Robert v. Tesson

OPINION

Petitioner Ivan Nicholas Robert appeals a decision in favor of his estranged wife, Respondent Gayle M. Tesson, denying return of their twin sons to Plaintiffs home *984 country of France. Petitioner alleges that Respondent illegally abducted the twins to the United States, and that the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) requires that they be returned to France. For the reasons that follow, we hold that the district court applied an incorrect legal standard in determining that the children were habitual residents of the United States at the time of the alleged abduction. Nevertheless, because we also believe that applying the district court’s findings of fact to the proper legal standard will not alter the outcome of that court’s decision, we AFFIRM the district court’s decision denying the petition for return of children.

STATEMENT OF FACTS

A. Substantive Facts

Petitioner Ivan Nicholas Robert, a citizen of France, met Respondent Gayle M. Tesson in 1994. At the time, Petitioner was training to be a helicopter pilot in Houston, Texas, while Respondent was practicing anesthesiology in the same city. Although the parties resided in the United States at this time, Petitioner purchased a laundromat in France in 1995 using money loaned to him by Respondent. Respondent also loaned Petitioner’s mother the money to purchase an interest in the laundromat. After Respondent finalized divorce proceedings with her first husband, the parties married on January 6, 1996 in France. Petitioner received permanent resident status in the United States shortly thereafter.

On May 22, 1997, the couple’s twin boys, Thomas J. Robert and Alexis E. Robert, were born in Houston. Respondent continued practicing medicine until a couple months before she gave birth. While she briefly attempted to return to a part-time medical practice shortly thereafter, she soon decided to stay at home with the boys, a decision she blames on Petitioner’s inability to care for the children.

In the Spring of 1998, the parties formed a French company called SCI-TA-GIR 1 and purchased a lot in Cabris, France. Petitioner alleges that the lot was purchased in order to build a family home in France. Respondent claims it was purchased as an investment.

In June 1998, the parties terminated their lease in Houston and put their belongings in storage with instructions to ship them to Nice, France upon future notice. During the next several months the parties lived in several locations throughout the United States. For much of this time, the family lived apart, as Petitioner unsuccessfully searched for jobs in the Northwest United States while Respondent and the twins stayed with her sister in Virginia. During this time, Petitioner also returned to Houston long enough to sell the family car.

1. December 1998-July 1999: The Twins Live in France

In December of 1998, the entire family moved to France. Accompanying them was “Patches,” the family dog which Respondent obtained while she was an emergency room intern in 1987. The family rented an apartment near the lot they had purchased in Cabris, and Respondent stayed at home with the twins while Petitioner worked at the laundromat. According to Respondent, this was a stressful and unhappy time for her. She described her husband as highly critical of her and frequently absent. In July 1999, the parties decided their marriage was not working, *985 and separated. Patches remained in France with Petitioner until his death in 2000.

2. July 1999-September 2001: The Twins Live in the United States

Respondent returned to Baton Rouge with the twins to live with her mother, where she eventually resumed the practice of anesthesiology on a locum tenens basis. 2 In June 2000, Respondent rented an apartment in Baton Rouge, listing her marital status as “separated” on the rental application. She took no formal steps to end the marriage. While in Louisiana, the twins attended pre-school and a summer program from Fall 1999 through Summer 2001.

While Respondent and the twins were living in Baton Rouge, Petitioner contacted Respondent in Fall of 1999. He told her that he had found a house, named “Mas Verdoline,” in France. Petitioner told Respondent that he would like to try and make their marriage work, and that he felt Mas Verdoline would be a good place for them to settle and live as a family. Even though the house required significant structural repairs, had no heat, running water or electricity, and was located in an area where this kind of rustic living was common, SCI-TAGIR purchased the house in December of 1999, and Petitioner began a slow process of renovating the home.

