Habitual residence, changing custody rights, and wrongful retention and removal under the Hague Convention on Civil Aspects of International Child Abduction.

• Author: Torto, Melissa

Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013).

International family law, especially in the area regarding international parental child abduction, has become a controversial topic in the recent years. (1) International parental child abduction can be defined as "the unilateral removal or retention of children by parents in violation of the other parent's custody rights." (2) In reaction to the growing rate of parental abductions, the United Nations developed the Hague Convention on Civil Aspects of International Child Abduction in 1980 for the purpose of protecting children from wrongful international removals and ensuring that the abducted children are safely returned to their true habitual residence; nevertheless, a substantial amount of law is left for the judicial system to interpret. (3) In Redmond v. Redmond, (4) the United States Court of Appeals for the Seventh Circuit addressed, as a matter of first impression, whether a change in one parent's custodial rights is sufficient to make the other parent's continued physical custody of the child a putative wrongful "retention" under the Convention. (5) The court held that one parent's continued custody of a child, despite an order granting removal to another country, does not constitute a punitive wrongful "retention" under the Convention when the child remains in his habitual residence. (6)

The parents involved in the custody dispute are Mary Redmond and Derek Redmond, who began a romantic relationship in 1996 while attending college in Ireland. (7) Mary was a dual U.S. and Irish citizen from Illinois, whereas Derek is a citizen of Ireland. (8) In 2006, Mary became pregnant, and the couple agreed that the child would be born in America and raised in Ireland. (9) On March 28, 2007, their son "JMR" was born in Illinois, and after eleven days, they returned to Ireland with the baby. However, in November 2007, their relationship began to deteriorate, causing Mary to move back to Illinois with JMR, who was under eight months old. (10)

Derek had no custody rights under Irish law; therefore, he was unable to seek custody rights under the Hague Convention. (11) It took Derek three and a half years to establish his paternity rights in Ireland, and in February 2011, an Irish court not only approved Derek's request for guardianship and joint custody of JMR, but also ordered that the child live in Ireland. (12) The court allowed Mary to return to Illinois with JMR to make arrangements for their move to Ireland, but only on the condition that she promise under oath to return with her son by March 30, 2011. (13) Unknown to the court, Mary never intended to keep her promise, and stayed in Illinois. (14) Eight months later, Derek filed a petition under the Hague Convention in U.S. District Court in Illinois claiming that Mary wrongfully retained JMR in the United States in breach of his recognized custody rights in Ireland. (15)

The district court held that when Mary disobeyed the Irish Court, JMR's habitual residence was Ireland on March 30, 2011. (16) Despite the fact that JMR lived in the United States for most of his life, the district court gave weight to the parents' initial agreement in which the parents agreed that they would raise their son in Ireland. (17) The court held that because Mary made a unilateral decision to move back to Illinois against the couple's last shared intent, JMR's residence in the United States was only temporary and subject to the results of the Irish guardianship proceeding, thus his habitual residence was Ireland. (18) As a result, the district court held that JMR must be returned to Ireland; consequently, the mother soon appealed to the Seventh Circuit. (19) That court reversed the lower court's decision by concluding that the test for habitual residence is a flexible inquiry that accounts for all relevant evidence and considers individual circumstances, not just the parents' last shared intent. (20) As a result, the Seventh Circuit determined that because JMR's life was too embedded in the United States, it would be erroneous to call Ireland his habitual residence under the Hague Convention. (21)

The Hague Convention on the Civil Aspects of International Child Abduction was implemented as a result of the rising number of international child abductions during parental custody disputes, the subsequent difficulties of locating those abducted children, and the parental incentives to forum shop. (22) In 1976, the Hague Conference on Private International Law discussed the issue, and after extensive research, the Conference decided on a framework that regulated the wrongful retention of a child. (23) The United States implemented the Convention through the International Child Abduction Remedies Act of 1988 (ICARA) and the Intentional Parental Kidnapping Crime Act (IPKA) of 1993. (24)

The Supreme Court and several appellate courts recently decided issues regarding rights under the Convention and whether or not a return of a child renders the issue moot. (25) In the U.S. judicial system, the majority of case law stems from two main issues: custody and habitual residence; however many courts have held the Convention is not for custody purposes. (26) In Barzilay v. Barzilay, (27) the Eighth Circuit refused to apply the Hague Convention at the request of an Israeli father in U.S. federal court to try to enforce a favorable outcome in Israeli court in terms of his custody rights. (28) The court reasoned that "this course of litigation not only betrays a fundamental misunderstanding of the Hague Convention, but is also precisely the sort of international forum shopping the Convention seeks to prevent." (29) Similarly, in White v. White, (30) the Fourth Circuit held that the mother did not wrongfully remove her child because at the time of removal, the father had a right of access as opposed to custody rights. (31) Although the White court did not separately discuss the issue of retention, it made a notable comment that sister signatories to the Convention agree "that orders claiming to adjust custody arrangements after removal or retention do not typically affect rights under Article 3 of the Convention." (32)

Recently, several circuits have issued important decisions in regards to determining habitual residence. (33) The main issue concerning habitual residence is whose perspective controls: the parent's or the child's. (34) A majority of circuits prefer the approach the Ninth Circuit set out in Mozes v. Mozes, (35) in which the court gave more weight to the parent's intent than the child's. (36) Accordingly, more courts use this framework, because as the court in Mozes recognized, in some custody situations, it is crucial not only to look at the shared intent of the parents but also the child's acclimatization in a specific country. (37)

In Redmond v. Redmond, (38) the court discussed whether one parent's change in custody rights affected where the child rightfully lived. (39) The Seventh Circuit began its analysis by clarifying that this case is not about wrongful removal, but rather wrongful retention; therefore, Derek only alleged that Mary wrongfully retained JMR when she failed to return him to Ireland despite the Irish custody order. (40) The court discussed several cases similar to the present case and ultimately determined that even though the Hague Convention's purpose is not to enforce foreign custody orders, Derek still raised the matter of wrongful retention; thus the threshold inquiry in this case was the child's habitual residence. (41) The court noted that there is no definition of habitual residence in the Convention; therefore they applied the case law established in the Seventh Circuit, and decided to phrase habitual residence by its plain and ordinary meaning. (42) Only once the court determines habitual residence can the issue of custody rights be discussed, and usually that will take place in a court in the state of the child's habitual residence. (43) Using its fact-based, case-specific method; the court concluded that when the contended wrongful retention occurred, JMR's habitual residence was Illinois. (44)

The court took a variety of factors into account, including the time spent in Illinois and JMR's everyday activities, to determine that Illinois was JMR's permanent home; thereby reversing the district court's decision. (45) The appellate court reasoned that the district court erred when it gave extensive weight to the parents' last shared intent that JMR would be raised in Ireland and consequently, concluded Ireland to be his habitual residence. (46) The court analyzed several precedential decisions among the circuits that used the different factors, including the parents' intent, child's interest, or a mix of both in order to determine the habitual residence of the child. (47) The Seventh Circuit followed the Ninth Circuit's framework in Mozes, because "the Mozes approach is 'flexible' and takes account of 'the realities of children's and family's lives despite the parent's hopes for the future.'" (48) It rejected the lower court's decision by...