dissenting.
The Hague Convention’s admirable goal is to “protect children internationally from the, harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Convention on the Civil Aspects of International Child Abduction' (1980). The key question in this Hague Convention case is: Where is A.M.T.’s habitual residence, if one exists at all? The majority recharacterizes our prior decisions on this issue and,- in doing so, alters the standards we have used to determine a child’s habitual residence under the Hague Convention. Because I believe that the majority’s analysis in this case distorts our precedent; I respectfully dissent. - -
A.
,' “The question of which standard should be applied in determining a child’s habitual residence under the Hague Convention is one of law, and is reviewed de novo by this Court.” Robert v. Tesson, 507 F.3d 981, 987 (6th Cir. 2007). The determination of habitual residence, on the other hand, “is one of fact, and is reviewed for abuse of discretion.” Id. at 995. Pursuant to the Hague Convention, “the petitioner must prove by a preponderance of the evidence that the children who are the subject of the petition were removed from their habitual residence.” Id. (citing Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1400 (6th Cir. 1993)).
B.
We first addressed the question of habitual residence in Friedrich I, 983 F.2d 1396. In that case, we articulated “five principles which guide this Court” in determining a child’s habitual residence.” Robert, 507 F.3d at 989. First, habitual residence should not be determined on the basis of technical rules. Friedrich I, 983 F.2d at 1401. Friedrich I instead said that “[t]he facts and circumstances of each case should ... be assessed without resort to presumptions or presuppositions.” Id. (quoting In Re Bates, No. CA 122.89, High Court of Justice, Family Div’n' Ct., Royal Court of Justice, United Kingdom (1989)). Second, “the court must focus on the child, not the parents” and evaluate the child’s experience. Id. Third, an inquiry into a child’s habitual residence must “examine past experience, not future intentions.” Id. Fourth, an individual “can have only one habitual residence.” Id. Finally, the parents’ nationality does not affect the child’s habitual residence, but rather the habitual residence is controlled by “geography and the passage of time.” Id. at 1401-02.
The principles elucidated by Friedrich I worked well in that case, where the child had lived exclusively in Germany for two years after he was born, but we recognized that the case provided minimal guidance in other situations. Robert, 507 F.3d at 992. Thus, in Robert, we adopted an approach developed by other circuits, which we found was “consistent with Friedrich Fs holding.” 507 F.3d at 993. In Robert, we held “that a child’s habitual residence is the nation where, at the time of their removal, the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ” Id. (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). In adopting this “acclimatization standard,” however, we recognized that it would prove difficult to apply in a case involving “a very young or developmentally disabled child [who] may lack cognizance of their surroundings sufficient to become acclimatized to a particular country or to develop a sense of settled purpose” and left open the question of what standard to apply in such a situation. Robert, 507 F.3d at 992 n.4. In Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007), decided shortly after Robert, we reaffirmed that the acclimatization standard was the appropriate test to utilize when determining a child’s residency, but recognized that “this standard may not be appropriate in cases involving infants or other very young children.” 511 F.3d at 602 & n.2.
.In our recent decision in Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017), we reached the question left open by Robert and Simcox and addressed the issue of determining habitual residence for infants who are not old enough to have developed “a sense of settled purpose.” Because the facts and analysis in that case mirror the case at bar, I will discuss Ahmed in detail.
Mr. and Mrs. Ahmed married in 2009 while Mr. Ahmed, a U.K. citizen, lived in London and Mrs. Ahmed, a U.S. citizen, lived in Michigan. Ahmed, 867 F.3d at 684. After Mrs. Ahmed finished her optometry studies in the United States, she moved to London to live with her husband. Upon her arrival in 2011, she sought to become a licensed optometrist in the United Kingdom and received, the U.K. equivalent of a Social Security Number. Id. at 685. Mrs. Ahmed then returned to the United States for further optometry training. Subsequently, in 2013, Mrs. Ahmed rejoined her husband in the United Kingdom; she intended for this to be a permanent move and applied for Indefinite Leave to Remain in the United Kingdom. Following Mrs. Ahmed’s return to the United Kingdom, the couple’s relationship grew acrimonious. In February 2014, Mrs. Ahmed became pregnant with twins. Following “a bitter argument” in May 2014, she returned to the United States. Id. The couple disputed whether or not Mrs. Ahmed planned to return, but Mrs. Ahmed claimed she did not, and brought her valuables back to the United States. Mr. Ahmed traveled to the United States on a three-month visa in order to be present at the birth of the couple’s twins. When his visa expired, Mr. Ahmed returned to the United Kingdom. In May 2015, the whole family journeyed to the United Kingdom. Mr. Ahmed asserted that this was a permanent relocation; in contrast, Mrs. Ahmed claimed that this was a short visit to determine whether her marriage was still viable. In August 2015, Mrs. Ahmed returned to the United States with her children via Bangladesh. Id. at 686. Mr. Ahmed subsequently filed a petition in the Eastern District of Tennessee to return the twins under the Hague Convention. The district court denied Mr. Ahmed’s petition.