These renovations were financed, at least in part, by a credit card that Respondent provided to Petitioner. Respondent also participated in many of the decisions concerning these renovations, including the decision to install solar panels and purchase an expensive refrigerator manufactured specifically for solar homes. Nevertheless, the parties disagree on the purpose of Mas Verdoline. Petitioner maintains that they agreed that Respondent would continue to earn money in the United States in order to finance a permanent family home in France, while Respondent insists that the home was never intended to be more than a temporary residence before the twins began permanent schooling in the United States.

In May of 2000, the parties decided to “reunite.” (J.A. 83.) They agreed that Respondent and the twins would return to France in September 2001, shortly after her locum tenens contract expired, and that the boys would be enrolled in a preschool program in France. Respondent testified that she was seeking a reconciliation with her husband because “everyone deserves a second chance.” (Id.) Respondent and the boys also made two brief trips to France in March and November of 2000.

3. September 2001-December 2002: The Twins Live in France

In September 2001, Respondent and the twins traveled to France. Because the repairs on Mas Verdoline were still uncom-plete, the family spent most of this time living in a rental in Cabris. During this time, the boys attended French school and became fluent in French. Nevertheless, English remained the language which the family spoke at home.

The marriage soon grew strained again, however, and Respondent began looking for another locum tenes position in the United States. In July of 2002, she left for just such a position in Denver, Colorado. Because her new job was a demanding position at a level one trauma hospital, the parties agreed that the twins would remain behind in France with their father. *986 From July until November 2002, Petitioner lived alone with his children at Mas Verdoline, and the children were enrolled in the French equivalent of kindergarten.

In November of 2002, Respondent returned to France. While she testified that she intended to stay only briefly and then return with the children to the United States, her visit was extended after Alexis was diagnosed with acute appendicitis requiring hospitalization and a recovery period. Respondent also testified that she and her husband spoke of divorce in this period. The minutes of a SCI-TAGIR meeting which occurred during Respondent’s stay also show that the parties agreed to sell the lot in Cabris, and that they considered, but decided to put off, the sale of Mas Verdoline.

4. December 2002-September 2003: The Twins Live in the United States

In December 2002, the twins traveled to Denver with their mother, and were enrolled in a Montessori school on December 10, 2002. Shortly thereafter, Respondent lowered the credit-line on the card used for Mas Verdoline’s renovations from $50,000 to $5,000. While in the United States, Respondent and the boys traveled together to Yellowstone National Park, Florida and Baton Rouge to visit family members and go on vacation. Also during this time, Respondent learned that the lot in Cabris had sold for 1.2 million francs, a substantial profit over its original price.

During their stay in Denver, the district court found that “the children were becoming more and more socialized in the United States and had scant contact with their father.” (J.A. 113.) Their father “rarely telephoned ... and for the most part did not participate in holiday and birthday celebrations for the boys.” (J.A. 114.) Indeed, the district court found the boys were “largely ignored by both Petitioner and all members of Petitioner’s family,” during their time in the United States. (Id.)

At the end of their stay in Denver, Respondent again made preparations to return to France with the twins. This time, she wrote Petitioner requesting a car with air conditioning in France, a French driver’s license and a residence card. She later testified that the later was to ensure that she would be on a “level playing field” with Petitioner in any divorce proceeding in France. (J.A. 87-88.) Respondent terminated her apartment lease in September 2003, left Mas Verdoline as her forwarding address, and shipped several boxes to France, including the twins’ fall and winter clothing and many of their books and toys. She also left some of her belongings behind in Denver. Respondent purchased round-trip tickets to France, leaving September 18, 2003, and returning to the United States on October 8, 2003.

5. September 2003: The Twins’ Final Trip to France

On September 19, 2003, Respondent and the twins landed in France, where they arrived to a “cool reception from Petitioner at the airport.” (J.A. 115.) The family traveled together to Mas Verdoline. Upon their arrival, Respondent and the boys discovered that little progress had been made in renovating the house. According to the district court’s findings of fact:

Mas Verdoline was inhabitable only in the roughest terms and was not in a condition for a primary caregiver and two young children. For instance, there was an open staircase, no interior walls, and the floor boards on the second floor were only partially laid. The bathroom facilities at Mas Verdoline were equivalent to what might be termed “primitive.” There was still no running water and the family was required to take *987 sponge baths in a bucket of heated rainwater. The toilet was not connected and consisted of a bucket with a makeshift wooden seat. We can only imagine what it must have been like guiding a youngster to the toilet in the middle of the night from a second floor construction site with a flashlight to a bucket on the first floor.

