                                                                           FILED
                           NOT FOR PUBLICATION                             APR 17 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


In re: A.L.C; E.R.S.C., Infants under the        No. 14-55671
age of 16,
                                                 D.C. No. 2:14-cv-01506-ODW-SH

ANDREAS CARLWIG,
                                                 MEMORANDUM*
              Petitioner - Appellee,

  v.

SARODJINY CARLWIG,

              Respondent - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                       Argued and Submitted March 2, 2015
                              Pasadena, California

Before: PREGERSON, FERNANDEZ, and NGUYEN, Circuit Judges.

       Sarodjiny “Sarah” Carlwig appeals the decision and order of the district

court sending A.L.C. and E.R.S.C., her dual-national American and Swedish



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
children, to Sweden pursuant to the Convention on the Civil Aspects of

International Child Abduction (the “Convention”), and its implementing

legislation, the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-

11. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s

decision relating to A.L.C., vacate the portion of the decision relating to E.R.S.C.,

and decline to issue a re-return order as to E.R.S.C.

      “[H]abitual residence analysis is . . . a mixed question of fact and law under

which we review essentially factual questions for clear error and the ultimate issue

of habitual residency de novo.” Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir.

2004) (internal citation and quotation marks omitted). We “must consider the

unique circumstances of each case when inquiring into a child’s habitual

residence.” Id. at 1016.

      1. We affirm the judgment of the district court that A.L.C. is a habitual

resident of Sweden, where he now resides with his father, Andreas Carlwig.

      When a child moves between nations and a parent files a Convention

petition revealing a dispute over habitual residence, we first “look for the last

shared, settled intent of the parents.” Valenzuela v. Michel, 736 F.3d 1173, 1177

(9th Cir. 2013). In conducting our review we give “appropriate deference to the




                                           2
district court’s findings of fact and credibility determinations.” Papakosmas v.

Papakosmas, 483 F.3d 617, 623 (9th Cir. 2007).

      When an examination of shared intent does not resolve a dispute between

two potential habitual residences, a child’s newer residence can be found to be the

child’s habitual residence when “the objective facts point unequivocally” to “the

child’s relative attachments to the two countries [changing] to the point where

requiring return to the original forum would now be tantamount to taking the child

out of the family and social environment in which its life has developed,” a process

known as acclimatization. Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir. 2001)

(internal quotation marks and citations omitted). We are mindful that we must be

“slow to infer from contacts with a new country that an earlier habitual residence

has been abandoned, both because the inquiry is fraught with difficulty, and

because readily inferring abandonment would circumvent the purpose of the

Convention.” Murphy v. Sloan, 764 F.3d 1144, 1152-53 (9th Cir. 2014)

(alterations and internal quotation mark omitted).




                                          3
      When the Carlwig family moved to Sweden in 2012,1 they established a

regular household together, enrolled A.L.C. in local pre-school, and supported

A.L.C.’s participation in soccer, swimming, and martial arts. A.L.C. spent time

with his father’s relatives and demonstrated fluency in the Swedish language.

Over thirteen months, A.L.C.’s circumstances and activities demonstrate that he

acclimatized to Sweden and that country became the primary locus of his life. See

Mozes, 239 F.3d at 1078-79. We agree with the district court that A.L.C. became a

habitual resident of Sweden.

      In February 2013, A.L.C. traveled to Los Angeles with his pregnant mother,

leaving his father behind in Sweden. During several month in Los Angeles, A.L.C.




      1
         The district court did not clearly err in its factual determination that the
Carlwigs abandoned any habitual residence that the family shared in Dubai,
A.L.C.’s 2008 birthplace. See Mozes, 239 F.3d at 1075-76 (finding an intent to
abandon a habitual residence is a question of fact best determined by the district
court).
        Both parents agree that the family left nothing behind and that the family
maintained no contacts after moving to Sweden in 2012. Where a family
“manifest[s] a settled purpose to change habitual residence, despite the fact that
one parent may have had qualms about the move[,]” courts generally recognize a
shift in habitual residence. Id. at 1076. The distinction between the qualms of a
spouse during a move and the coercion of one spouse by another to affect an
involuntary move is of concern in the court’s analysis, see Tsarbopoulos v.
Tsarbopoulos, 176 F. Supp. 2d 1045, 1056 (E.D. Wash. 2001), but Ms. Carlwig
does not argue before this court that her move to Sweden was coerced or
involuntary.

                                           4
did develop contacts in the United States. Ms. Carlwig enrolled A.L.C. in summer

camp, pre-school, and extracurricular activities.

      However, A.L.C.’s contacts developed in the shadow of disagreement

between his parents over the trip’s purpose. Ms. Carlwig argues that she intended

to move permanently to the United States with A.L.C. The district court found that

Mr. Carlwig believed the trip’s purpose was for Ms. Carlwig to give birth and

recover before returning with the children to Sweden. The district court did not err

in holding that Mr. Carlwig intended A.L.C.’s trip to last approximately six

months.

      During A.L.C.’s time in the United States, Mr. Carlwig maintained active

involvement in his son’s life, arranging regular communication with A.L.C. from

Sweden, visiting A.L.C. in Los Angeles, and making preparations for A.L.C.’s

return to Sweden. There is no evidence in the record of a shared parental intent for

A.L.C. to move permanently to the United States and there is significant evidence

of Mr. Carlwig actively objecting to A.L.C.’s time in Los Angeles lasting more

than six months.

