                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2004

Whiting v. Krassner
Precedential or Non-Precedential: Precedential

Docket No. 03-1276




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                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 03-1276


       CATHLEEN CARMEN MARY WHITING

                           v.

                PETER L. KRASSNER,
                 a/k/a MIKE CIMINO

                Peter Krassner, Appellant


     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.


              Argued September 28, 2004

Before: RENDELL, FUENTES and SMITH, Circuit Judges.

               (Filed December 15, 2004)
John C. O’Quinn (ARGUED)
Kirkland & Ellis
655 15 th 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




                 OPINION OF THE COURT


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

                               -2-
Act, 42 U.S.C. § 11601 et seq. The District Court also granted
Whiting’s request for attorneys’ fees and costs pursuant to 42
U.S.C. § 11607(b)(3), ordering Krassner to pay such fees and
costs in the amount of $46,441.68. Krassner appeals the District
Court’s order. This appeal followed, an appeal in which both
parties have been superbly represented by appointed counsel.
The parties have addressed the issue of whether this appeal is
moot given Christina’s return to Canada, but Whiting urges that
Krassner should be judicially estopped from asserting that it is
not moot because he took a contrary position earlier in the
course of this litigation.

       The District Court had jurisdiction over Whiting’s
petition pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 11603(a).
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
For the reasons that follow, we find that Krassner is not
judicially estopped from asserting that the case is not moot and,
further, that the case is not moot. We will affirm the District
Court’s holding that Canada was Christina’s place of habitual
residence at the time of her removal.




            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

                              -3-
were intensified by the tragic events of September 11, 2001, and
the two separated and W hiting took Christina to live with her in
Canada. Soon after September 11, the parties reached an
agreement as to the custody of their daughter, which they
memorialized in a custody agreement (“Agreement”). Krassner,
with the help of his father, drafted the first version of the
Agreement, which he then presented to Whiting as a condition
of her departure with Christina for Canada. The Agreement was
then modified to reflect Whiting’s suggested changes and signed
by both parties on October 19, 2001.

        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


   1
     At the time the Agreement was signed, Whiting was not
legally permitted to reside or work in the U.S. and, therefore,
would have been unable to be the custodial parent of Christina

                               -4-
       After signing the Agreement, Whiting left with Christina
on a bus for Canada. There, the two lived with Whiting’s
mother for approximately two weeks before moving into a two-
bedroom apartment across the hall from Whiting’s mother and
in close proximity to her sister. Whiting began to look into
childcare programs and applied for the necessary documentation
for Christina to live in Canada, including a medical card. The
parties agreed that Krassner would come to Canada to visit
during the Christmas holidays. It was planned that he would
stay from December 22, 2001 through December 26th or 27th.
On December 22, Whiting brought Christina to Krassner’s hotel
in Canada, along with her birth certificate and everything he
would need to care for Christina over the next four days. The
parties agreed that Whiting was to pick Christina up on
Christmas day so that Christina could spend Christmas with
Whiting’s family at the home of Whiting’s mother.

       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


if they had remained in the U.S. because she would not have
been able to support her.

                              -5-
Convention for the return of Christina. After an expedited
hearing, the District Court found that Christina was a resident of
Canada and that her removal was wrongful under Canadian law.
In reaching this conclusion, the District Court focused on the
Agreement and reasoned that, although the parties had agreed
that Christina should return to the United States if certain
conditions were met, there was no mutual agreement that she
would be returned to New York. The Court, therefore, ordered
her return to Canada. The District Court also ordered Krassner
to pay Whiting’s attorneys fees and costs pursuant to 42 U.S.C.
§ 11601 et seq. in the amount of $46,441.68. Krassner sought
a stay of the order to return, but this was denied. On January 29,
2003, he then filed a motion for expedited appeal from this
Court and on January 30, 2003, he sought a stay from this Court;
both were denied. Christina was returned to Canada on
February 5, 2003. Krassner’s trial counsel ceased to represent
him and Krassner then filed an in forma pauperis affidavit and
request to reopen his appeal . On July 10, 2003, we granted his
motion to reopen the appeal and, on July 25, 2003, granted his
motion for appointment of counsel. We also specifically
directed the parties to address “whether this appeal is moot,
given the fact that Christina Krassner has been returned to
Canada.”