(J.A. 116.)

Nevertheless, Respondent and the boys briefly remained in Mas Verdoline, and the twins were enrolled in the French equivalent of the first grade. During this time, Respondent met with a French lawyer to discuss divorce. On the morning of October 8, 2003, the parties had an argument concerning an outing to Nice to do the laundry, and Petitioner eventually left the house alone. When he returned home, Mas Verdoline was empty. He later received a call informing him that Respondent’s address book had been found at the Nice airport. After searching the home, he discovered a note informing him that Respondent had left with the boys to visit her sick mother in the United States.

In reality, Respondent’s mother was not sick, and she later testified that the note was left as a “face-saving” device for Petitioner. (J.A. 90.) Respondent flew with the twins to New York City, began driving west, and eventually came to reside with Mark Campbell, a Lebanon, Ohio pharmacist whom she had met during a Florida vacation the previous month.

B. Procedural History

Respondent filed for legal separation from Petitioner in the Court of Common Pleas, Warren County, Ohio on December 3, 2003. Petitioner filed for divorce in the French Court of the First Instance in Grasse on January 23, 2004. Shortly thereafter, on March 22, 2004, he filed a criminal complaint against Respondent alleging “abduction of children and retention outside of France.” (J.A. 91.) On September 22, 2004, the French court granted him temporary custody over Thomas and Alexis. French criminal charges were filed against Respondent on February 23, 2005, and although Respondent did not personally appear in French court, she was defended against these charges by counsel and eventually convicted on December 12, 2005, receiving a one-year suspended sentence. Court of the First Instance of Grasse, France, Dec. 12, 2005, No. 05/4311 NS.

In the Southern District of Ohio, Petitioner filed a Petition for Return of Children pursuant to the International Child Abduction Remedies Act, 42 U.S.C. § 11601, et seq., alleging that Respondent removed their children from France in violation of the Hague Convention. After conducting nine days of testimony and examining hundreds of exhibits, the magistrate judge issued a report and recommendation on June 29, 2005. Relying largely on the Ninth Circuit’s decision in Mozes v. Mazes, 239 F.3d 1067 (9th Cir.2001), the magistrate judge found that the parties lacked a shared intent to remain in France, and recommended that the petition seeking return of Thomas and Alexis be denied. The district court adopted the magistrate judge’s report in its entirety on May 19, 2006, and this appeal followed.

DISCUSSION

I. The Legal Standard to Be Applied in Determining a Child’s Habitual Residence under the Hague Convention

Standard of Review

The question of which standard should be applied in determining a child’s habitual residence under the Hague Convention is one of law, and is reviewed de novo by this Court. See United States v. Tocco, 200 F.3d 401, 428 (6th Cir.2000).

*988 Analysis

The purpose of the Hague Convention is to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence .... ” Hague Convention, Preamble. The Convention seeks to “restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.” Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996) (‘Friedrich II”). Additionally, according to the official commentary on the Hague Convention, the Convention should be read to prevent a circumstance where “the child is taken out of the family and social environment in which its life has developed.” Elisa Perez-Vera, Explanatory Report ¶ 12, in 3 Hague Conference on Private International Law, Acts and Documents of the Fourteenth Session, Child Abduction 1069 (1982) (“Perez-Vera Report”). 3

When faced with a petition for return of a child under the Hague Convention, the courts of signatory nations may only determine the merits of the abduction claim; the merits of the underlying custody claim are not to be considered. Hague Convention, Article 19; Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) (“Friedrich I”). Both the United States and France are signatory nations to the Hague Convention. In re Prevot, 59 F.3d 556, 558 (6th Cir.1995).

