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U.S. District Courts
Hyman v. City of Salem (Thomas S. Kleeh, N.D. W. Va. 1:19-cv-75)
A district judge enjoined removal of a marijuana decriminalization initiative from a city’s ballot as content-based discretion to remove an initiative that might be in conflict with state law.
Subject: Ballot measures. Topics: Ballot measure; getting on the ballot.
One of many Case Studies in Emergency Election Litigation.
Grave Risk | Court’s Discretion to Return | Undertakings | Habitual Residence
In this case, a child was ordered returned to its habitual residence in Italy, but the undertakings that conditioned the return were unenforceable. The Second Circuit remanded the case to the district court to consider conditions of return that would protect the child.
The Second Circuit affirmed the lower court’s finding on habitual residence but remanded the case for further consideration of undertakings, given the likelihood that the proffered undertakings could not be enforced.
The father, an Italian citizen, and the mother, a U.S. citizen, married in Milan, Italy, in 2014. They had a child together in 2015. Soon after their marriage, the father began abusing the mother physically, verbally, and emotionally. This abuse continued throughout the marriage. On one occasion, the father threatened to kill the mother. This behavior often took place in the presence of the child.
The child lived in Italy for his first two years. In July 2018, the mother traveled with the child to the United States to attend her brother’s wedding. She did not return to Italy with the child and moved into a domestic violence shelter in New York.
After a nine-day trial, the district court found that Italy was the child’s habitual residence, and ordered the child be returned to Italy subject to certain undertakings. The court found that returning the child to Italy would expose him to a grave risk of harm, and specifically concluded that a return could result in significant adverse effects upon his psychological health and development. The court further found that the father was unlikely to change his behavior, and “could not control his anger or take responsibility for his behavior.” Therefore, as a condition of the child’s return, the district court adopted undertakings intended to “sufficiently ameliorate the grave risk of harm.” Those undertakings included (1) payment for housing, support, and legal fees in the sum of $30,000; (2) an order that the father stay away from the mother; and (3) the requirement that the mother must first consent for the father to be able to visit the child.
Habitual Residence. The Second Circuit reiterated its previous test for determining habitual residence: look to the last shared intent to fix the child’s residence. The court noted that it reviews a district court’s factual findings for clear error and reviews those facts de novo. Based on the evidence cited by the district court, the Second Circuit affirmed the lower court’s finding that Italy was the child’s habitual residence.
Grave Risk | Undertakings. District courts have considerable discretion to order the return of a child even when the abducting parent has established a defense against return. The Second Circuit followed its precedent in Blondin Ithat district courts should “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” When undertakings are unenforceable, the return of a child in the face of a proven defense is generally disfavored. This is especially so in cases like this one. The court concluded that
in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other “sufficient guarantees of performance.”
Finding that the undertakings given by the father in this case were unsupported by guarantees of his performance, the Second Circuit vacated the district court’s order of return and remanded the case for consideration of remedies that would allow for the return of the child and protection from harm. The Second Circuit urged the district court to consider whether the Italian courts would enforce the restraining order. Addressing whether an order of return conditioned on a foreign court’s enforcement of such an order is appropriate, the Second Circuit reasoned,
[W]e do not think that international comity precludes district courts from ordering, where practicable, that one or both of the parties apply to courts in the country of habitual residence for any available relief that might ameliorate the grave risk of harm to the child. So long as the purpose of such an order is to ascertain the types of protections actually available, and the district court does not condition a child’s return on any particular action by the foreign court, there is little risk that this “practice would smack of coercion of the foreign court.
. Saada v. Golan, 930 F.3d 533, 539 (2nd Cir. 2019) (citing Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005)).
. Id. at 538 n. 13 (citing Guzzo v. Cristofano, 719 F.3d 100, 109 (2d Cir. 2013)). The court also noted that on June 10, 2019, the Supreme Court granted certiorari to review the question as to the appropriate standard of review for habitual residence determinations. See Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018) (en banc), cert. granted, 140 S. Ct. 719 (2020).
. Id. at 539 (citing Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).
. Blondin v. Dubois (Blondin I), 189 F.3d 240 (2d Cir. 1999).
. Id. at 248.
. Saada, 930 F.3d at 540 (citing Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007)).
. Id. (citations omitted).
. Id. at 541–542.
In this case, a Japanese couple entered into a divorce agreement that granted the mother parental authority over their children. Japanese law defined the terms of that agreement as giving the mother the right to determine children’s residence.
The Tenth Circuit affirmed the district court’s decision that the parties’ divorce agreement made under Japanese law failed to confer rights of custody to the father that would entitle him to file a petition for return of the children to Japan.
