Edward M. Feder v. Melissa Ann Evans-Feder

FEDER, Appellant, v. M. Edward Ann EVANS-FEDER.

Melissa

No. 94-2176. Appeals, Court of States

Third Circuit.

Argued June Aug.

Decided Rehearing

Rehearing In Banc Denied

Aug. wrong-

court held that the retention ful petition. and denied Mr. Feder’s We, however, conclude that Australia was Evan’s habitual residence and hold that Mrs. Feder’s1 retention Evan was within the of the Convention. We will therefore vacate district court’s deni- al petition of Mr. Feder’s and remand the ease for determination as to whether the exception that Mrs. Feder raises the Con- general applies vention’s rule of return preclude the relief Mr. Feder seeks. I. begin by reviewing pre-

We the evidence sented this case. The facts as found leading the district court to Mrs. Feder’s retention of Evan are not in dispute. Mr. and Mrs. Feder American citizens Germany who met 1987 in where each was working: opera she as singer, an and he as employee Evan, only Citibank. their Germany July born in October, 1990, In family moved to Jen- kintown, Pennsylvania Mr. because Feder (argued), Obermayer, Ann G. Verber Reb- management accepted position with mann, Hippel, PA, Philadelphia, Maxwell & Philadelphia. CIGNA in When CIGNA ter- appellant. employment minated Mr. Feder’s June of began exploring employment he other Perlberger (argued), Perlberger Norman opportunities, Associates, PA, including position Cynwyd, Law appel- Bala Commonwealth Bank of Although Australia. lee. greeted Mr. possibility Feder of living MANSMANN, Before: GREENBERG working in enthusiasm, Australia with SAROKIN, Judges. Circuit approached it with considerable Nonetheless, August, hesitation. OPINION THE OF COURT traveled Feders to Australia to evaluate the MANSMANN, Judge. opportunity, there, Circuit Sydney, while toured city where Mr. Feder work if he In this first impression case of for this accept position were to with Common- circuit, we have petition before us a filed spoke They wealth Bank. with Americans parent against the other under who had moved to consulted an Convention on the Civil accountant about financial implications International Child Abduction. Edward M. living in Australia and met with a relocation Feder asserts that Melissa Ann Evans-Fed- agents consultant and real regarding estate son, “wrongfully er retained” their Charles housing spoke and schools. Mrs. also Feder (“Evan”), Evan Feder in the United States representative with a Opera the Australia requests that Evan be returned to him in possible employment about for herself. Concluding Australia. the United residence”, States was “habitual August early Evan’s September late 3a, the district the Commonwealth Bank offered Feder "Evans-Feder", Although caption reads adopt designa- brief as "Mrs. Feder” Melissa Ann Evans-Feder refers to herself in tion. Manager nursery days its Per- school three a week position of attended General Banking Department. Finding begin kindergarten the of- sonal was enrolled and fi- satisfactory professional February, applied fer 1995. Mrs. have standpoint, prepared Mr. Feder was private nancial Evan admitted to a when school he hand, Feder, it. on the other accept to Mrs. grade, years reached the fifth some seven to move to Australia. She had was reluctant Although later. is not Australian couple’s deep deterio- misgivings about the permanent a citizen and was not resident at October, 1993, in relationship; marital rating time, represented Mrs. Feder to the con- relations attor- she consulted with domestic trary application. on the school including a ney options, her di- regarding In an effort to acclimate herself to Austra- Nevertheless, for both emotional and vorce. lia, pursued Feder Mrs. the contacts she had reasons, Feder decided in pragmatic Mrs. during August, trip made the Feders’ family keeping together favor and of Opera and for auditioned the Australian Australia, go intending to work agreed to to accepted in Company. She a role salvaging marriage. her toward company’s performances February, for set Upon acceptance Mr. Feder’s the bank’s 1995, begin which was scheduled to rehears- offer, their the Feders listed Jerikintown December, als in for sale and sold numerous household house changed reg- Mr. Feder his driver’s license not use in Australia. items that would be of Pennsylvania to istration Australia be- October, Toward the end of completed legally obligated fore to do so and begin to Mrs. Feder went to Australia work. paperwork necessary perma- to obtain to behind with Evan oversee the remained residency family; nent for the entire Mrs. Jenkintown; in Mr. sale of their house Fed- Pennsylvania Feder did not surrender her er, meantime, in the looked for a house to physical nor submit to examina- license area, pictures buy Sydney sending in the and sign papers required tion or of those tapes video of houses to Mrs. Feder her permanent residency All seeking status. In Mr. consideration. November the Feders obtained Australian Medicare in purchased, both his and Mrs. Fed- Feder cards, giving them access Australia’s name, in in a house er’s 50% interest St. system. health care Ives, Wales, “surprise as a birth- New South day his present” for wife.2 Feder, According marriage Mrs. her early spring in In the worsened Australia. Pennsylvania Mr. Feder returned to on she and Feder discussed her though the Jen- December Even marriage in the as as her unhappiness well sold, house had not Mr. Feder ar- kintown return to the States. Mr. desire to ranged moving company ship couple’s difficulties to Feder attributed bought family’s furniture to Australia and job requested the stress his new and for Mrs. Feder airline tickets to Australia Australia, stay anticipating Mrs. Feder Feders left for Australia on Evan. The problems subside once the that their 3,1994, January they where arrived on Janu- Once family moved into their new home. ary 8, briefly stopping in Califor- after again, personal practical rea- for both nia Hawaii. Mrs. was ambivalent Feder sons, agreed. Mrs. Feder move; hoped her mar- about the while she saved, riage she was not committed would be family home in moved into the St. Ives remaining in Australia. 1994; relationship, May, Feders’ howev- er, Ultimately, improve. Mrs. Feder the Feders finalized the did Once house, her and return to purchase lived in decided leave husband their St. Ives but Believing with Evan. apartment for about four and United States hotel plans supervised Mr. would not consent months while Mrs. Feder Feder one-half known, Mrs. Feder told her true intent were renovations to the house. Evan extensive purchased the re- interest the house. 2. The Commonwealth Bank maining financed the Feder’s interest and 50% 28, 1994, September take Evan Mr. Feder that she wanted to on a On Mr. Feder com- Waynesboro, Pennsyl- visit to her against menced this action July. arrange- vania in Mr. Feder made filing petition pursuant to the Convention trip, buying round-trip two ments for the in the United States District Court for the departure tickets for to the United States on Pennsylvania, District alleging Eastern returning August June 29 Australia parental custody had been “wrongful Mrs. violated Feder’s removal requesting Mrs. and Evan Australia retention”4 of Evan and Feder left and/or upon scheduled their arrival opposed Unit- return. child’s stayed parents. July, ed States with her petition, denying that Evan’s removal from 1994, Mr. Feder to the traveled United Australia and retention in the United States business, arranged on and to States meet his they wrongful asserting were and that even wife and son at their still unsold house in were, Evan cannot to be returned Australia Jenkintown. When Mr. Feder went to the “grave because there is a risk” that re- his 20, 1994, July house on he was served with a turn expose “physical psycho- will him to or complaint Mrs. had that Feder filed logical place harm” or in an him “intolerable Montgomery Court of of Common Pleas situation.” County, Pennsylvania 14,1994, July on seek- 14, 1994, On October the district court divorce, distribution, ing property custody evidentiary hearing conducted an and on Oc- support. Shortly of Evan financial 1994, 31, opinion tober issued an thereafter, order Feder to returned Australia denying petition. Mr. Feder’s Ev- and Mrs. Feder and Evan moved Feder v. into the (E.D.Pa.1994). ans-Feder, F.Supp. 866 Jenkintown house. 860 Concluding that Mr. failed prove Feder to September, Mr. Feder com- that “Evan’s habitual the United proceeding Family menced a in the Court of January changed States as of 1994 Sydney, for, alia, Australia in applying inter Australia the time Mrs. Feder refused Hague under declarations Convention on Pennsylvania return him the summer the Civil of International Child Ab- 1994[,]” the court held that “the habitual 4, 1994, duction. On October the Judicial residence of Charles Evan Feder is in the Registrar Court Australia United States and that mother not argument opinion heard an issued de- wrongfully retained him Id. at here.” Evan, claring that Mr. Feder and Mrs. Feder holding The court’s was based the view were habitual residents of Australia immedi- although “Mr. Feder have consid- ately prior to Mrs. Feder’s retention ered and even States; established Australia as his in the United that Mr. Feder had ..., joint habitual residence of 1994 rights custody June Mrs. of Evan under Austra- assuredly not[,]” lian did exercising rights law and was those “she never retention; developed purpose time of Evan’s a settled that Mrs. remain Feder’s retention of Evan regard- [there].” with- Id. Because of its decision of the Convention.3 Evan’s the court did Regis- According Hague served with the Judicial to the International Child opinion Convention; trar’s on October 1994. Mrs. Feder Legal Analysis Abduction Text and appearance did an not enter in the Australian Fed.Reg. found at Pub.Notice (1986), 51 10494 " court, although the record indicates that she 'wrongful taking removal' refers brief, proceeding. received notice of the In his person actually of a child from the who was Mr. Feder us that informs the Australian action exercising custody ‘Wrongful of the child. reten- pending request part and includes a on his keeping tion’ refers to act of the child without custody of Evan. person actually consent of the who was exercis- requested In the district ing custody.” Id. at 10503. Since Mr. Feder "full faith credit” be extended Judicial removing consented to Feder's Evan from Registrar’s declaration that Evan was a habitual States, Australia to the United but did not con- resident of The refused Australia. Mr. Fed- there, being sent to the child’s retained we view Evans-Feder, request. er's Feder v. 866 involving alleged "wrongful this case as reten- (E.D.Pa.1994). issue This was not tion”. appeal. raised on If, example, grave claim tions. “there is a risk of Mrs. Feder’s reach the merits not expose return would [a child’s] return to Australia would that Evan’s Id. This appeal physical followed. psychological him at harm or other- risk. place the child in an situa- wise intolerable

