UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) SAMI ABOU-HAIDAR, ) ) Petitioner, ) ) v. ) Case No. 1:19-cv-01687 ) MARIA EUGENIA SANIN VAZQUEZ, ) ) Respondent. ) _________________________________________ )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

Petitioner Sami Abou-Haidar resides in Paris, France. His wife, Respondent Maria

Eugenia Sanin Vasquez, lives in Washington, D.C. The couple’s daughter, E.A.-H.S., age four,

presently lives with her mother in Washington, D.C. Petitioner filed this action on June 10, 2019,

seeking return of E.A.-H.S. to France, pursuant to the 1980 Hague Convention on the Civil Aspects

of International Child Abduction.

The court held a two-day evidentiary hearing on the Petition on August 1 and 2, 2019.

The principal contested issues were: (1) whether Respondent had “wrongfully retained” E.A.-H.S.,

and (2) if she had, whether the United States or France was the child’s “habitual residence” on the

date of wrongful retention. On August 21, 2019, in an abbreviated order, the court ruled in favor

of Petitioner. See Order, ECF No. 38. The court found that Respondent had wrongfully retained

the couple’s daughter as of May 7, 2019, when she served upon Petitioner a Complaint for Custody

filed in the D.C. Superior Court. The court also concluded that, as of that date, E.A.-H.S.’s place of “habitual residence” was France, and not the United States. See id. at 3–4. The court therefore

ordered the child’s return to France. 1

This Memorandum Opinion provides a more fulsome explanation of the court’s reasons

for granting the Petition.

II. THE CONVENTION

The 1980 Hague Convention on the Civil Aspects of International Child Abduction

(“Convention”), T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11, is a multilateral treaty designed to

address “the problem of international child abductions during domestic disputes,” Abbott v. Abbott,

(2010). The Convention seeks “to ensure that rights of custody and of access under

the law of one Contracting State are effectively respected in the other Contracting States” and

creates protocols “to secure the prompt return of children wrongfully removed to or retained in

any Contracting State.”

at 8 (quoting Convention, art. 1 (internal quotation marks and citation

omitted)). The United States ratified the Convention in 1988, see Lozano v. Montoya Alvarez,

(2014), and implemented it the same year through the International Child Abduction

Remedies Act (“ICARA”),

et seq.

A federal court’s inquiry under the Convention is limited. “The Convention and [ICARA]

empower courts in the United States to determine only rights under the Convention and not the

merits of any underlying child custody claims.”

(b)(4) (emphasis added).

Likewise, the Convention provides that “[a] decision under this Convention concerning the return

of the child shall not be taken to be a determination on the merits of any custody issue.”

1 The court left it to the parties to negotiate a date on which to return E.A.-H.S., such return to be “no sooner than the expiration of Respondent’s first 18-month contract with the International Development Bank.” Order at 1. The parties, however, were not able to reach an agreement. See Jt. Status Report on Arrangements for Return to France, ECF No. 38. The court has not yet set a firm return date, because it understands that Respondent’s contract will not expire until the end of the calendar year. The court intends to enter a return date now that it has issued this Memorandum Opinion.

2 Convention art. 19. Thus, “[t]he basic purpose and function of the Hague Convention and ICARA

are to ensure the home country should make the custody determination.” In re S.E.O.,

, 541 n.4 (S.D.N.Y. 2012) (quoting Navani v. Shahani,

(10th Cir.

2007) (internal quotation marks omitted), aff’d in part, vacated in part, remanded sub nom. Ozaltin

v. Ozaltin,

(2d Cir. 2013); see also Abbott,

(noting that the Convention

does not “alter the pre-abduction allocation of custody rights but leaves custodial decisions to the

courts of the country of habitual residence”).

III. FINDINGS OF FACT

Having considered and weighed the testimony and evidence presented by the parties, the

court makes the following findings of fact.

Family History

1. Petitioner and Respondent were married in Paris, France, in October 2013. Trial Tr.

at 29. 2 Their daughter, E.A.-H.S., was born in 2014 in Paris, France.

.

2. Petitioner is a medical doctor who provides house-call services, through a French

company called SOS Médecins.

. He is licensed to practice medicine only in France.

. Respondent is a Ph.D-level economist. Pet’r Ex. 7. Since 2013, she has worked

primarily as an associate professor at the Université d’ Evry Va’ d’ Essonne, located just outside

of Paris. See

. Since the birth of their daughter, the parties have lived primarily in Paris, with

intermittent periods of stay in Barcelona, Spain. Pet’r Exs. 9 at 2, 10 at 3. Until June 30, 2018,

the family resided in a rented apartment, located at 255 Rue Saint-Jacques, in Paris. Trial Tr. at

2 Trial transcripts are docketed at ECF Nos. 36 and 37. Because the transcript is paginated consecutively, the court simply cites to the “Trial Tr.” without specifying the date of testimony.

