Holder v. Holder

• Citation: 392 F.3d 1009
• Decision Date: 09 December 2004
• Docket Number: No. 03-35595.,03-35595.
• Parties: Jeremiah W. HOLDER, Petitioner-Appellant, v. Carla R. HOLDER, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

392 F.3d 1009

Jeremiah W. HOLDER, Petitioner-Appellant, v. Carla R. HOLDER, Respondent-Appellee.

No. 03-35595.

United States Court of Appeals, Ninth Circuit.

Submitted December 6, 2004.^*

Filed December 9, 2004.

COPYRIGHT MATERIAL OMITTED

Jeremiah W. Holder, pro se, Darmstadt, Germany, appellant.

A. Chad Allred, Ellis, Li & McKinstry PLLC, Seattle, WA, for the appellee.

Appeal from the United States District Court for the Western District of Washington; John C. Coughenour, Chief Judge, Presiding. D.C. No. CV-00-01927-JCC.

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

We consider here a matter of first impression under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501 (the "Convention"), namely whether a family's short-term residence on an American military base in Germany renders Germany the children's habitual residence. Jeremiah Holder appeals from the district court's order dismissing his petition for the return of his children to Germany under the Convention.

This case presents a somewhat unusual set of facts. Jeremiah was stationed at Sembach Air Force Base in Germany. He was accompanied by his wife, Carla, and their two children. The Holders were in Germany for only eight months in 1999 and early 2000 before Carla returned to the United States with the children. Soon after Carla's return, Jeremiah filed for divorce and filed a petition under the Convention in federal court alleging that Carla had wrongfully retained the children.

Jeremiah visited the children in the United States and, in violation of a California court order, took the children back to Germany in early 2002. Ultimately, he agreed to return the children to Carla in Seattle. Jeremiah pled nolo contendere to a misdemeanor charge and is prohibited from seeing or talking with the children until 2005 without further court order. Although Jeremiah later moved temporarily to the Seattle area, he has now returned to Germany.

Despite this crisscrossing of the Atlantic, the case boils down to whether Jeremiah sustained his burden to establish that Germany was the children's habitual residence immediately prior to their mother's alleged wrongful retention. Because Jeremiah failed to carry his burden on the habitual residence issue, a threshold determination under the Convention, we affirm the district court's order.¹

BACKGROUND

Carla and Jeremiah Holder were married in California. Their two sons were born there in 1994 and 1999. Jeremiah entered the United States Air Force after their first son was born. The family lived in Texas while Jeremiah attended training and returned to California briefly before leaving for overseas duty in Japan in 1995. Despite initial plans to stay in Japan for three years, the family returned to California in 1997 on a humanitarian transfer because of an illness in the extended family. For the next two years, the family lived on Travis Air Force Base in California.

Shortly after the birth of their second child in July 1999, the family moved to Sembach Air Force Base in Germany where Jeremiah had been posted on a four-year assignment. Prior to moving, Jeremiah reenlisted for six years, apparently in order to receive a bonus being offered in his specialty. Carla and the two boys joined Jeremiah in Germany around September 1, 1999. The military transported the family's household goods and vehicle to Germany and provided housing on the base. The older son attended kindergarten on the base, and Carla cared for the baby at home.

Jeremiah and Carla participated in marriage counseling prior to the move, but their marital problems grew more severe while in Germany. Carla and the children left Germany in May 2000 — approximately eight months after their arrival — and flew to her parents' home in Washington. The parties dispute whether the trip was intended as a six-week vacation or an indefinite stay. Carla did not return to Germany with the children, and they currently reside with her in Washington.

Jeremiah initiated divorce and custody proceedings in California in June 2000 and filed the current petition under the Convention in federal district court in Washington the following November. The divorce became final in June 2001. Meanwhile, the custody and Convention petition proceedings moved forward in the California and federal courts on parallel tracks.

The district court initially referred Jeremiah's petition to a magistrate judge, who recommended that the district court stay proceedings under the Colorado River doctrine. See Intel Corp. v. Advanced Micro Devices, 12 F.3d 908, 912 (9th Cir.1993) ("Considerations of `wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation' may counsel granting a stay when there are concurrent state proceedings involving the same matter as in the federal district court.") (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). After reviewing the record, the district court adopted the magistrate judge's report and recommendation (the "First Report and Recommendation") and stayed the Convention proceedings pending resolution of the California appellate proceedings regarding custody. Jeremiah appealed the stay to our court.

In the prior appeal, we vacated the district court's ruling staying the proceedings and remanded the case for consideration of the petition's merits, including whether Germany was the children's habitual residence for purposes of the Convention. See Holder v. Holder, 305 F.3d 854, 873 (9th Cir.2002) ("We do not reach any of the parties' arguments that bear on the merits of Jeremiah's petition.... These should be resolved by the district court in the first instance."). In addition, we vacated the district court's denial of Carla's request for attorney's fees and costs on the ground that a decision on this issue was premature.² Id. at 874.

Following remand, the district court directed the magistrate judge to determine the merits of the petition. After a three-day evidentiary hearing in 2003, the magistrate judge issued a thorough and detailed report and recommendation (the "Second Report and Recommendation"). Jeremiah filed two sets of objections — one through his attorney and, because of a conflict with his attorney, a second set of objections he prepared himself.³ The district court considered de novo both sets of objections, adopted the Second Report and Recommendation, and denied Jeremiah's petition on the ground that he had "not carried his burden of showing that Germany was the children's habitual residence." This second appeal followed.

DISCUSSION

The Convention text provides that one of its primary objects is "to secure the prompt return of children wrongfully removed to or retained in any Contracting State." Convention, art. 1, 19 I.L.M. at 1501. Underlying this aim is the premise that the Convention should deprive parties of any tactical advantages gained by absconding with a child to a more favorable forum. See Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10,494, 10,504 (Dep't of State Mar. 26, 1986) ("A fundamental purpose of the Hague Convention is to protect children from wrongful international removals or retentions by persons bent on obtaining their physical and/or legal custody.").

As explained by the official history and commentary, the Convention is intended to prevent "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 ¶ 11, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426 (1982) (hereinafter Perez-Vera Report).

The Convention's focus is thus whether a child should be returned to a country for custody proceedings and not what the outcome of those proceedings should be. See Convention, art. 19, 19 I.L.M. at 1503 ("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."); see also Linda Silberman, Patching Up the Abduction Convention: A Call for a New International Protocol and a Suggestion for Amendments to ICARA, 38 Tex. Int'l L.J. 41, 44 (2003) ("The Convention remedy can best be thought of as a `provisional' remedy because it does nothing to dispose of the merits of the custody case.").

As a threshold issue, the duty to return a child arises only if the removal or retention was "wrongful":

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.

Convention, art. 3, 19 I.L.M. at 1501 (emphasis added).

Here, the crux of the issue is whether the children's habitual residence was Germany immediately prior to the alleged wrongful retention.⁴ If the children's habitual residence was the United States, then the Convention would not compel the children's return to Germany because they were neither "removed" from the state of habitual residence nor "retained" in another state.⁵ See Perez-Vera Report, supra, ¶ 58 (clarifying that the scope of the Convention is limited "to those children who, while being habitually resident in one of the Contracting States, are removed to or retained in, the territory of another Contracting State").⁶ On the other hand, if Germany were the habitual residence, then the protections of the Convention would kick in and the children would be returned to...