Zuker v. Andrews, Civil Action No. 97-12099-RCL.

• Decision Date: 10 April 1998
• Docket Number: Civil Action No. 97-12099-RCL.
• Citation: 2 F.Supp.2d 134
• Parties: Alejandro G. ZUKER, Plaintiff, v. Patricia K. ANDREWS, Defendant.
• Court: U.S. District Court — District of Massachusetts

2 F.Supp.2d 134

Alejandro G. ZUKER, Plaintiff, v. Patricia K. ANDREWS, Defendant.

Civil Action No. 97-12099-RCL.

United States District Court, D. Massachusetts.

April 10, 1998.

Alejandro G. Zuker, New York City, pro se.

Lucille R. DiPietro, Medford, MA, for Alejandro G. Zuker.

Thomas J. Barbar, Cambridge, MA, for Paticia K. Andrews.

Paticia K. Andrews, Watertown, MA, pro se.

OPINION AND ORDER CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER HEARING

COLLINGS, United States Magistrate Judge.

I. INTRODUCTION

Petitioner, Alejandro G. Zuker ("Zuker"), a citizen of Argentina,¹ seeks relief under The Hague Convention on the Civil Aspects of Child Abduction ("the Convention"), as implemented by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601 et seq. He has filed an application with the United States Central Authority under The Hague Convention on the Civil Aspects of Child Abduction seeking the return of his child, Sasha, to Argentina. Sasha's mother, the respondent Patricia C. Andrews ("Andrews"), is a citizen of the United States.² She and the child reside in Watertown, Massachusetts. A Petition for Return of Child to the Petitioner (# 3) was filed in this Court on September 4, 1997. An evidentiary hearing was held on December 19, 1997.³

There is no dispute as to the times when Sasha and Andrews were in the United States and when they were in Argentina. Sasha was born in New York City on June 16, 1993. (Def.Exh.# 17) For a few weeks in April, 1994, Sasha and Andrews were in Argentina. From April to November, 1994, they were in New York City. From November, 1994 until May, 1995, they were in Argentina. From May, 1995 to November, 1995, they were in Waltham, Massachusetts residing at Andrews' mother's home. From November, 1995 to June, 1996, they were in Argentina. They left Argentina and arrived in New York on June 14, 1996. From June, 1996 until the present, Sasha has lived in Massachusetts with Andrews, first at his grandmother's home in Waltham and later at an apartment Andrews rented in Watertown. He has not returned to Argentina.

It is also not disputed that Andrews and Sasha went to Argentina in November, 1994 so that they could reside with Zuker while he worked on a planned Compact Disc ("CD") (Exh. # 8) and that Zuker worked on the production and marketing of the CD in Argentina at least through June, 1996 when Andrews and Sahsa returned to the United States. Zuker alleges that Andrews wrongfully retained the child in the United States in June 1997, a year after she and Sasha returned to the United States. (Exh. 3, p. 2) The Court's task is to decide what was the "habitual residence" of the child at the time when the alleged wrongful retention is said to have occurred. This task actually breaks down into resolving subsidiary issues.

The Court is not bound to accept Zuker's allegation that the wrongful retention occurred in June, 1997. The date of the retention is important because Article 12 of the Convention provides that if the Court finds that Sasha has been wrongfully retained and the filing of the petition in this Court ("the judicial authority of the Contracting State") occurred more than a year after the wrongful retention, the Court cannot order a return of the child if "... the child is now settled in its [sic] new environment." Since the petition was filed on September 4, 1997, if the wrongful retention was more than a year prior to that date, the question of whether Sasha is now settled in his new environment would have to be resolved.

The date on which the alleged wrongful retention occurred is important from another perspective. Article 3 of the Convention provides, in pertinent part, that:

The ... retention of a child is to be considered wrongful where—

(a) it is in breach of rights of custody attributed to a person ... 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.⁴

Thus, the question with respect to "habitual resident" is tied to that period of time "immediately before" the retention. The date of retention pinpoints the period of time at which the "habitual residence" of the child is to be determined.

