13-3688-cv
Hollis v. O’Driscoll




                                 In the
              United States Court of Appeals
                       For the Second Circuit
                               ________
                            AUGUST TERM 2013
                             No. 13-3688-cv

                         JOHN MATTHEW HOLLIS,
                            Petitioner-Appellee.

                                    v.

                         OLIVIA SKYE O’DRISCOLL,
                          Respondent-Appellant.
                                 ________

               Appeal from the United States District Court
                   for the Southern District of New York.
              No. 13 CV 1955 (AJN) ― Alison J. Nathan, Judge.
                                  ________

                       ARGUED: DECEMBER 10, 2013
                        DECIDED: JANUARY 7, 2014
                               ________
2                                        No. 13-3688-cv




Before: CABRANES, WESLEY and LIVINGSTON, Circuit Judges.
                           ________

      In this appeal we consider whether the United States District
Court for the Southern District of New York (Alison J. Nathan,
Judge) erred in granting the petition of John Matthew Hollis for the
return of his daughter, H.L.O., from New York to New Zealand,
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89, and its implementing legislation, the International
Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq.

       We hold that the District Court did not err in concluding that:
(1) New Zealand was H.L.O.’s habitual residence prior to removal,
notwithstanding a lack of stable accommodations during a
significant portion of her time there; (2) H.L.O.’s indefinite removal
by her mother Olivia Skye O’Driscoll from New Zealand to New
York was contrary to the parties’ last shared intent and, therefore,
wrongful; and (3) H.L.O. had not “acclimated” to life in New York
such that it was the equivalent of a new habitual residence.
Accordingly, we AFFIRM the September 4, 2013 judgment of the
District Court and REMAND the cause for further proceedings,
including a determination of whether to award costs to Hollis.
                              ________



                                         -

                                                                     ,
                   Nixon Peabody LLP,        New     York,   NY,   for
                   Respondent-Appellant
                              ________
3                                                     No. 13-3688-cv




JOSÉ A. CABRANES, Circuit Judge:
       In this appeal we consider whether the United States District
Court for the Southern District of New York (Alison J. Nathan,
Judge) erred in granting the petition of John Matthew Hollis for the
return of his daughter, H.L.O., from New York to New Zealand,
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89 (the “Hague Convention”) and its implementing
legislation, the International Child Abduction Remedies Act, 42
U.S.C. §§ 11601 et seq. (“ICARA”).
       Appellant Olivia Skye O’Driscoll argues on appeal that the
District Court erred in concluding that: (1) H.L.O. was a habitual
resident of New Zealand immediately prior to her removal to New
York by her mother O’Driscoll; (2) Hollis did not consent to H.L.O’s
indefinite removal to New York; and (3) H.L.O. had not acclimated
to her residence in New York such that it had become a new
habitual residence.
                                 BACKGROUND1

       Hollis and O’Driscoll are both citizens of New Zealand, where
they lived when their relationship began in January 2010. After
O’Driscoll became pregnant with H.L.O. in March 2010, the two
became engaged and lived together in Auckland, New Zealand in
the months leading up to H.L.O.’s birth in December 2010, and for
the first five months of H.L.O.’s life.

       In May 2011, the relationship began to deteriorate. Around
that time, Hollis and O’Driscoll each moved separately to Tauranga,
New Zealand, and they never lived together again. After moving to

        1 Unless otherwise noted, the facts set forth below are taken from the District
Court’s opinion and are not disputed by the parties on appeal.
4                                        No. 13-3688-cv




Tauranga, O’Driscoll and H.L.O. did not have their own apartment,
but instead “stayed in various guest bedrooms and on various
couches.” Appellant’s Br. 34. In October 2011, O’Driscoll spent two
months in Japan with H.L.O. working as a model, after which she
returned to New Zealand.

      In early January 2012, although still living separately,
O’Driscoll and Hollis spent time together with H.L.O., and Hollis
had expressed a desire to reconcile. When O’Driscoll raised the
possibility of re-launching her modeling career in New York, Hollis
indicated that he would consent to such a move on the assumption
that he would also move to New York to be with O’Driscoll and
H.L.O. In February 2012, after the relationship deteriorated further
and O’Driscoll made clear that they would not reconcile, Hollis
indicated that he did not consent to O’Driscoll moving to New York
with H.L.O., and he raised the possibility of commencing a Hague
Convention action if she did.

      Hollis eventually agreed that O’Driscoll could take H.L.O. to
New York, but only on the condition that she would stay there for
no longer than four or five months. Despite this apparent agreement,
O’Driscoll remained concerned that Hollis did not consent to her
taking H.L.O. to New York without him. As a result, O’Driscoll lied
to Hollis about her departure date, informing him that he would
have a “play date” with H.L.O. on March 7, 2012, but instead
departing with H.L.O. on a plane for New York that same day.

