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The Hague Convention on the Civil Aspects of
International Child Abduction aims to protect children from being
wrongfully removal or retained in a country other than their own and to
establish procedures to ensure their prompt return to their country of
habitual residence. Laudable though these goals are, they are subject to
the nuances of the interpretations given to the law in the numerous
courts around the world. How the courts of this and other countries deal
with the various aspects of the Hague Convention can be cause for
confusion even for experts in the field, let alone for the attorney who
deals with very few of these cases. Although a comprehensive analysis is
beyond the scope of a single article, in this and the next two months'
newsletters we will offer a broad overview of the subject to help legal
practitioners understand the basic issues, discover what questions to
ask and learn where to look for more information.
The Law in the U.S. and Beyond
The Hague Convention (the Convention),
ratified by Congress in 1988, was implemented by the International Child
Abduction Remedies Act (ICARA) which established the basic procedure for
exercising judicial remedies.(ICARA, Pub.L. No. 100-300, 102 Stat. 445
(1988); codified as amended at 42 USC ss11601-11610; See 42 U.S.C. s
11601 (b) for the congressional intent. Regulations are found at 22 CFR
Part 94; s53 Fed Reg 23608 (June 23, 1988).) ICARA, whose provisions are
in addition to those of the Convention, establishes procedures for the
implementation of the treaty in the U.S. and empowers courts in the U.S.
to determine only rights under the Convention and not the merits of any
underlying custody dispute.
ICARA created a Central Authority to
discharge the duties imposed upon the U.S. by the Convention and grants
concurrent jurisdiction to federal and state courts to enforce the
Convention. 23 C.F.R. s94:2; See 42 U.S.C.A. s11606. (The Office of
Citizens Consular Services in the Bureau of Consular Affairs is
designated as the U.S. Central Authority. Its address is CA/OCS/CCS,
Room 4817, U.S. Department of State, Washington, DC 20520; phone:
202-736-7000, FAX: 202-647-2835.) Regulations, which can be found at 22
C.F.R. Part 94; 53 Fed. Reg. 23608 (June 23, 1988), have been adopted
governing the procedures of the Central Authority.
Article 7 of the Convention requires that
Central Authorities around the world cooperate with each other and
promote cooperation among the competent authorities in their respective
States to secure the prompt return of children and to achieve the other
objects of the Convention.
Analyzing a Case
The primary thing to remember when dealing
with alleged international child abduction cases is that a proceeding
under the Hague Convention and ICARA is not a custody proceeding; it is
a proceeding to compel the return of the child to his country of
habitual residence so that the courts of that country can determine
questions relating to custody of that child. Article 3 of the Hague
Convention provides that, in order to prevail on a claim, a petitioner
must show: 1) That the child was habitually resident in one nation and
has been removed to or retained in a different country; 2) That the
removal or retention was in breach of the petitioner's custody rights
under the law of the country of habitual residence; and 3) That the
petitioner was exercising those rights at the time of the removal or
retention. The petitioner must establish these requirements by a
preponderance of the evidence. 42 U.S.C. s 11603(e)(1)(A).
Once wrongful removal is shown, return of the
child is "required" unless the respondent establishes one of four
defenses: 1) The proceeding was commenced in the responding state more
than one year after the wrongful removal or retention, and "the child is
now settled in its new environment" (Article 12); 2) The party now
seeking return of the child was not actually exercising custodial rights
at the time of the wrongful removal or retention of the child; or there
was consent to the removal; or there was acquiescence to the retention
(Article 13 (a)); 3) The return of the child would expose him or her to
physical or psychological harm "or otherwise place the child in an
intolerable situation" (Article 13(b)); or the child objects to being
returned and is of such age and maturity that it is appropriate to take
account of his views (Article 13 (b)); and/or 4) That human rights and
fundamental freedom would be abridged if the return were permitted
(Article 20).
Habitual Residence: Circuits Disagree
Article 35 of the Convention states that a
petitioner cannot invoke the protection of the Hague Convention unless
the child to whom the petition relates is "habitually resident" in a
State signatory to the Convention and has been removed to or retained in
a different signatory State. Once this is established, the petitioner
must then show that the removal or retention was "wrongful." (Note:
Article 4 of the Convention limits its application only to children less
than 16 years old who have been "habitually residing" in a contracting
state immediately before the breach of custody or access rights, and
ceases to apply on the day when the child attains the age of 16.)
This article might at first seem clear
enough, but because interpretation of the term "habitual residence" was
left to the courts and not defined by the Convention, there has been a
constant flow of litigation over its definition. A number of U.S.
Circuit Courts have held that it should not be confused with domicile.
