All Over the Map

News + Insights

All Over the Map

By: Molshree “Molly” A. Sharma / September 2018




The Hague Convention on Civil Aspects of Child Custody provides for an expeditious return of children wrongfully taken from their habitual residence. Different interpretations of the Convention’s key terms have led to inconsistent applications by the federal circuits. This article discusses these differences and the recent efforts of the seventh circuit to clarify and synthesize the caselaw.


GLOBALIZATION, EASE OF TRAVEL, emerging markets, and greater mobility make it easier for people to work, live, marry, and establish homes in different parts of the world. When a marriage dissolves between spouses from different countries or when a couple resides in a foreign country, competing foreign jurisdictions can add complexity to an already messy situation, especially in child custody matters. For example, there has been an increase in the number of cases in which a parent unilaterally moves a child from the child’s place of residence to another country in an attempt to become the child’s sole custodian.


The Hague Convention on the Civil Aspects of Child Abduction (“the Convention”), a multilateral treaty currently ratified by 93 countries as of March 2016, provides an expeditious protocol for the return of a child unilaterally removed by a parent from one member country to another.1 That is, the jurisdiction with which the child has the most intimate connection gets to determine custody rights.


Habitual residence, undefined
Barring situations where the return of the child may result in an intolerable situation or carry a grave risk of harm, the Convention provides that a child wrongfully taken must be returned to her place of “habitual residence.” The Convention emphasizes the primary issue before a court when deciding to return the child is one of jurisdiction and not of the merits of the underlying custody matter. Emphasizing the best interest of the child, the Convention holds that the substantive custody matter should be decided by a court in the place where the child has resided most recently, attended school, and made friends.


The Convention purposely does not define habitual residence, which is more often than not a fact-intensive inquiry. Thus, by not defining this term, the Convention provides the courts with discretion to determine this primary question. However, an unintended consequence is that various U.S. Circuit Courts of Appeals have developed different definitions of “habitual residence.” Essentially, some circuits are following a “child-centered approach” while others are applying a “parental-intent” analysis.


In Redmond v. Redmond, the seventh circuit has attempted to resolve these differing approaches.2 The Redmond court also has held that variations in different countries’ definitions of “custody” may significantly impact the court’s determination of the child’s habitual residence.


In this article, I will examine the “child- centered” and “parental-intent” approaches and show how Redmond’s synthesis of them paved the way for more predictable outcomes. I also will provide an analysis of the seventh circuit’s determination of the term “custody,” which can block a return even when a child has been removed without consent of the left-behind parent.


The child-centered approach
The Court of Appeals for the Sixth Circuit was the first federal appellate court to determine whether a child was wrongfully removed from his or her habitual residence.3 In this case, Jeana Friedrich, a U.S. armed forces member stationed in Germany, unilaterally moved her son Thomas from Germany to the U.S. without his father Emanuel’s consent.


The sixth circuit granted Emanuel’s petition to return the child to Germany, which, the court held, was Thomas’s habitual residence.


The court was unpersuaded by Jeana’s argument that she and Thomas were U.S. citizens and that various documents consistently listed Ohio as her permanent residence. Having no precedent, the court formulated a standard for determining habitual residence. The court noted that a child can only have one habitual residence at a time and the court must look back in time to determine his habitual residence rather than rely on parental intent regarding future plans. Otherwise, the court reasoned, a parent could abduct a child and claim that the removal was simply a change of habitual residence. The key factor is where the child resided prior to the unlawful removal, not the parental perspective of where the parent(s) intended to reside in the future. Therefore, the sixth circuit decided that Thomas must be returned to Germany, where custody would be determined by a German court.


In 1995, the third circuit also followed a child-centered approach in Feder v. Evans-Feder.4 In that case, two U.S. citizens lived briefly in Pennsylvania after moving from Germany, where their son Evan was born. The family then moved to Australia. The court held that Australia was Evan’s habitual residence after Mrs. Feder left Australia and did not return from a purported vacation in Pennsylvania. The court granted the father relief and returned the child to the jurisdiction of an Australian court.


