Igor Benoit Castang v. Katherine Jeong-Eun Kim

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10426
Non-Argument Calendar
____________________
IGOR BENOIT CASTANG,
Plaintiff-Appellee,
versus
KATHERINE JEONG-EUN KIM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-05136-SCJ
____________________
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2 Opinion of the Court 23-10426
Before J ORDAN, NEWSOM , and BRASHER , Circuit Judges.
PER CURIAM:
This appeal arises under the Hague Convention on the Civil
Aspects of International Child Abduction (“Hague Convention” or
“Convention”), as implemented by the International Child Abduc-
tion Remedies Act (“ICARA”).
See 22 U.S.C. § 9001,
et seq. Kathe-
rine Kim, the mother, appeals the district court’s order granting re-
lief to Igor Castang, the father, and directing that their minor child
be returned to France. After careful review, we affirm.
BACKGROUND
The parties are familiar with the facts in this appeal, and we
recount them only as necessary to explain our decision.
The child was born in 2018 in France where the child’s
mother and father resided. In 2021, a French court directed that the
mother and father share custody of the child. The mother would
have primary custody of the child; the father would have certain
rights of secondary custody, such as overnight visitation. Specifi-
cally, the French court said, “the joint exercise of parental authority
over the child, as well as the habitual residence at the mother’s
home with a classic right of visit and accommodation for the father
are not debated.” This order also contemplated that, at some point,
the mother and child might move to the United States.
The father and mother’s relationship deteriorated, and the
mother threatened to take the child to the United States and cut off
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23-10426 Opinion of the Court 3
the father’s contact with the child. In response, the father sought
an additional order from the French court. That order reaffirmed
that the “habitual residence” of the child was to be with the
mother, but it also expressly prohibited the mother from removing
the child from France without the father’s consent. Nonetheless,
without informing the father, the mother took the child to metro
Atlanta in 2022.
The father filed an ICARA petition in federal district court,
seeking the return of the child to France.
See 22 U.S.C. § 9003(b).
The district court held a bench trial. After the trial, the court found
that the child’s habitual residence was in France and that the
mother wrongly removed the child from France in breach of the
father’s custody rights. In determining that the child’s habitual res-
idence was France, the court noted that the child had resided in
France for most of the child’s life, the second French custody order
contemplated that the child would remain in France absent an
agreement by both parents, and neither the child nor the mother
had established community ties in the United States. The court or-
dered that the father be allowed to take “physical custody of the
Child” so that he could “return the Child to France.” The court
further ordered that “[u]pon arrival in France, the court acknowl-
edges that the French custody orders from September 2021 and
May 2022 will be operative, and nothing in this Order shall be read
as prohibiting the Parties from pursuing further custody rights or
other domestic relief in the French courts.”
The mother appealed.
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4 Opinion of the Court 23-10426
DISCUSSION
The Hague Convention’s “core premise” is that “‘the inter-
ests of children . . . in matters relating to their custody’ are best
served when custody decisions are made in the child’s country of
‘habitual residence.’”
Monasky v. Taglieri, 140 S. Ct. 719, 723 (2020)
(quoting Convention Preamble, Treaty Doc., at 7). To that end,
ICARA requires the “prompt return” of a child to the child’s coun-
try of habitual residence when the child has been wrongfully re-
moved to or retained in the United States. Art. 1(a), Treaty Doc.,
at 7;
see also Art. 12. Accordingly, “if a court finds that a child was
wrongfully removed from the child’s country of habitual residence,
the court ordinarily must order the child’s return.”
Golan v. Saada,
142 S. Ct. 1880, 1887 (2022).
The mother argues that the district court made two errors
in ordering the child’s return to France under ICARA and the
Hague Convention. Neither argument has merit.
First, the mother argues that the district court exceeded its
subject matter jurisdiction under ICARA by modifying the French
custody orders and awarding custody to the father. “The district
court’s subject matter jurisdiction is a question of law that we re-
view
de novo.”
United States v. Iguaran, 821 F.3d 1335, 1336 (11th
Cir. 2016).
We cannot say the district court exceeded its jurisdiction. “A
court considering an ICARA petition has jurisdiction to decide the
merits only of the wrongful removal claim, not of any underlying
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23-10426 Opinion of the Court 5
custody dispute.”
Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998).
And that is all the district court did here. As required by the Hague
Convention, the district court’s order merely “restore[d] the pre-
abduction status quo” by directing that the child be promptly re-
turned to France.
Id. Although the district court’s order used the
word “custody” in directing that the father be allowed physical pos-
session of the child to return the child to France, the district court
made clear that its order had no effect on the ongoing custodial
rights of either parent and that the French court’s orders remained
in effect.
Second, the mother argues that the district court erred in
holding that the child’s “habitual residence” is France. To secure
return of the child, the father had the burden to establish, among
other things, that the child “was a habitual resident” of France “im-
mediately before” the child was removed to the United States.
See
Berenguala-Alverado v. Castanos, 950 F.3d 1352, 1358 (11th Cir.
2020) (quoting
Chafin v. Chafin, 742 F.3d 934, 938 (11th Cir. 2013)).
The mother argues that the district court should have found that
the child’s “habitual residence” is with her, the mother, in what-
ever country she happens to reside. The mother points out that the
French court directed that the child’s “habitual residence” would
be with her, the mother. And the mother argues that the district
court erroneously refused to give “significant weight” to that cus-
tody determination.
As an initial matter, the parties dispute the standard of re-
view we should apply to this question—
de novo or clear error. The
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6 Opinion of the Court 23-10426
Supreme Court has explained that “[a]bsent a treaty or statutory
prescription, the appropriate level of deference to a trial court’s ha-
bitual-residence determination depends on whether that determi-
nation resolves a question of law, a question of fact, or a mixed
question of law and fact.”
Monasky, 140 S. Ct. at 730. The mother
argues that the district court committed an error of law in inter-
preting the French custody orders and the “habitual residence” in-
quiry under the Hague Convention and, thus,
de novo review ap-
plies. The father argues that the mother’s appeal raises a “question
of pure fact.”
Assuming without deciding that we should review the dis-
trict court’s reasoning
de novo, we cannot say the district court
erred. The question of habitual residence under the Hague Con-
vention must be answered by the “totality of the circumstances.”
Id. at 726–730. This inquiry is “fact-sensitive” and not “categorical”
Id. at 726. Accordingly, “courts must be ‘sensitive to the unique
circumstances of the case and informed by common sense”
Id. at
727 (quoting
Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir.
2013)). The mother’s argument, however, is based mostly on se-
mantics. She argues that, because the French court used the phrase
“habitual residence” to award her primary custody and the Con-
vention uses “habitual residence” to identify the child’s home
country, her country of residence is necessarily the child’s “habitual
residence” under the Hague Convention.
The district court correctly rejected this argument. The
mother’s proposed rule is precisely the kind of “categorical” rule
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23-10426 Opinion of the Court 7
that the Supreme Court has warned us against. It also conflates cus-
tody—which courts are not to determine under ICARA—with a
child’s habitual residence—which courts must determine under
ICARA. The question under the Hague Convention is a fact ques-
tion about which country’s courts should adjudicate the parents’
custody dispute, not which parent has primary custody. Although
a parent’s country of residence and status as primary caregiver
should be considered in the totality of the circumstances, the dis-
trict court was correct to reject the mother’s argument that the
child’s habitual residence must always be wherever the child’s pri-
mary caregiver resides at any particular time.
CONCLUSION
The district court’s judgment is AFFIRMED.
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