United States Court of Appeals

For the First Circuit

No. 14-1278

LISETTE NEERGAARD-COLÓN,

Respondent, Appellant,

v.

PETER MOELLER NEERGAARD,

Petitioner, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella and Selya, Circuit Judges,

and McAuliffe,* District Judge.

Phillip Rakhunov, with whom Kevin M. Colmey and Sullivan &

Worcester LLP, were on brief for appellant.

Laura E. Gibbs, with whom Kristin S. Doeberl and Ginsburg

Leshin Gibbs & Jones, LLP, were on brief for appellee.

May 21, 2014

*

 Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. Respondent-Appellant Lisette

Neergaard-Colón (the "mother") and Petitioner-Appellee Peter

Moeller Neergaard (the "father") have two young daughters, S.S.N.

and L.A.N. Although both girls were born in the United States,

they lived abroad with their parents for approximately a year and

a half after their father's employer temporarily relocated him to

Singapore in June 2012. The family's time in Singapore ended in

January 2014 when the mother traveled with the children to the

United States and refused to return. As a result, the father filed

a petition for the return of the children to Singapore pursuant to

the Hague Convention on the Civil Aspects of International Child

Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89

(the "Hague Convention"), as implemented by the International Child

Abduction Remedies Act, 42 U.S.C. § 11601 et seq.

The mother now appeals from the district court's grant of

the father's petition. She claims that the district court erred by

determining that the children's place of habitual residence was

Singapore without first considering whether the parties intended to

retain their habitual residence in the United States while living

abroad for a temporary period of fixed duration. We agree, and we

therefore remand to the district court for further proceedings.

I. Background

The mother, a citizen of the United States, was born in

Connecticut and moved to Boston in 1990. She began teaching in the

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Boston public schools in 1995. The father, a citizen of Denmark,

came to the United States around 1999 to pursue a Ph.D. at Boston

University. In 2004, he obtained employment as a software

consultant with Ab Initio Software Corporation, a company

headquartered in Massachusetts. The father became a permanent

resident of the United States and obtained a green card in 2011. 

The couple married in Massachusetts that same year, and their

daughters were born in Massachusetts in February 2011 and February

2012. The children are citizens of both the United States and

Denmark.

At some point in late 2011 or early 2012, the father's

employer informed him that it wanted to relocate him temporarily to

Singapore for a three-year assignment. The father claims that he

discussed the assignment with his wife and that they agreed to live

in Singapore for at least three years. The mother asserts that she

agreed to a stay of no more than three years in Singapore, that the

father said it could be as short as two years, and that the couple

agreed to reevaluate the situation after a year to consider an

early return to the United States.

In June 2012, the family packed up their things and moved

to Singapore, where they rented an apartment. At that point,

S.S.N. was a little over a year old, while L.A.N. was roughly four

months old. The father obtained an employment pass authorizing him

to work in Singapore through 2015, and the mother and children each

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received a dependant's pass. While in Singapore, the father was

paid by the Singapore-based entity Ab Initio Software Private

Limited. The mother, who did not obtain an employment pass, was

not authorized to work in Singapore.

The family obtained health insurance in Singapore through

the father's employer, and the parties opened a bank account there. 

They also found pediatricians for their daughters, arranged play

dates, and purchased a Singapore Zoo membership. The older

daughter, S.S.N., was enrolled in parent-accompanied "EduPlay"

classes, and the parents looked at a few Singapore preschools.

During their time in Singapore, the parents retained

ownership of their two properties in Boston, one of which they had

purchased just weeks before moving to Singapore. They rented both

properties to tenants on one-year leases. They kept open their

bank accounts and retirement accounts in the United States, as well

as their credit cards issued by U.S. banks. The mother preserved

her position with Boston public schools by requesting a three-year

extension of her maternity leave, and the father maintained his

green-card status. The family also visited the United States for

a span of several weeks for Christmas in 2012 and again during the

summer of 2013.