3 53; Pet’r Ex. 13. E.A.-H.S. attended preschool nearby. Trial Tr. at 116–17. The parties had an

active social life in Paris, often entertaining friends at their home.

at 140–41.

4. The parties own an apartment in Barcelona, Spain, in which they have stayed for

extended periods of time, sometimes for several months out of the year, typically during the spring

and summer months. Pet’r Exs. 9 at 2, 10 at 3. 3 For instance, from 2015 to 2017, Respondent

worked as a visiting professor (or in a similar capacity) at universities in Barcelona. See Trial Tr.

at 164–65. During these periods, Petitioner would travel back and forth to Paris for work. Id. at

165, 167–68. E.A.-H.S. would attend school when in Barcelona. Id. at 167.

5. According to Petitioner, E.A.-H.S. had more school friends and was involved in

more activities in Paris, than in Barcelona. See id. at 116–17. The court credits this testimony as

Respondent did not dispute it. See id. at 167 (testifying that E.A.-H.S. had friends in Barcelona,

but not disputing Petitioner’s characterization of their daughter’s relative friendships and activities

as between Paris and Barcelona).

Opportunity with the International Development Bank

6. In January 2018, Respondent was offered the opportunity to serve as a consultant

with the International Development Bank (“IDB”) in Washington, D.C. Id. at 34. Petitioner

supported Respondent’s pursuit of the opportunity. Id. at 42, 89. He agreed to structure his

schedule in such a way that he would, for ten to twelve consecutive days, work in Paris and live in

a small apartment in Paris that he had purchased before marriage. Id. at 42. For the remaining

days of the month, he would live with his family in Washington, D.C. Id.

7. The court finds that the parties agreed to move their family to Washington, D.C.,

for at least 18 months—the term of Respondent’s contract with IDB—but left open the possibility

3 The parties disputed the actual dates they lived in Barcelona. See Trial Tr. at 113–14. Because neither party attempted to firmly establish these dates, the court makes no finding as to the actual periods the parties lived in Spain.

4 of staying for a longer period. According to Respondent, the initial contract that IDB offered her

was for an 18-month term, which could be renewed only after a six-month period of separation.

Id. at 175. Petitioner and Respondent preferred that Respondent receive a contract that allowed

for successive renewal without a six-month separation period. See id. Such an arrangement

afforded the family flexibility to stay for longer than 18 months in Washington, D.C., if desired.

See id. Eventually, IDB offered Respondent a contract that would allow for successive renewals,

which she accepted. See id. at 175. Respondent began an 18-month term with the IDB on July 1,

2018. Id. at 53.

8. The court does not credit Petitioner’s insistence that he agreed to keep his family

in Washington, D.C., for no more than 18 months. See id. at 46, 126–27. Petitioner did not dispute

Respondent’s testimony that she negotiated her contract to allow for the possibility of successive

terms with IDB, so that the family potentially could live in Washington, D.C., for longer than 18

months. See Pet’r Ex. 14; Trial Tr. at 45–46.

9. Moreover, there is unrefuted evidence that Petitioner contemplated staying in

Washington, D.C., for up to three years. The parties rented out their Barcelona property under a

three-year lease. Trial Tr. at 116, 137; Resp. Ex. 7 (Respondent stating “[i]f we go to Washington

we are not going to come back to Barcelona before 3 years anyway”). Respondent also expressed

not wanting to live in the United States for “3 years” without proper U.S. identity papers. Resp.

Ex. 23. Respondent also obtained G-4 diplomatic visas, which allowed the family to remain in the

United States for up to five years, to which Respondent responded enthusiastically. Resp. Ex. 31.

And, tellingly, when the parties began to have marital trouble, Respondent said that he could not

continue to live as they were for “3 years” before their next move. Resp. Ex. 46.

5 10. At the same time, the court does not credit Respondent’s testimony that she and

Petitioner agreed to leave Paris behind for good and intended to make Washington, D.C., their new

home. See Trial Tr. at 347–48 (stating that “worst-case scenario was to stay three years” in

Washington, D.C.); see also Pet’r Ex. 14 at 2 (stating in a discovery response in family court that

the parties’ shared intent was to remain in the United States for an indefinite period of time). The

court so finds for a host of reasons.

11. Both Petitioner and Respondent kept their jobs in Paris when they left for

Washington, D.C. Petitioner remained a doctor with SOS Médecins. Although Petitioner initiated

the process of obtaining a medical license in Respondent’s home country of Uruguay, Trial Tr. at

107–08; Resp. Exs. 15, 16, 33, 34, 40, he never did the same in the United States.

