Monica Welker, Associate Member, University of Cincinnati Law Review
Introduction
In 2000, Americans were glued to news outlets, following the story of Elián González. The previous November, the then-five-year-old escaped from Cuba on a raft with his mother, who drowned while attempting to flee Fidel Castro’s Cuba. His mother’s relatives in Miami were caring for him, but his father, in Cuba, wanted him back. It culminated with an FBI raid of his relatives’ home, and his forced return to Cuba.[1]
The international community sought to avoid child custody cases resorting to this type of international drama through the 1980 Hague Convention on Civil Aspects of International Child Abduction (“Convention”).[2] Its signatories agreed to discourage abduction in international custody disputes.[3] Under the Convention, a child should be retained in or returned to the child’s “habitual residence” to follow the rights of custody of that nation.[4] By design, the Convention did not define a habitual residence. The Convention’s accompanying report explained that “habitual residence” is a well-established concept and a “question of pure fact.”[5] The Convention wanted the courts to take the phrase at face value, and not to be influenced or defined by some domestic law statutes.[6] Therefore, it hoped the courts would adopt a flexible standard based on the factual meaning of the words “habitual residence.”[7]
This lack of clarity regarding how to determine the child’s true “home” has led to differing opinions over how to interpret the Convention and the equivalent U.S. statute enshrining it into U.S. law. This is problematic, as Judge Kozinski of the Ninth Circuit opined, “without . . . consistency in [the Convention’s] application, parents are deprived of crucial information they need to make decisions.”[8]
Of all the methods available to determine a child’s habitual residence, the most reliable is that of the child’s perspective. It is the least complicated and produces the most logical conclusions.
Background
The Convention was created in 1980, and the United States signed onto it in 1981. It was codified in 1988 as the International Child Abduction Remedies Act (ICARA).[9] Procedurally, aggrieved parents who are citizens of signatory nations to the Convention can file a “petition for return” with their home nation’s central authority designated to handle cases arising under the Convention. This initiates a lawsuit in the nation where the child resides at that time. The first task of the court is to determine the child’s habitual residence, as that is where the child should be returned for a final custody determination. Unfortunately, The Convention and ICARA never defined “habitual residence” which has led to a split of opinion among United States circuit courts over how to determine a child’s habitual residence.
How Is A Child’s Habitual Residence Determined?
The Convention was deliberately vague to encourage a case-by-case analysis, and ICARA adopted the “habitual residence” language without further defining it.[10] The Ninth Circuit wrote that over time, courts would develop a standard for determining how to apply ICARA.[11] This has not happened. While the circuit courts reference each other, two broad standards have emerged.
The first is the child perspective approach. In this approach, a court determines the habitual residence primarily from the point of view of the child. This is not to say that a small child is asked to identify his habitual residence, but instead, an inquiry is conducted to determine the child’s degree of adjustment, and where his ordinary residence appears to be This approach is favored by the British courts and the Third, Fourth, Sixth and Eighth Circuits. The Seventh Circuit remains split on this issue.[12]
The second approach is the parental intent approach. It was first suggested in Mozes v. Mozes, and followed by the Second, Ninth and Eleventh Circuits. In this approach, a court looks at the parents’ last agreed upon habitual residence for the child. A child’s acclimation to an area is only a secondary consideration.
The two approaches are not mutually exclusive. Later cases often incorporate both and indicate which approach should take precedent.[14] Further evidence of the intersection of the two approaches lies in their agreement on what other factors should be considered when determining a child’s habitual residence. Both approaches agree that, in order for a child’s habitual residence to change, there must be both a change in geography and a passage of time to allow for acclimatization.[15]
The Child Perspective Approach
In Re: Bates, a famous British custody case involving a member of the band Duran Duran, the Royal Court of Justice established a definition that many US courts have cited.[16] It began its discussion of habitual residence by holding that there is no difference between an ordinary residence and a habitual residence.[17] The court quoted Shah v. Barnet London Borough Council, another British case, saying, “All that the law requires is that there is a settled purpose.”[18] This demonstrates that the earliest approaches to the matter were based on the ordinary, settled residence of the child and had no interest in developing a test based on anything else.