In our subsequent decision affirming the district court’s denial of Mr. Ahmed’s petition, we extensively discussed our prior cases analyzing the Hague Convention. We began by stating that “[w]e have generally preferred the acclimatization standard because it serves one of the main purposes of the Hague Convention: ensuring a child is not kept from her family and social environment.” Id. at 688. We noted, however, that there was a “gap” in our precedent “concerning especially young children.” Id. at 689. Consequently, we discussed the reasons for adopting a different standard for determining habitual residence for infants than for older children. First, “[t]he most compelling reason for applying the settled mutual intent standard is the difficulty, if not impossibility, of applying the acclimatization standard to especially young children.” Id. Furthermore, we noted the persuasive authority of other circuits: “Every circuit to have determined whether a country constituted a habitual residence considers both the acclimatization and shared parental intent standards. ... And all but the Fourth and Eighth Circuits prioritize shared parental intent in cases concerning especially young children.” Id. at '689-90 (collecting cases in which the First, Second, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh circuits utilize the shared-parental-intent standard). Based on these reasons, we concluded that:
[I]t is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence. This is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case. We make no changes to the acclimatization standard itself, which lower courts should continue to apply in accordance with our precedent.
Id. at 690 (citations omitted).1
Applying this newly clarified analysis to the Ahmeds’ situation, we first began with the acclimatization standard as articulated in Simcox: “[A] court should consider whether the child has been ‘physically present [in the country] for an amount of time sufficient for acclimatization’ and whether the place ‘has a degree of settled purpose from the child’s perspective.’ ” Simcox, 511 F.3d at 602 (second alteration in original) (quoting Robert, 507 F.3d at 989). We concluded that the Ahmed twins—who were less than a year old when they traveled from the United Kingdom to the United States in August 2015—were unable to have acquired a “degree of settled purpose.” Ahmed, 867 F.3d at 690. Therefore, “[t]he conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent to determine if Mr. Ahmed has shown that the United Kingdom was the children’s habitual residence when they were retained.” Id. After reviewing the district court’s findings of fact, we held that the district court was. not clearly. erroneous when it found that the Ahmeds lacked a-'shared intent as to their children’s residence. Id. Mr. Ahmed, therefore, “failed to carry his burden under the shared parental intent standard,” Id. Because Mr. Ahmed could not “prove[ ] by a preponderance of evidence, under either standard, that the United Kingdom was the children’s habitual residence when Mrs. Ahmed traveled with them to the United States,” we affirmed the district court’s denial, of his petition. Id. at 691.
C.
The majority today holds that A.M.T.’s habitual residence was Italy, the country from which she was taken. Maj. Op. at 877. It reaches that erroneous result by adopting a formalistic, rigid, bright-line rule that a child’s habitual residence is her country of birth if she has exclusively resided in that country. Maj. Op. at 876. This conclusion is: in contravention of Friedrich I’a admonition that residence' should not be determined on -the basis of bright-line rules and instead “[t]he facts and circumstances of each case should ... be assessed without resort , to presumptions or presuppositions.” Friedrich I, 983 F.2d at 1401 (internal quotation marks omitted). Furthermore, the majority claims that its bright-line rule is one of “three distinct standards” that our caselaw has developed to determine a child’s habitual residence. Maj. Op. at 876. This characterization distorts our .prior precedent which has articulated two standards. “We have generally preferred the acclimatization standard,” but when that standard is unworkable, we have applied the shared-parental-intent standard. Ahmed, 867 F.3d at 688-90; see also Simcox, 511 F.3d at 602 (applying the acclimatization standard, but recognizing another standard may need to be used for children incapable of forming a degree of settled purpose); Robert, 507 F.3d at 992-93 (same). Friedrich I provides a further set of principles that we use when considering the specific facts and circumstances of each case within the framework of the applicable standard. Simply, our prior precedent does not support the majority’s approach in this case.
