Lieffrens
September 13th 03, 07:36 AM
Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003)
WIM DELVOYE, in the Matter of Sebastian Delvoye, an infant under the
age of one, Appellant, v. CHRISTINA LEE
No. 02-3943
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
329 F.3d 330
February 13, 2003, Argued
May 20, 2003, Filed
PRIOR HISTORY: [*1] On Appeal from the United States District
Court For the District of New Jersey. (D.C. Civ. No. 02-cv-00769).
District Court Judge: Faith S. Hochberg.
Delvoye v. Lee, 224 F. Supp. 2d 843, 2002 U.S. Dist. LEXIS 18199
(D.N.J., 2002)
DISPOSITION: Affirmed.
COUNSEL: DEAN G. YUZEK (ARGUED), JOAN WALTER, Ingram Yuzek Gainen
Carroll & Bertolotti, LLP, New York, NY. BERNARD G. POST, New York,
NY. Attorneys for Wim Delvoye, in the Matter of Sebastian Delvoye, an
infant under the age of one, Petitioner-Appellant.
ROBERT W. AVERY (ARGUED), Avery & Avery, Ridgefield, NJ. SUSAN M. LEE,
Englewood Cliffs, NJ. Attorneys for Christina Lee,
Respondent-Appellee.
JUDGES: Before: ALITO and McKEE, Circuit Judges, and SCHWARZER, *
Senior District Judge
* Honorable William W Schwarzer, Senior United States District for the
Northern District of California, sitting by designation.
OPINIONBY: SCHWARZER
OPINION: OPINION OF THE COURT
SCHWARZER, Senior District Judge.
This is an appeal from an order of the district court denying Wim
Delvoye's petition to return Baby S to Belgium 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 "Convention"). n1
The district court found and concluded that petitioner [*2] had
failed to meet his burden of proving that Baby S was an habitual
resident of Belgium and thus was wrongfully removed from that country.
We affirm.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The Convention is implemented at 42 U.S.C. § 11603 (2003).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner and respondent met in New York early in 2000. Petitioner
resided in Belgium but made several trips to visit respondent. On his
visits to New York, a romantic relationship developed between them. In
August 2000, respondent moved into petitioner's New York apartment.
While continuing to live in Belgium, petitioner spent about a quarter
of his time in New York. In September 2000, respondent learned that
she was pregnant with petitioner's child. Respondent began prenatal
care in New York, but because petitioner refused to pay the cost of
delivery of the baby in the United States and Belgium offered free
medical services, respondent agreed to have the baby in Belgium. In
November 2000, she traveled to Belgium on a three-month tourist [*3]
visa, bringing along only one or two suitcases. She left the rest of
her belongings, including her non-maternity clothes, in the New York
apartment. While in Belgium respondent lived out of her suitcases.
When her visa expired she did not extend it. The baby was born on May
14, 2001. By then the relationship between the parties had
deteriorated. After initially resisting, petitioner signed the consent
form that enabled respondent to get an American passport for Baby S
and agreed to respondent's return to the United States with Baby S in
July 2001. Over the next two months, petitioner made several trips to
the United States and the parties made several attempts to reconcile.
When those efforts failed, petitioner filed this petition. Following
an evidentiary hearing, the district court denied the petition. This
appeal followed. Because the order is a final disposition of the
petition, we have jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
Article 3 of the Convention provides in relevant part: The removal . .
.. of a child is to be considered wrongful where -- a) it is in breach
of rights of custody attributed to a person . . . either jointly or
alone, [*4] under the law of the State in which the child was
habitually resident immediately before the removal. . . .(Emphasis
added.)
The determination of a person's habitual residence is a mixed question
of fact and law. We review the district court's findings of historical
and narrative facts for clear error, but exercise plenary review over
the court's application of legal precepts to the facts. Feder v.
Evans-Feder, 63 F.3d 217, 222 n.9 (3d Cir. 1995); see also Mozes v.
Mozes, 239 F.3d 1067, 1073 (9th Cir. 2001).
The issue before us is whether Baby S was "habitually resident" in
Belgium at the time of his removal to the United States. In Feder, we
defined the relevant concept: [A] child's habitual residence is the
place where he . . . 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 [*5] presence there. 63 F.3d at 224. The district court held
that petitioner had failed to meet his burden of proving that Baby S
was an habitual resident of Belgium. It reasoned that a two-month-old
infant, who is still nursing, has not been present long enough to have
an acclimatization apart from his parents.
