                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2003

Delvoye v. Lee
Precedential or Non-Precedential: Precedential

Docket 02-3943




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Recommended Citation
"Delvoye v. Lee" (2003). 2003 Decisions. Paper 504.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/504


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                                  PRECEDENTIAL

                                              Filed May 20, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 02-3943


             WIM DELVOYE, in the Matter of
    Sebastian Delvoye, an infant under the age of one,
                               Appellant,
                                  v.
                         CHRISTINA LEE

      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

                  Argued: February 13, 2003
       Before: ALITO and McKEE, Circuit Judges, and
            SCHWARZER,* Senior District Judge

                      (Filed: May 20, 2003)




* Honorable William W Schwarzer, Senior United States District for the
Northern District of California, sitting by designation.
                                 2


                         DEAN G. YUZEK (ARGUED)
                         JOAN WALTER
                         Ingram Yuzek Gainen Carroll &
                          Bertolotti, LLP
                         250 Park Avenue
                         New York, NY 10177
                         BERNARD G. POST
                         950 Third Avenue
                         New York, NY 10022
                         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
                         559 Bergen Boulevard
                         Ridgefield, NJ 07657
                         SUSAN M. LEE
                         32 Sylvan Avenue
                         Englewood Cliffs, NJ 07632
                         Attorneys for Christina Lee,
                         Respondent-Appellee


                  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”).1 The district
court found and concluded that petitioner 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.

1. The Convention is implemented at 42 U.S.C. § 11603 (2003).
                              3


      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 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, under
    the law of the State in which the child was habitually
    resident immediately before the removal. . . .
(Emphasis added.)
                              4


   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 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
                                    5


     . . . to have the capability or intention to acquire 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, 551.2
  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

2. 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.
                              6


filed a petition under the Convention alleging that his son
had been wrongfully removed. The district court denied 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 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 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
                               7


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.
    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.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
