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Court of Appeal, Third District, California.

Victor FERRARIS, Plaintiff and Appellant, v. Pam ALEXANDER, Defendant and Respondent.

No. C047144.

Decided: January 25, 2005

Farmer, Murphy, Smith & Alliston, George E. Murphy, Suzanne M. Nicholson, Sacramento;  Law Office of Robert D. Arenstein and Robert D. Arenstein for Plaintiff and Appellant. Pam Alexander, in pro. per., for Defendant and Respondent.

This case involves a petition for the return of a child under the Hague Convention 1 (or the Convention).   In September 2003, defendant Pam Alexander (mother) took her four-and-one-half-year-old son, Carlo, from Italy to the United States.   Shortly thereafter, she commenced a family law proceeding in Placer County to obtain sole custody of Carlo.

In November 2003, Carlo's father, plaintiff Victor Ferraris (father), filed an application under the Hague Convention for the return of Carlo on the ground that mother had wrongfully removed Carlo from his habitual residence in Italy.   The Placer County court treated father's application as a petition and, following the presentation of evidence and argument, denied the petition on the ground that Italy was not Carlo's habitual residence.

On appeal, father seeks review of that determination.   He contends the trial court denied him a fair hearing by determining disputed issues of fact without an evidentiary hearing and erred in determining that Italy was not Carlo's habitual residence.   We disagree.   Consequently, we will affirm the judgment.


In his opening brief, father contends “[t]he parties' accounts of the events leading to Carlo's conception, their familial status, and their intentions regarding Carlo's habitual residence were the subject of numerous conflicting declarations and documentary evidence submitted to the trial court.”   He then proceeds to set out in separate sections of his “STATEMENT OF FACTS” what he contends was mother's evidence and his own evidence.   The two sections paint vastly different portraits of Carlo's conception, birth, and early years.

Although the trial court's order included a detailed account of the facts found by that court (see below), father does not even mention the court's findings, nor does he mention a critical passage from the trial court's order in which the trial court explained why it had largely adopted mother's version of events.2

Because it only summarizes the evidence presented and ignores the facts the trial court actually found, which favored mother, the “STATEMENT OF FACTS” in father's opening brief is of no assistance to this court in resolving this appeal.   Given that father does not argue the evidence was insufficient to support any of the trial court's factual findings, what father should have done in his opening brief was simply set forth as his “STATEMENT OF FACTS” the facts the trial court recited in its order.   That is what we will do now.

“[Mother] is a United States Citizen, born in California.  [Father] is an Italian citizen, born in Switzerland.   These parties never married nor did they ever cohabit as a family.  [Mother] is a computer scientist who owns her own consulting business.   She was previously employed by Rockwell International, McDonnell Douglas, the State of California, and the United States Department of Justice. In 1993 she was hired by Optima Software.   With Optima her responsibilities were to provide assistance and training to countries in Europe and South America.   In 1995 she started her own company, The Alexander Project, and began consulting services to companies in the United States, Belgium and Italy.

“[Father] is an Italian citizen, who has lived throughout the time periods relevant to this case, in Agrano, Commune [sic ] [di] Verbania, Italy.   His primary residence is in Agrano, where he has lived with his mother Purissima, and his adult sister, Laura.  [Father] is a language instructor in Milan.

“[Mother] was in Italy in March 1998 pursuant to a work assignment.   She enrolled in a language school in Milan, ‘Il Centro’ [ ] to learn Italian.   There, she met [father].   A friendship developed between the two, based upon a common appreciation of different languages and cultures.  [Mother] indicated to [father] that she wanted to become a mother, and had considered adoption and artificial insemination.  [Father] offered to assist [mother] to become pregnant.  [Mother]'s expectation was that after the birth of the child she would remain good friends with [father], but that they would not be a family.   This arrangement was communicated to [father].

“After her assignment in Italy was complete, [mother] returned to the United States, where she discovered that the plan to impregnate her was successful.   She was pregnant by [father].  [Mother] investigated the alternatives available for birthing in the United States and in Italy, and found that the latter offered her care, infant and breastfeeding instruction, and after-care which was more comprehensive than that offered in the United States.  [Mother] returned to Italy some months before the birth of Carlo, and ultimately selected an apartment at 16 Viale Corsica, Milan, the choice of location resting on the proximity of her Italian obstetrician.

“Before Carlo's birth, [mother] informed [father] and his family that it was her intention to continue her work as a computer scientist throughout Europe and the United States until Carlo reached school age.   When he reached school age, [mother] indicated that it was her intention to return to the United States and keep her business travel to a minimum.   Since Carlo's birth, [mother] has been the sole financial support of Carlo, and has been the only person in charge of his day care and his pre-school education.[3 ]

“Carlo was born on April 18, 1999 in Monza, Italy.   Over the next four and one half years, the parties openly welcomed the extended families of each other.   Some of [father's] family members came to California to visit [mother] and the child, and [mother] visited with [father's] family in Italy at their homes.   The pattern of frequent changes of residence was consistent with [mother]'s forecast for Carlo's preschool years.   She and Carlo lived where her work took her, always on a short term basis․ The following narrative discusses the time allocated to various loci.

“After his birth, [mother] and Carlo remained in Italy until June 28, 1999, when the mother and child returned to the United States.  [Father] came to California with [mother] and Carlo, but returned to Italy after approximately six weeks.   In [b]etween September 16 and November 3, 1999, [mother] traveled with Carlo throughout Europe to Switzerland, Austria, Germany, France, Spain, Belgium, Luxembourg, The Netherlands, and Italy.

