On November 2, 2021, the SDNY ordered the parties’ two eldest children returned to Iceland. This blog post is a little lengthy because the issue at hand is habitual residence, which now involves a totality-of-the-circumstances analysis.

Mr. Schram (Icelandic) and Ms. Zarak (Mexican) both attended university in the United States and met in the summer of 2013 while living in New York. They married on April 9, 2015 in New York, with a religious ceremony in Iceland on September 19, 2015. They continued residing in NY and their three children were all born in the USA. All three children are now dual US-Icelandic citizens. The family was fairly transient, living in a variety of cities during the couple’s marriage and the children’s lives. In 2017, the couple spoke about leaving NY due to the cost and job opportunities. They discussed moving to a variety of places, but by March 2018, their discussions seemed to narrow to Iceland, however, in May, Ms. Zarak received a job offer from Netflix in Los Angeles, and the family moved there. About six months after the family moved to LA, Ms. Zarak lost her job with Netflix. While they entertained staying in LA for a potential job opportunity for Mr. Schram, they concluded that LA was also too expensive. The family ultimately moved back to NY in 2019, and back into the same condo in which they previously lived, which Ms. Zarak co-owned with her sisters. In early March 2020, before U.S. COVID shutdowns, the couple had begun discussing potential real estate options in Iceland.

During the first week of March 2020, the couple learned that their children’s schools were going to be shuttered. Mr. Schram also learned his O-1 visa was not going to be renewed, and he needed to appear at a U.S. consulate abroad to apply to renew it. The family left NY for Mexico, only bringing suitcases and with Ms. Zarak still listing herself as a resident of NY for tax purposes. While in Mexico, Ms. Zarak had job offers, but rejected them; the family looked for some real estate, but purchased nothing; and, the children attended school in NY remotely. In addition, Mr. Schram’s visa renewal was rejected, however, he was able to convince a prior contract employer in NY to offer him work and sponsor him for an H1-B visa that would allow him to return to the U.S. in October 2020. Mr. Schram, however, stopped pursuing his visa application in July because the family decided to relocate to Iceland. The parties now contest the reasons for moving to Iceland, and the length of time they intended to remain there.

Mr. Schram admits, very candidly, that the move to Iceland was for an indeterminate period of time, and that the family was leaving open options for future moves, whether it be back to the U.S. or to Mexico or elsewhere. This revelation by the Petitioner caused the court to conclude he was highly credible. Contrary to Petitioner, Ms. Zarak presented conflicting evidence as to what she intended when moving to Iceland, at times claiming it was only for the pandemic, and other times claiming it was for one or two years. There was evidence that even indicated the family, when they ultimately left Iceland, may return to Mexico, not the United States, and a lot of the future potential return to the USA was based on the parents receiving green cards. The family obtained visas to return to NY for 3 weeks to pack their belongings. They shipped nearly everything to Iceland, with a few items remaining in NY, which apparently were meant to be retrieved over the Christmas holiday.

After moving to Iceland, Ms. Zarak stopped claiming NY residency for taxes, the couple purchased a car, and they purchased a home, with Ms. Zarak making the down payment. She obtained a residency permit and the equivalent of a social security number. Finally, in July 2020, Ms. Zarak’s U.S. green card application was approved, but, by April 2021, she still had taken no further steps to finalize it.

In early 2021, the couple began floating the word “divorce” in their exchanges, and once Ms. Zarak learned that NY was reopening and things felt more normal, including a return to in-person education in NY, she began expressing a desire to return to NY. She even began discussing this with the children’s prior NY school without Mr. Schram knowing. Simultaneously, Ms. Zarak applied for an MBA program in Iceland and registered intent to place the children in school for the 2021-2022 school year in Iceland.

Ms. Zarak took the two eldest children in June 2021 to Mexico for a family reunion. All evidence indicates she planned on returning to Iceland at the end of the vacation to Mexico, up until right before her trip, when she learned that the children had been placed in school in NY (without their father’s knowledge). This caused Mr. Schram some concern, but he allowed the two eldest children to travel regardless. In July 2021, Ms. Zarak left Mexico and flew to NY with the two children. On the day she arrived, she filed a divorce suit in NY, requested interim sole custody of the children, and asked for their youngest child to be “returned to NY.” On August 2, 2021, Mr. Schram filed suit in Iceland and on August 13, 2021, he filed the Hague Abduction return petition in NY.

The primary issue litigated over 8 days was whether the US (NY) or Iceland was the children’s habitual residence. The family was transient over the course of the years leading up to their relocation to Iceland. They were constantly in discussions about where to live. They lived in three different countries over the course of their children’s lives. In the United States alone, they lived in two different cities. The court states, “The inquiry here is not straightforward because, throughout their marriage, the parties were indecisive with respect to their permanent long-term plans and both parties are in agreement that the decision to move to Iceland was not meant to be a definitive plan to move to Iceland permanently.” The court concluded, however, that they did have an intent to move to Iceland indefinitely.

“Key here is that ‘although residing habitually in a place means that a person has, in some sense, settled there, ‘it need not mean that’s where you plan to leave your bones.’”