CATHLEEN CARMEN MARY WHITING v. PETER L. KRASSNER, a/k/a MIKE CIMINO
No. 03-1276
United States Court of Appeals for the Third Circuit
Filed December 15, 2004
Before: RENDELL, FUENTES and SMITH, Circuit Judges.
PRECEDENTIAL. Argued September 28, 2004. On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 02-cv-05861). District Judge: Honorable Garrett E. Brown, Jr.
Kirkland & Ellis
655 15th Street, N.W.
Suite 1200
Washington, DC 20005
Counsel for Appellant
Celso M. Gonzalez-Falla (ARGUED)
109 East 64th Street, Fifth Floor
New York, NY 10021
Counsel for Appellee
RENDELL, Circuit Judge.
On March 19, 2002, Cathleen Carmen Mary Whiting initiated an action under The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 (“The Hague Convention”) for the return of her daughter, Christina, to Canada. Christina had been taken by her father, Peter Krassner, to the United States without Whiting’s consent. After an expedited hearing, the District Court, in a lengthy oral opinion, determined that Christina’s place of habitual residence at the time of her removal from Whiting’s custody was Canada, and ordered that Christina be returned to Whiting’s custody in Canada pursuant to the Convention and the International Child Abduction Remedies
The District Court had jurisdiction over Whiting’s petition pursuant to
I. Factual and Procedural Background
Christina Krassner was born on September 6, 2000, in Plainview, New York to Whiting and Krassner. The two were unmarried at the time and never married subsequently. Whiting and Krassner resided together with Christina in New York until October 19, 2001. By that time, their relationship had become acrimonious. This acrimony and the couple’s desire to live apart
In pertinent part, the Agreement provided that both parties would retain joint custody of Christina, that Whiting was returning to Canada as a result of the events of September 11, 2001, and that Krassner would have the right to have Christina with him for a period of thirty (30) to forty-five (45) days during the summer. The Agreement also stipulated that Whiting and Christina would reside in Wallaceburg, Ontario, Canada, and that Whiting could not move her residence without Krassner’s knowledge. Most importantly for our purposes, the Agreement contained provisions concerning the length of Christina’s stay in Canada. It provided that Christina would be returned to the United States “no later than October 19, 2003 as long as there is no imment [sic] danger of constant terroist [sic] attacks” and as long as Whiting was “legally allowed to recide [sic] and work in the United States.”1
At approximately 4:00 P.M. on December 24, Whiting called Krassner to check in on Christina and was told that she was in New York with her father. He had taken her there without Whiting’s consent apparently in response to a concern he had regarding Whiting’s attentiveness to Christina’s needs. Whiting immediately called the police in Canada, who arrived and discovered, upon investigation, that Krassner had checked out of his hotel at 4:30 in the morning on Christmas Eve. Both parties then initiated legal proceedings in their respective countries and Whiting filed this petition under The Hague
II. Mootness
On appeal, the parties have addressed the question of mootness. Krassner argues that an appeal from a decision under The Hague Convention is not moot simply because the child had
A. Judicial Estoppel
In an interesting twist, Whiting contends that while the appeal, itself, is not moot, Krassner should be estopped from arguing that it is not moot under the doctrine of judicial estoppel. Essentially, she argues that because Krassner argued both before the District Court and initially before this Court that his appeal would be rendered moot if Christina were returned to Canada, he should be prohibited from advancing the position that his appeal was not rendered moot when her return occurred. We find this argument to be unavailing.
Judicial estoppel prevents parties from taking different positions on matters in litigation to gain advantage. United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999). Here, we question whether Krassner’s having argued for a stay based on the likelihood that his claim could be held to be moot is the type
Further, there is an exception to the general concept of “judicial estoppel” when it comes to jurisdictional facts or positions, such that it has been said that “judicial estoppel... cannot conclusively establish jurisdictional facts.” In re Southwestern Bell Tel. Co., 535 F.2d 859, 861 (5th Cir. 1976). Mootness must be examined by the court on its own and courts have generally refused to resort to principles of judicial estoppel to prevent a party from “switching sides” on the issue of jurisdiction. See Da Silva v. Kinsho Internat’l Corp., 229 F.3d 358 (2d Cir. 2000); see also Fahnestock v. Reeder, No. 00-CV-1912, 2002 U.S. Dist. LEXIS 11292, at *4 n.2 (E.D. Pa. Jan. 28, 2002) (vacated on other grounds). Therefore, we find that
B. Mootness of the Appeal
Krassner and Whiting have brought to our attention the opinions of other courts of appeals that have adopted opposing views as to whether an appeal from a decision under The Hague Convention is rendered moot if the child has been returned to the country from which she was removed during the pendency of the appeal. Under
In undertaking the mootness inquiry, we must consider “whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief .” Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985). Does Krassner’s compliance with the District Court’s order to give Christina back to Whiting and Whiting’s subsequent return to Canada
Two courts of appeals have dealt squarely with the issue of mootness of an appeal under The Hague Convention once a child has been returned to the country from which he or she was allegedly wrongfully removed; they have come to differing conclusions on the issue. In Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001), the Court of Appeals for the Eleventh Circuit held that an appeal from a district court order directing the return of a child to his father in Israel under The Hague Convention was rendered moot by the child’s return there during the pendency of the appeal. The district court in that case had issued a stay, ordering the child to remain in the United States if an appeal was filed by the child’s mother and if the mother posted a $100,000 bond. Id. at 1053. The mother filed the appeal, but failed to post the required bond and, thus, the child was returned to his father. The court of appeals held that because the child’s father had received the initial relief he sought in his Hague Convention petition, the case was moot.
