In re: the Application of, Mozes

• Decision Date: 09 January 2001
• Docket Number: No. 98-56505,98-56505
• Citation: 239 F.3d 1067
• Parties: (9th Cir. 2001) In re: the Application of, ARNON MOZES, Petitioner-Appellant, v MICHAL MOZES, Respondent-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1067

239 F.3d 1067 (9th Cir. 2001)

In re: the Application of, ARNON MOZES, Petitioner-Appellant, v MICHAL MOZES, Respondent-Appellee.

No. 98-56505

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted August 4, 1999

Filed January 9, 2001

[Copyrighted Material Omitted] Adair Dyer, Austin, TX; William M. Hilton, Santa Clara, California for Petitioner-Appellant.

Ira H. Lurvey, and Judith Salkow Shapiro, Lurvey & Shapiro, Los Angeles, California, for the Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Richard A. Paez, District Judge, Presiding. D.C. No. CV-98-03636-RAP

Before: KOZINSKI and THOMAS, Circuit Judges, and ILLSTON, District Judge.^*

KOZINSKI, Circuit Judge:

In a case of first impression in our court, we interpret the term "habitual residence" in the Hague Convention on the Civil Aspects of International Child Abduction.

I

Arnon and Michal Mozes are Israeli citizens. Married in 1982, they have four children, ranging in age from seven to sixteen years. Until 1997, parents and children lived in Israel, as they had their entire lives. In April 1997, with Arnon's consent, Michal and the children came to Los Angeles. Michal had long wanted to live in the United States, and both parents agreed that the children would profit from a chance to attend school here, learn English and partake of American culture. Accordingly, Michal moved with the children to Beverly Hills, where she leased a home, purchased automobiles and enrolled the children in school. Arnon remained in Israel, but he paid for both the house and the automobiles used by his family, and stayed with them at the house during his visits to Los Angeles. The parties agree that Arnon consented to have Michal and the children remain in the United States for fifteen months, though they disagree as to what understanding existed beyond that. What we know for certain is that on April 17, 1998, a year after they arrived in the United States, Michal filed an action in the Los Angeles County Superior Court seeking dissolution of the marriage and custody of the children. The court granted temporary custody to Michal, and entered a temporary restraining order enjoining Arnon from removing the children from southern California. Less than a month later, Arnon filed a petition in federal district court, seeking to have the children returned to Israel under the Hague Convention. The oldest child elected to return to Israel, and did so by mutual agreement of the parents. Arnon now appeals the district court's denial of his petition with regard to the three younger children.¹

II

Adopted in 1980, the Hague Convention on the Civil Aspects of International Child Abduction ["Convention"]² 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) ["Perez-Vera Report"].³ Despite the image conjured by words like "abduction" and "force," the Convention was not drafted in response to any concern about violent kidnappings by strangers. It was aimed, rather, at the "unilateral removal or retention of children by parents, guardians or close family members." Beaumont & McEleavy, The Hague Convention on International Child Abduction 1 (1999). Such an abductor "rarely seeks material gain; rather, he or she will aspire to the exercise of sole care and control over a son or daughter in a new jurisdiction." Id. The preamble to the Convention describes the signatory states as "[d]esiring to protect children internationally from the harmful effects of their wrongful removal or retention," effects which are thought to follow when a child "is taken out of the family and social environment in which its life has developed." Perez-Vera Report at ¶ 11. This may occur either through the "removal [of a child] from its habitual environment," or by "a refusal to restore a child to its own environment after a stay abroad." Id. at ¶ 12.

The Convention seeks to deter those who would undertake such abductions by eliminating their primary motivation for doing so. Since the goal of the abductor generally is "to obtain a right of custody from the authorities of the country to which the child has been taken," Id. at ¶ 13, the signatories to the Convention have agreed to "deprive his actions of any practical or juridical consequences." Id. at ¶ 16. To this end, when a child who was habitually residing in one signatory state is wrongfully removed to, or retained in, another, Article 12 provides that the latter state "shall order the return of the child forthwith." Id., art. 12, 19 I.L.M. at 1502. Further, Article 16 provides that "until it has been determined that the child is not to be returned under this Convention," the judicial or administrative authorities of a signatory state "shall not decide on the merits of rights of custody." Convention, art. 16, 19 I.L.M. at 1503. The United States and Israel are both signatories to the Convention.⁴

The key operative concept of the Convention is that of "wrongful" removal or retention. In order for a removal or retention to trigger a state's obligations under the Convention, it must satisfy the requirements of Article 3:

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. A court applying this provision must therefore answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention?

In this case, the answer to the first question is clear. Arnon claims that Michal wrongfully retained the children from the moment on April 17, 1998, when she asked the Los Angeles County Superior Court to grant her custody of them.⁵ The district court denied Arnon's petition based on its answer to the second question: It found that as of that date, the children's "habitual residence" was in the United States, not Israel. See Mozes v. Mozes, 19 F. Supp. 2d 1108, 1116 (C.D. Cal. 1998). Our central task is to review this finding, which we do immediately below. In the interest of judicial economy, and in keeping with the policy of expediting Hague Convention cases, we also address the third and fourth questions below. See Part VI infra.

III

We begin by identifying the role of an appellate court in reviewing a determination of habitual residence under the Hague Convention. In doing so, we are mindful that Congress has emphasized "the need for uniform international interpretation of the Convention." 42 U.S.C. § 11601(b)(3)(B). The Perez-Vera Report describes "habitual residence" as "a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile." Perez-Vera Report at ¶ 66. In seeking to understand this "well-established concept," id., we discover that although the term "habitual residence" appears throughout the various Hague Conventions,⁶ none of them defines it. As one commentary explains, "this has been a matter of deliberate policy, the aim being to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems." J.H.C. Morris, Dicey and Morris on the Conflict of Laws 144 (10th ed. 1980) ["Dicey & Morris"].

Clearly, the Hague Conference wished to avoid linking the determination of which country should exercise jurisdiction over a custody dispute to the idiosyncratic legal definitions of domicile and nationality of the forum where the child happens to have been removed. This would obviously undermine uniform application of the Convention and encourage forum-shopping by would-be abductors. To avoid this, courts have been instructed to interpret the expression "habitual residence" according to "the ordinary and natural meaning of the two words it contains[, as] a question of fact to be decided by reference to all the circumstances of any particular case." C v S (minor: abduction: illegitimate child), [1990] 2 All E.R. 961, 965 (Eng. H.L.).

Certain commentators, however, have gone considerably farther than this, decrying as an unwelcome technical rule any attempt to develop guiding principles for courts to consult when making findings of "habitual residence."⁷ This has not, of course, prevented courts faced with disputes under the Convention from articulating what they understand the "ordinary and natural meaning" of the two words to be, or from looking to cases decided by other courts for help in refining and applying that meaning. Nor should it. Facts, after all, do not come with labels attached, and the family situations of petitioners under the Convention are likely to be quite different from what most people consider "ordinary." In order for decisions under the Convention to be intelligible, courts must be able to explain these conclusions and the reasoning used to reach them. To achieve the uniformity of application across countries, which depends upon the realization of the Convention's goals, courts must be able to reconcile their decisions with those reached by other courts in...