A South Korean mother and a Japanese father were married in Japan in 2003. In 2006, their twin girls were born there, and the family lived together until the parents’ divorce in 2013. Japanese law gives married couples the option to implement their own divorce by entering into a binding agreement made between the parties without any involvement from the Japanese judiciary. In this case, the parents opted to enter into such an agreement, which contained arrangements for the custody and support of the children. The agreement provided the following:
- the mother obtained “parental authority over” the children
- the father was to “give due consideration to the welfare of [the twins] when exercising custody”
- the father was to “hand over [the twins] to [the mother] on the last day of March 2017,” but the father continued “to maintain the right of custody of [the twins]” after that date
- the father was to begin paying child support in April 2017, and was to continue until the twins reached twenty years of age
- either party could “visit [the twins] once a year”
Pursuant to the divorce agreement, the children began living with their father in Japan in 2013. At the end of March 2017, the father failed to hand over the daily physical control of the children to their mother and failed to provide child support payments. In October 2017, the children traveled to South Korea to celebrate a traditional festival with their maternal grandparents. After they arrived, the mother took the children to the United States without the father’s permission. The father filed a petition for return of the children in April 2018. The district court denied the father’s petition, finding that he failed to prove that the mother had breached his custody rights. The district court found that the mother had full parental authority and decision-making power under the parties’ divorce agreement and that the father had the right to exercise some physical custody at undetermined future dates. The court also found that both twelve-year-old girls objected to being returned to Japan.
Legal Effect of the Parties’ Divorce Agreement. The children had established habitual residence in Japan at the time of their removal to the United States. Both the mother and father agreed that their divorce agreement governed their custody arrangement and that the father’s custody rights were subject to Japanese law. Japanese law provides that “parental authority” includes various rights, including the right to determine a child’s residence. Since the mother was the only parent granted “parental authority” over the children, she alone had the right to select the place where the children would live. The father argued that the divorce agreement provided that he would continue to have a “right of custody” of the children even after they were transferred to the mother in March 2017. His argument was based on language from the Supreme Court’s Abbott v. Abbott decision, in which that father had custody rights despite the other parent’s right to sole custody. The Tenth Circuit distinguished this case from Abbott, finding that the father’s visitation rights in Abbott were accompanied by a ne exeat clause prohibiting the removal of the children without that father’s consent. Here, however, the father had no such right to object to the removal of the children from Japan.
Under Japanese law, the mother’s “parental authority” also included other rights, such as the right to determine the children’s care, education, and discipline, and to manage their financial affairs and take legal actions on their behalf. The father did not provide any evidence that Japanese law defined his residual custody rights as including any of the parental rights the mother had. Although the father had some residual custody rights, the Tenth Circuit found that those rights were not the parental rights required to support a petition for return under the Hague Convention.
Determination by the Japanese Central Authority. The father also argued that the act of the Japanese Central Authority, which forwarded his request for assistance to the U.S. Central Authority, implied that he possessed enforceable custody rights under Japanese law. He argued that Japanese law requires its Central Authority to dismiss applications made under the Hague Convention if the applicant does not have rights of custody. The failure to do so was therefore tantamount to a determination under Japanese law that he possessed enforceable rights of custody. But the Tenth Circuit found that Japanese law only required the Japanese Central Authority to dismiss an application for assistance if “[i]t is obvious that the applicant does not have the rights of custody.” The court dismissed the father’s argument, finding that even the preliminary opinion of an administrative body did not amount to a finding, under Japanese law, that he possessed rights of custody.
. The 1980 Hague Convention provides that custody rights may be established by “an agreement having legal effect” under the law of the child’s habitual residence. Hague Convention on the Civil Aspects of International Child Abduction art. 3, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.
. See Takeshi Ogawa v. Kyong Kang, No. 2:18CV335DAK, 2018 WL 2376338, at *1 (D. Utah May 24, 2018).
. Because the Tenth Circuit affirmed the district court’s determination that the father did not have enforceable custody rights under the 1980 Hague Convention, it did not address the issue of the children’s objections to being returned to Japan. Takeshi Ogawa v. Kyong Kang, 946 F.3d 1176, 1177 n. 1 (10th Cir. 2020).
. 560 U.S. 1, 9 (2010).
. Takeshi Ogawa, 946 F.3d at 1181 (quoting Abbott, 560 U.S. at 11).
. Id. at 1183.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Habitual Residence | Parental Intent | Acclimatization | Time-Limited Relocations
In this case, three children were temporarily removed to Australia for the purpose of providing medical care to one of the children. The father argued that this triggered a change in their habitual residence.
The Tenth Circuit affirmed the district court’s ruling on habitual residence, finding that the contemplated length of a temporary relocation is just one of several factors to consider when determining whether the children have acquired a new habitual residence, and the length of time a child remains in a new location is one of many factors to consider when determining whether a child has become acclimatized.
The mother and father were the married parents of three children. They established their home in North Carolina in 2006 and lived there until 2016. In 2016, the parents learned that their middle child needed specialized medical treatments. The father and children were dual citizens of Australia, and both the mother and father agreed to move to Australia to take advantage of Australia’s universal health care system. The parents contemplated that they would live in Australia until the completion of their son’s medical treatment—a period of two to two-and-a-half years. In preparation for the move, the family rented out their home in North Carolina and moved into the mother’s parents’ home in Utah. While in Utah, the family visited various places in the western United States, potential future homes after their time in Australia.
