Sami Abou-Haidar v. Maria Sanin Vazquez

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2019 Decided December 27, 2019

No. 19-7110

SAMI ABOU-HAIDAR,

APPELLEE

v.

MARIA EUGENIA SANIN VAZQUEZ,

APPELLANT

Consolidated with 19-7141

Appeals from the United States District Court

for the District of Columbia

(No. 1:19-cv-01687)

Joseph J. DiPietro III argued the cause for appellant. With

him on the briefs was Sakeena Farhath.

Stephen J. Cullen argued the cause for appellee. With him

on the brief were Kelly A. Powers and Leah M. Hauser.

Sharon Swingle and Lewis S. Yelin, Attorneys, U.S.

Department of Justice, were on the brief for amicus curiae

United States of America.

Before: MILLETT, PILLARD, and WILKINS, Circuit Judges.

2

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: The 1980 Hague Convention on

the Civil Aspects of International Child Abduction (Hague

Convention or Convention) seeks to “protect children

internationally from the harmful effects of their wrongful

removal or retention and to establish procedures to ensure their

prompt return to the State of their habitual residence.” Hague

Convention, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11,

preamble. The “problem with which the Convention deals . . .

derives all of its legal importance from the possibility of

individuals establishing legal and jurisdictional links which are

more or less artificial” in order to “change the applicable law

and obtain a judicial decision favourable to [them].” Elisa

Pérez-Vera, Explanatory Report ¶ 15 (Pérez-Vera Report). 1 To

combat this problem, the Convention seeks to achieve the

“restoration of the status quo” in international custody

disputes, id. ¶ 16, ensuring that courts of the child’s habitual

residence make the ultimate custody determination. A decision

pursuant to the Convention does not constitute a

“determination on the merits of any custody issue.” Hague

Convention, art. 19. Instead, the “central operating feature” of

the Convention is its petition remedy, through which a party

who claims a breach of custody rights may petition for the

1

Elisa Pérez-Vera was the official Hague Conference reporter, and

the State Department has explained that her report “is recognized by

the Conference as the official history and commentary on the

Convention and is a source of background on the meaning of the

provisions of the Convention available to all States becoming parties

to it.” Dep’t of State, Hague International Child Abduction

Convention; Text and Legal Analysis, 51 Fed. Reg. 10494, 10503

(March 26, 1986). The Supreme Court has reserved the question of

what weight to accord the report, Abbott v. Abbott, 560 U.S. 1, 19

(2010), and we need not resolve that question here.

3

child’s return to the child’s country of habitual residence where

any custody adjudication appropriately would occur. Abbott v.

Abbott, 560 U.S. 1, 9 (2010).

In this case, petitioner Sami Abou-Haidar claims that his

wife, María Eugenia Sanin Vazquez, wrongfully retained their

five-year-old daughter in the United States. The family moved

from France to the United States so that Sanin Vazquez could

fulfill an eighteen-month assignment as a consultant at the

Inter-American Development Bank in Washington, D.C. The

couple planned to live in the United States at least until Sanin

Vazquez’s contract with the Bank expired on December 31,

2019. Within six months of arriving in the United States,

however, the marriage began to deteriorate, prompting Sanin

Vazquez to take a series of actions—including unilaterally

filing for primary physical custody in D.C. Superior Court—

contrary to the couple’s previous, joint understanding of where

they would live together with their child. The district court

concluded that Sanin Vazquez’s actions constituted a retention,

and that the retention was wrongful because it breached Abou-

Haidar’s custody rights under the laws of the child’s habitual

residence, which the court held was France. Because Sanin

Vazquez has not identified any reversible error in the district

court’s factual findings or legal conclusions, we affirm the

district court’s judgment granting Abou-Haidar’s petition for

return.

I.

In October 2013, Sami Abou-Haidar and María Eugenia

Sanin Vazquez married in Paris. Abou-Haidar, a citizen of

France, Italy, and Lebanon, is an emergency doctor who

provides house-call services. Sanin Vazquez, a citizen of Spain

and Uruguay, is a professor of Economics at the University of

Évry Val-d’Essonne, near Paris. The couple had a daughter in

4

Paris in early 2014. Before July 2018, the family lived

primarily in a rented apartment in Paris. The family also spent

several months at a time at a Barcelona apartment they owned,

but there is no serious dispute that France, not Spain, was the

family’s habitual residence before their move to the United

States.

In January 2018, the Inter-American Development Bank

offered Sanin Vazquez a consultancy in Washington, D.C. The

initial contract offer was for an eighteen-month term,

renewable after a six-month period of separation. Because both

Sanin Vazquez and Abou-Haider thought Sanin Vazquez might

accept a renewal but only if it could be done continuously,

Sanin Vazquez renegotiated the Bank offer in early June 2018

to permit renewal, at the Bank’s discretion, for a second

eighteen-month term without a six-month period of separation.

With the renegotiated terms in hand, Sanin Vazquez agreed to

serve as a Bank consultant from July 1, 2018 through

December 31, 2019.