Despite the parents' participation in marital counseling

in Singapore, their relationship deteriorated while they were

living abroad. The mother expressed her desire to return to the

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United States after a year, but the father disagreed. In December

2013, after a year and a half of living in Singapore, the family

traveled together to Denmark to visit the father's family. From

there, the father flew back to Singapore, while the mother and

children traveled to the United States to visit her friends and

family for two weeks. They arrived in the United States on

January 4, 2014, but they failed to board their return flight to

Singapore on January 20, 2014. The mother informed the father that

she would be staying in the United States with one-year-old L.A.N.

and two-year-old S.S.N.1

On February 21, 2014, the father petitioned the district

court for the return of the children to Singapore pursuant to the

Hague Convention. The district court granted the petition on

March 10, 2014, and this timely appeal followed. On March 18,

2014, this court granted a temporary stay of the district court's

order, which remains in effect.

II. Analysis

We begin our analysis by providing a brief sketch of the

relevant provisions of the Hague Convention. The Hague Convention

is a multilateral treaty designed to address "the problem of

international child abductions during domestic disputes." Abbott

v. Abbott, 560 U.S. 1, 8 (2010). It does so by providing for "the

1

 The children both had birthdays in February, so they are now

ages two and three.

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prompt return of children wrongfully removed to or retained in any

Contracting State." Id. (internal quotation marks and citation

omitted). Notably, an order of return pursuant to the Hague

Convention is not a final determination of custody rights. It

simply ensures that custodial decisions will be made by the courts

of the children's country of habitual residence. Id. at 9.

The term "habitual residence" is not defined by the Hague

Convention, but this court -- in keeping with the approach of

several of our sister circuits -- "begins with the parents' shared

intent or settled purpose regarding their child's residence." 

Nicolson v. Pappalardo, 605 F.3d 100, 104 (1st Cir. 2010). While

intent is our initial focus, evidence of a child's acclimatization

to his or her place of residence may also be relevant. See Darín

v. Olivero-Huffman, 746 F.3d 1, 11-13 (1st Cir. 2014).

In this case, the father has presented a claim of

wrongful retention. Wrongful retention is defined as the retention

of a child in breach of another's custody rights "under the law of

the State in which the child was habitually resident immediately

before the . . . retention."2

 Hague Convention, art. 3. 

Critically, the Hague Convention only provides for the return of a

2

 The Hague Convention also requires a showing that "at the time

of . . . retention those [custody] rights were actually exercised,

either jointly or alone, or would have been so exercised but for

the . . . retention." Hague Convention, art. 3. As the parties do

not dispute the father's custody rights or exercise thereof,

neither of these factors are at issue in this case.

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child retained outside of his or her place of habitual residence. 

If the state in which a child is retained was also the child's

place of habitual residence immediately prior to retention, that

retention is not wrongful under the Hague Convention. See Barzilay

v. Barzilay, 600 F.3d 912, 917 (8th Cir. 2010). Thus, in order to

establish wrongful retention, the father bears the burden of

showing by a preponderance of the evidence that Singapore was the

children's state of habitual residence immediately prior to their

retention in the United States. See Darín, 746 F.3d at 9.

The district court determined that the children's

habitual residence immediately prior to their retention in January

20143 was Singapore. It thus concluded that the retention of the

children in the United States was wrongful, and it ordered that the

children be returned to Singapore. The mother contests these

findings, arguing that the district court's determination of

habitual residence was erroneous. Specifically, she claims that

the district court misapplied the legal test for habitual residence

by failing to analyze whether the parties ever intended to abandon

their habitual residence in the United States, and by placing undue

weight on evidence of the children's acclimatization in Singapore.

We review a district court's factual findings for clear

error while reviewing its interpretation and application of the

Hague Convention de novo. Id. at 8-9. As to a finding of habitual

3

 The parties do not dispute the date of retention.

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residence, we recently adopted the Seventh Circuit's approach,

whereby we defer to the court's findings of intent absent clear

error, but we review the ultimate determination of habitual

residence -- a mixed question of fact and law -- de novo. Id. at

9 (quoting Koch v. Koch, 450 F.3d 703, 710 (7th Cir. 2006)).

