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Habitual residence, changing custody rights, and wrongful retention and removal under the Hague Convention on Civil Aspects of International Child Abduction.

Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013).

International family law, especially in the area regarding international parental child abduction, has become a controversial topic in the recent years. (1) International parental child abduction can be defined as "the unilateral removal or retention of children by parents in violation of the other parent's custody rights." (2) In reaction to the growing rate of parental abductions, the United Nations developed the Hague Convention on Civil Aspects of International Child Abduction in 1980 for the purpose of protecting children from wrongful international removals and ensuring that the abducted children are safely returned to their true habitual residence; nevertheless, a substantial amount of law is left for the judicial system to interpret. (3) In Redmond v. Redmond, (4) the United States Court of Appeals for the Seventh Circuit addressed, as a matter of first impression, whether a change in one parent's custodial rights is sufficient to make the other parent's continued physical custody of the child a putative wrongful "retention" under the Convention. (5) The court held that one parent's continued custody of a child, despite an order granting removal to another country, does not constitute a punitive wrongful "retention" under the Convention when the child remains in his habitual residence. (6)

The parents involved in the custody dispute are Mary Redmond and Derek Redmond, who began a romantic relationship in 1996 while attending college in Ireland. (7) Mary was a dual U.S. and Irish citizen from Illinois, whereas Derek is a citizen of Ireland. (8) In 2006, Mary became pregnant, and the couple agreed that the child would be born in America and raised in Ireland. (9) On March 28, 2007, their son "JMR" was born in Illinois, and after eleven days, they returned to Ireland with the baby. However, in November 2007, their relationship began to deteriorate, causing Mary to move back to Illinois with JMR, who was under eight months old. (10)

Derek had no custody rights under Irish law; therefore, he was unable to seek custody rights under the Hague Convention. (11) It took Derek three and a half years to establish his paternity rights in Ireland, and in February 2011, an Irish court not only approved Derek's request for guardianship and joint custody of JMR, but also ordered that the child live in Ireland. (12) The court allowed Mary to return to Illinois with JMR to make arrangements for their move to Ireland, but only on the condition that she promise under oath to return with her son by March 30, 2011. (13) Unknown to the court, Mary never intended to keep her promise, and stayed in Illinois. (14) Eight months later, Derek filed a petition under the Hague Convention in U.S. District Court in Illinois claiming that Mary wrongfully retained JMR in the United States in breach of his recognized custody rights in Ireland. (15)

The district court held that when Mary disobeyed the Irish Court, JMR's habitual residence was Ireland on March 30, 2011. (16) Despite the fact that JMR lived in the United States for most of his life, the district court gave weight to the parents' initial agreement in which the parents agreed that they would raise their son in Ireland. (17) The court held that because Mary made a unilateral decision to move back to Illinois against the couple's last shared intent, JMR's residence in the United States was only temporary and subject to the results of the Irish guardianship proceeding, thus his habitual residence was Ireland. (18) As a result, the district court held that JMR must be returned to Ireland; consequently, the mother soon appealed to the Seventh Circuit. (19) That court reversed the lower court's decision by concluding that the test for habitual residence is a flexible inquiry that accounts for all relevant evidence and considers individual circumstances, not just the parents' last shared intent. (20) As a result, the Seventh Circuit determined that because JMR's life was too embedded in the United States, it would be erroneous to call Ireland his habitual residence under the Hague Convention. (21)

The Hague Convention on the Civil Aspects of International Child Abduction was implemented as a result of the rising number of international child abductions during parental custody disputes, the subsequent difficulties of locating those abducted children, and the parental incentives to forum shop. (22) In 1976, the Hague Conference on Private International Law discussed the issue, and after extensive research, the Conference decided on a framework that regulated the wrongful retention of a child. (23) The United States implemented the Convention through the International Child Abduction Remedies Act of 1988 (ICARA) and the Intentional Parental Kidnapping Crime Act (IPKA) of 1993. (24)