The parties then took several steps to prepare for their

departure from France. Sanin Vazquez requested a

détachement—a temporary assignment or secondment—from

her university for eighteen months, but maintained her

university affiliation, her doctoral students, and her French

pension. Abou-Haidar kept his Paris job but planned to work

for ten to twelve consecutive days each month in France and

spend the balance of the month in Washington. To reduce

costs, the couple rented out their Barcelona apartment for three

years and moved out of their rented Paris apartment, leaving

their furniture and large appliances in a storage unit in the same

building. For the days he would spend in Paris, Abou-Haidar

arranged to live in another, smaller Paris apartment that he

owned, which he otherwise continued to rent out during the

part of each month he spent in Washington.

5

The couple took other steps in preparation for the move to

Washington. Sanin Vazquez obtained G-4 diplomatic visas for

the family valid for five years. As reflected in their text

messages and emails, the couple collaborated on finding a

residence to purchase in Washington, potentially with financial

assistance from Sanin Vazquez’s mother. After making an

unsuccessful bid on a house, they instead decided to rent an

apartment in the Woodley Park neighborhood. Abou-Haidar

took some initial steps toward obtaining a medical license in

Uruguay in anticipation of the family perhaps moving there

after Sanin Vazquez’s Washington consultancy, but he made

no effort to obtain an American medical license.

The couple moved into their rented Washington apartment

on July 1, 2018 (shifting units within the building in March

2019). They enrolled their child in a nearby public Spanish-

English bilingual elementary school. The child is now nearly

six years old, has friends at her school, and participates in

soccer and other extracurricular activities.

By December 2018, however, the couple began to

experience marital discord. As the marriage deteriorated,

Sanin Vazquez unilaterally took action to establish her primary

physical custody over the child. On May 2, 2019, Sanin

Vazquez filed a Complaint for Custody in D.C. Superior Court,

seeking “primary physical custody” and “joint legal custody”

of the child. J.A. 915. Sanin Vazquez did not tell Abou-Haidar

about the filing until five days later when, on May 7, she

notified him of the complaint and of her desire for a marital

separation. Immediately thereafter, Abou-Haidar received

service of the Superior Court complaint. On May 10, Sanin

Vazquez told Abou-Haidar that she planned to stay in

Washington, D.C. with their daughter after December 31

instead of returning to France. Finally, on May 31, Sanin

Vazquez’s family law attorney wrote to Abou-Haidar that their

6

Washington apartment had “never been the marital residence”

and that Sanin Vazquez had “changed the locks on her

apartment.” J.A. 1296.

Abou-Haidar responded to these developments with

several actions of his own. First, on May 23, 2019, Abou-

Haidar filed an answer and counterclaim in D.C. Superior

Court, seeking “joint physical and legal custody” of their

daughter. J.A. 81-85. Then, changing course on June 6, Abou-

Haidar withdrew his Superior Court answer and counterclaim

and instead sought assistance from the French Central

Authority, the entity designated by France under the Hague

Convention to collaborate across international borders to

process applications arising under the Convention. See Hague

Convention, arts. 6-8. On June 10, before hearing back from

the French Central Authority, Abou-Haidar also filed a Hague

Convention petition in the U.S. District Court in Washington

for return of their daughter to France. As urged by the

Convention, the district court scheduled the case for prompt

disposition. See Hague Convention, art. 11 (encouraging

courts to rule on petitions within six weeks). Following that

filing, the D.C. Superior Court stayed any determination of the

custody aspects of Sanin Vazquez’s complaint pending

resolution of this case. About two weeks later, the French

Central Authority dismissed Abou-Haidar’s application in a

one-page letter, stating that the “presence of your daughter in

the United States is not unlawful since it was decided by the

parental couple which holds the parental authority.” J.A. 1015.

The district court held an evidentiary hearing on August 1-

2, 2019. In a brief August 21 order, which the court specified

would be followed by a more detailed opinion, the court

concluded that Abou-Haidar had “proven by a preponderance

of the evidence that the mother, Respondent María Eugenia

Sanin Vazquez, has wrongfully retained [the child] within the

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meaning of the Convention.” J.A. 150. Specifically, the court

held that Sanin Vazquez had retained the child on May 7, 2019

when she served Abou-Haidar with her Superior Court

complaint, or at the latest on May 23, 2019, when Abou-Haidar

filed his Superior Court answer and counterclaim seeking to

maintain joint custody. J.A. 152 & n.1. The court further held

that the child’s habitual residence was France because, “based

on the full record,” the “parties did not leave France in a

manner that would suggest a shared intent to relocate

indefinitely to the United States,” and evidence of the child’s

acclimatization to the United States did not supplant that intent.

J.A. 153-54. Finally, the court held that the retention was

wrongful because Sanin Vazquez did not dispute that the

retention violated the French custodial rights that Abou-Haidar

was exercising at the time of the retention. J.A. 154.

The district court ordered the parties to confer and agree

on a date for the child’s return to France. On October 9, 2019,

the district court issued its Findings of Fact and Conclusions of

Law. J.A. 161-82. Because the parties had not settled on a

return date, the district court at that time also ordered the

child’s return to France by December 31, 2019. J.A. 183.

