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Civil Litigation & Procedure
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).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
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.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Custody Rights | Habitual Residence
A father and mother lived with their two children in Switzerland from 2012 until 2018. After a divorce judgment issued in 2017, the parties shared custody of both children, and the consent of both parents was needed to relocate the children to a new residence. However, one provision of the divorce judgment provided that “[the father] does not object to the mother’s taking residence abroad (U.S. or France) at/after the end of the school term 2016/2017.” Other provisions of the divorce judgment also anticipated the possibility that the mother might relocate outside Switzerland with the children.
The mother left Switzerland and moved with the children to Marietta, Georgia, in the United States, on June 17, 2018. Before the move, the father spent time with the children every other weekend, on holidays, and during the summer. But at the end of the children’s 2016–2017 school term, the mother applied for and received U.S. immigrant visas for herself and the children.
On June 9, the mother received a letter from the father in which he revoked his consent to her relocation with the children. She booked plane tickets for the United States that day and left with the children on June 17. Two days before their departure, the father sent a letter to the divorce court revoking his consent to the relocation of his children. He requested that the court pose an immediate travel ban, but there is no record of an order from the Swiss court.
One month after the mother and children left for the United States, the father filed a Hague petition in district court for return of the children. After an evidentiary hearing, the court denied his petition, finding that he had failed to satisfy his burden to show that the mother’s removal of the children from Switzerland violated his rights of custody in light of the divorce judgment. The Eleventh Circuit affirmed.
Habitual Residence. The court noted that this case presents not only a mixed question of law and fact, but also questions of foreign law and treaty interpretation. Analysis of a child’s habitual residence has changed; the court referenced its decision in Ruiz v. Tenorio and also cited the Ninth Circuit’s decision in Mozes v. Mozes. The Eleventh Circuit held that the children’s habitual residence was Switzerland. But the court also found that the parent entitled to determine a child’s residence has the authority to form an intention to abandon a prior residence.
Custody Rights. The Eleventh Circuit observed that the Convention treats rights of custody and rights of access differently. When removal by one parent violates the custody rights of another, the Convention authorizes the return of the child. This is not the case, however, when rights of accesshave been breached. Turning to Swiss law, the court observed that although Swiss law generally provides parents with a ne exeat right over removal from the country (required consent before the other parent removes a child), in this case, the divorce judgment expressly empowered the mother to relocate to the United States or France after the end of the 2016–2017 school term. She initiated plans to relocate the children to the United States immediately at the end of this school term.
The father also argued that an earlier modification to the custodial agreement by another Swiss court nullified this right to remove the children. Rejecting this argument, the Eleventh Circuit noted that the original divorce judgment was never modified and the father’s letter to the divorce court, after he learned of the mother’s plans to leave, indicated that he was aware of this problem. He did not provide any evidence that the divorce court granted his request. “[A] parent’s formal expression of a change in his or her desire about a child’s place of residence cannot, in and of itself, legally somehow modify a court order.”
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Custody Rights | Wrongful Retention
In this case, the Eleventh Circuit explored the definition of custody rights and gave guidance on how to determine the date of wrongful retention when an abducting parent falsely represents to the other parent the date of the child’s return.
A child was born to an unmarried Guatemalan couple in 2013. The family lived together in Guatemala until October 2016, when the mother told the father that she intended to visit relatives in Mexico. Because the mother had done this in the past and returned to Guatemala, the father did not object. But she instead took the child to the United States, where they were detained at the border. The mother contacted the father twelve days later, said she had made a mistake, and asked for his assistance with obtaining passports for herself and the child. He cooperated and she promised to return as soon as she had the passports. This process took months, and as soon as the mother received the passports, she informed the father that she and the child would not be returning to Guatemala.
When the father filed his Hague petition, he learned that the mother had filed an asylum petition for herself and their child upon arriving to the United States. As part of her asylum petition, she stated that she had never been a victim of domestic violence.
The district court held an evidentiary hearing on the Hague petition and heard evidence from both parents, family members, and mental health professionals, as well as two Guatemalan attorneys. The court granted the father’s petition and ordered the child returned to Guatemala.
