The Third Circuit this week rendered an interesting and unusual case on The Hague Convention on The Civil Aspects of International Child Abduction. In
Karkkainen v. Kovalchuk, the Third Circuit was faced with a precocious and intelligent eleven-year-old who had lived with her mother and stepfather in Finland. But Maria Kovalchuk increasingly grew to love the United States when she visited her father and stepmother. A tourist visa was difficult for Maria to secure, so her mother agreed to let Maria apply for permanent residency in the United States to ease the immigration hassles. Bad move for mum. Maria visits the United States twice in 2002 and then again in Easter 2003. She gets the bug and declares her desire to move to the United States to live with her father. Mother reluctantly allows a trial summer. More red flags that Maria is planning on staying after the summer. She leaves Finland on June 6, 2003 with a return flight scheduled for August 10, 2003. Maria is accepted into a private school in Pittsburgh, takes academic classes, photography classes, and travels the States. She has her mind set on making the move permanent. But mother is getting quite nervous and emails ex-husband alleging kidnapping if Maria is not on that return flight. On August 28, mother sues in federal court to require Maria’s return to Finland. The lower court denies her request.
The legal issue for the Third Circuit was whether Maria’s two month presence in the United States constituted acclimatization such that she is sufficiently rooted in this country so as to preclude a claim from her mother for return to her habitual residence of Finland. Essentially the Court must address whether a young child can become habitually resident in the United States over the course of a summer. The Court concludes that the answer is yes.
[T]here is evidence in the record that Maria acclimatized herself to the United States during the summer of 2003. She enrolled in The Ellis School and took summer classes to prepare for her attendance there in the fall. She also took photography classes that summer, traveled in the country, and developed relationships with d’Itri and her family that she had established during previous visits to the United States in October 2002, December 2002, and April 2003. We view these events in the context of record evidence that Maria is “uniquely talented and highly intelligent,” an experienced traveler with strong English skills, and mature for her age. Taken together, these factors suggest that Maria “form[ed] meaningful connections with the people and places she encounter[ed]” in the United States and was therefore acclimatized prior to the date of her retention.
Furthermore, there is evidence in the record that Maria abandoned Finland as her habitual residence. When Maria came to the United States in June 2003, she brought more personal belongings with her than usual, in anticipation that she would remain here after the summer. Maria’s decision in July 2003 to remain in the United States, which she communicated to her parents and stepparents, was essentially a choice to abandon Finland as her habitual residence. “[W]hile our jurisprudence on habitual residency … has not heretofore enunciated a need for an intent to abandon a former habitual residency in order to establish a new one, it does seem implicit in the concept of acquiring a new ‘habitual’ residence that the previous ‘habitual’ residence has been left behind or discarded.”…
Though the relatively short period of time Maria was present in the United States makes it a close question, we hold that Maria was acclimatized to the United States on the date of her retention and that her conduct demonstrated a degree of settled purpose to remain here. We base this conclusion on the specific facts and circumstances before us, and rely heavily on Maria’s maturity and intelligence, her development of relationships with family and friends in the United States prior to her retention, and her academic work during the summer of 2003 to prepare for attendance at The Ellis School. Importantly, we view these factors against the backdrop of the agreement between Maria’s parents to permit Maria choose her own residence. We are mindful that we should avoid setting the bar for acclimatization too low, lest we create an incentive for a parent to remove or retain a child in the hope that the child will quickly acclimatize and not be returned. However, we are satisfied that in the unique circumstances of this case, Maria’s experiences in the United States prior to her retention crossed the line that demarcates acclimatization and indicate a degree of settled purpose from her perspective.
I must say this an exceptionally hard case. If the emphasis is on the subjective wishes of the child, the Court’s opinion appears correct. But it would seem odd for that to be the test. An eleven-year-old’s feelings determines her fate? But if the test is an objective one of whether a young child can acclimatize to a new country in a few weeks, well, I have my doubts about that too. Having young children of my own who have lived in different countries, I am quite doubtful that any child can be habitually settled in so short a period of time. So Maria is pleased, the father is thrilled, and the mother is shattered. And the law on The Hague Convention on the Civil Aspects of International Child Abduction is, well, as murky as ever.
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