In reaching this conclusion, the court relied on cases in which the actions of the lower court simply could not be undone by the appellate court or in which the appellant had already received the relief he or she was seeking during the pendency of the appeal. See, e.g., B&B Chem. Co., Inc. v. E.P.A., 806 F.2d 987, 989 (11th Cir. 1986) (dismissing challenge to a warrant execution as moot because warrant had already been executed); Brown v. Orange County Dep’t of Doc. Serv., No. 94-56274, U.S. App. LEXIS 15921 (9th Cir. July 1, 1996) (unpublished) (dismissing as moot an appeal under The Hague Convention
In Fawcett, the district court had granted The Hague Convention petition of the mother and ordered the return of the child from the United States to Scotland and the father then appealed. Id. at 492. The court of appeals reasoned that the appeal was not moot simply because the child had been returned to Scotland because “no law of physics would make it impossible for Ms. Fawcett to comply with an order by the
III. Habitual Residence
The main issue presented on this appeal is whether the District Court correctly decided that Canada was Christina’s place of habitual residence at the time of the removal. The determination of a child’s habitual residence presents a mixed question of fact and law. We, therefore, “review the district court’s underlying findings of historical and narrative facts for clear error, but exercise plenary review over the court’s application of legal precepts to the facts.” Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir. 2003).
The Hague Convention seeks to prevent “the use of force
The Hague Convention does not specifically define the term “habitual residence.” The inquiry into a child’s habitual residence is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case. See In Re Bates, No. CA 122-89 (available at http://www.hiltonhouse.com/cases/Bates_uk.txt), High Court of Justice, Family Div‘n Ct. Royal Court of Justice, United Kingdom (1989) (unreported) (stating that courts should “resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions”).
We were first presented with the opportunity to determine the contours of a child’s habitual residency under The Hague Convention in Feder. There, two parents lived in Pennsylvania with their four-year-old son, Evan, for approximately four years before moving into Australia as a result of the father’s job prospects. Although the mother had reservations about living in Australia, she acquiesced to the move and even enrolled Evan in kindergarten, which was not to begin for a year after the move. Additionally, the family bought a house in Australia, Mrs. Feder auditioned for and accepted a role with the Australian Opera Company, Mrs. Feder applied to have Evan admitted to a private school in Australia when he reached fifth grade, and the entire family obtained Australian Medical cards. See Feder, 63 F.3d at 219. Less than a year after their move to Australia, Mrs. Feder left the country with their son and returned
Mr. Feder eventually brought a proceeding for wrongful removal and retention of their son under The Hague Convention. The district court concluded that Evan’s place of habitual residence at the time of the trip back to Pennsylvania was the United States and, therefore, his removal and retention were not wrongful. On appeal, we reversed, finding that Evan’s habitual residence was Australia because it was the place where he had been physically present for an amount of time sufficient for him to become acclimatized, and which had a degree of settled purpose from the child’s perspective. Id. at 224. In reaching this conclusion, we further noted that “a determination of whether any particular place satisfied 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.” Id.
In defining habitual residence in Feder, we found the court’s reasoning in the British case of In Re Bates to be instructive5. There, the court stated that in deciding whether a
There 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.... 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. Id. at 223.
Since our decision in Feder, we have examined the issue of a child’s habitual residence for purposes of The Hague Convention on another occasion. In Delvoye v. Lee, we were
We concluded that because the mother had retained her ties to New York, had not taken most of her belongings with her to Belgium, was in Belgium on only a three-month visa and lived out of a suitcase there, there did not exist the degree of common purpose to habitually reside in Belgium. Id. at 334. We focused on the intentions of the parents as indicative of the child’s habitual residence, noting that “‘[w]here a child is very young it would, under ordinary circumstances, be very difficult for him . . . to have the capability or intention to acquire a separate habitual residence.’” Id. at 333 (quoting PAUL BEAUMONT & MCELEAVY, THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION 91 (1999)). We stated that because the parents lacked the “shared intentions” concerning their child’s presence in Belgium, the child was not a habitual
Other courts have examined the issue of habitual residence under The Hague Convention using varying formulations, with varying results. This is to be expected since the inquiry into a child’s habitual residence is, as we stated earlier in our discussion, necessarily fact-intensive and circumstantially based. In a recent and comprehensive opinion, the Court of Appeals for the Ninth Circuit examined this issue in the context of four children who moved to the United States with their mother after living in Israel for their entire lives. They originally moved to the United States with their father’s consent that they would remain there for fifteen months. One year after moving to Los Angeles with the children, the mother filed a petition for dissolution of her marriage and to gain custody of the children. The father then filed a petition seeking to have the children returned to Israel under The Hague Convention. Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir. 2001).