In September 2016, the family moved to Australia. They shipped much of their personal property to Australia but maintained ownership of their home in North Carolina. Other personal items were left in Utah, including sentimental items. The father maintained his company in the United States; most of its operations were in North America. The mother applied for and was granted a twelve-month visa to remain in Australia. The children were enrolled in Australian schools, and the family purchased a new home there. The father continued to travel overseas for work. The mother later applied for a permanent visa.
The marriage began to deteriorate, but despite these difficulties, the mother convened a “family meeting” and everyone agreed that the parents should remain together so that their son could continue to receive the needed medical care. But the parents’ relationship ended when the father withdrew funds from the parties’ joint bank accounts and deauthorized the mother from using their credit cards. When the mother rejected his attempt to reconcile, he withdrew his sponsorship of her application for a permanent visa. Three days later, the mother took the children and flew to Utah. At the time of the children’s removal to the United States, the family had lived in Australia for just over eleven months.
The father filed a petition for the return of the children to Australia, but the district court found that the children’s habitual residence was in the United States, and it denied his petition.
To determine the question of habitual residence, the district court had considered both shared parental intent and the degree of acclimatization by the children.
Parental Intent. The district court had found that the parents never shared an intent to settle in Australia; they moved there solely for their child’s expensive orthodontic treatments. The family maintained ownership of their North Carolina residence, kept their U.S. bank accounts intact, and left their sentimental items in Utah. The father continued to operate his business primarily in North America. The family relocated to Australia for a very specific purpose and for a limited time.
The Tenth Circuit found that the evidence supported the district court’s findings that the family had not become settled in Australia and that their intent to remain in Australia for an indeterminate stay did not amount to establishing a new habitual residence. The Tenth Circuit also refused the father’s invitation to adopt the Third Circuit’s holding in Whiting v. Krassner that the duration of an intended stay in a second country may itself determine the question of habitual residence. Instead, the Tenth Circuit noted that the contemplated length of the stay is just one factor to consider when determining whether a new habitual residence has been established.
Acclimatization. In this case, the children were seven, ten, and twelve years old at the time they returned to the United States. The district court found that the children had not acclimatized to Australia to a degree that would trigger a change in their habitual residence. The children also knew that they were living in Australia temporarily and “never considered Australia home.” Contrary to the father’s assertion that a stay of nearly one year in Australia was sufficient to allow for acclimatization, the Tenth Circuit found that the period of time spent in a new country does not control the acclimatization determination, but is just one of many factors to be considered.
. Watts v. Watts, 935 F.3d 1138, 1145–47 (10th Cir. 2019) (relying in part on a 10th Circuit unpublished case, Kanth v. Kanth, 232 F.3d 901 (10th Cir. 2000)).
. 391 F.3d 540, 548–50 (3d Cir. 2004) (habitual residence established despite plan to relocate for only a two-year period).
. Watts v. Watts, 935 F.3d 1138, 1143 (10th Cir. 2019).
This case addressed what standard should be used to determine the habitual residence of an infant who has lived in only one location prior to the its wrongful removal. Father petitioned for return of his six-week-old child to Italy, where child was born and had lived exclusively before mother wrongfully removed the child to the United States.
Update: Supreme Court Grants Certiorari
On June 10, 2019, the Supreme Court granted certiorari in this Sixth Circuit en banc decision. On November 4, 2019, the Supreme Court granted the motion of the solicitor general to participate in oral argument as amicus curiae.
Brief Case History
The father, an Italian citizen, and the mother, a U.S. citizen, met at the University of Illinois and married in 2011. The couple moved to Italy in 2013 to continue with their careers. In 2015, the couple’s daughter was born in Italy. As a result of the father’s persistent physical abuse, including allegations of rape, the mother left Italy with the two-month-old child and returned to the United States. An Italian court granted the father’s ex parte petition to terminate mother’s parental rights. His subsequent petition for return of the child was granted by the district court in Ohio. The Sixth Circuit affirmed the district court’s order. The district court’s order was subsequently heard and affirmed by the Sixth Circuit en banc.
The courts’ analyses rested on Ahmed v. Ahmed, finding that because infants are not able to be sufficiently acclimatized to acquire a habitual residence, courts must look to the “shared parental intent of the parties” to identify the infant’s residence. Citing the Hague Convention, the court explained that the question of habitual residence is one of “pure fact.” Hague cases often present “unfortunate” fact patterns, but the Sixth Circuit found that the district court made no clear errors of fact.