“From November 1999 to mid 2001, [mother]'s ‘home base’ was in Belgium.   At the beginning of November, 1999, [mother] began an assignment with the Kredit Bank in Brussels, Belgium.   She and Carlo lived at the Kekenstraat Apartments in Leuven, Belgium.   During this period of time, [mother] obtained permission to travel to Italy for Carlo's booster shots on December 20, 1999, and she and Carlo spent Christmas with [father's] family in Italy.

“For approximately one month, [mother] accepted a work assignment for Whirlpool Europe in Comerio, Italy.   For this assignment, she and Carlo lived in hotels in Varese and Gavirate, Italy.   On March 11, 2000, [mother] and Carlo returned to the United States until March 30, 2000.   Beginning on April 1, and until June 17, 2000, [m]other extended her work assignment for Whirlpool and she and Carlo lived in Gavirate, Italy.  [I]n June, 2000 [mother] and Carlo returned to California for a period of approximately two months, after which they returned to Europe, traveling in various countries.

“In November, 2000, [mother]'s work led to a project in Belgium with the Kredit Bank. She and Carlo lived in Leuven, Belgium for approximately 3 1/2 months, after which they traveled in Europe for an additional two weeks.   On March 21, 2001, [mother] and Carlo returned to California for approximately one month.   Carlo was entered into Roses Day Care in Oakland, which was a licensed day care facility.   During this period mother worked on an assignment in San Francisco.

“[Mother] and Carlo returned to Europe on April 25, 2001, and after a brief vacation returned to Leuven, Belgium, where mother had obtained another assignment with Pharynx.   Here, Carlo attended Craenendonk Kinder Centrum in Leuven.   They remained in Belgium for approximately 3 months.

“After completing the assignment in Belgium, [mother] and Carlo returned to California for approximately 4 1/2 months.   Just before Christmas 2001, [mother] and Carlo returned to Europe, vacationing in various countries, including Italy.  [Mother] accepted additional work for PHVriens as well as other projects in Milan for Dexia and Honda Europe.   She made Italy her home base for this consulting period, remaining there for approximately 5 months.   After these assignments, [mother] traveled in Europe, visiting various countries, including Italy.   This vacation lasted approximately 10 weeks.   At the conclusion of this period of travels, [mother] and Carlo returned to California for about 2 months.

“[Mother] and Carlo returned to Italy for four months beginning in December 2002, working various projects including AssoDonna Consult, and the Ministry of Justice.   They lived in Rome on the Via Della Cafferelleta.  [Mother] arranged for childcare at a local preschool.

“In April, 2003, [mother] and Carlo returned to California, where she continued her consulting services to companies at conferences and in San Francisco.   Carlo was again enrolled in Rose's Day Care for part of this period of time.

“[Mother] and Carlo returned for the last time to Rome, where she continued with projects for PHVriens and other companies.   At the end of this stay, knowing that she planned to take another assignment in Belgium, and then return to the United States for more substantial periods of time, [mother] allowed Carlo to visit with his grandmother, Purissima, for an ‘extended’ period of time, approximately one week at the beginning of September.   Carlo was returned to his mother by [father] on September 9, 2003.   Three days later, Purissima Ferraris phoned to ask if Carlo could visit for another week.   [Mother] agreed, and [father] returned to Milan, where [mother] was staying, to pick up Carlo.   He was to return Carlo on September 16, 2003, but he failed to do so, and informed [mother] of th[e] position that he was not going to return the child to [mother.]

“[Mother] sought advice at the U.S. Embassy, and the Italian Central Authority.  [Mother]'s attempts to persuade [father] and his family to return Carlo were met with refusals.   Coincidentally, [mother] developed a medical problem which required immediate intervention.   She obtained outpatient surgery in Milan, after which she was driven by a companion to [father's] residence.

“On September 23, 2003 [mother] notified [father's] family of her impending visit to Agrano.   She and her companion arrived at [father's] residence in the evening.   The parties go to great lengths to describe the emotional events which followed that evening, which ultimately resulted in [mother] leaving [father's] household with Carlo.   In brief, although the reception [mother] received initially was gracious, it became apparent that [father's] family members had positioned themselves to keep Carlo in Italy.   Carlo had been enrolled in daycare in Agrano, and [father] indicated that [mother] could come to visit her son ‘whenever she wanted’.   Purissima Ferraris told [mother] that she ( [mother] ) ‘had had Carlo four years and could do whatever [mother] wanted, and no-one ever said anything-“now it's our turn” ’. After a brief period of being physically detained, [mother] and Carlo made their escape from [father's] household.   Acting on the advise [sic ] of Italian officials, [mother] was advised to return to the United States and obtain documents indicating her right to custody.   She and Carlo left Italy for the United States on September 29, 2003.   Despite her intentions to go to Belgium in January, 2004 for her next work assignment, she and Carlo have remained in the United States since that time [4 ].”

On October 24, 2003, mother commenced an action for exclusive custody of Carlo in Placer County and another action under the Uniform Parentage Act 5 to establish her parental relationship with Carlo.

On November 10, 2003, Father applied to the Italian ministry of justice, serving as the central authority for handling Hague Convention cases, for the return of Carlo.

On November 19, 2003, the Placer County court learned of father's application.   Following an ex parte hearing the next day, the court stayed both of mother's actions pending the determination of father's application.