Under the Hague Convention, the removal of a child from one nation to another is considered wrongful when:

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Hague Convention, Article 3. This appeal presents the question of what the proper meaning of “habitually resident” is under the Hague Convention.

A. Sixth Circuit Precedent

Because there is no Supreme Court authority on the question of habitual residence under the Hague Convention, our inquiry must begin with our sole precedent on this issue. In the first Friedrich v. Friedrich, this Court considered the petition of a German national whose son was removed to the United States without his permission. Friedrich I, 983 F.2d at 1399. Emanuel Friedrich, the petitioner in that case, was married to Jeana, a member of the United States Army stationed in Germany. Id. at 1398. Shortly after an argu *989 ment which culminated with Emanuel casting Jeana and their son Thomas out of the family apartment, Jeana and Thomas left Germany for the United States. Excluding a ten-day visit to Jeana’s parents in the United States, Thomas had lived his entire life in Germany prior to this incident. Id. at 1399.

Noting that Thomas had resided exclusively in Germany prior to his removal, we found Friedrich I to be a “simple case,” and held him to be a habitual resident of Germany. Id. at 1402. Nevertheless, Friedrich I provides five principles which guide this Court in weighing more complicated decisions. First, habitual residence should not be determined through the “technical” rules governing legal residence or common law domicile. Instead, courts should look closely at “[t]he facts and circumstances of each case.” Id. at 1401 (quoting In Re Bates, No. CA 122.89, High Court of Justice, Family Div’n Ct. Royal Court of Justice, United Kingdom (1989)). Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Id. Third, this inquiry should focus exclusively on the child’s “past experience.” “Any future plans” that the parents may have “are irrelevant to our inquiry.” Id. Fourth, “[a] person can have only one habitual residence.” Id. Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only “a change in geography and the passage of time” may combine to establish a new habitual residence. Id. at 1401-02.

B. Other Circuits

Some of our sister Circuits have parted ways with our decision in Friedrich I. Rather than limiting their inquiry to Friedrich 7’s five guiding principles, these Circuits have introduced an additional factor: the subjective intent of the parents.

The first of these cases was the Third Circuit’s decision in Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir.1995). In Feder, the parties moved from Pennsylvania to Australia with Evan, their son who had lived in the United States almost his entire life. The parties purchased a home in Australia, enrolled Evan in an Australian pre-school, and placed their home up for sale. Mr. Feder took a job with an Australian bank, and while Ms. Evans-Feder harbored some concerns about the move and the future of her marriage, she also auditioned for and accepted a role with the Australian Opera Company. Id. at 219. After six months living together as a family in Australia, Evans-Feder removed her son to the United States. Id. at 220.

In holding that Evan was an habitual resident of Australia, the Third Circuit relied on a test which is largely a refinement of Friedrich I:

Guided by the aims and spirit of the Convention and assisted by the tenets enunciated in Friedrich v. Friedrich and Re Bates, we believe that a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a “degree of settled purpose” from the child’s perspective. We further believe that a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child’s circumstances in that place....

Id. at 224.

The Third Circuit parted ways with this Court, however, in that it considered an additional factor. According to Feder, when a child’s parents hold “present, shared intentions” regarding the child’s stay in a particular location, then those mutually held intentions may be considered in determining that child’s habitual residence. Id.

*990 In Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Ninth Circuit went even further, holding that the subjective intentions of the parents are all but dispositive of a child’s habitual residence. See Id. at 1076-78. Mozes divides Hague Convention cases into three types. The first consists of cases where “the court finds that the family as a unit has manifested a settled purpose to change habitual residence .... ” Id. at 1076. In these cases, regardless of any reservations held by one parent or the other concerning the move, Mozes suggests that the child is a habitual resident of their new residence. See id. at 1077 (“When courts find that a family has jointly taken all the steps associated with abandoning habitual residence in one country to take it up in another, they are generally unwilling to let one parent’s alleged reservations about the move stand in the way of finding a shared and settled purpose.”). Similarly, “where the child’s initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period ... courts have generally refused to find that the changed intentions of one parent led to an alteration in the child’s habitual residence.” Id.

