No. 17-15364-GG
In theUnited States Court of Appeals
for the Eleventh Circuit______________JOHAN SEBASTIAN ALZAT CALIXTO,
Plaintiff-Appellantv.
HADYLLE YUSUF LESMES,
Defendant-Appellee

On Appeal from the United States District Court
for the Middle District of Florida______________
BRIEF OF AMICUS CURIAE IAFL IN SUPPORT OF REVERSAL______________TIM AMOS
TIMOTHY SCOTTGERALD L. NISSENBAUM
DANA PRESCOTTISABELLE REIN-LESCASTEREYRESCHARLOTTE BUTRUILLE-CARDEWIAN KENNEDY
ANNE-MARIE HUTCHINSON
ALICE MEIER-BOURDEAUINTERNATIONAL ACADEMY OF
FAMILY LAWYERS
81 Main Street, Suite 405
White Plains, New York 10601

EDWIN FREEDMANLAW OFFICES OF EDWIN FREEDMAN
58 Harakevet Street
Tel Aviv 6777016
Israel00-972-3-6966611
edwin@edfreedman.com

Counsel for Amicus Curiae

No. 17-15364
Johan Calixto v. Hadylle Lesmes
CERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT
Amicus Curiae, IAFL, pursuant to Federal Rule of Appellate Procedure
26.1 and Eleventh Circuit Rules 26.1-1(a)(2), 26.1-2(a), and 26.1-3, certify thatthe following is a complete list of trial judges, attorneys, persons, associationsof persons, firms, partnerships, or corporations that have an interest in theoutcome of this particular case or appeal, including subsidiaries, conglomerates,
affiliates, parent corporations, any publicly held corporation that owns 10% ormore of the party’s stock, and all other identifiable legal entities related to any
party:
Amos, Tim (IAFL)
Ballante, Nicole L., Counsel for Appellee
Butruille-Cardew, Charlotte (IAFL)
Calixto, Johan Sebastian Alzat, Appellant
Covington, Hon. Virginia M. Hernandez, U.S. District Court Judge, Middle
District of Fla.
Edwin Freedman, Counsel for Amicus Curiae
Gillett, Carmen, R., Counsel for Appellant
Gillett, Carmen R., Law Office of, Counsel for Appellant
Hourihan, Shanna, Counsel for Appellant
Hutchinson, Anne-Marie (IAFL)

C1 of 2

International Academy of Family Lawyers (IAFL)
Kennedy, Ian (IAFL)
Krak, Kathleen M., Counsel for Appellee
Law Offices of Edwin Freedman, Counsel for Amicus Curiae
Lesmes, Hadylle Yusuf, Appellee
M.A.Y., Minor Child Subject of Order Granting Hague Petition
Meier-Bourdeau, Alice (IAFL)
Nissenbaum, Gerald L. (IAFL)
Prescott, Dana (IAFL)
Rein-Lescastereyres, Isabelle (IAFL)
Scott, Timothy (IAFL)
Shutts & Bowen, LLP, Counsel for Appellee
Sneed, Hon. Julie S., U.S. District Court Magistrate Judges/ Edwin Freedman
Edwin Freedman
Law Offices of Edwin Freedman

C2 of 2TABLE OF CONTENTSCERTIFICATE OF INTERESTED PERSONS AND CORPORATEDISCLOSURE STATEMENT .......................................................................... C1
TABLE OF AUTHORITIES ............................................................................... ii
INTEREST OF THE IAFL .................................................................................. 1
STATEMENT OF THE ISSUES......................................................................... 2
SUMMARY OF ARGUMENT ........................................................................... 3
ARGUMENT ....................................................................................................... 5
I.

Shared parental intent is necessary in order to change the habitualresidence of a minor child in proceedings under the Abduction
Convention ................................................................................................. 5

II.