       When O’Driscoll did not return to New Zealand in August
2012, Hollis contacted the New Zealand central authority to initiate a
Hague Convention proceeding. The attorney assigned to Hollis
promptly notified O’Driscoll that she must return H.L.O. to New
Zealand, but O’Driscoll did not comply, resulting in commencement
of the present action on March 25, 2013.
5                                                           No. 13-3688-cv




       On September 4, 2013, the District Court issued its decision
ordering repatriation of H.L.O. to New Zealand. At that time,
O’Driscoll and H.L.O had been living in New York for eighteen
months, during which they had lived in three different locations,
finally settling in Long Island City. H.L.O. had developed a close
relationship with her nanny of one year, and participated in a play
group once a week in Battery Park City.

         This timely appeal followed.

                                        DISCUSSION

                                         A. Removal

       In cases arising under the Hague Convention and ICARA,
“we review a district court’s factual findings for clear error and its
legal conclusions de novo.” Guzzo v. Cristofano, 719 F.3d 100, 109 (2d
Cir. 2013). We “accept the trial court’s findings unless we have a
definite and firm conviction that a mistake has been committed.”
Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) (internal quotation
marks omitted).

      To succeed on a petition for repatriation of a child under the
Hague Convention, the petitioner must prove that the child was
removed from a State party2 in which she was “habitually resident,”
and that the removal was “wrongful.” Mota v. Castillo, 692 F.3d 108,
112 (2d Cir. 2012). Removal is “wrongful” if:



         2
           Whereas “a State’s signing of a treaty serves only to authenticate its text, [and] does not
establish the signatory’s consent to be bound,” Flores v. S. Peru Copper Corp., 414 F.3d 233, 256
(2d Cir. 2003) (emphasis in original) (internal quotation marks, citation, and alterations omitted), a
State party is one which ratifies, and thus becomes bound by, the treaty in question, Blue Ridge
Investments, L.L.C. v. Republic of Argentina, 735 F.3d 72, 84 n.20 (2d Cir. 2013).
6                                                     No. 13-3688-cv




        [(1)] it is in breach of rights of custody . . . under the law
        of the State in which the child was habitually resident
        immediately before the removal . . . ;3 and [(2)] at the
        time of removal . . . those rights were actually exercised
        [by the petitioner], . . . or would have been so exercised
        but for the removal . . . .

Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005) (quoting Hague
Convention, art. 3).4

       The District Court correctly stated that, “in determining a
child’s habitual residence, a court must first ‘inquire into the shared
intent of those entitled to fix the child’s residence . . . at the [last]
time that their intent was shared.’” Special App’x at 8 (quoting
Gitter, 396 F.3d at 134, alterations in original).

      As a preliminary matter, O’Driscoll’s argument that New
Zealand cannot have been H.L.O.’s habitual residence because
H.L.O. did not have a stable home after O’Driscoll separated from
Hollis in May 2011 is unavailing. The purpose of the habitual-
residence inquiry under the Hague Convention is to determine
which State’s laws should govern the custody dispute. Accordingly,
the inquiry is limited to the “country of habitual residence,” Mota,
692 F.3d at 112 (emphasis supplied), not whether the
accommodations within the country were stable. Moreover, placing

        3  Under New Zealand law, the question of custody turns on whether the parents
have a de facto relationship. The District Court determined that Hollis had custody rights
in H.L.O. because he was living with O’Driscoll between the time of H.L.O’s conception
and her birth, and because of the nature of the parents’ relationship prior to O’Driscoll’s
departure for New York in March 2012. O’Driscoll did not seriously contest this
determination at trial and does not raise it on appeal.
        Although the respondent may rebut the petitioner’s prima facie case of wrongful
        4

removal with affirmative defenses, O’Driscoll does not attempt to do so here.
7                                                     No. 13-3688-cv




weight on the stability of a child’s accommodations would require
us to delve into the merits of the underlying custody claim—a matter
beyond the scope of this Court’s authority in resolving Hague
Convention claims. See 42 U.S.C. § 11601(b)(4) (“The Convention and
this chapter empower courts in the United States to determine only
rights under the Convention and not the merits of any underlying
child custody claims.”).

       In this case, Hollis and O’Driscoll lived together in New
Zealand for approximately nine months prior to H.L.O.’s birth and
for the first six months of H.L.O.’s life, and they considered New
Zealand home. That O’Driscoll and H.L.O. did not have stable
accommodations after O’Driscoll and Hollis separated does not
affect, much less negate, the clear establishment of their habitual
residence in New Zealand.5 Cf. Delvoye v. Lee, 329 F.3d 330, 333 (3d
Cir. 2003) (“[T]he 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.”).

