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FAMILY LAW--Children Alienated from Father: Third Circuit Discounts Hague Convention on Legally Inseparable Caribbean Island.

FAMILY LAW--Children Alienated from Father: Third Circuit Discounts Hague Convention on Legally Inseparable Caribbean Island--Didon v. Castillo, 838 F.3d 313 (3rd Cir. 2016).

The Hague Convention sets out the international parameters for International Child Abduction. (1) Under the Hague Convention discussing the Civil Aspects of International Child Abduction (Hague Abduction Convention), the parent of a child who has been removed from his or her "habitual residence country" not in accordance with that country's custody laws may seek the return of that child. (2) In Didon v. Castillo, (3) for the first time the United States Court of Appeals for the Third Circuit was confronted with deciding whether it is possible for a child to have two "habitual residence countries" simultaneously under the Hague Abduction Convention, and furthermore how does a court determine a child's "habitual residence country." (4) The Court held that the text of the Hague Abduction Convention does not permit a child to have two habitual residences and further found that Dutch Sint Maarten is the children at issue's "habitual residence country." (5)

This dispute centers around two children, A.D., the biological son of Maurice Marie Didon (Didon) and Alicia Dominguez Castillo (Castillo), and J.D., the biological daughter of only Castillo. (6) In (2011), Didon and Castillo filed in French Saint Martin to list Didon as J.D.'s father on her birth certificate because she was now living with both of them as well as A.D in Didon's Dutch Sint Maarten apartment. (7) Without ever formally appearing in court, J.D.'s birth certificate was changed "to identify Didon as her father." (8) The family lived in Dutch Sint Maarten for three years, however, their daily activities including work, school, and medical appointments took place in French Saint Martin. (9) Due to a deteriorating relationship with Castillo, Didon pursued full custody of both children by bringing a custody action in French Saint Martin civil court. (10) In September 2014, Castillo, who was never notified of the proceeding, informed Didon that she would be bringing the children to New York City to attend her sister's wedding. (11)

On September 6, 2014, a day before Castillo was expected to return with the children, Didon learned from school officials that they were not expecting the children to return because Castillo had withdrawn them from the school. (12) Didon, after contacting police who were able to communicate with Castillo, claims he was promised by Castillo that she would return with the children on September 7, 2014. (13) Castillo did not return with the children on the day promised; meanwhile, Didon pursued his custody action in French Saint Martin civil court which ultimately granted "full custody of A.D. and J.D. to Didon in an ex parte order." (14) In early 2015, Didon hired a private investigator to look for the children, who found them during that summer in Hazelton, Pennsylvania. (15)

On August 13, 2015, Didon filed a Hague Abduction Convention suit asking a Pennsylvania District Court for both A.D. and J.D. to be returned to French Saint Martin. (16) On September 24, 2015, the lower court ruled in favor of Didon concerning A.D., but against him regarding J.D. (17) Concerning A.D., the district court held that Didon had lawful custody over him because he is Didon's biological son. (18) Regarding J.D., the district court found that Didon did not have lawful custody over her because he did not follow the proper adoption requirements under French law. (19) The district court reasoned that the children were habitual residents of both French Saint Martin and Dutch Sint Maarten because "the border is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike [...]." (20) On appeal, the Third Circuit reversed, concluding that Didon does not have lawful custody over both A.D. and J.D. because the Hague Abduction Convention is not recognized by Dutch Sint Maarten. (21)

The Hague Abduction Convention is structured to quickly return children who have been kidnapped or illegally held away from their habitual residence country. (22) Its goal is to return a child to his or her previously established living arrangements. (23)

To determine whether a "removal or retention" is regarded to be "wrongful" under the Hague Abduction Convention, a two part test must be applied. (24) Step one considers whether it violates the law of the child's preceding "habitual residence country," and step two considers whether those rights could have been recognized at the time of the abduction. (25) In determining whether those rights could have been recognized, a variety of factors may be considered, including the child's habitual residence before the "removal or retention." (26) Before it can be determined where a child's "habitual residence country" is, it must first be decided whether the Hague Abduction Convention authorizes coexisting habitual residences. (27)

The starting point in determining whether the Hague Abduction Convention authorizes coexisting habitual residences begins with the text itself. (28) Its language regarding the return of children refers only to "state" of habitual residence, indicating that a child may only have one habitual residence. (29) A substantial amount of U.S. case law has held that a child may only have one habitual residence country. (30) Note that this rule is dependent on the specific factual situation at issue because, as the Ninth Circuit ruled in Mozes v. Mozes, (31) unique situations a child may have dual or alternating habitual residences. (32) An example of a unique habitual residence situation is where a child spends an equal amount of his or her time in two different countries. (33) Since the determination of whether a child may have dual habitual residences is fact specific, so too is the determination of where that location(s) is. (34)

In order to decide where a child's habitual residence country is, the meaning of the phrase "habitual residence" must first be discussed. (35) The phrase must be interpreted in accordance with its ordinary meaning because it is not defined by the Hague Abduction Convention. (36) According to Black's Law Dictionary, "habitual residence" is defined as "[a] person's customary place of residence." (37) On this issue common law has created a "living requirement," meaning that a child must have lived in a place for it to qualify as the child's habitual residence. (38) Furthermore, case law has established that this analysis "is a fact-intensive determination," meaning the analysis varies with the facts of each case. (39) Therefore, the fact-specific framework must now be used to determine whether the children at issue may have dual habitual residences, and where their habitual residence country(s) is. (40)

In Didon v. Castillo, (41) the Court relied on the general framework set forth by the Hague Abduction Convention to conclude that both A.D. and J.D. have only one habitual residence country, Dutch Sint Maarten. (42) In its discussion of whether the Hague Abduction Convention permits dual habitual residences, the Court first looked to the language of its text. (43) The Court reasoned that because the Hague Abduction Convention refers only to '"the State' of habitual residence," it unambiguously intends that a child may have only one habitual residence country. (44) The Court then relied on United States Federal Circuit Courts of Appeals cases such as Sorenson v. Sorenson (45) and Robert v. Tesson (46) which support the conclusion that a child may have only one habitual residence. (47) While the Court did acknowledge the Ninth Circuit's reasoning in Mozes, it stated that it could not determine whether the Ninth Circuit supported concurrent or alternating habitual residences. (48) Furthermore, the Court stated that the language of the Hague Abduction Convention itself must govern when a child has demonstrated connections to more than one country. (49)

In its discussion of where A.D. and J.D.'s habitual residence country is, the Court first examined "the ordinary meaning of the term 'residence.'" (50) Based on this examination, the Court reasoned that a child's habitual residence country must be a place where a child has lived. (51) Using Whiting v. Krassner, (52) the Court reiterated the requirement that a child must have lived in a country for it to qualify as his or her habitual residence. (53) It reasoned that although the children went to school, medical appointments, and conducted many other activities in French Saint Martin, they lived only in Dutch Sint Maarten because that is where they "had a home." (54) The Court further reasoned that it did not have to use the "fact-intensive" framework it created because the children lived only in one country. (55) As a result, the Court held that the Hague Abduction Convention does not permit concurrent habitual residences, and that A.D. and J.D.'s habitual residence country is Dutch Sint Maarten. (56) The Court's decision in Didon v. Castillo (57) incorrectly applies case law surrounding the habitual residence issue to reach an erroneous outcome. (58) Though the Hague Abduction Convention itself refers only to the "State" of habitual residence, the island of French Saint Martin and Dutch Sint Maarten functions as one state. (59) The Third Circuit neglected to fully examine the reasoning outlined in Mozes, which clearly applies to A.D. and J.D.'s habitual residence analysis. (60) This is due to the fact that all aspects of the children's daily activities took place on both sides of the island. (61) By concluding that the children are habitual residents of only Dutch Sint Maarten, the Court creates a border that is not recognized by either country. (62) Since the children's daily routine "transcended the divided island's border," both A.D. and J.D. must be considered habitual residents of both French Saint Martin and Dutch Sint Maarten. (63)