Conditional Consent is Terminated When the Precondition is Not
Fulfilled.................................................................................................... 17

CONCLUSION .................................................................................................. 20
CERTIFICATE OF COMPLIANCE ................................................................. 22
CERTIFICATE OF SERVICE .......................................................................... 23i

TABLE OF AUTHORITIES
Cases
Ahmed v. Ahmed,
867 F.3d 682 (7th Cir. 2017) ........................................................................... 11
Barzilay v. Barzilay,
600 F.3d 912 (8th Cir. 2010) ........................................................................... 13
Berezowsky v. Ojeda,
765 F.3d 456 (2014) ........................................................................................ 10
Boehm v. Boehm,
2011 WL 863066 (M.D. Fla. 2011)........................................................... 15, 20
Bowie v. Gaslain,(No.T 15-26.664) ............................................................................................... 2
Delgado v. Osuna,
837 F.3d 571 (2016) ........................................................................................ 10
Delvoye v. Lee,329 F.3d 330 (3d Cir. 2003) ............................................................................ 12
Didon v. Castillo,
No. 15-3350, 2016 WL 5349733 (3d Cir. Sept. 26, 2016).............................. 12Feder v. Evans-Feder,
63 F.3d 217 (3d Cir. 1995) .............................................................................. 11Friedrich v. Friedrich,
983 F.2d 1396 (6th Cir.1993) .................................................................... 10, 12
In re ALC,
2015 WL 1742347 (9th Cir. 2015) .................................................................... 8
In the Matter of AR, (Children) (Scotland)
UKSC 2105/0048 ............................................................................................ 2
Karkkainen v. Kovalchuk,
445 F.3d 280 (3d Cir. 2006) ............................................................................ 12ii

Larbie v. Larbie,
690 F.3d 295 (2012) ........................................................................................ 10
Lozano v. Montoya,
572 U.S. ____, 134 S. Ct. 1224 (2014) ............................................................. 2
Mauvis v. Herisse,2014 WL 5659412 (1st Cir. 2014) .................................................................... 9
Maxwell v. Maxwell,
588 F.3d 245 (4th Cir. 2009) ............................................................................. 9
Mendez v. May,
2015 WL 627215 (1st Cir. 2015) .................................................................... 11*Mozes v. Mozes,
239 F.3d 1067 (9th Cir. 2001) .......................................5, 6, 8, 9, 10, 12, 14, 19
Panteleris v. Panteleris,2015 WL 468197 (6th Cir. April, 2015) ......................................................... 12
Ruiz v. Tenorio,
392 F.3d 1247 (11th Cir. 2004) .....................................................13, 14, 15, 19
Silverman v. Silverman,
338 F.3d 886 (8th Cir. 2003) ........................................................................... 12
Sorenson v. Sorenson,
559 F.3d 871 (8th Cir. 2009) ........................................................................... 13
Stern v. Stern,
639 F.3d 449 (8th Cir. 2011) ........................................................................... 13
Velasquez v. Funes de Velasquez,2015 WL 1565142 (E.D. Va 2015) ................................................................. 10
Other Authorities
Explanatory Report by Prof. Elisa Perez-Vera, par. 66, Actes etDocuments de la Quartorzieme session, Tome III, Child Abduction,
Hague Conference on Private International Law, 1982 .................................... 5* Citations upon which Appellants primarily rely are marked with asterisks.
iii

The International Academy of Family Lawyers (IAFL) adopts the facts asthey are stated in the Petitioner’s brief.
INTEREST OF THE IAFL1
The IAFL (formerly the International Academy of Matrimonial Lawyers,
whose name was changed in 2015) was formed in 1986 to improve the practiceof law and the administration of justice in the area of divorce and family law
throughout the world. The IAFL currently has 745 “Fellows” in 55 countries,
each of whom is recognized by the bench and bar in his or her country as anexperienced and skilled family law practitioner.2 It is a worldwide association ofpracticing lawyers who are experienced and skilled family law specialists intheir respective countries.
IAFL Fellows have made presentations in the US and in other Fellows’States in relation to legal reforms. The IAFL has sent its representatives toparticipate in relevant international conferences, often as non-governmental
experts, including the seven Special Commissions on the Hague Convention on
the Civil Aspects of International Child Abduction (hereinafter: the Abduction
Convention). Its Fellows have also written and lectured widely on the1Counsel for the amici certify that no counsel for a party authored any part ofthis brief and no person or entity other than counsel for the amici has made amonetary contribution to the preparation or submission of this brief. Petitioner
has consented to the filing of this brief. Respondent has not.
2