II. tion[,]” mandatory. Hague Convention, Article 136. As- on the Civil re- pects of International Child Abduction Under about the harm a universal concern flects “wrongful” or retention of a child is removal kidnapping and parental to children done where: among Contracting strong desire a It is in breach of implement an effective deterrent States person, to a an institution or attributed Convention, Pream- such behavior. any alone, body, jointly or other either 11601(a)(1) (4). ble; Both U.S.C. — law the in which the under the State signatory and Australia are United States habitually immediately child was resident imple- Congress nations. The United States retention; before removal in the International mented the Convention or retention at the time removal Act, 42 Remedies U.S.C. Child Abduction exercised, actually rights were either those seq., expressly recognizing § its “in- 11601 et alone, jointly or have been so or the for uni- character” and “need ternational but for the removal or retention. exercised interpretation” of its pro- form international custody in rights The of mentioned sub- (3)(B). 11601(b)(2), § visions. 42 U.S.C. above, may paragraph a particular arise in implemented the Convention by operation by law or reason of a of (Child Family Con- by the Law Abduction decision, judicial or administrative vention) pursuant to Regulations made s agreement having legal of an effect reason of Law Act 1975. 111B the law that under the of State. phenom- approach The to the Convention’s Convention, Hague Article 3. of international child abduction is enon Convention, of designed purposes For the straightforward. It is restore “ ‘rights rights unilaterally custody’ of shall include relat quo status which is the “factual” and, of child parent ing person care the a abducts a child and the altered when right the custody rights particular, in the determine protect legal of aims the Hague parent.5 residence^]” child’s of Conven non-abducting Notice the Pub. (1986). Thus, tion, 5a. The conflict laws rules as the Article of Fed.Reg. law of child’s habitual the the mandat- well as the internal the cornerstone of Convention is determining parent’s a apply in the to his or her circum- ed return of child Perez-Vera, Explana parent’s custody rights. Elisa to the if one prior abduction stances Perez-Vera, in 3 Actes tory Report in Elisa the from or retention a removal of child Quatorzieme de session custody et documents la Contracting State has violated the (1982).7 other, is, therefore, habitual resi “wrong- If a child’s rights of 445-46 the than Convention, a which has more one 12.6 The dence is State Hague ful”. unit, however, return, excep- laws general has territorial rule residence, although the classic abduc- Hague The on Civil case, party prevailing Child not settle Where International Abduction does tion this occurs. a custody disputes, stating that under “[a] decision from the child’s habitual has moved concerning the return this Convention party, that wherever he is returned to child be to be a on child shall not taken determination Fed.Reg. may be. Pub.Notice or she any custody Hague Con- issue.” merits vention, Article 19. Hague Con- was the 7.Elisa Perez-Vera official provides child "[w]here a 6. Article 12 that Explanatory Report reporter. rec- Her ference wrongfully been removed or retained terms history commentary ognized the official authority ... concerned shall order Article 3 Fed.Reg. Convention. Pub.Notice forthwith.” Con- the return of child vention, at 10503. does not Article 12. The Convention require a child be returned to his her that mother, apply. unit territorial Thomas’ citizen United States and member of the United Article 31.8 Army Aibling, States stationed Bad Ger- Pursuant to the International Child many, wrongfully had removed the child Act, Remedies state and federal Abduction Germany, family lived, where juris original have concurrent district courts Ironton, days Ohio. A few before Mrs. arising actions under the Conven diction of Thomas, Germany Friedrich left with 11603(a). Any person § tion. 42 U.S.C. Friedrich forced wife and child from seeking return a child the Con under family’s apartment and Mrs. Friedrich by filing a civil vention commence action primary role of had assumed the Thomas’ petition in a court is locat where Emphasizing caretaking caretaker. role 11603(b). petitioner § ed. Id. The bears the eventually and intentions to preponderance showing by burden of Thomas, States Mrs. Friedrich or retention was evidence removal argued that Thomas’ habitual residence had 3; respondent under Article Germany shifted from to the United States. convincing must show clear and evidence court, however, Germany The held that exceptions apply. of Article Id. 13’s Focusing Thomas’ habitual residence. on the (2)(A). 11603(e)(1)(A), time, forward[,]” “look[ing] back finding any future intentions III. Friedrich had harbored Thomas reside inquiry, the United States irrelevant its A. concluded that Thomas’ habitual “ of Evan’s habitual residence only by residence could be ‘altered’ immediately prior to the retention is the change in geography [which must occur be- issue we first threshold must address.9 The questionable the pas- and the removal] fore Hague Aspects on the Civil of Convention time, of sage changes parental pro- Child International Abduction does not responsibility.” affection and Id. at 1401- residence; vide a for definition habitual case 02.10 analyzing developing. law the term now Bates, 122-89, High In re No. CA Court of not, however, guidance; We are without the Justice, Family Royal Div’l Ct. Courts of Appeals Court of for the Sixth Circuit and Justice, (1989), Kingdom a United mother High the Court of Justice of the United petitioned the court under the Convention for Kingdom have considered the of child, Tatjana, asserting the return of her in a “habitual residence” Convention Tatjana been wrongfully that had removed case. New York to London the child’s Friedrich, nanny father, In v. request. Friedrich 983 F.2d 1396 at the father’s The (6th Cir.1993), peti- a father a England, German filed a born raised successful son, Thomas, alleg- fame; tion for the return of his enjoyed musician who international States, review, employ In the United law accepting the in force the a mixed standard of habitually state which the child was resident the district court’s historical or narrative facts (as erroneous, possibly preempted by they clearly the exercising International Child unless but Act, 42 plenary Abduction Remedies U.S.C. et review of court's of and the choice inter- seq.) apply pretation legal precepts application would to determine whether a remov- of and its of 957, wrongful. precepts al or retention was Pub.Notice facts. those to the Id. Fed.Reg. at 10506. 10.Having Germany that determined was Thom- dissent, residence, the Appeals Unlike we believe that the determi- as' habitual the Court of re- factual, purely nation habitual is not of manded the case to the district court with in- standard, requires application legal any but the aof structions determine of Mr. whether concept which defines habitual Friedrich's actions terminated his is, therefore, any to historical and narrative facts. It under German law and whether exceptions a of law a conclusion or at least determination of to the the Civil a general mixed of law and fact. Universal International Child Abduction Minerals, Co., Friedrich, Hughes applied. Inc. v. C.A. & 669 F.2d rule of return Friedrich (3d Cir.1981). (6th Cir.1993). questions 102-03 On such F.2d agreements parents who intentions States citizen mother was a United pub- during period preceding the act of abduc- life of her world-wide shared husband’s recording important tion are bound be factors and engagements, rehearsals lic in Lon- be unrealistic to exclude them”. Id. The father owned home sessions. family’s op. slip which as “base”. don served early band was part of father’s opinion, govern- In its the court set forth a tour, starting with the to embark on about ascertaining ing principle for elements East, States, Far going next United residence, which we find instructive: ending stay of duration with a indefinite [Tjhere degree pur- must be a settled borrowed in London. The rented or may be pose. purpose one or there apartment, having de- friend’s York New may may specific be be several. It or Tatjana would live that and her mother cided requires All law general. father on tour. in New York while the purpose. there is a settled That is not to Tatjana’s speech were defi- Because skills say stay the propositus intends to year for a old cient two-and-a-half indefinitely. pur- where he is Indeed his speech York thera- consulted a New mother pose may for while settled be a limited arrangements pist with whom she discussed Education, profession, period. business Tatjana therapy during their sessions health, family employment, merely love stay. January, Toward the end place spring to mind common family apartment. the New York moved into abode, regular reasons for choice of accompanying the on various After father many there well be others. All that is engagements in British Columbia and necessary purpose living is that during first Feb- States week of degree where does has sufficient ruary, Tatjana, her and her mother continuity properly as set- be described York, nanny though to New even returned tled. reluctantly only agreed father omitted). (citation Id. course, preferring Tatjana have nanny the London home. Two