Sanin Vazquez timely appealed both the district court’s

August 21 and October 9 orders, and the appeals were

consolidated. She also sought and received expedited

consideration from this court so that the district court’s

decision could be reviewed prior to the expiration of her first

Bank contract on December 31. On December 4, we invited

the United States to offer its views on the legal questions in this

case. 2 We heard argument on December 5 and now affirm the

district court’s judgment.

2

We thank the government for promptly submitting an invited

amicus brief on short notice.

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II.

A.

The Hague Convention, adopted in 1980, seeks to “secure

the prompt return of children wrongfully removed to or

retained in any Contracting State” and to “ensure that rights of

custody and of access under the law of one Contracting State

are effectively respected in the other Contracting States.”

Hague Convention, art. 1. The Convention is “especially

aimed at the unilateral removal or retention of children by those

close to them, such as parents, guardians, or family members.”

Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir. 2005) (citing Paul

R. Beaumont & Peter E. McEleavy, The Hague Convention on

International Child Abduction 1-3 (1999)). Decisions under

the Convention do not resolve the underlying custody

disagreement. See Hague Convention, art. 19. Rather, the

courts of the Contracting States apply the Convention to

determine the lawful forum to decide international custody

disputes. The Convention directs that they do so by reference

to the status quo preceding the unilateral actions that gave rise

to the dispute. Id., art. 3.

More specifically, the Convention creates two routes by

which a parent may act to ensure that the courts of the state that

was the child’s habitual residence make the ultimate custody

determination. 3 First, the Convention requires each

Contracting State to set up a “Central Authority.” Id., art. 6.

Those entities are required to “co-operate with each other and

3

We use “parent” as a shorthand here and throughout because

parents are the typical parties on both sides. But our shorthand

should not obscure that the Convention covers all situations where

anyone wrongfully removes or retains a child in “breach of rights of

custody attributed to a person, an institution or any other body, either

jointly or alone.” Hague Convention, art. 3(a).

9

promote co-operation amongst the competent authorities in

their respective States to secure the prompt return of children.”

Id., art 7. A person seeking relief under the Convention may

file an application with a Central Authority, which may, among

other functions, help to “discover the whereabouts of a child,”

“bring about an amicable resolution of the issues,” and arrange

for the child’s “safe return.” Id. Applications may be refused

“[w]hen it is manifest that the requirements of this Convention

are not fulfilled or that the application is otherwise not well

founded.” Id., art. 27.

Second, and relevant here, the Convention also authorizes

individuals to petition the judicial or administrative authorities

where the child currently is located for return of the child to her

place of habitual residence. Id., art. 12. An order requiring

return is appropriate only where the petitioning parent can

demonstrate that the child has been “wrongfully” removed or

retained. Despite its charged valence, “wrongful” removal or

retention is a term of art defined in the Convention that need

not involve what is usually thought of as “abduction.” The

“retention of a child is to be considered wrongful” where, as

applicable here, “it is in breach of rights of custody attributed

to a person . . . under the law of the State in which the child

was habitually resident immediately before” the retention. Id.,

art. 3. The Convention further defines “rights of custody” to

encompass “rights relating to the care of the person of the child

and, in particular, the right to determine the child’s place of

residence.” Id., art. 5(a). Finally, Article 12 of the Convention

provides the return remedy to address situations of wrongful

removal or retention, stating that where “a child has been

wrongfully removed or retained in terms of Article 3” and a

petition has been filed within a year of the removal or retention,

the “authority concerned shall order the return of the child

forthwith.” Id., art. 12; see generally Chafin v. Chafin, 568

U.S. 165, 168-69 (2013).

10

Later sections of the Convention provide for exceptions to

this remedy of return “forthwith.” Hague Convention, art. 12.

As the Supreme Court has summarized, “Return is not required

if the parent seeking it was not exercising custody rights at the

time of removal or had consented to removal, if there is a ‘grave

risk’ that return will result in harm, if the child is mature and

objects to return, or if return would conflict with fundamental

principles of freedom and human rights in the state from which

return is requested.” Chafin, 568 U.S. at 169 (citing Hague

Convention, arts. 13, 20); see also Lozano v. Montoya Alvarez,

572 U.S. 1, 5 (2014). None of those exceptions is raised in this

case.

Both the United States and France are Contracting States

to the Hague Convention. Each has set up a Central Authority,

as required, to receive Hague Convention applications. After

ratifying the Convention in 1988, the United States

implemented its provisions through the International Child

Abduction Remedies Act (ICARA), 102 Stat. 437, 22 U.S.C.

§ 9001 et seq. Consistent with the Convention, Congress

declared in ICARA that 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,” id. § 9001(b)(4), and insisted that

“[p]ersons should not be permitted to obtain custody of

children by virtue of their wrongful removal or retention,” id.

§ 9001(a)(2). In addition, Congress specified how Hague

petitions may be filed in the United States, giving state and

federal courts concurrent jurisdiction to hear such claims, id.

