation for their move to Israel. Mr. Gitter closed their New York bank accounts, sold their cars, and placed their furniture in storage. Once the Gitters arrived in Israel, they made other arrangements consistent with the move to Israel. For example, after a few months in Israel, Mr. Gitter sold or gave the family's possessions in storage to Mrs. Gitter's sister.3 In addition, once the Gitters arrived in Israel, they enrolled Eden in day care.

In February 2002, after about eleven months in Israel, Mrs. Gitter returned to New York with Eden to visit her sister. Mr. Gitter joined Eden and Mrs. Gitter in the United States about a week later, and at that time Mrs. Gitter expressed a desire to remain in the United States. However, Mr. Gitter, with the aid of a trusted family friend, Lord Aristo, eventually convinced Mrs. Gitter to return to Israel by promising her that if she were still unhappy in six months, she could return to the United States.

On June 30, 2002, Mrs. Gitter again returned to the United States with Eden, purportedly on a vacation, and has not returned to Israel since then. It is unclear exactly when Mr. Gitter became aware of his wife's intentions not to return to Israel.

B.

On July 10, 2003 Mr. Gitter filed a petition in the United States District Court for the Eastern District of New York, which sought Eden's return under the Hague Convention. The district court (Trager, J.) denied Mr. Gitter's petition after concluding that Eden's habitual residence remained the United States throughout the Gitters' stay in Israel. This appeal followed.

II.
A.

At the outset, we note the applicable standard of review. As we have explained before, "[t]he proper interpretation of the Hague Convention is an issue of law, which we review de novo." Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001) (quoting Croll v. Croll, 229 F.3d 133, 136 (2d Cir.2000)) (alteration in original). "In cases arising under the Convention, a district court's factual determinations are reviewed for clear error." Id. (citation omitted). However, "[t]he [d]istrict [c]ourt's application of the Convention to the facts it has found, like the interpretation of the Convention, is subject to de novo review." Id.

B.

The Hague Convention was adopted in 1980 "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access." Hague Convention, Preamble, 51 Fed.Reg. at 10,498. The Hague Convention is primarily concerned with the "use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child." Elisa Perez-Vera, Explanatory Report, in 3 Conference de La Haye de droit international prive, Actes et Documents de la Quatorzieme session, Enlevement d'enfants 426, 428, ¶ 11 (1982) [hereinafter Perez-Vera Report].4 The Convention was especially aimed at the unilateral removal or retention of children by those close to them, such as parents, guardians, or family members. See Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 1-3 (1999) [hereinafter Beaumont & McEleavy]. To deter family members from removing children to jurisdictions more favorable to their custody claims in order "to obtain a right of custody from the authorities of the country to which the child has been taken," id. at 429, ¶ 13, the Hague Convention attempts "to deprive [their] actions of any practical or juridical consequences," id. at 429, ¶ 16. The Convention consequently "places at the head of its objectives the restoration of the status quo, by means of `the prompt return of children wrongfully removed to or retained in any Contracting State'." Id. Both the United States and Israel are signatories to the Hague Convention.5 See Hague Conference on International Law: Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, 33 I.L.M. 225, 225 (1994).

A petitioner cannot invoke the protection of the Hague Convention unless the child to whom the petition relates is "habitually resident" in a State signatory to the Convention and has been removed to or retained in a different State.6 The petitioner must then show that the removal or retention is "wrongful." Article 3 of the Hague Convention provides that:

The removal or the retention of a child is to be considered wrongful where —

a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b. 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.

The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Hague Convention, art. 3. Thus, in order to prevail on a claim under the Hague Convention a petitioner must show that (1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner's custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention. The petitioner must establish these requirements by a preponderance of the evidence. 42 U.S.C. § 11603(e)(1)(A).

Because the district court concluded that Eden retained the United States as his habitual residence and thus the protection of the Hague Convention could not be invoked, we must begin our analysis by considering the meaning of "habitually resident" under the Convention.

1.

The Hague Convention, itself, does not provide any definition of "habitually resident." See BEAUMONT & MCELEAVY, supra, at 89; see also Perez-Vera Report, supra, at 441, ¶ 53 ("Following a long-established tradition of the Hague Conference, the Convention avoided defining its terms...."). We are informed, however, by the opinions of sister Circuits that have already considered the issue. See, e.g., Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir.2003) (habitual residence to be determined by focusing on the settled purpose from the child's perspective and parental intent); Miller v. Miller, 240 F.3d 392, 400 (4th Cir.2001) (habitual residence to be determined on a "case-by-case basis" after "a fact specific inquiry"); Mozes v. Mozes, 239 F.3d 1067, 1073-81 (9th Cir.2001) (habitual residence to be determined by examining intentions of those entitled to fix child's residence and evidence of the child's acclimatization); Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995) ("[H]abitual residence is the place where [the child] 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."); Friedrich v. Friedrich, 983 F.2d 1396, 1401-02 (6th Cir.1993) (habitual residence to be determined by reference to customary residence prior to removal and requires a change in geography and passage of time). We are also mindful that the Supreme Court has instructed the lower courts 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, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985) (quoting Benjamins v. British European...

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