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elvoye v. Lee, 329 F.3d 330 (3d Cir. 2003)
WIM DELVOYE, in the Matter of Sebastian Delvoye, an infant under the
age of one, Appellant, v. CHRISTINA LEE
No. 02-3943
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
329 F.3d 330
February 13, 2003, Argued
May 20, 2003, Filed
PRIOR HISTORY: [*1] On Appeal from the United States District
Court For the District of New Jersey. (D.C. Civ. No. 02-cv-00769).
District Court Judge: Faith S. Hochberg.
Delvoye v. Lee, 224 F. Supp. 2d 843, 2002 U.S. Dist. LEXIS 18199
(D.N.J., 2002)
DISPOSITION: Affirmed.
COUNSEL: DEAN G. YUZEK (ARGUED), JOAN WALTER, Ingram Yuzek Gainen
Carroll & Bertolotti, LLP, New York, NY. BERNARD G. POST, New York,
NY. Attorneys for Wim Delvoye, in the Matter of Sebastian Delvoye, an
infant under the age of one, Petitioner-Appellant.
ROBERT W. AVERY (ARGUED), Avery & Avery, Ridgefield, NJ. SUSAN M. LEE,
Englewood Cliffs, NJ. Attorneys for Christina Lee,
Respondent-Appellee.
JUDGES: Before: ALITO and McKEE, Circuit Judges, and SCHWARZER, *
Senior District Judge
* Honorable William W Schwarzer, Senior United States District for the
Northern District of California, sitting by designation.
OPINIONBY: SCHWARZER
OPINION: OPINION OF THE COURT
SCHWARZER, Senior District Judge.
This is an appeal from an order of the district court denying Wim
Delvoye's petition to return Baby S to Belgium under the Hague
Convention on the Civil Aspects of International Child Abduction, Oct.
25, 1980; T.I.A.S. No. 11670, 19 I.L.M. 1501 (the "Convention"). n1
The district court found and concluded that petitioner [*2] had
failed to meet his burden of proving that Baby S was an habitual
resident of Belgium and thus was wrongfully removed from that country.
We affirm.
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n1 The Convention is implemented at 42 U.S.C. 11603 (2003).
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FACTUAL AND PROCEDURAL BACKGROUND
Petitioner and respondent met in New York early in 2000. Petitioner
resided in Belgium but made several trips to visit respondent. On his
visits to New York, a romantic relationship developed between them. In
August 2000, respondent moved into petitioner's New York apartment.
While continuing to live in Belgium, petitioner spent about a quarter
of his time in New York. In September 2000, respondent learned that
she was pregnant with petitioner's child. Respondent began prenatal
care in New York, but because petitioner refused to pay the cost of
delivery of the baby in the United States and Belgium offered free
medical services, respondent agreed to have the baby in Belgium. In
November 2000, she traveled to Belgium on a three-month tourist [*3]
visa, bringing along only one or two suitcases. She left the rest of
her belongings, including her non-maternity clothes, in the New York
apartment. While in Belgium respondent lived out of her suitcases.
When her visa expired she did not extend it. The baby was born on May
14, 2001. By then the relationship between the parties had
deteriorated. After initially resisting, petitioner signed the consent
form that enabled respondent to get an American passport for Baby S
and agreed to respondent's return to the United States with Baby S in
July 2001. Over the next two months, petitioner made several trips to
the United States and the parties made several attempts to reconcile.
When those efforts failed, petitioner filed this petition. Following
an evidentiary hearing, the district court denied the petition. This
appeal followed. Because the order is a final disposition of the
petition, we have jurisdiction under 28 U.S.C. 1291.
DISCUSSION
Article 3 of the Convention provides in relevant part: The removal . .
.. of a child is to be considered wrongful where -- a) it is in breach
of rights of custody attributed to a person . . . either jointly or
alone, [*4] under the law of the State in which the child was
habitually resident immediately before the removal. . . .(Emphasis
added.)
The determination of a person's habitual residence is a mixed question
of fact and law. We review the district court's findings of historical
and narrative facts for clear error, but exercise plenary review over
the court's application of legal precepts to the facts. Feder v.
Evans-Feder, 63 F.3d 217, 222 n.9 (3d Cir. 1995); see also Mozes v.
Mozes, 239 F.3d 1067, 1073 (9th Cir. 2001).
The issue before us is whether Baby S was "habitually resident" in
Belgium at the time of his removal to the United States. In Feder, we
defined the relevant concept: [A] child's habitual residence is the
place where he . . . 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. . . . [A] determination of
whether any particular place satisfies this standard must focus on the
child and consists of an analysis of the child's circumstances in that
place and the parents' present, shared intentions regarding their
child's [*5] presence there. 63 F.3d at 224. The district court held
that petitioner had failed to meet his burden of proving that Baby S
was an habitual resident of Belgium. It reasoned that a two-month-old
infant, who is still nursing, has not been present long enough to have
an acclimatization apart from his parents.
This case then presents the unique question of whether and when a very
young infant acquires an habitual residence. It differs from the run
of decisions under the Convention where the child is assumed to have
an habitual residence initially and the controversy is over a change
of that residence. No decisions have squarely addressed the issue
before us. The leading treatise on the Convention provides some
general guidance:There is general agreement on a theoretical level
that because of the factual basis of the concept there is no place for
habitual residence of dependence. However, in practice it is often not
possible to make a distinction between the habitual residence of a
child and that of its custodian. Where a child is very young it would,
under ordinary circumstances, be very difficult for him . . . to have
the capability or intention to acquire [*6] a separate habitual
residence.Paul Beaumont & Peter McEleavy, The Hague Convention on
International Child Abduction 91(1999). An English court has said:
"The habitual residence of the child is where it last had a settled
home which was in essence where the matrimonial home was." Dickson v.
Dickson, 1990 SCLR 692. And an Australian court has stated: "A young
child cannot acquire habitual residence in isolation from those who
care for him. While 'A' lived with both parents, he shared their
common habitual residence or lack of it." Re F (1991) 1 F.L.R. 548,
551. n2
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