      In addition, O’Driscoll argues that, even if New Zealand was
H.L.O.’s habitual residence, Hollis consented to her moving to the
United States with H.L.O. indefinitely. Based on the evidence
adduced at trial, the District Court disagreed, determining that even
though the parties had, at one point, anticipated moving to the
United States together, their shared intent at the time of removal
was for O’Driscoll to bring H.L.O. to New York for no longer than
five months. This finding was based on, inter alia, an email from
O’Driscoll stating that her stay in New York would last no longer

        5We need not consider the possibility of a case arising in which a child’s
accommodations within a State were so unsettled that it could not be said that the
parents shared the intent to make that State their habitual residence. This is not such a
case.
8                                                        No. 13-3688-cv




than four months with a temporary return to New York for Fashion
Week and O’Driscoll’s attempt to deceive Hollis regarding her
departure for New York with H.L.O. We have recognized that the
determination of a habitual residence is a “fact-intensive [one] that
necessarily varies with the circumstances of each case.” Guzzo, 719
F.3d at 109 (internal quotation marks omitted). We cannot conclude
that the District Court’s determination here was erroneous, much
less clearly erroneous.

       Nor did the District Court err in determining that H.L.O.’s
one-year relationship in New York with a nanny and enrollment in a
weekly play group did not amount to “acclimation,” such that,
“notwithstanding a lack of shared parental intent to change the
child’s long-term residence,” New York had become the equivalent
of “home.”6 Id. at 111 (internal quotations omitted).

      In sum, the District Court made no error of law or fact in
concluding that H.L.O. was wrongfully removed from New
Zealand, the state of her habitual residence, and ordering
repatriation to that State.

                                            B. Costs

      Hollis argues that if we affirm the judgment of the District
Court, he is presumptively entitled to recover from O’Driscoll
expenses, costs, and legal fees incurred in prosecuting this action in
the District Court and on appeal.7 ICARA requires the “court
ordering the return of a child” to order the respondent to pay these

        6O’Driscoll’s arguments regarding her own family ties and greater ability to
support H.L.O. in New York, are not germane to the repatriation inquiry, which is
expressly not “a determination on the merits of any custody issue.” Souratgar, 720 F.3d at
102.
        7   O’Driscoll does not address the request for costs in her Reply Brief.
9                                                      No. 13-3688-cv




costs unless “such order would be clearly inappropriate.” 42 U.S.C. §
11607(b)(3); Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). The
District Court, as the court ordering the return of the child, is
responsible in the first instance for determining what costs, if any,
should be assessed against O’Driscoll, with respect to both the
District Court and Court of Appeals proceedings. See Ozaltin, 708
F.3d at 377 (“[T]he District Court is in a better position to assess . . .
an appropriate fees award.”); cf. McCarthy v. Bowen, 824 F.2d 182,
183 (2d Cir. 1987) (holding, in the context of the Equal Access to
Justice Act, 28 U.S.C. § 2412 (1987), that, although the application for
appellate fees must be made in the Court of Appeals, “[t]here may
be situations where the court of appeals will find it helpful to enlist
the aid of the district court in resolving disputed issues concerning
an application for appellate fees”).8

     Accordingly, we remand the cause for consideration of
whether it is appropriate to award costs to Hollis, and if so, in what
amount.

                                   CONCLUSION

To summarize, we hold that:

    (1) New Zealand was H.L.O.’s habitual residence immediately
        prior to her removal to New York.




        8  Notably, the Equal Access to Justice Act states that “a court shall award to a
prevailing party . . . fees and other expenses,” 28 U.S.C. § 2412(d)(1)(A), without referring
specifically to “the court ordering the return of the child,” as in 42 U.S.C. § 11607(b)(3).
This difference supports the conclusion that, under the Hague Convention, the district
court is responsible, in the first instance, for the award of all costs.
10                                        No. 13-3688-cv




     (2) Hollis had some custody rights in H.L.O., and did not consent
         to O’Driscoll taking H.L.O. to New York indefinitely.
         Therefore, the removal was wrongful.

     (3) H.L.O. had not “acclimated” to life in New York such that it
         was the equivalent of a new habitual residence.

     (4) The District Court should determine, in the first instance,
         whether to order O’Driscoll to pay Hollis the costs associated
         with bringing this action in the District Court and on appeal.

      Accordingly, we AFFIRM the September 4, 2013 judgment of
the District Court and REMAND the cause to the District Court for
further proceedings, including determining whether (and, if
appropriate, in what amount) to award costs.