See, e.g., Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Mozes
v. Mozes, 239 F.3d 1067 (9th Cir., 2001). Several foreign courts have
even held that the subject children in cases brought before them did not
have a habitual residence. W and B v. H (2002) 1 FLR 1008 (United
Kingdom -- Family Division -- 2002); see also Robertson v. Robertson
(1997) 1998 SLT 468, 1997 GWD 21-1000, Inner House of the Court of
Session (Second Division) (Scotland); Dickson v. Dickson 1990 SCLR 692,
1990, Inner House of the Court of Session (Scotland).
A look at the developing case law in the U.S.
is necessary because the Circuits have not agreed on a test for defining
a child's "habitual residence."
A Child-Centered Inquiry
In Friedrich v. Friedrich, 983 F.2d 1396,
1401-1402 (6th Cir. 1993), the Sixth Circuit opined that the British
courts had provided the most complete analysis of "habitual residence,"
in absence of guidance in the Convention. The Friedrich court was
referring to In Re Bates, High Court of Justice, Family Division, Royal
Courts of London, No. CA.122/89, in which Great Britain's High Court of
Justice concluded that there is no real distinction between "ordinary
residence" and "habitual residence." That court offered a word of
caution with regard to decisions as to habitual residence: "It is
greatly to be hoped that the courts will resist the temptation to
develop detailed and restrictive rules as to habitual residence, which
might make it as technical a term of art as common-law domicile. The
facts and circumstances of each case should continue to be assessed
without resort to presumptions or pre-suppositions." Of course, this
offers the attorney representing a party to a Hague Convention
proceeding little guidance.
The Sixth Circuit in Friedrich agreed with
the Bates court that habitual residence must not be confused with
domicile. It concluded that to determine the habitual residence, the
court must focus on the child, not the parents, and examine past
experience, not future intentions. On its face, habitual residence
pertains to customary residence prior to the removal, so the court must
look back in time, not forward. The child's habitual residence can be
"altered" only by a change in geography and the passage of time, not by
changes in parental affection and responsibility. The change in
geography must occur before the questionable removal. Friedrich has been
followed by the Fourth (see Miller v. Miller, 240 F.3d 392, (4th
Cir.,2001)) and Eighth Circuits; (Rydder v. Rydder, 49 F.3d 369 (8th
Cir.,1995)).
In Feder v. Evans-Feder, 63 F.3d 217 (3rd
Cir. 1995), the Third Circuit took note of the Friedrich and Bates
decisions, pointing out that in Friedrich the court focused on the
child, "look[ing] back in time, not forward." It also considered and
found In re Bates instructive for the principle that there must be "a
degree of settled purpose." The purpose may be one or there may be
several and might include education, business or profession, employment,
health, family or merely love of the place. All that is necessary is
that the purpose of living where one does has a sufficient degree of
continuity to be properly described as "settled." The Third Circuit
established the rule in Feder that a child's habitual residence is the
place where he or she has been physically present for an amount of time
sufficient for acclimatization and which has a "degree of settled
purpose" from the child's perspective. A determination of whether any
particular place satisfies this standard must focus on the child and
consists of an analysis of the child's circumstances in that place and
the parents' present, shared intentions regarding their child's presence
there. See also Delvoye v. Lee, 329 F.3d 330 (3d Cir.2003), cert.
denied, 124 S. Ct. 436 (U.S. 2003); Whiting v Krassner, 391 F3d 540 (3rd
Cir, 2004); Application of Adan, 437 F.3d 381 (3rd Cir. 2006).
A Parent-Centered Inquiry
In Mozes v Mozes, 239 F.3d 1067 (9th Cir.,
2001), the Ninth Circuit engaged in a detailed analysis of the problem.
It held that the first step toward acquiring a new habitual residence is
forming a settled intention to abandon the one left behind. One need not
have this settled intention at the moment of departure; it could
coalesce during the course of a stay abroad that was originally intended
to be temporary. Nor need the intention be expressly declared, if it is
manifest from one's actions; indeed, one's actions may belie any
declaration that no abandonment was intended. If you've lived
continuously in the same place for several years on end, for example,
the court would be hard-pressed to conclude that you had not abandoned
any prior habitual residence. On the other hand, one may effectively
abandon a prior habitual residence without intending to occupy the next
one for more than a limited period. Whether there is a settled intention
to abandon a prior habitual residence is a question of fact.
