Case of the Month Archive

A divided Ninth Circuit held district court did not clearly err by finding children had no habitual residence for purposes of Hague Convention. . .

In affirmance, the Ninth Circuit majority held district court's determination that children had no habitual residence for purposes of petition under Hague Convention was not clearly erroneous, where mother viewed her residence in Scotland as temporary and intended to return to the U.S., where mother and children did not build meaningful relationships with people in Scotland, and where father was sentenced to indefinite psychiatric confinement after killing his mother.

Andrew Nisbit and Spirit Bridger met in 2012 in New York. Andrew, a British citizen, lived and worked in Scotland. Spirit, a U.S. citizen, lived in Oregon. Spirit reluctantly moved to Scotland with Andrew, since Andrew could not work in the U.S. After becoming pregnant with their first child (A.N.) in 2017, the parties attempted to move in with Andrew's parents on the Island of Jersey (Jersey), a British Crown Dependency. After Andrew's parents initially rejected his request to move in with them, Andrew attempted suicide but survived. Later, Andrew took Spirit and showed up uninvited at his parents' house in Jersey. Andrew's parents reluctantly allowed them to stay at an annex of their residence while Spirit was pregnant with A.N.

In January 2018, Andrew again attempted suicide, this time by throwing himself out of a twenty-foot-high window onto a concrete patio. Although Andrew again survived, this suicide attempt caused substantial injuries that left him bedridden for seven months.

In February 2018, A.N. was born in Jersey, after which Spirit took care of both Andrew and A.N. After Andrew recovered from his injuries, the parties returned with A.N. to Scotland. Although Spirit had decided to move with A.N. to the U.S., Andrew convinced Spirit to remain in Scotland while he attempted to reconcile with his parents.

In February 2019, Spirit returned to Jersey with A.N. after Andrew assured her that he had resolved all issues with his parents. Despite this assurance, Andrew's relationship with his parents continued to deteriorate. In August 2019, Andrew's parents served a notice of eviction on the parties. Later that month, during a confrontation about the eviction, Andrew killed his mother by stabbing her in the neck with a pocketknife. Andrew was arrested and pleaded guilty to manslaughter on the grounds of diminished responsibility owing to mental disorder. Andrew was sentenced to indefinite psychiatric confinement at a secure mental health facility in Jersey.

Around the same time, Spirit had become pregnant with another child (K.N.). After Andrew was arrested, Spirit returned to Scotland to give birth to K.N. Spirit's decision to remain in Scotland instead of return to the U.S. was based in part on the fact that she did not have health insurance in the U.S., and she believed she needed to remain available while the criminal case against Andrew was pending.

K.N. was born in February 2020. Shortly thereafter, the COVID-19 pandemic closed country borders and airlines. For some time thereafter, Andrew refused to sign K.N.'s application for a U.S. passport, preventing Spirit and the children from moving to the U.S.

While in Scotland, the children attended a nursery school and received regular medical and dental care. Although Spirit and the children made acquaintances while in Scotland, they did not make any friends and "'never knew anyone on a name basis.'"

The children visited Andrew several times at his hospital in England. Andrew also scheduled daily Skype calls from his psychiatric facility in England. Although Andrew would read stories and play games with the children, they would become distracted and disinterested in the visitation after a brief period.

Spirit testified that she never intended for Scotland to be more than a temporary address for her and the children. When Andrew finally signed the necessary documents for K.N.'s U.S. passport, Spirit began the process of moving to the U.S., which she did with the children on June 17, 2022.

On June 12, 2023, Andrew petitioned under the Hague Convention that the children be returned to Scotland, which he alleged was their habitual residence. After a three-day trial, the U.S. District Court for the District of Oregon (district court) denied Andrew's petition, finding that Andrew failed to prove by a preponderance of the evidence that Scotland was the children's habitual residence. In so ruling, the district court found the children had no habitual residence. The district court also concluded that returning the children to Scotland posed a grave risk of harm and intolerable situation to the children. Andrew appealed, but the Ninth Circuit affirmed.

The majority judges began their analysis by describing the applicable law. Under article 12 of the Hague Convention, a child wrongfully removed from her country of habitual residence ordinarily must be returned to that country. In general, a child's habitual residence is "'the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective.'" When determining a child's habitual residence, courts look at "'the totality of the circumstances specific to [each] case.'" Courts, moreover, must be "'sensitive to the unique circumstances of [each] case and informed by common sense.'" Some factors to consider are "'whether the child developed a certain routine and acquired a sense of environmental normalcy by forming meaningful connections with the people and places she encountered.'" Per Monasky v. Taglieri (2020) 589 U.S. 68, 140 S.Ct. 719, when a child is unable to acclimate due to his young age, "'the intentions and circumstances of caregiving parents are relevant considerations.'" Finally, the judges observed the deferential standard of review for a district court's habitual residence determination.

The majority's common-sense approach. . .
With these legal principles in mind, the majority held the district court's determination that the children had no habitual residence, including no habitual residence in Scotland, was not clearly erroneous. First, the judges concluded the district court did not clearly err by concluding the children had no family or friends in Scotland. Not only did Andrew's family sever contact with Andrew, Spirit, and their children, but Andrew himself was confined in England after his sentencing and, as a result, had limited contact with the children. The district court also found that the children did not make any friends at their nursery or anywhere else in Scotland.