The IAFL website. www.iafl.org, contains, among other items, a listing of theFellows.
1

Abduction Convention and related topics, such as proceedings to obtain court
approved relocation of children to another country.
The IAFL filed an amicus curiae brief in Lozano v. Montoya, 134 S. Ct.
1224 (2014), 572 U.S. ____ (2014). The Academy has also filed amicus briefs
in cases concerning the interpretation of the Abduction Convention in theSupreme Courts of the United Kingdom, In the Matter of AR, (Children)(Scotland) UKSC 2105/0048 and France, Bowie v. Gaslain (No.T 15-26.664)
The IAFL’s interest in the instant case relates to its concern that implementationof the Abduction Convention, which has significantly reduced the harmful
effects of international child abduction, will be severely undermined if thejudgment of the Eleventh Circuit in this matter is not overturned. Many
Abduction Convention cases are brought to court in the signatory States by
IAFL Fellows. The IAFL, therefore, has a significant professional and policy
interest in preserving the deterrent effect of the Abduction Convention andensuring the prompt return of wrongfully removed or retained children to theirhabitual residence.
The IAFL is acting pro bono in submitting this brief.
STATEMENT OF THE ISSUESDoes one parent’s written consent for a minor to travel abroad for alimited period, with the possibility of extending that period upon certain
conditions being met, constitute consent to change the habitual residence of theminor where the conditions were not met by the expiration of the year?
2

SUMMARY OF ARGUMENT
The purpose of the Abduction Convention is to return a minor child who
has been wrongfully removed or retained to his or her country of habitualresidence as swiftly as possible. It is an instrument to determine jurisdiction, notcustody. The Abduction Convention therefore does not apply a best interests
test but rather determines the correct forum to apply that test.
The term habitual residence was deliberately not defined by the draftersof the Abduction Convention in order to avoid the application of rigid formulas
to an issue which is fact driven. The Federal Circuits have developed different
approaches to determine habitual residence. A majority of the Circuits focus on
joint parental intent in conjunction with a physical presence of the minor in the
new jurisdiction. The minority have applied a test that emphasizes theperspective of the child, particularly his or her acclimation to the new
surroundings. It looks back in time, not forward. Evaluating the child’s
acclimation to the new surroundings should not be used as an indirect method of
applying a best interests test.
In extreme situations, geographical change, coupled with the passage oftime, can alter habitual residence, even where one of the parents had no intent tomake a change. This occurs in cases where the left behind parent fails to takeaction, even after the passage of years. However, where the action for return isfiled within one year from the date of unlawful removal or retention, the3

Abduction Convention dictates that the court shall return the child forthwith
without considering whether the child is settled in its new environment.
Where one parent has given their conditional consent to change thechild’s habitual residence, consent is only finalized when the condition is met.
Failure to meet said condition negates the consent to change habitual residence.
Thus, where consent is subject to one of the parties obtaining residency status,
failure to obtain that status results in failure to obtain consent.
The IAFL believes that the correct approach in determining habitualresidence is that adopted by the majority of Circuits, holding that joint parental
intent is required. The underlying principle of the Abduction Convention is thatthe habitual residence of a child should not be changed by the unilateral act of
one parent.

4

ARGUMENTI.

Shared parental intent is necessary in order to change the habitualresidence of a minor child in proceedings under the Abduction
Convention.
The United States Supreme Court has yet to rule on the issue of habitualresidence in the context of the Abduction Convention. The term habitualresidence was deliberately not defined by the drafters of the Abduction
Convention in order to avoid the application of a rigid formula to an issue which
is fact driven.3 While all of the eleven Federal Circuit Courts consider parental
intent as an element in determining habitual residence, there is a distinction
between them regarding the weight given to parental intent as opposed to otherfactors.
The First, Second, Fourth, Fifth, Seventh and Eleventh Circuits follow theanalysis of the Ninth Circuit’s judgment in Mozes v. Mozes, 239 F.3d 1067 (9thCir. 2001). The Mozes court held that the analysis is fact intensive and therefore
there are no rigid rules to apply. It ruled that there must be a shared parental
intent to abandon the existing habitual residence before a new one can beacquired. Therefore, the length of the move must be examined in the context ofthe parties’ agreement as to the purpose of the move. The relocation need not bepermanent. It can be for any number of reasons: business, study, health or just3