The mother’s petition to the Supreme Court for a writ of certiorari was granted June 10, 2019. The Supreme Court decided the case on February 25, 2020, in Monasky v. Taglieri.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Grave Risk | Quality of Medical Care in Habitual Residence | Interruption of the Course of Counseling | Credibility
In this case, the Second Circuit rejected a parent’s claim that the lower standard of medical treatment available in the children’s habitual residence and the complications that would arise from interrupting the children’s psychological therapy supported a grave risk defense.
By summary order, the Second Circuit affirmed the district court’s order to return the children to their habitual residence and its finding that the mother failed to establish a grave risk defense.
A mother and father in Norway shared custody of their two children after their legal separation. Three years later, the parties agreed that the mother would take their two children, eight and six years old, from their home in Norway to the United States for one year. They agreed that the mother would return to Norway from New York City with the children on August 8, 2017, but the mother and children failed to return on the appointed date. The mother then cut off all communication with the children’s father. The father filed a petition for return of the children eleven months later.
The older child had previously undergone surgery in Norway to correct a bowel disorder. The younger child struggled academically from early on. Both children required psychological counseling. The mother sought to establish that the medical care available in Norway was inadequate for the needs of the older child. She also asserted that if the children were required to return to Norway, their treatment regimen in New York would be disrupted, potentially causing relapse and regression and making their psychological treatment more difficult.
Quality of Medical Care in Habitual Residence. The mother only appealed the district court’s denial of her grave risk defense. The district court had found that her argument that the medical care available for the eldest child in Norway was less than optimal did not satisfy the criteria necessary to establish grave risk. Relying on the standard set forth in Blondin II, the court noted that a grave risk defense does not apply to “those situations where repatriation might [merely] cause inconvenience or hardship.”
Interruption of the Course of Counseling. The Second Circuit also affirmed the district court’s rejection of the mother’s argument that interrupting the children’s course of psychological counseling would be detrimental to their needs. The Second Circuit agreed with the district court’s observation that the return of the children to Norway would be less traumatic than the children’s initial removal to the United States.
Credibility. In a footnote, the Second Circuit also commented on the district court’s rejection of parts of the mother’s testimony, based on her own admission that she had committed perjury by providing false testimony.
“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.”
. Eidem v. Eidem, 382 F. Supp. 3d 285, 294 (S.D.N.Y. 2019).
. Eidem v. Eidem, No. 19-1417, 2019 U.S. App. LEXIS 36488, at *6 (2d Cir. Dec. 10, 2019) (quoting Blondin v. Dubois (Blondin II), 238 F.3d 153, 162 (2d Cir. 2001)).
. Eidem v. Eidem, No. 19-1417, 2019 U.S. App. LEXIS 36488, at *4 n.1 (2d Cir. Dec. 10, 2019) (quoting Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
This case explored the question of whether a parental agreement reached while the children were in utero could establish habitual residence in a place where the children had never been.
The district court held that the last shared parental intent for habitual residence, which was reached while the children were in utero, is insufficient to establish habitual residence after their birth.
An American father and mother lived in Brazil when the mother became pregnant with twins. When the mother was nineteen to twenty weeks into her pregnancy, she left Brazil, ended her relationship with the father (to whom she was married), and relocated to Oklahoma, where she then gave birth to the children. At no time were the children ever physically present in Brazil. The mother had no intention of returning to Brazil.
After the birth of the children, the father filed a petition in the U.S. District Court for the Western District of Oklahoma for an order compelling the children to be “returned” to Brazil, arguing that they were wrongfully retained in the United States. The father based his petition on the argument that Brazil was the children’s habitual residence because the last shared intent of both parents (while the children were in utero) was that they would live and raise their children in Brazil.
The mother asserted that the children could not be habitual residents of a place in which they had never been physically present, and that even if an agreement regarding residency in Brazil was reached while the children were in utero, such an agreement could not establish the habitual residence of the subsequently born children.
The district court denied the father’s request that the children be “returned” to Brazil.
The father argued that an infant must have a habitual residence from the moment of birth, and physical presence is not required. He requested an evidentiary hearing to establish the existence of the parties’ alleged agreement that the children would reside in Brazil after their birth.
The district court acknowledged that some courts have held that a habitual residence can be established even though a child has never been physically present in that location. Nevertheless, the court noted the absence of any authority to support the contention that shared parental intent was sufficient to establish a habitual residence for a child not yet born at the time of the agreement.
[T]he problem with attempting to apply the ‘shared parental intent’ construct to the facts of this case is that here—even granting [the father’s] factual allegations every benefit of the doubt—there was never shared parental intent with respect to the children because the children did not yet exist at the time of the alleged agreement; they were 19 to 20 weeks in utero. . . . Thus, even taking [the father’s] claim of an in utero agreement at face value, such an agreement differs from the agreement relied on in the cases he cites. Those cases involved agreements with regard to actual, existing children, not agreements regarding children that may or may not be born in the future.
