Guzzo v Cristofano 2013 WL 2476835 2d Cir. Habitual Residence

[In Guzzo, the Father, an Italian citizen and the Mother, an American citizen, met on a airplane flight to Italy and eventually married in New York.  They maintained a “bi-continental” marriage for a time and in 2007 agreed that the mother and child would live in Italy and visit New York from time to time.  In 2009, the Mother took the child to New York and told the Father she wanted a separation.

In June 2009 the parties signed a separation agreement giving the Mother custody of the child and stipulating that the child would attend school in White Plains, New York.

In 2010, the Mother took the child to Italy and attempted a reconciliation.  She subsequently returned to New York with the child with the intent not to return to Italy.]

Judge Carbanes recounts the Gitter test for habitual residence:

“The District Court began by restating our two-part test for determining a child’s habitual residence. Id. at *5 (citing Gitter, 396 F.3d at 134). Under that test, a court must first “inquire into the shared intent of those entitled to fix the child’s residence . . . at the [last] time that their intent was shared.” Gitter, 396 F.3d at 134. If a court concludes that the parents did not intend to change a child’s habitual residence, it then must assess “whether the evidence unequivocally points to the conclusion” that the child has acclimated to the new location, notwithstanding the parents’ intentions. Id. The District Court noted that the Father had rested his petition entirely on the first prong, arguing that the parents had agreed to change the child’s habitual residence to Italy; he had explicitly abandoned any argument that the child had acclimated to life in Italy. See Guzzo, 2011 WL 6934108, at *5 n.2.”

…later in the opinion….

Understood in an ordinary and nontechnical way, a child’s “habitual residence” is simply the place where he usually or customary lives.5 See, e.g., Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 1995) (noting “no real distinction between habitual and ordinary residence” (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993), in turn citing Re Bates, No. CA 122.89, High Court of Justice, United Kingdom (1989))). “‘[I]n their natural and ordinary meaning[,] the words mean that the person must be habitually and normally resident [in that country], apart from temporary or occasional absences of long or short duration.'” Mozes, 239 F.3d at 1073 (quoting Shah v. Barnet London Borough Council, [1983] 1 All E.R. 226, 233 (Eng. H.L.)); see also id. at 1073 n. 13. Or, put another way, “we might say that if we observe someone centering his life around a particular location during a given period, so that every time he goes away from it he also comes back, we will call this his habitual residence.” Id. at 1073-74. Under the Hague Convention, a petitioner bears the burden of establishing by a preponderance of the evidence a child’s habitual residence at the time of the contested removal. See Mota v. Castillo, 692 F.3d 108, 112 (2d Cir. 2012) (citing 42 U.S.C. § 11603(e)(1)(A)).”

more confusion…

“Accordingly, “we will presume that a child’s habitual residence is consistent with the intentions of those entitled to fix the child’s residence at the time those intentions were mutually shared.” Id. at 133. At the same time, however, “parental intent cannot alone establish a child’s habitual residence,” nor can it prevent a habitual residence from changing. Id. Instead, a child’s habitual residence changes when the child becomes settled in another country, even if one or both of the parents intend for the child to return to the original country of habitual residence.”

 

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