with the facts, Applying principle days departure for the Far after father’s New York had court concluded that because East, Tatjana’s nanny telephoned him to re- continuity acquired degree of “sufficient argument Tatjana’s with moth- port a heated set- properly it to be described as enable nanny the to take er. The father authorized tled[,]” Tatjana’s habitual residence was Tatjana immediately England, she which the of Article of the Con- within did. vention: acquired a more petition, alleged plan The New York had In her the mother by par- time purpose York that the Tatjana’s habitual residence was New settled in in the parental were Seattle and Vancouver guardianship that her of ties and February, by days the fa- been first few of and under New law had breached York Far was departure on his East tour deciding child’s In ther’s removal. by immediately had initially ob- imminent. New York habitual the court fluid, city in which mother concept become the that the fact-infused then served stay in the father had largely rules and wanted to and which and free from technical stay 9,11 reluctantly agreed her with slip op. recog- to allow presumptions, id. Tatjana, at until the band returned although whose least “[t]he nized habituality April in extent to be established is that of London child[,] feature in their young of a which New York would [i]n the case child as depend very much Tatjana, overtly thereafter stated lives conduct (8th affirming Rydder Rydder, Cir. the district court's treatment In v. 49 F.3d 369 in 1995), arising registration a case under the as a Swedish residence children's guid Appeals Eighth Court ed for Circuit legal consequence to determi- fiction of little Bates, by Re No. CA this observation from Rydder, 49 their residence. nation of habitual Justice, 122-89, High Divi Ct. Court F.3d at 373. Justice, (1989), Royal Kingdom Courts parents differently, on the decision which the agreed then both to move to that coun- personal try made about their lives.... and live there with one another and their son, making parents did what intent on arrangements ... I am satisfied new home for themselves and their child agreed, that had been however acrimoni- house, they purchased and renovated a do— ously, before the abduction date between pursued employment, ar- interests Tatj care, the two ana’s accom- ranged long-term immediate Evan’s therapy modation and treatment in New schooling. That Mrs. Feder did not intend during period York three months or permanently to remain in Australia and be- elapse so that would be due before the marriage lieved that she would leave her father’s return to London amounted to a improve did not not couple’s does void the purpose degree with a sufficient of conti- purpose settled family to live as a in the nuity to properly enable it to be described place where Feder had found work. as settled. slip Id. op. at 9-10.12 disagree We thus with the district court’s States, conclusion that the United not Aus- spirit Guided aims and tralia, was Evan’s habitual residence and Convention and assisted the tenets enun analysis with its issue in re- several ciated in Friedrich Friedrich and Re spects. rejecting the court Bates, we a child’s believe that habitual resi placed emphasis undue on the fact that the place dence is the where he or she has been majority years spent in Evan’s been physically present for an amount of time States, ignoring approximate- the United sufficient for acclimatization and which has a ly six Evan months that lived Australia “degree purpose” of settled from the child’s immediately preceding his return to the perspective. We further believe that a de United States and the circumstances of his any particular place termination of whether Moreover, life Australia. the court disre- satisfies this standard must focus on the child garded present, shared intentions of both analysis and consists of an of the child’s regard Mr. and to Evan’s circumstances in that parents’ and the stay Australia, focusing instead on Mrs. present, shared regarding intentions their exclusively and on the facts which presence child’s there. indicated that she did intend to remain marriage When our Australia if apply definition of ended at fu- ha some facts, bitual Finally, residence to ture date.13 we find we conclude that the court’s reli- Ponath, Australia was ance on In Application Evan’s residence im re (D.Utah mediately prior 1983), to his retention in the United where the court moved, States Mrs. habitually Feder. with his found that a child resident father, Pennsylvania mother and alleged by the respon- to United States as the dent-mother, Australia where to live very Germany by he was for at the alleged not in future, least the stayed petitioner-father, There, foreseeable and misplaced. in months, signifi Australia for close to six began voluntary what as a visit to fa- period four-year cant Germany of time for family by old child. ther’s in the mother and preschool Evan attended and both of whom resided in the United kindergarten States, was upcom enrolled in by turned into “coerced residence” ing year, verbal, in participating one of the most virtue of the emotional physical and central in child’s Although successfully activities life. abuse that the father to used prevent and Mrs. Feder viewed very Australia his wife’s and child’s return to the reasons, 12. The essentially court then determined that the disagree mother’s For the same we parental the dissent's view that the United guardianship States was under New York immediately prior Evan’s habitual residence Tatjana's law had and been breached country relatively the retention. As the of Evan’s expose grave would physical not to a risk of past unilaterally distant and Mrs. Feder's chosen harm, psychological or as the father asserted. future, it does not coincide with our understand- Accordingly, granted peti- the court the mother’s ing satisfy of habitual nor the defini- Bates, 122-89, slip op. tion. Re No. CA at 11. tion we have enunciated. clearly questions respective- which ask 368. Such is Id. at States. your in ly choice-of-law rules “[w]hat case not the here. custody any and “[a]re child cases?” there habitually thus hold that was We or other norms constitutional fundamental immediately prior to his Australia resident your country law which override by the United Mrs. retention cases?”, in custody usual choice-of-law