The central tenant of the Hague Convention is the idea of the home state of the child. The home state is where the substantive custody determination should take place. The home state’s laws are used to decide whether the left-behind parent has a “right of custody,” which triggers the Convention, or merely a “right of access,” which does not. Retuning the child to his or her rightful home state is the goal of the Convention. But how do you determine the home state for a baby or an infant?
Some courts in the US focus on what was the parents’ last shared intention to determine habitual residence. These Courts include the First, Second, Fourth, Seventh, Ninth, and Eleventh Circuits. In these courts, determining an infant’s home state requires no different analysis than for an older child.
Other courts look to more objective standards, like whether the child has enrolled in a new school, made friends in the new country, joined extracurricular activities in the home country, etc. For these courts, the determination of the home state of an infant is more difficult. In many cases, the courts in these circuits have adopted the parent intent test for very young children (typically, under 18 months), while focusing more on the child for children older than 18 months. See Delvoye v. Leem 329 F.3d 330 (3d Cir. 2003); See Whitting v. Krassner, 391 F.3d 540 (3d Cir. 2004). However, this is not a hard and fast rule, as courts have also used a blended approach, combining both the parental intent approach and the child-based approach for children of different ages. See In re Application of Adan, 437 F.3d 381 (3d Cir. 2006); See Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006).
In courts that do not strictly follow the parental-intent approach, determining the home state of an infant is much more difficult, and the cases have not produced a clear answer as to how to make this determination.
The Hague Convention is unique in that it is almost purely about jurisdiction. The drafters designed it “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping.” Baxter v. Baxter, 423 F.3d 363, (3d Cir. 2005). The treaty does not set parameters for making a substantive, custody decision; instead, it outlines the procedures to decide where the case should be heard. In these cases, then, it determines under which nation’s laws, procedures, and judges will decide the ultimate outcome of the case.
Article 19 explicitly says, “A decision made under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Instead, the Convention focuses on whether or not a child “should be returned to a country for custody proceedings and not what the outcome of those proceedings should be.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004).
Why did the drafters of the Convention focus on jurisdiction? In the text of the Convention itself, it is made expressly clear that one of the primary goals of the Convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004) (Citing Convention, art. 1, 19 I.L.M. at 1501). One of the major reasons to return the child is to ensure that parents do not move the child to a different country in order to gain some sort of tactical advantage by picking and choosing which legal system to litigate the case. This underlying concern for forum shopping is why the Convention focuses on jurisdiction.
Bottom Line: The Hague Convention treaty is not meant to resolve substantive custody issues. It is used to determine where the custody dispute will take place.
The Hague Convention on the Civil Aspects of International Abduction, contrary to popular belief, is not an international child custody treaty. By this, I mean that the treaty was not created for the purpose of deciding which parent should have custody of a child. The purpose, generally speaking, is to provide a method of determining which country the child custody case will occur. In determining where a custody case will occur, the Hague Convention asks the pivotal question, “Where was the habitual residence of the child at the time the child was allegedly wrongfully removed or retained?”
Notably, the Hague Convention itself does not define habitual residence. Thus, it has been left to the courts to decipher this important question. First, the habitual residence of a child is almost entirely determined based on the unique facts and circumstances of a particular case. Basically, the court will dive into the facts and circumstances of the parties and the child in each case and make a determination of the child’s habitual residence.
Some of the factors the courts look at in determining habitual residence (but definitely not all of them) are as follows:
- The intentions of the parents
- Statements made by the parents
- Employment of the parents
- The location of the parents’ families
- Whether a move was intended to be temporary or permanent
- The length of time the parent(s) or child have resided in a particular country
- The child’s schooling in a particular country
- The child’s involvement in extracurricular activities
- The child’s involvement in the community
This is by no means a comprehensive list but it gives a sense of what courts will consider. It also shows just how fact intensive the habitual residence inquiry can be and it demonstrates how the unique facts of each case can determine the outcome. Further, different courts attribute different weight to these various factors. Some courts weigh heavily the actions and intentions of the parents. Other courts focus more on where the child is and what the child has been doing. Other courts weigh all of these factors almost equally. Needless to say, it is important in any Hague Convention case to articulate the facts of your case and, depending on your jurisdiction, emphasize those facts that the court in your jurisdiction weighs most heavily.
The Hague Convention on the Civil Aspects of International Abduction is widely thought of as the legal means of having a wrongfully removed or retained child returned to their country of habitual residence. While the Hague Convention certainly does that, it also provides circumstances in which a wrongfully removed or retained child may not necessarily be ordered to return to the country of the child’s habitual residence. Article 13 of the Hague Convention sets forth those exceptions as follows:
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.