Tag Archives: United States Federal Courts

HAGUE CONVENTION: Home State of Infants

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.

Leave a comment

Filed under Hague Convention, Texas Family Code, Texas Family Law

HAGUE CONVENTION: Pending Case in United States Supreme Court (Lozano v. Alvarez)

United States Supreme Court

The United States Supreme Court has granted certiorari in Lozano v. Alvarez (Docket No. 12-820) which deals with the Hague Convention on International Abduction.  Recently, the International Academy of Matrimonial Lawyers (IAML) filed an Amicus brief in the case.  Cheryl Hepfer, current president of IAML, described the case and the IAML’s brief in her recent blog post on the IAML blog.  You can visit the IAML blog here and Sheryl Hepfer’s post regarding the Lozano case is reproduced below.

Posted by : Cheryl Hepfer on Sunday 15th September 2013, posted in Hague Convention (Child Abduction)

The IAML has filed an Amicus Brief in the United States Supreme Court in the Lozano case.

The Amicus Committee,  under the able leadership of Ed Freedman, was granted permission by both parties to file a brief on an issue about which the United States Supreme Court has granted certiorari.

The case involves the wrongful removal of a a child from England to the United States.  The abducting parent concealed the child post-abduction.  As a result, the left behind parent was unable to commence his petition within the one year period after removal, as is required to obligate the Court to order the return of the child.

The father contends that the one year period should be tolled during the time period when the child was concealed.  The United States Federal Courts have, in the past, taken different positions on this issue.  The question before the Supreme Court is whether equitable tolling should be read into the interpretation of the one year period.

Our Amicus Committee supports the principle of tolling.  Our Brief suggests one of two alternatives for the Court to consider regarding one year period.  The IAML suggests that courts should either adopt the provisions of the 1996 Convention on Jurisdiction and Protection of Children, which provides a one  year period from the date when the concealed child is located, or one year from the date when the child could have been located; or, alternatively, to hold that in cases of concealment, the filling of an application with the Central Authority commences the action.

It was appropriate for us to convey our concerns and thoughts to the United States Supreme Court.  In doing so, we take our place as a leading, world-wide organization of the world’s experts in this area of the law.   We are grateful, indeed,  to Ed  for having brought this issue to our attention, and for his hard work, and that of the Committee, in taking all of the necessary action, within a very short period of time, to facilitate our filing of the Amicus Brief.

The Lozano case is set for oral arguments at the United States Supreme Court on Wednesday, December 11, 2013.

You can read the Second Court of Appeals opinion in the case here:  Lozano – Second Court of Appeals Opinion

You can read the Petition for Certiorari here: Lozano – Petition for Certiorari

Follow the case on the United States Supreme Court’s docket here.

Leave a comment

Filed under Hague Convention, International Abduction