In Miller v Miller ,240 F.3d 392, (4^th Cir.,2001) the Mother filed an action pursuant to the International Child Abduction Remedies Act (ICARA) and the Hague Convention, seeking her children's return to Canada on the ground that they were illegally abducted by the father in violation of a valid Canadian custody order. The United States District Court ordered the return of the children to Canada, and the father appealed. The Court of Appeals held that Canada was the habitual residence of the children; upon establishment of Canada as the children's habitual residence, the mere existence of a New York order granting permanent custody of the children to the American father was not in itself a defense to his wrongful removal from Canada; and the father failed to establish any defense to the return of the children.

In August 1998, Miller forcibly removed the children from their mother's home in St. Catharines, Ontario, Canada, and brought them into the United States to settle with him in Charlotte, North Carolina. Ms. Miller filed an action seeking the children's return on the ground that they were illegally abducted by Miller in violation of a valid Canadian custody order. Ms. Miller is a citizen and resident of Canada, while Miller is a citizen and resident of the United States. The parties' elder child, Hope Christian Miller, was born in Canada in September 1990. The parties subsequently married in 1993 and separated in 1995, prior to the birth of the younger child, Faith Kendra Taylor Irwin Miller, who was born in Canada in August 1995. They have since divorced. An Ontario court, in an October 3, 1997 decree ("Ontario Order"), granted permanent custody of the children to Ms. Miller. On August 28, 1998, Miller arrived in Canada--ostensibly for the purpose of exercising his rights of supervised visitation under the Ontario Order--and, without Ms. Miller's consent, took the children from her home and returned with them to the United States. The district court found that "[b]ased on the amount of time during which the children lived in Canada during the course of their respective lives, the children were habitually resident in Canada as of August 28, 1998." The court determined that Ms. Miller filed her Hague Convention petition less than one year after the children were taken to the United States, and that Hope and Faith had not become settled in North Carolina within the meaning of the Hague Convention. Finally, the court ascertained that the return of the children to Ms. Miller did not "pose a grave risk to the health, safety, and well-being of the children as defined by the Convention."

The Court of Appeals stated that the scope of a court's inquiry under the Hague Convention is limited to the merits of the abduction claim. The merits of any underlying custody case are not at issue. Ms. Miller, as petitioner, was required to establish, by a preponderance of the evidence, that her children were "wrongfully removed or retained within the meaning of the Convention." Ms. Miller had to prove that: (1) the children were "habitually resident" in Canada at the time Miller removed them to the United States; (2) the removal was in breach of Ms. Miller's custody rights under Canadian law; and (3) she had been exercising those rights at the time of removal. In this case there were subsequent custody orders from New York and Canada. The Court held that upon establishment of Canada as the children's "habitual residence," the mere existence of the New York Order granting permanent custody of the children to Miller was not in itself a defense for wrongful removal, though it would be an appropriate--albeit discretionaryB judicial exercise to "take account of the reasons" for that decree in appraising the merits of this abduction claim. Article 17 of the Hague Convention provides that the sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State [here, the United States] shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.

The district court concluded that Miller's removal of Hope and Faith to the United States was a breach of Ms. Miller's custody rights under the law of Canada, which was the habitual residence of the children at the time of their abduction. The court determined, Miller's "removal of the children from Canada was wrongful and his present retention of them in the United States is wrongful." The court concluded that the defenses raised by Miller were inapplicableand ordered that the children be placed in Ms. Miller's custody for their return to Canada, and that law enforcement officers provide any necessary assistance to ensure a safe homecoming. That order was carried out and the children returned to Canada with their mother.

In an action pursuant to ICARA and the Hague Convention, the court reviews the district court's findings of fact for clear error, while its conclusions regarding principles of domestic, foreign, and international law are reviewed by it de novo.

On appeal, Miller asserted that the district court erred in concluding (1) that Ms. Miller proved the wrongful removal of her children from Canada, within the meaning of the Hague Convention, and (2) that Miller failed to establish any of the four available defenses.

Miller argued that because he had been granted permanent custody of the children pursuant to the New York Order of March 24, 1998, the district court erred in concluding that Canada was the "habitual residence" of the children as of August 28, 1998 (the day he removed them to the United States) and that Ms. Miller was exercising valid custody rights under Canadian law on that day.

The Hague Convention does not define "habitual residence." However, in ascertaining how to make this determination, the court is guided by the precedent of sister circuits in concluding that "there is no real distinction between ordinary residence and habitual residence." "A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward." This is a fact-specific inquiry that should be made on a case- by-case basis. Moreover a parent cannot create a new habitual residence by wrongfully removing and sequestering a child. The evidence showed that both children were born in Canada and resided there with their mother for a substantial portion of their lives--in Faith's case, for her entire life--until they were removed by their father to the United States. Miller argued that the United States was their habitual residence, because Ms. Miller wrongfully retained the children in Canada as of March 24, 1998, in violation of the New York Order. Miller's argument presumed that the New York Order superseded the earlier Ontario Order granting custody of the children to Ms. Miller. However, the Ontario Court of Appeal upheld the validity of the Ontario Order--at least pending further proceedings--and denied recognition of the New York Order based on Canadian conflict of law principles. In light of this reasonable disposition, the court saw no reason not to defer to the court's decision, and rejected Miller's contentions that Ms. Miller wrongfully retained the children in Canada upon issuance of the New York Order. It agreed with the district court that Canada was the children's "habitual residence" at the time Miller absconded with them to the United States. Because Canada was the children's "habitual residence" for purposes of the abduction claim, the court looked to Canadian law to determine whether Ms. Miller was exercising valid custody rights in that country at the time of the children's removal. As the Ontario Court of Appeal determined that Ms. Miller was entitled to custody of Hope and Faith, despite the New York Order to the contrary, and Miller failed to provide any authority from Canada undermining this decision or any other reason to question the Ontario court's interpretation of the law of its own country, the district court properly concluded that Ms. Miller was exercising valid custody rights in Canada when her children were removed from that country.