I recently encountered an issue where a child who was raised in the United States moved with the parents to another country for 11 months. For one of the 11 months, the mother and the child returned to the United States for a visit. Now, the mother is in the United States with the child for another visit, and they do not want to return to the foreign country where the father is located.
The first question that I asked and answered was whether the foreign country is a signatory to the Hague Convention, which it is. Because it is a signatory, the next question is what is the child’s country of habitual residence?
This is where the situation is interesting. If the parties intended to move to the foreign country and stay there, and if the child has become acclimatized to the country, then the foreign country has likely become the country of habitual residence. To determine whether a child is acclimatized to the new country, the courts consider factors such as whether the child speaks the language, whether the child has friends, how involved in activities the child is and whether the child has traveled in the foreign country. In this most recent issue presented to me, although it appears that the parties may have intended to move to the foreign country for a long-term basis, the child does not speak the language, the family kept items in storage in the United States, the family rented an apartment abroad instead of purchasing a home and the child attended an international school with more transient students.
In light of these facts, it appears that the mother will have a strong argument that the Hague Convention does not apply because the United States, where the child is located, is the child’s country of habitual residence. The argument is that the habitual residence never changed from the United States where the child was raised and went to school. Interestingly, even if the Hague does apply, the mother would likely be able to present the defense that the child does not want to return because the child is fifteen which is old enough for the judge to interview and for the child to have an understanding and opinion regarding where the child resides.
Judy McIntire Springer
Fox Rothschild LLP