See: Explanatory Report by Prof. Elisa Perez-Vera, par. 66, Actes etDocuments de la Quartorzieme session, Tome III, Child Abduction, Hague
Conference on Private International Law, 1982.
5

the desire to explore other ways of life. However, there must be a settled
purpose to the move and the move must actually take place.
The interrelationship between parental intent and the child’s adaption to
new surroundings exists on a continuum. The weight given to each factor will
depend on the circumstances of the case. The shorter the time in the new
jurisdiction, the more weight given to parental intent. In Mozes, the children had
spent 15 months in the US while the father remained in Israel. There was noagreed upon intent to abandon Israel as the habitual residence. The court foundthat the children’s habitual residence did not change, regardless of how muchthey adjusted to their new surroundings. Had the move been for a substantiallylonger period, the court might have given less weight to parental intent andgiven more emphasis to the child’s adjustment to his or her new surroundings.
Mozes stands for an integration of parental intent and the child’s adjustment to
its new environment, with no rigid formula to on how balance the two. Where
parental intent can be determined, the child’s adjustment to the newenvironment is a less significant factor.
Focusing on parental intent attains an important Abduction Convention
objective: the prevention of a unilateral change of the child’s habitual residence.
One of the essential motivating factors in adopting the Abduction Convention isto prevent the unlawful removal of children from one country to another.
Changing a child’s habitual residence without consent of both parents, insituations where the left-behind parent was exercising his or her custodial rights,
6

or without court approval, is an act that seriously harms both the child andparent. It severely interferes with and often totally prevents the continuance ofthe parent-child relationship. Parental intent must therefore always be an
important and essential criteria when determining if the change of habitualresidence was unlawful under the Abduction Convention.
In addition, by placing primary evidence on the acclimation of the childto the new environment, the Abduction Convention will lose its deterrent
capacity. The proceedings will shift from determining jurisdiction, which is at
the heart of the Abduction Convention, to an analysis more appropriate to acustody proceeding. The outcome will no longer be determined by the actionsof the parent, whether lawful or unlawful, but by the nature of the child. A child
who has the ability to easily adapt to new surroundings will have been found tohave acquired a new habitual residence, while a child who struggles to makenew friends, learn a new language or adjust to a foreign school system will beconsidered not to have acquired a new habitual residence. This would result incourts applying a “best interests” test as it would in a conventional custody case.
That would be contrary to the essence of an Abduction Convention proceeding,whose purpose is to determine international jurisdiction, not custody. The
purpose of the Abduction Convention is not served by the outcome of aproceeding under its framework being determined primarily by a child’s ability
to make the switch from American football to European soccer or vice-versa.

7

The continuum between parental intent and the child’s adaptation to new
surroundings is also impacted by the age of the child. The impact of relocation
on a 13 or 14 child is significantly different from that of a 3 or 4 year old. The
ability of a 4 year old to adapt to their new surroundings may be of far lesssignificance compared to that of a 14 year old. The younger the child, the moresignificant the role parental intent plays in determining the habitual residence ofthe minor.
The Mozes court divided the question of habitual residence into threedifferent scenarios; 1) Where the family unit has manifested a settled purpose tochange habitual residence, despite the qualms of one of the parents, 2) Where
the translocation from an established habitual residence was clearly intended to
be of a specific, delimited period, 3) In between cases where the petitioning
parent had earlier consented to let the child stay abroad for some period of
ambiguous duration. The first situation will result in habitual residence being
acquired in a relatively short period of time. In the second situation, habitualresidence will not be acquired even after an extended stay, although once thedelimited period has passed the length of the stay can determine the change inhabitual residence. The third situation is the problematic one. The court statedthat in the absence of settled parental intent, courts should be slow to infer fromacclimatization that an earlier habitual residence has been abandoned.
The Ninth Circuit recently reaffirmed the Mozes precedent in the case of
In re ALC, 2015 WL 1742347 (9th Cir. 2015). The court held that the first task
8