In the opinion, the Ninth Circuit took the opportunity to more clearly define the term “habitual residence.” The court explained that, in its view, “the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Mozes at 1075. The court went on to declare that the intentions that should be examined are those not of the child, but rather of “the person or persons entitled to fix the place of the child’s residence.” Id. at 1076. We are in agreement
The Ninth Circuit then went on to delineate three broad categories of fact patterns that arise in cases under The Hague Convention in which parents are contesting where the child habitually resides. The first of these is the situation in which the court finds that the family as a unit has translocated and “manifested a settled purpose to change its habitual residence, despite the fact that one parent may have had qualms about the move.” Mozes, 239 F.3d at 1076. This usually leads courts to find a change of habitual residence. Secondly, there are cases where the petitioning parent initially agreed to allow the child to stay abroad for an indefinite duration. These cases, the court declared, generally have no clear answer and are very fact-dependent. Id. at 1077. Finally, there are cases, like ours, where the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration. The court noted that in these types of cases, most courts will find no change in habitual residence. However, the court went on to
This caveat regarding shared intent brings the Ninth Circuit’s decision into alignment with our reasoning in Feder and Delvoye. For, as stated earlier, Feder requires only a degree of settled purpose to accompany the move, even if such purpose is only for a limited period. Feder, 63 F.3d at 223. Such is the case before us. Unlike many cases arising under the Hague Convention, the parents’ intent in this case is embodied in the Agreement and, therefore, need not be inferred from their actions. The District Court found that the Agreement specifically stated that Whiting and Christina would reside in Wallaceburg, Ontario, Canada, and Christina would return to the
Krassner further contends that Canada cannot be considered Christina’s place of habitual residence because there was never an intent to abandon New York as her habitual residence. At the outset, we note that while our jurisprudence on habitual residency, unlike that of the Ninth Circuit, has not heretofore enunciated a need for an intent to abandon a former habitual residency in order to establish a new one, it does seem implicit in the concept of acquiring a new “habitual” residence that the previous “habitual” residence has been left behind or discarded. To the extent that consideration of “intent to abandon” informs our basic inquiry and helps to elucidate the precise contours of parties’ mutual understanding, we believe it to be a useful test. In this case, we do find an intent to abandon New York for a definite and extended period in the life of an infant. For the fact that Whiting and Christina were to return to the United States, subject to certain conditions, does not in any way diminish the parties’ settled intention that the two were to remain in Canada for at least two years.7 Furthermore,
Our review of the caselaw concerning the definition of “habitual residence” under The Hague Convention leaves us convinced that the framework we established in Feder and further cemented in Delvoye continues to provide the best guidance for determining a child’s habitual residency. In Feder, we stated that “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.’” Feder, 63 F.3d at 224. However, we went on to modify this requirement both in Feder, itself, and later in Delvoye when the situation involves a very young child. In these circumstances, we recognized that the shared intent of the parents in determining the residence of their children was of paramount importance. See Feder, 63 F.3d at 223; see Delvoye, 329 F.3d at 333-34.
Today, we further attempt to clarify the definition of habitual residence when the child involved is very young. In
Focusing on the settled purpose to establish a habitual residence from the parents’ perspective in the case of a young child not only provides us with a more workable framework in this context, but also furthers another objective of The Hague Convention– the deterrence of child abduction. For if we were to focus on whether a child of Christina’s age has been acclimatized to her new surroundings at the time of her abduction, this would provide a perverse incentive to any parent contemplating an abduction to take the child as early as possible in a new environment. While we realize that this incentive
When we apply the analysis above to the facts at hand, it becomes clear that Canada was Christina’s place of habitual residence immediately before she was taken by her father. For the shared intent of her parents, as clearly evidenced in the Agreement, was that she would remain in Canada for at least two years. It is clear that when Krassner removed Christina from Canada and took her to the United States, his acts were disruptive of an agreed-upon intention. This is exactly the type of settled purpose we contemplated in Feder. Therefore, we hold that the District Court was correct in finding that Christina’s place of habitual residence at the time of her abduction was Canada.
Accordingly, the order of the District Court will be affirmed.