§ 9003(a), and requiring that courts “decide the case in

accordance with the Convention,” id. § 9003(d). Congress also

specified that the burden is on the petitioner to “establish by a

preponderance of the evidence” that the child “has been

wrongfully removed or retained within the meaning of the

Convention.” Id. § 9003(e)(1)(A). Finally, Congress provided

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that, where that burden is met, the child is to be “promptly

returned unless one of the narrow exceptions set forth in the

Convention applies.” 22 U.S.C. § 9001(a)(4).

B.

This is the first case arising under the Hague Convention

that has reached our court. In interpreting the Convention’s

and ICARA’s various requirements, other circuits often distill

analysis of whether a petition for return should be granted into

a four-part inquiry, which the parties from the outset have

expressly embraced and continue on appeal to agree is

applicable:

(1) When did the removal or retention at issue take

place?

(2) Immediately prior to the removal or retention, in

which state was the child habitually resident?

(3) Did the removal or retention breach the rights of

custody attributed to the petitioner under the law of

the habitual residence?

(4) Was the petitioner exercising those rights at the

time of the removal or retention?

Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001); see also,

e.g., Monzon v. De La Roca, 910 F.3d 92, 100 (3d Cir. 2018);

Redmond v. Redmond, 724 F.3d 729, 737-38 (7th Cir. 2013);

Barzilay v. Barzilay, 600 F.3d 912, 917 (8th Cir. 2010); see

also U.S. Amicus Br. 25.

The district court in this case granted Abou-Haidar’s

petition for return. The court concluded that Sanin Vazquez

retained the child when she informed her husband of her

12

Superior Court complaint on May 7, 2019, or at the latest when

Abou-Haidar filed his answer and counterclaim in D.C.

Superior Court on May 23, 2019. J.A. 172. The court also

found that the child’s habitual residence was France. J.A. 179.

On appeal, Sanin Vazquez challenges the district court’s

findings only with respect to the first two questions. Regarding

the first question, Sanin Vazquez takes issue with the district

court’s retention-date determination. Regarding the second

question, Sanin Vazquez and Abou-Haidar agree on the legal

standard that should apply—despite some international and

circuit-court conflict on the matter. Sanin Vazquez argues only

that the parties intended to abandon France when they moved

to Washington, D.C.

As for the third question, Sanin Vazquez belatedly

attempts to argue that she does “not agree that [Abou-Haidar’s]

custodial rights under French law were or would be violated by

any of her actions or statements.” Reply Br. 9-10. But she

forfeited that argument by not disputing in the district court

“whether, if [the child was] wrongfully retained, Petitioner’s

custody rights under French law would be violated,” J.A. 171.

Indeed, Sanin Vazquez’s counsel affirmed to the district court

that Abou-Haidar had custody rights and that Sanin Vazquez

was raising arguments only under the first two questions, J.A.

650-51. In any case, the unrefuted Affidavit of French Law

Abou-Haidar submitted to the district court independently

supports the conclusion that an order granting Sanin Vazquez’s

Superior Court complaint unilaterally seeking “primary

physical custody” would diminish Abou-Haidar’s custodial

rights under French law. That Affidavit explains that, “[u]nder

French law, both parents have joint rights of custody,” and that

the “breakdown of a marriage or a relationship has no impact

over the rules governing the exercise of parental authority.”

J.A. 89-92; see also J.A. 102 (reproducing relevant sections of

the French Civil Code); Hague Convention, art. 5(a) (defining

13

“rights of custody” broadly to “include rights relating to the

care of the person of the child and, in particular, the right to

determine the child’s place of residence”). And, with respect

to the fourth question, the district court found that the parties

do not contest whether the “Petitioner was exercising his

custody rights at the time of wrongful retention.” J.A. 171.

Our analysis therefore addresses only the first two questions,

concluding that the district court did not err in finding that

Sanin Vazquez retained the child in May 2019 and that the

child’s habitual residence was France.

III.

Sanin Vazquez’s primary contention is that the petition

must be dismissed because the district court’s retention date of

May 7, 2019, precedes December 31, 2019, the date through

which the parties agreed the child would remain in the United

States. Sanin Vazquez views this concern as jurisdictional,

arguing that the dispute “is not ripe until January 1, 2020

passes.” Sanin Vazquez Br. 34. In her view, recognizing a

retention date prior to December 31, 2019, would constitute an

“anticipatory retention”—a type of claim that, she asserts,

American courts have never previously recognized. Id. at 26-

27.

We do not embrace Sanin Vazquez’s effort to label her

argument in jurisdictional terms; at bottom, her argument is

simply about whether a retention occurred, and thus goes to the

merits of Abou-Haidar’s Hague Convention petition. In any

event, we do not believe that the district court reached out to

decide an unripe issue when it identified a retention of the child

as of May 7, 2019—or, at the latest, May 23, 2019—because

this case involves an actual, rather than anticipatory, retention.

See U.S. Amicus Br. 25-29 (agreeing that this case involves an

actual retention). No court has held that either of these

14

retention dates would be premature. The circuits identify the

date of retention as “the date consent was revoked” or when the

“petitioning parent learned the true nature of the situation.”