D.
Our analysis in Ahmed compels the result in this case. First; it is clear that the acclimatization standard is not “workable” in this situation. Here, A.M.T. resided in Italy for only eight weeks, from her birth in February 2015 until Monasky returned with her to' the United States in April 2015. R. 70 (Dist. Ct. Op. at' 1, 8) (Page ID #1865,1872). We concluded that the eight-month-old twins in Ahmed were unable to have a “degree of settled purpose” anywhere due to their age. Ahmed, 867 F.3d at 690. Consequently, A.M.T.—an eight-week-old newborn—must also be too young to have developed a “degree of settled purpose” and acclimatized to Italy. Thus, following the analysis in Ahmed, because we cannot answer whether Italy is A.M.T.’s habitual residence under the acclimatization standard, we must then turn to the shared-parental-intent standard. Id. at 690. If the parties have no shared intent, then the child has no habitual residence. See Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003) (“[W]here the conflict [in a marriage] is contemporaneous with the birth of the child, no habitual residence may ever come into existence.”).
The district court did consider the lack of shared intent to be relevant to its determination of A.M.T.’s habitual residence. R. 70 (Dist. Ct. Op. at 21) (Page ID #1885). It did so, however, without the guidance of our decision in Ahmed, and consequently its analysis does not comport with the correct legal standard. The district court incorrectly focused on Moha-skjfs lack of definitive plans to leave Italy immediately—she was waiting until A.M.T.’s passport was issued—and whether or not Monasky and Taglieri had established a marital home in Italy.2 Id. at 21-22 (Page ID #1885-86). What matters, however, under the shared-parental intent standard is where the parents “intended the children to live.” Ahmed, 867 F.3d at 690; cf. Holder v. Holder, 392 F.3d 1009, 1016-17 (9th Cir. 2004) (“In analyzing ... [the parents’] intent, we do not lose sight of the fundamental inquiry; the children’s habitual residence. Parental intent acts as a surrogate for that of children who have not yet reached a stage in their development where they are deemed capable of making autonomous decisions as to their residence.” (emphasis in original)). Furthermore, because the petitioner-parent has the burden of proof, if the shared intent is “either -unclear or absent,” the petitioner necessarily has not met his or her burden. Ahmed, 867 F.3d at 691.
Here, the district court’s findings of fact indicate that Taglieri has failed to satisfy his burden of proof under the shared-parental-intent standard as elucidated in Ahmed. The district court found that the parties’ marriage “during the time surrounding the birth of their daughter was fraught with difficulty.” R, 70 (Dist. Ct. Op. at 17-18) (Page. ID #1881-82). In the months before and after A.M.T.’s birth, Taglieri subjected Monasky to physical and sexual abuse. Id. at 27-28 (Page ID #1891-92). During her pregnancy, Mona-sky began “applying for jobs in the United States, inquiring about American health care and child care options, and looking for American divorce lawyers.” Id. at 3-4 (Page ID #1867-68). She obtained “quotes from international moving companies regarding a move from Italy to the United States,” id. at 5 (Page ID #1869), and repeatedly indicated that she wanted to divorce Taglieri and return to the United States with A.M.T. Id at 6-7 (Page ID #1870-71). During the bench trial, Taglieri vigorously disputed the inferences that could be drawn from these actions and pointed to other conduct—such as searching for an au pair for A.M.T. and scheduling medical appointments—that suggest the parties’ shared intent was for Italy to be AM.T.’s habitual residence. See, e.g., id. at 4, 6-7 (Page ID #1868, 1870-71). All of these findings suggest that Monasky’s and Taglieri’s plans for AM.T.’s upbringing did not “converge.” Ahmed, 867 F.3d at 691 (holding that a “couple’s settled intent to live in the United Kingdom” prior to the wife’s pregnancy did not mean that the couple had a shared parental intent to raise their children in that country, because the evidence demonstrated that the couple had divergent plans regarding their twins’ residence starting from when the children were in útero); see also Berezowsky v. Ojeda, 765 F.3d 456, 468-69 (5th Cir. 2014) (“A shared parental intent requires that the parents actually share or jointly develop the intention. In other words, the parents must reach some sort of meeting of the minds regarding their child’s habitual residence, so that they are making the decision together.”).