is to examine shared parental intent. When that does not resolve the dispute,then the new jurisdiction will be considered the habitual residence when
objective facts point unequivocally to the child’s relative attachments to the twocountries changing to the point where requiring a return would be tantamount toremoving the child from the environment in which its life has developed. The
court held that where a child is born under the cloud of disagreement between
the parents over its habitual residence, a child of tender age remains without an
habitual residence.
The First Circuit followed the Mozes approach in the case of Mauvis v.
Herisse, 2014 WL 5659412 (1st Cir. 2014) an abduction from Haiti to
Massachusetts. The court stated that the analysis of habitual residence is a twopart approach. The first question is whether there was a shared parental intent or
settled purpose to abandon the prior habitual residence and acquire a new one.
The court then stated that as a secondary factor, it would ascertain whether theacclimatization of the child to the new residence is relevant. It reiterated that a
new habitual residence cannot be acquired without abandoning the prior one.
The Fourth Circuit adopted the Mozes analysis in Maxwell v. Maxwell,
588 F.3d 245 (4th Cir. 2009). The court held that habitual residence isdetermined by a two-part formula. First it attempts to determine the sharedparental intent. Where a shared parental intent is lacking or cannot be
determined, the court must decide if petitioner has agreed to taking up a new
habitual residence.
9

The Fourth Circuit case of Velasquez v. Funes de Velasquez, 2015 WL
1565142 (E.D. Va 2015) involved the third position stated in the Mozes
decision. The move from El Salvador to the US was an open ended one. There
was no clear parental intent to abandon the habitual residence in El Salvador.
The court affirmed the two-part approach of Mozes. It examined whether there
was an actual change of geography coupled with an appreciable passage oftime. It found that returning the children to El Salvador would not betantamount to returning them home and therefore denied the appeal of the father
for a return order.
The Fifth Circuit has taken the approach of the majority that begins withthe shared intent of the parents.

Absent shared intent, the prior habitualresidence should only be supplanted where the objective facts unequivocallypoint to that conclusion. Context, rather than specific periods of time spent in
one location or another, is key in determining a change of habitual residence.
(See Delgado v. Osuna, 837 F.3d 571 (2016), Larbie v. Larbie, 690 F.3d 295(2012), Berezowsky v. Ojeda, 765 F.3d 456, 467 (2014))
The Sixth Circuit takes an approach that is more child focused. In thecase of Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir.1993) (Friedrich I), thecourt held that the habitual residence of the child is its customary residence
prior to the removal. It looks back in time, not forward. It is the child’s habitualresidence, not the parents’, which is determinative. A child can have only one
habitual residence. There must be a change in geography to alter habitual10