      Without a shared parental intent for a permanent change of habitual

residence, we find that A.L.C.’s contacts and relative attachments in Los Angeles

were insufficient to prove unequivocally that he had acclimatized to United States


                                          5
or that his habitual residence in Sweden had been abandoned. Id. at 1081. The

district court was correct to order A.L.C. returned to his habitual residence,

Sweden, under the Convention and we affirm.

      2. We vacate the judgment of the district court that E.R.S.C. was a habitual

resident of Sweden. The district court clearly erred in finding E.R.S.C. could be a

habitual resident of a nation in which she never resided.

      We “interpret the expression ‘habitual residence’ according to the ordinary

and natural meaning of the two words it contains.” Id. at 1071 (internal quotation

mark and citation omitted). “Habitual residence” describes “a factual state of

affairs” and we recognize the obvious truth that “habitual residence cannot be

acquired without physical presence.” Id. at 1080-81. E.R.S.C. had never been to

Sweden prior to the execution of the district court’s order.

      The district court’s effort to sift through the past intentions of Sarah and

Andreas Carlwig to find a moment of settled, shared intent for E.R.S.C. to

someday reside in Sweden was erroneous.

      We reject the other rationales cited by the district court in deciding E.R.S.C.

was a habitual resident of Sweden. The district court’s explanations that it would

be untenable to split up the siblings for custody determinations and that Mr.

Carlwig is employed in Sweden while Ms. Carlwig “is unemployed here in the


                                           6
U.S. and rel[ies] on financial support from [the] Father as well as governmental

assistance,” because they go to the merits of the custody claims and are not

relevant to the Convention’s required analysis. See 22 U.S.C. § 9001(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.”).

      The district court clearly erred in finding E.R.S.C. was a habitual resident of

Sweden and we vacate its decision.

      3. We agree with the district court’s determination that E.R.S.C. was not a

habitual resident of the United States.

      A child’s “place of birth is not automatically the child’s habitual residence.”

Holder, 392 F.3d at 1020. The court has found that when “a child is born where

the parents have their habitual residence, the child normally should be regarded as

a habitual resident of that country.” Id. E.R.S.C. was not born into that simple

situation. Nor is E.R.S.C.’s habitual residence derived automatically from her

mother’s location and caregiving. See Nunez-Escudero v. Tice-Menley, 58 F.3d

374, 379 (8th Cir. 1995); Friedrich v. Friedrich, 983 F.2d 1396, 1401-02 (6th Cir.

1993).




                                          7
      Justifying E.R.S.C.’s habitual residence as the United States based on her

contacts in Los Angeles is ineffective as “it is practically impossible for a newborn

child, who is entirely dependent on its parents, to acclimatize independent of the

immediate home environment.” Holder, 392 F.3d at 1020-21. When a child is

born under a cloud of disagreement between parents over the child’s habitual

residence, and a child remains of a tender age in which contacts outside the

immediate home cannot practically develop into deep-rooted ties, a child remains

without a habitual residence because “if an attachment to a State does not exist, it

should hardly be invented.” Id. at 1020 (quoting Paul R. Beaumont & Peter E.

McEleavy, The Hague Convention on International Child Abduction 89, 112

(1999)); see also Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003) (stating that

when a “conflict [of parental intent] is contemporaneous with the birth of the child,

no habitual residence may ever come into existence.”)

      We find that E.R.S.C.’s nine months as an infant in Los Angeles do not

result in E.R.S.C. acquiring habitual residence in the United States when

E.R.S.C.’s parents never shared an intent for her to reside in the United States

beyond Ms. Carlwig’s period of recovery after giving birth.

      Thus when Mr. Carlwig filed his Convention petition in February 2014,

E.R.S.C. did not have a habitual residence. E.R.S.C.’s retention by her mother in


                                          8
the United States was not wrongful under the Convention and the district court

erred in ordering E.R.S.C.’s return to Sweden. Further, E.R.S.C. is not wrongfully

retained by her father in Sweden under the Convention now as she was not

removed from her country of habitual residence to Sweden.

      Because E.R.S.C. had no habitual residence, no further analysis of this

matter under the Convention and its implementing legislation is possible, as the

Convention does not apply to a child who was never wrongfully removed or

retained. See 22 U.S.C. § 9001(a)(4) (finding that the Convention “establishes

legal rights and procedures for the prompt return of children who have been

wrongfully removed or retained”). While we do have the equitable power to undo

the district court’s action by issuing a re-return order, see Chafin v. Chafin, 133 S.

Ct. 1017, 1024 (2013), we decline to do so.2

      “These cases are always heart-wrenching, and there is inevitably one party

who is crushed by the outcome. [The court] cannot alleviate the parties’ emotional

trauma, but at a minimum [the court] can hope to provide them and their children

      2
         “[T]he concept of automatic re-return of a child in response to the overturn
of [a Convention] order pursuant to which [E.R.S.C. went to Sweden] is
unsupported by law or principle, and would . . . be deeply inimical to [E.R.S.C.’s]
best interest.” Id. at 1029 n.2 (Ginsburg, J., concurring) (quoting DL v. EL, [2013]
EWHC 49, ¶ 59(e)). The observation that “the advent of rival custody proceedings
[in California and Sweden] is just what the Convention aimed to stave off” is on
point in this case. Id. at 1029 (Ginsburg, J., concurring).

                                           9
with a prompt resolution so that they can escape legal limbo.” Holder, 392 F.3d at

1023. So it is with this case.

       The district court’s decision is AFFIRMED in relation to A.L.C. and

VACATED in relation to E.R.S.C. The parties shall bear their own costs from

litigation.




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