Although the Court views the definition of residence as the place where one "has a home," there are many other factors involved in determining where one lives. (64) Here, the Court failed to analyze the situation using the "fact-intensive" framework it created because it wrongfully established an official border between the two countries. (65) While the children slept each night in Didon's Dutch Sint Maarten apartment, they spent each day in French Saint Martin. (66) This factual situation exactly parallels the scenario described by Mozes because the children's time was clearly divided equally between each side of the island. (67) Therefore, the island must be considered legally inseparable for purposes of determining habitual residence. (68) As a result, the Court mistakenly ruled that the children's habitual residence country was not both French Saint Martin and Dutch Sint Maarten. (69)

Here, the Third Circuit misstated the problem by stating the issue as whether the Hague Abduction Convention permits dual habitual residences; a better statement of the issue is "whether multiple prior residences may qualify as a habitual residence." (70) Due to the island's unique nature, the Court should have focused its analysis more on case law following the line of reasoning described in Mozes, as well as its own "fact-intensive" framework. (71) If a factually similar habitual residence issue arises, the Third Circuit's holding makes it much more difficult for any court to give weight to a unique custody situation. (72) The Court's holding here discounts the value in applying the Hague Abduction Convention in a situation that its application may not have been intended by its drafters. (73) Therefore, the Court should have placed a higher value not on the amount of legal precedent surrounding the habitual residence issue, but on the unique connection between French Saint Martin and Dutch Sint Maarten. (74)

In Didon v. Castillo, (75) the Third Circuit was faced with whether it is possible for a child to have dual "habitual residence countries" under the Hague Abduction Convention, and how a court determines a child's "habitual residence country." The Court incorrectly applied case law surrounding these issues to reach the wrong outcome. The Court failed to follow the reasoning outlined in Mozes despite the children's unique lifestyle on the island of French Saint Martin and Dutch Sint Maarten. Moreover, the Court did not place enough value on the unique aspects of life on this legally inseparable island. Furthermore, the Court did not use the "fact-intensive" framework it established. Therefore, the Third Circuit improperly held that the island of French Saint Martin and Dutch Sint Maarten cannot constitute dual habitual residence countries, and as a result, Didon does not have custody over A.D.

(1.) See Hague Convention on the Civil Aspects of International Child Abduction, pmbl., Oct. 25, 1980, 51 Fed. Reg. 10494, 1343 U.N.T.S. 49 (establishing legal framework for international child abduction). The purpose of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) is to promptly return children "who have been abducted from their country of habitual residence or wrongfully retained outside that country." Id. Moreover, the Hague Abduction Convention aims to prevent the adverse effects of parental kidnapping, and to effectively stop this conduct from occurring. Id.

(2.) See id. at art. 1 (establishing purpose and rights afforded by Hague Abduction Convention). The scope of the Hague Abduction Convention includes ensuring "that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Id. This provision of the Hague Abduction Convention safeguards the ability of a parent to petition for the return of his or her child in another country. Id. See Didon v. Castillo, 838 F.3d 313, 316 (3rd Cir. 2016) (rejecting petition for return of children to French Saint Martin). In order for a petition for the return of a child to be successful, the child must have been a resident of the country to which the filer of the petition seeks them to be returned. Id. at 325. Furthermore, in order for the Hague Abduction Convention to apply it must be recognized by the country in which the children live. Id. at 326.

(3.) 838 F.3d 313, 313 (3rd Cir. 2016) (determining whether children may have dual habitual residences).

(4.) Id. at 316 (questioning whether children can have dual habitual residences). See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270-71 (3rd Cir. 2007) (setting forth framework to determine whether child was wrongfully removed or retained); Abbott v. Abbott, 560 U.S. 1, 22 (2010) (holding child cannot have more than one habitual residence); see Hague Convention on the Civil Aspects of International Child Abduction, pmbl., Oct. 25,1980, 51 Fed. Reg. 10494, 1343 U.N.T.S. 49 (highlighting "State" of habitual residence); Medellin v. Texas, 522 U.S. 491, 506-07 (2008) (stating interpretation of treaty begins with its text); Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134 (1989) (declaring text of treaty governs where language is unambiguous); Mozes v. Mozes, 239 F.3d 1067, 1075 n. 17 (9th Cir. 2001) (stating child can have dual habitual residences in unique situations).

(5.) See Didon, 838 F.3d at 326 (holding children have only one habitual residence country). In this case, the Court relied on case law supporting the argument that a child may have only one habitual residence country. Id. at 322. The Court here rejected the analysis of the district court, which concluded that because of the unique circumstances that living on the legally inseparable Caribbean island of French Saint Martin and Dutch Sint Maarten entailed, the children actually had dual habitual residence countries. Id. at 318-19. Relying on Mozes, the district court found that the children split their time equally in both countries such that they had dual habitual residences. Id. See Mozes, 239 F.3d at 1075 n.17 (addressing whether multiple prior habitual residences are valid under Hague Abduction Convention). The only instance where multiple habitual residences are valid under the Hague Abduction Convention is where a child divides his or her time equally between multiple locations. Id. See also Johnson v. Johnson, 493 S.E.2d 668, 669 (Va. Ct. App. 1997) (holding child had dual habitual residences in Virginia and New York).

(6.) See Didon, 838 F.3d at 317 (discussing prior relationships of parties). In 2007, Castillo moved to Dutch Sint Maarten from the Dominican Republic without J.D. Id. In 2008, Castillo met Didon, and in 2009 moved into his apartment. Id. A.D., the biological son of both Didon and Castillo, was born on November 3, 2010. Id. Then, in 2011, J.D. moved in with Didon, Castillo, and A.D. Id. See Didon v. Castillo, No. 1:15-CV-1586, 2015 U.S. Dist. LEXIS 128077, at *2 (M.D. Pa. Sept. 24, 2015) (expanding on facts of case). Castillo also had another daughter from a prior relationship. A.A. Id. When Castillo moved into Didon's Dutch Sint Maarten apartment in 2009, A.A. moved in as well. Id.

(7.) See Didon, 838 F.3d at 317 (stating why Didon became J.D.'s legal father). Due to the fact that J.D. was now living with her mother and half-brother in Didon's Dutch Sint Maarten apartment, Didon chose to become the child's legal father. Id. See Didon, 2015 U.S. Dist. LEXIS 128077, at *5 (detailing family's life in Dutch Sint Maarten). Both Didon and Castillo "report a discordant family life." Id. Castillo claims that Didon "imposed strict rules on the entire family." Id. at 5-6. Didon claims that Castillo did not "devote requisite time and energy to family commitments, such as nightly dinners together." Id. at 6. Moreover, Castillo, Didon, and A.A. all stated that the bathroom door to the only bathroom in the apartment "was to remain open at all times." Id. Didon claims that he imposed this "rule" "so that more than one person could use the bathroom at a time." Id. Additionally, Castillo claims "that Didon physically abused her, J.D., and A.A." Id.

(8.) See Didon, 2015 U.S. Dist. LEXIS 128077, at *6 (explaining way in which Didon became J.D.'s legal father). Didon filed to have J.D.'s birth certificate changed, listing him as her father, in French Saint Martin. Id. Although Didon did testify neither he nor Castillo appeared in court, he believes "that this modification of the birth certificate" is sufficient for a proper adoption under the Hague Abduction Convention. Id. at 7. Didon refers to "this modification of the birth certificate" as "'acknowledging' or 'recognizing' J.D." Id.

(9.) See Didon v. Castillo, 838 F.3d 313, 317 (3rd Cir. 2016) (expanding on uniqueness of Dutch Sint Maarten and French Saint Martin). The Caribbean island where the facts of this case take place is split in half, between the French and the Dutch. Id. French law governs the French Saint Martin half of the island, while Dutch law governs the Dutch Sint Maarten half of the island. Id. Although the family "resided" on the Dutch side of the island, school, work, and "the family's administrative affairs such as the children's insurance" took place in French Saint Martin. Id. See also Appellant/Cross-Appellee's Brief at 3, Didon v. Castillo, 838 F.3d 313 (3rd Cir. 2016) (Nos. 15-3350, 15-3579) (stating concise facts of case). Dutch law applies in Sint Maarten, where Castillo moved in 2007, because it is a colony of the Netherlands. Id. Since Saint Martin is part of the French West Indies, French law applies in Saint Martin. Id.

(10.) See Didon, 2015 U.S. Dist. LEXIS 128077, at *7 (expanding on facts of case). Due to Didon's alleged physical and verbal abuse of Castillo, the relationship between the two seemed to be deteriorating. Id. at 6. Didon, not wanting to lose his children, in July 2014 brought a custody action in French Saint Martin civil court. Id. at 7.