                         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

                               -6-
been returned to the custody of the petitioner at the time of the
appeal. While Whiting agrees with Krassner’s position
concerning the issue of mootness, she contends that he is
judicially estopped from asserting this position because he took
a contrary position in his arguments to the District Court and to
this Court as part of his initial motion for expedited appeal. For
the reasons set forth below, w e hold that Krassner is not
judicially estopped from arguing against the mootness of his
appeal; we also agree with the parties that the appeal is not moot
simply because Christina had been returned to petitioner at the
time of the appeal.




                      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

                               -7-
of “position” that should work an estoppel. Should he be forced
to forego an argument that this legal result could follow, or else
risk that his later opposition to this result would be barred? We
think not. Additionally, and importantly, Krassner did not
advocate this position in bad faith, which we have held to be an
essential requirement for the application of judicial estoppel.
See Montrose Med. Group Participating Sav. Plan v. Bulger,
243 F.3d 773, 777 (3d Cir. 2001). We have observed that
“[j]udicial estoppel may be invoked by a court at its discretion
to preserve the integrity of the judicial system by preventing
parties from playing fast and loose with the courts in assuming
inconsistent positions...” Motley v. New Jersey State Police, 196
F.3d 160, 163 (3d Cir. 1999) (citations and quotations omitted).
Here, where a panel of this Court specifically asked Krassner to
address the mootness issue, where his prior contentions as to
mootness were more predictive than assertive, and where
Krassner was not “playing fast and loose” with the Court,
judicial estoppel simply does not fit.

       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

                               -8-
Krassner is not judicially estopped from asserting that the case
remains a live case or controversy and we now turn to the
question of mootness.




                  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 Article III of the
Constitution, this Court has “no authority ‘to give opinions upon
moot questions or abstract propositions, or to declare principles
or rules of law which cannot affect the matter in issue in the
case before it.’” Church of Scientology v. United States, 506
U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653
(1895)). Accordingly, although the parties urge that the appeal
is not moot, we must still decide this issue to assure the
existence of our jurisdiction. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94-95 (1998).

       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

                              -9-
with their daughter make it impossible for us to grant any
meaningful relief in this case? We hold it does not.

       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

                              -10-
where appellant was seeking the child’s return to Austria and
this return occurred while appeal was being pursued). But these
cases are inapposite and should not have been controlling
because the return of a child under The Hague Convention is
still being contended by the losing party and relief can be
afforded. In Bekier, as in this case, notwithstanding the return
of the child, the issue as to whether the initial taking was
wrongful was still very much alive. We are unconvinced by the
Bekier court’s reasoning and decline to adopt it. Instead, we
will follow the rationale of the other court of appeals weighing
in on this precise issue – the Fourth Circuit in Fawcett v.
McRoberts, 326 F.3d 491, 495-96 (4th Cir. 2003). 2

       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


  2
      There, the court had the same difficulty as we do with the
Bekier court’s analysis, and rejected it. The court stated that it
was “unclear” why the Bekier court came to the conclusion it
did. It hypothesized that perhaps the inability of the court to
enforce a contrary order in a foreign court had been at the heart
of its view that further relief could not be afforded. See Fawcett,
326 F.3d at 495-96. This does not alter our thinking, as it did
not alter the Fourth Circuit’s.