Palencia v. Perez, 921 F.3d 1333, 1342 (11th Cir. 2019). For

example, the Second Circuit has held that the date of retention

is the date when the retaining parent advised the other that “she

would not be returning with the [c]hildren” as originally

planned. Marks ex rel. S.M. v. Hochhauser, 876 F.3d 416, 422

(2d Cir. 2017). Similarly, the Third Circuit identifies the

retention date as the “date beyond which the noncustodial

parent no longer consents to the child’s continued habitation

with the custodial parent and instead seeks to reassert custody

rights, as clearly and unequivocally communicated through

words, actions, or some combination thereof.” Blackledge v.

Blackledge, 866 F.3d 169, 179 (3d Cir. 2017). These cases also

find support in the official commentary of the Convention. See

Pérez-Vera Report ¶ 108 (stating that the date of retention is

when a “holder of the right of custody refused to agree to an

extension of the child’s stay in a place other than that of its

habitual residence”).

The circuits also agree that the parental actions that serve

to identify such date need not be particularly formal. The

withdrawal of consent to existing custody arrangements may

be communicated through an in-person conversation, Darin v.

Olivero-Huffman, 746 F.3d 1, 10 (1st Cir. 2014), or an email,

Marks, 876 F.3d at 417-18, or a phone call, Palencia, 921 F.3d

at 1337. More formal actions would also certainly qualify,

including unilaterally filing for custody, Mozes, 239 F.3d at

1070, or filing a petition under the Hague Convention for the

child’s return, Blackledge, 866 F.3d at 179.

Guided by these analyses, the district court correctly found

that Sanin Vazquez retained the child at the earliest on May 7,

2019, when she informed Abou-Haidar of her Superior Court

15

filing seeking “primary physical custody,” J.A. 915, or at the

latest by May 23, 2019, when Abou-Haidar filed his answer

and counterclaim making clear that he opposed the proposed

change to his custody rights, J.A. 152 n.1, 172-73. If there were

any doubt as to the precise date, other events further support

the district court’s conclusion that, by the end of May 2019,

both parents understood they disputed the exercise of custody

over the child: Sanin Vazquez informed Abou-Haidar on May

10 that she did not intend to return the child to France at the

end of the year, J.A. 170; Sanin Vazquez’s counsel wrote a

letter to Abou-Haidar on May 31 reiterating that Abou-Haidar

was not welcome in the Washington apartment where the child

was living with her mother, J.A. 1296; and, on June 10, Abou-

Haidar filed his petition for the child’s return to France, J.A.

10-32. Given the temporal concentration of these events and

the lack of any material effect on the analysis of choosing one

date over another, we need not isolate one definitive act of

retention. Under any circuit’s existing law on the point, one or

more of these actions suffices to identify a retention. See

generally Redmond, 724 F.3d at 739 n.5 (noting that an

‘“abduction’ might have occurred on one of several dates; the

question is always whether there was any date on which a

wrongful removal or retention occurred”).

These facts also distinguish the case before us from the

case on which Sanin Vazquez principally relies, Toren v.

Toren, 191 F.3d 23 (1st Cir. 1999). The terms of the Toren

parents’ divorce called for the children to live with their mother

in the United States for a few years, with visitation by the

father, and provided that, by July 21, 2000, the children would

return to Israel where their father lived and attend school there.

See id. at 25. The mother filed a family-court action in

Massachusetts in 1997 to alter the terms of the father’s

visitation, and the father responded by filing a Hague petition

asserting wrongful retention. See id. at 27. The court held that

16

the petitioner had “failed to allege facts sufficient to set forth a

claim that the Toren children have been removed or retained

within the meaning of the Hague Convention” because the

mother had nowhere suggested that she would not return the

children to Israel in 2000 as agreed. Id. at 27-29. The father

pointed only to vague future “intention[s]” on the part of the

mother to retain the children. Id. at 27. Here, in contrast, a

series of decisions and corresponding actions already taken by

both parties clearly conveys a ripe disagreement about where

the child’s custody will lie. As Abou-Haidar observes, the First

Circuit’s dismissal in Toren is therefore consistent with the

basic principle that, in order to be ripe, a challenge to an

“anticipatory retention requires a clear communication that the

retaining parent is not returning the child home.” Abou-Haidar

Br. 32.

The thrust of Sanin Vazquez’s argument is not that the

district court misapplied these tests in identifying the date of

retention, but that no retention is possible before the date

through which the parties initially agreed that the child would

reside in the United States. There is some intuitive logic to the

notion that, when the parents agreed that the child would

remain in a certain place until a specified date, no retention

occurs before that date as long as the child remains there. The

fundamental flaw with this theory is that Sanin Vazquez’s

unilateral actions to assert custody amounted to a declaration

that she then rejected and sought to depart from the previous

mutual arrangement. Courts routinely apply the same analysis

to determine whether a retention occurred even when the

actions evidencing retention precede the anticipated end date

of the parents’ prior agreement. See, e.g., Blackledge, 866

F.3d at 178-79; Darin, 746 F.3d at 10-11. Indeed, in the

leading case of Mozes itself, the court held that the mother

“retained” the children in the United States during a period

when the parents had agreed the children would live with her

17

here and before the date they had set for the family to reunite

at home in Israel. See Mozes, 239 F.3d at 1069-70 & n.5.