(11.) See id. (detailing facts of case). Castillo was not notified in any way of the pending custody action. Id. Meanwhile, the whole family vacationed in Paris from mid-July to mid-August of 2014. Id. Upon the family's return from vacation, Castillo told Didon that she, J.D., and A.D. would be attending her sister's wedding in New York City. Id. Castillo stated she would leave for New York with the children on August 27 and return on September 7. Id. To prove to Didon that she would be returning to Sint Maarten with the children, Castillo showed him the three round-trip plane tickets she had bought. Id.

(12.) See Didon v. Castillo, No. 1:15-CV-1586, 2015 U.S. Dist. LEXIS 128077, at *7 (M.D. Pa. Sept. 24, 2015) (elucidating facts of case). Didon, after calling school officials on September 6 to notify them of the children's absence, "began to suspect" that Castillo did not plan to return with both A.D. and J.D. on September 7. Id. Since Castillo had withdrawn the children from the school, school officials were not expecting the children to return. Id.

(13.) See id. (detailing contact between Didon and Castillo after abduction of children). On September 6, 2014, the police communicated with Castillo. Id. It is disputed whether, during the call, Castillo promised to return with the children on September 7. Id. However, it is undisputed that Castillo did not return with A.D. and J.D. on the day promised. Id. During the Fall of 2014, Didon had little contact with the children, evidenced by "only one text message and one phone call." Id.

(14.) See Didon, 838 F.3d at 318 (explaining Didon's French Saint Martin custody action). In Castillo's absence, Didon, seeking custody of both A.D. and J.D., pursued his custody action in French Saint Martin civil court. Id. This action sought to return both A.D. and J.D. to Didon because he believed he was their lawful father and argued that they were unlawfully abducted from him. Id. See Didon, 2015 U.S. Dist. LEXIS 128077, at *7 (detailing Didon's French Saint Martin custody action). On March 23, 2015, the French Saint Martin civil court ruled in favor of Didon, meaning that A.D. and J.D. were now lawfully under his sole custody. Id.

(15.) See Didon, 2015 U.S. Dist. LEXIS 128077, at *7 (explaining Didon's efforts to locate children). While Didon pursued his custody action after the children had been taken to the United States, he sought the help of a private investigator to look for the children. Id. During the summer of 2015, the private investigator was successful in locating the children. Id. The investigator found the children when J.D.'s name was discovered on an online honor roll list of a Hazelton, Pennsylvania school. Id.

(16.) See Didon v. Castillo, 838 F.3d 313, 318 (3rd Cir. 2016) (detailing procedural history of case). Didon's Hague Abduction Convention suit, filed in Pennsylvania District Court, was filed for the purpose of returning both A.D. and J.D. to Saint Martin. Id. Without requiring Castillo's attorneys to be present, on August 14, 2015 the district court held a telephone hearing with Didon's attorneys. Id. During this hearing, the district court ordered that Castillo be served with the petition by the U.S. Marshals Service. Id. Moreover, the U.S. Marshals Service was ordered "to confiscate the passports and other travel documents" belonging to Castillo, J.D. and A.D. Id. Furthermore, Castillo was prevented from taking both A.D. and J.D. out of Pennsylvania until the completion of "a hearing on the merits of the petition." Id.

(17.) See id. (explaining prior judgment in favor of Didon). The district court ruled that A.D. was to be returned to Didon in French Saint Martin while J.D. was to stay with Castillo in the United States. Id. The official date of retention was determined by the district court to be September 7, 2014 because this was the day Castillo stated she would return with A.D. and J.D. Id. Therefore, the district court ruled that the children had been unlawfully abducted from Didon for over a year. Id.

(18.) See Didon, 838 F.3d at 319 (explaining district court's analysis regarding A.D.). The parties agreed that A.D. should be under Didon's custody because he is Didon's biological son. Id. The lower court reasoned that Didon was exercising his custody rights he had legally acquired through his French Saint Martin custody action until Castillo abducted A.D. from Dutch Sint Maarten to the United States. Id. The district court held "that A.D. was 'wrongfully' retained under the Hague [Abduction] Convention" because Castillo "retained A.D. from his habitual residence" country. Id. Since this was done by Castillo "in violation of Didon's custody rights under French law," the district court ruled in favor of Didon. Id.

(19.) See id. (explaining district court's analysis concerning J.D.). Regarding J.D., the district court held "that Didon did not have custody rights over J.D. through adoption" because he did not follow the correct adoption procedures under French law. Id. Furthermore, the district court reasoned that J.D. was not "wrongfully" retained "because Didon did not have custody rights over J.D. under French law" when she was taken to the United States by Castillo. Id. Therefore, the district court ruled in favor of Castillo concerning J.D. Id.

(20.) See id. at 318 (explaining district court's reasoning). After granting the petition in favor of Didon concerning A.D., the district court presented an analysis of where the children are habitually resident to determine to which country A.D. should be returned. Id. The district court reasoned that because the border between French Saint Martin and Dutch Sint Maarten is very free-flowing, the children "were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin." Id. See Didon v. Castillo, No. 1:15-CV-1586, 2015 U.S. Dist. LEXIS 128077, at *17 (M.D. Pa. Sept. 24, 2015) (highlighting uniqueness of French Saint Martin and Dutch Sint Maarten). The island of Saint Martin has a "unique, dual sovereign composition." Id. "The island, only thirty-four (34) square miles in size, is divided by an international border: the northern part (known as Saint Martin) is a French territory, and the southern part (known as Sint Maarten) is a Dutch territory." Id. Residents treat the island simply as one country for purposes of daily life. Id. Both Castillo and Didon stated "that they regularly travel between the French and Dutch sides of the island without restriction." Id. Moreover, Didon's testimony highlighted the fact "that there 'is no border at all' between the two sides of the island, and that anyone is 'free to travel from one side to the other.'" Id. Furthermore, Didon stated that his commute to work from Dutch Sint Maarten to French Saint Martin "takes only five minutes." Id. The district court concluded its reasoning by stating: "the neighboring island territories of [French] Saint Martin and [Dutch] Sint Maarten are inseparable under the Hague [Abduction] Convention for purposes of determining a child's habitual residence." Id. at 17-18.

(21.) See Didon, 838 F.3d at 316 (stating holding of case). The Court here concluded (1) that the Hague Abduction Convention "does not permit concurrent habitual residence," and (2) that the children's habitual residence country is Dutch Sint Maarten. Id. The Court looked to the text of the Hague Abduction Convention itself, case law surrounding the issues, and "the ordinary meaning of the term 'residence.'" Id. The Court believed that the children "lived" only in Dutch Sint Maarten, not in French Saint Martin as well. Id. Despite the uniqueness of the island of Dutch Sint Maarten and French Saint Martin, the parties' testimony regarding island life, and general knowledge about the island, the Court ultimately held that Didon does not have lawful custody over both J.D. and A.D. since the Hague Abduction Convention is not recognized by Dutch Sint Maarten. Id.

(22.) See Hague Convention on the Civil Aspects of International Child Abduction, pmbl., Oct. 25, 1980, 51 Fed. Reg. 10494, 1343 U.N.T.S. 49 (establishing legal framework for international child abduction). The purpose of the Hague Abduction Convention is stated by Ronald Reagan in the preamble of its reprinted version:
   The Convention is designed to secure the prompt return of children
   who have been abducted from their country of habitual residence or
   wrongfully retained outside that country. It also seeks to
   facilitate the exercise of visitation rights across international
   borders. The Convention reflects a worldwide concern about the
   harmful effects on children of parental kidnapping and a strong
   desire to fashion an effective deterrent to such conduct.


Id. Based on former President Reagan's analysis, the Hague Abduction Convention is designed to protect children not only in the United States, but also in any other country across the world. Id. As he says, "the Convention goes on to reflect a worldwide concern" of the effects of parental kidnapping. Id. Furthermore, former President Reagan goes on to say:
   The Convention's approach to the problem of international child
   abduction is a simple one. The Convention is designed promptly to
   restore the factual situation that existed prior to a child's
   removal or retention. It does not seek to settle disputes about
   legal custody rights, nor does it depend upon the existence of
   court orders as a condition for returning children. The
   international abductor is denied legal advantage from the abduction
   to or retention in the country where the child is located, as
   resort to the Convention is to effect the child's swift return to
   his or her circumstances before the abduction or retention. In most
   cases this will mean return to the country of the child's habitual
   residence where any dispute about custody rights can be heard and
   settled.


