Case Update (25 Sept 2024): Goldstein v. Simon; 11th Circuit finds no clear error in district court’s finding that habitual residence shifted from Israel to Florida before filing

In this recent case, brought under the Hague Abduction Convention, the district court denied the Petitioner Mother’s request to return her three children to Israel from Miami, Florida. She appealed. The Eleventh Circuit Court of Appeals (COA) affirmed. The COA outlined the facts salient to its analysis. The parties’ three children were all born in New York, and before 2020, the family lived in Brooklyn, the Hamptons, and LA. In December 2020, the family “moved to Israel” and “halfway through 2021, the children became Israeli citizens and obtained Israeli passports.” The children attended school, visited doctors, and participated in extracurricular activities in Israel. They spoke English “but not Hebrew.” During an October 2023 “vacation to Italy”, “Hamas attacked Israel.” “As a result, the family decided to move elsewhere because of the war.” The court noted that they “settled in Miami where the children enrolled in school and participated in extracurricular activities.” For this 2024-2025 academic year, the children are enrolled in schools “in Miami and Israel.” The court then noted that “[i]n late 2023, the mother and father began to disagree about keeping the family in Miami versus returning to Israel.” This provoked the Mother to file for relief under ICARA and the Hague Abduction Convention. “The mother and father continued living together in Miami with their children when the mother filed her petition…” The district court, after a 4-day bench trial, “determined that the children’s habitual residence was Florida” and "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 COA addressed the issue of habitual residence first, and concluded that the district court did not “clearly err in finding the children’s habitual residence to be in the United States” and therefore “we need not address the other issues on appeal.” The Mother’s first argument was that the district court set the wrong date for the date of the children’s retention. The district court set it as of the date of the Mother’s petition to return the children to Israel. “The district court found that the mother neither 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 retention.” The COA concluded that the district court did not clearly err in its finding that the date of Mother’s petition equated to the date of the alleged wrongful retention. The COA then said that the Mother’s second argument was “that the district court disregarded the parties’ shared intent (or lack thereof) when they returned to the United States from Israel.” The COA noted that shared intent is not dispositive under Monasky v. Taglieri. “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.” Therefore the COA was “not left with a ‘definite and firm conviction’ that the court erred.” The COA noted that not only must is examine the factual findings for clear error, but “[w]hen a district court makes determinations based on witness credibility, we give ‘even greater deference to the trial court’s findings.’”