Brennan v Cibault (A.D. 4 Dept 1996)
643 N.Y.S.2d 780
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<* pg. 781>
Before: Pine, J.P., and Fallon, Callahan, Doerr and Davis, JJ.
Date: 10 May 1996
MEMORANDUM:
Petitioner is a United States citizen and respondent is a French
citizen. They met in New York in June 1990, while respondent was
attending a summer session as Fordham University. Approximately
one year later, petitioner moved to Paris, France, where the
parties were married on November 30, 1991. Their daughter, Zoe,
was born in France on February 17, 1994. With the exception of
visits to petitioner's mother in Oswego, New York, the parties
lived in France ' until June 26, 1995, when petitioner and Zoe
arrived in New York for a six-week visit with petitioner's mother.
Petitioner had round-trip tickets, and was expected to return to
France on August 4, 1995.
The marriage had been troubled, however, and in telephone calls
during the months of July and August, the parties decided to
separate. Petitioner indicated that he would not return to live in
France if the parties were not going to remain together. They
discussed sharing custody of Zoe, with her spending six months
with each of them. Respondent testified at the hearing that she
offered petitioner the first six-month period with Zoe but
informed him that she expected Zoe to return to France on December
26, 1995. Petitioner admitted having those discussions but denied
that he specifically agreed to the arrangement. In any event, in
August 1995, respondent purchased round-trip tickets to fly to New
York on December 30, 1995, and to return to France with Zoe on
January 1, 1996. Respondent agreed to allow Zoe to remain with
petitioner until December 30 to attend a family wedding.
In the fall of 1995, unbeknownst to respondent, petitioner sought
legal advice about obtaining custody of Zoe. He was informed that
Zoe would have to live in New York State for six months in order
for a New York court to have jurisdiction over a custody
proceeding involving her. He did not inform respondent of that
information.
On December 28, 1995, petitioner commenced a proceeding in Oswego
County Family Court seeking custody of Zoe. Respondent was served
with an order to show cause on the same day that she arrived in
New York to pick up Zoe. The order to show cause granted temporary
custody of Zoe to petitioner and directed that Zoe remain within
the jurisdiction of the court pending determination of the
petition.
At an appearance before Family Court on January 4, 1996,
respondent made an oral application to dismiss the petition for
lack of jurisdiction and on the further ground that Zoe was being
wrongfully retained in New York in violation of the Convention on
the Civil Aspects of International Child Abduction (Hague
Convention) and its enabling legislation, the International Child
Abduction Remedies Act (ICARA, 42 USC 11601-11610). Following a
hearing on January 4, 1996, the court denied respondent's
application to dismiss the petition. The court held that Zoe was
not a habitual resident of France within the meaning of the Hague
Convention, and that, even if she were, she was not being retained
wrongfully in New York because respondent had acquiesced to her
residence in New York. Respondent appeals.
The court erred in concluding that Zoe was not a habitual resident
of France. Because the Hague Convention does not de- <* pg. 782>
fine the term "habitual resident", its interpretation has been
left to the courts. Courts interpreting that term have held that
it refers to a "degree of settled purpose", as evidenced by the
child's circumstances in that place and the shared intentions of
the parents regarding their child's presence there (see, Feder v
Evan's-Feder (3rd Cir. 1995) 63 F.3d 217, 224; Friedrich v
Friedrich (6th Cir. 1993) 983 F.2d 1396, 1401). The focus is on
the child rather than the parents, and on past experience rather
than future intention (Friedrich v Friedrich, supra at 1401).
Application of those principles here compels the conclusion that
France is Zoe's habitual residence. Zoe's parents were married
there and had established professions and a home there, and Zoe
was born in France and lived there for the first 16 months of her
life, before she left for what was to be a six-week visit with her
grandmother in New York. Those facts reflect a settled purpose on
the part of the parties to establish Zoe's life in France.
The court's reliance on Matter of Falls v Downie (D.Mass. 1994)
871 F.Supp. 100 is misplaced. In that case, the parties were not
married and the child's mother, a German citizen, had given the
child's father, a United States citizen, permission to take the
child to live in the United States for an indefinite period of
time. Here, when Zoe left France, respondent had consented to
Zoe's absence for only six weeks. Eventually, she gave her consent
for Zoe to remain until December 30, 1995, but she never agreed
that Zoe remain beyond that time and certainly never agreed that
she remain indefinitely.
Because Zoe's habitual residence was in France, and petitioner
wrongfully retained Zoe in New York in derogation of respondent's
equal right to custody of her under the laws of France, Family
Court should have dismissed the petition and issued an order
pursuant to article 12 of the Hague Convention requiring that Zoe
be returned forthwith to respondent in France. We hereby so order,
noting, however, that, after the entry of the order on appeal,
Family Court allowed respondent to return to France with Zoe
pending a full custody hearing scheduled in Family Court in late
May. Any future custody application should be made in the courts
of France but, should they decline to determine the issue of
custody of Zoe, petitioner would then be entitled to commence a
custody proceeding in New York (see, Errol v. Ertel 197 A.D.2d
900, 901 [602 N.Y.S.2d 260]).
Order unanimously reversed on the law without costs, petition
dismissed and application granted.