A. The parents' shared intent

Particularly when the child in question is very young,

our habitual-residence inquiry focuses on the parents' shared

intent and settled purpose rather than the child's, as a very young

child "lack[s] both the material and psychological means to decide

where he or she will reside." Id. at 11 ("'[T]he intention or

purpose which has to be taken into account is that of the person or

persons entitled to fix the place of the child's residence.'"

(quoting Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir. 2001))). In

the event that the parents disagree as to their children's place of

habitual residence, we look to the intent of the parents "at the

latest time that their intent was shared." Mota v. Castillo, 692

F.3d 108, 112 (2d Cir. 2012). This finding of shared intent is

critical, as the wishes of one parent alone are not sufficient to

change a child's habitual residence. Darín, 746 F.3d at 11.

Often, a wrongful retention case will require the

district court to determine which of two potential habitual

residences is in fact the habitual residence of a child who has

spent time in two or more countries. In such a situation, it is

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imperative that the district court distinguish "between the

abandonment of a prior habitual residence and the acquisition of a

new one." Id. "A person cannot acquire a new habitual residence

without forming a settled intention to abandon the one left behind. 

Otherwise, one is not habitually residing; one is away for a

temporary absence of long or short duration." Id. (internal

quotation marks and citations omitted).

In this case, the district court -- relying upon the

parties' affidavits and without the benefit of an evidentiary

hearing -- found that, "at a minimum, the parties agreed to move to

Singapore for three years, and the three-year period has not yet

elapsed." Accordingly, the court concluded that the parties'

shared intent was that their children reside in Singapore at the

time immediately prior to their retention.

The mother takes issue with this finding, noting that the

court seemingly ignored evidence that the family intended to retain

habitual residence in the United States. She argues that the court

erred when it failed to consider whether the parties intended to

abandon their prior habitual residence before concluding that they

acquired habitual residence in Singapore during the course of a

temporary stay. In short, we agree that the district court's

analysis of the children's habitual residence was erroneous.

The district court failed to differentiate between the

abandonment of a prior habitual residence and the creation of a new

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one as required by Darín.4 Instead, it merely found that the

parents agreed that the children would be present in a particular

place for a particular period of time that had yet to elapse. If

that constituted a sufficient finding of intent to establish

habitual residence, any parents consenting to a child spending an

academic year abroad or even a summer vacation visiting relatives

would risk changing their child's habitual residence. See Mozes,

239 F.3d at 1074 ("Even the child who goes off to summer camp

arguably has a settled purpose to live there continuously for a

limited period. . . . [But] he already has an established

residence elsewhere and his absence from it -- even for an entire

summer -- is no indication that he means to abandon it." (internal

quotation marks and citation omitted)).

Although the issue was squarely before the court, the

district court made no factual finding one way or the other as to

whether the parents intended to abandon their habitual residence in

the United States in favor of Singapore, or whether they intended

to retain their habitual residence while simply residing

temporarily in Singapore. As a result, the district court seems to

have overlooked an important factor in the habitual-residence

analysis. Cf. Gitter v. Gitter, 396 F.3d 124, 135 (2d Cir. 2005)

(finding that parents did not intend to abandon the family's

4 In fairness to the district judge, she did not have the benefit

of our opinion in Darín, which was issued several days after she

issued her order in this case.

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habitual residence in favor of Israel where the parents only agreed

to move to Israel temporarily for a one-year conditional period);

Holder v. Holder, 392 F.3d 1009, 1018-19 (9th Cir. 2004) (holding

that the parties lacked shared intent to abandon their habitual

residence in the United States where the family moved to Germany

for the father's temporary, four-year military assignment).

The father, in an effort to persuade us that the district

court's legal analysis was sufficient, reminds us that parents need

not intend to stay in a place indefinitely in order to establish

habitual residence; in certain circumstances, a settled intention

to stay in a place for a limited period may suffice. See Feder v.