The father also argued that the last shared intent was irrevocable unless it was later modified by a subsequent agreement between the parties, and that the mother could not unilaterally withdraw from the original agreement. The court rejected the father’s position, noting,
Taken to its logical end, this position would mean, for example, that an American man and a woman living in France could date and agree that they would raise their future children in France. That man and woman could break up and go their separate ways, with the woman returning to the United States. But if at any time in the future—even a decade later—that man visits the United States and rekindles the romance and that woman becomes pregnant by him, she would be bound to her long-ago agreement to raise any children in France. That can’t be right.
. E.g., Delvoye v. Lee, 224 F. Supp. 2d 843, 851 (D.N.J. 2002), aff’d, 329 F.3d 330 (3d Cir. 2003) (“[I]f a couple lives in the United States and gives birth to a child during a summer visit to a vacation home in the Swiss Alps, the habitual residence of the child is not Switzerland,” but seeDelvoye, 329 F.3d at 333 (conflicts in parental intent at the time of the child’s birth may result in the child having no habitual residence)); E.R.S.C. v. Carlwig (In re A.L.C.), 607 F. App’x 658, 662 (9th Cir. 2015) (“‘if an attachment to a State does not exist, it should hardly be invented’” (quoting Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 89, 112 (1999)).
. Pope v. Lunday, No. CIV-19-01122-PRW, 2019 WL 711615, at *5 (W.D. Okla. Dec. 23, 2019).
Wrongful Retention | Habitual Residence
This case involved a petition for the return of a child to her habitual residence in France, after the couple had relocated to the United States for the mother to accept a consulting contract for eighteen months. Before the end of the eighteen months, the mother filed a petition for a change of custody.
The D.C. Circuit affirmed the judgment of the district court, which held that an unlawful retention can occur before the date agreed upon by the parties for the end of a temporary relocation of a child where the actions of one parent demonstrate departure from the agreement. (2) The D.C. Circuit also affirmed the district court’s adoption of the criteria in Mozes v. Mozes.
The father and mother married in 2013, and their daughter was born in Paris in 2014. The father was a medical doctor only licensed to practice in France. The mother was an economist with a Ph.D. who worked as an associate professor at a university outside of Paris. The family primarily lived in Paris, but they also spent time at an apartment they owned in Barcelona. When in Barcelona, the mother worked as a visiting professor at the university there. The father traveled back and forth between Barcelona and Paris for his medical practice. There was no serious dispute that the family’s habitual residence was France.
In 2018, the mother had the opportunity to serve temporarily as a consultant to the International Development Bank in Washington, D.C. The term of the consultancy was eighteen months, with the possibility of extending it for an additional eighteen months. The mother contemplated that she might stay in D.C. for up to three years. The father agreed to her taking the position. He planned to work ten to twelve consecutive days in Paris and travel to Washington, D.C., for the remainder of the month.
The parties rented out their Barcelona apartment for three years. The mother took temporary leave from her French university, while continuing to supervise her doctoral students and to accrue senior, pension, and retirement credits with the university. She also obtained diplomatic visas for the family, valid for five years. The parties stored their household furniture and appliances in France. Friends of the couple believed that their move to Washington, D.C., was temporary.
The family moved into a rented apartment in the District in July of 2018. The child, E.A.-H.S., was enrolled in a Spanish-English bilingual school, where she made friends and participated in school and extracurricular activities.
By December 2018, the couple’s marriage had deteriorated, and in May 2019, the mother filed a petition in the District of Columbia Superior Court, requesting joint legal custody and primary physical custody of the child. The mother then informed the father that she had filed the custody action, that she intended to remain in the United States with the child, and that she wanted to separate.
The father enlisted the assistance of the French Central Authority through the administrative procedures established by the Hague Convention. He also filed a petition for return of the child in federal district court in Washington, D.C. A few weeks later, the father’s application to the French Central Authority was denied on the finding that the retention of the child was not unlawful since the child’s presence in the United States was the result of both parents’ agreement.
The district court found that wrongful retention occurred on the date that the mother served the father with her request for permanent primary physical custody or at least by the time the father filed his opposition to the proposed change in custody rights. Although the agreed-upon time for the child to return to France had not yet arrived, the father was not required to allow the eighteen-month period to expire before he petitioned for the child’s return. The district court rejected the mother’s position that her actions amounted only to an anticipatory repudiation regarding her future intent and found that her attempt to alter the status-quo custody arrangement was enough to constitute unlawful retention of the child. The district court also found that France was the child’s habitual residence, pointing to the child’s birth in France, the family’s apartment in Paris, the child’s attendance at nursery school in Paris, the strong social ties of the child and the parents to Paris, and the employment of both parents in France.
Wrongful Retention. At the heart of mother’s appeal was the contention that unlawful retention cannot precede the projected date of a child’s return to its habitual residence. Such anticipatory retention does not confer jurisdiction for a court to adjudicate a claim of unlawful retention. But the D.C. Circuit did not view the question of wrongful retention as a jurisdictional matter. The court recognized the holdings of other circuits, finding that the date of wrongful retention is “the date consent was revoked” or when the petitioning parent learned the true nature of the situation,”or the “date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof.” The court deemed the commencement of retention in this case as the date that the mother informed the child’s father she was seeking primary physical custody in state court.
