Professional Documents
Culture Documents
Wim Delvoye, in The Matter of Sebastian Delvoye, An Infant Under The Age of One v. Christina Lee, 329 F.3d 330, 3rd Cir. (2003)
Wim Delvoye, in The Matter of Sebastian Delvoye, An Infant Under The Age of One v. Christina Lee, 329 F.3d 330, 3rd Cir. (2003)
3d 330
Dean G. Yuzek (Argued), Joan Walter, Ingram Yuzek Gainen Carroll &
Bertolotti, LLP, New York, NY, Bernard G. Post, New York, NY, for Wim
Delvoye, in the Matter of Sebastian Delvoye, an infant under the age of one,
Petitioner-Appellant.
Robert W. Avery (Argued), Avery & Avery, Ridgefield, NJ, Susan M. Lee,
Englewood Cliffs, NJ, for Christina Lee, Respondent-Appellee.
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").1 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.
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
7
(Emphasis added.)
10
11
concept:
12
[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 and the parents'
present, shared intentions regarding their child's presence there.
13
63 F.3d at 224. The district court held that petitioner had failed to meet his
burden of proving that Baby S was an habitual resident of Belgium. It reasoned
that a two-month-old infant, who is still nursing, has not been present long
enough to have an acclimatization apart from his parents.
14
This case then presents the unique question of whether and when a very young
infant acquires an habitual residence. It differs from the run of decisions under
the Convention where the child is assumed to have an habitual residence
initially and the controversy is over a change of that residence. No decisions
have squarely addressed the issue before us. The leading treatise on the
Convention provides some general guidance:
15
16
17
Where a matrimonial home exists, i.e., where both parents share a settled intent
to reside, determining the habitual residence of an infant presents no particular
problem, it simply calls for application of the analysis under the Convention
with which courts have become familiar. Where the parents' relationship has
broken down, however, as in this case, the character of the problem changes.
Of course, the mere fact that conflict has developed between the parents does
not ipso facto disestablish a child's habitual residence, once it has come into
existence. But where the conflict is contemporaneous with the birth of the
child, no habitual residence may ever come into existence.
18
That is not to say that the infant's habitual residence automatically becomes that
of his mother. In Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir.1995),
Nunez-Escudero and Tice-Menley married in Mexico in August 1992. A child
was born there in July 1993. In September, Tice-Menley left Mexico with her
two-month-old infant and returned to the United States. Nunez-Escudero filed a
petition under the Convention alleging that his son had been wrongfully
removed. The district court denied the petition on the ground that return of the
child would subject him to a grave risk of harm. The court of appeals reversed
and remanded. The mother contended that the court should affirm,
notwithstanding the erroneous grave risk of harm determination, on the ground
that the infant was not an habitual resident of Mexico. The court rejected the
argument and remanded for a determination of the child's habitual residence,
stating.
19
To say that the child's habitual residence derived from his mother would be
inconsistent with the Convention, for it would reward an abducting parent and
create an impermissible presumption that the child's habitual residence is where
the mother happens to be.
20
58 F.3d at 379.
21
The instant case differs from Nunez-Escudero. Because the petitioner and
respondent had married in Mexico and lived there together for nearly a year
before the child was born, a basis existed for finding the child's habitual
residence to be in Mexico. Here, in contrast, the district court found that
respondent, at petitioner's urging, had traveled to Belgium to avoid the cost of
the birth of the child and intended to live there only temporarily. She retained
her ties to New York, not having taken her non-maternity clothes, holding only
a three-month visa and living out of the two suitcases she brought with her.
Thus, there is lacking the requisite "degree of common purpose" to habitually
reside in Belgium. As explained in Re Bates,
22
There must be a degree of settled purpose.... All that is necessary is that the
purpose of living where one does has a sufficient degree of continuity to be
properly described as settled.
23
No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of
Justice, United Kingdom (1989), quoted in Feder, 63 F.3d at 223.
24
Because petitioner and respondent lacked the "shared intentions regarding their
child's presence [in Belgium]," Feder, 63 F.3d at 224, Baby S did not become
an habitual resident there. Even if petitioner intended that he become an
habitual resident, respondent evidenced no such intention. Addressing the
status of a newborn child, one Scottish commentator said:
25
[A] newborn child born in the country where his ... parents have their habitual
residence could normally be regarded as habitually resident in that country.
Where a child is born while his ... mother is temporarily present in a country
other than that of her habitual residence it does seem, however, that the child
will normally have no habitual residence until living in a country on a footing
of some stability.
26
Dr. E.M. Clive, "The Concept of Habitual Residence," The Juridical Review
part 3, 138, 146 (1997).
27
Based on the district court's factual findings, which have not been challenged,
we conclude that petitioner failed to prove that Baby S was habitually resident
in Belgium.
28
Notes:
*
These cases assume that the parents had joint custody. This is true under
Belgian law regardless of whether the parents are marriedSee H. Bocken and
W. DeBondt, Introduction to Belgian Law 150 (cohabiting parents) (2001). But
the situation is different where only one parent has custody rights. Thus, "where
a child of [two years of age] [was] in the sole lawful custody of the mother, his
situation with regard to habitual residence will necessarily be the same as hers."
In re J (C v. S) [1990] 2 AC 562, 579.