12. As for Respondent, she maintained her associate professorship at the Université d’

Evry Va’ d’ Essonne. She requested a “détachement”—a French term meaning “temporary

assignment” or “secondment”—from her university position for a period of 18 months. Pet’r Ex.

3 at 1; Resp. Ex. 5. She expressly asked to keep her affiliation with the university during this

period, and she indicated she would continue to supervise her two doctoral students. Resp. Ex. 5.

Also, during the period of the détachement, Respondent continued to accrue seniority, retirement,

and pension credit with the Université d’ Evry Va’ d’ Essonne. Pet’r Ex. 4 at 1. Respondent

described herself as “nowadays on leave” from her teaching position at the Université d’ Evry.

Pet’r Ex. 6 at 1. Although Respondent testified that she kept her university affiliation to preserve

her pension rights consistent with French law, Trial Tr. at 180, that fact only underscores the

family’s interest in keeping France, and not the United States, as their place of habitual residence.

13. The parties’ departure from Paris in the summer of 2018 did not resemble a

permanent departure. The parties obtained a large storage unit in Paris, in the same building as

6 the family’s home at 255 Rue Saint-Jacques. Pet’r Ex. 8. The family did not sell large personal

belongings, such as household appliances and furniture. Instead, they left such items in the storage

unit in Paris. Id.

14. The couple’s friends understood their move to Washington, D.C., was temporary.

Respondent told family friend, Massimo Fedel, during a visit to Padua, Italy in spring 2018, that

the position was a temporary 18-month position and that Petitioner would go back and forth

between Paris and Washington, D.C., for that period. Trial Tr. at 16–19. Similarly, Geronimo

Roussopoulos, who was Petitioner’s best man and lives in Paris, testified that he had discussed the

IDB position with Respondent during one of their social events together. Id. at 142. Respondent

described her position to Mr. Roussopoulos as an 18-month contract with a bank in Washington,

D.C. Id. The court credits Mr. Fedel’s and Mr. Roussopoulos’s testimony.

15. Critically, Mr. Roussopoulos also testified that there was no going-away party,

social event, or announcement that the family was leaving Paris indefinitely or permanently. Id.

at 143–44. The court would have expected some social recognition of the parties’ long-term

departure from Paris had they intended to leave for good.

16. The terms of the IDB contract offered no certainty that the family could remain in

the United States beyond 18 months. The contract term is from July 1, 2018, to December 31,

2019. Pet’r Ex. 5 at 1. The contract contemplates renewal, but expressly states that IDB “has no

obligation to extend or renew this Agreement or to offer you a new one, even if your performance

is outstanding, but it may do so if agreed to in writing at the time of the expiration of the

appointment, and if compatible with the institution’s regulation.” Id. at 4. There is nothing in the

contract—including the Annex that accompanied it, Pet’r Ex. 5—that would support a term of an

automatic renewal.

7 Arrival in Washington, D.C.

17. Before leaving for Washington, D.C., the parties discussed whether to buy a home

in Washington, D.C. Resp. Exs. 10, 11. Once in Washington, D.C., they settled in the Woodley

Park neighborhood and rented an apartment. They hired a real estate agent to look for a property

to buy in that neighborhood. In October 2018, the parties made an offer on at least one home that

was not accepted. Trial Tr. at 60–61; Resp. Exs. 41, 42, 44. Petitioner was actively involved in

the parties’ search for a property to purchase in Washington, D.C., including the type, location,

price, financing, touring, and eventual selection of properties. Trial Tr. at 191–97; Resp. Ex. 9

(emails from Petitioner identifying possible properties), 35–38 (texts concerning possible purchase

of a home).

18. The parties enrolled E.A.-H.S. at Oyster Adams, a Spanish bilingual elementary

school, for the 2018-2019 school year. Trial Tr. at 79, 186. E.A.-H.S. is now comfortable speaking

English, id. at 311, has made friends at school, id. at 290–91, 307–10, attends birthday parties and

other social outings, and participates in various activities, like soccer. Id.

19. Respondent has made friends, as well, living in Washington, D.C. Two were called

as witnesses. Daniela Felcman testified that she had not discussed the family moving from

Washington, D.C., with either party. Id. at 292, 295. Sweta Shah similarly testified that neither

party had discussed with her moving away from Washington, D.C. Id. at 309–10. Although the

court credits these witnesses, their testimony carries little weight with respect to the disputed

issues. The general absence of a conversation with recently made friends about moving away from

Washington, D.C., tells the court little about the parties’ mutual understanding upon leaving Paris

as to whether they would return. Additionally, neither Ms. Felcman nor Ms. Shah testified to

8 having a specific conversation with either party as to their intention to remain long term in

Washington, D.C.

