Summary
This Ninth Circuit Court of Appeals opinion affirms the district court's denial of a petition under the Hague Convention for the return of two young children from the United States to Scotland. The panel held that the district court did not clearly err in finding that the children lacked a habitual residence in Scotland, considering factors such as their limited acclimatization, lack of meaningful connections, and the sole caregiving mother's intention to keep Scotland temporary. The court applied the totality-of-the-circumstances standard from Monasky v. Taglieri and deferred to the district court's factual findings under a clear-error review.
Topics
Practice areas
Questions Presented
- Whether the district court clearly erred in finding that Nisbet failed to prove that the children were habitually resident in Scotland immediately before Bridger brought them to the United States.
- Whether the district court properly applied the Monasky totality-of-the-circumstances standard and considered the intentions and circumstances of the children's caregiving parent.
- Whether the children's physical presence in Scotland, nursery attendance, and medical and dental care there compelled a finding that Scotland was their habitual residence.
- Whether the district court's discussion of Nisbet's alleged coercive conduct provided a basis for reversal.
Holdings
- The district court did not clearly err in finding that Nisbet failed to prove by a preponderance of the evidence that the children were habitually resident in Scotland when Bridger took them to the United States. The totality of the circumstances supported the district court's finding that the children had no habitual residence.
- The children's physical presence in Scotland, attendance at nursery school, and receipt of medical and dental care there were not dispositive. Those facts did not require reversal where the district court found that they did not produce meaningful social connections or acclimatization.
- The district court properly considered Bridger's intentions and circumstances, including her repeated plans to return to Oregon, precarious visa status, and lack of ties to Scotland, because she was the children's sole caregiving parent and the children were too young to acclimate independently.
- The district court's comments regarding Nisbet's coercive conduct were dicta because the court had already resolved the habitual-residence issue in Bridger's favor, and those comments could not serve as a basis for reversal.
Key quotations
“The bottom line: There are no categorical requirements for establishing a child’s habitual residence.” (p. 11)
“Because we find it did not, we affirm.” (p. 23)
Factual background
Andrew Nisbet and Spirit Bridger's two young children lived with Bridger in Scotland for substantial periods before Bridger took them to Oregon in June 2022. The children attended nursery school and received medical and dental care in Scotland, but the district court found that they had no meaningful social or family connections there, that Bridger—their sole caregiving parent—never intended Scotland to be more than temporary, and that she lacked meaningful ties to Scotland. Nisbet, who had been confined in England after pleading guilty to manslaughter based on diminished responsibility, sought their return under the Hague Convention.
Procedural history
Nisbet petitioned under the Hague Convention for return of his two children to Scotland. After a three-day expedited bench trial, the district court denied the petition, finding that Nisbet failed to prove by a preponderance of the evidence that Scotland was the children's habitual residence and alternatively finding a grave risk of harm under Article 13(b). Nisbet timely appealed, and the Ninth Circuit affirmed.