II. SASHA'S HABITUAL RESIDENCE IN JUNE, 1996

A. The Law Respecting Habitual Residence

In order to be entitled to the requested relief, Zuker must show that respondent Andrews is wrongfully retaining their son Sasha from the place of Sasha's "habitual residence." Wanninger v. Wanninger, 850 F.Supp. 78, 80 (D.Mass., 1994). Zuker argues that Argentina is Sasha's habitual residence.

The term "habitual residence" is not defined under the Convention. Instead, a child's "habitual residence" is to be determined by examining the specific facts and circumstances at hand. Meredith v. Meredith, 759 F.Supp. 1432, 1434 (D.Ariz.1991). Courts should not interpret the term technically or restrictively. Rydder v. Rydder, 49 F.3d 369, 373 (8 Cir.1995).

One of the most frequently cited explanations of the term "habitual residence" is that set out by the High Court of Justice in In re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989); see, e.g., Feder v. Evans-Feder, 63 F.3d 217, 222-24 (3rd Cir. 1995) (citing Bates); Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass.1994) (same); Slagenweit v. Slagenweit, 841 F.Supp. 264, 268 (N.D.Ia.1993) (same); In re Ponath, 829 F.Supp. 363, 367 (D.Utah 1993) (same); Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan., 1993) (same); Harsacky v. Harsacky, 930 S.W.2d 410, 413 (Ky.Ct.App.1996) (same). The Bates court explained by quoting a speech by Lord Scarman in 1983 as follows:

[T]here must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

American courts have used this explication in their own determinations of where a child has his or her "habitual residence." In Feder, the Third Circuit cited Bates and explained:

[A] child's habitual residence is the place where he or she 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. ...

[A] determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there.

Feder, 63 F.3d at 224.

Cases similar to the one at bar illustrate further the requirement that there be a "settled purpose." For instance, in Slagenweit, the parents had agreed that the child would travel from Germany, where she lived with her mother, to live with her father indefinitely in Iowa. The parties agreed the child would live with her father while her mother prepared to return to school, and that while in Iowa the child would be able to obtain needed medical attention superior to that which had been available to her in Germany. Eight months later, the child's mother demanded her return, and the father refused. Slagenweit, 841 F.Supp. at 266.

The court found that the child was not being wrongfully retained in Iowa. While the parties agreed the child's habitual residence initially had been in Germany, it had changed to Iowa as "a result of a change in geography and a passage in time." Id. at 269. Over that period of eight months which the court characterized as "a substantial passage of time," Slagenweit, 841 F.Supp. at 269, the court concluded the child had become a resident of Iowa through her involvement with her father and his girlfriend and through the medical community responsible for her treatment. The court deemed it significant that the parents initially had agreed that the child would live in Iowa for an indefinite period of time, and by the time the mother objected to the child's continued presence there, she was well-established in her new home in Iowa. Id.

In Levesque, a German citizen attempted to reconcile with her estranged husband by moving with their child to the United States, where he (the child's father) had been transferred from his army post in Germany. They lived in Kansas for nearly a year, after which time she returned to Germany with their child to visit her family. She returned to Kansas five weeks later, only to go back to Germany with the child almost immediately. He (the child's father) agreed that she could return with the child to Germany, but he believed they would be gone only for a short time. Problems had developed in the marriage again, and shortly after the mother and child returned to Germany, it became apparent that she planned to remain in Germany with the child. Approximately three weeks later, the child's father flew to Germany, took the child without the mother's consent, and returned with the child to the United States. Levesque, 816 F.Supp. at 663.

The court ordered that the child be returned to Germany. Even though the child had lived with both parents in Kansas for nearly a year, the court concluded that the child's habitual residence switched to Germany after the couple agreed that the mother would return there with the child for an indefinite period of time. Id. at 666. This arrangement "amounted to a...