Id. The main purpose of the Hague Abduction Convention is to return children to the country in which they are habitually resident. Id. The Hague Abduction Convention basically acts as a central authority in any state which recognizes it. Id. Therefore, its purpose is to return children to their habitual residence country as quickly as legally possible. Id. Specifically, in article one of the Hague Abduction Convention, its purposes are stated as (1) "to secure the prompt return of children wrongfully removed to or retained in any Contracting state; and" (2) "to ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States." Id. at art. 1. See Karpenko v. Leendertz, 619 F.3d 259, 263 (3rd Cir. 2010) (examining purpose of Hague Abduction Convention). In Karpenko, the mother of a child was stripped away of her child by the child's father. Id. at 261-62. When the parents divorced, the question of where the child would reside was faced by the parties because one of the parties was Ukrainian, one was Dutch, and the child was born in America. Id. More specifically, the Third Circuit was faced with a similar question of where the child's habitual residence country is located. Id. at 262. The court looked at the purpose of the Hague Abduction Convention, as well as the specific facts of the case. Id. at 263. The court reasoned that a child must be "physically present for an amount of time sufficient for acclimatization" in a particular country. Id. The court ultimately granted the mother's petition for the return of her child by balancing American and Dutch law under the Hague Abduction Convention. Id. at 266. See also Linda Silberman, Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 105354 (2005) (discussing different interpretations of Hague Abduction Convention). The Hague Abduction Convention is very broad in scope, covering "wrongful removals or wrongful retentions of children up to the age of 16." Id. at 1053. The purpose of the Hague Abduction Convention "simply requires the 'return' of a child who has been wrongfully removed or retained" from his or her habitual residence country. Id. But see Laura McCue, Left Behind: The Failure of the United States to Fight for the Return of Victims of International Child Abduction, 28 Suffolk Transnat'l L. Rev. 85, 85 (2004) (examining United States' failure to return children abducted from home). Nearly five thousand American children who are abducted by a parent "are taken to countries not party to the Hague [Abduction] Convention." Id. This leaves the parent seeking the return of the child "at the mercy of the courts of the foreign country." Id. at 86. This issue "is a growing epidemic," needing more government involvement to help "the children wrongfully taken" and "the parents left behind." Id.

(23.) See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3rd Cir. 2007) (elucidating goal of Hague Abduction Convention). In Tsai-Yi Yang, the dispute revolved around the custody and habitual residence country of a child between the plaintiff and defendant. Id. at 265. The defendant father, Fu-Chiang Tsui, claimed that Canada was not the child's habitual residence country immediately before he removed the child back to Pennsylvania from Canada. Id. at 272. The child had only been in Pennsylvania "for a few weeks when the wrongful retention had occurred." Id. The mother had moved with the child to Canada, and the child "missed Yang, [and] wanted to return to Canada." Id. The court reasoned that the child was too young to form an intent of where her habitual residence country is. Id. The court then determined that she did not acclimate to Pennsylvania enough for the United States to become her new habitual residence country. Id. Specifically, with regard to the Hague Abduction Convention, the court stated that its purpose is "to restore the status quo prior to any wrongful removal or retention." Id. at 270. Through this reasoning the court came to the conclusion that the only way to achieve this was to find that the child's habitual residence country was in fact Canada. Id. at 280.

(24.) See Hague Convention on the Civil Aspects of International Child Abduction, art. 3, Oct. 25, 1980, 51 Fed. Reg. 10494, 1343 U.N.T.S. 49 (setting forth test to determine "wrongful" retention). Article three of the Hague Abduction Convention provides the legal framework by which a court determines whether a "removal or retention" is regarded to be "wrongful." Id. Specifically, it states:
   The removal or the retention of a child is to be considered
   wrongful where (a) it is in breach of rights of custody attributed
   to a person, an institution or any other body, either jointly or
   alone, under the law of the State in which the child was habitually
   resident immediately before the removal or retention; and (b) at
   the time of removal or retention those rights were actually
   exercised, either jointly or alone, or would have been so exercised
   but for the removal or retention.


Id. To meet the burden set forth under this test, a plaintiff must show that the rights of the child are being violated under the law of the country where the child was habitually resident before the abduction took place. Id. Furthermore, the plaintiff must also show that the rights of the child could have been recognized at the time of the abduction. Id.

(25.) See id. (establishing both prongs of "wrongful" retention test). Regarding the first prong, a child must have been determined to be a habitual resident of a country in order for an abduction to be considered "wrongful." Id. To be determined a habitual resident of a country, a child must have lived in that country for a sufficient amount of time to be considered accustomed for purposes of becoming a resident. Id. As stated by the Hague Abduction Convention, the "removal or retention" must be "in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention." Id. This means that an actual person's rights must be violated by the abduction. Id. Regarding the second prong, the rights of that person must actually have been exercised, "or would have been so exercised but for the removal or retention." Id. This means that the rights of the person who has been abducted must be exercised by that person in order for a petition to be granted under the Hague Abduction Convention. Id. The only case where a petition would be granted under the Hague Abduction Convention where the person at issue's rights are not exercised is where the abduction prevented that person from exercising his or her rights. Id. A plaintiff who satisfies both prongs of this test will have proven that the "removal or retention" is "wrongful" under the Hague Abduction Convention. Id.

(26.) See Karpenko, 619 F.3d at 263 (establishing factors to analyze second prong of test). When analyzing the second prong of the test to determine whether a "removal or retention" was "wrongful," the court in Karpenko developed four factors that must be analyzed by a court. Id. These factors are:
   (1) When the removal or retention took place; (2) the child's
   habitual residence immediately prior to such removal or retention;
   (3) whether the removal or retention breached the petitioner's
   custody rights under the law of the child's habitual residence; and
   (4) whether the petitioner was exercising his or her custody rights
   at the time of removal or retention.


Id. These factors address the essential questions a court faces when confronted with the issue of whether a "removal or retention" was "wrongful." Id. These questions must be answered by a court, however, in some cases not all factors will be considered because some questions may have already been answered. Id.

(27.) See Hague Convention on the Civil Aspects of International Child Abduction, art. 35, Oct. 25, 1980, 51 Fed. Reg. 10494, 1343 U.N.T.S. 49 (establishing application of Hague Abduction Convention's timing). As stated by article thirty-five, the Hague Abduction Convention will only apply to "wrongful removals or retentions" after a child has been taken between states which recognize the Hague Abduction Convention. Id. However, a "liberal interpretation" of article thirty-five does exist, which means that the Hague Abduction Convention can still apply where the child's habitual residence country does not recognize the Hague Abduction Convention. Id. at pmbl. See Karkkainen v. Kovalchuk, 445 F.3d 280, 291 (3rd Cir. 2006) (examining different legal standards for determining child's habitual residence). In Karkkainen, the plaintiff mother stated that her ex-husband and his current wife "wrongfully retained her daughter, Maria Kovalchuk, when she was eleven years old." Id. at 285. The plaintiff mother filed suit for the return of her daughter under the Hague Abduction Convention. Id. The district court ruled against the plaintiff mother because the child's habitual residence country was the United States. Id. On appeal, the mother argued that her daughter's habitual residence country is Finland. Id. The Third Circuit held that "although this is a close case" the daughter is habitually resident in the United States. Id. The court reasoned that she "acclimatized to the United States" and had "a degree of settled purpose" to remain in the United States. Id. Furthermore, the court found the parent's intent to let Maria choose her habitual residence country very important. Id.

(28.) See In re The Amiable Isabella, 19 U.S. 1, 71 (1821) (elucidating judicial function in interpreting treaties). In The Amiable Isabella, the Supreme Court of the United States was confronted with the interpretation of the Spanish treaty of 1795 applied to the capture of a Spanish ship by an American privateer. Id. at 69-70. When examining the treaty, the Supreme Court established the legal framework that is used today when courts interpret treaties:
   In the first place, this Court does not possess any treaty-making
   power. That power belongs by the constitution to another department
   of the Government; and to alter, amend, or add to any treaty, by
   inserting any clause, whether small or great, important or trivial,
   would be on our part an usurpation of power, and not an exercise of
   judicial functions. It would be to make, and not to construe a
   treaty.