In those cases where it is necessary to
decide whether an absence is intended to be temporary only, the Mozes
court found that the intention that has to be taken into account is that
of the person or persons entitled to fix the place of the child's
residence -- in most cases, the parents or parent with custody. Although
the Hague Convention is interested in the habitual residence of only the
child, the Ninth Circuit recognized in Mozes that it would seem
illogical to focus on the child's intentions, as, "[c]hildren...
normally lack the material and psychological wherewithal to decide where
they will reside." When the persons entitled to fix the child's
residence no longer agree on where it has been fixed, the
representations of the parties cannot be accepted at face value, and
courts must determine from all available evidence whether the parent
petitioning for return of a child has already agreed to the child's
taking up habitual residence where it is. The Seventh and Eleventh
Circuits have adopted the reasoning of the Ninth Circuit in Mozes v.
Mozes. See Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir, 2004); Koch v.
Koch, 450 F.3d 703 (7th Cir.,2006).
Despite a willingness to determine "habitual
residence" by the parents' intent, the Second Circuit took the inquiry a
step further to find that evidence of acclimatization may suffice to
establish a child's habitual residence, despite uncertain or contrary
parental intent; If the child's life has become so firmly embedded in
the new country as to make the child habitually resident there, that
finding will trump even lingering parental intentions to the contrary.
Gitter v. Gitter, 396 F.3d 124 (2d Cir., 2005). The Gitter court held
that in determining a child's habitual residence, a court should first
inquire into the shared intent of those entitled to fix the child's
residence (usually the parents) at the latest time that their intent was
shared. In making this determination the court should look at actions as
well as declarations. Normally the shared intent of the parents should
control the habitual residence of the child. Second, however, the court
should inquire whether the evidence unequivocally points to the
conclusion that the child has acclimatized to the new location and thus
has acquired a new habitual residence, notwithstanding any conflict with
the parents' last shared intent.
Conclusion
In sum, Friedrich and Feder, and the circuits
that follow them, engage primarily in a fact-based analysis, focusing on
the customary residence of the child prior to his removal. In these
circuits, the court's analysis focuses on the child. The Eighth Circuit
followed this reasoning in Silverman v. Silverman, 338 F.3d 886, 898
(8th Cir. 2003), in which it held that habitual residence is to be
determined by focusing on the settled purpose from the child's
perspective immediately before the removal or retention, although
parental intent is also taken into account.
In contrast, the Second and Ninth Circuits,
and the circuits that follow them, do not equate habitual residence with
customary residence. Instead, they focus on the importance of intentions
(normally the shared intentions of the parents or others entitled to fix
the child's residence) in determining a child's habitual residence. When
the persons entitled to fix the child's residence no longer agree on
where it has been fixed, courts must determine from all available
evidence whether the parent petitioning for return of a child has
already agreed to the child's taking up habitual residence where it is.
While the decision to alter a child's
habitual residence depends on the settled intention of the parents, it
requires an actual change in geography, and requires the passage of an
appreciable period of time, one that is sufficient for acclimatization.
The Second Circuit takes this further by holding that courts should
inquire into the shared intent of those entitled to fix the child's
residence at the latest time that their intent was shared, but although
this should normally control, courts should also inquire as to whether
the the child has acclimatized to the new location and thus has acquired
a new habitual residence, notwithstanding any conflict with the parents'
latest shared intent.
Countries Covered By the Convention
As of May 2007, the Hague Convention is in
effect between the United States and: Argentina, Australia, Austria,
Bahamas, Belgium, Belize, Bosnia & Herzegovina, Brazil, Bulgaria,
Burkino Faso, Canada, Chile, China (Hong Kong Special Admin. Region 1)
Macau, Colombia, Croatia, Czech Republic, Cyprus, Denmark. Dominican
Republic, Ecuador, El Salvador, Estonia, Finland, France, Germany,
Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia,
Lithuania, Luxembourg, Former Yugoslav Republic Of Macedonia, Malta,
Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama,
Peru, Poland, Portugal, Romania, Serbia, Slovak Republic, Slovenia,
South Africa, Spain, St. Kitts and Nevis, Sweden, Switzerland, Turkey,
United Kingdom, Bermuda, Cayman Islands, Falkland Islands, Isle of Man,
Montserrat, Uruguay, Venezuela, Yugoslavia, and the Federal Republic of
Zimbabwe.
FNa1. Bari Brandes Corbin and Evan B.
Brandes, both members of this newsletter's Board of Editors, are with
Joel R. Brandes Consulting Services Inc., Jersey City, NJ, and Ft.
Lauderdale, FL (www.brandeslaw.com
or
www.nysdivorce.com). (c) Copyright 2007, Joel R. Brandes Consulting
Services, Inc., Evan B. Brandes and Bari Brandes Corbin. All rights
reserved.
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