Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005)

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
For the father’s application to be valid it had to be shown first that the child was habitually resident in Israel at the date of the alleged wrongful retention. The trial court had rejected this finding on the basis that the parents never had a shared intention that the child acquire a habitual residence in Israel. It ruled that without such an agreement a change in a child’s habitual residence could never take place. The Court of Appeal reviewed the existing US authorities on the concept of habitual residence. It accepted the ruling of the Court of Appeal for the Ninth Circuit in Mozes that the first step towards acquiring a new habitual residence is forming a settled intention to abandon the one left behind. In ascertaining intention with regard to children the focus was to be on the intention of the child’s parents, however, the Court noted that intent alone could not establish habitual residence. Crucially the Court further added that notwithstanding the intent of those entitled to fix the child’s habitual residence there could be a shift in habitual residence if the evidence pointed unequivocally to the conclusion that the child had become acclimatized to his new surroundings. Consequently it remitted the case to the District Court to determine whether this was the case.