FAMILY LAW--Children Alienated from Father: Third Circuit Discounts Hague Convention on Legally Inseparable Caribbean Island.

• Author: Johnston, William C.
• Position: Case note

FAMILY LAW--Children Alienated from Father: Third Circuit Discounts Hague Convention on Legally Inseparable Caribbean Island--Didon v. Castillo, 838 F.3d 313 (3rd Cir. 2016).

The Hague Convention sets out the international parameters for International Child Abduction. (1) Under the Hague Convention discussing the Civil Aspects of International Child Abduction (Hague Abduction Convention), the parent of a child who has been removed from his or her "habitual residence country" not in accordance with that country's custody laws may seek the return of that child. (2) In Didon v. Castillo, (3) for the first time the United States Court of Appeals for the Third Circuit was confronted with deciding whether it is possible for a child to have two "habitual residence countries" simultaneously under the Hague Abduction Convention, and furthermore how does a court determine a child's "habitual residence country." (4) The Court held that the text of the Hague Abduction Convention does not permit a child to have two habitual residences and further found that Dutch Sint Maarten is the children at issue's "habitual residence country." (5)

This dispute centers around two children, A.D., the biological son of Maurice Marie Didon (Didon) and Alicia Dominguez Castillo (Castillo), and J.D., the biological daughter of only Castillo. (6) In (2011), Didon and Castillo filed in French Saint Martin to list Didon as J.D.'s father on her birth certificate because she was now living with both of them as well as A.D in Didon's Dutch Sint Maarten apartment. (7) Without ever formally appearing in court, J.D.'s birth certificate was changed "to identify Didon as her father." (8) The family lived in Dutch Sint Maarten for three years, however, their daily activities including work, school, and medical appointments took place in French Saint Martin. (9) Due to a deteriorating relationship with Castillo, Didon pursued full custody of both children by bringing a custody action in French Saint Martin civil court. (10) In September 2014, Castillo, who was never notified of the proceeding, informed Didon that she would be bringing the children to New York City to attend her sister's wedding. (11)

On September 6, 2014, a day before Castillo was expected to return with the children, Didon learned from school officials that they were not expecting the children to return because Castillo had withdrawn them from the school. (12) Didon, after contacting police who were able to communicate with Castillo, claims he was promised by Castillo that she would return with the children on September 7, 2014. (13) Castillo did not return with the children on the day promised; meanwhile, Didon pursued his custody action in French Saint Martin civil court which ultimately granted "full custody of A.D. and J.D. to Didon in an ex parte order." (14) In early 2015, Didon hired a private investigator to look for the children, who found them during that summer in Hazelton, Pennsylvania. (15)

On August 13, 2015, Didon filed a Hague Abduction Convention suit asking a Pennsylvania District Court for both A.D. and J.D. to be returned to French Saint Martin. (16) On September 24, 2015, the lower court ruled in favor of Didon concerning A.D., but against him regarding J.D. (17) Concerning A.D., the district court held that Didon had lawful custody over him because he is Didon's biological son. (18) Regarding J.D., the district court found that Didon did not have lawful custody over her because he did not follow the proper adoption requirements under French law. (19) The district court reasoned that the children were habitual residents of both French Saint Martin and Dutch Sint Maarten because "the border is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike [...]." (20) On appeal, the Third Circuit reversed, concluding that Didon does not have lawful custody over both A.D. and J.D. because the Hague Abduction Convention is not recognized by Dutch Sint Maarten. (21)

The Hague Abduction Convention is structured to quickly return children who have been kidnapped or illegally held away from their habitual residence country. (22) Its goal is to return a child to his or her previously established living arrangements. (23)

To determine whether a "removal or retention" is regarded to be "wrongful" under the Hague Abduction Convention, a two part test must be applied. (24) Step one considers whether it violates the law of the child's preceding "habitual residence country," and step two considers whether those rights could have been recognized at the time of the abduction. (25) In determining whether those rights could have been recognized, a variety of factors may be considered, including the child's habitual residence before the "removal or retention." (26) Before it can be determined where a child's "habitual residence country" is, it must first be decided whether the Hague Abduction Convention authorizes coexisting habitual residences. (27)