Summarizing the case law on retention in such circumstances,

Palencia aptly observed that “[i]n each of these cases,” just as

in this one, the “petitioning and non-custodial parent initially

assented to the child’s removal from the country of habitual

residence.” 921 F.3d at 1342. Once the parties have made clear

that they no longer agree where the child should reside—and

especially when, as here, an effort has been made to change the

custodial status quo—their prior agreement is no longer

adequate to protect custodial forum rights.

Recognizing these authorities, Sanin Vazquez’s reply brief

pivots to a second variant of her unripeness theory. She

acknowledges that courts “may properly find that the date on

which a retention becomes wrongful [in a given jurisdiction]

can be prior to the date that both parties agreed a child can

reside in [that] jurisdiction.” Reply Br. 3. Instead, she objects

that Abou-Haidar filed his petition immediately after the

retention, rather than waiting for the agreed-upon period for the

family’s stay in Washington to elapse. In her view, the petition

here is unusual because, “[i]n all of the cases cited by Dr.

Abou-Haidar, the [Hague Convention petition] was filed and/or

the evidentiary hearing took place after the date that neither

party disputed the child could remain in the U.S., not months

prior to that date.” Id.; see also Sanin Vazquez Br. 40 (“[N]one

of the authority relied on by Dr. Abou-Haidar in the District

Court contained factual scenarios which include petitions for

return filed in respective district courts prior to the date of

agreed-upon return.”).

We cannot credit that contention. As a descriptive matter,

it is simply incorrect. In at least two of the cases that Abou-

Haidar cites, the petition was filed before the end of an agreed-

upon sojourn. See Mozes, 239 F.3d at 1069; Blackledge, 866

18

F.3d at 175. And while the limits of anticipatory retention

claims may be difficult to pin down in the abstract, we have no

trouble concluding that this case involves an actual, not

anticipatory, retention. At this point, the only practical

consequence of Sanin Vazquez’s revised contention is that

Abou-Haidar would have to refile his petition in a few days,

after December 31, 2019, when Sanin Vazquez’s initial

contract with the Bank expires. Given the live dispute that

already exists between the parties and the Convention’s

command of prompt decisionmaking, delaying and duplicating

proceedings in this manner would serve no tangible benefit.

Whatever the precise contours of anticipatory retention, here

we are not resolving a hypothetical controversy.

IV.

Having resolved the heart of Sanin Vazquez’s claim, we

now turn to her abbreviated challenge to the district court’s

conclusion of the second question. This question asks:

“Immediately prior to the removal or retention, in which state

was the child habitually resident?” Mozes, 239 F.3d at 1070.

Here the district court concluded, based on detailed factfinding,

that France is the child’s habitual residence. Sanin Vazquez

contends on appeal that the “factual findings made by the

District Court, when applied to the law of and interpreting the

Convention, could not possibly yield a ruling that habitual

residence was still France.” Sanin Vazquez Br. 45.

A preliminary question is what framework we should

apply to determine the child’s habitual residence. All the

circuits to have addressed the question agree that two important

considerations are: (1) the parents’ shared intent for where the

child should reside, and (2) the child’s acclimatization to a

particular place. See, e.g., Redmond, 724 F.3d at 746 (“In

substance, all circuits—ours included—consider both parental

19

intent and the child’s acclimatization.”). To the extent the

circuits’ approaches diverge, they “differ[] only in their

emphasis.” Id. Under the prevailing approach, again

represented by Mozes, the primary focus is on the parent’s

shared intent. 239 F.3d at 1078-79. After ascertaining shared

intent, the court also considers acclimatization, but a child’s

acclimatization to a new place of residence overcomes contrary

parental intent only where the court “can say with confidence

that the child’s relative attachments to the two countries have

changed 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.’” Id. at 1081 (quoting Pérez-Vera Report ¶ 11).

The Sixth Circuit, and to some extent the Third Circuit, place

primary emphasis on the child’s acclimatization, treating

shared parental intent as a “back-up inquiry for children too

young or too disabled to become acclimatized.” Taglieri v.

Monasky, 907 F.3d 404, 407 (6th Cir. 2018) (en banc), cert.

granted, 139 S. Ct. 2691 (June 10, 2019) (No. 18-935); see also

Ahmed v. Ahmed, 867 F.3d 682, 688 (6th Cir. 2017); Whiting

v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004); Feder v. Evans-

Feder, 63 F.3d 217, 224 (3d Cir. 1995).

These differing emphases affect the framing of the

standard of review on appeal. Under Mozes, the habitual-

residence determination is a “mixed question of law and fact.”

239 F.3d at 1073. The factual ingredients of the inquiry, i.e.,

those “founded on the application of the fact-finding tribunal’s

experience with the mainsprings of human conduct,” are

reviewed for clear error, while legal aspects of the question,

i.e., those that require “judgment about the values that animate

legal principles,” are reviewed de novo. Id. (internal quotation

marks and citations omitted). The Sixth Circuit does not

identify any legal overlay subject to de novo review, so treats

20

the habitual-residence determination as purely a “question of

fact subject to clear-error review.” Monasky, 907 F.3d at 409.

