# Edward M. Feder v. Melissa Ann Evans-Feder

> Court of Appeals for the Third Circuit · August 24, 1995 · 63 F.3d 217

URL: https://www.frixlaw.com/law-library/cases/9488427

## Case

- **Full name:** Edward M. FEDER, Appellant, v. Melissa Ann EVANS-FEDER
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 24, 1995
- **Citations:** 63 F.3d 217
- **Precedential status:** Published
- **Opinion:** Dissent by Sarokin
- **Judges:** Mansmann, Greenberg, Sarokin
- **Cited by:** 238 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488427

## How later opinions describe it (automated extraction)

- stating that, “Mr. and Mrs. Feder ... both agreed to move to [Australia] ... and did what parents intent on making a new home for themselves and their child do — they purchased and renovated a house, pursued interests and employment, and arranged for Evan’s immediate and long-…
- concluding that Australia was child’s habitual residence in a situation in which, among other things, the parents put their house in United States on the market and sold various personal items in preparation for moving to Australia, purchased home in Australia, pursued employm…
- finding that Australia was a four-year-old child's habitual residence because for six 19 months he “attended preschool and was enrolled in kindergarten for the upcoming year, 20 participating in one of the most central activities in a child's life”
- finding habitual residence was Australia, where parents had planned for their son to live, where he stayed for six months, where he attended pre school during that time, and where he was enrolled to attend kindergarten for the following year
- explaining that a deter- mination of habitual residence “must focus on the child and con- sists of an analysis of the child’s circumstances in that place and the parents’ present, shared intentions” (emphases added)