Id. at 71. The Supreme Court here made a wise distinction between the legislative and judicial functions with respect to treaties. Id. This has formed the basis for the legal framework courts use today in the United States when interpreting treaties. Id. See Chan v. Korean Air Lines, Ltd., 490 U.S. 122,134-35 (1989) (holding text of treaty governs where language is unambiguous). In Chan, families of victims of a plane crash brought wrongful-death actions against an airline company, Korean Air Lines, Ltd. Id. at 123. One of the airline's planes was destroyed by a Soviet aircraft, and everyone on board died. Id. In this type of case, the parties' "rights are governed by the Warsaw Convention." Id. The Warsaw Convention includes a "per passenger damages limitation for personal injury or death." Id. An agreement among airlines, called the Montreal Agreement, provides that airlines must "give passengers written notice of the [Warsaw] Convention's damages limitations in print size no smaller than ten-point" font. Id. The airline here printed the notice in eight-point font. Id. The issue that the Supreme Court was faced with here was whether the damages limitation still applied. Id. The Supreme Court held that, although the airline failed to print the notice in the requisite size font, the damages limitation did still apply because the language made it clear that printing the notice in eight-point font was not misleading. Id. at 134-35. In its analysis, the Supreme Court looked to the language of the Warsaw Convention itself. Id. at 126-27. It reasoned that because the language was unambiguous, the language itself governed. Id. at 129. See also United States v. DuarteAcero, 208 F.3d 1282, 1285 (11th Cir. 2000) (discussing how to interpret language of treaty). In Duarte-Acero, the Eleventh Circuit was confronted with the interpretation of the "double jeopardy provision of the International Covenant on Civil and Political Rights." Id. at 1283. The court here used a similar analysis to that of the Supreme Court in Chan. Id. at 1285. The court looked to the language of the treaty and found that because it was unambiguous and clear, the language itself governed. Id. at 1286.

(29.) Hague Convention on the Civil Aspects of International Child Abduction, art. 3, Oct. 25, 1980, 51 Fed. Reg. 10494,1343 U.N.T.S. 49 (establishing framework to determine child's habitual residence country). The Hague Abduction Convention itself refers to the "State" of habitual residence: "... under the law of the State in which the child was habitually resident [...]." Id. See Abbott v. Abbott, 560 U.S. 1, 10 (2010) (examining text of Hague Abduction Convention). In Abbott, the mother of a child removed the child "from Chile without permission from either the father or the court" to Texas. Id. at 6. The father brought an action in Texas under the Hague Abduction Convention for the return of the child to Chile. Id. at 7. The Supreme Court reversed the decisions of both the district court and the appeals court, granting the father's request that the child be returned to Chile. Id. at 21-22. The Supreme Court examined the language of the Hague Abduction Convention to begin its analysis. Id. at 11. The Supreme Court reasoned that its language is unambiguous, and thus used it to govern the situation. Id. at 20-21. See also Medellin v. Texas, 552 U.S. 491, 506-07 (2008) (expanding on interpretation of any treaty's language). In Medellin, the Supreme Court was faced with the interpretation of the Vienna Convention in connection to the rights it provides to international criminals. Id. at 499. The Supreme Court here followed a similar line of reasoning in terms of interpreting a treaty: "the interpretation of a treaty, like the interpretation of a statute, begins with its text." Id. at 506.

(30.) See Sorenson v. Sorenson, 559 F.3d 871, 874 (8th Cir. 2009) (reaffirming child may have only one habitual residence). In Sorenson, the plaintiff and defendant were married in Illinois, lived in Minnesota, and had a daughter there. Id. at 872. The husband then accepted a job in Australia, so "the family moved to the Sydney-area under a three-year work visa." Id. However, the couple's relationship deteriorated after a few months of living in Australia. Id. The husband "moved back to Minnesota and filed for divorce," and for his daughter's return under the Hague Abduction Convention. Id. The district court held that the daughter's habitual residence was only Australia, and the Eighth Circuit affirmed. Id. at 873-74. The Eighth Circuit ruled that "[a] person may have only one habitual residence." Id. at 873. It reasoned that a "court must focus on the child, not the parents, and examine past experience, not future intentions." Id. Furthermore, it reasoned that '"habitual residence' must encompass some form of 'settled purpose.'" Id. Since the daughter had lived in Australia for three years prior to the retention, went to pre-school there, "and even spoke with an Australian accent," the court held that Australia was her habitual residence. Id. at 874. See Robert v. Tesson, 507 F.3d 981, 998 (6th Cir. 2007) (ruling children have one habitual residence). In Robert, the Sixth Circuit was faced with a similar question of where the plaintiff and defendant's children were habitually resident. Id. at 987. For alternating periods of time, the children lived in the United States and France. Id. at 984-87. The father brought suit alleging that the mother "removed their children from France in violation of the Hague [Abduction] Convention." Id. at 987. The court held that the child's habitual residence country was the United States. Id. at 998. It reasoned that this is because a child's habitual residence country is the country in which they are habitually resident at the time of the "removal or retention." Id. at 989. Furthermore, the court reasoned that habitual residence is determined by deciding whether the child has "been physically present for an amount of time sufficient for acclimatization" to a particular country. Id. See also Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001) (holding child may have only one habitual residence). In Miller, the Fourth Circuit affirmed the return of infant children to Canada. Id. at 395. The father unlawfully abducted the children from their mother in Ontario, Canada, and took them to live with him in North Carolina. Id. The court reasoned that because both children were born in and lived in Canada "for a substantial portion of their lives," Canada was their habitual residence under the Hague Abduction Convention. Id. at 400-01.

(31.) 239 F.3d 1067, 1075, n. 17 (9th Cir. 2001) (asserting circumstances in which child may have multiple habitual residences).

(32.) See id. (stating possibility for child to have dual or alternating habitual residences in unique situations). In Mozes, the Ninth Circuit was faced with the question of determining a child's habitual residence country. Id. at 1070. The court here looked at the intent not of the child at issue, but of the parents. Id. at 1076. The court reasoned that this is because children at issue in these types of cases are typically very young and "lack the material and psychological wherewithal" to determine where they live. Id. Due to this the court stated: "where it is necessary to decide whether an absence is intended to be temporary and short-term--the intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child's residence." Id. This form of analysis becomes difficult because the individuals who are to determine where the child resides are likely the parents, who do not agree on where the child should reside. Id. Due to this problem, these types of cases must be analyzed based on the specific factual situation in each case. Id. at 1077. See Reyes Valenzuela v. Michel, 736 F.3d 1173, 1177-78 (9th Cir. 2013) (affirming Mozes). In Valenzuela, the Ninth Circuit followed the line of reasoning set forth in Mozes. Id. The court here reasoned that a court should look to "the last shared, settled intent of the parents in an attempt to determine which country" is the child's habitual residence country. Id. at 1177. This is a more forward-looking approach to determine a child's habitual residence country using the intent of the parents. Id. This analysis is accepted in the Ninth Circuit because that court believes that a child at issue in one of these cases is not likely to be of the requisite mental capacity to make the determination of where they reside. Id. Generally, this is simply due to the fact that the child is just too young. Id. Furthermore, the court here stated that "Mozes requires that there be a shared intent to abandon the prior habitual residence." Id. Therefore, the result is that there is a "lack of uniformity" across the Federal Circuit Courts of Appeals, and the most plausible analysis is one that is specific to the factual situation al issue. Id.

(33.) See Mozes, 239 F.3d at 1075, n.17 (explaining most likely type of unique habitual residence situation). The Ninth Circuit stated in Mozes that although it was not the case here, it is possible for a child to have dual or alternating habitual residences: "the exception would be the rare situation where someone consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each." Id. This conclusion goes against the majority of case law on the habitual residence issue, however, there are situations in which a child may have dual or alternating habitual residences. Id. The most likely situation where this could arise is where a child spends his or her time equally in two different countries. Id. A court would view an individual in this type of position as having dual or alternating habitual residences because it is not clear in which country he or she spends the majority of his or her time. Id. This type of situation is very unique and rare, likely due to the amount of traveling a child must undertake to evenly spend his or her time in two different countries. Id.