rules States. provides Documents at pertinent part apply that Australian courts B. Family custody Act 1975 Australia’s Law however, analysis, here. does not end Our questions: Having that Evan was a habitual concluded [1975], Family Act Under Law Australia, must we now determine resident jurisdiction15 applica- to hear an by whether retention of, to, custody ... tion for or access a child wrongful under Article 3 of Convention. provisions applies govern- of the Act inquiries: involves two This determination custody ac- the determination of custody rights en- whether applications regardless of nation- cess by were joyed under Australian law breached ality of domicile habitual resi- and whether Mr. Feder the retention of the dence child. exercising rights at time.14 those at 65. PE- Convention Documents See also regard custody rights to Mr. Feder’s With NYGH, TER E. OF LAWS IN CONFLICT law, Australian we recall that the Con- under (5th 1991). AUSTRALIA, Ch. 27 ed. of law play calls into a State’s choice vention Thus, custody rights custody rights are well internal Mr. Feder’s rules as as its must, therefore, Family Act supra p. 221. We determined Australia’s Law laws. See directly may of which “take initially law Australia would notice determine what specific Among proce ... without apply in this the documents recourse case. proof for the of that law....” the minutes of the discussions dures included Act, in 14.16 Under of The Con- the Fourteenth Session any orders of each “Questionnaire are a on international the absence ference joint joint guardian “Re- is a and a custodi parent”, parent one and the child abduction child,17 Question- guardianship of the and custo of the an plies Governments essentially right have Quator- dy rights la involve naire”. 3 Actes et documents de (1982) 9, 9-11, concerning daily make decisions care session 61-129 zieme reply Law Act 1975 control of child.18 Documents”]. Australia’s [“Convention questions not whether a of laws We decide both of these since does indicate conflict analysis was question law second done. the first is and the part. See involves admission on Feder’s 63(F)(1) 17. Section states: p. 226. infra Subject any of a court for the time order reply “Questionnaire (whether 9 of the 15. In being this in force or made under parent”, international child abduction before or after Act whether made assuming section) your courts use for "[w]hat bases do each commencement of cases?”, jurisdiction in Actes et child of a who has not attained child Quatorzieme de age documents (1982) la session years guardian and the Documents"], stat- custody Australia joint [“Convention the child. have the Family 63(F)(1). Law such ed that under the Family Act Law Act s 1975 party proceedings may be instituted either 63E(1) (2) provide: 18. Subsections marriage Australian citizen or either the is an to, of, present marriage party 63E(1) or the child the is [Guardianship person who child] A at 64. in Australia. Convention Documents guardian Act the of a child under this has is responsibility long-term the the welfare of has, child, all the relation to the We observe the Australian court to which are, apart powers, from application for un- and duties Feder made declarations Mr. Act, guard- Hague applied the this vested law or custom in der the Convention Australia’s child, ian of a other than: Law Act to determine whether 1975 (a) right daily and con- wrongful. the have the care of Evan was See Feder’s retention however, child; p. opinion, the supra trol of The court's (F)(1). 63(E)(l)-(2), issue, before, appropriately See also s Con- and as it so did vention, Article 5a. expeditiously pos- render its decision as as is given sible since of the time is essence Turning to the Convention’s next re young age. Evan’s quirement actually that Mr. Feder exer rights he cising had at the time the We also note that order to ameliorate Convention, retention, Hague any short-term harm to the courts in 3b, that Mrs. Feder we observe conceded appropriate the circumstances have made re- court and both in the district before us on contingent “undertakings” turn upon appeal had and was that Mr. Feder exercis petitioning parent. the Thomson v. Thom- respect ing joint custody decisions son, (Can.Sup.1994). 119 D.L.R.4th 253 Accordingly, concerning their son. hold initiative, district on its own heard that Mrs. Feder’s unilateral decision to re testimony undertakings about the tain States was the United willing to make the event that Evan within Article 3 of the the Con returned accompa- to Australia and was not vention. nied Mrs. Given Feder. its denial of Mr. however, petition, Feder’s the court did not IV. adequacy assess the or the need for of those recognized, exceptions there are As we undertakings. If remand on the court de- on the the Convention Civil order, cides that Evan’s return is in but general Abduction International Child rule determines that Mrs. Feder has shown that mandatory that a child’s return is where he an unqualified order would be detri- wrongfully she has retained been Evan, mental to court investigate the should parent. Hague Article 13. adequacy undertakings from Mr. Here, excep- one of Mrs. Feder raised Feder to ensure that Evan does not suffer tions, asserting that Evan’s return would ex- shortterm Re harm. See FLR 349 pose grave psychological him risk of to a (U.K.Fam.1994) (exacting appropriate under- physical harm or otherwise him in an cases). takings legitimate in Convention Hague Convention, Ar- intolerable situation. Finally, light requested ticle In its conclusion that Mr. fees and 11607(b)(3) satisfy proof Feder failed to his burden of costs. Section on the Internation- question, threshold district court al did Child Abduction Act requires Remedies any reach this issue. court ordering the return of a child under the to award fees and therefore, case, This must be remand petitioner costs to respondent unless the ed for the district court consider establishes that order “clearly such would be first instance as the whether International 11607(b)(3). inappropriate”. § 42 U.S.C. Child Act requires, Abduction Remedies ultimately prevails event that Mr. Feder exception by Mrs. Feder can establish remand, on court district should also clear convincing evidence. U.S.C. consider and decide issue. 11603(b). exceptions We note drawn, narrowly application lest their under express purposes

