Neergaard-ColóN v. Neergaard

• Decision Date: 21 May 2014
• Docket Number: No. 14–1278.,14–1278.
• Citation: 752 F.3d 526
• Court: U.S. Court of Appeals — First Circuit
• Parties: Lisette NEERGAARD–COLÓN, Respondent, Appellant, v. Peter Moeller NEERGAARD, Petitioner, Appellee.

752 F.3d 526

Lisette NEERGAARD–COLÓN, Respondent, Appellant,

v.Peter Moeller NEERGAARD, Petitioner, Appellee.

No. 14–1278.

United States Court of Appeals, First Circuit.

May 21, 2014.

Phillip Rakhunov, with whom Kevin M. Colmey and Sullivan & Worcester LLP, were on brief for appellant.

Laura E. Gibbs, with whom Kristin S. Doeberl and Ginsburg Leshin Gibbs & Jones, LLP, were on brief for appellee.

Before TORRUELLA and SELYA, Circuit Judges, and McAULIFFE,^* District Judge.

TORRUELLA, Circuit Judge.

Respondent–Appellant Lisette Neergaard–Colón (the “mother”) and Petitioner–Appellee Peter Moeller Neergaard (the “father”) have two young daughters, S.S.N. and L.A.N. Although both girls were born in the United States, they lived abroad with their parents for approximately a year and a half after their father's employer temporarily relocated him to Singapore in June 2012. The family's time in Singapore ended in January 2014 when the mother traveled with the children to the United States and refused to return. As a result, the father filed a petition for the return of the children to Singapore pursuant to 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 (the “Hague Convention”), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq.

The mother now appeals from the district court's grant of the father's petition. She claims that the district court erred by determining that the children's place of habitual residence was Singapore without first considering whether the parties intended to retain their habitual residence in the United States while living abroad for a temporary period of fixed duration. We agree, and we therefore remand to the district court for further proceedings.

I. Background

The mother, a citizen of the United States, was born in Connecticut and moved to Boston in 1990. She began teaching in the Boston public schools in 1995. The father, a citizen of Denmark, came to the United States around 1999 to pursue a Ph.D. at Boston University. In 2004, he obtained employment as a software consultant with Ab Initio Software Corporation, a company headquartered in Massachusetts. The father became a permanent resident of the United States and obtained a green card in 2011. The couple married in Massachusetts that same year, and their daughters were born in Massachusetts in February 2011 and February 2012. The children are citizens of both the United States and Denmark.

At some point in late 2011 or early 2012, the father's employer informed him that it wanted to relocate him temporarily to Singapore for a three-year assignment. The father claims that he discussed the assignment with his wife and that they agreed to live in Singapore for at least three years. The mother asserts that she agreed to a stay of no more than three years in Singapore, that the father said it could be as short as two years, and that the couple agreed to reevaluate the situation after a year to consider an early return to the United States.

In June 2012, the family packed up their things and moved to Singapore, where they rented an apartment. At that point, S.S.N. was a little over a year old, while L.A.N. was roughly four months old. The father obtained an employment pass authorizing him to work in Singapore through 2015, and the mother and children each received a dependant's pass. While in Singapore, the father was paid by the Singapore-based entity Ab Initio Software Private Limited. The mother, who did not obtain an employment pass, was not authorized to work in Singapore.

The family obtained health insurance in Singapore through the father's employer, and the parties opened a bank account there. They also found pediatricians for their daughters, arranged play dates, and purchased a Singapore Zoo membership. The older daughter, S.S.N., was enrolled in parent-accompanied “EduPlay” classes, and the parents looked at a few Singapore preschools.

During their time in Singapore, the parents retained ownership of their two properties in Boston, one of which they had purchased just weeks before moving to Singapore. They rented both properties to tenants on one-year leases. They kept open their bank accounts and retirement accounts in the United States, as well as their credit cards issued by U.S. banks. The mother preserved her position with Boston public schools by requesting a three-year extension of her maternity leave, and the father maintained his green-card status. The family also visited the United States for a span of several weeks for Christmas in 2012 and again during the summer of 2013.