The Supreme Court and several appellate courts recently decided issues regarding rights under the Convention and whether or not a return of a child renders the issue moot. (25) In the U.S. judicial system, the majority of case law stems from two main issues: custody and habitual residence; however many courts have held the Convention is not for custody purposes. (26) In Barzilay v. Barzilay, (27) the Eighth Circuit refused to apply the Hague Convention at the request of an Israeli father in U.S. federal court to try to enforce a favorable outcome in Israeli court in terms of his custody rights. (28) The court reasoned that "this course of litigation not only betrays a fundamental misunderstanding of the Hague Convention, but is also precisely the sort of international forum shopping the Convention seeks to prevent." (29) Similarly, in White v. White, (30) the Fourth Circuit held that the mother did not wrongfully remove her child because at the time of removal, the father had a right of access as opposed to custody rights. (31) Although the White court did not separately discuss the issue of retention, it made a notable comment that sister signatories to the Convention agree "that orders claiming to adjust custody arrangements after removal or retention do not typically affect rights under Article 3 of the Convention." (32)

Recently, several circuits have issued important decisions in regards to determining habitual residence. (33) The main issue concerning habitual residence is whose perspective controls: the parent's or the child's. (34) A majority of circuits prefer the approach the Ninth Circuit set out in Mozes v. Mozes, (35) in which the court gave more weight to the parent's intent than the child's. (36) Accordingly, more courts use this framework, because as the court in Mozes recognized, in some custody situations, it is crucial not only to look at the shared intent of the parents but also the child's acclimatization in a specific country. (37)

In Redmond v. Redmond, (38) the court discussed whether one parent's change in custody rights affected where the child rightfully lived. (39) The Seventh Circuit began its analysis by clarifying that this case is not about wrongful removal, but rather wrongful retention; therefore, Derek only alleged that Mary wrongfully retained JMR when she failed to return him to Ireland despite the Irish custody order. (40) The court discussed several cases similar to the present case and ultimately determined that even though the Hague Convention's purpose is not to enforce foreign custody orders, Derek still raised the matter of wrongful retention; thus the threshold inquiry in this case was the child's habitual residence. (41) The court noted that there is no definition of habitual residence in the Convention; therefore they applied the case law established in the Seventh Circuit, and decided to phrase habitual residence by its plain and ordinary meaning. (42) Only once the court determines habitual residence can the issue of custody rights be discussed, and usually that will take place in a court in the state of the child's habitual residence. (43) Using its fact-based, case-specific method; the court concluded that when the contended wrongful retention occurred, JMR's habitual residence was Illinois. (44)

The court took a variety of factors into account, including the time spent in Illinois and JMR's everyday activities, to determine that Illinois was JMR's permanent home; thereby reversing the district court's decision. (45) The appellate court reasoned that the district court erred when it gave extensive weight to the parents' last shared intent that JMR would be raised in Ireland and consequently, concluded Ireland to be his habitual residence. (46) The court analyzed several precedential decisions among the circuits that used the different factors, including the parents' intent, child's interest, or a mix of both in order to determine the habitual residence of the child. (47) The Seventh Circuit followed the Ninth Circuit's framework in Mozes, because "the Mozes approach is 'flexible' and takes account of 'the realities of children's and family's lives despite the parent's hopes for the future.'" (48) It rejected the lower court's decision by reasoning that no specific weight should be given to either parental intent or child's acclimatization. (49) The Seventh Circuit finished its analysis by examining the Redmonds' intent; nevertheless it concluded that because Mary had sole custody of JMR under Irish law since his birth, only her intent matters in this case. (50) Taking all this into account, the court held that because JMR was habitually resident in Illinois, Mary did not wrongfully retain him in the United States despite the Irish ruling. (51)

The Seventh Circuit correctly held that Mary did not wrongfully retain JMR, because not only did she have sole custody of her child, but also, his life was firmly embedded in Illinois. (52) The court correctly stated that the purpose of the Hague Convention is not to resolve custody disputes, but to determine whether or not a child was wrongfully removed or wrongfully retained from their habitual residence. (53) Therefore, the court recognized that it was not in the position to resolve parental custody issues or visitation rights. (54) The court appeared to reconcile the anomaly in Derek's position without delving deep in to the custody issue by utilizing the appropriate analysis when presented with a Hague Convention case. (55) It correctly spent most of its analysis on examining the habitual residence issue as a matter of fact because "treating the question of habitual residence as a legal inquiry would misconstrue the Convention as a custody rights enforcement issue." (56) In regards to the court's determination of habitual residence, its reasoning accurately borrowed case law established by other circuits, it reaffirmed the existing law and after thoroughly scrutinizing these preceding cases and weighing different factors, it not only applied the precedent law but also ruled according to the facts and circumstances in this particular case. (57)

