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.