mines the of the Conven V. Indeed, tion. the courts retain the discretion reasons, For foregoing we will one of vacate exceptions order return even if proven. the district of Mr. peti- court’s denial Feder’s Fed.Reg. Pub. Notice (1986). needed, If tion and remand case to the the district district court supplement proceedings should record on this for further exception (b) (a) responsibility right right daily to make deci- care and to have control child; daily concerning sions care and of the control of and (b) right responsibility the child. and make deci- 63E(2) [Custody person daily concerning child] A who sions has or care and control of granted custody of a child under this Act the child. 63(E)(1), (2). has: Law Act s 1975 I necessary, on because would affirm the district and if and raised finding supported undertakings by Mr. Feder court’s evidence questions of dissent, erroneous, clearly not I of fees and and request for award and his costs. I. dissenting. SAROKIN, Judge, Circuit Senate ratified the 1980 The U.S. dissent, necessarily be- respectfully I on Civil of International analysis majority’s disagree cause I with (“the Convention”) and en Abduction Child facts, rather with the standard but legisla supplementary implementing acted The issue facts are reviewed.

which these tion, International Abduction Rem Child court was the deter- presented to the district § 11601 et seq. edies Act of U.S.C.A. year-old boy’s “habitual a four mination of (West 1995) (“ICARA” Act”), only or “the JenMntown, residence,” Pennsylvania, either reported recently, pursuant and thus cases and almost his entire life where he has lived relatively are scarce. Al the Convention resides, Sydney, now where mother his appellate though three decisions have re stayed five months he where petitions disposed ICARA of after an viewed father now resides. Resolution 1994 and his evidentiary hearing, none has enunciated an child shall this where the issue determines Prevot explicit standard review. See v. parents’ cus- pending reside conclusion (6th (In Prevot), re Prevot 59 F.3d 556 Cir. tody dispute. (8th 1995); Rydder, Rydder v. 49 F.3d 369 Cir.1995); Friedrich, Friedrich v. 983 F.2d evidentiary held an hear- The district Cir.1993). (6th Hence, ours is the first habitually boy and ruled analyze appeals in court of the nation majority sub- resident JenMntown. appropriate standard of review for determi jects plenary review tWs determination residence,” nations of “habitual and we must order of the district and vacates the carefully immediate tread because of its ef likely wMch will result an order child upon residency involved. fect Sydney father where his be sent majority’s opinion does Although the lives. footnote, majority announces that In a ultimate meant resolve the not and is not the determination of habitual resi- because impact custody, it has issue of immediate law, mixed fact and is a dence ultimately and the child’s or narrative facts will be reviewed historical impact upon final realistically and it will error, interpre- clear the “choice child re- custody Where a determination. legal precepts application its tation of develops awaiting ties a final deci- sides and subjected precepts to facts” will be those invariably affects that deci- sion on n. Maj. Op. at plenary review. Therefore, we should disturb the exist- sion. certainly proper standard for This is ing relationship finding and a of habitual fact, I questions of but cannot mixed law and basis, residency, temporary even on presents “habitual such agree that residence” only great hesitancy and the facts and when question. clearly mandate it.