Custody Rights. The Eleventh Circuit noted that the Hague Convention does not give the term rights of custody a fixed definition, nor is this concept limited to physical custody. Rather, the Convention takes an expansive view that includes rights relating to the care of the child and the right to determine the child’s place of residence. Quoting Eleventh Circuit case law, the court observed that
“[t]he intention of the Convention is to protect all the ways in which custody of children can be exercised, and the Convention favors a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration. . . . [T]he violation of a single custody right suffices to make removal . . . wrongful. . . . [A] parent need not have ‘custody’ to be entitled to return [of the child]; rather, he need only have one right of custody.”
The Eleventh Circuit looked to Guatemalan law to determine the father’s rights of custody under the Hague Convention. Such rights are determined by the law of the country in which the child habitually resides at the time of removal. After a thorough review of Guatemalan law, the court determined that an unmarried father does have rights of custody under the Hague Convention and Guatemalan law. The court also observed that the Guatemalan courts have the authority to determine ultimate physical custody rights.
Wrongful Retention. The mother argued that she was entitled to assert the Article 12 “delay” defense because the father’s petition for return of the child was filed in February 2019—more than one year after she first took the child from Guatemala in October 2016. The father asserted that wrongful retention began on the date that he was informed she would not be returning the child to Guatemala: July 2017. Reviewing the facts of this case, the court noted that the mother had misrepresented her intentions and had assured the father that she would return once she received the passports. This deception led to his delay in filing the petition. Following precedent from the First, Second and Third Circuits,the court held that the date the petitioning parent learns the true nature of the removing parent’s intentions starts the clock of wrongful detention. and in this case, that was July 2017.
. Palencia v. Perez, 921 F.3d 1333, 1339 (11th Cir. 2019) (quoting Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007) (internal quotation marks and citations omitted).
. Id. at 1342.
. Marks v. Hochhauser, 876 F.3d 416, 417, 420–23 (2d Cir. 2017); Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017); Darin v. Olivero-Hoffman, 746 F.3d 1, 10–11 (1st Cir. 2014).
This case comes from the Supreme Court of Canada. Although not binding in the U.S. courts, the Canadian court’s analysis considers U.S. precedent and may be of interest to U.S. courts.
Habitual Residence | Unilateral Change of Residence
In this case, the Canadian Supreme Court explored whether one parent can unilaterally change a child’s habitual residence when the consent of the other parent is time-limited. The Canadian court outlined a hybrid approach for how courts should determine the question of habitual residence, which it adopted in this case. The approach allowed for the consideration of any relevant factors and rejected formulaic approaches such as those based on parental intent or that focus on child-centered factors.
The mother and father in this case were married in Canada in 2000 but soon after moved to Germany, where they had two children. Although the parents later separated, they all continued to live in Germany, with two brief visits to Canada. In 2013, because the children were struggling in the German schools, the parents agreed that the children would temporarily move to Canada in the custody of their mother to attend Canadian schools. The father signed a letter of consent permitting the children to relocate with the mother until August 15, 2014. The father also signed a notarized letter temporarily transferring custody to the mother for the 2013–2014 school year. The father revoked his consent before the August 15 date set for the children’s return and filed a Hague Convention petition with Ontario courts for return of the children. The Canadian trial and appellate courts ordered the children returned to Germany in October 2016. After the children’s return, a German court granted the mother sole custody of the children, and she moved back to Canada with the children. Although the case had become moot, the Canadian Supreme Court agreed to hear it to resolve the issue of how to determine habitual residence in Hague Convention proceedings.
Unilateral Change of Residence in Violation of Time-Limited Consent. The majority opinion found that there is no rule that prevents a parent from unilaterally changing the habitual residence of a child. Although courts have held that habitual residence cannot change in cases where the child’s removal was consented to for a limited period, and a parent may not unilaterally change that residence, a trial judge may consider other factors.
Time-limited agreements should not be deemed contracts to be enforced by the court. The Supreme Court reasoned that such agreements may be considered, but do not preclude the responsibility of the court to make factual determinations about habitual residence as of the time of the alleged wrongful retention or removal.