The D.C. Circuit contrasted the situation in this case with Toren v. Toren. In Toren, the First Circuit found no wrongful retention where the scheduled date for the children’s return had yet to occur and the mother’s complaint in state court was for modification of visitation only, rather than a change in primary custody. But the D.C. Circuit noted,
Here, in contrast, a series of decisions and corresponding actions already taken by both parties clearly conveys a ripe disagreement about where the child’s custody will lie. As Abou-Haidar observes, the First Circuit’s dismissal in Toren is therefore consistent with the basic principle that, in order to be ripe, a challenge to an “anticipatory retention requires a clear communication that the retaining parent is not returning the child home.”
. . .
Once the parties have made clear that they no longer agree where the child should reside—and especially when, as here, an effort has been made to change the custodial status quo—their prior agreement is no longer adequate to protect custodial forum rights.
Habitual Residence. The court acknowledged the difference among the circuits regarding the question of determining a child’s habitual residence—the “shared intent” criteria of Mozes v. Mozes and the “child-centered” approach of the Sixth and Third Circuits. Both parties agreed that the criteria set forth in Mozes v. Mozes should be used in this case, and the D.C. Circuit affirmed the district court’s finding that France was the child’s habitual residence.
The court noted the position taken by the U.S. Department of Justice in its amicus capacity, advocating the adoption of a new standard for determining habitual residence issues:
“[A] child’s habitual residence under the Convention is a factual inquiry that must take into account all relevant circumstances in each case bearing on the ultimate question of where the child usually or customarily lives.” . . . Under that relatively unguided, totality-of-the-circumstances approach, “both parental intent and acclimatization can be relevant,” but “ultimately any determination of a child’s habitual residence must ‘remain[ ] essentially fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions.’”
. 239 F.3d 1067, 1070 (9th Cir. 2001).
. The circuit court gave no weight to the French Central Authority’s determination, since the Hague Convention assigns questions regarding wrongful removal or retention to the courts of the states that are parties to the Convention, not the central authorities.
. Abou-Haidar v. Vazquez, 945 F.3d 1208, 1218 (D.C. Cir. 2019) (citing Mozes v. Mozes, 239 F.3d 1067, 1069–70 & n.5 (9th Cir. 2001)).
. Id. at 1216 (citing Palencia v. Perez, 921 F.3d 1333, 1342 (11th Cir. 2019), and Marks v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017)).
. Id. (citing Blackledge v. Blackledge, 866 F.3d 169, 179 (3d Cir. 2017)).
. Id. at 1217.
. 191 F.3d 23 (1st Cir. 1999).
. Abou-Haidar, 945 F.3d at 1217–18 (citations omitted).
. 239 F.3d 1067, 1070 (9th Cir. 2001).
. Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018); Ahmed v. Ahmed, 867 F.3d 682, 688 (6th Cir. 2017); Redmond v. Redmond, 724 F.3d 729, 737–38 (7th Cir. 2013).
. Abou-Haidar, 945 F.3d at 1219–20 (citations omitted).
Habitual Residence: Standards for Initial Determination and Appellate Review
The United States Supreme Court resolved a circuit split on the issue of habitual residence and set forth the standard for appellate review.
When making a finding concerning habitual residence under the 1980 Hague Convention, courts must look to the totality of the circumstances specific to the case and not to any actual agreement between the parents concerning where to raise the child. A court’s determination of habitual residence under the 1980 Hague Convention is subject to a deferential clear-error standard of review.
Two years after their marriage in the United States, the mother and father in this case moved to Milan, Italy, for their careers. During their first year in Milan, the couple’s relationship deteriorated. The mother became pregnant about one year after they moved to Italy. Shortly thereafter, the father obtained a new job in Lugo, a city about three hours away. The mother remained in Milan. Although she considered returning to the United States, she and the father made preparations to take care of the child in Italy. The couple acquired a larger apartment in Milan, inquired about childcare, and made purchases for the needs of their child in Italy.
The child was born in February 2015; shortly after the birth, the mother informed the father that she wanted a divorce and that she planned to return to the United States. Nevertheless, the mother agreed that she and the child would join the father in Lugo. When the child was six weeks old, an argument between the parents precipitated the mother and child’s move to a safe house. The mother’s written statement to the police reported that the father had abused her and that she feared for her life. Two weeks later, the mother and child left Italy and relocated to Ohio to live with the mother’s parents.
The father obtained an order from the Italian court terminating the mother’s parental rights, and he commenced proceedings in federal court in the United States for the return of the child under the 1980 Hague Convention.
Proceedings in the District Court for Northern District of Ohio. The district court granted the father’s petition for return of the child to Italy. The court found that the child was too young to become acclimatized and relied on the parents’ shared intent to live in Italy. The court noted that the mother had no definite plans to raise the child in the United States. The Sixth Circuit denied the mother’s request for stay, and the infant was returned to Italy, where she was placed in her father’s care.
