Picking up where we left off yesterday, we now turn to Holder v. Holder 392 F.3d 1009 (9th Cir. 2004). The court addressed the issue of first impression: whether a family's short-term residence on an American military base in Germany renders Germany the boys' habitual residence." Id at 1011. Back before the 9th Circuit Court of Appeals, the father claimed that the boys' "habitual residence" was Germany and not California. The district court said "no" and the Court of Appeals did the same
The appellate court began by pointing to the difficulty of the issue of "habitual residence" in several cases involving military families. Then, it thoroughly analyzed the "habitual residence" in what it conceded was a "close case." Id at 1018. The court looked at two factors: (1) the parties' settled intentions, (2) the boys' acclimatization.
First, the court looked at the subjective intention of the parents regarding the boys' residence. While the court recognized that the move "was no mere vacation," it held that the father's tour was more of a sabbatical than a fixed place of residence. Id at 1018. Thus, the parties lacked a shared intent that Germany would be the boys' habitual residence.
Second, the court looked at the boys' acclimatization but conceded that the father had an uphill battle after losing on the intent prong. The court took a moment to ruefully quote the father's "incisive brief." The brief misspelled Lederhosen and Deutsch, so the judge threw Gummibären (without using the umlaut or capitalizing the noun) into the written opinon.
The court asked "whether the children's lives have become firmly rooted in their new surroundings;" more "[s]imply put, would returning the children to Germany be tantamount to sending them home?" The court found that the 5 year-old's eight months in Germany did not make it his new home. The court noted the "twist" introduced with determing the cultural home of a newborn child. The court quickly straightened this out; the infant's birth in California made it his habitual residence.