Habitual Residence. The court focused on three distinct approaches to determining habitual residence: (1) The parental-intent approach (citing Mozes v. Mozes); (2) The child-centered approach (citing Friedrich v. Friedrich and Feder v. Evans-Feder); and (3) the “hybrid” approach:
instead of focusing primarily on either parental intention or the child’s acclimatization, the judge determining habitual residence under Article 3 must look to all relevant considerations arising from the facts of the case.
Under this approach, the court considers the focal point of the child, looking at “all relevant links and circumstances” of the child in both countries and the circumstances surrounding the child’s move.
Considerations include “the duration, regularity, conditions and reasons for the [child’s] stay in the territory of [a] Member State” and the child’s nationality. No single factor dominates the analysis; rather, the application judge should consider the entirety of the circumstances. Relevant considerations may vary according to the age of the child concerned; where the child is an infant, “the environment of a young child is essentially a family environment, determined by the reference person(s) with whom the child lives, by whom the child is in fact looked after and taken care of.”
The court noted that although parental intent may be important as an indicator, it cannot be crucial to determining habitual residence. The court rejected the notion that a parent cannot unilaterally change a child’s habitual residence, since such a rule would undermine the court’s responsibility to evaluate all the relevant circumstances.
Borrowing language from the U.S. case Redmond v. Redmond, the court described the hybrid approach as essentially “fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions.” Thus, the hybrid approach
[R]equires the application judge to look to the entirety of the child’s situation. While courts allude to factors or considerations that tend to recur, there is no legal test for habitual residence and the list of potentially relevant factors is not closed. The temptation “to overlay the factual concept of habitual residence with legal constructs” must be resisted.
Recognizing that there is a circuit split on the issue of determining habitual residence in U.S. courts, the court pointed to Redmond and other decisions from the Third, Seventh, and Eighth Circuits as “strong support” for the hybrid approach from U.S. circuit courts.
The Canadian supreme court further reasoned that the hybrid approach was preferable for the following reasons:
- It harmonizes the trend in the international judicial community to reject the parental-intent approach and adopt a hybrid one.
- It best conforms to the text, structure, and purpose of the 1980 Hague Convention by deterring abductions, encouraging speedy resolutions, and protecting children from the harmful effects of wrongful conduct.
- It promotes prompt custody and access decisions in the appropriate forum.
- It protects children from the harm occasioned by wrongful removal or retention.
Because the father’s consent for removal was time-limited and there was no shared parental intent for Canada to become the children’s habitual residence, the dissent argued that the appeal should be dismissed. Where parental intent is explicitly reflected in the terms of an agreement, absent exceptional circumstances, such an agreement should determine the issue of habitual residence.
The dissent further argued that the text, structure, purpose, and policy support the conclusion that the parental-intent test is appropriate. The hybrid approach is a broad, open-ended inquiry into the child’s status and factors impacting that status, without any margins, and it blurs the lines between Hague Convention applications and custody determinations.
Criticizing the hybrid approach for contradicting the text of the Convention, the dissent argued,
First, the hybrid approach is inconsistent with the text of the Convention. By inviting courts to consider an open list of unspecified factors that any individual judge deems to be relevant, the majority ignores the explicit distinction made by Article 12 of the Convention. As we have discussed, that provision clearly distinguishes the evidence that may be considered for applications brought within one year of the wrongful removal or retention, from that which may be considered for applications brought on or after that time. The hybrid approach renders this express textual distinction meaningless by encouraging courts in all cases to consider evidence of “settling in”.
Adoption of the hybrid approach undermines the deterrent effect of the Convention because allowing evidence to support a parent’s unilateral decision to change the child’s habitual residence motivates the parent to take measures to quickly establish connections to the new country and to argue that the child’s acclimatization has overcome parental expectations and intent.
The dissent also argued that adoption of the hybrid model will result in a lack of promptness. Litigants are likelier to have the freedom to introduce any evidence that tends to establish acclimatization despite the strongest evidence of parental intent.
.Trial Court Proceedings – Balev v. Baggott, 2015 CarswellOnt 13100 (Can. Ont. S.C.J.) (WL). The trial court granted father’s petition for return and found that the parents did not have a “settled intention” that the children remain in Canada, and father’s consent was only for a temporary stay.