The court specifically held that although Mrs. Feder intended to leave her marriage and did not intend to permanently reside in Australia, her intentions ultimately were irrelevant. The court found that Evan’s habitual residence was Australia because he attended preschool there and was enrolled in kindergarten there for the upcoming year. While the Feder court weighed parental intent much more than did the Friedrich court, Feder ultimately focused on the child’s experience prior to the removal and adopted a child-centered approach.


Similarly, the eighth circuit found in Barzilay that while some weight should be given to parental intent, the ultimate analysis must focus on the child.5 In Barzilay, the parents were Israeli citizens. Mr. Barzilay and his family moved after receiving employment visas (not per- manent resident status or green cards); therefore, parental intent was ambiguous. But because their children had resided in the U.S. for all, or at least a majority, of their lives, the court determined the U.S. was their habitual residence.


Parental intent
The second most-common approach is for courts to favor mutual parental intent over the experience of the child. While the child-centered approach tends to look backward in time, the parental-intent approach looks forward and considers where the parents planned to reside in the future.


Generally, the second, ninth, and eleventh circuits apply the parental-intent test more frequently. In the second circuit case of Gitter v. Gitter, Mrs. Gitter agreed to move from the U.S. to Israel on a trial basis when their son was three months old.7 Mrs. Gitter lived in Israel for nearly a year, returned with the child to the U.S., and came back to Israel a second time— with assurances from Mr. Gitter that she would be able to leave if unhappy. She did, returning to the U.S. five months later. The court found that there never was a settled, mutual intent between the parents to reside in Israel. Notably, the court held children “[n]ormally lack the material and psychological wherewithal to decide where they will reside, thus it is more useful to focus on the intent of the child’s parents or others who may fix the child’s residence. ...Informed by these holdings, we will presume that a child’s habitual residence is consistent with the intentions of those entitled to fix the child’s residence at the time those intentions were mutually shared.”8


Similarly, the ninth circuit in Mozes—a significant parental-intent decision—held that, where there is only a mutual intent of the parties to allow a child to live in a foreign country for a limited period of time, the focus should be on where the parents intended to base the child’s ties and development. 9


The most significant example of this split in analysis is demonstrated in the eleventh circuit case of Ruiz, where the parties resided in the U.S. for seven years prior to moving to Mexico with their children for what they agreed would be a trial period.10 They lived in Mexico for a little more than two years and 10 months and the children attended school and made friends there. When the mother returned with the children to the U.S., the father persuaded her to return to Mexico with the children and reconcile, which she did for a short period before the relationship deteriorated. She then left for the U.S. without telling the father. The eleventh circuit held that, while the case was “close,” there was no evidence the parents intended to abandon their U.S. residence; therefore, the children were habitual residents of the U.S.


Had the case been in front of the sixth circuit, the outcome would have been the exact opposite. In fact, the sixth circuit criticized the eleventh circuit, stating “a child who lives in Mexico, attends Mexican school, makes Mexican friends for three years builds an attachment to Mexico that would lead any child to call that country home.”11


The seventh circuit’s balancing act
The 2013 seventh circuit case of Redmond v. Redmond attempts to synthesize the two approaches and provide a settled and predictable test to determine habitual residence.12 In Redmond, the court acknowledges that a majority of the circuits have adopted the approach closer to those of the ninth and second circuits, which sharply focused on parental intent.13 However, in Redmond, the court holds that while the two approaches may be different, in fact all circuits consider both the parental intention and a child’s acclimation. The difference is how much weight each circuit gives to these factors.


Specifically, the Redmond case states “conventional wisdom thus recognizes a split between the circuits that follow Mozes and those that use a more child-centric approach, but we think the differences are not as great as they might seem.”14 Although the third, sixth, and eighth circuits focus on the child’s perspective, they also consider parental intent. In Feder, the third circuit observed that an inquiry into a child’s habitual residence must “focus on the child and [consist] of an analysis of the child’s circumstances in that place and the parents’ present shared intentions regarding their child’s presence there....”15


Similarly, although the Mozes frame- work focuses on the shared intention of the parents, the child’s acclimation in a country plays an important role. Indeed, the ninth circuit also stated that a “child’s life may become so firmly embedded in the new country as to make it habitually resident even though there be lingering parental intentions to the contrary.”16


Redmond further held that while the court has not yet had the opportunity to show how to balance the parents’ and the child’s perspectives, it determined that weight must be given to both—especially in instances where the evidence may be
inconsistent. Therefore, Redmond holds that both parental intent and the child’s acclimation must be examined and then weighed to determine a child’s habitual residence.


