Andreas Carlwig v. Sarodjiny Carlwig
607 F. App'x 658
9th Cir.2015Background
- Sarah Carlwig (mother) and Andreas Carlwig (father) are parents of two dual U.S.–Swedish children: A.L.C. (older) and E.R.S.C. (infant).
- Family moved from Dubai to Sweden in 2012; they established a household, enrolled A.L.C. in school, and he developed Swedish-language and social ties over ~13 months.
- In Feb 2013 mother traveled to Los Angeles pregnant; father stayed in Sweden; parents disputed whether the move was temporary (father) or a permanent relocation to the U.S. (mother).
- Mother retained both children in Los Angeles after father filed a Convention petition to return them to Sweden under the Hague Convention (implemented by 22 U.S.C. §§ 9001–11).
- District court ordered both children returned to Sweden; on appeal, the Ninth Circuit affirmed as to A.L.C., vacated as to E.R.S.C., and declined to issue a re-return order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.L.C. was habitually resident in Sweden | Sarah: A.L.C. acclimatized to U.S. during months in LA; habitual residence changed to U.S. | Andreas: Parents shared intent for a temporary ~6‑month U.S. stay; Sweden remained habitual residence | Affirmed: A.L.C. is habitually resident of Sweden; return ordered |
| Whether E.R.S.C. was habitually resident in Sweden | Sarah: Infant’s ties follow mother in U.S.; district court had found shared intent for Sweden | Andreas: E.R.S.C. never lived in Sweden; habitual residence requires physical presence | Vacated: district court erred — E.R.S.C. was not habitually resident of Sweden |
| Whether E.R.S.C. was habitually resident in the United States | Sarah: U.S. birth and nine months in LA establish U.S. habitual residence | Andreas: Newborn cannot form independent attachments amid parental disagreement; no shared intent | Held: E.R.S.C. was not habitually resident of the U.S.; remained without habitual residence |
| Whether a re-return order should issue to undo prior return to Sweden | Sarah/others: equitable remedy could restore status quo | Andreas: (implicitly) equitable relief unnecessary or improper | Declined: court declined to issue re-return despite vacating the return order |
Key Cases Cited
- Holder v. Holder, 392 F.3d 1009 (9th Cir.) (habitual residence is mixed fact-law; deference to district court factfinding)
- Valenzuela v. Michel, 736 F.3d 1173 (9th Cir.) (look to parents’ last shared, settled intent for habitual residence)
- Papakosmas v. Papakosmas, 483 F.3d 617 (9th Cir.) (deference to district court credibility and factual findings)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir.) (acclimatization doctrine; when new country becomes primary locus of child’s life)
- Murphy v. Sloan, 764 F.3d 1144 (9th Cir.) (caution against inferring abandonment of prior habitual residence)
- Chafin v. Chafin, 133 S. Ct. 1017 (U.S. Sup. Ct.) (courts have equitable power to issue re-return orders but may decline)