Eighth Circuit explains that child’s perspective is paramount in determining habitual residence under ICARA.

Stern v. Stern, No. 10-2493.

Facts

Michelle Garland Stern, who has dual citizenship of the United States and Israel, first met Michael Stern, who has dual citizenship of Israel and Canada, in 2000 during a visit to Israel. Michelle later moved to Israel, and the two were married in a religious ceremony. Their son DJ was born in 2003.

In August 2005, Michelle moved to Iowa to complete a doctoral program at Iowa State University. Martin followed in October 2005, after closing his taxi business in Israel. They were married in a civil ceremony in 2006, but Michelle filed for divorce in October 2007. They attempted reconciliation, but Martin eventually moved back to Israel in February 2008. Michelle proceeded with the divorce and was granted temporary custody of DJ.

Martin then brought a separate suit in federal court, petitioning for DJ’s return under the International Child Abduction Remedies Act (“ICARA”). After a bench trial, the trial court denied Martin’s petition, noting that DJ’s habitual residence at the time of the alleged wrongful retention was the United States.

Appeal

On appeal, the Eighth Circuit Court of Appeals noted that the ICARA does not control substantive custody disputes. Instead, it governs selection of the forum where such a dispute should be brought. The court explained that the key question under the ICARA is “whether a child has been wrongfully removed from the country of its habitual residence or wrongfully retained in a country other than that of its habitual residence.” The court then listed factors to be considered in determining a child’s habitual residence:

1. The settled purpose of the move from one country to another from the child’s perspective.
2. Parental intent regarding the move.
3. Change in geography.
4. Passage of time.
5. The child’s acclimation to the new country.

Martin argued that the trial court gave insufficient weight to the parties’ intent to return to Israel after Michelle finished her degree. The court, however, agreed with the trial court that the child’s perspective was paramount. From DJ’s perspective, the settled purpose of his relocation to Iowa was to reside there permanently, at least until Michelle finished her degree. Settled purpose does not require an intention to stay in the new location forever, but does focus on the perceptions and acclimations of the child.

Accordingly, the court affirmed the trial court’s decision.

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