Case Update (20 Dec 2024): Nisbet v. Bridger; District Court did not clearly err in finding 2 children had no habitual residence
This case was appealed by the Petitioner Father, whose request under the Hague Abduction Convention was denied by the District Court in Oregon in October 2023. On appeal, the U.S. Court of Appeals for the Ninth Circuit focuses exclusively on the District court’s finding that the parties’ two children had “no habitual residence” and affirmed this decision. The 9th Circuit drew out salient language from the Monasky v. Taglieri opinion. Specifically, it focused, at a high level, on the fact that: (1) no one fact is dispositive in a habitual residence totality-of-the-circumstances analysis, and (2) the trial court judge’s conclusions should only be revisited upon a finding of clear error by the appellate court. In looking at this specific case, and addressing the Father’s arguments on appeal, the 9th Circuit highlighted the below.
Intent: The 9th Circuit noted that Respondent Mother “never intended Scotland to be more than a temporary location for her and her children.” The court also stated that, under Monasky, “the intentions and circumstances of caregiving parents are relevant considerations” and, in citing to Black’s Law Dictionary on caretaking functions, concluded that providing financial support, which was essentially what the court concluded was the Father’s sole contribution, was not a component, meaning he was not a caretaking parent. It therefore was appropriate to look solely at the Mother’s intentions and circumstances as relevant considerations (although not entirely dispositive).
Acclimatization: The 9th Circuit found that the 2 children’s ability to acclimatize to society in Scotland was limited at the time they lived there. There was no clear error when the District Court concluded that the children had no family or friends in Scotland. While they had a relationship with their Father, who was in a mental hospital after having murdered his own mother, it was not error to find that their relationship was not “meaningful”, which is what is necessary to acclimatize.
The 9th Circuit addressed a few other of the Father’s concerns.
The Father took umbrage with the court’s finding of “no” habitual residence. But, the 9th Circuit stated that “the Supreme Court has made clear, the ‘bottom line’ is ‘there are no categorical requirements for establishing a child’s habitual residence’” and “[w]hile a finding of no habitual residence is rare and should be disfavored, it is not a clear error to render such a finding if the totality of the circumstances of a particular case so warrants.” The 9th Circuit agreed that this finding “should not be made lightly” but found no clear error in the District Court’s finding in this case. The 9th Circuit also affirmed that “mere physical presence” of a child in a country is not dispositive in a habitual residence analysis. Finally, addressing the Father’s argument that the District Court relied on his alleged coercive behaviors in its ruling, the 9th Circuit confirmed that the District Court only referenced these behaviors in dicta, and only after it resolved the case in the Mother’s favor.
