It Is More Than Custody: The Balance Between Parental Intention and the Child's Perspective in Hague Convention Cases.

• Author: Choi, Chantal

"The States signatory to the present Convention [are] firmly convinced that the interests of children are of paramount importance ... [d]esir[e] to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." (1)

1. INTRODUCTION

   On May 22, 2017, the Supreme Court once again denied a petition for writ of certiorari to determine what "habitual residence" means within the scope of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). (2) Petitioner Danilo Pennacchia appealed the district court's decision finding that his minor child's habitual residence was the United States. (3) The appeals court agreed with the lower court's interpretation of habitual residence, focusing on the shared, settled intent of the parents. (4) Pennacchia presented two questions to the Court: what does "habitual residence" mean under the Hague Convention; and what must courts look to when determining a child's habitual residence in proceedings under the Hague Convention and the International Child Abduction Remedies Act (ICARA). (5)

   Conversely, in June 2017, the Eighth Circuit in Cohen v. Cohen (6) affirmed the district court's finding that the child's habitual residence was the United States based on a different standard. (7) The district court examined the child's acclimatization to the country and determined habitual residence from the child's perspective instead of focusing on the parents' shared intent. (8) This varied interpretation between the Eighth and Ninth Circuits demonstrates the law's current status within the United States. (9)

   Every year, thousands of children are subject to proceedings under the Hague Convention. (10) In 2018, seven hundred and sixteen cases were reported to the U.S. Central Authority, involving 896 children. (11) To state a prima facie case for returning a child, a petitioner must establish by a preponderance of the evidence that the child has been wrongfully removed from the country of his or her habitual residence or wrongfully detained in a country other than that of his or her habitual residence. (12) Thus, these cases turn on the determination of the child's habitual residence in Hague Convention proceedings. (13)

   Despite the importance of defining a child's habitual residence, the lack of definitional guidance has caused a split within the United States courts on how to properly determine a child's habitual residence. (14) This Note examines the circuit split and suggests that a bright line rule is not necessary to achieve the Hague Convention's goal. (15) However, if the Court adopts one, it should adopt the Eighth Circuit's interpretation of habitual residence to achieve uniformity. (16)

   This Note begins with a discussion of the history of international child abduction. (17) It then details the historical origins of the Hague Convention, its objectives, and its text. (18) This Note also briefly examines the reason behind defining and not defining certain legal terms. (19) Part II then examines ICARA--the statute enacted by Congress to give the Hague Convention domestic effect. (20) Next, this Note details the split among the federal appellate courts on how to determine habitual residence within the United States. (21) Currently, among those who have addressed the issues, the United States Courts of Appeals for the Second, Third, Eighth, Ninth, and Eleventh Circuits all adhere to some consideration of shared parental intent, while the Sixth Circuit strictly reviews the issue under an objective evidence-only standard. (22) A look at how other Hague Convention signatories determine habitual residence highlights the importance of uniformity. (23)

   Part III then analyzes the three main models of interpretation in the United States beginning with a case study. (24) Lastly, after focusing on the Hague Convention's goals, this Note concludes it is necessary to have a uniform standard for habitual residence in the United States, arguing that adopting the Eighth Circuit's standard best accomplishes the Hague Convention's objectives. (25)

2. HISTORY

   1. Overview of the Hague Convention

      1. Child Abduction Prior to the 1980 Hague Convention

         International child abduction occurs in any instance where a child is taken across an international frontier without consent or lawful authority. (26) The term, despite its multiple meanings, is not concerned with violent kidnappings by strangers for the purpose of the Hague Convention. (27) Rather, it is "synonymous with the unilateral removal or retention of children by parents, guardians or close family members." (28) The stereotypical abductor was historically described as a noncustodial father, but this has recently changed in the context of the Hague Convention; mothers are just as likely, if not more likely, to remove or retain children from their family. (29)

         The motivation behind abducting a child could "occur for a variety of reasons from the narcissistic to the heroic." (30) Typically, the abducting parent's objective is to gain sole custody and control over the child in a new jurisdiction. (31) There is no doubt that the forced relocation will have a detrimental effect on the child. (32) In analyzing this effect, an abduction should not be viewed in isolation, but in the totality of the circumstances surrounding the time when the child was removed or detained. (33) With the added international element in Hague Convention cases, the already emotional conflict over the care and control of the child is exacerbated. (34)

         The increase in child abduction stems from a multitude of legal, technical, and social developments in the late twentieth century. (35) International mobility became more prevalent, marriages between couples from different countries increased, and divorce rates began to rise. (36) Advancements in technology have also enabled the abducting parent to move a child thousands of miles away from the left-behind parent in a matter of hours. (37) The confluence of all these developments led to an increase in child custody disputes with international dimensions. (38)

         Before the Hague Convention, the recovery of a child was inherently difficult. (39) These difficulties resulted from complications in locating the child, high expenses for international disputes, and ineffective assistance of local and foreign authorities. (40) There was also the issue of undue delay in reaching resolutions in cases because courts were reluctant to take any action without investigating what would be in the abducted child's best interest. (41) This best interest analysis was applied on an individual basis, prolonging the proceedings and impacting the child as well as the court. (42) The left-behind parent was also forced to pursue a remedy in another country, and this often resulted in situations where different legal systems and laws were applied with embedded cultural or social attitudes that were at odds with home courts. (43)

         However, the major concern was not, and is not, the jurisdictional issue; the main concern was, and is, efficiency. (44) The number of children and left- behind parents in the system prove this is a global issue, but it was not until the Hague Conference in the 1970s that countries began to specifically address the matter. (45) Prior attempts to deal with these issues either failed at the drafting stage or in their initial implementation. (46)

      2. The Creation of the Hague Convention

         The Special Commission for the Child Abduction Convention (the Commission) met for the first time in March 1979. (47) The Commission decided that the issue of international child abduction would be addressed at the Fourteenth Session of the Hague Conference for the purpose of finding a joint resolution to the issue. (48) The Commission agreed on a few items that would be the basis for the Commission's preliminary draft treaty. (49) These included: establishing a central authority in each member state to facilitate cooperation across borders; providing the left-behind parent the right to apply to the state of refuge for an automatic return of an abducted child within six months of the abduction; and only allowing a return to be declined if an action taken would be gravely prejudicial to the child's interest. (50) Lastly, the rules would apply separately from the existing custody order, if any. (51) Custody in the context of the Hague Convention refers to the "rights relating to the care of the person of the child and ... the right to determine the child's place of residence." (52) After a few drafts and negotiations during the Fourteenth Session of the Hague Conference, the twenty-three countries present unanimously voted to adopt the Hague Convention. (53) Currently, ninety-eight countries are signatories to the Hague Convention, including the United States. (54)

         1. Purpose and Application of the Hague Convention

            The Hague Convention's objective is: "to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." (55) The drafters intended for this return mechanism to serve a child's interest and to protect him or her from the harmful effects associated with wrongful removals or retentions. (56) Instead of a child's best interest, the Hague Convention aimed to protect all children collectively. (57) No longer would the proceedings be a full traditional custody determination, rather there would only be a peremptory examination into whether or not a return order should be made. (58) The court of the child's habitual residence--the forum conveniens--could then decide the underlying substantive custody issues. (59) This allows a child to be returned to the place that he or she is most familiar with and has the...