## Opinion text

SAROKIN, Circuit Judge,
dissenting.
I respectfully dissent, not necessarily because I disagree with the majority’s analysis of the facts, but rather with the standard by which these facts are reviewed. The issue presented to the district court was the determination of a four year-old boy’s “habitual residence,” either JenMntown, Pennsylvania, where he has lived almost his entire life and where his mother now resides, or Sydney, Australia, where he stayed for five months in 1994 and his father now resides. Resolution of this issue determines where the child shall reside pending conclusion of his parents’ custody dispute.
The district court held an evidentiary hearing and ruled that the boy was habitually resident in JenMntown. The majority subjects tWs determination to plenary review and vacates the order of the district court, wMch likely will result in an order that the child be sent to Sydney where his father lives. Although the majority’s opinion does not and is not meant to resolve the ultimate issue of custody, it has immediate impact on the child’s place of residence, and ultimately and realistically it will impact upon the final custody determination. Where a child resides and develops ties awaiting a final decision on custody invariably affects that decision. Therefore, we should disturb the existing relationship and a finding of habitual residency, even on a temporary basis, with great hesitancy and only when the facts and law clearly mandate it.
In my view the issue of habitual residence is essentially a factual one, and the findings of the district court should not be disturbed unless they are clearly erroneous. Because I respectfully believe that the majority has established an incorrect standard of review, and because I would affirm the district court’s finding as supported by the evidence and not clearly erroneous, I dissent,
I.
The U.S. Senate ratified the 1980 Hague Convention on Civil Aspects of International Child Abduction (“the Convention”) and enacted supplementary implementing legislation, the International Child Abduction Remedies Act of 1988, 42 U.S.C.A. § 11601 et seq. (West 1995) (“ICARA” or “the Act”), only recently, and thus reported cases pursuant to the Convention are relatively scarce. Although three appellate decisions have reviewed ICARA petitions disposed of after an evidentiary hearing, none has enunciated an explicit standard of review. See Prevot v. Prevot (In re Prevot), 59 F.3d 556 (6th Cir.1995); Rydder v. Rydder, 49 F.3d 369 (8th Cir.1995); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir.1993). Hence, ours is the first court of appeals in the nation to analyze the appropriate standard of review for determinations of “habitual residence,” and we must tread carefully because of its immediate effect upon the residency of the child involved.
In a footnote, the majority announces that because the determination of habitual residence is a mixed question of fact and law, historical or narrative facts will be reviewed for clear error, and the “choice and interpretation of legal precepts and its application of those precepts to the facts” will be subjected to plenary review. Maj. Op. at 222, n. 9. This is certainly the proper standard for mixed questions of law and fact, but I cannot agree that “habitual residence” presents such a question.
Preliminarily, I remark that federal and state courts 1 have struggled over this precise issue, with some maMng findings of fact and others conclusions of law regarding a child’s habitual residence. Compare Wanninger v. Wanninger, 850 F.Supp. 78, 81 (D.Mass.1994) (“the court finds that the chil *228 dren were ‘habitually resident’ in Germany”); Meredith v. Meredith, 759 F.Supp. 1432, 1436 (D.Ariz.1991) (habitual residence is finding of fact); David B. v. Helen O., 164 Misc.2d 566 , 625 N.Y.S.2d 436, 438 (“the court’s finding with respect to the habitual residence issue is dispositive”) & 441 n. 3 (Fam.Ct.1995); Roszkowski v. Roszkowska, 644 A.2d 1150, 1157 , 274 N.J.Super. 620, 634 (Ch.Div.1993); Cohen v. Cohen, 158 Misc.2d 1018, 1024 , 602 N.Y.S.2d 994, 998 (Sup.Ct.1993) (habitual residence is “factual determination”); with Prevot v. Prevot (In re Prevot), 855 F.Supp. 915, 920 (W.D.Tenn.1994) (habitual residence is conclusion of law), rev’d on other grounds, 59 F.3d 556 (6th Cir.1995); In re Ponath, 829 F.Supp. 363, 367 (D.Utah 1993); Slagenweit v. Slagenweit, 841 F.Supp. 264, 269 (N.D.Iowa 1993), appeal dismissed without op., 43 F.3d 1476 (8th Cir.1994); Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass.1994). Encompassing all, the district court here wrote that it “finds and concludes that the habitual residence of Charles Evan Feder is in the United States.” Feder v. Evans-Feder, 866 F.Supp. 860, 868 (E.D.Pa.1994) (emphasis added). 2
First, “habitual residence” is not defined in either the Convention or the Act, and consequently one must look to the legislative and negotiating history. Unfortunately, neither the legislative history of the Act nor the U.S. Department of State legal analysis submitted to the Senate by President Reagan during ratification reveal the proper standard of review. See H. Report No. 525, 100th Cong., 2d Sess., 1988 U.S.C.C.A.N. 386, 392-96; U.S. Department of State, Legal Analysis, Hague International Child Abduction Convention (“Legal Analysis”), 51 Fed.Reg. at 10504.
The term is discussed in one document, however, that reveals its meaning to the Convention. According to the U.S. Department of State, the report by the official Hague Conference Reporter for the Convention is “recognized by the Conference as the official history and commentary on the Convention.” Legal Analysis, 51 Fed.Reg. at 10503. This “official history and commentary” explains:
‘habitual residence’ ... is, in fact, a familiar notion of the Hague Conference, where it is understood as a purely factual concept, to be differentiated especially from that of the ‘domicile.’