                               -11-
district court that she return Travis to the United States. To the
contrary, such orders are fully within the district court’s power
and are commonly issued by courts in the United States.” Id. at
496. We find this reasoning to be sound. Nothing has occurred
during the pendency of this appeal that makes “it impossible for
the court to grant ‘any effectual relief whatever.’” Church of
Scientology, 506 U.S. at 12. Further, reversal could certainly
“affect the matter in issue.” Id. In ordering the return of
Christina, the District Court would essentially be holding that
the removal by Krassner was not wrongful under The Hague
Convention. Such a finding would mean that the order assessing
fees and costs against Krassner should be vacated and would
also have additional, positive implications for Krassner in later
custody proceedings in the United States. For these reasons, we
hold that the instant appeal is not moot.




                    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

                              -12-
to establish artificial jurisdictional links on an international
level, with a view to obtaining custody of a child.” Elisa
Perez-Vera, Explanatory Report p. 11, in 3 Hague Conference
on Private International Law, Acts and Documents of the
Fourteenth Session, Child Abduction 426 (1982). 3            The
objective of The Hague Convention is to ensure the prompt
return of children to the state of their habitual residence when
they have been wrongfully removed.4 Hague Convention, pmbl.
T.I.A.S. No. 11, 670 at 2. Therefore, determination of a child’s
habitual residence immediately before the alleged wrongful
removal or retention is a threshold question in deciding a case
under The Hague Convention. See Feder v. Evans-Feder, 63


      3
       Elisa Perez-Vera was the official Hague Conference
Reporter, and her report is generally recognized as “the official
history and commentary on the Convention.” Legal Analysis of
the Hague Convention on the Civil Aspects of International
Child Abduction, 51 Fed. Reg. 10,494, 10,503 (1986). Her
full report is available at                    http://www.
hiltonhouse.com/articles/Perez_rpt.txt.
  4
   Article 3 of The Hague Convention defines a removal to be
wrongful when (a) it is in breach of rights of custody attributed
to a person, an institution or any other body, either jointly or
alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention;
and (b) 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.


                              -13-
F.3d 217, 222 (3d Cir. 1995).

        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 to 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

                              -14-
to the United States. Although she had told her husband the
reason for the trip was to visit her family, she actually intended
to move back to Pennsylvania with Evan permanently.

       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
instructive 5 . There, the court stated that in deciding whether a


     5
      That case required the determination of the habitual
residence of a two and one-half-year-old girl, whose father was
a musician and traveled extensively. Mother and daughter had
toured with the father for the majority of the girl’s life to that
point. While London was the family’s home base, the daughter
had spent most of her life traveling from country to country.

                              -15-
place constitutes a child’s habitual residence:

       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


The parents finally decided that the mother and daughter would
live in New York City while the father toured the Far East.
After the father had been gone for only two days, he ordered the
nanny to bring the girl to London. The mother filed a petition
for her return under The Hague Convention and the question
before the court was whether New York was the daughter’s
habitual residence. The court looked to the parents’ intentions
to have the mother and child reside in New York and held that
New York was, indeed, her habitual residence.

                              -16-
required to determine an infant’s place of habitual residency. In
that case, the mother and father met in New York in early 2000.
The father lived in Belgium, but eventually moved to New York
in September 2000 to live with the mother. The mother then
learned she was pregnant and began prenatal care in New York.
Eventually, however, she agreed to deliver the baby in Belgium
because she could obtain free medical care there. She traveled
to Belgium on a three-month visa, and took only her maternity
clothes. She lived out of her suitcase the entire time and
returned to New York two months after the baby was born. The
father then filed a petition for return of the child under The
Hague Convention. The district court ruled that the father had
not proved that the baby was a habitual resident of Belgium and,
thus, had not met his burden of proof. He appealed and we
affirmed the district court. Delvoye v. Lee, 329 F.3d at 332,
334.

        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
B EAUMONT & M CE LEAVY, T HE H AGUE C ONVENTION ON
INTERNATIONAL C HILD A BDUCTION 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

                              -17-
resident of Belgium. Id. Taken together, Delvoye and Feder
demonstrate the importance of a shared parental intent in
deciding the issue of habitual residence of a child lacking the
capacity to form his or her own intentions concerning residency.

