A Child’s Habitual Residence

Distressed child looks out the window

Previously, I have written on the topic of a child’s home state under the Uniform Child Custody Jurisdiction (“There is No Place Like Home”).

In that blog post, I noted the difference between the legal concept of “home state” under the UCCJEA and “habitual residence” under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (see this blog post for a basic overview of the 1980 Hague Convention – “International Child Abduction”).

This blog post will address the legal concept of “habitual residence.”

The 1980 Hague Convention

To recap, the 1980 Hague Convention was created to protect children from the harmful effects of being abducted to another signatory country. This is accomplished by securing a prompt return of children wrongfully removed and protecting the rights of custody and access of the left-behind parent.

To secure the return of a child, the left-behind parent must show the child was habitually resident in the country they were removed from, the removal violated their rights of custody or access, and the left-behind parent was exercising custody or access at the time of the removal.

It is important to note that the 1980 Hague Convention creates a provisional remedy—whether the child should be returned—it does not override the UCCJEA, which determines the jurisdiction of the underlying child custody proceeding.

Determination of Habitual Residence

The Supreme Court of the United States has addressed the issue of the Hague Convention a total of five times since the Hague Convention’s creation. The two most recent opinions were delivered in 2020 (Monasky v. Taglieri, 140 S. Ct. 719 (2020)) and 2022 (Golan

v. Saada, 596 U.S. ____ (June 15, 2022) (Op. No. 20-1034)). In the Monasky opinion, SCOTUS addressed the determination of habitual residence.

Prior to the Monasky opinion, each circuit had its own specific test for determining a child’s habitual residence, which is a mixed question of fact and law. Some tests relied on whether there was an agreement between the parties to either abandon or take up a habitual residence.

As a result, the Monasky court took the chance to clarify the circuit splits, holding: “Because locating a child’s home is a fact-driven inquiry, courts must be ‘sensitive to the unique circumstances of the case and informed by common sense.’ Redmond, 724 F.3d at 744. For older children capable of acclimating to their surroundings, courts have long recognized, that facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence. But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus. See Karkkainen, 445 F.3d at 291 (“The inquiry into a child’s habitual residence is a fact-intensive determination that cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case.”).” Monasky, 140 S. Ct. at 727 (2020) (internal footnote omitted).

Thus, the new (universal) test for habitual residence is that “[a] child’s habitual residence depends on the totality of the specific circumstances, not on categorical requirements such as an actual agreement between the parents.” Id. at 719 (2020).

South Carolina International Child Abduction

We have helped parties involved in the 1980 Hague Convention proceedings, which has given us an in-depth understanding of the issues.

Each situation is as emotionally charged as the other, and each is highly technical and requires a deft legal response. As a result, we have experience in litigating 1980 Hague Convention matters involving France, Ireland, Germany, the United Kingdom, Brazil, Guatemala, and Venezuela, in addition to complex custody matters involving several other countries.

Keep in mind, the law provides us with the ability to resolve any number of situations, including highly technical complex issues, with a tailored solution for your specific situation. Please contact us, jlounsberry@spartanlaw.com or adunham@spartanlaw.com if you are faced with an international child abduction or are dealing with a 1980 Hague Convention litigation, and we will be happy to assist you.

With our focused approach, we understand that no two families are alike, so every case should be resolved on an individual basis. Click on Jonathan W. Lounsberry – KD Trial Lawyers or Allison P. Dunham – KD Trial Lawyers to learn more about us.

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