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Delvoye v. Lee

May 20, 2003

WIM DELVOYE, IN THE MATTER OF SEBASTIAN DELVOYE, AN INFANT UNDER THE AGE OF ONE, APPELLANT,
v.
CHRISTINA LEE



On Appeal from the United States District Court For the District of New Jersey (D.C. Civ. No. 02-cv-00769) District Court Judge: Faith S. Hochberg

Before: Alito and McKEE, Circuit Judges, and SCHWARZER,*fn1 Senior District Judge

The opinion of the court was delivered by: Schwarzer, Senior District Judge.

PRECEDENTIAL

Argued: February 13, 2003

OPINION OF THE COURT

This is an appeal from an order of the district court denying Wim Delvoye's petition to return Baby S to Belgium under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980; T.I.A.S. No. 11670, 19 I.L.M. 1501 (the "Convention"). *fn2 The district court found and concluded that petitioner had failed to meet his burden of proving that Baby S was an habitual resident of Belgium and thus was wrongfully removed from that country. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner and respondent met in New York early in 2000. Petitioner resided in Belgium but made several trips to visit respondent. On his visits to New York, a romantic relationship developed between them. In August 2000, respondent moved into petitioner's New York apartment. While continuing to live in Belgium, petitioner spent about a quarter of his time in New York. In September 2000, respondent learned that she was pregnant with petitioner's child. Respondent began prenatal care in New York, but because petitioner refused to pay the cost of delivery of the baby in the United States and Belgium offered free medical services, respondent agreed to have the baby in Belgium. In November 2000, she traveled to Belgium on a three-month tourist visa, bringing along only one or two suitcases. She left the rest of her belongings, including her non-maternity clothes, in the New York apartment. While in Belgium respondent lived out of her suitcases. When her visa expired she did not extend it. The baby was born on May 14, 2001. By then the relationship between the parties had deteriorated. After initially resisting, petitioner signed the consent form that enabled respondent to get an American passport for Baby S and agreed to respondent's return to the United States with Baby S in July 2001. Over the next two months, petitioner made several trips to the United States and the parties made several attempts to reconcile. When those efforts failed, petitioner filed this petition. Following an evidentiary hearing, the district court denied the petition. This appeal followed. Because the order is a final disposition of the petition, we have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Article 3 of the Convention provides in relevant part:

The removal . . . of a child is to be considered wrongful where -- a) it is in breach of rights of custody attributed to a person . . . either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal. . . . (Emphasis added.)

The determination of a person's habitual residence is a mixed question of fact and law. We review the district court's findings of historical and narrative facts for clear error, but exercise plenary review over the court's application of legal precepts to the facts. Feder v. Evans-Feder, 63 F.3d 217, 222 n.9 (3d Cir. 1995); see also Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir. 2001).

The issue before us is whether Baby S was "habitually resident" in Belgium at the time of his removal to the United States. In Feder, we defined the relevant concept:

[A] child's habitual residence is the place where he . . . 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 ...


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