        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

                               -18-
with the Ninth Circuit on this point, at least when the child
whose habitual residence is being determined is of such a young
age that he or she cannot possibly decide the issue of residency
for himself or herself. For, as we noted in Feder, determination
of habitual residence requires analysis of “the parents’ present,
shared intentions regarding their child’s presence.” Feder, 63
F.3d at 224. In that opinion, we also quoted the court in In Re
Bates for the proposition that “‘in the case of a child as young
as Tatjana [who was two and one-half years old at the time of
her abduction], the conduct and the overtly stated intentions and
agreements of the parents during the period preceding the act of
abduction are bound to be important factors and it would be
unrealistic to exclude them.’” See Feder, 63 F.3d at 223.

       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

                               -19-
point out that a child may become habitually resident even in a
place where he or she was intended to live only for a limited
time if the child’s original habitual residence has been
effectively abandoned by the shared intent of the parents. Id. at
1082.6

        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


  6
    Krassner agrees that this case falls into this category of cases
as described by the Mozes court. (Appellant’s Brief at 38.)
However, he has failed to recognize that while the court in
Mozes did state that most of these cases will result in a
determination that habitual residence has not changed, the court
then went on to make an exception for cases where the move,
albeit for a limited time, is an effectuation of the shared intent
of the parents. Therefore, although we agree with Krassner that
when classified in the terms of the Mozes court, this case would
be one of intent to move for a limited period, we do not agree
that such a finding necessitates the conclusion that this could not
work a change in habitual residence.

                               -20-
United States no later than October 19, 2003, depending upon
certain conditions. (App at 5, 57.) Thus, we have a shared
intent by Christina’s parents that she live in Canada for a period
of two years. This fulfills the requirement set out by this Court
in Feder that Whiting and Christina’s move to Canada was
accompanied by a degree of settled purpose.

        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,


  7
    And, the return of Christina to the state of New York was
never specifically agreed upon. While it seems clear that
Krassner intended to stay in the New York area, he was living
in an apartment in New Jersey at the time of the proceedings.

                               -21-
the fact that the agreed-upon stay was of a limited duration in no
way hinders the finding of a change in habitual residence.
Rather, as we stated in Feder, the parties’ settled purpose in
moving may be for a limited period of time. See Feder, 63 F.3d
at 223. Logic does not prevent us from finding that the shared
intent of parents’ to move their eighteen-month old daughter to
Canada for two years could result in the abandonment of the
daughter’s prior place of habitual residence. Put more
succinctly, in our view, the intent to abandon, need not be
forever; rather, intent to abandon a former place of residency of
a one year old child for at least two years certainly can
effectuate an abandonment of that former habitual residence.

        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

                              -22-
such a case, acclimatization is not nearly as important as the
settled purpose and shared intent of the child’s parents in
choosing a particular habitual residence. In recognizing
acclimatization as an element of habitual residency in Feder, we
were attempting to develop a definition of habitual residence
which would comport with one of the main objectives of The
Hague Convention- i.e., restoring the child to the status quo
before the abduction. We recognize that this goal is crucial
when the child involved is not only cognizant of his or her
surroundings, but also of an age at which it is able to develop a
certain routine and acquire a sense of environmental normalcy.
A four-year- old child, such as Evan Feder, certainly has this
ability. A child of such age is not only aware of those around
him, but is able to form meaningful connections with the people
and places he encounters each day. A very young child, such as
Christina, does not have such capability. Therefore, her degree
of acclimatization in Canada is not nearly as important to our
determination of habitual residence as are her parents’ shared
intentions as to where she would live during her formative years.


       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

                              -23-
problem persists regardless of the age of the child, we believe
that the acclimatization element is still important for courts to
focus on when determining the habitual residence of an older
child in order to prevent such child’s environmental normalcy
from being disrupted.

        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.




                              -24-