20. Respondent also called as witnesses her mother, Maria Cristina Vazquez Pedrouzo,

and her step-father, Manuel Javier Paulino. Ms. Vazquez Pedrouzo testified that she offered

financial assistance to the parties to purchase a home in Washington, D.C. Id. at 419. Ms. Vazquez

Pedrouzo was asked whether she had ever discussed leaving Washington, D.C., with Petitioner,

and her response was that she understood that the family would live in Washington, D.C., and their

daughter would go to school there, even possibly to university in the United States. Id. at 420–22.

Mr. Paulino testified with greater specificity. He recalled speaking to Petitioner, who said that

“his intention was for the family to reside in Washington.” Id. at 426–27. Yet Mr. Paulino also

testified that he and Petitioner did not discuss how long the family would remain in Washington,

D.C., but did talk about the possibility of moving to Uruguay after the IDB contract expired, if

Petitioner could get medically licensed there. Id. at 427–28. Ms. Pedrouzo’s and Mr. Paulino’s

testimony confirms that when the parties moved to Washington, D.C., they did not intend to make

it their permanent home. They left open the possibility of remaining in Washington, D.C., for

more than 18 months, but only contemplated living somewhere other than France long term—

namely, Uruguay—if Petitioner could obtain a medical license there. Again, Petitioner never took

any steps to obtain a medical license in the United States.

Marital Discord

21. By December 2018, six months after their move to Washington, D.C., the parties’

marriage began to show strain. Resp. Exs. 46–52.

22. In April 2019, unbeknownst to Petitioner, Respondent met with a family-law

attorney. Trial Tr. at 397–398. She then filed on May 2, 2019, a Complaint for Custody in the

9 Superior Court of the District of Columbia (the “D.C. Superior Court”). Pet’r Ex. 9. The

Complaint demanded primary physical custody of E.A.-H.S. “with reasonable rights of visitation

to Defendant, pendente lite and permanently” and “joint legal custody, pendente lite and

permanently” with Petitioner. Id. at 4.

23. On May 7, 2019, Respondent told Petitioner that she wished to separate, and then

had Petitioner served with the D.C. Superior Court Complaint for Custody. Trial Tr. at 62–63.

The court credits Petitioner’s testimony that he was surprised by Respondent’s filing of a

complaint for custody of their daughter.

24. The parties met at a park near the apartment on May 10, 2019, to discuss the

family’s situation. Id. at 80–81. There, according to Petitioner, Respondent told him that she

wished to remain in Washington, D.C., with their daughter and that the two of them would not be

returning to France. Id. Although Respondent denies that this conversation took place, id. at 388–

91, the court credits Petitioner’s testimony on this point, as it is consistent with Respondent’s

demand for permanent primary physical custody of their child and her later decision to opt into a

second 18-month contract with IDB. Also, on cross-examination, Respondent conceded that she

has no plans to return the child to France in December 2019 absent a court order. Id. at 390–97.

25. On May 23, 2019, Petitioner answered and filed a counterclaim in response to

Petitioner’s Complaint for Custody. Pet’r Ex. 10. In his counterclaim, Petitioner demanded “joint

physical and legal custody” of E.A.-H.S. See id. at 4. The D.C. Superior Court stayed the child-

custody matter pending resolution of this case.

IV. CONCLUSIONS OF LAW

A petitioner seeking the return of a child under the Convention must prove by a

preponderance of the evidence that the child “has been wrongfully removed or retained within the

10 meaning of the Convention.”

(e)(1)(A). “A removal or retention is ‘wrongful’

under the Convention when (1) ‘it is in breach of rights of custody attributed to a person . . . under

the law of the State in which the child was habitually resident immediately before the removal or

retention; and’ (2) ‘at the time of removal or retention those rights were actually exercised, either

jointly or alone, or would have been so exercised but for the removal or retention.’” Larbie v.

Larbie,

(5th Cir. 2012) (quoting Convention art. 3). Under the Convention, a

petitioner must make a three-part showing to prevail. The petitioner must establish that (1) the

child was “habitually resident” in the petitioner’s country of residence when he or she was removed

or retained; (2) the removal or retention breached the petitioner’s custody rights under the law of

the petitioner’s home state; and (3) the petitioner was exercising his custody rights at the time of

removal or retention. See id.; see also Bader v. Kramer,

(4th Cir. 2007); Tsai-

Yi Yang v. Fu-Chiang Tsui,

, 270–71 (3d Cir. 2007); Miller v. Miller,

(4th Cir. 2001). If the petitioner satisfies his burden, the court must order return of the child,

unless the respondent establishes an applicable affirmative defense. See Bader,

;

Tsai-Yi Yang,

.