law Preliminarily, I federal remark that pre my the issue of habitual residence struggled view courts1 have over state one, findings issue, essentially maMng findings factual of fact with some cise regarding should not disturbed law of the district court be and others conclusions of clearly Compare I they Because habitual residence. Wan unless erroneous. child’s Wanninger, majority respectfully ninger believe (“the (D.Mass.1994) review, the chil- court finds that incorrect established an standard Act, 11603(a). have 42 U.S.C.A. state federal courts Under the petitions. jurisdiction over ICARA concurrent 228 ‘habitually Germany”); Legal Analysis, Fed.Reg. resident’

dren were 51 at 10503. This Meredith, 1432, 1436 F.Supp. history commentary” “official explains: 759 Meredith v. (habitual (D.Ariz.1991) finding residence is is, fact, ‘habitual residence’ ... a famil- O., 566, fact); B. v. Helen 164 Misc.2d David Conference, iar notion of the where (“the 436, finding 438 court’s 625 N.Y.S.2d purely is understood as a con- factual respect to the habitual issue is cept, especially to be differentiated (Fam.Ct.1995); dispositive”) 441 n. 3 Rosz & that of the ‘domicile.’ Roszkowska, 1150, 1157, 644 A.2d kowski v. 620, (Ch.Div.1993); Perez-Vera, N.J.Super. “Report Special 274 634 Co Elisa Cohen, 1018, 1024, Commission,” Haye Misc.2d 602 de hen v. 158 La de Conference (habitual 994, prive: droit (Sup.Ct.1993) international Actes et N.Y.S.2d 998 res docu determination”); Quatorzieme session, III, ments de la Vol. idence is “factual with Pre ¶ Abduction, Prevot), (In 915, (emphasis Child 60 at 189 add F.Supp. vot v. Prevot re 855 ed). (W.D.Tenn.1994) (habitual treaty’s Examination of a negotiating 920 residence is history appropriate plain is law), where the lan grounds, conclusion of rev’d on other 59 guage (6th is Cir.1995); Ponath, itself unclear. See Sale v. Haitian F.3d 556 In re 829 — Council, U.S. —, —, (D.Utah Ctrs. 1993); 113 F.Supp. Slagenweit 367 2549, 2565-67, (1993). S.Ct. 125 L.Ed.2d 128 Slagenweit, F.Supp. 841 269 regard, analysis negotiating history (N.D.Iowa 1993), appeal dismissed without is akin to legislative history consideration of (8th Cir.1994); op., 43 F.3d 1476 Falls v. statutory in a case of construction. Accord (D.Mass.1994). Downie, F.Supp. 871 102 ingly, history’s the official characterization of all, Encompassing the district court here purely residence as “a factual con wrote that it and concludes that the “finds cept” powerful evidence that its drafters habitual residence of Charles Evan Feder is intended a determination of habitual resi in the States.” Feder v. United Evans-Fed fact, dence to be one of not of law. (em er, (E.D.Pa.1994) F.Supp. 868 added).2 phasis Second, jurisprudence of habitual resi- generally dence has reflected the fact-bound First, “habitual residence” is not defined in inquiry. nature of the Eighth The Sixth and Act, either the Convention and conse- approved Circuits have a British construction quently legislative one must look to the of the term: history. negotiating Unfortunately, neither legislative history of the Act nor the U.S. greatly It hoped to be the courts Department legal analysis of State submitted temptation will develop resist de- Reagan during the Senate President tailed and restrictive rules as to habitual proper ratification reveal the standard of re- might which make it as techni- Report Cong., view. See H. No. 100th cal a term of art as common law domicile. Sess., 386, 392-96; 2d 1988 U.S.C.C.A.N. The facts and circumstances each case State, Department Legal Analysis, U.S. should continue to be assessed without re- Hague International Child Abduction Con- presumptions sort presuppositions. Analysis”), (“Legal Fed.Reg. vention at Bates, 122-89, In re slip op., High No. CA Justice, Family Royal Court of Div’n Ct. document, The term is discussed in one Justice, (1989), Kingdom Courts of at however, that reveals its to the Con- (quoting Morris, Dicey The Conflict of According Department Laws, vention. U.S. 166); Rydder, 373; at F.3d State, report Hague Friedrich, the official 983 F.2d at 1401. See also Po- Reporter nath, Conference for the Convention is at 365. “The intent is for “recognized by the Conference as the official concept [habitual residence] to remain history commentary based, on the becoming Convention.” fluid and fact rigid.” without ” majority by characterizing I thus think the errs Maj. States was Evan's 'habitual residence.’ added). “concluding Op. (emphasis district court as that the United at 218

