Child Abduction

• Author: International Law Group

Israeli citizens Arnon and Michal Mozes were living with their four children in Israel until 1997 when Michal decided to move to Los Angeles with her children. Arnon stayed behind in Israel, but he did cover the expenses of the house and cars in Los Angeles. Even though the family had only short-term U. S. visas, the children went to school and quickly learned English. A year after her arrival in the U.S., Michal filed for divorce and custody of the children who then ranged from seven to sixteen years old. A Los Angeles Court granted Michal temporary custody of the children.

Less than a month later, Arnon filed a petition in a California federal court seeking the children's return to Israel pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (T.I.A.S. 11670, 15 I.L.M. 1501). The Hague Convention addresses the unilateral removal or retention of children by parents, guardians or close family members. When a person wrongfully removes a child habitually residing in one signatory state to another signatory state, Article 12 provides for procedures to secure the child's return to its former residence. Under Article 16, the authorities of a signatory state are not to decide custody rights on the merits until they have determined that the child is not returnable under the Hague Convention. The district court denied Arnon's petition, and he appealed. The U.S. Court of Appeals for the Ninth Circuit reverses and remands.

As to what constitutes the "habitual residence" of the children and whether the children were wrongfully removed, the Court turns first to the "intent" element. "[T]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. Of course, one need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one's actions; indeed, one's actions may belie any declaration that no abandonment was intended. ... Whether there is a settled intention to abandon a prior habitual residence is a question of fact as to which we defer to the district court." [Slip op. 20-21]

The question then becomes "whose settled intention" determines whether a child has abandoned a prior habitual residence. In...