FILED
NOT FOR PUBLICATION APR 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: A.L.C; E.R.S.C., Infants under the No. 14-55671
age of 16,
D.C. No. 2:14-cv-01506-ODW-SH
ANDREAS CARLWIG,
MEMORANDUM*
Petitioner - Appellee,
v.
SARODJINY CARLWIG,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted March 2, 2015
Pasadena, California
Before: PREGERSON, FERNANDEZ, and NGUYEN, Circuit Judges.
Sarodjiny “Sarah” Carlwig appeals the decision and order of the district
court sending A.L.C. and E.R.S.C., her dual-national American and Swedish
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
children, to Sweden pursuant to the Convention on the Civil Aspects of
International Child Abduction (the “Convention”), and its implementing
legislation, the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001-
11. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s
decision relating to A.L.C., vacate the portion of the decision relating to E.R.S.C.,
and decline to issue a re-return order as to E.R.S.C.
“[H]abitual residence analysis is . . . a mixed question of fact and law under
which we review essentially factual questions for clear error and the ultimate issue
of habitual residency de novo.” Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir.
2004) (internal citation and quotation marks omitted). We “must consider the
unique circumstances of each case when inquiring into a child’s habitual
residence.” Id. at 1016.
1. We affirm the judgment of the district court that A.L.C. is a habitual
resident of Sweden, where he now resides with his father, Andreas Carlwig.
When a child moves between nations and a parent files a Convention
petition revealing a dispute over habitual residence, we first “look for the last
shared, settled intent of the parents.” Valenzuela v. Michel, 736 F.3d 1173, 1177
(9th Cir. 2013). In conducting our review we give “appropriate deference to the
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district court’s findings of fact and credibility determinations.” Papakosmas v.
Papakosmas, 483 F.3d 617, 623 (9th Cir. 2007).
When an examination of shared intent does not resolve a dispute between
two potential habitual residences, a child’s newer residence can be found to be the
child’s habitual residence when “the objective facts point unequivocally” to “the
child’s relative attachments to the two countries [changing] to the point where
requiring return to the original forum would now be tantamount to taking the child
out of the family and social environment in which its life has developed,” a process
known as acclimatization. Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir. 2001)
(internal quotation marks and citations omitted). We are mindful that we must be
“slow to infer from contacts with a new country that an earlier habitual residence
has been abandoned, both because the inquiry is fraught with difficulty, and
because readily inferring abandonment would circumvent the purpose of the
Convention.” Murphy v. Sloan, 764 F.3d 1144, 1152-53 (9th Cir. 2014)
(alterations and internal quotation mark omitted).
3
When the Carlwig family moved to Sweden in 2012,1 they established a
regular household together, enrolled A.L.C. in local pre-school, and supported
A.L.C.’s participation in soccer, swimming, and martial arts. A.L.C. spent time
with his father’s relatives and demonstrated fluency in the Swedish language.
Over thirteen months, A.L.C.’s circumstances and activities demonstrate that he
acclimatized to Sweden and that country became the primary locus of his life. See
Mozes, 239 F.3d at 1078-79. We agree with the district court that A.L.C. became a
habitual resident of Sweden.
In February 2013, A.L.C. traveled to Los Angeles with his pregnant mother,
leaving his father behind in Sweden. During several month in Los Angeles, A.L.C.
1
The district court did not clearly err in its factual determination that the
Carlwigs abandoned any habitual residence that the family shared in Dubai,
A.L.C.’s 2008 birthplace. See Mozes, 239 F.3d at 1075-76 (finding an intent to
abandon a habitual residence is a question of fact best determined by the district
court).
Both parents agree that the family left nothing behind and that the family
maintained no contacts after moving to Sweden in 2012. Where a family
“manifest[s] a settled purpose to change habitual residence, despite the fact that
one parent may have had qualms about the move[,]” courts generally recognize a
shift in habitual residence. Id. at 1076. The distinction between the qualms of a
spouse during a move and the coercion of one spouse by another to affect an
involuntary move is of concern in the court’s analysis, see Tsarbopoulos v.
Tsarbopoulos, 176 F. Supp. 2d 1045, 1056 (E.D. Wash. 2001), but Ms. Carlwig
does not argue before this court that her move to Sweden was coerced or
involuntary.
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did develop contacts in the United States. Ms. Carlwig enrolled A.L.C. in summer
camp, pre-school, and extracurricular activities.
However, A.L.C.’s contacts developed in the shadow of disagreement
between his parents over the trip’s purpose. Ms. Carlwig argues that she intended
to move permanently to the United States with A.L.C. The district court found that
Mr. Carlwig believed the trip’s purpose was for Ms. Carlwig to give birth and
recover before returning with the children to Sweden. The district court did not err
in holding that Mr. Carlwig intended A.L.C.’s trip to last approximately six
months.
During A.L.C.’s time in the United States, Mr. Carlwig maintained active
involvement in his son’s life, arranging regular communication with A.L.C. from
Sweden, visiting A.L.C. in Los Angeles, and making preparations for A.L.C.’s
return to Sweden. There is no evidence in the record of a shared parental intent for
A.L.C. to move permanently to the United States and there is significant evidence
of Mr. Carlwig actively objecting to A.L.C.’s time in Los Angeles lasting more
than six months.
Without a shared parental intent for a permanent change of habitual
residence, we find that A.L.C.’s contacts and relative attachments in Los Angeles
were insufficient to prove unequivocally that he had acclimatized to United States
5
or that his habitual residence in Sweden had been abandoned. Id. at 1081. The
district court was correct to order A.L.C. returned to his habitual residence,
Sweden, under the Convention and we affirm.