residence. That change in geography must occur prior to the removal inquestion. The geographical change, coupled with the passage of time, can alter
habitual residence.
The Sixth Circuit has summarized the test to determine habitual residence
as follows: 1)Where the child has resided exclusively in a single country, that is
the habitual residence, 2)Where the child has alternated between two or morecountries, the acclimatization test is applied, 3) Where the first two standards do
not produce a clear determination, then shared parental intent is determined.
(See Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017))
A First Circuit case, Mendez v. May, 2015 WL 627215 (1st Cir. 2015),
rejected the proposition that a change of geography is a prerequisite to a change
in habitual residence. It held that it is only one factor and not a prerequisite. It is
the last shared parental intent which is determinative, even if the change in
geography had yet to take place.
The courts of the Third and Eighth Circuits have taken a child centeredapproach in conjunction with equal weight given to the parents’ present sharedintentions. The Third Circuit case of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir.
1995) established the definition of habitual residence for that Circuit. It heldthat a child’s habitual residence is the place where he or she has been physicallypresent for an amount of time sufficient for acclimatization and which has adegree of settled purpose from the child’s perspective. A determination ofwhether any particular place satisfies this standard must focus on the child. It
11consists of an analysis of the child’s circumstances in that place and the parents’shared, present intentions regarding the child’s presence there. See Delvoye v.
Lee, 329 F.3d 330 (3d Cir. 2003), Didon v. Castillo, No. 15-3350, 2016 WL
5349733 (3d Cir. Sept. 26, 2016).
The Third Circuit case of Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir.
2006) made a distinction as to the age of the children regarding parental intent.
In the case of very young children, particular weight is placed on parental
intent. In the case of older children, the impact of parental intention is more
limited. This distinction also appears in the analysis of all of the other circuits.
The case of Panteleris v. Panteleris, WL 468197 (6th Cir. April, 2015)
rejected the Mozes analysis and reaffirmed the Friedrich I precedent and further
elaborated. It established 5 principles to determine habitual residence:1)
Not to use technical rules but examine the facts,2)
Consider only the child’s experiences,3)
Focus on the child’s past,
4)
A person can have only one habitual residence,5)
Only a change in geography and a passage of time can
combine to establish a new habitual residence.
The Eighth Circuit also applies a two-pronged test that takes into accountparental intent and the child’s perspective, with an emphasis on the child’s
perspective. In the case of Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003)
the court was called upon to determine whether the habitual residence ofchildren born and raised in Minnesota had been changed to Israel after ten
months. It held that the court must examine habitual residence from the12children’s perspective, including the family’s change in geography along withpersonal possessions and pets, the passage of time, the selling of their priorresidence, enrollment in school, obtaining benefits granted to new immigrants
and to some degree, the parents’ intentions at the time of the move to Israel.
Assessing these facts led to the conclusion that the children’s habitual residence
had been changed to Israel.
The relevant factors in determining habitual residence in the Eighth
Circuit are the settled purpose of the move to the new country from the child’s
perspective, parental intent, a change in geography, the passage of time and theacclimation of the child to the new country. See Barzilay v. Barzilay, 600 F.3d
912 (8th Cir. 2010), Stern v. Stern, 639 F.3d 449 (8th Cir. 2011) Sorenson v.
Sorenson, 559 F.3d 871 (8th Cir. 2009).
The Eleventh Circuit has adopted the approach of the First, Second,
Fourth, Fifth, Seventh and Ninth Circuits. The case of first impression
concerning habitual residence in the Eleventh Circuit is Ruiz v. Tenorio, 392
F.3d 1247 (11th Cir. 2004). Petitioner – Appellant Juan Tenorio Ruiz is a
Mexican who met Defendant – Appellee Melissa Green Tenario, a United States
citizen and resident of Minnesota, while she was an exchange student in
Mexico. After becoming pregnant, Melissa returned to Minnesota where she
gave birth in 1992. The couple married in the United States and settled in
Minnesota. A second son was born in Minnesota in 1998. After seven years in
the United States, the couple moved to Mexico in the hope of improving their13marriage. The couple spent two years and ten months in Mexico, during whichtime they both retained their ties to the United States; Melissa opened a US
bank account, she converted her Minnesota nursing license to a Florida nursing
license and Juan actively sought employment in the United States, to name afew examples. In May, 2003, Melissa took the children to Florida without
informing Juan and refused to return.
In its discussion of habitual residence, the court held that “the opinion ofJudge Kozinski in Mozes is not only the most comprehensive discussion of theissue, but also sets out the most appropriate approach.” The court thenproceeded to summarize the approach of Mozes “and adopt it as our own”.
(p. 1252). The court cites the Mozes’ definition of the most difficult of thevarious situations, whereby the parents had agreed to let the child stay abroad
for some period of ambiguous duration. Only where the duration of the stay was
uncertain or where the parental intent was contradictory should theacclimatization of the child be considered. The court states that Mozes was
critical of some cases which placed too much emphasis on facts like the childdoing well in school and making friends. It cited the Mozes conclusion on thispoint, stating that ”… in the absence of settled parental intent, courts should beslow to infer from such contacts that an earlier habitual residence has beenabandoned.” “The court concluded that it made sense to ‘regard the intentionsof the parents as affecting the length of time necessary for a child to become