Proceedings in the Sixth Circuit. On appeal, the Sixth Circuit affirmed the district court’s return order with a divided three-judge panel and, on rehearing, a divided en banc panel. The en banc decision relied on recent precedent, Ahmed v. Ahmed, that found that an infant’s habitual residence depended upon shared parental intent. The Sixth Circuit applied the clear-error standard of review.
The Supreme Court noted that certiorari was granted to resolve differences between the circuits on how to determine a child’s habitual residence, noting the Sixth Circuit’s holding in Taglieri v. Monasky (acclimatization as the “primary approach”), the Ninth Circuit’s approach in Mozes v. Mozes (shared parental intent), and the Seventh Circuit’s approach in Redmond v. Redmond (rejecting “rigid rules, formulas, or presumptions”). Certiorari was also granted to resolve a circuit split over the appropriate standard of appellate review; the Court noted the difference between the Sixth Circuit in Taglieri v. Monasky and the Ninth Circuit in Mozes.
Interpretation. The Court followed previous precedent in its review of cases arising under the 1980 Convention by considering the text of the Convention, the history of the drafting and negotiation of the Convention, and the views of sister-state signatories.
Interpretation: Language of the Treaty. The Court began its analysis of habitual residence by turning to the language of the treaty. The term “habitual residence” is not defined by the treaty, so the Court relied on Black’s Law Dictionary, which defines residence as the place where a child lives, and habitual as more than transitory, implying “customary, usual, or the nature of a habit.” The term habitual suggests a fact-intensive, rather than categorical, inquiry.
Interpretation: Negotiation and Drafting History. The Court reviewed the Pérez-Vera Report accompanying the Convention. The Hague Conference deemed habitual residence “a question of pure fact, differing in that respect from domicile.” One commentator noted that this interpretation affords “courts charged with determining a child’s habitual residence ‘maximum flexibility’ to respond to the particular circumstances of each case.” Although U.S. circuit courts crafted different approaches to assessing the meaning of habitual residence, they all agreed that “[t]he place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”
Interpretation: Views of Sister Signatories. The Court also reviewed decisions from sister-state signatoriesincluding authorities from Canada, the United Kingdom, the European Union, Hong Kong, New Zealand, and Australia and found that “[t]he ‘clear trend’ among our treaty partners is to treat the determination of habitual residence as a fact-driven inquiry into the particular circumstances of the case.”
Habitual Residence: Determining a Child’s Habitual Residence Is a Fact-Driven Inquiry. Quoting the opinion in Redmond, the Court observed the importance of being “sensitive to the unique circumstances of the case and informed by common sense” and emphasized that no single factor is dispositive of all cases. For example, the ages of the children involved may require a different focus of the habitual residence inquiry: facts indicating acclimatization may be “highly” relevant for older children who are capable of acclimating to their surroundings, while the “intentions and circumstances” of caregiving parents are relevant in cases involving children who are unable to acclimatize due to their youth or other reasons.
Habitual Residence: No Categorical Requirements. The Court specifically rejected the existence of categorical requirements for determining a child’s habitual residence, even if an actual agreement exists between parents for establishing the habitual residence of an infant.
There are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement requirement for infants. Monasky’s proposed actual-agreement requirement is not only unsupported by the Convention’s text and inconsistent with the leeway and international harmony the Convention demands; her proposal would thwart the Convention’s “objects and purposes.” An actual-agreement requirement would enable a parent, by withholding agreement, unilaterally to block any finding of habitual residence for an infant. If adopted, the requirement would undermine the Convention’s aim to stop unilateral decisions to remove children across international borders. . . . In short, as the Court of Appeals observed below, “Monasky’s approach would create a presumption of no habitual residence for infants, leaving the population most vulnerable to abduction the least protected.”
The Court was explicit in rejecting categorical tests for determining a child’s habitual residence: “No single fact . . . is dispositive across all cases.” A child’s habitual residence depends on the totality of the circumstances specific to the case. In reviewing the totality of the circumstances, some things lower courts can look to are
- the intentions and circumstances of caregiving parents, especially if the children are very young
- whether the child has lived in one place with its family indefinitely
- whether a caregiving parent was coerced into remaining in a place
- whether the parents have made their home in a particular place
While not comprehensive, other factors to consider include
- a change in geography combined with the passage of an appreciable period of time
- the age of the child
- the immigration status of the child and parents
- academic activities
- social engagements
- participation in sports programs and excursions
- meaningful connections with people and places in the child’s new country
- language proficiency
- the location of personal belongings
The Court rejected the mother’s argument that a parental-intent test would better deter future abductions and encourage prompt returns of children. If all relevant circumstances are available to the court for consideration, would-be abductors should find it “more . . . difficult to manipulate the reality on the ground, thus impeding them from forgoing ‘artificial jurisdictional links . . . with a view to obtaining custody of a child.’”