On November 26, 2003, the court deemed father's application to the central authority a petition under the Hague Convention.  (See 42 U.S.C. § 11603(b) [judicial proceedings for the return of a child under Hague Convention commenced by filing petition in appropriate court].)   Mother filed her response to the petition in January 2004, and the petition came on for hearing on February 10, 2004.   After hearing argument and taking evidence in addition to the declarations and other documents already submitted by the parties, the court took the case under submission.

On February 26, 2004, the court issued its tentative decision denying father's petition.   A hearing on the tentative decision was held on April 13, 2004.   At the end of that hearing, the court took the matter under submission again.

On April 21, 2004, the court issued its 33-page formal order denying father's petition for the return of Carlo to Italy.   Noting that father bore the burden of proving the wrongfulness of Carlo's removal from Italy, the court concluded father had failed to meet that burden because father had failed to prove that Italy was Carlo's habitual residence.

This timely appeal followed.


IFather Was Not Denied A Fair Hearing

Father contends the trial court denied him a fair hearing because it determined disputed issues of fact without an evidentiary hearing.6 We disagree.

Federal law provides that state courts and federal courts have “concurrent original jurisdiction of actions arising under the Convention.”  (42 U.S.C. § 11603(a).)   A “person seeking to initiate judicial proceedings under the Convention for the return of a child ․ may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”  (Id. at § 11603(b).)  Federal law further provides that “[t]he court in which [such] an action is brought ․ shall decide the case in accordance with the Convention.”  (Id. at § 11603(d).)

Father points to nothing in the Hague Convention that entitled him to an evidentiary hearing with sworn witness testimony.   Under California law, declarations may be used in place of witness testimony in various situations, including on motions.  (Code Civ. Proc., §§ 2009, 2015.5.)   A motion is “[a]n application for an order.”  (Code Civ. Proc., § 1003.)   However, since federal law specifies that a proceeding under the Hague Convention for the return of a child is a “civil action,” we do not believe this proceeding can be deemed simply a “motion.”

Despite this conclusion, the answer to whether the trial court erred here can be found in a case father cites in his opening brief without appreciating its significance.   In Estate of Fraysher (1956) 47 Cal.2d 131, 135, 301 P.2d 848, our Supreme Court wrote:  “Ordinarily, affidavits may not be used in evidence unless permitted by statute.  [Citation.]  Thus, it has been held error to admit affidavits in evidence over objection [citation] or where the opposing party has no opportunity to object to their use.  [Citations.]  But this is a different situation in that the parties did not object to the use of affidavits in evidence, and both parties adopted that means of supporting their positions.   Both having participated in such presentation of the evidence as a matter of convenience ․ they cannot question the propriety of the procedure on appeal.  [Citation.]  Moreover, evidence which is admitted in the trial court without objection, although incompetent, should be considered in support of that court's action [citations], and objection may not be first raised at the appellate level.”

Here, at the outset of the first hearing on father's petition, the trial court stated:  “Ordinarily we would be submitting this on the declarations of the parties that have been submitted, and that would be my intention.   If there is any request for actual testimony, since both parties are here, I don't have any strong objections to that, and so if there's anything that either of you would like to introduce at this particular point in time, I'd be happy to entertain it.”   At that time, father did not object to proceeding by declaration, rather than by witness testimony, and when asked how he would like to proceed as the moving party, father's counsel responded, “I'd like to put on a prima facie case, if I may, your Honor.”   He then proceeded to argue his client's case based on the declarations and documents already presented to the court.

Later in the hearing, after mother's attorney had argued her side of the case, and the court had offered some initial comments, father's attorney asked to make an offer of proof regarding the time just before mother took the child from Italy.   The court had father sworn, father's attorney gave the offer of proof, and father confirmed that the offer of proof was what he would say if he were to testify.   At no point did father object to the court's consideration of the declarations offered by mother or request the opportunity to cross-examine the declarants.

When the parties returned to court for the hearing on the court's tentative decision, father requested that the court “reopen the proceedings to admit further evidence,” and the court denied that motion.7  Nevertheless, although the court refused to “permit the introduction of new and additional evidence,” it did permit father, who was still sworn, to make an extended statement.

 Under these circumstances, we conclude Estate of Fraysher governs.   Because father “did not object to the use of [declarations as] evidence, and both parties adopted that means of supporting their positions,” father “cannot question the propriety of the procedure on appeal.”  (Estate of Fraysher, supra, 47 Cal.2d at p. 135, 301 P.2d 848.)

 Further, the trial court's denial of father's motion to reopen the proceedings to admit further evidence following the issuance of the court's tentative decision did not deny him a fair hearing.   Father had every opportunity to submit evidence in support of his petition, including testimonial evidence, at the original hearing.   The court was not obliged to give him “a second bite at the apple” once father learned that the court's tentative decision was unfavorable to him.

Consequently, we reject father's claim that he was denied a fair hearing.


The Trial Court Did Not Err In Finding That Italy Was Not Carlo's Habitual Residence

Father next contends the trial court erred in determining Italy was not Carlo's habitual residence.   We disagree.