14habitually resident, because the child’s knowledge of these intentions is likely tocolor its attitude toward the contacts it is making.” Id. at 1254.
The court upheld the District Court’s decision to reject the petition,
finding that the facts supported the conclusion that Melissa’s intent with respect
to the move to Mexico was clearly conditional. Although the parties had spent asignificant amount of time in Mexico, during which the children went to local
schools and had social engagements, the court found that there was no settled
intent to abandon their habitual residence in the United States. Thus theacclimatization of the children, in cases where there is no joint parental intent toabandon the first habitual residence, is not a factor to be given significant
weight.
In the case of Boehm v. Boehm, 2011 WL 863066 (M.D. Fla. 2011), thecourt held that “the first question is whether the parents shared a settled
intention to abandon the former country of residence.”, citing Ruiz and Mozes.
There can be a change in habitual residence of a child when the parents have asettled purpose in moving even for a limited period of time. However, the court
goes on to state that “courts have generally refused to find a change in habitualresidence because one parent intended to move to the new country of residence
on a conditional or trial basis.” In Boehm, Petitioner mother was a German
citizen and the Respondent father had dual United States and Austrian
citizenship. Their minor daughter was born in Germany in 2006 and has both
U.S. and German citizenship. From the age of five weeks the child resided with15

her parents in Florida until November, 2009, when the Petitioner took her toGermany. The parties had business and family in Germany but there was noevidence to support the Petitioner’s claim that they agreed to move there.
The parties had marital difficulties but were unable to resolve theirdifferences. Petitioner admitted that she had been involved with another man inGermany and the parties discussed separation. They had planned to travel toGermany in December of 2009. Petitioner requested permission to move up thedate to November in order to attend an art show there and Respondent agreed
that she could go with their daughter a month early. Respondent joined thefamily in Germany in December. The parties agreed that the Respondent would
take the child on a ski trip to Austria. Respondent left with the child to Austria
but from there proceeded to return to the United States.
Petitioner claimed that the parties had agreed that the move to Germany
was permanent. Respondent argued that it was solely for the purpose of a trial
separation and he had not consented to the permanent relocation of the minor.
The court found that the Petitioner had not proven that the move to Germany
was permanent. Respondent had not given his consent to relocation of the minor
but rather agreed that she could travel for a limited time while the parties tried
to sort out the future of their marriage. The court found that there was a lack ofshared intent to change the habitual residence of the minor to Germany.
Although the court did not wish to encourage “self-help” as exhibited by the16Respondent’s unilateral actions, it denied the petition, holding that there was no
unlawful removal as Germany was not the child’s habitual residence.
All of the United States Federal Courts take into account parental
intentions to some degree. While the courts that follow the Ninth Circuit,including the Eleventh Circuit, place significant emphasis on parental intent,even the courts that are more child focused still weigh parental intent to somedegree. The courts all agree that the definition is fact intensive and no fixed
formula should be applied. Yet it is clear that the unilateral decision of one
parent is not sufficient to change the habitual residence of a child. The
underlying principle of The Hague Abduction Convention is that a minor’s
habitual residence should not be changed by the unilateral acts of one parent
where both have rights of custody. The analysis of the Ninth Circuit requiring
parental consent, adopted by the majority of the other Circuits, should be theanalysis that is followed.
II.

Conditional Consent is Terminated When the Precondition is Not
Fulfilled
The increasing mobility of families has had an impact on the way courts

have interpreted habitual residence. There are a growing number of instances inwhich couples temporarily change their living arrangements in order toaccommodate the work, education or health needs of one or both parents. These
instances can be divided into three categories. The first is where the parties
clearly abandon their current residence and relocate abroad. The second

17category is where the parties do not clearly abandon their prior residence andrelocate abroad for a trial period of indeterminate time. The third category is
those families who do not abandon their prior habitual residence and relocate
for a specific period of time, for example a member of a diplomatic corps
stationed abroad. A subset of the third category is where the move abroad is not
only for a specific time, but also conditional upon fulfilling an agreed upon
condition. Of the three categories, only the second one should require a
determination which may need to consider the acclimatization of the minor
child.
The case at hand fits into the subset of the third category. The Petitioner
gave his consent to Respondent to reside with the child in the United States for
one year. The consent form signed by the Petitioner makes clear that the consent
expires after one year. The Petitioner agreed that the period would be extended
if he were able to secure a residency visa in the United States. Petitioner did notagree that the child could relocate to the United States on a permanent basis if
he were unable to reside with him.
It appears that some courts have transformed the settled purpose test as
applied to the parents’ intentions into a test of whether the child is well settled
in his or her new environment. Article Twelve of the Abduction Convention
provides that the courts shall order the return of an abducted child if the petition
for return is filed within one year of the date of unlawful removal or retention.
Only if the petition is filed more than one year after the unlawful event can the18

