338 F.3d 886 (8th Cir. 2003)
Robert Silverman and Julie Hechter met in Israel in 1988 and married in Seattle, Washington, in 1989.1 They had two children: Sam, born March 2, 1992, and Jacob, born July 5, 1995.2 The family lived in Plymouth, Minnesota, until late July 1999, when they moved to Israel after selling their Minnesota home in January 1999, with Robert making Aliyah and the family shipping all household goods and pets to Israel.3
In Israel the parents obtained employment and, after living with relatives, rented an apartment under a one-year lease beginning in November 1999.4 In October 1999 Julie traveled to Minnesota to file for bankruptcy.5 Upon her return Robert obtained a restraining order that prevented her from leaving Israel until it was cancelled on November 3, 1999. The children enrolled in Israeli schools, with Sam attending elementary school and Jacob attending preschool.6 Both learned Hebrew and participated in school activities.7
In January 2000 the parents returned to Minnesota without the children to complete bankruptcy proceedings and swore under oath that their permanent address was Plymouth, Minnesota.8 In April 2000 they filed a joint United States income-tax return listing the same Minnesota address.9 At the end of June 2000 Julie left Israel with the children on round-trip tickets for a summer visit to the United States, with a scheduled return of August 30, 2000.10 At the airport she decided not to return.11
On August 10, 2000, she filed for legal separation and custody of the children in Minnesota state court.12 Robert filed a Hague Convention petition in Israel.13 On October 5, 2000, he filed a Hague petition in the United States District Court for the District of Minnesota.14 On November 16, 2000, an Israeli court ruled that Israel was the children's habitual residence and that Julie's retention was wrongful.15 On May 4, 2001, the Minnesota trial court awarded sole custody to Julie.16
On May 9, 2002, the federal district court ruled that the children's habitual residence had remained Minnesota or, alternatively, that return to Israel would expose them to grave risk because of regional violence.17 Robert appealed to the United States Court of Appeals for the Eighth Circuit.18
Whether the Rooker-Feldman doctrine prevents a federal district court from exercising jurisdiction over a Hague Convention petition after a state court has entered a child custody order?19
The Rooker-Feldman doctrine holds that inferior federal courts lack jurisdiction to review a state court's final judicial determination.20 The doctrine applies only when the federal claim is inextricably intertwined with the state court judgment.21 It does not apply when Congress has granted specific original jurisdiction under statutes such as ICARA.22 The state court order also must not have adjudicated any Hague Convention claim.23
No. The Minnesota trial court's May 4, 2001 order awarded sole custody to Julie under Minnesota law.24 Neither party had requested Hague Convention determinations from the state court.25 The federal district court decided only whether the children had been wrongfully removed from their habitual residence under the Convention and ICARA.26 Those issues were not the same as or intertwined with the state custody merits.27
The Rooker-Feldman doctrine does not divest the federal district court of jurisdiction over Robert's Hague Convention petition.28
Whether a district court's determination of a child's habitual residence under the Hague Convention is reviewed de novo as a mixed question of law and fact or only for clear error?29
Yes. The district court's finding that the children's habitual residence remained Minnesota applied legal principles concerning settled purpose and parental intent to the facts of the family's 1999 move. De novo review is required to prevent inconsistent outcomes that would discourage international travel by children.34
A district court's habitual residence determination is reviewed de novo.35
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Judge Heaney dissents from the majority's adoption of de novo review for habitual residence determinations.36 He argues that the question of whether parents shared a settled intent to abandon a prior habitual residence is a factual issue.37 The district court is entitled to deference under the clear error standard on that question.38
Citing Mozes v. Mozes, he contends that the district court's finding of no mutual intent to abandon the United States as the children's habitual residence should control the outcome of the case.39 This approach respects the district court's superior position in assessing the credibility and weight of the evidence of the parties' intentions throughout the move and subsequent events.40
Whether the Silverman children's habitual residence was Israel immediately before their removal to the United States in June 2000?41
A child's habitual residence changes when the family effects a change in geography accompanied by a settled purpose from the child's perspective.42 This is demonstrated by passage of time, abandonment of the prior residence, enrollment in local schools, and parental intent at the time of the move.43
Yes. The family sold their Minnesota home and shipped all their possessions and pets to Israel.44 They obtained employment there and rented an apartment under a one-year lease.45 They enrolled Sam in elementary school and Jacob in preschool where both learned Hebrew and participated in activities.46 These steps establish Israel as the sole habitual residence by the time of the June 2000 departure.47
The Silverman children's habitual residence was Israel immediately before their removal.48
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Judge Heaney dissents from the majority's conclusion that Israel became the children's habitual residence.49 He contends that the district court's factual finding of no shared settled intent to abandon the United States controls the analysis.50 The family maintained Minnesota addresses on bankruptcy and tax filings while living in Israel.51
Julie remained in Israel under coercion for most of the period.52 The family never purchased real property there.53 These facts support the district court's determination that the United States remained the habitual residence.54
Whether return of the children to Israel would expose them to a grave risk of physical or psychological harm within the meaning of Article 13(b) of the Hague Convention because of regional violence?55
The Article 13(b) grave-risk exception requires the respondent to prove by clear and convincing evidence either that the child faces a zone of war, famine, or disease or serious abuse or neglect.56 General regional violence without specific danger to the individual children is insufficient to meet this standard.57
No. The district court relied on general evidence of suicide bombings and regional violence affecting all of Israel.58 It did not cite any specific threat or harm to Sam and Jacob beyond what existed when Julie voluntarily moved the family there in 1999.59 No schools were closed or businesses shuttered in the children's area.60
Return of the children to Israel would not expose them to a grave risk of harm under Article 13(b).61
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Judge Melloy concurs in the majority's rejection of the zone-of-war finding but dissents from the conclusion that no exceptions apply.62 He argues that the case must be remanded for consideration of the children's views under Article 13.63 The district court also must consider any psychological harm from return.
The majority failed to address the district court's finding that Samuel is of sufficient age and maturity and does not wish to return.64 That finding is not clearly erroneous and must be addressed before ordering return to Israel.65
Judge Heaney dissents from the majority's conclusion that no grave risk exists.66 He maintains that the district court must still assess on remand whether return would cause the children psychological harm.67 The harm could arise from separation from their mother and each other.68
It could also arise from the ongoing conditions in Israel even if the area is not a formal zone of war.69 The district court should evaluate the evidence of psychological harm before ordering return.70
Whether the district court was required to consider the views of the older child regarding return to Israel and his age and maturity under Article 13 of the Hague Convention?71
Yes. The district court expressly found that ten-year-old Sam is a gifted child who reads newspapers daily.74 Sam wrote a letter expressing his desire to remain in the United States.75 He demonstrated sufficient maturity in chambers for his views to be considered.76 Yet the majority did not address this finding before ordering return.77
The district court was required to consider Sam's views and maturity under Article 13, and the case should be remanded for that purpose.78
Related opinions on this issue
Judge Melloy concurs in the majority opinion except for its failure to remand for consideration of the children's views.79 He states that the district court's finding that Samuel is of sufficient age and maturity and does not wish to return is not clearly erroneous.80 That finding must be addressed before ordering return.81
The case should be remanded so the district court can determine the views of both children and their respective levels of maturity under Article 13.82