Basic Legal Principles

“Adopted in 1980, the Hague Convention on the Civil Aspects of International Child Abduction ․ is intended to prevent ‘the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child.’  [Citation.]  Despite the image conjured by words like ‘abduction’ and ‘force,’ the Convention was not drafted in response to any concern about violent kidnappings by strangers.   It was aimed, rather, at the ‘unilateral removal or retention of children by parents, guardians or close family members.’  [Citation.]  ․ The preamble to the Convention describes the signatory states as ‘[d]esiring to protect children internationally from the harmful effects of their wrongful removal or retention,’ effects which are thought to follow when a child ‘is taken out of the family and social environment in which its life has developed.’ ”   (Mozes v. Mozes (9th Cir.2001) 239 F.3d 1067, 1069-1070, fns. omitted.)

Under the Convention, “when a child who was habitually residing in one signatory state is wrongfully removed to, or retained in, another, Article 12 [of the Convention] provides that the latter state ‘shall order the return of the child forthwith.’ ”  (Mozes v. Mozes, supra, 239 F.3d at p. 1070.)

“The key operative concept of the Convention is that of ‘wrongful’ removal or retention.   In order for a removal or retention to trigger a state's obligations under the Convention, it must satisfy the requirements of Article 3:

“The removal or the retention of a child is to be considered wrongful where-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.”  (Mozes v. Mozes, supra, 239 F.3d at p. 1070.)

 “A court applying this provision must therefore answer a series of four questions:  (1) When did the removal or retention at issue take place?  (2) Immediately prior to the removal or retention, in which state was the child habitually resident?  (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?   (4) Was the petitioner exercising those rights at the time of the removal or retention?”  (Mozes v. Mozes, supra, 239 F.3d at p. 1070.)

Here, father contended he was entitled to the return of Carlo because Carlo's habitual residence was Italy immediately before mother removed Carlo to the United States at the end of September 2003, father had a right to custody of Carlo under Italian law, and father was actually exercising his custodial rights at the time of removal.   The trial court concluded that father had failed to prove Italy was Carlo's habitual residence.   The question on appeal is whether that conclusion was correct.


Standard Of Review

Whether “habitual residence” under the Hague Convention is a question of law, a question of fact, or a bit of both, has been the subject of disagreement among various courts that have addressed the issue.  (See, e.g., Feder v. Evans-Feder (3rd Cir.1995) 63 F.3d 217, 227-228, dis. opn. of Sarokin, J.) According to the majority in Feder, “the determination of habitual residence is not purely factual, but requires the application of a legal standard, which defines the concept of habitual residence, to historical and narrative facts.   It is, therefore, a conclusion of law or at least a determination of a mixed question of law and fact.”  (Id. at p. 222, fn. 9.) More recently, Judge Kozinski of the Ninth Circuit explained that “while a determination of ‘habitual residence’ under the Convention is primarily factual, this has not been understood to mean that it is left entirely within the unreviewed discretion of the trial court.   Rather, ․ [it] is what we refer to in American legal parlance as a mixed question of law and fact.”  (Mozes v. Mozes, supra, 239 F.3d at p. 1073.)

“Mixed questions are those in which the ‘ “historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” ’ ”  (People v. Cromer (2001) 24 Cal.4th 889, 894, 103 Cal.Rptr.2d 23, 15 P.3d 243.)

 “In deciding a mixed question, the trial court must:  (1) establish the historical facts;  (2) select the applicable law;  and (3) apply the law to the facts.   We review the trial court's determination of the historical facts for substantial evidence but afford questions of law plenary review.   If application of the law to the facts is essentially factual, the trial court's determination is reviewable under the clearly erroneous standard.  ‘ “If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.” ’ ”  (CUNA Mutual Life Ins. Co. v. Los Angeles County Metropolitan Transportation Authority (2003) 108 Cal.App.4th 382, 391, 133 Cal.Rptr.2d 470;  see also Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801, 35 Cal.Rptr.2d 418, 883 P.2d 960.)

On appellate review of a trial court's application of the law to the facts when a mixed question is involved, “ ‘the concerns of judicial administration will generally favor the appellate court, justifying de novo review.   This is so because usually the application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles.’ ”  (People v. Louis (1986) 42 Cal.3d 969, 987, 232 Cal.Rptr. 110, 728 P.2d 180.)   Thus, where the application of law to fact “ ‘requires us to consider abstract legal doctrines, to weigh underlying policy considerations, and to balance competing legal interests' ” and “ ‘to make value judgments about the law and its policy underpinnings ․ the policy reasons for de novo review are satisfied and we should not hesitate to review the [trial] judge's determination independently.’ ”  (Id. at p. 988, 232 Cal.Rptr. 110, 728 P.2d 180.)

“There are, however, some types of mixed questions that are exceptions to this general predominance of factors favoring de novo review.   First, there are those mixed questions in which the applicable legal standard provides for a strictly factual test, such as state of mind, and the application of law to fact, consequently, involves an ‘essentially factual’ inquiry․ [¶] A trial court's determination whether established facts constitute negligence offers us a second situation in which the concerns of judicial administration favor the [trial] court.   Because the legal standard for judging whether conduct is negligent requires us to determine, by reference to the ‘data of practical human experience,’ [citation], whether an individual acted ‘reasonably’ by community standards, the trial court's findings of fact effectively determine our legal conclusions.”  (United States v. McConney (9th Cir.1984) 728 F.2d 1195, 1203-1204, cited with approval in People v. Louis, supra, 42 Cal.3d at p. 987, fn. 4, 232 Cal.Rptr. 110, 728 P.2d 180.)