Because the district court did not have the benefit of our decision in Ahmed when applying the shared-parental-intent standard, but rather had to hypothesize about the content of this standard, I would reverse and remand this case so that the district court can conduct its factfinding utilizing the correct legal analysis as articulated in Ahmed. See Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 577 (6th Cir. 2013) (“Reversal is appropriate when the trial court applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” (internal quotation marks omitted)); Siding & Insulation Co. v. Alco Vending, Inc., 822 F.3d 886, 901 (6th Cir. 2016) (“[A] remand is required for the district court to apply the correct legal standard.”).
E.
This is a deeply troubling case, as Hague Convention cases often are. And I must respectfully' disagree with my colleagues’ failure to follow binding Circuit precedent. This is “a simple case,” Maj. Op. at 879, because our decision in Ahmed compels the outcome in this case. Our acclimatization standard is sufficient to determine the habitual residence of most children, and when it is not, we must then use the settled-parental-intent standard. Where the child is too young to have acclimatized to her community and surroundings, and where the parents do not have a settled mutual intent, I would conclude that the child cannot have a habitual residence. I would therefore reverse the judgment of the district court and remand so that the district court, in accordance with the correct legal standard as explained in this opinion and Ahmed, can determine whether Taglieri demonstrated by a preponderance of the evidence that a shared parental intent for AM.T. to reside habitually in Italy existed.
. Ahmed did not discuss whether the shared-parental-intent standard should apply to "developmentally disabled children who] may lack cognizance of their surroundings sufficient to become acclimatized to a particular' country or to develop a sense of settled purpose.” Robert, 507 F.3d at 992 n.4. This issue is not presented here, but I believe that the reasoning in Ahmed as to why the shared-parental-intent standard is appropriate in determining the habitual residence of a very young child is equally applicable to a child who, despite her biological age, is so significantly developmentally disabled that her level of consciousness of her surroundings is equal to that of an infant.
, The district court stated that; "Assuming that the Sixth Circuit would hold that the shared intent of the parties is relevant in determining the habitual residence of an infant child, the court finds that such inquiry in this case would begin with determining whether there is a marital home where the child has resided with his parents,” R. 70 (Dist. Ct. Op. at 21) (Page ID #1885). The district court's conclusion, however, that the parties had established a marital home in Italy appears to have been not only the first inquiry in its analysis, but also the overriding factor in its decision. Id. at 20-21 (Page ID #1885-86). But while the existence of a marital home may be evidence of a shared-parental intent for the child to be raised in that locale, it is not dispositive. See Redmond v. Redmond, 724 F.3d 729, 732 (7th Cir. 2013) ("The determination of habitual residence under the Hague Convention is a practical, flexible, factual inquiry that accounts for all available relevant evidence and considers the individual circumstances of each case."); Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004) (explaining that the Hague Convention intended for the inquiry into habitual residence to be “flexible” and “fact-specific” (citing Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 89 (1999))). Consider, for example, a hypothetical, childless couple who have established a maritál home in Country A. They both live and work in Country A and it is their shared intent to continue maintaining their marital home there. After the wife conceives a child, the couple forms a shared parental intent to raise the child in Country B, where the wife's family lives and can provide support. Following the birth of the child, the wife travels to Country B with the newborn to raise the child there. The spouses plan, however, for the wife and child to return frequently to Country A‘- for vacations and for the wife to resume habitation in the marital home after the child, is an adult. In this situation, the existence of the marital home in Country A at the time of the child's birth does not affect the shared parental intent to raise the child in Country B.