This case involves two disputed questions. First, did Respondent wrongfully retain E.A.-

H.S and, if so, on what date did that retention occur? Second, what was E.A.-H.S.’s habitual

residence on the date of purported wrongful retention? The parties do not dispute whether, if

wrongfully retained, Petitioner’s custody rights under French law would be violated. They would

be. See Pet’r Ex. 1 (Aff. of French Law). Nor do they contest whether Petitioner was exercising

his custody rights at the time of wrongful retention. He was. Finally, Respondent does not assert

any affirmative defense under the Convention. The court’s conclusions of law therefore focus on

resolving the issues of wrongful retention and habitual residence.

11 A. Wrongful Retention

The court finds that Respondent wrongfully retained E.A.-H.S. on May 7, 2019, when she

served upon Petitioner the Complaint for Custody that she filed in the D.C. Superior Court. Before

that date, the parties enjoyed joint physical and legal custody of their child. Respondent’s

Complaint for Custody, however, sought to alter the status quo, by asking that she be awarded

permanent primary physical custody of E.A.-H.S. Pet’r Ex. 9 at 4. She also advised Petitioner

three days later that she would not be returning to Paris with their daughter. Trial Tr. 80–81.

Respondent’s initiation of a legal action for greater custody rights, plus her announcement that she

would not return to Paris with E.A.-H.S., constitutes a wrongful retention under the Convention.

See Mozes v. Mozes,

, 1069–70, n.5 (9th Cir. 2001) (determining that wrongful

retention occurred when the respondent asked a domestic court to grant custody of children).

The date of retention did not extend beyond May 23, 2019, the date on which Petitioner

answered and filed a counterclaim in response to Respondent’s Complaint for Custody. Pet’r Ex.

10. The Third Circuit has defined the “retention date” as “the date beyond which the noncustodial

parent no longer consents to the child’s continued habitation with the custodial parent and instead

seeks to reassert custody rights, as clearly and unequivocally communicated through words,

actions, or some combination thereof.” Blackledge v. Blackledge,

(3d Cir.

2017); see also Marks on behalf of SM, AM, and BM v. Hochhauser,

(2d Cir.

2017) (identifying date of wrongful retention as that “on which the child ought to have been

returned to its custodians or on which the holder of the right of custody refused to agree to an

extension of the child’s stay in a place other than that of its habitual residence” (internal quotation

marks and citation omitted)). Here, Petitioner’s counterclaim sought to maintain joint physical

and legal custody of E.A.-H.S. This counterclaim was a clear assertion of his custody rights and

12 signaled that he did not consent to allowing his daughter’s “continued habitation with the custodial

parent.” May 23, 2019, therefore is the latest date of wrongful retention.

For her part, Respondent contends that Petitioner’s claim arises under the rubric of an

“anticipatory retention,” which, according to Respondent, federal courts have not recognized.

See Resp. Proposed Findings of Fact and Conclusions of Law, ECF No. 34, ¶¶ 68–78. She asserts

that the court cannot fix a wrongful retention date, because “the wrongful retention has not taken

place yet, and may not ever take place, especially given the ongoing custody and visitation

proceedings in the District of Columbia.” Id. ¶ 74. The Petition is “anticipatory” in the sense that

the date until which the parties agreed to remain in Washington, D.C., has yet to arrive—at the

earliest, December 31, 2019, the date Respondent’s first contract ends with IDB. Thus, she

maintains, the petition is not ripe for consideration. See id. ¶ 68.

The court disagrees. One of the primary cases upon which Respondent relies—the Ninth

Circuit’s decision in Mozes—is to the contrary. See id. ¶ 73; Draft Hr’g Tr., Aug. 12, 2019, at 51.

Mozes is arguably the leading circuit court decision regarding the issue of habitual residence under

the Convention. See Maxwell v. Maxwell,

(4th Cir. 2009) (describing Mozes as

“serv[ing] as a guide for federal courts in determining parental intentions in Hague Convention

cases”). Mozes is clearly an “anticipatory retention” case. Much like here, in Mozes, the mother

and father had agreed that the children would remain in the United States for a time certain—there,

fifteen months—“though they disagree[d] as to what understanding existed beyond that.” See

. However, after a year in the United States, the mother sought dissolution of the

marriage and custody of the children in California state court. See

The Ninth Circuit had no

difficulty identifying the date of wrongful detention as “the moment . . . when [the mother] asked

the Los Angeles County Superior Court to grant her custody of [the children].”

