858 F.3d 1150
8th Cir.2017Background
- Child O.N.C. born in Israel (2009); mother Ocean and child are U.S. and Israeli citizens; father Yaccov is Israeli.
- Ocean and O.N.C. moved to St. Louis in Dec 2012; Ocean established home, employment, medical care, school, and therapy for O.N.C.; family life in U.S. continued for ~2 years.
- Parents intended a temporary separation while Yaccov paid debts in Israel, but also applied for O.N.C.’s U.S. citizenship; disagreements about length of stay (Ocean: permanent; Yaccov: 3–5 years).
- Marriage deteriorated in 2014; Ocean filed for divorce in July 2014 and later obtained default divorce and sole custody in Missouri; Yaccov had limited contact and later was arrested (Aug 2014).
- Yaccov initiated Hague/ICARA proceedings seeking O.N.C.’s return to Israel; district court found O.N.C.’s habitual residence was the United States and denied return; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether O.N.C.’s habitual residence immediately before the alleged wrongful retention was Israel or the U.S. | Cohen: move was temporary; parental intent favored Israel; travel agreement and condition show intent to return. | Ocean: family had settled in U.S.; child had acclimated and connections to U.S.; parental intent supported move. | Court: Habitual residence = United States. Retention not wrongful under the Convention. |
| What standard governs habitual residence (child-centered vs. parental intent)? | Cohen: urges Second Circuit–style rule giving dispositive weight to parental shared intent. | Ocean: Eighth Circuit’s child-centered approach (Silverman) applies; parental intent is relevant but not dispositive. | Court: Applies Eighth Circuit precedent — determine habitual residence from child’s perspective with parental intent as one factor. |
| Whether the travel agreement establishes parental intent controlling habitual residence | Cohen: travel agreement evidences intent to return to Israel within six months. | Ocean: agreement was drafted late, after move and marital breakdown; cannot establish habitual residence by contract. | Court: Agreement drafted post-move and tied to marital breakdown; even considered, it does not overcome evidence of U.S. habitual residence. |
| Whether factual findings by district court are clearly erroneous | Cohen: challenges district court’s factual findings about acclimation and settled purpose. | Ocean: district court’s findings supported by evidence of acclimation, time, and parental actions. | Court: Defer to district court’s factual findings; not clearly erroneous. |
Key Cases Cited
- Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) (habitual residence determined from child’s perspective; parental intent is a factor)
- Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) (en banc) (defines settled purpose and child-centered habitual-residence inquiry)
- Sorenson v. Sorenson, 559 F.3d 871 (8th Cir. 2009) (acclimatization, passage of time, and change in geography support U.S. habitual residence)
- Stern v. Stern, 639 F.3d 449 (8th Cir. 2011) (lists relevant factors for habitual residence analysis)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (Second Circuit approach giving dispositive weight to parental shared intent)