The first federal United States case to reach the appellate level was Friedrich v. Friedrich.[19] There, the court ruled that when determining habitual residence, a court “must focus on the child, not the parents, and examine past experiences, not future intentions.”[20] In other words, if a child is settled in Country A after a move, but her mom always intended for the family to return to Country B after two years, the child’s habitual residence is Country A.
Feder v. Evans-Feder was a Third Circuit case in 1995 that cited Friedrich and emphasized that a change in a child’s habitual residence could only be altered by a change in geography and the passage of time, not by changes in parental affection and responsibility.[21] This makes clear that the child’s perspective is given more weight than the parents’ intent in the Third Circuit.
Parental Intent Approach
The Mozes opinion inspired many courts to consider the parent’s intent as the dispositive factor when considering a child’s habitual residence. Reaching across the pond, Judge Kozinski explored Shah, where the court connected the “settled purpose” with an intent to settle in a particular habitual residence.[22] After reasoning that a settled purpose requires intent, Mozes ruled that the parents’ intent is superior to the child’s perspective, primarily due to the child’s immaturity.[23]
The Eleventh Circuit decided to use the parental intent approach in Ruiz v. Tenorio.[24] The per curiam opinion wrote that “the opinion of Judge Kozinski in Mozes is not only the most comprehensive discussion of the [determining habitual residence] but [it] also sets out the most appropriate approach.”[25]
Circuits that use the parental intent approach encourage examining the parents’ actions regarding resettling elsewhere. They look to whether the parents sold their old property, the type of visas they obtained in the new potential habitual residence, their understanding when they moved, and their last shared intention for their child. It puts more emphasis on the parents’ actions because uncovering how hesitant a parent was about moving abroad is difficult to prove. Selling property, however, is an objective sign that someone intends to be gone for quite some time.[26]
Discussion
The disagreement between the circuits centers on whether the child’s perspective or the parent’s last shared intent should be the dispositive factor when a court rules on a case. It might first be instructive to explore the plain meaning of the words “habitual residence.” Merriam Webster defines “habitual” normally as an action, but its third definition seems applicable. It reads “resorted to on a regular basis.”[27] Residence is defined as “the act or fact of dwelling in a place for some time.”[28] Reading these definitions together, the plain meaning of habitual residence is the fact of dwelling in a place for some time on a regular basis.
Although Kozinski found the child perspective approach flawed because it relied on the mental state of an immature child, his contention is not supported with any evidence. The child perspective approach merely seeks to determine where the child is most settled, not his subjective desires. It takes into account his friends, his school, his contacts, and where he is acclimated.
However, the proponents of the child perspective approach have found several problems with the parental intent approach. In Stern v. Stern, the court wrote that the Mozes approach undervalued the acclimation and perceptions of the child, who is the very focus of the Convention.[29] The Sixth Circuit was more specific in its criticism of Mozes, saying it “made seemingly easy cases hard and reached results that are questionable at best.”[30] It cited the Eleventh Circuit’s decision in Ruiz, where children that had lived primarily in Mexico almost four years had their habitual residence in the US because their parents had never agreed on their intent to stay in Mexico long term. They reached this conclusion despite their parents selling property, enrolling the children in school, and moving their belongings to Mexico.[31] The children’s perspective would have kept the children in Mexico, where they habitually resided.
The Mozes opinion is not without merit. It helps to clarify habitual residence with a hypothetical: what if a child is away at a two-month summer camp?[32] From the child’s perspective, the camp could potentially be his habitual residence. However, this hypothetical fails when one examines it from the passage of time element of determining a child’s habitual residence, as two months is not enough to make a new place one’s habitual residence unless one has nowhere else to go because one has sold their property and moved all of one’s belongings.