The court correctly ruled that JMR's habitual residence was Illinois, after going through all the relevant factors. (58) It would not be fair for JMR to be uprooted from a life he is accustomed to and live in a completely different country that he only has been a few times in his entire childhood. (59) Although it seems reasonable that Illinois was the habitual residence of the child, the Seventh Circuit failed to fully examine JMR's age, which is an important factor currently under debate among courts and scholars. (60) The Seventh Circuit glossed over JMR's age while discussing child's perspective, because while it did mention that other courts have held that a "child lacks the ability to truly acclimatize to a new environment," the court neglected to make the point that JMR's age did not prevent his acclimatization. (61) The appellate court incorrectly assumed that JMR's age was a small fraction of the problem, considering the host of other factors in favor of Illinois; age, however, is a crucial factor to take into account especially because acclimatization hinges on a child's intent. (62) When the court held "JMR's acclimatization overwhelmingly outweighs the last shared parental intent," it should have shown that JMR formed the intent to remain in a specific locale despite his young age instead of just listing several of his daily activities; that would have strengthened a weak point in its argument. (63)

Despite the proper analysis of the Seventh Circuit's reasoning, Chief Judge Easterbrook noted in a dubitante opinion that the Court unsuccessfully addressed important questions. (64) Easterbrook rightly observed that the court overlooked that Mary was initially bound by Irish law, and deliberately disobeyed that judgment when she went to Illinois, which should have disqualified her from petitioning the court. (65) Also, the court's decision that JMR was legally present in Illinois because Mary had sole custody of him under Irish law completely missed the point that under Illinois law, Derek had some custodial rights. (66) Easter-brook was hesitant to dissent, but this unanswered issue poses the possibility of future litigation in which courts will struggle with this puzzling question between states' rights and another country's law. (67)

In Redmond, the Seventh Circuit considered whether a child was wrongfully retained or removed when a non-custodial parent's custody rights changed and the international court that changed the custody rights issued an order demanding the child's return. (68) By determining the court must look at the child's habitual residence as the primary consideration, the Redmond court held that a change in the non-custodial parent's rights did not mean the child was wrongfully removed or retained when the child was in their original habitual residence. (69) While the court employed the correct method in determining the threshold inquiry of habitual residence before examining custody rights under the Hague Convention, it incorrectly declined to evaluate the child's age more extensively. (70) As Chief Judge Easterbrook observed in his dubitante opinion, a future case that involves custody disputes between parents from different countries may not be resolved simply under the Hague Convention. (71) If one parent does not have custody rights in one country, but has custody rights in another, the question may not be a matter that can be solved by federal courts using the Hague Convention, but should be left for custody courts to resolve. (72)

(1.) See Dana Beth Finkey, Note, The Hague Convention on the Civil Aspects of International Child Abduction: Where Are We, and Where do We Go From Here?, 30 Hastings Int'l & Comp. L. Rev 505, 505 (2007) (stating 1000 innocent children abducted from homes and taken to foreign countries annually); Michael R. Walshland & Susan W. Savard, Article, International Child Abduction and the Hague Convention, 6 Barry L. Rev. 29 (2006) (discussing how international child abductions are increasing each year). As of 2006, 11,000 American children are living outside of the United Slates because of parental abductions. Walshland & Savard, supra. According to various statistics, more than 200,000 child abductions occur each year, and as international transportation becomes a norm, international child abductions have increased rapidly. Id.; Saniya O'Brien, Note, The Trials and Tribulations of Implementing the Hague Convention on International Child Abduction: Improving Dispute Resolution and Enforcement of Parental Rights in the International Arena, 35 Geo. Wash. Int'l L. Rev. 197 (2003) (recognizing how opening of world's markets have made family relationships more likely to cross borders). See generally, Melissa S. Wills, Note, Interpreting the Hague Convention on International Child Abduction: Why American Courts Need to Reconcile the Rights of Non-Custodial Parents, the Best Interests of Abducted Children, and the Underlying Objectives of the Hague Convention, 25 Rev. Litig. 423 (Spring 2006) (explaining international child abduction occurring between family members).