 With these general principles in mind, we turn to the issues raised in this case.   Although “the term ‘habitual residence’ appears throughout the various Hague Conventions, none of them defines it.”  (Mozes v. Mozes, supra, 239 F.3d at p. 1071, fn. omitted.)  “ ‘[T]his has been a matter of deliberate policy, the aim being to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems.’ ”  (Ibid.) “[C]ourts have been instructed to interpret the expression ‘habitual residence’ according to ‘the ordinary and natural meaning of the two words it contains[, as] a question of fact to be decided by reference to all the circumstances of any particular case.’ ”   (Ibid.) According to the official Hague Conference reporter, habitual residence was “ ‘a well-established concept in the Hague Conference, which regards it as a question of pure fact․’ ” (Id. at pp. 1069 & fn. 3, 1071.)

Given the essentially factual nature of “habitual residence” under the Hague Convention, the question of whether the trial court erred in concluding a particular child was or was not a habitual resident of a particular country at a particular time will often be one of those exceptional mixed questions where deferential, rather than de novo, review is warranted with respect to the trial court's application of the law to the facts.   But this will not always be the case.   In some instances, the particular challenge to the trial court's determination of a child's habitual residence may involve “ ‘the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles.’ ”  (People v. Louis, supra, 42 Cal.3d at p. 987, 232 Cal.Rptr. 110, 728 P.2d 180.)   In such cases, de novo review is appropriate.

 We conclude this case presents both types of issues, calling for application of both standards of review.   Part of father's challenge to the trial court's ruling in this case is based on the assertion that the court's habitual residence finding “was in error, because it depended on a preliminary determination of custody rights, and then focused exclusively on the unilateral intentions of [mother],” as well as taking into account her “future plans.”   (Underlining omitted.)   According to father, this constituted “legal error.”   Because this argument requires us to consider the legal concept of habitual residence, and what factors the court may properly take into account in applying that legal concept, the appropriate standard of review is de novo.

 Father also argues, however, that the trial court erred in concluding Italy was not Carlo's habitual residence in September 2003 based on the evidence presented to the court.   This question “ ‘requires an inquiry that is “essentially factual,” [citation]-one that is founded “on the application of the fact-finding tribunal's experience with the mainsprings of human conduct.” ’ ”  (People v. Louis, supra, 42 Cal.3d at p. 987, 232 Cal.Rptr. 110, 728 P.2d 180.)   Thus, on this mixed question of fact and law, the appropriate standard of review is the deferential substantial evidence standard.8


Custody Rights, Unilateral Intent, And Future Plans

We begin with father's assertion that the trial court's habitual residence finding “was in error, because it depended on a preliminary determination of custody rights, and then focused exclusively on the unilateral intentions of [mother],” as well as taking into account her “future plans.”   (Underlining omitted.)   We find no error.

1. Custody Rights And Unilateral Intent

 Addressing the first part of father's assertion, we agree the question of habitual residence under the Hague Convention is separate from any question of custody rights.   We do not agree, however, that the trial court's determination of the former question depended in any way on a determination, preliminary or otherwise, of the latter.

According to father, the trial court “found that [mother] had the sole right to determine Carlo's residence”-a custody right-then used that finding in determining the issue of habitual residence.   Father's argument is premised on the following passage from the court's order:

“In this case it is abundantly clear that a shared or mutual intent between [mother] and [father] as to Carlo's residence never existed.   Thus, while the factual scenarios in Mozes are relevant as a background tapestry of the law regarding parental intent, none of those scenarios demonstrate[s] a clear connection to the factual situation which exists in this case.[9 ]  The evidence shows that [mother] was the only person determining Carlo's residence and the course of his travels with her.   This was apparent both before his birth and for his entire life.   There is no evidence to demonstrate that [father] contributed to the decision affecting where Carlo lived, nor is there evidence that he voiced any apparent objection to where Carlo lived and traveled, until September, 2003.   He did not contribute to Carlo's financial support, nor did he become involved with the child's medical care.   The evidence demonstrates that decisions regarding every phase of Carlo's life since his birth-health care, education, language, travel, and place of residence-were exercised solely by [mother].

“In essence, by his actions and his inaction, [father] conferred upon [mother] the de facto (if not de jure) right to determine Carlo's habitual residence.   What reinforces this conclusion is the fact that [father] and [mother] never intended to, nor did they actually live together as a family.   Certainly, there were periods where [father] joined [mother] at her various residences in Italy, Belgium and the United States.  [Mother] also spent time with [father] and his family.   These contacts were meant to facilitate [father's] contact with the child, and the contact with Purissima Ferraris and Laura.   Despite this amiable arrangement, from the beginning of [mother]'s plan to have a child, it was apparent that she intended the family unit to be herself and her child, and that she would conceive, give birth to, and raise the child as a single mother.   In fact, her career not only permitted, but seemed to require this type of flexibility.   All of the working assignments which [mother] describes are of short duration, and her base of operations remained the United States.   As such it appears that [mother]'s intent alone, is relevant in fixing Carlo's habitual residence.   To the extent of the broad statements that ‘the intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child's residence’ (Mozes [v. Mozes], supra ), [239 F.3d at p. 1076], it is [mother]'s intent which must be considered determinative.”

