In Brennan v. Cibault, 227 A.D.2d 965, 643 N.Y.S.2d 780 (4th Dept 1996) the Appellate Division reversed an order of the Family Court which denied the mother= s petition to dismiss the father= s custody petition. The father was a United States citizen and the mother was a French citizen. They met in New York in 1990 while the mother was attending a summer session at Fordham University. Approximately a year later the father moved to Paris France where the parties were married in 1991. Their daughter was born in France in February 1994. With exception of visits to the father= s mother in New York the parties lived in France until June 1995 when the father and the child arrived in New York for a six week visit with his mother. The father had round trip tickets and was expected to return to France in August 1995.

The parties= marriage had been troubled however, and in telephone calls during the months of July and August the parties decided to separate. The father indicated that he would not return to live in France if the parties were not going to remain together. They discussed sharing custody of the child with her spending six months with each of them. The mother testified at the hearing that she offered petitioner the first six months period with the child but informed him that she expected the child to return to France in December 1995. The father admitted having those discussions but denied that he specifically agreed to the arrangement. In any event, in August 1995 the mother purchased round trip tickets to fly to New York on December 30, 1995 and to return to France with the child on January 1, 1996. She agreed to allow the child to remain with her father until December 30 to attend a family wedding.

In the fall of 1995 unbeknownst to the mother the father sought legal advice about obtaining custody of the child. He was informed that the child would have to live in New York State for six months in order for a New York court to have jurisdiction over a custody proceeding involving her. She did not inform the mother of that information.

In December 1995 the father commenced a proceeding in Family Court seeking custody of the child. The mother was served with an order to show cause on the same day that she arrived in New York to pick up the child. The order to show cause granted temporary custody of the child to the father and directed that the child remain within the jurisdiction of the court pending determination of the petition. In January 1996 during a court appearance before the Family Court the mother made an oral application to dismiss the petition for lack of jurisdiction and on further grounds that the child was being wrongfully retained in New York in violation of the convention on the civil aspects of international child adoption (Hague Convention) and its enabling legislation, the International Child Adoption Remedies Act. After a hearing the court denied the mother= s application to dismiss the petition. The court held that the child was not a habitual resident of France within the meaning of the Hague Convention and that even if she were she was not being retained wrongfully in New York because the mother had acquiesced to her residence in New York.

The Appellate Division held that the Family Court erred in concluding that the child was not a habitual resident of France. Because the Hague Convention does not define the term habitual resident its interpretation has been left to the courts. Courts interpreting the term have held that it refers to a degree of settled purpose as evidence by the child= s circumstances in that place and the shared intentions of the parents regarding their child= s presence there. The focus is on the child rather than the parents and on past experience rather than future intentions.

The court further determined that application of those principles to this case compels the conclusion that France is the child= s habitual residence. The child= s parents were married there and had established professions and a home there and the child was born in France and lived there for the first 16 months of her life before she left what was to be a six week visit with her grandmother in New York. Those facts reflect a settled purpose on the part of the parties to establish the child= s life in France.

In this case, when the child left France the mother had consented to the child= s absence for only six weeks. Eventually she gave her consent for the child to remain until December 30, 1995 but she never agreed that the child remain beyond that time and certainly never agreed that she remain indefinitely. Because the child= s habitual residence was in France and the father wrongfully retained the child in New York in derogation of the mother= s equal right to custody under the laws of France the Family Court should have dismissed the petition and issued an order pursuant to Article 12 of the Hague Convention requiring that the child be returned forthwith to the mother in France. The court also determined that future custody application should be made in the courts of France but should they decline to determine the issue of custody of the child the father would then be entitled to commence a custody proceeding in New York. Therefore, the order of the Family Court was unanimously reversed on the law without costs and the petition was dismissed and the mother= s application granted.