(2.) Stephen E. Schwartz, Note, The Myth of Habitual Residence: Why American Courts Should Adopt the Delvoye Standard for Habitual Residence Under the Hague Convention on the Civil Aspects of International Child Abduction, 10 Cardozo Women's L.J. 691, 691 (2004) (defining international child abduction).

(3.) See Finkey, supra note 1, at 505 (articulating main aim of Convention). Under the Convention, "a child is wrongfully removed when taken in violation of the custody rights of another person." Id. Once an international court decides that the child was wrongfully removed, the child must return to their home country where the main issues of the case will be heard. Id. In 1993, there were five published decisions interpreting the Convention. Id. That number has risen by 300 percent between July 2000 and January 2001, because the appellate courts released nine decisions and the district courts published seven decisions. Id. at 508. A number of these cases deal with what habitual residence means and what factors the courts need to examine in order to determine where the child's true habitual residence is. Id. However, many questions have not been answered. Id.

(4.) 724 F.3d 729 (7th Cir. 2013).

(5.) See id. at 740 (explaining issue of case). The court explained that under Hague Convention Article 3,
   the removal or retention of the child is 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. at 737 (citing to article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670). The basic understanding of the Convention's return remedy is "in order for the Convention to apply, the child must have been habitually resident in a Contracting state immediately before any breach of custody ... rights." See Redmond, 724 F.3d at 737 (quoting Department of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10, 494, 10, 504 (Mar. 26, 1986).

(6.) See Redmond, 724 F.3d at 740 (discussing holding of case).

(7.) Id. at 729 (stating how parents met).

(8.) Id. at 732 (describing citizenship status and relationship of each parent). After completing her associate's degree, Mary remained in Ireland. Id. The couple continued living together for almost a decade, but they never got married. Id. Their shared last name happens to be a coincidence. Id.

(9.) Id. (commenting on parent's plan for their child).

(10.) See Redmond, 724 F.3d at 732 (discussing reasons why Mary left). Mary claimed Derek had an alcohol problem and she alleged abuse. Id.

(11.) See id. at 732 (explaining Irish custody laws). In Ireland, the natural father of a child born with unmarried parents has no parental rights. Id. Under Irish law, the unmarried mother of a child will be the guardian, and the definition of father in Irish law does not include illegitimate fathers. Id. An unmarried father may petition a court for the recognition of paternity and guardianship, and if the paternity is recognized, the father may be able to gain custody of the child. Id.

(12.) Id. at 733 (describing Irish court's decision). During the three-year period, Mary occasionally came to Ireland to participate in Derek's hearings. Id. At the same time, Mary filed her own petition in Irish court to relocate with JMR to the United States permanently. Id. JMR throughout this time period lived with Mary in Illinois, and had spent over three years of his life in Illinois. Id at 733. Between November 2007 and February 2011, he spent about ten and a half non-consecutive weeks in Ireland. Id.

(13.) Id. at 734.

(14.) Redmond, 724 F.3d at 734 (noting Mary never intended to keep her promise).

(15.) Id. (discussing steps both Mary and Derek took to establish custody). When Mary returned to Illinois, she petitioned the court in Cook County, Illinois for sole custody. Id. Derek moved to dismiss the petition for lack of jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act. Id. The Illinois state court judge declined to exercise jurisdiction over Mary's petition. Id. At this point, Derek could have tried to get the state court to enforce the Irish decree, but instead he chose to file a Hague Convention petition. Id. Derek argued that Mary wrongfully retained JMR in the United States when she did not return JMR to Ireland. Id.

(16.) See id. (stating district court's ruling).

(17.) Id. at 731 (discussing district court's holding).

(18.) Redmond, 724 F.3d at 731 (describing district court's reasoning).

(19.) Id. (explaining district court ruling).

(20.) Id. at 732 (stating appellate court's holding).

(21.) Id. (explaining reason JMR's habitual residence is United States).