Elisa Perez-Vera, “Report of the Special Commission,” Conference de La Haye de droit international prive: Actes et documents de la Quatorzieme session, Vol. III, Child Abduction, ¶ 60 at 189 (emphasis added). Examination of a treaty’s negotiating history is appropriate where the plain language itself is unclear. See Sale v. Haitian Ctrs. Council, — U.S. —, —, 113 S.Ct. 2549, 2565-67 , 125 L.Ed.2d 128 (1993). In this regard, analysis of negotiating history is akin to consideration of legislative history in a case of statutory construction. Accordingly, the official history’s characterization of habitual residence as “a purely factual concept” is powerful evidence that its drafters intended a determination of habitual residence to be one of fact, not of law.
Second, the jurisprudence of habitual residence has generally reflected the fact-bound nature of the inquiry. The Sixth and Eighth Circuits have approved a British construction of the term:
It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or presuppositions.
In re Bates, No. CA 122-89, slip op., High Court of Justice, Family Div’n Ct. Royal Courts of Justice, United Kingdom (1989), at 9 (quoting Dicey and Morris, The Conflict of Laws, at 166); Rydder, 49 F.3d at 373 ; Friedrich, 983 F.2d at 1401 . See also Po-nath, 829 F.Supp. at 365 . “The intent is for the concept [habitual residence] to remain fluid and fact based, without becoming rigid.” *229 Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993). Even the Bates decision, treated by the majority as authoritative, referred to a “finding of wrongful removal,” Bates, slip op. at 9, which of course depends • on a determination of habitual residence. Such descriptions are consistent with my conviction that habitual residence is a factual finding.
Third, very recently the Sixth Circuit has characterized the question of whether a parent is exercising his or her custodial rights as a “finding.” Prevot, 59 F.Bd at 560, n. 4. The actual exercise of custodial rights, like “habitual residence,” is an element of a petitioner’s proof that a removal or retention was “wrongful.” See Convention, Article 3; 42 U.S.C.A. § 11603 (e)(1). I agree with the Sixth Circuit and perceive absolutely no reason to treat a determination of habitual residence, as required in Article 3(a), as a legal conclusion, but that of the actual exercise of custodial rights, as required in Article 3(b), as a factual finding.
Fourth, the Act’s use of the phrase “establish by a preponderance of the evidence” to describe a petitioner’s burden of proving wrongful removal from a place of habitual residence signals that habitual residence is a fact question. 42 U.S.C.A § 11603(e)(1).
Finally, the majority’s treatment of habitual residence confuses “ultimate facts” with “mixed questions of fact and law.” While an ultimate fact may depend on subsidiary findings of fact, it is nonetheless a factual finding and must be reviewed for clear error. Pullman-Standard, Div. of Pullman, Inc. v. Swint, 456 U.S. 273, 287 , 102 S.Ct. 1781, 1789 , 72 L.Ed.2d 66 (1982). For example, the following determinations have been characterized as “ultimate facts” and reviewed for clear error: intentional discrimination, Pullman-Standard, 456 U.S. at 287 , 102 S.Ct. at 1789 ; “more than minimal planning,” United States v. Cianscewski, 894 F.2d 74, 83 (3d Cir.1990); “equivalence” in a patent dispute, Interdynamics, Inc. v. Wolf, 698 F.2d 157 , 176 n. 36 (3d Cir.1982); and “a bankruptcy court’s ultimate finding of fact,” Bittner v. Borne Chemical Co., 691 F.2d 134, 138 (3d Cir.1982). To scrutinize ultimate facts by a standard less deferential than that of clear error is “untenable,” American Home Products Corp. v. Barr Laboratories, Inc., 834 F.2d 368, 371 (3d Cir.1987), and to the extent our circuit once reviewed ultimate facts in part for legal mistake, “we were wrong.” Martin v. Cooper Electric Supply Co., 940 F.2d 896 , 908 n. 11 (3d Cir.1991), cert. denied, 503 U.S. 936 , 112 S.Ct. 1473 , 117 L.Ed.2d 617 (1992). Indeed, if the question of Evan’s habitual residence had been submitted to a jury rather than a judge, I would doubt that we would set aside the same decision on the grounds that it was mandated as a matter of law.
Accordingly, I conclude that the determination of a child’s habitual residence is best described as a factual finding. I would review the district court’s ruling on Evan’s habitual residence for clear error, see Fed. R.Civ.P. 52(a), and I would not disturb it unless left with the definite and firm conviction that a mistake had been committed. Oberti v. Board of Educ., 995 F.2d 1204 , 1220 (3d Cir.1993). Even if I “might have come to different factual conclusions based on this record, [I] defer to the findings of the district court unless [I am] convinced that the record cannot support those findings.” Id.
II.
I agree with the majority opinion that “a child’s habitual residence is the place where he or she 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.” Maj. Op. at 224. Yet, “the desires and actions of the parents cannot be ignored by the court in making that determination when the child was at the time of removal or retention an infant.” Ponath, 829 F.Supp. at 367 . Having reviewed the findings of the district court, however, I am not left with a “definite and firm conviction” that a mistake has been committed. Oberti, 995 F.2d at 1220. Therefore, I would affirm.
*230 I believe the habitual residence determination requires a weighing of those facts which indicate a settled purpose to reside in one location or another, as well as those which suggest close ties to a particular community. As of January 8, 1994, the parties agreed that the scales tipped decisively in favor of Jenkintown as Evan’s habitual residence. Maj. Op. at 220; Feder, 866 F.Supp. at 865 . Yet as of this date, a number of the facts relied on by the majority had already been placed on the Sydney side of the balance. As of that date: (a) Mr. Feder had a settled purpose to live in Australia; (b) Mrs. Feder had agreed to go to Australia, with Evan but “without any commitment to remain there,” Feder, 866 F.Supp. at 863 ; (c) Mr. Feder had purchased a home in Australia for the family; (d) the couple had put their Jenkintown home on the market; (e) the couple had sold many of their household possessions in Pennsylvania; and (f) Mrs. Feder and Evan had temporary immigration status to reside in Australia. Nonetheless, the parties agreed that these factors, alone or in sum, did not make Australia Evan’s habitual residence, absent some dispositive subsequent conduct.