This case then presents the unique question of whether and when a very
young infant acquires an habitual residence. It differs from the run
of decisions under the Convention where the child is assumed to have
an habitual residence initially and the controversy is over a change
of that residence. No decisions have squarely addressed the issue
before us. The leading treatise on the Convention provides some
general guidance:There is general agreement on a theoretical level
that because of the factual basis of the concept there is no place for
habitual residence of dependence. However, in practice it is often not
possible to make a distinction between the habitual residence of a
child and that of its custodian. Where a child is very young it would,
under ordinary circumstances, be very difficult for him . . . to have
the capability or intention to acquire [*6] a separate habitual
residence.Paul Beaumont & Peter McEleavy, The Hague Convention on
International Child Abduction 91(1999). An English court has said:
"The habitual residence of the child is where it last had a settled
home which was in essence where the matrimonial home was." Dickson v.
Dickson, 1990 SCLR 692. And an Australian court has stated: "A young
child cannot acquire habitual residence in isolation from those who
care for him. While 'A' lived with both parents, he shared their
common habitual residence or lack of it." Re F (1991) 1 F.L.R. 548,
551. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 These cases assume that the parents had joint custody. This is true
under Belgian law regardless of whether the parents are married. See
H. Bocken and W. DeBondt, Introduction to Belgian Law 150 (cohabiting
parents) (2001). But the situation is different where only one parent
has custody rights. Thus, "where a child of [two years of age] [was]
in the sole lawful custody of the mother, his situation with regard to
habitual residence will necessarily be the same as hers." In re J (C
v. S) [1990] 2 AC 562, 579.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*7]
Where a matrimonial home exists, i.e., where both parents share a
settled intent to reside, determining the habitual residence of an
infant presents no particular problem, it simply calls for application
of the analysis under the Convention with which courts have become
familiar. Where the parents' relationship has broken down, however, as
in this case, the character of the problem changes. Of course, the
mere fact that conflict has developed between the parents does not
ipso facto disestablish a child's habitual residence, once it has come
into existence. But where the conflict is contemporaneous with the
birth of the child, no habitual residence may ever come into
existence.
That is not to say that the infant's habitual residence automatically
becomes that of his mother. In Nunez-Escudero v. Tice-Menley, 58 F.3d
374 (8th Cir. 1995), Nunez-Escudero and Tice-Menley married in Mexico
in August 1992. A child was born there in July 1993. In September,
Tice-Menley left Mexico with her two-month-old infant and returned to
the United States. Nunez-Escudero filed a petition under the
Convention alleging that his son had been wrongfully removed. The
district court denied [*8] the petition on the ground that return of
the child would subject him to a grave risk of harm. The court of
appeals reversed and remanded. The mother contended that the court
should affirm, notwithstanding the erroneous grave risk of harm
determination, on the ground that the infant was not an habitual
resident of Mexico. The court rejected the argument and remanded for a
determination of the child's habitual residence, stating,To say that
the child's habitual residence derived from his mother would be
inconsistent with the Convention, for it would reward an abducting
parent and create an impermissible presumption that the child's
habitual residence is where the mother happens to be.58 F.3d at 379.
The instant case differs from Nunez-Escudero. Because the petitioner
and respondent had married in Mexico and lived there together for
nearly a year before the child was born, a basis existed for finding
the child's habitual residence to be in Mexico. Here, in contrast, the
district court found that respondent, at petitioner's urging, had
traveled to Belgium to avoid the cost of the birth of the child and
intended to live there only temporarily. She retained [*9] her ties
to New York, not having taken her non-maternity clothes, holding only
a three-month visa and living out of the two suitcases she brought
with her. Thus, there is lacking the requisite "degree of common
purpose" to habitually reside in Belgium. As explained in Re
Bates,There must be a degree of settled purpose . . . . 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.No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal
Courts of Justice, United Kingdom (1989), quoted in Feder, 63 F.3d 217
at 223.
Because petitioner and respondent lacked the "shared intentions
regarding their child's presence [in Belgium]," Feder, 63 F.3d at 224,
Baby S did not become an habitual resident there. Even if petitioner
intended that he become an habitual resident, respondent evidenced no
such intention. Addressing the status of a newborn child, one Scottish
commentator said:[A] newborn child born in the country where his . . .
parents have their habitual residence could normally be regarded as
habitually resident in that country. [*10] Where a child is born
while his . . . mother is temporarily present in a country other than
that of her habitual residence it does seem, however, that the child
will normally have no habitual residence until living in a country on
a footing of some stability.Dr. E. M. Clive, "The Concept of Habitual
Residence," The Juridical Review part 3, 138, 146 (1997).
Based on the district court's factual findings, which have not been
challenged, we conclude that petitioner failed to prove that Baby S
was habitually resident in Belgium.
We affirm the district court's order.