(22.) See Caitlin M. Bannon, Note, The Hague Convention on the Civil Aspects of Child Abduction: The Need for Mechanisms to Address Noncompliance, 31 B.C. Third World L.J. 129, 133 (Winter 2011) (highlighting increased opportunities for international travel); O'Brien, supra note 1 (discussing increasing interconnectedness between nations); Schwartz, supra note 2, at 694 (stating difficulty in locating abducted children due to lack of enforcement of foreign custody orders). The lack of enforcement created the incentives for parents to forum shop. Schwartz, supra note 2, at 695. Two incentives for forum shopping were: a new forum could find a different outcome without enforcing a prior judgment and there were various standards between countries in terms of custody jurisdiction. Id These differing standards included: child's physical presence; the child's domicile; the physical presence and domicile of the parents; or the continuing rights in a court after deciding an initial decree. Id.

(23.) See O'Brien, supra note 1, at 198 (addressing how a uniform standard proved difficult and noting number of ratified countries); Schwartz, supra note 2 (stating when United States implemented Convention). Until 2007, including the United States, there were seventy seven countries that approved the Convention. O'Brien supra note 1, at 198. See generally Walshland & Savard, supra note 1, at 32 (describing "catches" in regards to Convention). Relief is only available under the Convention when the child was wrongfully removed from one signatory country and retained in another signatory country. Id., at 32. The child also must be under 16. Id.

(24.) See Finkey, supra note 1, at 307 (discussing United States amendments). See also Sarah J. Bass, Note, Ne Exeat Clauses Proven Ineffective: How the Hague Convention Renders Access Rights Illusory, 29 N.C.J. Int'l L. & Com. Reg. 573, 578 (Spring 2004) (stating when United States ratified Convention). Congress implemented the Convention under ICARA in order "to establish legal rights and procedures to return a child who has been wrongfully removed." Bass, supra at 579. Congress recognized that children who are removed are deprived of having stable family relationships and the only way to help children regain those relationships is by having a uniform interpretation of the Convention. Id. According to Article 3 of ICARA:
   [A] parent seeking the return of his or her child should petition a
   court in the contracting state to which the child has been taken
   for the child's return, and must show that; 1) the child was
   'habitually resident' in the jurisdiction immediately before
   removal; 2) the removal was in breach of rights of custody of the
   person, an institution, or any other body; and 3) those rights were
   actually exercised at the time of removal or would have been so
   exercised in absence of his removal.

Id. at 580.

(25.) See Schwartz, supra note 2, at 692 (stating there is no uniform standard for deciding habitual residence). Under the Convention, the job of setting the habitual residence standard is left up to the member states. Id. In the United States, the Supreme Court has yet to take up the issue; it has left it to the appellate courts to interpret the law. Id. There needs to be a uniform standard, because it would help solve several problems such as: forum shopping, compliance with parents' mutual intentions, determination of habitual residence for children of all ages, and prevention of kidnapping. See id. at 693 (advocating for uniform standard for habitual residence); see also Finkey, supra note 1, at 509 (commenting on custody rights). The Convention defines "rights of custody" as the right to determine the child's place of residence. Finkey, supra note 1, at 509. Whereas international courts define custody rights broadly, the United States in recent years, has departed from the International Standard. Id. at 510. For example, in 2002, the U.S. Court of Appeals for the Second Circuit decided a case that radically departed from the international custom. Id. See Croll v. Croll, 229 F.3d 133 (2nd Cir. 2002) (holding non-custodial parent did not have custody rights just because custodial parent could not leave area); see also Chafin v. Chafin, 133 S. Ct. 1017 (2013) (determining that after child returns, an appeal is not moot); see generally Deborah M. Huynh, Note, Croll v. Croll: Can Rights of Access Ever Merit A Remedy of Return Under the Hague Abduction Convention?, 26 N.C.J. INT'L L. & COM. REG. 529 (Spring 2001) (analyzing Croll decision).

(26.) See Finkey, supra note 1 (discussing case trends in United States law); see also Koch v. Koch, 450 F.3d 703, 711 (7th Cir. 2006) (explaining action under Convention is not action to determine merits of custody rights); Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004) (holding Hague Convention is an anti-abduction treaty); Karkkainen v. Kovalchuk, 445 F.3d 280, 297 (3rd Cir. 2006) (stating Convention's procedures are not to settle international custody battles).

(27.) 600 F.3d 912 (8th Cir. 2010).

