Brooke Goldstein v. Matthew Simon

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 25, 2024
• Docket: 24-12098
• Status: Unpublished

Opinion

USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 24-12098 Non-Argument Calendar ____________________

BROOKE GOLDSTEIN, In the Matter of W.S., B.S., and Z.S., Petitioner-Appellant, versus MATTHEW SIMON,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:24-cv-20633-CMA USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 2 of 9

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Before ROSENBAUM, LUCK, and BRASHER, Circuit Judges. PER CURIAM: This appeal arises under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), as implemented by the International Child Abduction Remedies Act (ICARA). See 22 U.S.C. § 9001, et seq. Brooke Goldstein, the mother, appeals the district court’s order denying her petition to return her children to Israel. After careful review, we affirm. I.

The parties are familiar with the facts of this case. We keep this section brief and address only those facts necessary to the dis- cussion below. Brooke Goldstein and Matthew Simon, the mother and fa- ther, have three children together. The first child was born in 2015, the second in 2017, and the third in 2020. All three children were born in New York, but the family often traveled domestically and internationally. Before 2020, the family lived in Brooklyn, the Hamptons, and Los Angeles. The family moved to Israel in Decem- ber 2020, and halfway through 2021, the children became Israeli citizens and obtained Israeli passports. During the next few years in Israel, the children visited doc- tors, were enrolled in schools, and participated in extracurricular activities. The children speak English, but not Hebrew. The family USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 3 of 9

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went on vacation to Italy in October 2023, and during that time, Hamas attacked Israel. As a result, the family decided to move else- where because of the war. They settled in Miami where the chil- dren enrolled in school and participated in extracurricular activi- ties. The children visited doctors and spent time with extended family in the area. For the 2024–2025 school year, the children are enrolled in schools in Miami and Israel. In late 2023, the mother and father began to disagree about keeping the family in Miami versus returning to Israel. As a result, the mother filed an ICARA petition in federal district court seeking to require the father to return the children to Israel. The mother and father continued living together in Miami with their children when the mother filed her petition, alleging the father’s wrongful retention. After a four-day bench trial, the district court denied the pe- tition. In doing so, it determined that the children’s habitual resi- dence was Florida. Alternatively, the district court concluded that, even if the children’s habitual residence were in Israel, the father did not wrongfully retain the children or prevent the mother from taking them to Israel. The mother appealed. II.

The Hague Convention “address[es] ‘the problem of inter- national child abductions during domestic disputes.’” Lozano v. Montoya Alvarez, 572 U.S. 1, 4 (2014) (quoting Abbott v. Abbott, 560 U.S. 1, 8 (2010)). The treaty’s “core premise” is that “‘the interests of children . . . in matters relating to their custody’ are best served USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 4 of 9

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when custody decisions are made in the child’s country of ‘habitual residence.’” Monasky v. Taglieri, 589 U.S. 68, 72 (2020) (quoting Convention Preamble, Hague Convention, Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11 (Treaty Doc.), at 7). Congress passed ICARA, which implements the Hague Convention’s re- quirements and allows a parent to file a petition for return of a child in state or federal court. 22 U.S.C. § 9003. The Hague Convention and ICARA settle the forum for a custody dispute, but neither au- thorizes a court to adjudicate the merits of a custody dispute. Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998). As a general rule, a parent that wrongfully retains or re- moves a child from her habitual residence must return the child. Art. 12, Treaty Doc., at 9. The Hague Convention makes an excep- tion to this general return requirement if a return poses a “grave risk” of harm to a child. Monasky, 589 U.S. at 72 (quoting Art. 13, Treaty Doc., at 10). The party opposing the return has the burden of demonstrating the risk to the child. Golan v. Saada, 596 U.S. 666, 672 (2022). “A child’s habitual residence presents . . . a ‘mixed question’ of law and fact—albeit barely so.” Monasky, 589 U.S. at 84 (quoting U.S. Bank N.A. ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC, 583 U.S. 387, 396 (2018)). This review is considered “mixed” because we first review, under a de novo standard, whether the judge applied the correct legal standard to determine the habitual residence. Id. If the trial judge correctly applies the “totality of the USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 5 of 9

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circumstances” standard to determine habitual residence, then we review the factual findings made by the court for clear error. Id. Our review for clear error is highly deferential. This defer- ence is overcome only when “‘on the entire evidence’ we are ‘left with the definite and firm conviction that a mistake has been com- mitted.’” Seaman v. Peterson, 766 F.3d 1252, 1261 (11th Cir. 2014) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). III.