We have no occasion to decide as a legal matter which of

these frameworks is correct because the parties agreed both

here and in the district court to application of the Mozes

framework. See Resp’t’s Proposed Findings of Fact and

Conclusions of Law 16-17 (J.A. 126-27); Pet’r’s Proposed

Findings of Fact and Conclusions of Law 12 (J.A. 141); Sanin

Vazquez Br. 43-45; Abou-Haidar Br. 33. In its amicus brief,

the government urges us instead to adopt a new standard, in

which “a child’s habitual residence under the Convention is a

factual inquiry that must take into account all relevant

circumstances in each case bearing on the ultimate question of

where the child usually or customarily lives.” U.S. Amicus Br.

13. Under that relatively unguided, totality-of-the-

circumstances approach, “both parental intent and

acclimatization can be relevant,” but “ultimately any

determination of a child’s habitual residence must ‘remain[]

essentially fact-bound, practical, and unencumbered with rigid

rules, formulas, or presumptions.’” Id. at 20-21 (quoting

Redmond, 724 F.3d at 746). Again, given both parents’

advocacy of the Mozes framework, and the importance of

settling Convention disputes expeditiously, we see no basis to

adopt a new standard different from the one the parties

requested and briefed here and in the district court. In any

event, neither party has identified any relevant facts not

considered by the district court. 4

4

The Supreme Court will soon clarify the appropriate standard for

habitual-residence determinations. See Monasky v. Taglieri, No. 18-

935 (argued Dec. 11, 2019). The United States there advanced the

same standard it puts forth here. Even were we to proceed to apply

the government’s preferred standard, given the particular facts of this

21

In line with the Mozes framework, we first examine the

district court’s findings regarding the parents’ shared intent,

and then its findings regarding the child’s acclimatization.

A.

The district court found, and Sanin Vazquez concedes, that

France was the family’s habitual residence before they came to

Washington, D.C. See J.A. 178; Sanin Vazquez Br. 45

(denying that the family’s habitual residence was “still France”

after the move). Under Mozes, a determination that shared

parental intent has changed requires a finding that the parties

had a “settled purpose” to establish a new habitual residence.

239 F.3d at 1074. Courts look at a variety of factors to

determine whether the parents had a shared intent to change the

child’s habitual residence, including “parental employment in

the new country of residence; the purchase of a home in the

new country and the sale of a home in the former country;

marital stability; the retention of close ties to the former

country; the storage and shipment of family possessions; the

citizenship status of the parents and children; and the stability

of the home environment in the new country of residence.”

case, the outcome would not be different. The circuit precedent to

which the government points as exemplifying its approach

recognizes that shared parental intent “may be a very important fact

in some cases,” notably in cases, like this one, where “both parents

have the right to fix the child’s place of residence.” Redmond, 724

F.3d at 744, 746-47. Moreover, the district court also considered the

child’s degree of acclimatization, and ultimately based its decision

on a variety of facts, see J.A. 181-82, including those the United

States identifies as relevant to the habitual residence inquiry, see U.S.

Amicus Br. 21. We therefore do not see the district court as running

afoul of Redmond’s caution that shared parental intent should not be

taken as a “rigid” or “uniformly applicable ‘test’ for determining

habitual residence.” 724 F.3d at 744.

22

Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009). Courts

have held parents cannot establish a new habitual residence

without forsaking their existing one. A “person cannot acquire

a new habitual residence without ‘forming a settled intention to

abandon the one left behind.’” Darin, 746 F.3d at 11 (quoting

Mozes, 239 F.3d at 1075).

Crucially, Mozes tells us that “[w]hether 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.” 239 F.3d at

1075-76. Here, the district court canvassed all of the record

evidence and found that the parties intended to remain in

Washington, D.C. for the eighteen months of Sanin Vazquez’s

initial contract, but that any plans to stay beyond that period

were “aspirational and contingent.” J.A. 178. Looking at a

variety of factors, the court concluded that the “parties did not

leave France in a manner that would suggest a shared intent to

relocate indefinitely to the United States.” J.A. 153; see also

J.A. 179. The district court’s detailed, record-based factual

findings fully support that determination. The court found that

the couple kept their French jobs and stored their personal

belongings in France, Sanin Vazquez maintained her French

pension, and the couple did not have any going-away party or

other social event such as one might expect had they intended

a permanent departure from France. J.A. 179. Moreover, the

couple and their daughter—all of whom were EU citizens with

rights to remain in France indefinitely—had no prior

connection to the United States, obtained only temporary visas

to live here, and rented rather than bought property in

Washington, D.C. J.A. 179-80 & n.4. Finally, Abou-Haidar

continued to spend nearly half of each month living and

working in France and made no effort or plans to obtain an

American medical license. J.A. 179.