Second, the majority concluded that the district court did not commit clear error by concluding the children had no meaningful relationship with Andrew. The judges noted that although Andrew and the children had a few in-person visits and regular Skype chats after Andrew was confined to a psychiatric hospital, the relevant inquiry is whether the children have built meaningful connections with the people in Scotland. Here, the district court determined the children's relationship with Andrew was not meaningful for purposes of the Hague Convention, a determination made based on the entirety of the record, including the credible testimony of Spirit.

The majority next held that the district court did not clearly err by focusing on the intention and circumstances of Spirit when determining the children's habitual residence. As set forth in Monasky, such consideration is permitted when the children-like A.N. and K.N.-are very young in age and, therefore, unable to establish their own habitual residence. As for Spirit, she "'had been shuttled through Jersey shelters,'" "'repeatedly contemplated moving back to Oregon,'" and was in the U.K. "'on an expiring visa.'" The judges noted that Spirit's immigration status is a relevant consideration under Monasky, particularly since Spirit was the only parent capable of being a caregiver after Andrew was imprisoned.

In reaching its holding, the majority rejected several arguments set forth by Andrew. First, the majority disagreed with Andrew's argument that the district court erred by finding the children had no habitual residence. While acknowledging that a finding of no habitual residence should be rare and disfavored, the majority noted that, per Monasky, "'[t]here are no categorical requirements for establishing a child's habitual residence.'" Second, the majority rejected Andrew's argument that the district court erred by finding the children had not habitually resided in Scotland despite living there their entire lives. The judges again turned to Monasky, this time for its statement that a child's "'mere physical presence' in a country 'is not a dispositive indicator of his habitual residence." The judges added that this is particularly true where the children's physical presence in the country did not yield any meaningful relationships. And third, the majority rejected Andrew's argument that the court wrongfully rested its decision on his alleged coercive behavior toward Spirit. On this point, the majority noted the district court made its comments about Andrew's coercive behavior only after it resolved the case in Spirit's favor and, in any case, such factor is a relevant consideration when determining habitual residence.

The majority's response to the dissent. . .
Lastly, the majority answered some of the criticisms of the dissent, starting with the dissent's urging for a de novo standard of review. According to the majority, the dissent relies on a pre-Monasky case in support of its preferred standard of review. But the majority refused to defy Monasky, stating that "[w]e decline the dissent's invitation to insubordination by regressing to a pre-Monasky world." Second, the majority believed the dissent disregarded the totality-of-the-circumstances test after finding it too standardless while at the same time "select[ing] some factors to its liking but downgrad[ing] others" in reaching its conclusion that the children habitually resided in Scotland. And third, the majority criticized the dissent for stepping into the role of the district court and attempting to reweigh the factors. On this point, the majority acknowledged that the record could be read to find the children's habitual residence is Scotland but added that such fact "does not mean the district court clearly erred in finding otherwise," since the clear-error standard "admits the possibility that more than one inference can be drawn from any given record."

Accordingly, the Ninth Circuit majority affirmed the district court's order.

Susan was not mentally incapacitated. . .
Applying these legal principles to the instant case, the justices concluded that the evidence did not compel a finding of mental incapacity. Although the trial court found Susan "'was likely depressed and anxious,'" which are two of the enumerated mental deficits under Prob C §811(a), Susan also undertook several financial transactions during the period in question that demonstrated planning, organization, and communication with others. For example, during the period in question, Susan sold her house and used the sale proceeds to pay her property taxes, obtained a cashier's check that she used to pay Katherine's tuition, wrote and cashed checks, and sold several personal property items. Susan also demonstrated that she was able to leave her home during this period, including to attend Katherine's graduation and to shop and run errands.

The justices further concluded that the evidence did not support a finding that Susan was unable to understand and appreciate the consequences of her failure to participate in the dissolution proceeding. First, Susan testified that she understood the dissolution action was moving forward, albeit she noted that she believed it was proceeding to settlement. Second, Susan admitted that she received a copy of the judgment in the mail in 2016 but decided not to read it until several months later. Third, Susan spent several years as a practicing lawyer. And fourth, Susan's testimony that she did not remember the two-year period in question was undermined by her insistence that certain events did or did not occur. For example, Susan insisted that Katherine did not visit her as often as Katherine claimed in her declaration. Susan also insisted that other witnesses who claimed to see Susan driving herself to family events were wrong.

Dissent. . .
In a dissenting opinion, Judge Bybee found the children habitually resided in Scotland. For the dissent, "[t]his should have been a very simple case." Except for brief periods in which she lived in Jersey, Spirit lived in Scotland for seven years before moving to the U.S. Meanwhile, the parties' children lived in Scotland with their parents and, in the case of K.N., he had lived only in Scotland and never anywhere else. The children attended nursery school in Scotland and received medical and dental care there. Moreover, Andrew owned the apartment in Scotland in which the parties and their children resided. According to the dissent, the district court and majority's conclusion that the children did not have a habitual residence "is beyond all reason." Instead, applying the common sense approach described in Monasky, the dissent remarked that "'some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.'"

The dissent expressed its belief that the district court and majority reached their conclusions by considering what is in the best interests of the children rather than whether the children habitually resided in Scotland. Although the dissent agreed that Oregon is the obvious better location for the children, it noted that such is not the question the district court was tasked with answering. The dissent added that the question of habitual residence under the Hague Convention is a "'provisional remedy that fixes the forum for custody proceedings" and that there is no evidence that Scottish courts are not capable of protecting children in such proceedings.