2. We vacate the judgment of the district court that E.R.S.C. was a habitual
resident of Sweden. The district court clearly erred in finding E.R.S.C. could be a
habitual resident of a nation in which she never resided.
We “interpret the expression ‘habitual residence’ according to the ordinary
and natural meaning of the two words it contains.” Id. at 1071 (internal quotation
mark and citation omitted). “Habitual residence” describes “a factual state of
affairs” and we recognize the obvious truth that “habitual residence cannot be
acquired without physical presence.” Id. at 1080-81. E.R.S.C. had never been to
Sweden prior to the execution of the district court’s order.
The district court’s effort to sift through the past intentions of Sarah and
Andreas Carlwig to find a moment of settled, shared intent for E.R.S.C. to
someday reside in Sweden was erroneous.
We reject the other rationales cited by the district court in deciding E.R.S.C.
was a habitual resident of Sweden. The district court’s explanations that it would
be untenable to split up the siblings for custody determinations and that Mr.
Carlwig is employed in Sweden while Ms. Carlwig “is unemployed here in the
6
U.S. and rel[ies] on financial support from [the] Father as well as governmental
assistance,” because they go to the merits of the custody claims and are not
relevant to the Convention’s required analysis. See 22 U.S.C. § 9001(b)(4) (“The
Convention and this chapter empower courts in the United States to determine only
rights under the Convention and not the merits of any underlying child custody
claims.”).
The district court clearly erred in finding E.R.S.C. was a habitual resident of
Sweden and we vacate its decision.
3. We agree with the district court’s determination that E.R.S.C. was not a
habitual resident of the United States.
A child’s “place of birth is not automatically the child’s habitual residence.”
Holder, 392 F.3d at 1020. The court has found that when “a child is born where
the parents have their habitual residence, the child normally should be regarded as
a habitual resident of that country.” Id. E.R.S.C. was not born into that simple
situation. Nor is E.R.S.C.’s habitual residence derived automatically from her
mother’s location and caregiving. See Nunez-Escudero v. Tice-Menley, 58 F.3d
374, 379 (8th Cir. 1995); Friedrich v. Friedrich, 983 F.2d 1396, 1401-02 (6th Cir.
1993).
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Justifying E.R.S.C.’s habitual residence as the United States based on her
contacts in Los Angeles is ineffective as “it is practically impossible for a newborn
child, who is entirely dependent on its parents, to acclimatize independent of the
immediate home environment.” Holder, 392 F.3d at 1020-21. When a child is
born under a cloud of disagreement between parents over the child’s habitual
residence, and a child remains of a tender age in which contacts outside the
immediate home cannot practically develop into deep-rooted ties, a child remains
without a habitual residence because “if an attachment to a State does not exist, it
should hardly be invented.” Id. at 1020 (quoting Paul R. Beaumont & Peter E.
McEleavy, The Hague Convention on International Child Abduction 89, 112
(1999)); see also Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003) (stating that
when a “conflict [of parental intent] is contemporaneous with the birth of the child,
no habitual residence may ever come into existence.”)
We find that E.R.S.C.’s nine months as an infant in Los Angeles do not
result in E.R.S.C. acquiring habitual residence in the United States when
E.R.S.C.’s parents never shared an intent for her to reside in the United States
beyond Ms. Carlwig’s period of recovery after giving birth.
Thus when Mr. Carlwig filed his Convention petition in February 2014,
E.R.S.C. did not have a habitual residence. E.R.S.C.’s retention by her mother in
8
the United States was not wrongful under the Convention and the district court
erred in ordering E.R.S.C.’s return to Sweden. Further, E.R.S.C. is not wrongfully
retained by her father in Sweden under the Convention now as she was not
removed from her country of habitual residence to Sweden.
Because E.R.S.C. had no habitual residence, no further analysis of this
matter under the Convention and its implementing legislation is possible, as the
Convention does not apply to a child who was never wrongfully removed or
retained. See 22 U.S.C. § 9001(a)(4) (finding that the Convention “establishes
legal rights and procedures for the prompt return of children who have been
wrongfully removed or retained”). While we do have the equitable power to undo
the district court’s action by issuing a re-return order, see Chafin v. Chafin, 133 S.
Ct. 1017, 1024 (2013), we decline to do so.2
“These cases are always heart-wrenching, and there is inevitably one party
who is crushed by the outcome. [The court] cannot alleviate the parties’ emotional
trauma, but at a minimum [the court] can hope to provide them and their children
2
“[T]he concept of automatic re-return of a child in response to the overturn
of [a Convention] order pursuant to which [E.R.S.C. went to Sweden] is
unsupported by law or principle, and would . . . be deeply inimical to [E.R.S.C.’s]
best interest.” Id. at 1029 n.2 (Ginsburg, J., concurring) (quoting DL v. EL, [2013]
EWHC 49, ¶ 59(e)). The observation that “the advent of rival custody proceedings
[in California and Sweden] is just what the Convention aimed to stave off” is on
point in this case. Id. at 1029 (Ginsburg, J., concurring).
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with a prompt resolution so that they can escape legal limbo.” Holder, 392 F.3d at
1023. So it is with this case.
The district court’s decision is AFFIRMED in relation to A.L.C. and
VACATED in relation to E.R.S.C. The parties shall bear their own costs from
litigation.
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