At the hearing on the trial court's tentative ruling (which included the foregoing passage), father made essentially the same assertion he is making now-that the court had inappropriately conflated habitual residence and custody concepts, such as the “best interest” of the child.   In its final order, the trial court responded to that argument in two new paragraphs that immediately followed the discussion set forth above:

“The foregoing analysis was challenged by [father] at final argument, on the basis that it impermissibly considered issues of ‘best interests' of the child, or that the analysis indicated that the court was allowing consideration of who was the best parent.   The argument misses the point of the discussion.   It is highly relevant to consider what the actual facts were concerning which parent exercised what authority over the child as that bears upon whether or not there was a shared intent as to what the habitual residence might be.   The best indication of whether there was a mutual, pre-existing, or shared intent, or an absence of such an intent is what actually occurred with regard to the child and what the parents[’] actions were (not what their hidden intent might have been).

“The determination of a child's habitual residence is a fact-intensive inquiry.   As such it is necessary to consider a broad range of facts which are relevant to the issues in dispute.   Having done so, however, the court draws no conclusions from any of the evidence presented by the parties as to which parent is the ‘better parent’ or which parent is entitled to custody.   These latter issues must not seep into judicial ana[l]ysis in Hague Convention proceedings.”  (Fn.omitted.)

The foregoing passage from the trial court's thoughtful and thorough order more than amply refutes father's assertion that the court's determination of habitual residence erroneously rested on a preliminary determination that mother was entitled to custody.   Contrary to father's assertion, the trial court did not engage in “a preliminary analysis of which parent [wa]s entitled to [i.e., had the legal right to] make residency decisions” for Carlo.   (Underlining omitted.)   What the trial court did was determine, as a matter of fact, that throughout Carlo's life mother made all the decisions about where he would reside (which was almost exclusively with her) and father allowed her to do so-that is, until he refused to return Carlo to mother in September 2003.   This factual determination was well supported by the evidence, was relevant to the issue of habitual residence, and did not constitute “legal error” as father contends.

We likewise reject father's repeated assertion that the trial court erred because it focused on mother's unilateral intent, rather than the shared intent of the parties.   Father contends that under Mozes, the court must analyze “the shared intent of the parents,” and “[w]here there is disagreement over the parties' shared intent, Mozes states that courts need to look beyond the parties' assertions and look at all the evidence to determine whether the parents, through their actions, have demonstrated a shared intent with respect to the child's habitual residence.  [Citation.]  Where the parties' actions fail to reveal a settled purpose or share intent, then courts should look to the purpose of the Convention and consider whether one parent is forum-shopping to obtain a favorable custody order.   Where such evidence exists, Mozes suggests that courts should be reluctant to make findings that would preclude application of the return provisions of the Convention.”

Although the Ninth Circuit's decision in Mozes is very useful in many respects (as our repeated citations to it show), its usefulness in this case has its limits, and father's present argument has exceeded them.  Mozes dealt with a formerly intact family:  the parents were Israeli citizens who married in 1982 and raised four children in Israel until 1997, when the mother, with the father's consent, took the children to live in California for a time, the agreed-upon duration of which was disputed.  (Mozes v. Mozes, supra, 239 F.3d at p. 1069.)   A year later, she commenced a dissolution proceeding in California and sought sole custody of the children.  (Ibid.) Father responded by filing a Hague Convention petition in the federal district court, which that court denied.  (Ibid.)

Given the facts of Mozes, what the Ninth Circuit examined on appeal was the question of when a child's habitual residence changes from one place to another.   In reversing the district court's decision and remanding the case for further consideration, the appellate court set forth the following standard:  “Where, as here, children already have a well-established habitual residence, simple consent to their presence in another forum is not usually enough to shift it there.   Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration.”  (Mozes v. Mozes, supra, 239 F.3d at pp. 1081, 1084.)

The focus on “shared intent” in Mozes makes sense because Mozes (like perhaps most cases under the Hague Convention) involved a family that was intact-that is, until the mother unilaterally decided to dissolve the marriage and retain the children in a place other that where the family had habitually lived. In an intact family, both parents are entitled to, and usually do, fix the place where the children will live.   Here, on the other hand, the trial court found mother and father “never intended to, nor did they actually live together as a family.”   Instead, “from the beginning ․ [mother] intended the family unit to be herself and her child,” and father acquiesced in that decision.   Because mother made all the decisions about where Carlo would reside throughout his life, and father allowed her to do so up until September 2003, the trial court's determination that “a shared or mutual intent ․ as to Carlo's residence never existed” was supported by the evidence, and thus the court's focus on mother's unilateral intent was proper.

Nor was the court required, in the absence of any shared intent, to merely “look to the purpose of the Convention and consider whether one parent is forum-shopping to obtain a favorable custody order,” as father contends.   The portion of Mozes on which father relies for this argument proposes that “in the absence of settled parental intent, courts should be slow to infer from [the child's] contacts [in the new country] that an earlier habitual residence has been abandoned.”  (Mozes v. Mozes, supra, 239 F.3d at p. 1079.)   Unlike Mozes, however, the present case does not raise the issue of when an earlier habitual residence may be deemed abandoned for a new one.   Here, the question was whether Carlo ever acquired any habitual residence, given the peripatetic lifestyle of the parent with whom he lived for almost all of the time since his birth, with the consent of the other parent.   The observations of the Mozes court, and its reliance on shared intent, provide little illumination on that question, let alone any authority that bound the trial court in this case.

In summary, we find no legal error in the trial court's focus on mother's intent.

2. Future Plans

Father's final contention of “legal error” rests on the premise that the trial court erroneously took into account mother's future plans in deciding whether Italy was Carlo's habitual residence in September 2003.   Again, we find no error.