229 (3d Co., 134, 662, 691 F.2d 138 Borne Chemical 666 Levesque, 816 Levesque v. Cir.1982). by a decision, To scrutinize ultimate facts (D.Kan.1993). the Bates Even than that of clear authoritative, less deferential standard re- majority as by the treated “untenable,” American Home Prod removal,” error is “finding of to a ferred (cid:127) Laboratories, Inc., Corp. v. Barr 834 ucts 9, depends Bates, of course slip op. at which (3d Cir.1987), 368, extent 371 and to the F.2d of habitual residence. on a determination ultimate facts in circuit once reviewed our my consistent with descriptions are Such mistake, wrong.” part legal “we were is a factual that habitual residence conviction Co., Cooper Supply Electric 940 Martin v. finding. (3d 896, Cir.1991), 908 n. 11 cert. de F.2d Third, recently Circuit has very the Sixth 936, 1473, nied, 112 117 503 U.S. S.Ct. par- of whether a question characterized (1992). Indeed, if the L.Ed.2d 617 custodial as exercising his or her ent had been sub of Evan’s habitual residence 560, Prevot, at n. 4. “finding.” 59 F.Bd a judge, I jury rather than a mitted to a rights, like of custodial The actual exercise would set aside the same doubt that we residence,” peti- an element of a “habitual it mandated grounds on the that was decision a or retention proof that removal tioner’s as a matter of law. 3; 42 “wrongful.” See Accordingly, I conclude that the determi 11603(e)(1). agree § I with the U.S.C.A. child’s habitual residence is best nation of a absolutely no rea- perceive Circuit and Sixth finding. I would re as a factual described of habitual resi- a determination son to treat ruling court’s on Evan’s 3(a), view the district legal a dence, required in Article as as error, for clear see Fed. habitual residence conclusion, actual exercise of but that of the 52(a), 3(b), and I would not disturb R.Civ.P. in Article rights, required custodial and firm convic unless left with the definite finding. as a factual committed. tion that a mistake been Fourth, phrase “estab- the Act’s use of the 1204, 1220 of Educ., 995 F.2d Oberti v. Board the evidence” to preponderance of lish (3d Cir.1993). “might come to Even if I have proving petitioner’s burden of describe a on this different factual conclusions based of habitual wrongful removal from record, findings district of the [I] defer signals that habitual residence is that the record convinced [I am] court unless 11603(e)(1). 42 question. fact U.S.C.A findings.” Id. support those cannot majority’s of habitu- Finally, the treatment “ultimate facts” with