(34.) See Johnson v. Johnson, 493 S.E.2d 668, 669 (Va. Ct. App. 1997) (holding child had dual habitual residences). In Johnson, the child at issue was found by the court to have evenly split her time between Virginia and New York. Id. at 675. At the time of retention, "the child had no single home state" under the definition used by the court. Id. The court rejected the argument that Sweden had become the child's habitual residence country. Id. Although the child was present in Sweden during 1994, she split her time between Virginia and New York when the case began. Id. Therefore, because the child's habitual residence was not Sweden, and her time was found to have been divided equally between Virginia and New York, the court ruled that she had acquired dual habitual residences in both Virginia and New York. Id. at 677. This holding shows that the best analysis for determining a child's habitual residence country is one that is fact-specific to the case at hand. Id. See Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (stating Hague Abduction Convention itself does not define habitual residence). In Friedrich, the Sixth Circuit was faced with the question of habitual residence. Id. At the time of this decision, little case law existed on the Hague Abduction Convention. Id. at 1401. Moreover, the Hague Abduction Convention itself does not define the term "habitual residence." Id. at 1400. In analyzing this issue, the court here stated that "a person can have only one habitual residence." Id. at 1401. It goes on to state that "the court must look back in time, not forward." Id. This analysis is contradictory to that articulated by the Ninth Circuit in Mozes. Id. However, the Sixth Circuit does go on to say that "every family dispute has its own unique set of facts." Id. at 1402. Although it then generally classifies the types of factual situations that may occur, as the court said itself situations do exist that are factually "unique." Id. at 1402-03. See also Blanc v. Morgan, 721 F. Supp. 2d 749, 759 (W.D. Tenn. 2010) (reaffirming diverse outcomes of case law on habitual residence issue). The court in Blanc, like many others, was confused in its analysis of the definition of "habitual residence." Id. The court cited to both sides of the argument, supporting a single habitual residence or the possibility of a dual habitual residence in unique situations. Id. at 759-60. The court ultimately came to the conclusion that the child at issue had only one habitual residence, which was France. Id. at 769. However, this case supports the inference that the definition of habitual residence depends on the specific factual situation at issue. Id. at 759-60.

(35.) See Feder v. Evans-Feder, 63 F.3d 217, 222 (3rd Cir. 1995) (stating Hague Abduction Convention does not define "habitual residence"). In Feder, the Third Circuit clearly stated that the Hague Abduction Convention "does not provide a definition for habitual residence [. . .J." Id. The court here stated it was guided by the language of the Hague Abduction Convention and the Sixth Circuit's analysis in Friedrich to create its own definition of the phrase. Id. at 224. "We believe that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Id. This definition is more in line with the backward looking analysis to determine where the child's habitual residence country is. Id. It also looks more towards the intent of the child rather than the intent of the parents as in the forward looking analysis developed by the Ninth Circuit in Mozes. Id.

(36.) See id. at 222 (developing Third Circuit definition of "habitual residence"). Due to the fact that "habitual residence" is not defined by the Hague Abduction Convention, it has been traditionally up to the courts to create and interpret definitions of the phrase. Id. See Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) (stating words of treaties must be interpreted in accordance with ordinary meaning). The Supreme Court here noted that treaties should be interpreted in accordance with their ordinary meaning: "as treaties are contracts between independent nations, their words are to be taken in their ordinary meaning [.. .]." Id. This analysis makes treaty interpretation much easier and more uniform because interpreting treaties "in their ordinary meaning" is a general standard. Id.

(37.) Habitual Residence, Black's Law Dictionary (10th ed. 2014) (defining "habitual residence" in ordinary terms). This definition of "habitual residence" is ordinary, and easy to interpret. Id. Furthermore, "'residence' is defined as '[t]he place where one actually lives.'" Id. See Koch v. Koch, 450 F.3d 703, 712 (7th Cir. 2006) (developing definition of "habitual residence"). Here, the Seventh Circuit attempts to define the phrase "habitual residence" as "a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile." Id. The court here then goes to quote the analysis in Mozes, stating that "habitual residence" should be interpreted "according to 'the ordinary and natural meaning of the two words it contains"' which are factually dependent questions that vary on the specific facts of each case. Id. See also Guzzo v. Cristofano, 719 F.3d 100. 106 (2nd Cir. 2013) (reaffirming factually dependent definition of "habitual residence"). Here, the Second Circuit analyzed both sides of the definition of "habitual residence," again showing that the definition depends on the court and the specific case at issue. Id. at 106-07. See also Rhona Schuz, Policy Considerations in Determining the Habitual Residence of a Child and the Relevance of Context, 11 J. Transnat'l L. & Pol'y 101, 102 (2001) (discussing meaning of habitual residence). Under the Hague Abduction Convention, the meaning of "habitual residence" has only been attempted to be defined through case law. Id. Courts vary in their analysis of this definition, and the effects of this varied analysis can have substantial effects on the lives of children. Id.

(38.) See Whiting v. Krassner, 391 F.3d 540, 550-51 (3rd Cir. 2004) (establishing "living requirement"). In Whiting, the Third Circuit helped to establish a new framework for determining a child's habitual residence country. Id. The court reaffirmed Feder, by saying that "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has 'a degree of settled purpose from the child's perspective.'" Id. at 550. This analysis gets at the "living requirement," meaning simply that a child must have lived in a country for a sufficient amount of time for it to become the child's habitual residence country. Id. Moreover, the court here went on to further expand this requirement when involving cases of young children: ". . . [T]he shared intent of the parents in determining the residence of their children . . ." is very important. Id. Furthermore, the court stated that the shared parental intent in deciding where a child is habitually resident outweighs "the settled purpose" from the child's point of view. Id. The court here believes that this analysis of the definition of habitual residence is better aligned with the ultimate purpose of the Hague Abduction Convention, which is to restore "the status quo before the abduction." Id. See also Feder, 63 F.3d at 223 (recognizing importance of shared parental intent). The Third Circuit in Feder first discussed the shared intent of the parents in determining a young child's habitual residence. Id. Part of the court's reasoning included that children of a very young age are not fully able to make the decision of where he or she resides for purposes of determining his or her habitual residence country. Id. While the court did weigh its analysis in favor of the child's "degree of settled purpose," the court gave some weight to the shared intent of the parents in cases involving young children. Id.

(39.) See Karkkainen v. Kovalchuk, 445 F.3d 280, 292 (3rd Cir. 2006) (highlighting factually dependent analysis). The Third Circuit here expanded on the analysis of habitual residence with regard to the factually dependent analysis. Id. The court stated: "in addition to considering how parental intent affected a child's perspective, we must also give some independent weight to 'the parent's present, shared intentions regarding their child's presence' in a particular place." Id. at 292. Moreover, the court reaffirmed the analysis it stated in Whiting: "this approach considers a child's experience in and contacts with her surroundings, focusing on whether she 'developed] a certain routine and acquire[d] a sense of environmental normalcy' by 'form[ing] meaningful connections with the people and places [she] encountered' in a country prior to the retention date." Id. This adapted analysis by the Third Circuit in Karkkainen establishes the idea that determining a child's habitual residence country is highly dependent on the specific factual situation at issue. Id. See Baxter v. Baxter, 423 F.3d 363, 368 (3rd Cir. 2005) (stating analysis must focus on specific facts of case). The court here again based its analysis of habitual residence on the specific facts of the case. Id. Moreover, it specifically stated that "the inquiry 'must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there.'" Id. The court here gave more equal weight to the parent's intent than that of the child, nonetheless, it is reasonable to infer that the analysis of habitual residence varies with the facts of each case. Id.