In Friedrich v. Friedrich (6th Cir.1993) 983 F.2d 1396, the court stated that “[o]n its face, habitual residence pertains to customary residence prior to the removal.   The court must look back in time, not forward.”  (Id. at p. 1401.)   Father contends the trial court in this case improperly “focus [ed] on [mother's] future plans for herself and Carlo” in determining Carlo's habitual residence.  (Underlining omitted.)   He premises that contention on part of the following paragraph from the court's order:

“[Father] argues that the enrollment of the child in preschool some days before [mother] departed with Carlo in September 2003 is evidence of Carlo's settlement in Italy․ Moreover, [father] argues that Carlo was with him three full months before September 23, 2003, and that this length of time should establish the fact that his last period of time in Italy qualifies as his habitual residence.   This, coupled with the allegation that the child was forcibly removed from his presence, is a strained interpretation of the actual facts concerning Carlo's presence in the [father's] household, First, the fact that the child was enrolled in day care by [father] approximately one week before his mother retrieved him is an indication that the period of time Carlo was with his father was best represented by [mother]'s account of the facts.   Secondly, even assuming that [father]'s account is correct, that the child was with him for three months before he was to leave for the United States, this period of time, in and of itself, would be insufficient to make Italy the child's habitual residence because [mother] had already determined that she and Carlo were leaving Italy.   It is manifestly clear and documented that [mother]' s intent was to return to the United States with Carlo for approximately three to four months, and then proceed on to Belgium to complete a contract for PHVriens.   This was to be her last international contract which required her to remain in Europe for such a period of time which would be inconsistent with Carlo's attendance at school in the United States.   It is only father's prevention of her leaving Italy which ultimately dissuaded her from temporarily living in Belgium before her eventual return to a more permanent relocation in California.”

Seizing on the court's observation that “[mother] had already determined that she and Carlo were leaving Italy,” father contends the trial court improperly focused on mother's future plans in determining that Italy was not Carlo's habitual residence.   This argument, however, ignores the broader context of the court's observation.

From the statement of facts in the court's order, it is apparent the court rejected father's testimony that mother left Carlo with father from July 6, 2003 through September 23, 2003.   Instead, the court credited mother's testimony that “Carlo lived with me in Rome during the time period of July 2003 through September 2003.   Carlo and I together visited at [father]'s mother's home frequently during the summer․ Carlo also visited with [father]'s mother without me present.”   According to mother, these latter visits occurred “the first week of September 2003” and then again from September 11 to September 16, 2003, when father refused to return Carlo to mother as previously agreed.   The court accepted mother's testimony as true.

Despite having rejected father's testimony and credited mother's instead, the court explained why even if Carlo had spent the summer of 2003 with father it would not have established a habitual residence for Carlo in Italy.   In essence, the trial court took the position that any time Carlo spent with father that summer was merely an interlude before Carlo was returned to mother to resume his itinerant life with her.   Mother's “future plans” were relevant, as the trial court later observed, because she “actually carried [them] out” throughout Carlo's life.

Given the trial court's previous determination that there was never a shared intent between the parties as to Carlo's residence, but instead father acquiesced in allowing mother to determine where Carlo would live, the trial court did not improperly consider mother's “future plans” to continue traveling with Carlo between countries in determining that the three months father claimed to have spent with Carlo in the summer of 2003 did not establish a habitual residence for Carlo in Italy.


Habitual Residence

We now come to father's final argument-that the trial court erred in concluding Italy was not Carlo's habitual residence in September 2003 based on the evidence presented to the court.   As we have already explained, because of the intensely factual nature of the concept of “habitual residence,” a deferential standard of review is appropriate for this question.   Thus, we review the record to determine whether it includes substantial evidence supporting the trial court's finding that Carlo was not a habitual resident of Italy in September 2003, when mother removed him to the United States.

Our Supreme Court has said that when an appellant contends “ ‘some particular issue of fact is not sustained [by the evidence], [he is] required to set forth in [his] brief all the material evidence on the point and not merely [his] own evidence.   Unless this is done the error is deemed to be waived.’ ”   (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.)   Father likely believes he complied with that obligation when he presented a statement of facts in his opening brief divided into two sections-mother's evidence and father's evidence.   The problem is that in his argument, father emphasizes only the evidence favorable to him, in the light most favorable to him, ignoring almost all of the evidence on which the trial court relied to make its ruling and likewise ignoring the trial court's express choice to believe mother's testimony over his.

For example, father argues that “[w]hile Carlo traveled extensively to California and Belgium for up to two months at a time, he always returned to Italy.  ․ Moreover, the purpose of his travel generally was to accompany his mother when she had business engagements that were temporary and finite.”   This view of the facts, which is slanted in father's favor, ignores many of the trial court's specific findings, such as the finding that “[f]rom November 1999 to mid 2001, [mother]'s ‘home base’ was in Belgium.”   It also ignores the trial court's express decision to reject father's testimony regarding mother's “residential arrangements” because of his “revisionist and skeletalization of the facts.”   In the trial court's view, Italy was not a place to which mother and Carlo “returned” as much as it was a place where they occasionally lived, as much as they lived in Belgium.10