Overall, the biggest advantage to the child perspective approach is its position as the first opinion put forth by a U.S. court. The United States and British cases previously prioritized the child’s perspective when determining habitual residence. Mozes deviated from these precedents, an thus creating unnecessary confusion.
Conclusion
Of the fifteen cases most cited in US circuit courts, only four use the parental intent approach, while the rest use the child perspective approach. This is likely because the child perspective approach is most likely to identify the best interest of the child. The Supreme Court has not yet granted certiorari on a case specifically dealing with habitual residence. Should it choose to, the wealth of definitions it has to choose from among the circuits should hopefully result in a decision that reflects the child’s perspective.
[1] Rick Bragg, The Elian Gonzalez Case: The Overview; Cuban Boy Seized by U.S. Agents and Reunited with his Father, New York Times, April 23, 2000, http://www.nytimes.com/2000/04/23/us/elian-gonzalez-case-overview-cuban-boy-seized-us-agents-reunited-with-his-father.html?mcubz=3.
[2] Hague Convention on the Civil Aspects of International Child Abduction, Oct. 15, 1980, Preamble, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49. [hereinafter Hague Convention]
[3] Id. arts. 1-2.
[4]Id., art. 3.
[5] Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention (official English translation), ⁋66, 1982. [hereinafter Perez-Vera Report]
[6] Linda Silberman, Brigitte M. Bodenheimer Memorial Lecture on the Family: Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1064 (2005) (Professor Silberman was a part of the team that adapted the Convention into US law).
[7] Mozes v. Mozes, 239 F. 3d 1067, 1072 (9th Cir. 2001).
[8] Id.
[9] 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, 3326 (2009).
[10] supra n. 6.
[11] Mozes, 239 F. 3d 1072.
[12] Sorenson v. Sorenson, 559 F. 3d 871, 873 (8th Cir. 2009), Robert v. Tesson, 507 F. 3d 981, 989 (6th Cir. 2007), Miller v. Miller, 240 F. 3d 392, 400 (4th Cir. 2001).
[13] Gitter v. Gitter, 396 F. 3d 124, 131 (2nd Cir 2005), Ruiz v. Tenorio 392 F. 3d 1247, 1252 (11th Cir. 2004).
[14] Feder v. Evans-Feder, 63 F. 3d 217, 224 (3rd Cir. 1995).
[15] Barzilay v. Barzilay, 600 F. 3d 912, 919 (8th Cir. 2010), Gitter v. Gitter, 396 F. 3d 124, 139 (2nd Cir 2005).
[16] Mozes, 239 F. 3d at 1073-1074.
[17] Re: Bates, No. CA 122.89, High Court of Justice, Family Div’n Ct. Royal Court of Justice (UK 1989).
[18] Id. quoting Shah v. Barnet London Borough Council and other appeals, 1 All E.R. 226, 233 (Eng. H.L. 1983)
[19] Friedrich v. Friedrich, 983 F. 2d, 1398, 1401 (6th Cir. 1993).
[20] Id. at 1401.
[21] 63 F. 3d at 222.
[22] Mozes, 239 F. 3d at 1073-1074.
[23] Id., at 1076.
[24] Ruiz v. Tenorio, 392 F. 3d 1247, 1252 (11th cir. 2004).
[25] Id.
[26] Gitter, 396 F. 3d at 132.
[27] Habitual, Merriam-Webster (online ed.) (Sept. 27, 2017), https://www.merriam-webster.com/dictionary/habitual.
[28] Residence, Merriam-Webster (online ed.) (Sept. 27, 2017), https://www.merriam-webster.com/dictionary/residence.
[29] 639 F. 3d 449, 452 (8th Cir. 2011).
[30] Robert v. Tesson, 507 F. 3d 981, 991 (6th Cir 2007).
[31] Id. [see supra, note 24.]
[32] Mozes, 239 F. 3d at 1074.
