Zuker v. Andrews

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit No. 98-1622 ALEJANDRO G. ZUKER, Plaintiff, Appellant, v. PATRICIA K. ANDREWS, Defendant, Appellee. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge] Before Stahl, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge. Alejandro Gustavo Zuker on brief pro se. Anne Marie Corraro and Thomas J. Barbar on brief for appellee. April 9, 1999 Per Curiam. Petitioner-Appellant Alejandro Zuker appeals from the district court's denial of his petition for the return of his five-year-old child, pursuant to the Hague Convention on the Civil Aspects of Child Abduction ("the Convention"), as implemented by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. 11601 et seq. The petition alleged that Respondent-Appellee, Patricia K. Andrews, had wrongfully retained the parties' child, Sasha Andrew Zuker, from his "habitual residence" in Argentina. "[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. . . . [A] determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995). To find "settled purpose," it is not necessary to find that there is an intention to stay in the place indefinitely. See id. at 223. The purpose "'may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode . . . .'" Id. (quoting re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)). The district court made no legal error in concluding that at the time of the retention, in February 1997, the child's habitual residence was Massachusetts. On appeal, petitioner argues that the district court erred because the requisite element of "shared intent" was missing. We disagree. The evidence supports a finding that by February 1997, the parties had a "present shared intent" that Andrews and Sasha would stay, at least temporarily, in Massachusetts where Andrews had work and Sasha was enrolled in daycare. That Andrews and Zuker had not reached agreement about where the family ultimately would settle is immaterial. See re Bates, supra. The district court judgment dated April 10, 1998, dismissing the Petition for Return of Child is affirmed. See Loc. R. 27.1. Appellee's motion to strike certain exhibits to Appellant's Brief is denied as moot.