court consider the acclimatization of the child. Thus, the ability of the child toadapt to the new surroundings is not a factor when determining petitions filed
within the one year time period.
It was not the purpose of the Abduction Convention drafters to create abarrier to families who wish to temporarily spend time abroad. As pointed out inMozes, there are a number of reasons for a temporary relocation; business,
education, health or simply a desire to explore new possibilities. International
businesses often send employees to their foreign branches for a limited period.
Professors are often employed by foreign educational institutions to expand
their research. Judges may use their sabbaticals to teach in foreign law faculties.
If the Abduction Convention is interpreted in a way that inhibits families fromspending limited periods abroad, then it is has not only failed to address the
problem of child abduction, it has created a potential crisis for families facedwith temporary relocation situations.
The courts in Mozes and Ruiz take into account the possibility that incases where there is no shared parental intent to prior habitual residence of thechild, the period of time in the new state becomes more significant. If the court
can “say with confidence that the child’s relative attachments to the twocountries have changed to the point where requiring a 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” (Mozes at 1081), then it may findthat there has been a change in habitual residence. Such cases do not occur
19where the consent to reside abroad has a clear expiration date, such as in thecase at hand.
CONCLUSION
All of the Circuits require that there be a “settled purpose” to relocate inorder to establish habitual residence in the requested state. The plain meaning of
the term indicates that both parents have agreed as to the reasons for relocating.
There can be no settled purpose where one parent does not agree to theunderlying premise on which the change of habitual residence is based. In thepresent case, Petitioner, by signing the limited consent form, declared that hedoes not agree to non-conditional relocation of the child to the United States.
Lacking a settled purpose, there cannot be a change in habitual residence.
Petitioner did not consent to the unconditional abandonment of the minor
child’s habitual residence in Colombia. By limiting his agreement to remain in
the United States for only one year, Petitioner made it clear that there was nosettled intent for the child to permanently reside in a country other than the
Petitioner’s country of residence. Petitioner’s consent to extend the one year
period was conditional upon him obtaining a United States residency visa.
When that condition was not met, his consent to the child’s residence in the
United States terminated on the date delineated in the travel consent form.
As the court stated in Boehm, Id., consent to travel for a limited period oftime does not constitute a shared intent to abandon the prior state as the habitualresidence of the child. The burden to prove that there was shared parental
20

consent to change the habitual residence of the child is on the Respondent
mother. The travel consent document signed by the Petitioner clearly limits thetime of residence abroad to one year. Respondent presented no evidence which
contradicts that document.
Respectfully submitted,s/ Edwin Freedman
Edwin Freedman
Law Offices of Edwin Freedman
58 Harakevet Street
Tel Aviv 6777016
Israel00-972-3-6966611
edwin@edfreedman.com
Tim Amos
Timothy Scott
Gerald L. Nissenbaum
Dana Prescott
Isabelle Rein-LescastereyresCharlotte Butruille-Cardew
Ian Kennedy
Anne-Marie Hutchinson
Alice Meier-Bourdeau
International Academy of Family
Lawyers
81 Main Street, Suite 405
White Plains, New York 10601
Counsel for Amicus Curiae

21

CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure Rule 32(a)(7)(C), I
certificate that this brief complies with the length limitations set forth in Rule32(a)(7)(B)(i) and 29(d) because it contains 5,161 words, as counted byMicrosoft Word, excluding the items that may be excluded under Rule32(a)(7)(B)(iii).
s/ Edwin Freedman
Edwin Freedman
Law Offices of Edwin Freedman

22

CERTIFICATE OF SERVICE
Pursuant to Federal Rule of Appellate Procedure 25, I certificate that on
February 6, 2018, I filed this brief with the Clerk of the Court for the UnitedStates Court of Appeals for the Eleventh Circuit by using the appellate CM/ECF
system. I certify that all participants in this case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
s/ Edwin Freedman
Edwin Freedman
Law Offices of Edwin Freedman23