(40.) See In re Application of Adan, 437 F.3d 381, 392 (3rd Cir. 2006) (declaring habitual residence analysis varies with facts of each case). In Adan, the Third Circuit took the position that habitual residence analysis varies with the facts of each case: "the determination of habitual residence 'is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case.'" Id. The court affirmed its analysis in Whiting. Id. It reasoned that "when a child is too young to have an intent regarding her habitual residence, the touchstone inquiry is 'shared parental intent.'" Id. Therefore, the Third Circuit's analysis of the definition of habitual residence supports the conclusion that it must be dependent on the specific facts of each case. Id. See also Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259,272 (3rd Cir. 2007) (stating importance of shared parental intent). The court here stated that the analysis must focus on the child, "but also must consider the 'parents' present, shared intentions [. ..]." Id. Again, the Third Circuit here gives weight to the importance of determining the parents' shared intent regarding the child's habitual residence country. Id. Therefore, the inconsistency in analysis by the Third Circuit points to the conclusion that the best habitual residence analysis is dependent on the specific factual situation at issue. Id. See also Tai Vivatvaraphol, Note, Back to Basics: Determining a Child's Habitual Residence in International Child Abduction Cases Under the Hague Convention, 77 Fordham L. Rev. 3325, 3327-28 (2009) (indicating existence of circuit split in habitual residence analysis). The Third Circuit "has attempted to balance evidence of the child's acclimatization" to his or her new country with the intent of the parents, whereas the Ninth Circuit believes "that the primary focus should be on the parents' shared intentions." Id. at 3328. This view shows the lack of uniformity among courts when determining a child's habitual residence. Id.

(41.) 838 F.3d 313, 316 (3rd Cir. 2016) (concluding Hague Abduction Convention disallows multiple habitual residences).

(42.) See id. at 321-24 (explaining reasoning with regard to habitual residence issue). The Third Circuit applied the general framework established by the majority of U.S. case law. Id. The Court began its analysis by first examining the language of the Hague Abduction Convention. Id. at 321. After examining whether its text is ambiguous or not, the Court focused its analysis mainly on case law supporting the conclusion that a child may not have more than one habitual residence. Id. at 322. The Court did acknowledge the other side of the issue by addressing Mozes, but it did not attempt to clarify or adequately explain the Ninth Circuit's reasoning. Id. at 323. Ultimately, the Court believed that the language of the Hague Abduction Convention itself must govern where a child has connections to multiple countries. Id. at 324.

(43.) See id. at 321 (clarifying Court's approach to textual analysis). Following the line of reasoning in Supreme Court cases such as Abbot! and Medellin, the Third Circuit began its analysis with the Hague Abduction Convention's text itself. Id. The Court further reasoned that the text of a treaty should be interpreted the same way as the language of a statute. Id. Like cases such as Chan and Duarte-Acero, the Court stated that a treaty should be applied as it is written where its language is unambiguous. Id. See also supra note 28 and accompanying text (elucidating textual analysis framework). Following this analysis, the Court here deemed the text of the Hague Abduction Convention unambiguous. Id.

(44.) See Didon, 838 F.3d at 321 (concluding no ambiguity contained in text of Hague Abduction Convention). Here, the Court reiterated the analysis set forth by precedent analyzing the approach to interpreting a treaty. Id. In the eyes of the Court, the text of the Hague Abduction Convention unambiguously "refers to the 'State' of habitual residence." Id. Following this line of reasoning, the Third Circuit determined that the Hague Abduction Convention's language itself must govern because in its view, the language is very clear. Id. See also supra note 29 and accompanying text (detailing text of Hague Abduction Convention). According to the Court and cited precedent, the Third Circuit reasoned that the text of the Hague Abduction Convention is not unambiguous. Id.

(45.) 559 F.3d 871, 874 (8th Cir. 2009) (holding child may have only one habitual residence).

(46.) 507 F.3d 981, 998 (6th Cir. 2007) (concluding children may not have dual habitual residences based on acclimatization factor).

(47.) See Didon v. Castillo, 838 F.3d 313, 322 (3rd Cir. 2016) (explaining case law analysis supporting one habitual residence conclusion). Citing Federal Circuit Courts of Appeals cases such as Sorenson and Robert, the Court focused its case law analysis heavily on cases supporting this proposition. Id. The Third Circuit stated that the "majority" of case law has weighed in favor of the ruling that a child may have only one habitual residence country. Id. See also supra note 30 and accompanying text (summarizing case law supporting one habitual residence conclusion). Here, the Court followed the majority of case law in its line of reasoning regarding the habitual residence issue. Id.

(48.) See Didon, 838 F.3d at 323 (contrasting habitual residence analysis contained in Mozes). Here, the Court distinguished this case from Mozes by stating that it was unsure "whether the Ninth Circuit was endorsing concurrent habitual residence or alternating habitual residence." Id. The Court did also acknowledge Valenzuela, which supports the conclusion that a child may have alternating habitual residences. Id. See also supra notes 32-33 and accompanying text (expounding reasoning behind dual habitual residences). Nonetheless, the Third Circuit rejected the reasoning in both Mozes and Valenzuela, reasoning that a child cannot have more than one habitual residence. Id.

(49.) See Didon, 838 F.3d at 323-24 (summarizing general legal analysis with respect to textual analysis). The view of the Court here is that the majority of American courts have adhered to the idea that the language of a treaty must govern when it is clear. Id. at 323. The Third Circuit further reasoned that interpreting the Hague Abduction Convention in any other way than strictly by its language "would be to make" a new treaty. Id. at 324.

(50.) See id. (analyzing definition of residence). The Court began its analysis by examining the ordinary definition of residence. Id. The Court looked to Black's Law Dictionary for the term's plain meaning. Id. The Third Circuit then looked to incorporate the ordinary definition of residence into its definition of habitual residence. Id. See also supra notes 35-37 and accompanying text (explaining residence and habitual residence definitions). Here, the Court used the term residence's ordinary meaning to analyze the definition of habitual residence. Id.

(51.) See Didon, 838 F.3d at 324 (examining purpose of habitual residence definition). The Court here reasoned that it would contradict the meaning of residence if it were to conclude that a child could be a habitual resident in a country where that child has never lived. Id. The Court further reasoned that even if a child lived in one state but traveled to another state each day for school, the child should not be considered a resident of the state in which he or she went to school every day. Id. See also supra note 38 and accompanying text (introducing "living requirement"). The Court here adhered to the "living requirement" created by American courts, meaning that a child must have lived in a country for it to be considered his or her habitual residence. Id.

(52.) 391 F.3d 540, 550-51 (3rd Cir. 2004) (setting forth "living requirement").

(53.) See Didon v. Castillo, 838 F.3d 313, 325 (3rd Cir. 2016) (affirming "living requirement"). Based on the analysis in Whiting, the Court here reasoned that a child must have lived in a country for it to be his or her habitual residence. Id. This analysis is a product of the meaning of residence and its incorporation into the Court's definition of habitual residence. Id. Since residence ordinarily means the place where someone lives, the Court concluded that a person must live in a country for it to be his or her habitual residence. Id. See also supra note 38 and accompanying text (explaining reasoning behind "living requirement"). The Third Circuit followed the reasoning set forth by Whiting and Feder, since it also believes that the place where a child lives is critical to the habitual residence analysis. Id.

(54.) See Didon, 838 F.3d at 326 (examining particular facts of case regarding children's living arrangements). The Court reasoned that although the children conducted their daily activities in French Saint Martin, they lived only in Dutch Sint Maarten because this is where their "home" was. Id. Based on its analysis of residence, habitual residence, and the "living requirement," the Third Circuit deemed it proper to conclude that the children only lived in Dutch Sint Maarten. Id.

(55.) See id. (discussing application of "fact-intensive" framework). Although the Third Circuit created a legal framework for courts to determine where a child's habitual residence country is, the Court concluded that it did not need to use this analysis. Id. It reasoned that this was because it had already determined that the children only lived in one country. Id. The Court further reasoned that this analysis should only be used when a child has lived in more than one country. Id. See also supra note 39 and accompanying text (outlining importance of factual analysis). In terms of habitual residence, the Court followed guidelines set forth by other American courts to create its own factual analysis framework. Id.

(56.) See Didon, 838 F.3d at 326 (stating holding). Based on its analysis of residence, habitual residence, the "living requirement," and "fact-intensive" framework, the Court concluded that "the children were habitual residents of Dutch Sint Maarten alone." Id. Furthermore, the Court held that the Hague Abduction Convention does not apply because it is not recognized by Dutch Sint Maarten. Id. Therefore, neither J.D. nor A.D. are legally under Didon's custody. Id. The Court further reasoned that Didon does not have custody over J.D. because she was not adopted properly and is only a resident of Dutch Sint Maarten; while A.D. is not under Didon's legal custody solely because he is a resident of only Dutch Sint Maarten. Id.