In the third Mozes category are cases where “the court is able to find no settled mutual intent” as to whether the parents intended to abandon one habitual residence in favor of another. Id. When a Hague Convention case falls into this third category, the Ninth Circuit places a heavy thumb on the scale against a finding of a new habitual residence. Relying largely on the decision of a Scottish court, Mozes held that, absent a shared intent by the parents to abandon a prior habitual residence, courts should only find a change in habitual residence if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.” Id. at 1081 (quoting Zenel v. Haddow, 1993 S.L.T. 975, 979 (Scot. 1st Div.)). The Ninth Circuit added that a court should not find that a new habitual residence has been established unless “we can say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child ‘out of the family and social environment in which its life has developed.” Id. (quoting Perez-Vera Report, at ¶ 12 (“Perez-Vera Report”)).

The Ninth Circuit expressly acknowledged that, by focusing on the subjective intentions of the parents, the rule established in Mozes is incompatible with this Court’s decision in Friedrich I. According to Mozes, Friedrich I should have issued a narrow holding that “habitual residence cannot be acquired without physical presence.” In the Ninth Circuit’s view, “[t]he facts of Friedrich ... provided no legitimate occasion for a broad pronouncement that parental intent is irrelevant to the question of habitual residence.” Id. at 1080.

C. The Decision Below

Ignoring this Court’s binding decision in Friedrich I, the magistrate judge applied the Ninth Circuit’s rule in determining that Thomas and Alexis Robert are habitual residents of the United States. The magistrate judge determined that “the parties held no shared intent to abandon the United States,” and concluded that “[i]n the absence of shared intent, the Court examines the evidence to determine whether ‘the objective facts point unequivocally’ to the conclusion of a new habitual residence in France.” (J.A. 109 (quoting Mozes, 239 F.3d at 1081.)) This test, which looks first to the subjective intentions of the parents and then engages in a heavy presumption that the child did not acquire a new habitual residence, is identi *991 cal to the rule handed down in Mozes, and is incompatible with this Court decision in Friedrich I. Mozes, 239 F.3d at 1080-81.

Rather than apply the Ninth Circuit’s rule in Mozes, the magistrate judge should have followed this Court’s decision in Friedrich I — that is, the court below should have focused solely on the past experiences of the child, not the intentions of the parents. Friedrich I, 983 F.2d at 1401.

The Ninth Circuit’s rule is not only inconsistent with this Court’s precedent, but, according to one district judge, it has “made seemingly easy cases hard and reached results that are questionable at best.” Koch v. Koch, 416 F.Supp.2d 645, 651 (2006) aff'd on other grounds 450 F.3d 703 (7th Cir.2006). In Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir.2004), for example, the Eleventh Circuit applied Mozes and reached just such a result. Ruiz involved a family of four who left the United States in August 2000 to live as a family in Mexico. Id. at 1249. While in Mexico, the children attended school and played with Mexican friends. Id. at 1255. Their father worked full-time for the family business in Mexico. Id. at 1249. The family brought nearly all of their possessions with them to Mexico, and the family began construction on a house in Mexico. Id. at 1249-50. From the time of the move until the time of their removal, the children lived for almost three full years in Mexico, visiting the United States only twice. Id. at 1250. On May 20, 2003, the children’s mother removed them to Florida, and the father sought their return under the Hague Convention. Id.

Although the two children lived exclusively in Mexico for two years and ten months prior to their removal to Florida, the Eleventh Circuit held that they were habitual residents of the United States. Id. at 1254. According to Ruiz, the parties “never had a shared intention to abandon the prior United States habitual residence and to make Mexico the habitual residence of their children.” Id. In reaching this decision, the court relied entirely on the subjective intentions of the parents. The children’s mother, said the court, had told their grandmother that “if it did not work out in Mexico, they would come back to the United States.” Id. The mother retained an American bank account and credit card, and had mail forwarded to the United States. Additionally, while the family was already living in Mexico, the mother moved her nursing license to Florida and the father briefly searched for an American job on Monster.com. Id. at 1250, 1254. It was unclear from the decision in Ruiz whether the children were even aware of these connections which their parents maintained in the United States. Nevertheless, the court held this sparse evidence to be sufficient to demonstrate the parents never intended to settle in Mexico. Id. at 1254-55. Three years of living in a Mexican home and attending a Mexican school were outweighed by the subjective intentions of the children’s parents.