Evans-Feder, 63 F.3d 217, 223 (3d Cir. 1995). In Feder, the Third

Circuit found that where a family moved to Australia, bought a

home, obtained jobs, enrolled their son in school, and intended for

their child to live in Australia "for at . . . least the

foreseeable future," the fact that the mother had reservations

about staying indefinitely and ultimately spent only six months in

Australia before deciding to leave with her son did not prevent

Australia from becoming the child's habitual residence. Id. at

224-25.

The readily distinguishable facts of Feder provide little

support for the father's argument. Most critically, here, the

parties did not agree to move to Singapore for "the foreseeable

future." While there is an ongoing dispute as to the precise

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nature of the parties' shared intent, both parties agree that their

time in Singapore was intended to be temporary, corresponding to a

three-year job placement. Additionally, the Feder family put their

home in the United States up for sale, but the parents in this case

did not, nor did they purchase a home in Singapore. Unlike Mrs.

Feder, the mother here was unable to work while abroad, and unlike

Mr. Feder, the father here was on temporary assignment and did not

pursue permanent resident status for his family in Singapore. 

Thus, it is far from clear that the family in this case intended to

abandon their habitual residence in the United States and establish

a new one in Singapore.

B. Acclimatization

Although we have recognized that in certain

circumstances, "'a child can lose its habitual attachment to a

place even without a parent's consent . . . if the objective facts

point unequivocally to a person's ordinary or habitual residence

being in a particular place,'" Darín, 746 F.3d at 11-12 (alteration

in original) (quoting Mozes, 239 F.3d at 1081), we have also

cautioned that "[i]n the absence of shared parental intent, the

district court should . . . be[] slow to infer an earlier habitual

residence has been abandoned," id. at 13 (internal quotation marks

and citation omitted). In the typical case, "[e]vidence of

acclimatization is not enough to establish a child's habitual

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residence in a new country when contrary parental intent exists." 

Id. at 12.

The facts found by the district court in this case do not

point so unequivocally towards Singapore being the children's

habitual residence that we can conclude the same in the absence of

a finding that the parties intended to abandon their habitual

residence in the United States. While "a child's life may become

so firmly embedded in [a] new country as to make it habitually

resident even though there be lingering parental intentions to the

contrary," id. at 12 n.14 (internal quotation marks and citation

omitted), here, the factual basis of the district court's

conclusion was very limited. In sum, the court found that the

children spent a substantial amount of time in Singapore and that

they had friends, books, and toys there. Although the district

court relied on McManus v. McManus, 354 F. Supp. 2d 62 (D. Mass.

2005), to support its acclimatization finding, McManus involved 

children between the ages of eleven and fourteen who, over the

course of two years living abroad, "enrolled in and attended

schools, joined organized sports teams, participated in church

activities, and engaged in other activities as residents of the

country would." Id. at 67 (finding habitual residence in Northern

Ireland when parents intended to live there indefinitely and

children were acclimatized).

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Here, in contrast, the children were ages one and two at

the time of retention. These ages are important, because

acclimatization is rarely, if ever, a significant factor when

children are very young. See Holder, 392 F.3d at 1020-21 (holding

that in the case of a ten-month-old child, it is "practically

impossible" for a child so young, "who is entirely dependent on its

parents, to acclimatize independent of the immediate home

environment of the parents"). They did not attend school and did

not participate in sports. None of their extended family lived in

Singapore, and they took multiple trips -- each several weeks long

-- to the United States during the year and a half that they lived

in Singapore. On these facts, we cannot conclude that the record

points unequivocally to the children's habitual residence being in

a particular place. Accordingly, we must remand the case to the

district court for a determination of the children's place of

habitual residence that considers whether or not the parents

intended to abandon their habitual residence in the United States.

III. Conclusion

The district court's habitual-residence analysis was

incomplete. The court erred by failing to determine whether the

parties intended to abandon their habitual residence in the United

States or whether they intended to retain it while residing abroad

temporarily. We therefore vacate the grant of the father's

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petition and remand the case for further proceedings consistent

with this opinion.

Recognizing that the district court is in the best

position to weigh the evidence and to assess the credibility of the

parties, we take no position as to whether the parents did or did

not intend to abandon their habitual residence in the United

States. No costs are awarded.

VACATED AND REMANDED.

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