The question thus becomes, what if anything occurred in the subsequent five and one-half months sufficient to alter the balance? The district court carefully canvassed the evidence introduced at the hearing and determined that it was insufficient to alter the balance that existed before Mrs. Feder and Evan traveled to Sydney. The court observed that Mrs. Feder had obtained one day of employment, a single performance with the Sydney Opera, scheduled for thirteen months after her arrival; Evan attended pre-school part-time, enrolled in kindergarten for the upcoming year, and was placed on a waiting list for a private school; and Mrs. Feder and Evan had obtained Australian Medicare cards. Feder, 866 F.Supp. at 864 . On the other hand, unlike her husband, Mrs. Feder declined to surrender her Pennsylvania driver’s license or to obtain an Australian one. Nor did she or Evan submit to the physical examination necessary to acquire permanent immigration status in Sydney, or sign any papers in support of the application Mr. Feder filed on their behalf. Id. These events, all comparatively trivial, do not persuade me that the district court committed clear error. Rather, they seem to confirm that Mr. Feder always had a settled purpose to reside in Sydney, but Mrs. Feder arrived without a settled purpose to remain, and departed never having developed one. Nor do these events indicate anything about Evan’s own intentions.
I agree with the majority that there is a temporal element to this inquiry. For example, two weeks in Australia certainly would not suffice for Evan to establish a habitual residence there, and after two years his mother would have been hard put to argue that Jenkintown remained his home. Moreover, given that “habitual residence” should not be over-encumbered with legal rules, I would not establish a bright-line time period necessary to establish residence. Yet I cannot conclude that five and one-half months is so obviously sufficient that I would reverse the district court’s finding as clearly erroneous. In this regard, I note that Article 12 of the Convention directs that even when a child has been wrongfully removed from his habitual residence, if the child has spent a year (prior to the filing of the petition) in a new location, return may be thwarted by a demonstration that the child “is now settled.” Thus in another context, the Convention recognizes that at least one year must pass before a child can be sufficiently “settled” so as to affect the location where custody will be adjudicated.
In addition, as of the date of the alleged wrongful removal, Evan had lived far longer in Jenkintown than in Sydney. While it may be that Mr. Feder had, and Mrs. Feder did not have, a settled purpose to reside in Sydney, it is significant that Evan stayed with his mother in Jenkintown until she left, trav-elling to Sydney only when she did. This indicates some correspondence between the purposes of mother and child. While it is virtually impossible to ascertain the settled purpose of such a young child, it is more closely aligned here to that of the mother. *231 That is not meant to indicate that the mother’s purpose should necessarily predominate, but rather that the facts of this matter support that conclusion.
Finally, we must be mindful of the consequence of a reversal here, since it will likely result in an order for the child's return to Australia, unless Mrs. Feder can prove by clear and convincing evidence that Evan would be at “grave risk” were he returned to Sydney. Absent such proof, the child will be taken from his mother’s home in Jenkintown, where he has spent virtually all of his years, in contrast to the time spent with his father in Australia. Since this ruling is temporary pending a custody adjudication, he may again be ordered back to the United States. Although the best interests of the child will be determined ultimately, they should not be ignored in these preliminary proceedings. Such tugging and shuttling can only be detrimental. Thus, absent clearly erroneous fact-finding by the district court, its ruling should remain undisturbed.
Accordingly, I would affirm the district court’s finding that Evan’s habitual residence is the United States. 3
. Under the Act, state and federal courts have concurrent jurisdiction over ICARA petitions. 42 U.S.C.A. § 11603 (a).
. I thus think the majority errs by characterizing the district court as “concluding that the United States was Evan's 'habitual residence.’ ” Maj. Op. at 218 (emphasis added).
. I add a note to endorse the majority's suggestion that, in the event the district court determines a return order would pose no "grave risk” to Evan but would nonetheless be detrimental to him, the court may evaluate the adequacy of undertakings offered by Mr. Feder. Maj. Op. at 226. The "permissible involvement” of a court deciding a petition “extends beyond bluntly saying that there shall be a return or that there shall not. The court can influence the outcome by making clear that without undertakings, or with only the undertakings that are offered. Artficle] 13(b) will apply, but that further or other undertakings are a prerequisite for a child's return.” Re O, 2 FLR 349 (U.K.Fam.Div.1994). The district court may, for example, require Mr. Feder to pay for mother and child to fly back to Sydney, permit them to live at the former matrimonial home while he lives elsewhere, and provide them with a car and living expenses. Id. The district court may also need to investigate whether undertakings offered in the United States would be binding and enforceable in Australia, if their implementation is necessary to avoid "grave risk” to the child returned. See id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488427. Public record. Not legal advice.