The Hague Convention is intended to prevent a case where “the child is taken out of the family and social environment in which its life has developed.” Perez-Vera Report at ¶ 12; see also Mozes, 239 F.3d at 1081 (quoting same). Ruiz, and the Mozes decision it relied upon, run counter to this goal. A child who lives in Mexico, attends Mexican school, and makes Mexican friends for three years builds an attachment to Mexico that would lead any chüd to call that country “home.” The Ruiz/Mozes rule, however, would take this child out of the “family and social environment in which its life has developed,” and return him to the nation of their abductor simply because that abductor held personal reservations about the original move to Mexico. Such a rule turns the Hague Convention on its head, and it cannot be *992 followed by the Sixth Circuit in light of our Friedrich I decision.

The Mozes rule is also inconsistent with the Convention’s goal of “deter[ring] parents from crossing borders in search of a more sympathetic court.” Friedrich II, 78 F.3d at 1064. By considering the subjective intentions of the parents, the Mozes rule empowers a future abductor to lay the foundation for an abduction by expressing reservations over an upcoming move. Once the future abductor has laid this foundation, the non-abducting parent may only seek their children’s return by proving that “the objective facts point unequivocally” to the child’s home being in the new country. Mozes, 239 F.3d at 1081. The Hague Convention is intended to “secure the prompt return of children wrongfully removed,” not to erect such barriers to a child’s return. Article 1.

Finally, the official commentary on the Hague Convention establishes that the Convention should be interpreted in light of the “general principle ... that ‘children must no longer be regarded as parents’ property, but must be recognised [sic] as individuals with their own rights and needs.” Perez-Vera Report, at ¶ 24 (quoting Parliamentary Assembly of the Council of Europe, Recommendation 874 (1974)). This general principle is best given effect by a holding which honors the child’s perception of where home is, rather than one which subordinates the child’s experience to their parents’ subjective desires.

For the foregoing reasons, we hold that the magistrate judge was prohibited from applying the Mozes rule by Friedrich I. This holding not only respects the binding nature of past precedent, but also better serves the purposes of the Hague Convention than the holding in Mozes.

D. The Proper Standard

While the Mozes rule is inconsistent with this Court’s holding in Friedrich I, not all post Friedrich I developments should be rejected by the Sixth Circuit. Friedrich I was, by its own admission, a “simple case.” 983 F.2d at 1402. It involved a child who “resided exclusively in Germany until his mother removed him to the United States,” id., and as such, did not provide this Court with an opportunity to determine what standard should apply when a child has alternated residences between two or more nations.

Fortunately, several other Circuits have considered this issue, and their precedents reveal a growing consensus around two factors which are consistent with this Court’s holding in Friedrich I. In Feder, the first post Friedrich I Court of Appeals decision to consider the meaning of “habitual residence,” the Third Circuit held that “a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective ....” 4 Feder, 63 F.3d at 224. This *993 Feder test—that a child’s habitual residence is a nation where the child has been present long enough to allow “acclimatization,” and where this presence has a “degree of settled purpose from the child’s perspective”—has influenced numerous other Circuits. See, e.g., Kijowska v. Haines, 463 F.3d 583, 588 (7th Cir.2006) (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 291-92 (3d Cir.2006) (“habitual residence is the place where [the child] has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective”)); Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir.2003) (“Federal courts are agreed that ‘habitual residence’ must encompass some form of ‘settled purpose.’ ”); In re Tsarbopoulos, 243 F.3d 550, 2000 WL 1721800, at *1 (9th Cir.2000) (unpublished opinion) (“United States courts have typically focused on ... whether the children have sufficiently acclimatized to the new location.”); Zuker v. Andrews,