Submitted: April 7, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
GRUENDER, MURPHY, and KELLY, Circuit Judges.
GRUENDER, Circuit Judge.
Cohen appeals the district court's denial of his
petition for return of a child under the Hague Convention on
the Civil Aspects of International Child Abduction
("Convention"), as implemented by the International
Child Abduction Remedies Act ("ICARA"), 22 U.S.C.
§§ 9001-9011. For the following reasons, we affirm.
Cohen and Ocean Ester Debora Cohen are the parents of O.
N.C., who was born on December 6, 2009 in Israel. Yaccov is a
citizen of Israel, while Ocean and O. N.C. are citizens of
both Israel and the United States. During the first three
years of O. N.C. 's life, the Cohens lived together as a
family in Israel. Between 2010 and 2011, Yaccov served
approximately one year in jail on various criminal charges.
Shortly after Yaccov's release, Ocean and two of her
brothers, who live in St. Louis, Missouri, discussed the
possibility of her family moving to St. Louis to join them.
However, Yaccov was subject to a Stay of Exit Order placed on
his visa that prevented him from leaving Israel until he paid
his accumulated debt, which included criminal fines,
penalties, and restitution payments. Yaccov and Ocean decided
that Ocean and O. N.C. would move to St. Louis, and that once
there Ocean would work to help Yaccov pay off his debt so he
could join them. Ocean testified that they intended to move
permanently to the United States, while Yaccov testified that
they intended to move for a period of three to five years. To
prepare for the move, Yaccov and Ocean went to the United
States Embassy together to submit naturalization paperwork
for O. N.C.
December 2012, Ocean and O. N.C. traveled to St. Louis. Ocean
promptly enrolled O. N.C. in school and speech therapy, found
O. N.C. a pediatrician, and secured employment. Ocean
purchased a vehicle, obtained a driver's license, and
eventually rented an apartment. As arranged, Ocean sent money
to Yaccov to help pay off his debts. In May 2013 and April
2014, Ocean and O. N.C. visited Yaccov in Israel for
approximately two weeks each time. During the April 2014
visit, it became apparent that the marriage was
deteriorating. Shortly before Ocean and O. N.C. were
scheduled to return to St. Louis, Yaccov asked a lawyer to
draft a "travel agreement" requiring Ocean and O.
N.C. to return to Israel if Yaccov remained unable to join
them in St. Louis within six months. Ocean signed the
agreement after adding a clause requiring Yaccov to
"stay away from crime and not get into
trouble." If he breached this condition, Ocean and
O. N.C. would not be obligated to return to Israel at the end
of the six-month period. In August 2014, Yaccov was arrested
for driving without a valid license.
2014, Ocean filed for divorce in St. Louis County. On August
30, 2014, Yaccov learned of the divorce proceeding from a
legal advertisement he received from a St. Louis law firm,
and on November 13, 2014, Yaccov was served with the divorce
petition. The St. Louis County Circuit Court entered a
default judgment granting the divorce in March 2015, giving
Ocean sole custody of O. N.C. and Yaccov supervised
early September 2014, Yaccov filed a request with the Israeli
Ministry of Justice to open a file to return O. N.C. to
Israel, and four months later he filed an application for O.
N.C. 's return under the Convention. Yaccov filed a
complaint requesting O. N.C. 's return under the
Convention in the Eastern District of Missouri on November
25, 2015. After conducting discovery and an evidentiary
hearing, the district court dismissed Yaccov's complaint,
concluding that O. N.C. 's country of habitual residence
is the United States and, accordingly, that Yaccov had failed
to make a prima facie case for return under the Convention.
implements the Convention, of which both Israel and the
United States are signatories. Barzilay, 600 F.3d at
917. In order to state a prima facie case for the return of a
child, the petitioner must establish by preponderance of the
evidence "that the child has been wrongfully removed or
retained within the meaning of the Convention." 22
U.S.C. § 9003(e). "The key inquiry under the
Convention is whether a child has been wrongfully removed
from the country of its habitual residence or wrongfully
retained in a country other than that of its habitual
residence." Barzilay, 600 F.3d at 917
(quotation omitted). Thus, the "case turns on the
determination of the [child's] habitual residence, for
the retention of a child in the state of its habitual
residence is not wrongful under the Convention."
Id. In resolving rights under the Convention, the
court may not address the merits of an underlying child
custody dispute. 22 U.S.C. § 9001(b)(4).
of habitual residence under the Hague Convention raises mixed
questions of law and fact, " and, therefore, we review
the district court's decision de novo.
Barzilay, 600 F.3d at 916. "We defer to the
district court's underlying factual findings, however,
unless they are clearly erroneous." Id.
residence is determined as of the time "immediately
before the removal or retention" and depends on
"past experience, not future intentions."
Silverman v. Silverman, 338 F.3d 886, 897-98 (8th
Cir. 2003) (en banc). Habitual residence encompasses
"some form of settled purpose" but only requires
that "the family . . . have a sufficient degree of
continuity to be properly described as settled."
Id. at 898 (quotation omitted). However,
"[t]his settled purpose need not be to stay in a new
location forever." Id. The Eighth Circuit
determines settled purpose "from the child's
perspective, although parental intent is also taken into
account." Id. That said, parental intent need
not be completely clear, see Barzilay, 600 F.3d at
918, and "one spouse harboring reluctance during a move
does not eliminate the settled purpose from the [child's]
perspective, " Silverman, 338 F.3d at 899. In
addition to settled purpose and parental intent, relevant