Another example of father's failure to present an argument consistent with the standard of review is found in father's reliance on what happened during the summer of 2003.   Despite the fact that the trial court chose to believe mother's testimony about where Carlo spent that time, in arguing that mother's actions “demonstrate[d] that she shared [father]'s intention to have Italy be Carlo's habitual residence,” father contends that “[i]mmediately prior to [mother]'s removal of Carlo from Italy in September of 2003, she allowed Carlo to spend three months in Verbania, Italy, with [father] and his mother.”   This argument blatantly disregards the trial court's findings of fact and evidences a manifest disrespect for the rules of appellate review.11

Given that father does not contend any of the trial court's findings of evidentiary fact were unsupported by the evidence, to properly present the issue of whether the trial court erred in finding the ultimate fact that Italy was not Carlo's habitual residence, what father should have done was relate the facts as found by the trial court, and then persuade us that those facts were insufficient to support a finding that Italy was not Carlo's habitual residence.   By failing to do so, father has forfeited any argument challenging the trial court's ultimate finding.   Even without relying on father's forfeiture, however, we conclude that the facts recited by the trial court in its order (which we have set out in this opinion in full) are sufficient to sustain the trial court's finding that Italy was not Carlo's habitual residence in September 2003, when mother removed Carlo to California.

Because father failed to establish that Italy was Carlo's habitual residence, he failed to prove mother's removal of Carlo from Italy was wrongful under the Hague Convention.   Accordingly, the trial court properly denied father's petition for the return of Carlo.


The judgment is affirmed.   Mother shall recover her costs on appeal.  (Cal. Rules of Court, rule 27(a).)


1.   Convention on the Civil Aspects of International Child Abduction, October 25, 1980, Treaties and Other International Acts Series No. 11670.

2.   In choosing to adopt mother's version of events, the court wrote:  “The declaration of [father] provides his perspective concerning the time periods which Carlo and his mother were present in Italy and in California.   Other than a single reference to joining [mother] and Carlo in Belgium, however, he omits any reference to the various trips taken by the mother and child.   He essentially fails to acknowledge that [mother] was a ‘resident’ of Belgium on the same basis that she was a ‘resident’ of Italy.   Where it is undisputed that [mother] and Carlo were in the United States, he concedes their presence.   All other time, [sic ] however, he allocates to presence in Italy.   The evidence clearly shows that this is not the case.   Partly because of this revisionist and skeletalization of the facts, the court has accepted [mother]'s version of her residential arrangements where her version conflicts with that of [father] and there is no other evidence which can clearly substantiate the facts in question.”

3.   “It appears that [father] was responsible for a single period of signing Carlo up for day care, this being approximately one week before he and the members of his family detained Carlo, and refused to allow him to return to his mother's care.   This enrollment is too close in proximity to Carlo's detention to be simply coincidental with [father's] family's refusal to return the child to his mother.   It appears contrived.

4.   “Pursuant to this court's order in November, 2003, the court ordered that Carlo could not be removed from California pending resolution of the Hague Convention petition.”

5.   Family Code section 7600 et seq.

6.   By “evidentiary hearing,” father appears to mean a hearing at which witnesses are sworn and testify, rather than a hearing where only declarations and other documentary evidence are received.

7.   While father contends he “asked the court to permit him to present testimonial evidence to refute the court's determination as to [mother]'s credibility” (italics added), he provides no cite to the record to support that assertion, and our review of the record contradicts father's contention.   In court, father's attorney asked the court “to reopen the proceedings to admit further evidence” and stated “a copy has been supplied to [mother], all of the documents.”  (Italics added.)   This shows that what father wanted to do was present further documentary evidence, not testimonial evidence.

8.   We recognize that the California cases involving mixed questions of law and fact we have quoted above suggest a “ ‘clearly erroneous' ” standard of review applies when the application of law to facts is essentially factual.  (See, e.g., Ghirardo v. Antonioli, supra, 8 Cal.4th at p. 801, 35 Cal.Rptr.2d 418, 883 P.2d 960.)   This suggestion arises from the fact that those California cases have drawn upon federal law for their analysis of mixed questions, and federal courts apply the “ ‘clearly erroneous' ” standard to review of factual questions.  (See People v. Louis, supra, 42 Cal.3d at pp. 985-986, 232 Cal.Rptr. 110, 728 P.2d 180.) None of the California cases has actually applied the “ ‘clearly erroneous' ” standard, however, and we consider it more appropriate to apply the well-established substantial evidence standard that applies to questions of fact under California law.   As both standards are deferential to the trial court's findings, we believe the result would be the same under either standard.

9.   By “the factual scenarios in Mozes,” the trial court was referring to a discussion in Mozes v. Mozes, supra, 239 F.3d at pages 1076-1078 of three possible scenarios that may arise “when the persons entitled to fix the child's residence no longer agree on where it has been fixed.”  (Id. at p. 1076.)   Here, the trial court found the parties never agreed on Carlo's residence, except to the extent that father acquiesced to mother determining where Carlo lived.

10.   The trial court specifically found that mother, with whom Carlo lived, “was a ‘resident’ of Belgium on the same basis that she was a ‘resident’ of Italy.”

11.   Elsewhere in his brief, father conveys his misunderstanding of the respective roles of the trial court and the appellate court when he presents an argument (which we need not otherwise reach) premised on whether this court “believe[s] that Carlo resided with [father] almost exclusively for th[e] three month period” immediately before his removal to California.   As father's appellate counsel should well know, an appellate court may not “substitute its determination of [a witness's] credibility for that of the trial court.”  (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1076, 124 Cal.Rptr.2d 142, 52 P.3d 79.)


We concur:  NICHOLSON, Acting P.J., and HULL, J.

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