Papakosmas v. Papakosmas

• Decision Date: 16 April 2007
• Docket Number: No. 05-55211.,05-55211.
• Citation: 483 F.3d 617
• Parties: Dimitris PAPAKOSMAS, Plaintiff-Appellant, v. Yvette PAPAKOSMAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

483 F.3d 617

Dimitris PAPAKOSMAS, Plaintiff-Appellant, v. Yvette PAPAKOSMAS, Defendant-Appellee.

No. 05-55211.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2007.

Filed April 16, 2007.

Adair Dyer, Austin, TX, argued the cause and filed a brief for the plaintiff-appellant.

Elizabeth Briceño-Velasco, Arcadia, CA, argued the cause and filed a brief for the defendant-appellee. Vincent W. Davis, Arcadia, CA, was also on the brief.

Appeal from the United States District Court for the Central District of California; Margaret M. Morrow, District Judge, Presiding. D.C. No. CV-04-06726-MMM.

Before DIARMUID F. O'SCANNLAIN, EDWARD LEAVY, and CONSUELO M. CALLAHAN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether the children of Dimitris and Yvette Papakosmas were habitual residents of Greece within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction and therefore wrongfully removed from that country to the United States by their mother.

I

A

The following facts emerged during an evidentiary hearing on November 23 and 24, 2004, before the district court, U.S. District Judge Margaret Morrow presiding. Dimitris and Yvette Papakosmas were married in Las Vegas, Nevada, on August 20, 1994, and subsequently resided in the Los Angeles, California area. The couple have two children together, a son, born on March 6, 1995, and a daughter, born on December 29, 1997; both children were born in Los Angeles. Mr. and Mrs. Papakosmas owned and operated two hotels in Hollywood, the Liberty Hotel and the Hollywood International Hotel, and leased and operated a third hotel, the Hollywood International Youth Hostel.

In December 2003, the Papakosmas family left California for Greece, the birthplace of Dimitris. At the evidentiary hearing, he testified that the couple had always discussed the possibility of moving to Greece, but had made the ultimate decision in April or May of 2002, after the September 11 attacks resulted in a negative effect upon the hotel business. In October 2003, Dimitris completed the sale of the couple's two hotels, the Liberty and the Hollywood International. Yvette asserts that she learned only in November 2003 that one of the hotels had been sold, never learning of the other sale until the family was in Greece. Dimitris also asked Yvette to sign a quitclaim deed on a property owned by the couple in Malibu, conveying her interest to Dimitris in full. After Yvette executed the deed, Dimitris promptly sold the property. In addition, in the months leading up to the move, Yvette began selling or disposing of the couple's furniture and also sold the family dog, although she contends that such sale was unrelated to the move but instead a result of the dog's behavior problems.

The family arrived in Greece on December 20 or 21, 2003, and spent the Christmas holiday with Dimitris' family in Orei, located three hours from Athens. On January 6, 2004, they went to Athens, where Dimitris had rented an apartment. On January 23, 2004, Yvette returned to California to check on the management of the hostel and to make a lease payment. Dimitris contends that Yvette's trip was to deal with a bounced check and to return a passport to her son from a previous marriage.

Upon returning to Greece on February 3, 2004, Yvette learned from her daughter that Dimitris' alleged mistress from the United States, Slima Boudour, was also in Greece. Dimitris concedes that he had a "one-night stand" with Boudour, but denies that she was his mistress. Before Judge Morrow, Yvette testified that she considered leaving Greece after Dimitris refused to send Boudour home, but that she could not because Dimitris controlled the children's passports and her own. Yvette contacted the United States Embassy, which advised her to seek legal representation in Greece.

On February 14, 2004, in Athens, Yvette's wrist was cut and she was hospitalized. Yvette contends that Dimitris cut her after she refused to accede to his wish that Boudour be allowed to live in the apartment with the family. Dimitris testified at the evidentiary hearing, and a Greek doctor also offered medical testimony, that Yvette's wound was self-inflicted. After Yvette was released from the hospital, she hired an attorney and succeeded in getting a restraining order from the Greek courts. Meanwhile, Dimitris moved the family's belongings from the Athens apartment to a new apartment in Orei. Yvette's restraining order dissolved after three days, at which time she returned to the United States Embassy seeking assistance. After the Embassy conducted its own investigation, it determined that it would help Yvette and gave her plane tickets and passports. On April 23, 2004, she and the children left Greece for the United States.

B

On August 12, 2004, Dimitris instituted this action under the Hague Convention on the Civil Aspects of International Child Abduction ("Convention") and the International Child Abduction Remedies Act, 42 U.S.C. § 11601, et seq., ("ICARA"), in the United States District Court for the Central District of California seeking the return of the children to Greece.¹ Following the evidentiary hearing noted above, on December 31, 2004, the district court filed an order denying Dimitris' petition.

In its order, the district court first concluded that Dimitris and Yvette agreed to move to Greece on a conditional basis, and therefore determined that there was no shared, settled intent to abandon their habitual residence in California. Next, Judge Morrow concluded that at no time after their arrival in Greece did they form such a settled intent. Finally, the district court concluded that the "objective facts do not point unequivocally to the conclusion that Greece had become the children's new habitual residence." Accordingly, because the court determined that Dimitris had failed to meet his burden of proving that Greece is the children's habitual residence, it found that Dimitris could not establish a prima facie case for wrongful removal and dismissed the action. Dimitris filed a timely notice of appeal.

II

A

The Hague Convention on the Civil Aspects of International Child Abduction 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." Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir.2001) (citing Elisa Perez-Vera, Explanatory Report, ¶ 11, in 3 Hague Conference Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 426 (1982)). The Convention has been implemented by Congress through the ICARA, 42 U.S.C. § 11601, et seq. The Convention's focus is not the underlying merits of a custody dispute but instead whether a child should be returned to a country for custody proceedings under that country's domestic law. Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.2004) (Holder II).²

Under Article 3 of the Convention, the removal or retention of a child is "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.

Hague Convention, art. 3, 19 I.L.M. at 1501. In Mozes, we stated that a court applying this provision must answer 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 habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? 239 F.3d at 1070; see also Von Kennel Gaudin v. Remis, 282 F.3d 1178, 1182 (9th Cir.2002).

As was true in Mozes, the district court here denied Dimitris' petition based on its answer to the second question: it found that as of April 23, 2004, the children's "habitual residence" was in the United States and not Greece. Although the term "habitual residence" is intentionally left undefined in the Convention, we have developed an analytical framework to provide "intelligibility and consistency" in the determination of a child's habitual residence. Holder II, 392 F.3d at 1015 (citing Mozes, 239 F.3d at 1071). Thus, in determining whether a child has acquired a new habitual residence, we first ask whether there is a settled intention to abandon a prior habitual residence. Mozes, 239 F.3d at 1075. In this inquiry, "the 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." Id. at 1076 (citing E.M. Clive, The Concept of Habitual Residence, 1997 Jurid. Rev. 137, 144). Here, as in most cases, those persons are the parents. See Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995) (looking to "the parents' present, shared intentions regarding their child's presence").

The parents' settled intention is not alone sufficient to change a child's habitual residence. Mozes counsels that such a transformation also requires (1) an actual change in geography, and (2) the passage of an appreciable period of time, one sufficient for acclimatization. 239 F.3d at 1078. Importantly, "[h]abitual residence is intended to be a description of a factual state of affairs, and a child can lose its habitual attachment to a place even without a parent's consent." Id. at 1081 (emphasis in original). Thus, even when the settled intent of a child's parent is not clear, a district court should "find a change in habitual residence if `the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular...