Hofit and Avraham were both born in Israel. As a child, Avraham moved the the United States with his mother and stepfather, but he did not attain citizenship. While in Israel for a vacation, Avraham was conscripted into the Israeli army. While serving, he met Hofit and they subsequently married. One child O, now four years old, relocated to the US from their native Israel because of Avraham's work. Prior to moving from Israel, the couple terminated their lease and disposed of all of their personal property other than what they took with them to the U.S. They moved in with Avraham's parents in Dayton, Ohio in April 2007.
The couple's relationship deteriorated and Hofit requested to return to Israel. Even though Avraham refused to allow O to go with her, Hofit returned to Israel. Once there, she instituted divorce proceedings. She filed a petition with the Israeli Central Authority for the return of O under the provisions of the Hague Abduction Convention. The parties conceded both were exercising custodial rights over O on the date Hofit flew back to Israel. Hofit contended because she was not permitted to take the child with her, O was "wrongfully retained" by his father in Ohio and should be "returned" to her custody in Israel.
The court held there was no wrongful removal or retention, simply because (a) there was no "removal" - wrongful or otherwise - other than resulting from the parents' mutual decision to relocate O from Israel to the US, and (b) there was no "wrongful retention" of the child by Avraham, who had an equal right with Hofit to O's custody in the absence of a court order or judicial determination to the contrary.
In refusing to let Hofit take O to Israel, Avraham may arguably have committed a breach of Hofit's "rights of access" to O, but he did not commit a "breach of rights of custody . . . under the law of the State in which the child was habitually resident immediately before the [alleged] removal or retention." The court affirmed the district court's dismissal of the mother's petition for custody under the Hague Abduction Convention.
The Court took the opportunity to once again examine the meaning the term "habitual residence" has under the Hague Convention, particularly because that term is not defined in the Convention. Hofit argued that Orin has a unique heritage as an Israeli Jew that can only be properly developed in Israel."
Citing an earlier 6th Circuit case, the Court made clear that "habitual residence must not be confused with domicile. To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich v. Friedrich (Friedrich 1), 983 F.2d 1396, 1401 (6th Cir. 1993).
"Our precedent requires that we consider a child’s habitual residence to be “the nation where, at the time of [a wrongful removal or retention], the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective. Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007) (quoting Feder v.Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)).
In Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006), the Third Circuit listed
several factors that a court could consider in determining a child’s habitual residence.
in our opinion in Robert, we found many of those Karkkainen factors applicable to the
dispute before us and noted:
[T]he Third Circuit held that academic activities are among the most
central . . . in a child’s life and therefore highly suggestive of
acclimatization. The court also noted that social engagements,
participation in sports programs and excursions, and meaningful
connections with the people and places in the child’s new country all
point to the child being acclimatized. Additionally, the court held that
the fact that [the child] brought more personal belongings with her than
usual, in anticipation that she would remain [in the United States] was
evidence of a settled purpose to reside in the United States.
Robert, 507 F.3d at 996 (citations and internal quotation marks omitted).
Judge Kennedy dissented. He would hold that Avrarham did breach Hofit's "right of custody" under both Israeli and Ohio law. That right, said Kennedy, includes the right to determine the child's place of residence.