The mother argues that the district court erred in denying her petition to return the children to Israel. First, she argues that Israel is the correct habitual residence of the children. Second, she argues that the father wrongfully retained the children by refusing to approve of their return to Israel. Third, she argues—even though the district court did not reach the issue—that the father failed to present sufficient evidence that the children would be in grave danger if returned to Israel. The father disagrees with the mother’s contentions. We will start, and end, with the first issue. The Hague Con- vention, as implemented by ICARA, applies to “Contracting States,” which, here, are the United States and Israel. See 22 U.S.C. § 9001, et seq. So, even though the district court’s determination was specific to Florida, we must determine whether the district court clearly erred in finding that the United States is the children’s habitual residence. Because we conclude the district court did not USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 6 of 9

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clearly err in finding the children’s habitual residence to be in the United States, we need not address the other issues on appeal. The district court correctly applied the totality of circum- stances as the legal standard to determine habitual residence. This standard is a “fact-driven inquiry” depending on the “specific cir- cumstances of the particular case.” Monasky, 589 U.S. at 78. The only question is whether the district court clearly erred in any fact findings. The mother points to several fact findings that she says are clearly erroneous. We disagree. First, the mother contends that the district court used an in- correct wrongful retention date in its habitual residence determi- nation. Habitual residence is determined “at the time of removal or retention[.]” Monasky, 589 U.S. at 77. To establish this date, ICARA requires the mother to prove, by a preponderance of evi- dence, when the father wrongfully retained the children. See Sea- man, 766 F.3d at 1257. The district court found that the mother nei- ther alleged a specific date nor did she dispute the father’s proposed date. Based on this finding, the district court determined that the date of the filed petition would serve as the date of wrongful reten- tion. Although the record reflects a disagreement between the mother and father before the filed petition, we cannot say the dis- trict court clearly erred in its finding that, if the father wrongfully retained the children, he did so as of the date of the mother’s peti- tion. Second, the mother argues that the district court disre- garded the parties’ shared intent (or lack thereof) when they USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 7 of 9

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returned to the United States from Israel. Shared intent is not “dis- positive[,]” Monasky, 589 U.S. at 78, and “it cannot alone transform the habitual residence.” Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). Contrary to the mother’s argument, the district court found that the parties shared an intention of staying in Florida until the war in Israel ended—or, at a minimum for six months to a year. Ample evidence in the record supports that intention, and the mother filed her petition during this period. Accordingly, we are not left with a “definite and firm conviction” that the court erred. Anderson, 470 U.S. at 573 (quoting United States v. United States Gyp- sum Co., 333 U.S. 364, 395 (1948)). Third, and relatedly, the mother contends that the children’s habitual residence never changed from Israel. But we cannot say that the record compels that finding. The mother had to show, by a preponderance of evidence, that the children were “habitual res- ident[s] of [Israel] immediately before retention in the United States[.]” Chafin v. Chafin, 742 F.3d 934, at 938 (11th Cir. 2013) (em- phasis added). To determine the children’s habitual residence, the district court relied on “objective facts,” Ruiz, 392 F.3d at 1255, like the children’s enrollment in schools and extracurriculars in the United States. It also based its finding, in part, on the father’s “cred- ible testimony,” to conclude that the children’s residence was the United States at the time of the filed petition. When a district court makes determinations based on witness credibility, we give “even greater deference to the trial court’s findings[.]” Anderson, 470 U.S. at 575. Being “sensitive to the unique circumstances of the case[,]” Monasky, 589 U.S. at 78 (quoting Redmond v. Redmond, 724 F.3d 729, USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 8 of 9

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744 (7th Cir. 2013)), the district court also considered the family’s transitory history—they had often moved to different cities, states, and countries for short periods of time—as relevant to whether the children had established a habitual residence in the United States. In light of the unique circumstances of this case, the district court determined that the mother did not meet her burden in demon- strating that Israel was the children’s habitual residence at the time of the alleged retention, and we cannot say the district court com- mitted clear error in making that determination. Lastly, the mother challenges the district court’s assessment of the children’s acclimatization to the United States. “For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly rel- evant.” Monasky, 589 U.S. at 78. And in cases of young children, “the intentions and circumstances of caregiving parents are rele- vant considerations.” Id. Courts consider “academic activities,” “social engagements,” “meaningful connections with the people and places in the child’s new country,” “language proficiency,” and “location of personal belongings.” Id. at 78 n.3 (quoting Federal Ju- dicial Center, J. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 67–68 (2d ed. 2015)). Applying the Monasky factors, the district court considered, among other facts, the children’s extracurricular activities, the lo- cation of their belongings, and their relationship with family in Florida. While the mother argues that the youngest child could not USCA11 Case: 24-12098 Document: 28-1 Date Filed: 09/25/2024 Page: 9 of 9

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have acclimated, we cannot say the district court erred in evaluat- ing this evidence as to the children. Facts pertaining to the chil- dren’s acclimatization to the United States are relevant to assess a child’s habitual residence, and therefore, the district court did not clearly err in its consideration of them. IV.

The district court’s judgment is AFFIRMED.