Down and Out in Beverly Hillsby Patrick Campbell
"Down and Out in Beverly Hills" [Mozes v. Mozes, 9th Circuit Court of Appeals Interpretation of Hague Convention of the Civil Aspects of International Child Abduction], 32 Alameda County Bar Association Bulletin, No. 5, p. 19 (2001)
Down and Out in Beverly Hills
by Patrick Campbell
The Ninth Circuit Court of Appeals recently decided a case of first impression in California that will become the benchmark for wrongful retention and removal cases under the Hague Convention on the Civil Aspects of International Child Abduction. Mozes v. Mozes (9th Cir. 1/17/2001) 01 C.D.O.S. 429. This case not only has a great wealth of information for every family law practitioner, but also will help anyone advising friends who are contemplating sending their children to study in California for extended periods of time. Maybe it just says that life in L.A. might not be as bad as we here in the Bay Area tend to make it out to be.
While Moses was able to part the Red Sea, Ms. Mozes was unable to part a father from his children. Ms. and Mr. Mozes are Israeli citizens. They and their four children, ranging in age from seven to sixteen, had lived all their lives in Israel. In 1997, the parents agreed that Ms. Mozes and the children should come to the United States to live and study for a year, feeling that the children would benefit from this educational and cultural experience. (What, there's culture in L.A.?) The initial agreement was that they would stay for 15 months. Mr. Mozes rented a house for them in Beverly Hills and provided for them financially as well. He even came to visit. Life was good, maybe even too good. After a dispute arose about whether the children's stay should be extended, Ms. Mozes filed for dissolution of the marriage in Los Angeles County Superior Court about one year after their arrival in California. She was awarded temporary physical custody of the children.
Mr. Mozes made the right move and went to federal district court, filing a petition under the Convention seeking an order returning his children to Israel. As Judge Kozinski correctly notes at the end of the decision, federal courts hold the trump card under these circumstances and may vacate any restraining order in the state court preventing the removal of the children from the California. Mozes, supra at 436, fn. 55. Unfortunately for Mr. Mozes, the district court found that the children's habitual residence was now in California because the children found themselves in the new forum based on the mutual consent of the parents and had become settled there. Id. at 435.
Briefly, the Hague Convention on the Civil Aspects of International Child Abduction (implemented in the United States in the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610) is designed to ensure that a custody struggle is carried out in the first instance under the laws of the country of the child's habitual residence. Its intention is to ensure that rights of custody and of access under the law of the contracting state are effectively respected in the other contracting states. A Hague Convention return order does not decide custody on the merits nor is it an extradition order. It is intended simply to restore the child to the place where the child habitually resided before the wrongful removal or retention so that an orderly determination may be made concerning rights of custody and access.
In Mozes, the court of appeals decided when a move to California would constitute a new habitual residence for children. Because habitual residence is not defined in the Convention itself, the intention of the parents was found to be controlling. The court noted that the cases generally fall into three categories:
Mozes, supra at 433. Naturally, the difficult decisions arise in this third category. While time and connections with the current residence are to be considered, they are not determinative, absent the passage of a significant period of time. "When there is a clearly established habitual residence prior to the change of address, there must be an agreement between the parents "and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is agreement on a stay of indefinite duration." Id. at 435. Because the district court had given "insufficient weight to the importance of shared parental intent under the Convention," the case was reversed and remanded. Without any evidence of a mutual parental intent to abandon a prior habitual residence, the district court was ordered to address on remand whether California had "supplanted Israel as the locus of the children's family and social development." Id. at 436.
Although the case was remanded to the district court. Judge Kozinski was quite clear about where the case and the children are headed. As he points out in his copious footnotes, the vast majority of federal case law on this issue supports him. It is the child's habitual residence that must be determined by looking back, not forward. "[Habitual residence pertains to customary residence prior to the [retention]." Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396, 1401 (quoting the Convention preamble). A voluntary visit with family members in Germany cannot be turned into a change in habitual residence by the mere whim of one of the parents. In re Application of Ponath (D. Utah 1993) 829 F.Supp. 363, 367-68. Unlimited permission granted to one parent to move to another country with the child will constitute a change in habitual residence. Falls v. Downie (D. Mass. 1994) 871 F. Supp. 100, 101-03.
And the lesson to be learned? The next time someone asks you about sending their children to California to spend time with thee other parent, not just to study but for any reason, you can respond like any good lawyer and tell them they should get everything in writing.
Patrick Campbell is an attorney in Oakland.