(57.) 838 F.3d 313, 326 (3rd Cir. 2016) (declaring A.D. and J.D. may have only one habitual residence country).

(58.) See supra notes 30-33 and accompanying text (explaining landmark case law regarding habitual residence issue). The Court here neglected to see the reasoning behind landmark cases discussing the factually specific approach a court must take when analyzing the habitual residence issue. Id. This led the Third Circuit to an erroneous outcome because it did not adequately weigh the importance of the unique factual situation at hand. Id.

(59.) See supra note 20 and accompanying text (clarifying island residents' unique disregard for border). As evidenced by the testimony of both Didon and Castillo, the border of the island is really non-existent. Id. Island residents travel from one side to the other for all purposes of their daily lives. Id. Therefore, the island really functions as one state for the purposes of everyday life. Id.

(60.) See supra notes 32-34 and accompanying text (stating possibility for child to have dual or alternating habitual residences). Since the children split their time between both sides of the island, or more accurately spent most of their time in French Saint Martin, they should be considered habitual residents of both Dutch Sint Maarten and French Saint Martin. Id. By sending the children to school, medical appointments, and other activities in French Saint Martin, it is reasonable to infer that the parents intended for the children to spend a substantial amount of time in French Saint Martin. Id.

(61.) See id. (expanding on importance of analyzing specific factual situation). Moreover, because all aspects of the children's lives took place in both Dutch Sint Maarten and French Saint Martin, the reasoning outlined by Mozes and Valenzuela must apply. Id. See also Didon v. Castillo, No. 1:15-CV-1586, 2015 U.S. Dist. LEXIS 128077, at *21 (M.D. Pa. Sept. 24, 2015) (outlining aspects of children's daily lives). Even Castillo's own testimony shows that the children's daily activities took place on both sides of the island. Id. This supports the inference that the parents intended for the children to live in French Saint Martin as well. Id.

(62.) See Didon, 2015 U.S. Dist. LEXIS 128077, at *21 (discussing effect of ruling against dual habitual residence conclusion). By ruling that the children are habitual residents of only Dutch Sint Maarten. the Third Circuit did exactly what the district court wanted to avoid: it created a border between the countries which neither country's residents acknowledge. Id.

(63.) See id. (highlighting why children must be residents of both Dutch Sint Maarten and French Saint Martin). The daily activities of the children were not restricted to one side of the island. Id. Therefore, they cannot be regarded as habitual residents of only one country. Id. See also supra notes 32-33 and accompanying text (analyzing possibility of dual habitual residences). Since the children's daily routine took place on both sides of the island and the border is not formally recognized by residents of either country, this is the rare situation where a child may have dual habitual residences. Id.

(64.) See supra note 40 and accompanying text (discussing factually dependent analysis). A court must take into account all of the factors that come into play in a given factual scenario when doing a habitual residence analysis. Id. In addition to the intent of the child, the parents' shared intent must be considered to determine where a child lives. Id.

(65.) See Didon v. Castillo, 838 F.3d 313, 326 (3rd Cir. 2016) (establishing "fact-intensive" framework for determining habitual residence). By failing to use this framework, the Court did not place enough emphasis on the unique lifestyle of the island. Id. If the Court had placed more emphasis on the unique lifestyle of the island, it likely would not have created a border that the countries' residents do not recognize. Id. See also supra note 34 and accompanying text (expanding on importance of specific factual analysis). The Court should have followed the line of reasoning in cases such as Johnson and Blanc, giving more weight to the importance of the unique facts of this case. Id.

(66.) See supra note 9 and accompanying text (describing children's island lifestyle). Since the children's daily activities all took place in French Saint Martin, they must be considered habitual residents of it as well as Dutch Sint Maarten. Id. See also supra note 33 and accompanying text (highlighting situation where child may have dual habitual residences). The lifestyle of both A.D. and J.D. fits right into the unique circumstances described by the Ninth Circuit in Mozes. Id.

(67.) See supra note 33 and accompanying text (elucidating way in which child has dual habitual residences). A child who spends his or her time evenly in two places must be considered a resident of each of those places. Id. This should be applicable to either countries or states within a country. Id. Although the Ninth Circuit states in Mozes that this situation is very rare, the situation here is exactly that described. Id.

(68.) See supra notes 32-34, 39-40 and accompanying text (pointing to importance of factually dependent habitual residence analysis). Since the children's lives were so intertwined with both sides of the island, the Court was wrong to deem them habitual residents of only Dutch Sint Maarten. Id. In effect, the Court's ruling legally separated an island whose residents live as if it is but one nation. Id.

(69.) See id. (showing contradiction between various courts on habitual residence analysis). The Third Circuit's conclusion here wrongly interpreted the lifestyle on the island of French Saint Martin and Dutch Sint Maarten. Id. As a result of not adequately taking into consideration the unique nature of the island, the Court incorrectly held that the children were only habitual residents of Dutch Sint Maarten. Id.

(70.) See Didon, 838 F.3d at 316 (stating issue of case). Here, the Court could have stated the issue more concisely and precisely. Id. See Didon v. Castillo, No. 1:15-CV-1586, 2015 U.S. Dist. LEXIS 128077, at *20 (M.D. Pa. Sept. 24, 2015) (stating more accurate issue of case). Although a broad statement of the issue is whether the Hague Abduction Convention allows dual habitual residences, the district court stated the issue more accurately than the Third Circuit. Id. Based on the facts of this case, the Court should have been more concerned with "whether [the] multiple prior residences" the children had in French Saint Martin and Dutch Sint Maarten could constitute a habitual residence. Id. This likely affected the Third Circuit's analysis, and it may have come to a different conclusion if it were to have framed the issue like the district court. Id.

(71.) See supra notes 32-33, 39-40 and accompanying text (describing factually dependent habitual residence analysis). The reasoning of different courts in Mozes, Valenzuela, Karkkainen, and Adan all point to the importance of evaluating the specific facts of each case. Id. The Third Circuit here should have focused more on that type of analysis because of this case's unique set of facts. Id. See also Didon v. Castillo, 838 F.3d 313, 326 (3rd Cir. 2016) (establishing factually dependent framework). The Court even took the time to outline a "fact-intensive" framework for situations just as the one at issue here, but then neglected to apply its own analytical framework. Id.

(72.) See supra note 30 and accompanying text (characterizing majority of case law as favoring one habitual residence). Since the majority of American case law already weighs in favor of supporting the conclusion that a child may have only one habitual residence, the Court missed the perfect opportunity to show the importance of a unique factual situation when analyzing a child's habitual residence. Id. See also supra note 33 and accompanying text (elucidating unique habitual residence situation). There likely may not be a habitual residence case whose facts are as unique as those here for a long time. Id. Therefore, the Third Circuit should have emphasized these special facts to conclude that it is possible for a child to have more than one habitual residence country in a very unique situation such as this. Id.

(73.) See supra note 27 and accompanying text (discussing "liberal interpretation" of Hague Abduction Convention's article thirty-five). The preamble of the Hague Abduction Convention does, however, state that it can still apply even where a country does not recognize it. Id. Although the drafters of the Hague Abduction Convention may have only intended for it to apply in countries that recognize it, a court in a situation such as the one here should follow the "liberal interpretation" of the Hague Abduction Convention's article thirty-five. Id. In not doing so, the Third Circuit discounted the value of the Hague Abduction Convention in protecting children in countries which do not recognize it but who need its protection. Id.

(74.) See supra notes 30-33 and accompanying text (explaining landmark cases on both sides of habitual residence issue). The Third Circuit heavily weighed its common law analysis in favor of cases which support the conclusion that a child may have only one habitual residence. Id. Although this is where the majority of American courts fall on the issue, due to the extremely unique facts of this case, the Court should have focused its analysis on the fewer cases which support the conclusion that a child can, in unique circumstances, have dual habitual residences. Id. If the Court had done this, it would have shown the true value of analyzing the specific facts of each case to determine a child's habitual residence country. Id.

(75.) 838 F.3d 313, 316 (3rd Cir. 2016) (determining whether children may have dual habitual residences).
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Author:Johnston, William C.
Publication:Suffolk Transnational Law Review
Article Type:Case note
Date:Jun 22, 2017
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