23

On appeal, Sanin Vazquez has not articulated why any of

these factual findings is clearly erroneous. She highlights

several other facts relevant to an intent to shift the family’s

habitual residence to the United States, including the parties’

initial attempt to buy a home in Washington, the fact that they

rented out their Barcelona apartment for a three-year term, and

a series of text messages from Abou-Haidar referring to the

possibility of a stay of up to three years in the United States.

J.A. 55, 64-68, 248-49, 278, 282, 320. But the district court

took those facts into account. It determined that the parties

considered buying a home in Washington primarily as an

investment, see J.A. 179 n.4, and reasonably rejected Sanin

Vazquez’s contention that her renegotiated Bank contract

would automatically renew after 18 months to create a default

three-year stay in Washington, see J.A. 167. Sanin Vazquez

also claims that the district court erred in crediting Abou-

Haidar’s testimony and the corroborating testimony of his

friends, rather than the testimony of her friends and family, as

to the parties’ stated intentions upon departure from France.

Sanin Vazquez Br. 45-46. But our review is at its most

deferential when it comes to reexamining the district court’s

credibility determinations. See, e.g., Maxwell, 588 F.3d at 253.

To the extent that Sanin Vazquez suggests that the district

court made a mistake of law, her primary argument is that the

district court “erroneously imposed a requirement that the

parties supplant the former habitual residence of Paris with

Washington, D.C., in order to effectively abandon Paris.”

Sanin Vazquez Br. 44. Sanin Vazquez herself does not take a

consistent position in her briefing as to whether she believes

the family has simply abandoned France, id. at 43, abandoned

France in favor of habitual residence in the United States, id. at

45, or abandoned France en route to establishing habitual

residence in Uruguay, id. at 44. Mozes recognizes a conceptual

difference between abandoning a habitual residence and

24

establishing a new one: a person can abandon a habitual

residence “in a single day if he or she leaves it with a settled

intention not to return to it,” but an “appreciable period of time

and a settled intention will be necessary to enable him or her to

become” habitually resident in a new country. Mozes, 239 F.3d

at 1074-75 (internal quotation marks and citation omitted). The

district court explicitly acknowledged this conceptual

difference, and held only that the parents did not have a settled

intention to abandon France, regardless of their intentions with

respect to Washington, D.C. J.A. 154 n.3. The district court’s

factual finding of the absence of settled intention to abandon

France suffices to support its habitual-residence holding. We

see no legal error in its analysis of the point. 5

B.

The second inquiry, subsidiary under the parties’

stipulated Mozes framework, is the child’s acclimatization to

the new country. “Evidence of acclimatization is not enough

to establish a child’s habitual residence in a new country when

contrary parental intent exists.” Darin, 746 F.3d at 12 (citing

Mozes, 239 F.3d at 1078-79). Mozes further counsels that

courts should “be slow to infer from [a child’s contacts] that an

earlier habitual residence has been abandoned” in the absence

5

Sanin Vazquez also mentions the French Central Authority’s

rejection of Abou-Haidar’s request for its assistance. See Sanin

Vazquez Br. 12-13. We agree with the United States that no

deference to that action is due because the Convention assigns the

legal and factual determinations relevant to a claim of wrongful

retention (or removal) to the courts of the Contracting States, not to

the Central Authorities. See Special Commission on the Practical

Operation of the 1980 and 1996 Hague Conventions, Conclusions

and Recommendations 2 (¶ 13) (June 1-10, 2011),

https://assets.hcch.net/upload/wop/concl28sc6_e.pdf; U.S. Amicus

Br. 29-33.

25

of shared parental intent to do so. 239 F.3d at 1079. Courts

view a variety of factors as relevant to acclimatization,

including “school enrollment, participation in social activities,

the length of stay in the relative countries, and the child’s age.”

Maxwell, 588 F.3d at 254.

Here, Sanin Vazquez has not identified any error in the

district court’s findings regarding the child’s acclimatization.

The district court recognized that the child had adjusted to a

new school, made friends, and participated in extracurricular

activities in the ten months she spent in the United States prior

to the retention in May 2019. J.A. 182. But, until the sojourn

in Washington, the child’s life was based almost entirely in

Paris: her parents married there, she was born there, and she

attended nursery school there.

Sanin Vazquez has not argued that the district court

committed any legal error in applying the Mozes framework to

its findings relating to the parents’ shared intentions and the

child’s acclimatization. She does not urge us to adopt any other

court’s approach (nor the approach the government describes).

And she does not argue that any of the district court’s factual

findings, including its findings supporting its shared parental

intent determination, were clearly erroneous. In these

circumstances, the district court reasonably determined that

“[e]vidence of acclimatization over such a short period of time

for such a young child is not enough to overcome the parties’

lack of intent to abandon France,” or any of the other factual

indicia showing that France was their daughter’s habitual

residence. J.A. 182.

* * *

We conclude that Sanin Vazquez’s arguments regarding

the date of retention and the child’s habitual residence lack

merit. Because the parties chose the Mozes framework, and

26

Sanin Vazquez has not challenged the district court’s findings

under the remaining questions or asserted any defenses, we

affirm the district court’s judgment granting Abou-Haidar’s

petition for return.

So ordered.