Trickier: Children born out of wedlock
The seventh circuit also provides a serious warning to parents whose children were born out of wedlock. When a young woman from Orland Park, Illinois, moved to Ireland and had a child with a native Irishman, whether the father had any legal custody rights had to be addressed and the answer impacted the determination of habitual residence. Even though the unmarried couple came back to Illinois for the birth and the father was listed on the Illinois birth certificate and signed an Illinois Voluntary Acknowledgment of Paternity (VAP), the parents agreed to raise their child in Ireland, where they returned shortly after the birth. In Ireland, the relationship deteriorated and the mother went back to Illinois with their son against the father’s wishes. The father, however, notwithstanding the Illinois birth certificate and VAP, had no custody rights as Irish law does not recognize the parental rights of unwed fathers (unless he petitions an Irish court for custody or guardianship).18


Article Three of the Convention requires member countries to promptly return children to the country of their habitual residence when they are wrongfully removed or retained in another country in breach of the custody rights of the left-behind parent. However, custody rights are typically determined by the law of the country from where the child was removed.


In Redmond, when the father finally received custody rights in Ireland three years later, the mother and child had resided in the U.S. for all that time and only returned intermittently to Ireland for court dates. Although the father ultimately received custody rights in Ireland and the mother was ordered to return to Illinois only for the purpose of winding up her affairs and packing her and their son’s belongings—she admitted to agreeing to this undertaking but with no intention of complying—the Redmond court still held that Illinois was the child’s habitual residence.19


The first removal was undoubtedly against the father’s wishes. But the father did not have custody rights then. The second—in breach of the Irish court’s order, in 2011—was not the removal of a child from his habitual residence, because Illinois was the child’s habitual residence. Indeed, in reviewing whether Ireland or Illinois was the child’s habitual residence, the court held that, while it was clear the parents’ last mutual intention was to reside in Ireland, this was given too much weight by the trial court as that intention last had been shared several years ago. When the mother removed the child, she had the sole right to do so and, since then, the child had become rooted in his life in the U.S. He had spent three of the four years of his life in Orland Park, attended daycare and preschool there, and was enrolled in a local kindergarten program.


Advising clients
The circuits’ split on how to analyze habitual residence makes counseling clients difficult. However, the Illinois- based seventh circuit appears to be synthesizing the child-centered and parental-intent approaches.


If a client is worried that a partner may remove a child to a foreign country, put the objection into writing so it is clear there is no consent and no intention of the client residing elsewhere. If the parent is experiencing marital discord, the best option is to immediately file a petition for dissolution and obtain an emergency order prohibiting taking the child outside the country. The order should simultaneously be transmitted to the U.S. Department of State’s Office of Children’s Issues, which can assist in putting the child on a no-fly list.


A parent often will remove a child by claiming he or she is visiting family and friends in another country for a vacation. Prior to counseling clients, a practitioner must consider whether that country is a signatory of the Convention and consult the State Department’s annual review of that country to determine if it is in compliance with the Convention. Several countries may be signatories but are deemed non-compliant for lack of actual returns, bureaucracy, and length
of litigation. Advise clients to not take children to these countries. If they insist, then obtain a written agreement that the trip is a vacation and the habitual residence remains the U.S. In court, provide judges the information they need, such as statistics, caselaw, and U.S. Department of State reports.


Parents who are not married (especially unwed fathers) must be extremely careful. Review the definition of custody in the
country in question. If fathers do not have custodial rights, advise clients to not travel there. If they must go for employment, advise them to petition for guardianship and custody rights immediately—even when, as in Redmond, they are on the birth certificate in the United States.




Reprinted with permission of the Illinois Bar Journal, Vol. 106 # 9, September 2018. Copyright by the Illinois State Bar Association.