Kanth v. Kanth

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 2, 2000
• Docket: 99-4246
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 2 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

RAJANI K. KANTH,

Petitioner-Appellant,

v. No. 99-4246 (D.C. No. 99-CV-532-C) COREY LEIGH KANTH, (D. Utah) 79 F. Supp. 2d 1317 Respondent-Appellee.

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This appeal is taken from an order of the district court denying petitioner’s

petition under the International Child Abduction Remedies Act, 42 U.S.C.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. §§ 11601-11610 (ICARA), and the Hague Convention on the Civil Aspects of

International Child Abduction. The underlying facts are adequately outlined in

the district court’s decision. See Kanth v. Kanth , 79 F. Supp. 2d 1317 (D. Utah

1999).

The purpose of the Hague Convention is to secure the prompt return of

children who have been wrongfully removed or retained in order that the court of

the country in which the children habitually reside can make a custody

determination. See id. at 1321. The petitioner is obligated to show, by

a preponderance of the evidence, that the retention or removal is wrongful.

See Shalit v. Coppe 182 F.3d 1124, 1128 (9th Cir. 1999) (citing 42 U.S.C.

§ 11603(e)(1)); In re Prevot , 59 F.3d 556, 560 (6th Cir. 1995) (same) . A removal

or retention is wrongful if it breaches a person’s custody rights under the law of

the state in which the child was habitually resident immediately prior to the

removal or retention and at the time of the removal or retention those rights were

actually exercised. See Lops v. Lops , 140 F.3d 927, 935 (11th Cir. 1998) (citing

Article 3 of Hague Convention); Ohlander v. Larson , 114 F.3d 1531, 1534

(10th Cir. 1997) (same). The term “habitual residence” is not defined by either

the Hague Convention, see Rydder v. Rydder , 49 F.3d 369, 373 (8th Cir. 1995), or

the ICARA. See Prevot , 59 F.3d at 560. Rather a child’s habitual residence is

defined by examining specific facts and circumstances and is a term courts should

-2- not interpret technically or restrictively. See Zuker v. Andrews , 2 F. Supp. 2d

134, 136-37 (D. Mass. 1998), aff’d , 181 F.3d 81 (1st Cir. 1999) (table); see also

Harkness v. Harkness , 577 N.W. 2d 116, 121 (Mich. Ct. App. 1998)

(“determination of ‘habitual residence’ depends largely on the facts of the

particular case”). Although it is the child’s habitual residence that the court must

determine, in the case of a young child 1 the conduct, intentions, and agreements

of the parents during the time preceding the abduction are important factors to be

considered. See Feder v. Evans-Feder , 63 F.3d 217, 223 (3d Cir. 1995); see also

Pesin v. Osorio Rodriguez , 77 F. Supp. 2d 1277, 1285 (S.D. Fla. 1999) (court

would focus on parents’ actions and shared intentions where children were four

and six at time of alleged wrongful retention). In addition

[T]here must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. 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.

Feder , 63 F.3d at 223 (quotation omitted).

1 At the time the Kanth children were removed from Australia by their mother and taken back to Utah, they were six and three years old.

-3- The district court used these definitions along with an analysis of the

children’s circumstances and the parents’ shared intentions regarding their

children’s presence in Australia in determining that their habitual residence

before being taken to the United States in 1999 was not Australia. The district

court’s factual finding that Australia was not the habitual residence of the

children is not clearly erroneous. See Harkness , 577 N.W. 2d at 124. Therefore

the legal conclusion that their removal to Utah was not wrongful necessarily

follows. See Osorio Rodriguez , 77 F. Supp. 2d at 1286 (on finding that parents

lacked shared intent that children stay in Florida, court concluded that Venezuela

was habitual residence immediately before date that family had intended to depart

Florida); Levesque v. Levesque , 816 F. Supp. 662, 665 (D. Kan. 1993) (“Removal

or retention of a child can be wrongful only if the removal or retention is from the

habitual residence of the child.”); Meredith v. Meredith , 759 F. Supp. 1432,

1434-35 (D. Ariz. 1991) (same).

Our review of the record persuades us that the district court’s determination

was correct. Insofar as petitioner’s supplementary documentation in support of

his opening brief was not before the district court, we have not considered it.

Respondent’s motion to file appellee’s appendix is GRANTED. Any other

outstanding motions are DENIED. Accordingly, for substantially the reasons

-4- stated in Kanth , 79 F. Supp. 2d 1317, the judgment of the United States District

Court for the District of Utah is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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