. So,

13 too, here. Respondent sought to alter the parties’ status quo as it relates to custody of their daughter

when she sought primary physical custody in D.C. Superior Court. That is the earliest date of

wrongful retention. The court is not aware of any case that requires a petitioner to wait to sue for

custody until the date on which the parties agreed to allow their child to remain in the United States

passes, when the custodial parent seeks to assert dominant custody rights, physical or legal, over

the child. Tellingly, other circuit courts have found acts of wrongful retention to precede the

agreed-upon date for a child to remain in the United States. See e.g., Blackledge,

(rejecting “the notion that the original agreement for a longer period vitiated the noncustodial

parent’s ability to clearly communicate her desire to regain custody of the child” and recognizing

that a parent may “accelerate a retention date by” withdrawing consent to have the child remain

with the custodial parent); Marks on behalf of SM v. Hochauser,

(2d Cir. 2017)

(holding that mother’s email declaring she would not return to Thailand three days before planned

return was wrongful retention date); Darin v. Olivero-Huffman,

, 10–11 (1st Cir. 2014)

(finding wrongful retention occurred when respondent “made clear” to petitioner that child would

permanently reside in United States).

Equally persuasive authority can be found across the Atlantic in the decision of the

Supreme Court of the United Kingdom in In the matter of C (Children) [2018] U.K.S.C. 8 (appeal

taken from EWCA Civ). Our own Supreme Court has instructed that when interpreting

international conventions and treaties “the opinions of our sister signatories [are] entitled to

considerable weight.” Air France v. Saks,

, (1985) (citation omitted). In

addition, Congress has recognized “the need for uniform international interpretation of the

Convention.” 22 U.S.C. § (b)(3)(B); see also Abbott,

(observing that the principle

of giving “considerable weight” to the opinions of “sister signatories” “applies with special force

14 here, for Congress has directed that uniform interpretation of the Convention is part of the

Convention’s framework”). In In re Matter of Children, the U.K. Supreme Court thoroughly

analyzed how courts in various countries have treated the question of anticipatory repudiation and

held that “repudiatory retention is possible in law.” In re Matter of Children ¶ 50. “The

objections” to anticipatory repudiation, the court summarized, “are insubstantial whereas the

arguments against requiring the left-behind parent to do nothing when it is clear that the child will

not be returned are convincing and conform to the scheme of the Abduction Convention.”

The only case on which Respondent relies to support her position, the First Circuit’s

decision in Toren v. Toren, is distinguishable. In Toren, the parents, already divorced, had agreed

to allow the children to remain in the United States until July 21, 2000. See

(1st

Cir. 1999). In 1997, just prior to the father’s scheduled visit to the United States, the mother filed

a verified complaint in state court asking to modify the terms of visitation. See

. The state

court agreed to do so and granted the mother additional custody rights. See

The First Circuit

found that the mother had not wrongfully retained the children, because her complaint only sought

modification of the parents’ visitation agreement and did not manifest an intent not to return the

children after the agreed-upon date of July 21, 2000. See

. Here, by contrast, Respondent

did not merely ask for a change in visitation but sought primary custody of the minor child—a

change in the status quo that, if granted, would have allowed Respondent to establish Washington,

D.C., as the child’s habitual residence. Moreover, the court credits Petitioner’s testimony that

Respondent expressed her intention not to return to France. Respondent notably renewed her IDB

contract for another 18 months after filing for primary physical custody and apparently did so

without consulting Petitioner. These acts are not consistent with an intent to return to France. This

case therefore is different than Toren.

15 B. Habitual Residence

The court turns next to deciding E.A.-H.S.’s “habitual residence” as of the date of unlawful

retention. Habitual residence, or “the place where [the child] customarily lives,” Taglieri v.

Monasky,

(6th Cir. 2018), is “the central—often outcome-determinative—

concept on which the [Convention] is founded.” Mozes,

. The Convention,

however, does not define the term, see Gitter v. Gitter,

(2d Cir. 2005); nor has

the D.C. Circuit addressed what constitutes a child’s “habitual residence” under the Convention.

But other circuits have done so extensively. Following the Ninth Circuit’s decision in Mozes, the

majority of circuit courts define habitual residence in terms of “shared parental intent,” and

secondarily consider whether the child has become “acclimatized.” Blackledge,

;

see also Mozes, 239 F.3d at 1074–75; Taglieri,

(noting that “[e]very circuit to

consider the question [of habitual residence] looks to both standards”). The Sixth Circuit is the

only circuit that gives greater priority to acclimatization, but it does so only in cases involving

older children. See Taglieri, 907 F.3d at 407–08 (describing the acclimatization inquiry as “the

primary approach” and the “shared parental intent” inquiry as a “secondary” and “alternative”

approach used when young children are “incapable of acclimating”); see also Koch v. Koch,

(7th Cir. 2006) (“In the case of young children, the court found it most prudent to

focus on the intent of the parents rather than the intent of the child in determining the child’s

habitual residence.”).

16 1. Shared Parental Intent

The question of shared parental intent focuses on the parents’ “settled purpose” as to a

child’s place of residence. Mozes,

. The inquiry is necessarily fact intensive, and

trial courts are advised to look beyond the parents’ testimony and to consider the record as a whole.

