How to Determine a Child’s Habitual Residence Between Two Countries

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How does a court determine a child’s residence between two countries? In 2020 the United States Supreme Court resolved that issue in reference to the 1980 Hague Convention which determines a child habitual residence in the event of a international dispute between parent residence of two countries. Here is how.

To make a finding about a child’s habitual residence under the 1980 Hague Convention, courts must look to the totality of the circumstances. An existing parental agreement which chooses the child’s residence is not the final arbitrator. According to the U.S. Supreme Court, “No single fact . . . is dispositive across all cases” Monasky v. Taglieri, 140 S. Ct. 719 (2020). “A child’s habitual residence depends on the totality of the circumstances specific to the case.” Id.

In reviewing the totality of the circumstances, some factors a courts can look at include:

  • the intentions and circumstances of caregiving parents, especially if the children are very young
  • whether the child has lived in one place with its family indefinitely
  • whether a caregiving parent was coerced into remaining in a place
  • whether the parents have made their home in a particular place

While not comprehensive, other factors to consider include

  • a change in geography combined with the passage of an appreciable period of time
  • the age of the child
  • the immigration status of the child and parents
  • academic activities
  • social engagements
  • participation in sports programs and excursions
  • meaningful connections with people and places in the child’s new country
  • language proficiency
  • the location of personal belongings

On this issue, a court’s determination of habitual residence is subject to a deferential clear-error standard of review by an appeals court. The Court looked at a case involving two parties who were married in the United States and then moved to Italy. The parent’s marriage deteriorated while in Italy leading to the mother’s allegations of domestic violence. The mother took the infant child back to the United States without the father’s consent. The father obtained an order in Italy terminating the mother’s rights. The father was able to enforce the order in an Ohio court. A finding of domestic violence which places the child in danger is an exemption to the Hague Convention’s mandate to return, but must be raised pursuant to Article 13. The court found no evidence of domestic violence but the mother failed to appeal that finding.

If you concerned about your rights in child custody dispute, contact Diana Mohyi Attorney at Law for a consultation.

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