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In Kijowska v. Haines, 463 F.3d 583 (C.A.7
(Ill.),2006) the Seventh Circuit pointed out that the determination of
"habitual residence" is to be made on the basis of the everyday meaning
of these words rather than the legal meaning that a particular
jurisdiction attaches to them, as otherwise forum shopping would come in
by the back door-each contestant would seek a forum that would define
"habitual residence" in the contestant's favor. Agnieszka Kijowska, a
citizen and resident of Poland, filed a petition under the Hague
Convention seeking an order that her daughter, Maya Kijowska, currently
living in Illinois with Maya's father, Troy Haines, be returned to her
mother in Poland. The district judge, after conducting an evidentiary
hearing, ordered the child returned. The Seventh Circuit affirmed.
Kijowska had entered the United States on a
student visa, had had an affair with Haines, and in October 2004 had
given birth to Maya-by which time she hadoverstayed her visa and had
thus become an illegal alien. Two months later she returned with Maya to
Poland without notifying Haines, who had, however, disavowed seeking
custody of the infant. Six months after that, mother and child flew back
to the United States, on a tourist visa, to meet Haines. Apparently
Kijowska thought there was some prospect of a reconciliation with
Haines, from whom she had been estranged since shortly after Maya's
birth. But immigration officers at the Detroit airport, where she landed
with her daughter and was met by Haines, refused entry to the United
States to Kijowska after Haines told an immigration officer (falsely)
that she was planning to remain in the United States and thus overstay
her tourist visa. Haines showed the officer an order that he had
obtained ex parte from an Illinois state court, shortly after mother and
child had returned to Poland the previous December, granting him custody
of the child. Impressed by the order, the officer permitted Haines to
take Maya. The mother was forced to return to Poland alone. She then
filed this suit.
Haines argued that as of December 2004, when
Kijowska took the baby back with her to Poland, the baby's habitual
residence was the United States and that Kijowska's removal of her was
wrongful, that is, "in breach of [Haines's] rights of custody" under
U.S., specifically Illinois, law. The Court would not say that an
infant's residence is automatically that of her mother, because such a
rule would imply that a mother's removal of an infant would never be
wrongful under the Hague Convention, even if she was engaged in exactly
the kind of forum shopping that the Convention condemns. However, it was
impossible to reconcile Haines's initial disavowal of custody over Maya,
and Kijowska's expectation (based on her immigration status but also on
her family circumstances in Poland) that she would be returning with
Maya to Poland, with Maya's having acquired a habitual residence in the
United States.
If this is correct, then it was inescapable
that when Maya and her mother returned to the United States in May 2005,
the child-who had been living in Poland with her mother uninterruptedly
for the six months since the move there-was still a habitual resident of
that country. The circumstances indicated that the trip in May was
intended to be a brief visit rather than a relocation. Kijowska may have
hoped for a reconciliation but she had hedged by buying a round-trip
ticket and leaving her other daughter behind in Poland. Maya had lived
in Poland for most of her life at that point and her mother, who was
Maya's primary caretaker, could not reside legally in the United States
unless she married an American, which she had no plans to do. Maya's
half-sister, with whom Maya evidently had a close relationship, likewise
was a citizen of Poland. So keeping Maya in the United States, as Haines
did, removed her from the family and social environment in which her
life had developed. Even if the court went back to December 2004, when
Kijowska left the United States with Maya, there was no evidence to
suggest an intention on the part of either parent that Maya would live
in the United States. The parents had no plans to marry and although
Haines wanted to be recognized as Maya's father, he gave no indication
of seeking custody of her.
The Court Concluded that Maya's habitual
residence at the time she left the United States was her mother's
habitual residence, which was Poland. This made the taking of the child
from the mother's custody in May 2005 a wrongful removal; for under
Polish law an unwed mother has custody of her child.
Against this Haines argued that the order of
the Illinois state court granting him custody of Maya makes the United
States her habitual residence. The order was irrelevant. Yang v. Tsui,
416 F.3d 199, 201 (3d Cir.2005); Silverman v. Silverman, supra, 338 F.3d
at 895; Miller v. Miller, 240 F.3d at 399. The Hague Convention requires
that the child's custody be determined under the law of the child's
place of habitual residence, which was not Illinois but Poland. Haines
could seek to wrest custody of Maya from Kijowska, but only by
proceeding under the laws of Poland.
There was an alternative basis for the court’s
conclusion. Suppose that Maya's habitual residence when her mother took
her to Poland in December 2004 was the United States and that Kijowska's
removal of her was wrongful. Haines's remedy would have been to file a
petition under the Hague Convention and its implementing federal
statute. He did not do that. He merely sought a custody order from an
Illinois state court and then used that order to help obtain the
self-help remedy of taking the child from the airport. To give a legal
advantage to an abductor who has a perfectly good legal remedy in lieu
of abduction yet failed to pursue it would be contrary to the Hague
Convention's goal of discouraging abductions by denying to the abductor
any legal advantage from the abduction. By failing to pursue his legal
remedy, Haines enabled Maya to obtain a habitual residence in the
country to which her mother took her, even if the initial taking was
wrongful. There wass no doubt that if the circumstances in which Maya
was taken to Poland are set to one side, by May 2005 she was a habitual
resident of Poland.
Another alternative that leads to the same
result was to assume that Maya had no habitual residence as of December
2004. Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir.2004) Delvoye v.
Lee, supra, 329 F.3d at 333. If so, her mother's taking her to Poland
was not wrongful, and her acquisition of habitual residence there was
unproblematic.
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