Changed My Mind — Moving Back to the United States from Abroad

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
www.foxrothschild.com

My Country or Yours? Part Two: Litigating Hague Convention Claims

The Hague Convention is an international treaty that many countries have ratified, including the United States. The treaty prohibits parents from wrongfully removing and/or retaining a child from his or her home country. In order to seek relief under the convention, both the child’s home country and the country where the child was taken must be signatories to it. 

As discussed in a previous blog entry, you may file your Hague Petition in federal or state court. It is your choice. 

In order to prevail to have the children returned to their original home country, the petitioner must prove his or her prima facie case by a preponderance of the evidence.  In the 3rd U.S. Circuit Court of Appeals, it has been held that the prima facie case involves four questions:

• What was the date of wrongful removal or retention?
• Did the parent that was left behind have custody rights of the child at the time of wrongful removal or retention?
• Was the parent that was left behind exercising his or her custodial rights at the time of wrongful removal or retention?
• Which country was the place of habitual residence at the time of wrongful removal or retention?

Date of Wrongful Removal or Retention

The date of wrongful removal or retention is the date that the parent that was left behind knew or should have known that the parent took the child from the original country or that the parent was not returning the child to the original country. This date establishes the cut off date for evidence of a child’s habitual residence. If the Hague trial does not go forward for several months or longer, the leaving parent does not reap the benefits of continued actions to attempt to change the child’s habitual residence. The court will not consider any actions after the date of wrongful removal or retention.

Custodial Rights at the Time of Wrongful Removal or Retention

Whether a parent had custody rights at the time of the wrongful removal or retention requires evidence of the law of the country to which the parent that was left behind resides.  In a recent Hague case that I successfully tried, we asked the left behind parent’s legal counsel to testify as an expert witness via telephone regarding the custody law for Australia. In many countries, simply being the child’s parent provides important custody rights, even if there has been no litigation regarding the issue.

Exercising Custodial Rights at the Time of Wrongful Removal or Retention

The next question is whether a parent was exercising his or her custody rights at the time of the wrongful removal or retention.  This question is very broad in scope.  The key custody question does not involve physical custody, but rather legal custody.  Unless a parent specifically rejects custody of a child, the left behind parent will satisfy this requirement. 

Country of the Child’s Habitual Residence

The final question that a court must answer in a Hague case is what was the child’s country of habitual residence at the time of the wrongful removal or retention. Because this is a complex question, it will be the subject of a later blog entry.

Summary

Once the petitioner successfully answers the above questions by a preponderance of the evidence, the burden will shift to the petition to show why the children should not be returned. If no adequate reason is raised to keep the children in the new country, then the court must order that the children must return to the original country.

Judy McIntire Springer
Fox Rothschild LLP
www.foxrothschild.com