(28.) Id. (declining to order return of child under ICARA). Two Israeli parents lived in Missouri for many years with their three children. Id. at 914-195. The parents divorced and the father returned to Israel. Id. at 915. When the mother and children returned to Israel for a visit, the Israeli court decreed that not only was Israel the children's habitual residence, but that the father had custody rights. Id. The mother returned to the United States with the children and refused to send them back to Israel. Id. The father claimed this was a wrongful retention. Id. He used a previous Missouri divorce proceeding as well as the Israeli decision to claim Israel was the true habitual residence. Id. at 916. The court disagreed, and decided that Missouri was the children's habitual residence. Id.

(29.) Barzilay, 600 F.3d at 922

(30.) 718 F.3d 300 (4th Cir. 2013) (affirming lower court ruling that mother's rights were not breached).

(31.) See id. (discussing White holding). A husband and wife living in Switzerland with their son separated and the mother received custody rights while the father received visitation rights. Id. at 304-305. The mother and her son moved to the United States. Id. The father sought a Hague Convention petition in order for his son to be returned to Switzerland. Id. During this time, the Swiss court changed the father's custody status giving him legal custody and the mother visitation rights. Id. Both the district court and appellate courts held that removal was not wrongful in those circumstances. Id. at 306.

(32.) White, 718 F.3d at 307 (noting change in custody will not affect Hague Convention rights).

(33.) See Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993) (holding in order to determine habitual residence court must focus on child not parents). Here, the past experiences of the child were examined, not the future intention or shared intent of the parents. Id. at 1401; see also Kijowska v. Haines, 463 F.3d 583, 586 (7th Cir. 2006) (explaining how to determine habitual residence); Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995) (ruling child's habitual residence is where he has been physically present for sufficient amount of time). See generally Katherine V. Hung, There's No Place Like Home. Determining Habitual Residence: Feder v. Evans-Feder, 26 GA. J. INT'L & COMP. L. 487 (1997) (commenting on Feder v. Evans-Feder)-, Gregory A. Splagounias, Comment, International Child Abduction--Habitual Residence Under Hague Convention Equated with Ordinary Residence, Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993), 18 SUFFOLK TRANSNAT'L L. REV. 823 (1995) (analyzing Friedrich decision).

(34.) See Karkkainen, 445 F.3d at 297 (3rd Cir. 2006) (examining how to balance shared parental intent and child's acclimatization).

(35.) 239 F.3d 1067 (9th Cir. 2001).

(36.) Id. at 1074 (explaining child's habitual residence is where parents jointly intend to raise child and where child actually lives).

(37.) Id. at 1078 (discussing balance between child's and parents' perspectives). The Mozes court said that "a child's life may become so firmly embedded in the new country as to make it habitually resident even though there be lingering parental intentions to the contrary." Id.

(38.) 724 F.3d 729 (7th Cir. 2013).

(39.) 39. Id. at 740 (discussing where JMR should live).

(40.) See id. at 738-740 (acknowledging issue in case). This is not a typical use of the Hague Convention because courts generally do not want to get involved in international custody disputes. Id. Derek's use of the Hague Convention to enforce his custody rights may be allowed under an expansive use of wrongful retention; however the court questions this broad view. Id.

(41.) See id. at 738-742 (analyzing case law); see also Barzilay, 600 F.3d at 916 (declaring purpose of Hague Convention is not to enforce custody rights); White, 718 F.3d at 300 (concluding Swiss custody order issued two years after child's removal was not wrongful under Hague Convention). Wrongful removal or retention only can be understood in conjunction with habitual residence since they can only occur if the child has been taken away from his or her habitual residence. Redmond, 724 F.3d at 742. The child remaining in their country of habitual residence is the underlying purpose of the Hague Convention, because the child's interests are best taken care of by staying there. Id. If a child is not removed or retained away from his or her habitual residence there is no parent "left-behind" to complain about the wrongful move, because that is where the child legally belongs. Id.

(42.) See id. at 743 (quoting Mozes decision). "Determining a child's habitual residence thus requires an assessment of the observable facts on the ground, not an inquiry into the child's or parent's legal status in a particular place." Id. See also Kijowska, 463 F.3d at 586 (highlighting how to determine habitual residence); Koch, 450 F.3d at 712 (highlighting difficulty in defining habitual residence).

(43.) See Redmond, 724 F.3d at 743 (discussing whether habitual residence precedes custody).

(44.) See id. (holding habitual residence of child is Illinois).

