Eighth Circuit Standard of Review Habitual Residence Hague Abduction

559 F.3d 871 Eric W. SORENSON, Plaintiff-Appellant, v. Janea M. SORENSON, Defendant-Appellee. No. 08-2098.United States Court of Appeals, Eighth Circuit.Submitted  December 12, 2008. Filed: March 23, 2009.

         The Court has jurisdiction pursuant to 28 U.S.C. § 1291 (2000). Determinations of habitual residence under the Hague Convention raise mixed questions of law and fact, and should be reviewed de novo. Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003) (en banc). Determinations of intent, however, involve questions of fact and the Court must defer to the district court’s findings unless they are clearly erroneous. See, e.g., Koch v. Koch, 450 F.3d 703, 710 (7th Cir.2006).”


As of June 2007, E.S.S. had experienced a clear change in geography as the Sorensons moved to Australia along with most of their possessions. A substantial amount of time, three years, had also passed prior to the alleged retention. By this point, E.S.S. was settled and acclimatized to life in Australia, and even spoke with an Australian accent. Additionally, all of E.S.S.’s friends lived in Australia, and she was enrolled in preschool. In short, E.S.S. had spent the overwhelming majority of her life in, and the majority of her connections were to, Australia as of June 2007.4

As the parents’ intentions at the time of the move are relevant, we also consider this factor. Here, the district court found that Eric and Janea’s shared intention was to live in Australia for an indefinite period of time, but at the minimum, a period of three years. The district court further concluded that the parties did not have a mutual shared intention to return to Minnesota, or the United States, upon completion of the work transfer. This determination of intent was supported by the witness John Vento, who stated that Eric would have had further opportunities with the computing firm upon completion of the three year term, which could have been in the firm’s Australian offices or another U.S. location. The district court’s determination of intent is not clearly erroneous, and adds further support to our de novo review of the district court’s habitual residence determination.”


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