Standard of Review. The Court characterized the issue of habitual residence as a mixed question of law and fact—albeit barely so. In this context, reviewing the totality of circumstances to make a finding of habitual residence is a factual issue and hence the province of the trial court. Appellate court review of habitual residence determinations is subject to a “clear-error review standard deferential to the factfinding court.”
Domestic Violence. The district court found no alleged abuse directed at the child by the father and no evidence of psychological harm to the child as a result of her separation from her mother and her return to Italy. The Supreme Court did not consider any of the 13(b) issues raised in the district court since the mother did not challenge the district court’s rulings on those issues in the Supreme Court. The Court noted the existence of Article 13(b) relating to the child’s exposure of a grave risk of physical or psychological harm or placing the child in an intolerable situation. The majority opinion characterized this exception to return as the Convention’s “prime” defense, noting, “The Convention recognizes certain exceptions to the return obligation. Prime among them, a child’s return is not in order if the return would place her at a ‘grave risk’ of harm or otherwise in ‘an intolerable situation.’” The majority opinion also noted that “[d]omestic violence should be an issue fully explored in the custody adjudication upon the child’s return.”
Concurring Opinions of Justices Thomas and Alito. Both justices concurred in the majority’s conclusions that an actual agreement is not required to establish the habitual residence of an infant and that the habitual residence standard is fact-driven, requiring courts to consider the unique circumstances of each case. Justice Thomas would have decided the case principally on the plain meaning of the text of the treaty. Justice Alito wrote separately and noted that the term habitual residence has different dictionary definitions and that the concept of a child’s “home” is a complex determination. Justice Alito characterized the term as not being a pure question of fact and accordingly would classify the standard of review as abuse of discretion rather than clear error.
. 867 F.3d 682 (6th Cir. 2017).
. 876 F.3d 868 (6th Cir. 2018).
. 239 F.3d 1067, 1073–81 (9th Cir. 2001).
. 724 F.3d 729, 746 (7th Cir. 2013).
. 876 F.3d 868 (6th Cir. 2018).
. 239 F.3d at 1073–1081.
. See Abbott v. Abbott, 560 U.S. 1, 9–21 (2010) (examining text, executive branch interpretation, sister-state signatories, drafting history, concurrence with objects and purposes of the Convention); Lozano v. Alvarez, 572 U.S. 1, 4, 11–16 (2014) (text and content, drafting history and intent of party-states, sister-state signatories, executive branch interpretation, (in)consistency with purposes of treaty (“We agree, of course, that the Convention reflects a design to discourage child abduction. But the Convention does not pursue that goal at any cost.”)).
. Monasky v. Taglieri, 140 S. Ct. 719, 726 (2020).
. Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session 426 (1982) [hereinafter Pérez-Vera Report].
. Monasky, 140 S. Ct. at 727 (citing Pérez-Vera Report, supra note 11, at 445, para. 66).
. P. Beaumont & P. McEleavy, The Hague Convention on International Child Abduction 89–90 (Oxford 1999).
. Monasky, 140 S. Ct. at 726–27 (citing Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (3d Cir. 2006)).
. Id. at 726.
. Office of the Children’s Lawyer v. Balev,  1 S.C.R. 398, 421 para. 43 (Can.); In re A,  A.C., at para. 54; In re OL, 2017 E.C.R. No. C-111/17, para. 42; LCYP v. JEK,  4 H.K.L.R.D. 798, 809–810, para. 7.7 (H.K.); Punter v. Secretary for Justice,  1 N.Z.L.R. 40, 71, para. 130 (N.Z.); LK v. Director-General, Dept. of Community Servs.,  237 C. L. R. 582, 596, para. 35.
. Monasky, 140 S. Ct. at 726 (citing Office of the Children’s Lawyer v. Balev,  1 S.C.R. 398, 421 para. 43 (Can.)).
. Id. at 726 (quoting Redmond, 724 F.3d at 744).
. Id. at 727 (citing James D. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 67–68 (Federal Judicial Center, 2d ed. 2015)).
. Id. at 728 (citations omitted).
. Id. at 727.
. Id. at 723.
. Id. at 727, 729.
. James D. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 67–68 (Federal Judicial Center, 2d ed. 2015).
. Monasky, 140 S. Ct. at 729 (citing Pérez-Vera Report, supra note 11, at 428, para. 11).
. Id. at 730.
. Id. at 723.
. Id. at 729.
In late 2017, the Committee on Defender Services (Committee) asked the Federal Judicial Center to generate a white paper on the potential effects on the federal courts and the defender services program of a determination that states have “opted in” to special expedited procedures created by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
After a brief discussion of some of the changes under “opt-in,” as Chapter 154’s procedures are called, this white paper discusses the potential impact of opt-in for the federal district and appellate courts with jurisdiction in Arizona and Texas, the two states that have applied for opt-in status thus far.