(45.) See id. (highlighting some factors court considered in determining habitual residence). The court determined JMR was born in Illinois and, that except for the first seven months of his life, lived in Illinois. Id. That means he had lived in Illinois for approximately 80 percent of his life. Id. The court did stipulate that "it is true the length of time a child has spent in one place is not dispositive and must be considered with care." Id. However, not only can the length of time be a factor but also how JMR lived his life in Illinois can be a determinant. See id. "JMR had frequent contact with his extended family in Illinois; he received regular care from an Illinois pediatrician and an Illinois dentist; he went to daycare, pre-school, and church ...; he had neighborhood friends and played on children's baseball team in the area." Id. But see Kijowska, 463 F.3d at 587 (holding parent cannot create new habitual residence by wrongfully removing child). In the present case, however, Mary's removal of JMR was not wrongful under the Hague Convention or Irish law. Redmond, 724 F.3d at 743.

(46.) See id. at 744 (discussing weight placed by district court on parents' last shared intent). District court's reliance on parents' last shared intent was "misplaced," the Appellate court held." Id. Though many Hague Convention cases use "last shared intent" as a crucial factor in determining habitual residence, but "the habitual residence inquiry remains a flexible one, sensitive to the unique circumstances of the case and informed by common sense ... the parents' last shared intent is one fact among others...." Id.

(47.) See Friedrich, 983 F.2d at 1401 (holding court must focus on child not parents when determining habitual residence); Feder, 63 F.3d at 244 (concluding habitual residence has degree of settled purpose from child's perspective); Barzilay, 600 F.3d at 918 (holding settled purpose must be viewed from child's perspective); Mozes, 239 F.3d at 1074 (emphasizing importance of parental intent when determining child's perspective).

(48.) See Redmond, 724 F.3d at 746 (quoting Koch).

(49.) Id. at 746 (rejecting lower court's reasoning). There is no precedent that allows the district court to give that much weight to the parents' last shared intent. Id. While shared intent can be a good starting point, especially when a child is unable to acclimatize to a new surrounding, there is no fixed test. Id. at 746.

(50.) See id. at 746-47 (discussing Redmonds' intent). Shared intent makes more sense when both parents have the legal right to the child; however, shared intent has less weight when only one parent has the right to determine the child's place of residence. Id. at 747. When wrongful retention occurred, "JMR's life was in Illinois, and legitimately so." Id.

(51.) Id. (discussing holding).

(52.) See Redmond, 724 F.3d at 747 (explaining holding).

(53.) See id. at 737 (explaining purpose of Hague Convention); see also Koch, 450 F.3d at 711 (explaining an action under Convention is not action to determine merits of custody rights); Holder, 392 F.3d at 1013 (holding Hague Convention is anti-abduction treaty); Karkkainen, 445 F.3d at 297 (dismissing idea of Convention's procedures as mechanism for settling international custody battles); Finkey, supra note 1, at 509-10 (emphasizing what Convention provides in terms of custody). "The Convention provides that a child is wrongfully removed or retained only if the wrongful removal or retention results in a breach of rights of custody.... The Convention defines 'rights of custody' as the right to determine the child's place of residence." Finkey, supra note 1, at 509-10; Schwartz, supra note 2, at 692 (explaining process of Convention litigation). If the child is wrongfully removed, then the child is returned to their habitual residence. Schwartz, supra note 2, at 692. It is only the courts in the habitual residence that can settle the custody dispute. Id.

(54.) See Redmond, 724 F.3d at 737 (rejecting notion of Hague Convention as tool to resolve custody disputes); see also Schwartz, supra note 2, at 692 (describing custody case in habitual residence). "The venue of the eventual custody dispute is the state of the child's habitual residence." Id. at 692.

(55.) See Redmond, 724 F.3d at 738 (examining questions asked in Hague Case). The court said that:
   [A] Hague Convention petition asks the following questions in this
   order: (1) When did the removal or retention of the child occur?
   (2) In what State was the child habitually resident immediately
   prior to the removal or retention? (3) Was the removal or retention
   in breach of the custody rights of the petitioning parent under the
   law of the State of child's habitual residence? and (4) Was the
   petitioning parent exercising those rights at the time of unlawful
   removal or retention?

Id.. See also Karkkainen 445 F.3d at 280 (quoting process).