URL for this case:
http://vls.law.vill.edu/locator/3d/May2003/023943p.pdf
Cited article:
"The Concept of Habitual Residence", [1997] Juridical Rev. 137
http://www.hiltonhouse.com/articles/Concept_H_R.txt
WIM DELVOYE, in the Matter of Sebastian Delvoye, an infant under the
age of one, Appellant, v. CHRISTINA LEE
No. 02-3943
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
329 F.3d 330
February 13, 2003, Argued
May 20, 2003, Filed
PRIOR HISTORY: [*1] On Appeal from the United States District
Court For the District of New Jersey. (D.C. Civ. No. 02-cv-00769).
District Court Judge: Faith S. Hochberg.
Delvoye v. Lee, 224 F. Supp. 2d 843, 2002 U.S. Dist. LEXIS 18199
(D.N.J., 2002)
DISPOSITION: Affirmed.
COUNSEL: DEAN G. YUZEK (ARGUED), JOAN WALTER, Ingram Yuzek Gainen
Carroll & Bertolotti, LLP, New York, NY. BERNARD G. POST, New York,
NY. Attorneys for Wim Delvoye, in the Matter of Sebastian Delvoye, an
infant under the age of one, Petitioner-Appellant.
ROBERT W. AVERY (ARGUED), Avery & Avery, Ridgefield, NJ. SUSAN M. LEE,
Englewood Cliffs, NJ. Attorneys for Christina Lee,
Respondent-Appellee.
JUDGES: Before: ALITO and McKEE, Circuit Judges, and SCHWARZER, *
Senior District Judge
* Honorable William W Schwarzer, Senior United States District for the
Northern District of California, sitting by designation.
OPINIONBY: SCHWARZER
OPINION: OPINION OF THE COURT
SCHWARZER, Senior District Judge.
This is an appeal from an order of the district court denying Wim
Delvoye's petition to return Baby S to Belgium 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 "Convention"). n1
The district court found and concluded that petitioner [*2] had
failed to meet his burden of proving that Baby S was an habitual
resident of Belgium and thus was wrongfully removed from that country.
We affirm.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The Convention is implemented at 42 U.S.C. § 11603 (2003).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner and respondent met in New York early in 2000. Petitioner
resided in Belgium but made several trips to visit respondent. On his
visits to New York, a romantic relationship developed between them. In
August 2000, respondent moved into petitioner's New York apartment.
While continuing to live in Belgium, petitioner spent about a quarter
of his time in New York. In September 2000, respondent learned that
she was pregnant with petitioner's child. Respondent began prenatal
care in New York, but because petitioner refused to pay the cost of
delivery of the baby in the United States and Belgium offered free
medical services, respondent agreed to have the baby in Belgium. In
November 2000, she traveled to Belgium on a three-month tourist [*3]
visa, bringing along only one or two suitcases. She left the rest of
her belongings, including her non-maternity clothes, in the New York
apartment. While in Belgium respondent lived out of her suitcases.
When her visa expired she did not extend it. The baby was born on May
14, 2001. By then the relationship between the parties had
deteriorated. After initially resisting, petitioner signed the consent
form that enabled respondent to get an American passport for Baby S
and agreed to respondent's return to the United States with Baby S in
July 2001. Over the next two months, petitioner made several trips to
the United States and the parties made several attempts to reconcile.
When those efforts failed, petitioner filed this petition. Following
an evidentiary hearing, the district court denied the petition. This
appeal followed. Because the order is a final disposition of the
petition, we have jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
Article 3 of the Convention provides in relevant part: The removal . .
.. of a child is to be considered wrongful where -- a) it is in breach
of rights of custody attributed to a person . . . either jointly or
alone, [*4] under the law of the State in which the child was
habitually resident immediately before the removal. . . .(Emphasis
added.)
The determination of a person's habitual residence is a mixed question
of fact and law. We review the district court's findings of historical
and narrative facts for clear error, but exercise plenary review over
the court's application of legal precepts to the facts. Feder v.
Evans-Feder, 63 F.3d 217, 222 n.9 (3d Cir. 1995); see also Mozes v.
Mozes, 239 F.3d 1067, 1073 (9th Cir. 2001).
The issue before us is whether Baby S was "habitually resident" in
Belgium at the time of his removal to the United States. In Feder, we
defined the relevant concept: [A] child's habitual residence is the
place where he . . . 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 [*5] presence there. 63 F.3d at 224. The district court held
that petitioner had failed to meet his burden of proving that Baby S
was an habitual resident of Belgium. It reasoned that a two-month-old
infant, who is still nursing, has not been present long enough to have
an acclimatization apart from his parents.