See Maxwell v. Maxwell,

(4th Cir. 2009) (“In cases where there is a dispute

regarding a child’s habitual residence, ‘the representations of the parties cannot be accepted at face

value, and courts must determine [habitual residence] from all available evidence.’”

(quoting Gitter,

)). In the end, “[h]abitual residence is intended to be a description

of a factual state of affairs . . . .” Mozes,

.

The parties agree that, in determining habitual residence, the court must first ask whether

the parents “form[ed] a settled intention to abandon the one left behind.”

; see also

Resp.’s Proposed Findings ¶ 80 (citing Mozes,

). “[T]he agreement between the

parents and the circumstances surrounding it must enable the court to infer a shared intent to

abandon the previous habitual residence.” Mozes,

. That said, “[t]he mere fact

that the parents have consented for the child to move to a new country does not prove that they

share the necessary intent to make that new location the child’s habitual residence.” Berezowsky

v. Ojeda,

(5th Cir. 2014). Indeed, courts have cautioned that, “in the absence

of settled parental intent, courts should be slow to infer from [the child’s contact in the new

country] that an earlier habitual residence has been abandoned.” Mozes,

. That

is especially true when the child’s move is intended to be for a “specific, limited duration.”

Blackledge, 866 F.3d at 180–81 (describing a “presumption” against recognizing a change in

habitual residence when the child’s move is for a “specific, limited duration”). In such cases,

17 “court have generally refused to find that the changed intentions of one parent led to an alteration

in the child’s habitual residence.” Mozes,

.

In light of these principles, the question the court faces here is whether, as of May 2019,

the parties’ shared settled intent was to abandon France as E.A.-H.S.’s habitual residence in favor

of the United States. The answer to that question is no. There is no real dispute that the child’s

habitual residence was France before the family relocated to the United States in the summer of

2018 for Respondent’s détachement with IDB. The parties married in France, E.A.-H.S. was born

in France, the family lived primarily in an apartment in Paris, the child attended nursery school

there, and the parents and child had strong social ties in that country. The parties’ respective jobs

were in Paris, with Petitioner licensed to practice medicine only in France and Respondent a

university professor accruing a pension under French law. To be sure, the family did spend

extended time in Barcelona, but Spain was clearly their secondary home, used primarily when

Respondent secured a visiting professorship or in the summer months.

When the family left Paris, the parties’ clear intent was to remain in Washington, D.C., for

at least 18 months, consistent with Respondent’s contract term with IDB. Beyond that “specific,

limited” time period, however, the parties’ plans were aspirational and contingent. The parties

were prepared to extend their stay for an additional 18 months, but as of May 2019, the date of

E.A.-H.S.’s wrongful retention, that prospect remained uncertain. Renewal of Respondent’s

contract rested entirely within the discretion of IDB, and Respondent presented no evidence that

IDB had renewed her contract before May 7, 2019, or that Petitioner had agreed to her seeking a

new 18-month contract by that date. The absence of such evidence is important. Given the marital

strife that manifested in December 2018, which appears due, at least in part, to the parties living

on different continents for weeks at a time, the court cannot find that whatever enthusiasm they

18 shared about remaining in Washington, D.C., for more than 18 months persisted after their

marriage began to deteriorate.

What is clear, based on the full record, is that the parties did not leave France in a manner

that supports a shared intent to relocate indefinitely to the United States. Ample evidence supports

this conclusion. First, Petitioner remained in France to work and took no steps to obtain a medical

license or employment in the United States. He did make efforts to qualify for medical practice in

Uruguay but took no comparable steps in the United States. Second, Respondent did not dissociate

herself from her university position, instead she took leave akin to a sabbatical. Though

Respondent explained that she maintained her university position to continue her pension

eligibility, that action only reinforces the parties’ intent to return to France. Third, the parties did

not dispose of valuable personal property, such as furniture and appliances. Instead, they rented a

storage unit in the same building as their former shared home in Paris. See Berezowsky v. Ojeda,

(5th Cir. 2014) (“Selling the family’s home or cars, for example, may indicate

the intention to make a more permanent move.”); see also Larbie,

(citing as

evidence of non-abandonment of habitual residence in the United States that the mother left

substantially all of her belongings in United States when flying to England); cf. Maxwell,

(mother brought a number of household items from the United States to Australia, including

bedding, dishes, kitchen supplies, and summer clothing); Koch,

(family took all

possessions except a few large items from the United States to Germany). Finally, the parties did

not communicate an intention to leave permanently to family and friends. The absence of a going-

away party or a similar acknowledgement of permanent departure is telling. 4

4 Respondent emphasizes the parties’ efforts to buy property in Washington, D.C., as proof of their intent to make the United States their habitual residence. The record evidence is not so clear, however. The parties discussed purchasing a home as more economical than renting. Also, as demonstrated by their ownership of the apartment in Barcelona, the parties also view buying property as an investment.

