United States Court of Appeals For the Seventh Circuit
International Law — ICARA
Where a family lived in Australia from 1998 to 2010, it was error to hold that its habitual residence was the United States.
“While parts of Norene’s testimony thus show that the couple might have been considering relocating to the United States, this is a perilously thin basis for inferring that their trip in 2010 was truly intended to be the start of that permanent move. Moreover, other uncontroverted evidence undermines this inference. For instance, the bulk of the family’s possessions, as well as Chubba the family dog, remained in Australia; Iain and Norene were in the process of rebuilding their house in Australia; and Norene herself stated—both in testimony and in emails to friends—that she intended to stay in the United States until June 2011 at the latest, and that she did not make up her mind to remain in the United States until she received the January 21 letter. The evidence that Iain and Norene mutually intended to abandon Australia and take up residence in the United States is simply too contradictory and underdeveloped to support the district court’s habitual residence finding. Nor were the children in the United States for so long prior to the filing of the petition for return that their lives ‘bec[a]me so firmly embedded in the new country as to make [them] habitually resident’ in the United States regardless of their parents’ lack of mutual intent to establish a habitual residence here. Mozes, 239 F.3d at 1078.”
Reversed and Remanded.
Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Wood, J.