This case then presents the unique question of whether and when a very
young infant acquires an habitual residence. It differs from the run
of decisions under the Convention where the child is assumed to have
an habitual residence initially and the controversy is over a change
of that residence. No decisions have squarely addressed the issue
before us. The leading treatise on the Convention provides some
general guidance:There is general agreement on a theoretical level
that because of the factual basis of the concept there is no place for
habitual residence of dependence. However, in practice it is often not
possible to make a distinction between the habitual residence of a
child and that of its custodian. Where a child is very young it would,
under ordinary circumstances, be very difficult for him . . . to have
the capability or intention to acquire [*6] a separate habitual
residence.Paul Beaumont & Peter McEleavy, The Hague Convention on
International Child Abduction 91(1999). An English court has said:
"The habitual residence of the child is where it last had a settled
home which was in essence where the matrimonial home was." Dickson v.
Dickson, 1990 SCLR 692. And an Australian court has stated: "A young
child cannot acquire habitual residence in isolation from those who
care for him. While 'A' lived with both parents, he shared their
common habitual residence or lack of it." Re F (1991) 1 F.L.R. 548,
551. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 These cases assume that the parents had joint custody. This is true
under Belgian law regardless of whether the parents are married. See
H. Bocken and W. DeBondt, Introduction to Belgian Law 150 (cohabiting
parents) (2001). But the situation is different where only one parent
has custody rights. Thus, "where a child of [two years of age] [was]
in the sole lawful custody of the mother, his situation with regard to
habitual residence will necessarily be the same as hers." In re J (C
v. S) [1990] 2 AC 562, 579.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*7]
Where a matrimonial home exists, i.e., where both parents share a
settled intent to reside, determining the habitual residence of an
infant presents no particular problem, it simply calls for application
of the analysis under the Convention with which courts have become
familiar. Where the parents' relationship has broken down, however, as
in this case, the character of the problem changes. Of course, the
mere fact that conflict has developed between the parents does not
ipso facto disestablish a child's habitual residence, once it has come
into existence. But where the conflict is contemporaneous with the
birth of the child, no habitual residence may ever come into
existence.
That is not to say that the infant's habitual residence automatically
becomes that of his mother. In Nunez-Escudero v. Tice-Menley, 58 F.3d
374 (8th Cir. 1995), Nunez-Escudero and Tice-Menley married in Mexico
in August 1992. A child was born there in July 1993. In September,
Tice-Menley left Mexico with her two-month-old infant and returned to
the United States. Nunez-Escudero filed a petition under the
Convention alleging that his son had been wrongfully removed. The
district court denied [*8] the petition on the ground that return of
the child would subject him to a grave risk of harm. The court of
appeals reversed and remanded. The mother contended that the court
should affirm, notwithstanding the erroneous grave risk of harm
determination, on the ground that the infant was not an habitual
resident of Mexico. The court rejected the argument and remanded for a
determination of the child's habitual residence, stating,To say that
the child's habitual residence derived from his mother would be
inconsistent with the Convention, for it would reward an abducting
parent and create an impermissible presumption that the child's
habitual residence is where the mother happens to be.58 F.3d at 379.
The instant case differs from Nunez-Escudero. Because the petitioner
and respondent had married in Mexico and lived there together for
nearly a year before the child was born, a basis existed for finding
the child's habitual residence to be in Mexico. Here, in contrast, the
district court found that respondent, at petitioner's urging, had
traveled to Belgium to avoid the cost of the birth of the child and
intended to live there only temporarily. She retained [*9] her ties
to New York, not having taken her non-maternity clothes, holding only
a three-month visa and living out of the two suitcases she brought
with her. Thus, there is lacking the requisite "degree of common
purpose" to habitually reside in Belgium. As explained in Re
Bates,There must be a degree of settled purpose . . . . 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.No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal
Courts of Justice, United Kingdom (1989), quoted in Feder, 63 F.3d 217
at 223.
Because petitioner and respondent lacked the "shared intentions
regarding their child's presence [in Belgium]," Feder, 63 F.3d at 224,
Baby S did not become an habitual resident there. Even if petitioner
intended that he become an habitual resident, respondent evidenced no
such intention. Addressing the status of a newborn child, one Scottish
commentator said:[A] newborn child born in the country where his . . .
parents have their habitual residence could normally be regarded as
habitually resident in that country. [*10] Where a child is born
while his . . . mother is temporarily present in a country other than
that of her habitual residence it does seem, however, that the child
will normally have no habitual residence until living in a country on
a footing of some stability.Dr. E. M. Clive, "The Concept of Habitual
Residence," The Juridical Review part 3, 138, 146 (1997).
Based on the district court's factual findings, which have not been
challenged, we conclude that petitioner failed to prove that Baby S
was habitually resident in Belgium.
We affirm the district court's order.
URL for this case:
http://vls.law.vill.edu/locator/3d/May2003/023943p.pdf
Cited article:
"The Concept of Habitual Residence", [1997] Juridical Rev. 137
http://www.hiltonhouse.com/articles/Concept_H_R.txt