Divisional Court Proceedings – Balev v. Baggott,  344 O.A.C. 159 (Can. Ont. S.C.J. D.C.). The divisional court reviewed the case and reversed the trial court, finding that the parents had a settled intention that the children temporary live in Canada, and during this period the children became integrated into the community, thus changing their habitual residence.
Appellate Court Proceedings – Balev v. Baggott,  133 O.R. 3d 735 (Can. Ont. C.A.). The court of appeal reinstated the trial court’s order of return to Germany. That court held that one parent cannot unilaterally change a child’s habitual residence, and habitual residence does not change upon one parent consenting to a time-limited stay in another place. The appeal to the Canadian supreme court followed.
. The children had already been returned to Germany, rendering the father’s petition for return moot. The Canadian supreme court granted review, noting that “the issues raised in this appeal are important, and the law on how cases such as this fall to be decided requires clarification.” Office of the Children’s Lawyer v. Balev,  1 S.C.R. 398, 409, para. 3 (Can.).
. The bulk of U.S. precedent is to the contrary. See, e.g., Mozes v. Mozes, 239 F.3d 1067 1070, 1077–1081 (9th Cir. 2001); Calixto v. Lesmes, 909 F.3d 1079, 1084 (11th Cir. 2018); Darin v. Olivero-Huffman, 746 F.3d 1, 20 (1st Cir. 2014); Griffiths v. Weeks, No. 18-cv-60729-BLOOM/Valle, 2018 WL 7824477 (S.D. Fla. June 22, 2018); Blanc v. Morgan, 721 F. Supp. 2d 749, 761 (W.D. Tenn. 2010).
. 239 F.3d 1067 (9th Cir. 2001).
. 983 F.2d 1396 (6th Cir. 1993).
. 63 F.3d 217 (3d Cir. 1995).
. Office of the Children’s Lawyer v. Balev,  1 S.C.R. 398, 400 (Can.).
. Id. at 421, para. 44 (citations omitted).
. 724 F.3d 729 (7th Cir. 2013).
. Id. at 422, para. 47 (quoting Redmond, 724 F.3d at 746).
. Id. (citations omitted).
. See James D. Garbolino, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 54 (Federal Judicial Center, 2d ed. 2015).
. Martinez v. Cahue, 826 F.3d 983, 990 (7th Cir. 2016); Silverman v. Silverman, 338 F.3d 886, 898–99 (8th Cir. 2003); Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 271–72 (3rd Cir. 2007); Karkkainen v. Kovalchuk, 445 F.3d 280, 297 (3rd Cir. 2006). Office of the Children’s Lawyer v. Balev,  1 S.C.R. 398, 451, para. 132 (Can.).
A father and mother, both German citizens, were married in 2012 and had twin sons in 2014. The family moved to Massachusetts in 2015 for the father’s temporary work assignment. Except for a three-month trip to Germany in 2015, the family lived together in the United States until the father’s work assignment ended in November 2016. The family returned to Germany. In February 2017, the father received another work assignment in Massachusetts, and the family returned to the United States, where they lived until March of 2018, when the assignment ended. The parents then decided that they would move to Florida long-term and applied for E-2 investor visas for a dry-cleaning business. The father then returned to work in Germany to support the family and the new business, planning to join his family in Florida if his German business career did not work out.
In July 2018, the mother and children returned to Germany as required by her U.S. visa. The family lived in Germany for six weeks while waiting for approval of their visa application. Once these were approved, the father signed an open-ended travel consent form. The mother and children returned to Florida in August of 2018. The children went to school, participated in community activities, and made friends. Two months later, the mother filed for divorce and notified the father of this fact by phone and email. She moved to an undisclosed address. The father timely filed a petition for the children’s return to Germany.
The district court found that the United States was the children’s habitual residence and had been since 2015. The court of appeals affirmed in a per curiam decision.
The court noted that the Eleventh Circuit previously approved a definition of habitual residence in Pfeiffer v. Bachotet, based on the seminal U.K. case, In re Bates: “[A] habitual residence is established when ‘the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.’” The court then went on to indicate that a change in habitual residence required that, “the parents must share a ‘settled intention’ to leave the old habitual residence behind,” and “an ‘actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized’ must occur.”
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