19 The court recognizes that habitual residence can change even when the minor child is

moved only for a definite period of time with the intent to return to the original country. See, e.g.,

Blackledge, 866 F.3d at 182–83; Mozes,

. However, the cases that have found a

settled intent to change habitual residence when the child’s move was for a “specific, limited”

duration are distinguishable. Such cases typically have involved the non-custodial parent

withdrawing consent for the child to remain in the new country before the end of the agreed-upon

time to do so, and the child having significant familial and other ties in the new country. See, e.g.,

Whiting v. Krassner,

(3d Cir. 2004) (holding that Canada, not the United States,

was the habitual residence where the parents had agreed that the child would spend two years in

Canada and the mother and young child had familial ties in Canada, even though U.S.-based non-

custodial parent withdrew his consent after two months); Blackledge,

(finding the

minor child to be habitually resident in the United States because “by the time of the retention

date, [the United States] was the longest and most stable residence he had known in his fairly

nomadic early years,” and the child also had extended family in the United States and was a United

States citizen); Koch, 450 F.3d at 716–17 (finding change in habitual residence where the couple

moved with the “hope” of returning to the United States, but otherwise expected to remain in

Germany for an extended period and one parent was a German citizen). No similar circumstances

exist here. Neither parent had a prior connection to the United States. The family entered the

United States on temporary visas so Respondent could work on a contract of finite duration. And,

importantly, the custodial parent in this case sought to alter the status quo. Thus, this is not a case

like Whiting where the non-custodial parent unilaterally withdrew his consent to the child living

in a different country before the agreed-upon time to live elsewhere expired.

20 This case instead closely resembles the facts of Mozes. There, the children, Israeli

residents, traveled with their mother to the United States for a fifteen-month visit to “partake of

American culture,” Mozes,

, which the court analogized to a “study[ ] abroad”

program,

. A year into that visit, however, the mother filed for divorce and retained the

children in the United States.

. In rejecting the mother’s argument that the United States

had become the children’s then-habitual residence, the Ninth Circuit concluded that, when the

children moved to the United States, the “normal expectation,” shared by both the parents and the

children, was that the family would reunite and Israel would remain their habitual residence.

. The court explained that the parents and the children were Israeli citizens; they had lived

all their lives in Israel and entered the United States on a temporary visa; and neither parent had a

prior connection to the United States.

. Similar facts are present in this case.

Although Respondent attempts to cast the parties’ agreement as one to reside here “indefinitely,”

in truth, they agreed to a finite stay in the United States of 18 months, and possibly more, if IDB

renewed Respondent’s contract. In no event, however, did they agree that E.A.-H.S. would live

here permanently. Like the parents in Mozes, the parties in this case did not intend to change their

daughter’s habitual residence by coming to the United States. See also Sundberg v. Bailey,

, 912 (4th Cir. 2019) (finding that parents did not have shared intent to make the

United States the child’s habitual residence instead of Sweden where the parents only agreed to

bring the child to the United States for several months).

2. Acclimatization

Having determined the parties’ habitual residence to be France as of May 7, 2019, the court

briefly discusses acclimatization. The court gives this factor less weight. See Mozes,

. The parties here did as any responsible parent would do: they took steps to create a normal

21 life for E.A.-H.S. in Washington, D.C. They enrolled her in school, and E.A.-H.S. made friends

and participated in extra-curricular activities. But E.A.-H.S., age four, had lived in the United

States for only about ten months when Respondent filed a custody action that sought to alter the

status quo. Evidence of acclimatization over such a short period of time for such a young child is

not enough to overcome the parties’ lack of intent to abandon France as their daughter’s habitual

residence. See Papakosmas v. Papakosmas,

(9th Cir. 2007) (noting that “in the

absence of settled parental intent, courts should be slow to infer from such contacts [in the new

country] that an earlier habitual residence has been abandoned” (internal citation and quotation

marks omitted)); Sundberg, 765 Fed. Appx. at 914 (finding that “[a]ttending school for one school

year does little to show that the child’s life has sufficiently ‘developed’ in her new surroundings

to make it her home”).

V. CONCLUSION

For the reasons stated in these Findings of Fact and Conclusions of Law, and in the court’s

Order, issued on Aug. 21, 2019, ECF No. 38, the court grants the Petition for E.A.-S.H.’s return

to France. The court will issue a separate, final order that contains the child’s return date.

Dated: October 9, 2019 Amit P. Mehta United States District Court Judge

22