(56.) Redmond, 724 F.3d at 743; see Savard & Washland, supra note 1, at 32-33 (discussing habitual residence as threshold determination); Schwartz, supra note 2, at 692 (commenting on notion of habitual residence as threshold inquiry). Habitual residence is the primary concern because the child's state of habitual residence controls several aspects of not only the Convention proceeding, but also the impending custody dispute. Schwartz, supra note 2, at 692.
   A HCCAICA [Hague Convention on the Civil Aspect of International
   Child Abduction] case is brought in the court of the physical
   location of the child at the time of the proceedings. If the child
   is located in the state of the child's habitual residence at the
   onset of a HCCAICA case, then the child remains in that state and
   there is no further inquiry. If the child is not located in the
   state of the child's habitual residence, then the court looks to
   the substantive law of the state of habitual residence to determine
   whether the child was wrongfully removed or retained. If the child
   is wrongfully removed or retained they are returned to the state of
   habitual residence.


(57.) See Redmond, 724 F.3d at 744 (explaining Redmond court's approach to determination of habitual residence). The habitual residence analysis takes into account a variety of factors including parent's perspective and child's perspective in relation to the facts and circumstances of the particular case. Id.

(58.) See id. at 743 (concluding, through fact-based approach, JMR habitually resided in Illinois).

(59.) Id. (noting short time JMR actually lived in Ireland). He spent three out of four years living in Illinois. Id. His ties to Ireland were not strong because he only spent about ten weeks in Ireland on and off for court proceedings. Id. As the District Court stated, "[t]hese facts [about JMR's life in Illinois,] coupled with the passage of nearly three and a half years of very early childhood, suggest that JMR is happy and well adjusted to his life in Illinois." Id.

(60.) See Schwartz, supra note 2, at 698-99 (addressing relationship between child's age and habitual residence inquiry). Courts will use the ages of a child to determine what elements they should consider in regards to the habitual residence inquiry. Id. at 698. Different elements are used for the three main age groups of neonates, infants, or older children. Id. at 698-99. Using a Third Circuit standard, "a neonate is a newborn child, while an infant is older than a neonate." Id. at 693. "A child is a neonate from birth to around six months and an infant from six months until four years." Schwartz, supra note 2, at 693. "The court determines the classification of the child's age and maturity on a case-by-case basis." Id..

(61.) See Redmond, 724 F.3d at 746 (quoting Karkkainen).

(62.) See Schwartz, supra note 2, at 699 (describing age, intention, and acclimatization). Neonates and infants "have no ascertainable intentions regarding habitual residence ... [and a] child would be hard pressed to communicate the rationale for moving to a particular location." Id. Acclimatization hinges on these communicable reasons for staying in a specific place because, "[a]cclimatization is the process of forming the intent to remain in a particular locale, through which the child establishes connections and community ties." Id.

(63.) See Redmond, 724 F.3d at 747 (determining habitual residence was Illinois from JMR's perspective).

(64.) See id. at 748 (Easterbrook, C.J., dubitante) (recognizing unanswered questions in court's reasoning).

(65.) Id. When Mary went back to Illinois, she broke her promise to the Irish court. Id. Her broken promise now makes her a "fugitive from justice" in Ireland. Id. Because she is a fugitive in one country, she is barred from receiving "favorable treatment by the judiciary of any state or nation." Id.

(66.) See id. (recognizing that Derek had rights in United States). Under Illinois law, an acknowledged father has some custodial rights, even if he is not married to the mother. Id. at 749. Illinois could rule that Mary's actions violated Derek's parental rights as "Illinois understands those rights, though not as Ireland understands them. And if Illinois would deem JMR's presence in Illinois unlawful, how can the time he spent in Illinois count toward acquiring "habitual residence" in Illinois?" Id.

(67.) Id. "[T]he result is an opinion that discusses a subject that may matter to other cases ... without considering a potentially vital issue." Id.

(68.) See Redmond, 724 F.3d at 740 (discussing issue of case).

(69.) See id. at 742 (explaining Redmond holding).

(70.) See supra notes 61-62 (addressing court's failure to fully consider child's age).

(71.) See id. at 749 (Easterbrook, C.J., dubitante) (expressing need for subject's return to "domestic-relations apparatus").

(72.) See id.
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Author:Torto, Melissa
Publication:Suffolk Transnational Law Review
Date:Jan 1, 2014
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