Despite the parents' participation in marital counseling in Singapore, their relationship deteriorated while they were living abroad. The mother expressed her desire to return to the United States after a year, but the father disagreed. In December 2013, after a year and a half of living in Singapore, the family traveled together to Denmark to visit the father's family. From there, the father flew back to Singapore, while the mother and children traveled to the United States to visit her friends and family for two weeks. They arrived in the United States on January 4, 2014, but they failed to board their return flight to Singapore on January 20, 2014. The mother informed the father that she would be staying in the United States with one-year-old L.A.N. and two-year-old S.S.N.¹

On February 21, 2014, the father petitioned the district court for the return of the children to Singapore pursuant to the Hague Convention. The district court granted the petition on March 10, 2014, and this timely appeal followed. On March 18, 2014, this court granted a temporary stay of the district court's order, which remains in effect.

II. Analysis

We begin our analysis by providing a brief sketch of the relevant provisions of the Hague Convention. The Hague Convention is a multilateral treaty designed to address “the problem of internationalchild abductions during domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). It does so by providing for “the prompt return of children wrongfully removed to or retained in any Contracting State.” Id. (internal quotation marks and citation omitted). Notably, an order of return pursuant to the Hague Convention is not a final determination of custody rights. It simply ensures that custodial decisions will be made by the courts of the children's country of habitual residence. Id. at 9, 130 S.Ct. 1983.

The term “habitual residence” is not defined by the Hague Convention, but this court—in keeping with the approach of several of our sister circuits—“begins with the parents' shared intent or settled purpose regarding their child's residence.” Nicolson v. Pappalardo, 605 F.3d 100, 104 (1st Cir.2010). While intent is our initial focus, evidence of a child's acclimatization to his or her place of residence may also be relevant. See Darín v. Olivero–Huffman, 746 F.3d 1, 11–13 (1st Cir.2014).

In this case, the father has presented a claim of wrongful retention. Wrongful retention is defined as the retention of a child in breach of another's custody rights “under the law of the State in which the child was habitually resident immediately before the ... retention.” ² Hague Convention, art. 3. Critically, the Hague Convention only provides for the return of a child retained outside of his or her place of habitual residence. If the state in which a child is retained was also the child's place of habitual residence immediately prior to retention, that retention is not wrongful under the Hague Convention. See Barzilay v. Barzilay, 600 F.3d 912, 917 (8th Cir.2010). Thus, in order to establish wrongful retention, the father bears the burden of showing by a preponderance of the evidence that Singapore was the children's state of habitual residence immediately prior to their retention in the United States. See Darín, 746 F.3d at 9.

The district court determined that the children's habitual residence immediately prior to their retention in January 2014 ³ was Singapore. It thus concluded that the retention of the children in the United States was wrongful, and it ordered that the children be returned to Singapore. The mother contests these findings, arguing that the district court's determination of habitual residence was erroneous. Specifically, she claims that the district court misapplied the legal test for habitual residence by failing to analyze whether the parties ever intended to abandon their habitual residence in the United States, and by placing undue weight on evidence of the children's acclimatization in Singapore.

We review a district court's factual findings for clear error while reviewing its interpretation and application of the Hague Convention de novo. Id. at 8–9. As to a finding of habitual residence, we recently adopted the Seventh Circuit's approach, whereby we defer to the court's findings of intent absent clear error, but we review the ultimate determination of habitual residence—a mixed question of fact and law— de novo. Id. at 9 (quoting Koch v. Koch, 450 F.3d 703, 710 (7th Cir.2006)).

A. The parents' shared intent

Particularly when the child in question is very young, our habitual-residence inquiry focuses on the parents' shared intent and settled purpose rather than the child's, as a very young child “lack[s] both the material and psychological means to decide where he or she will reside.” Id. at 11 (“ ‘[T]he intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child's residence.’ ” (quoting Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001))). In the event that the parents disagree as to their children's place of habitual residence, we look to the intent of the parents “at the latest time that their intent was shared.” Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012). This finding of...