al residence confuses II. an questions fact and law.” While “mixed majority opinion that “a agree subsidiary find- I may depend on ultimate fact place where fact, finding residence is the a factual child’s habitual it is nonetheless ings of for an physically present Pull- has been for clear error. he she and must be reviewed Pullman, man-Standard, for acclimatization Inc. v. amount of time sufficient Div. of 1781, purpose’ 287, ‘degree of settled Swint, has a 102 S.Ct. and which 456 U.S. Maj. Op. at (1982). perspective.” example, the child’s For 72 L.Ed.2d 66 Yet, and actions char- “the desires following have been determinations ignored by the court be and reviewed for cannot as “ultimate facts” acterized the child discrimination, when making Pull- that determination clear error: intentional or retention man-Standard, at time of removal 102 was at the 456 U.S. S.Ct. Ponath, 367. Hav- F.Supp. at 1789; planning,” infant.” 829 than minimal “more (3d Cianscewski, findings of the district F.2d 83 reviewed v. States however, a “definite I am left with Cir.1990); patent dispute, “equivalence” has been that a mistake Wolf, F.2d and firm conviction” Interdynamics, Inc. Oberti, F.2d at 1220. (3d Cir.1982); bankruptcy committed. and “a n. 36 Therefore, fact,” I would affirm. finding of Bittner v. ultimate court’s ney, sign any residence determina- papers support I believe the habitual application requires weighing of those facts which tion filed their behalf. events, trivial, purpose comparatively to reside in Id. These all indicate a settled another, persuade do not as well as those which me that the district court location or Rather, they committed clear error. suggest particular community. to a seem to close ties 8, 1994, always confirm that Mr. parties agreed Feder had a January settled As purpose Sydney, to reside in tipped decisively in but Mrs. Feder that the scales favor of remain, arrived without a purpose settled to Jenkintown as Evan’s habitual residence. departed Feder, having developed never 220; one. Maj. F.Supp. Op. at Nor do date, anything these events indicate about a number of the Yet as of this facts Evan’s own intentions. majority already had been relied placed Sydney side of the on the balance. As agree I majority with the that a there is (a) of that date: Mr. Feder had a settled temporal inquiry. element to this exam- For (b) Australia; purpose in to live ple, certainly two weeks in Australia Australia, agreed go had to to with Evan but not suffice for Evan to establish a habitual there,” any “without commitment to remain there, years and after two his (c) Feder, 863; F.Supp. at Feder had put mother would have been argue hard purchased family; in Australia for home that Jenkintown remained his home. More- (d) couple put their Jenkintown over, given that “habitual residence” should (e) market; couple home on the had sold rules, not be legal over-encumbered with I many possessions in of their household Penn- bright-line period would not establish a time (f) sylvania; and Mrs. Feder and Evan had necessary to establish I residence. Yet can- temporary immigration status to in reside not conclude that five and one-half months is Nonetheless, parties agreed Australia. obviously so sufficient that I would reverse factors, sum, or in these alone did not the district finding clearly court’s errone- residence, make Evan’s habitual Australia regard, ous. In this I note that subsequent dispositive absent some conduct. the Convention directs that even when a wrongfully child has been removed from his becomes, any- thus if what spent the child has thing subsequent occurred in the five and year (prior filing petition) in a one-half months sufficient alter the bal- location, may new be thwarted carefully ance? The district court canvassed demonstration that the child “is now settled.” hearing evidence introduced at the context, Thus another the Convention rec- determined that it was insufficient to alter ognizes year that at pass least one must the balance that existed before Mrs. Feder sufficiently before a child can be “settled” so Sydney. and Evan traveled to The court as to affect the location where will be observed that Mrs. Feder had obtained one adjudicated. day employment, single performance Sydney Opera, with the scheduled for thir- addition, alleged as of the date of the arrival; teen months after her Evan attend- removal, longer Evan had lived far pre-school part-time, ed enrolled in kinder- Sydney. Jenkintown than itWhile garten upcoming year, for the and was had, be that Mr. Feder and Mrs. Feder did placed private school; waiting on a list for a have, purpose Syd- settled reside and Mrs. Feder and Evan had obtained Aus- ney, significant stayed that Evan Feder, tralian Medicare cards. left, mother Jenkintown until she trav- hand, at 864. On the other unlike her hus- elling Sydney only when she did. This band, Mrs. Feder declined to surrender her correspondence indicates some between the Pennsylvania driver’s license or to obtain an purposes of mother and child. While it is Australian one. virtually Nor did she or Evan submit impossible to ascertain the settled physical necessary purpose examination to ac- young of such a it is more quire permanent immigration Syd- closely aligned status in here to that of the mother. moth- not meant indicate That is necessarily predominate, ASSOCIATION, should purpose COAL

er’s PENNSYLVANIA sup- unincorporated the facts this matter but rather association that conclusion. port BABBITT, Secretary the Interior

Finally, must be of the conse- Bruce mindful likely Department here, Inte since it will of the United States quence of a reversal Uram, rior; Director, order for child's return Robert Office in an result Mining prove and En can Surface Reclamation unless forcement, Department convincing United States evidence clear Interior, Appellants, “grave risk” he returned be at were would proof, such the child will be Sydney. Absent Pennsylvania Department of Envi Jenkintown, his mother’s taken from home (DER), ronmental Resources years, spent virtually all of his where he Intervenor in D.C. father spent to the time with his in contrast temporary ruling in Australia. Since ASSOCIATION, PENNSYLVANIA COAL custody adjudication, may again he pending unincorporated association Al- back to the States. be ordered best interests the child will be though the BABBITT, Secretary Interior ultimately, Bruce they should not be determined Department Inte preliminary proceedings. of the United States ignored these Uram, rior; Director, only be detri- Robert Office tugging shuttling can Such Mining Thus, and En clearly fact- Surface Reclamation absent erroneous mental. forcement, Department ruling should United States finding the district its Interior remain undisturbed. Pennsylvania Department

Accordingly, I would affirm the district of Envi (DER), finding that habitual residence ronmental Resources court’s Evan’s Intervenor in D.C. is the United States.3 Pennsylvania, Commonwealth Department of Environmental Resources, Appellant. 94-7538, Nos. 94-7558. Appeals, Court of United States Third Circuit. 5,May

Argued Aug. Decided 13(b) sugges- apply, majority's but that or other under- I add a note to endorse the will further takings prerequisite a child's return.” that, event court deter- tion in the the district O, (U.K.Fam.Div.1994). dis- 2 FLR 349 Re "grave pose return order risk” mines a no require may, example, trict to detrimental to to Evan but would nonetheless be Syd- fly pay back to for mother him, may adequacy of the court evaluate the ney, permit to live former matrimo- them at the Maj. Op. undertakings offered Mr. Feder. elsewhere, provide while lives nial home he "permissible of a court 226. The involvement” living expenses. Id. The a car and them with deciding petition beyond bluntly say- “extends investigate also need to wheth- district court be a there shall that there shall return or that undertakings United States offered in the er can outcome The court influence the not. binding would be enforceable making undertakings, necessary clear that or with implementation without to avoid their undertakings "grave See id. only Artficle] risk” to the child returned. that are offered.

Case Details

Case Name: Edward M. Feder v. Melissa Ann Evans-Feder

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 24, 1995

Citation: 63 F.3d 217

Docket Number: 94-2176

Court Abbreviation: 3rd Cir.