The starting point in determining whether the Hague Abduction Convention authorizes coexisting habitual residences begins with the text itself. (28) Its language regarding the return of children refers only to "state" of habitual residence, indicating that a child may only have one habitual residence. (29) A substantial amount of U.S. case law has held that a child may only have one habitual residence country. (30) Note that this rule is dependent on the specific factual situation at issue because, as the Ninth Circuit ruled in Mozes v. Mozes, (31) unique situations a child may have dual or alternating habitual residences. (32) An example of a unique habitual residence situation is where a child spends an equal amount of his or her time in two different countries. (33) Since the determination of whether a child may have dual habitual residences is fact specific, so too is the determination of where that location(s) is. (34)

In order to decide where a child's habitual residence country is, the meaning of the phrase "habitual residence" must first be discussed. (35) The phrase must be interpreted in accordance with its ordinary meaning because it is not defined by the Hague Abduction Convention. (36) According to Black's Law Dictionary, "habitual residence" is defined as "[a] person's customary place of residence." (37) On this issue common law has created a "living requirement," meaning that a child must have lived in a place for it to qualify as the child's habitual residence. (38) Furthermore, case law has established that this analysis "is a fact-intensive determination," meaning the analysis varies with the facts of each case. (39) Therefore, the fact-specific framework must now be used to determine whether the children at issue may have dual habitual residences, and where their habitual residence country(s) is. (40)

In Didon v. Castillo, (41) the Court relied on the general framework set forth by the Hague Abduction Convention to conclude that both A.D. and J.D. have only one habitual residence country, Dutch Sint Maarten. (42) In its discussion of whether the Hague Abduction Convention permits dual habitual residences, the Court first looked to the language of its text. (43) The Court reasoned that because the Hague Abduction Convention refers only to '"the State' of habitual residence," it unambiguously intends that a child may have only one habitual residence country. (44) The Court then relied on United States Federal Circuit Courts of Appeals cases such as Sorenson v. Sorenson (45) and Robert v. Tesson (46) which support the conclusion that a child may have only one habitual residence. (47) While the Court did acknowledge the Ninth Circuit's reasoning in Mozes, it stated that it could not determine whether the Ninth Circuit supported concurrent or alternating habitual residences. (48) Furthermore, the Court stated that the language of the Hague Abduction Convention itself must govern when a child has demonstrated connections to more than one country. (49)

In its discussion of where A.D. and J.D.'s habitual residence country is, the Court first examined "the ordinary meaning of the term 'residence.'" (50) Based on this examination, the Court reasoned that a child's habitual residence country must be a place where a child has lived. (51) Using Whiting v. Krassner, (52) the Court reiterated the requirement that a child must have lived in a country for it to qualify as his or her habitual residence. (53) It reasoned that although the children went to school, medical appointments, and conducted many other activities in French Saint Martin, they lived only in Dutch Sint Maarten because that is where they "had a home." (54) The Court further reasoned that it did not have to use the "fact-intensive" framework it created because the children lived only in one country. (55) As a result, the Court held that the Hague Abduction Convention does not permit concurrent habitual residences, and that A.D. and J.D.'s habitual residence country is Dutch Sint Maarten. (56) The Court's decision in Didon v. Castillo (57) incorrectly applies case law surrounding the habitual residence issue to reach an erroneous outcome. (58) Though the Hague Abduction Convention itself refers only to the "State" of habitual residence, the island of French Saint Martin and Dutch Sint Maarten functions as one state. (59) The Third Circuit neglected to fully examine the reasoning outlined in Mozes, which clearly applies to A.D. and J.D.'s habitual residence analysis. (60) This is due to the fact that all aspects of the children's daily activities took place on both sides of the island. (61) By concluding that the children are habitual residents of only Dutch Sint Maarten, the Court creates a border that is not recognized by either country. (62) Since the children's daily routine "transcended the divided island's border," both A.D. and J.D. must be considered habitual residents of both French Saint Martin and...