Like Home: The New Definition of Habitual Residence.

• Author: Kauffman, Ronald H.

In the Wizard of Oz, Dorothy clicked her ruby slippers three times and was immediately whisked back to Kansas. (1) For lawyers responding to the heel clicks of other wrongfully removed children, returning home is not so easy. That is because courts have had different standards for determining a child's "habitual residence" under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 (the Hague Convention).

It has been one year since the U.S. Supreme Court decided the highly anticipated case of Monasky v. Taglieri, 140 S. Ct. 719 (2020), the first time the Court squarely addressed the subject of habitual residence. The controversy? How to establish a child's habitual residence under the Hague Convention, and what the appellate standard of review should be after making that determination. This article is a primer on the Hague Convention on international child abductions and the recent Monasky case.

We're Not in Kansas Anymore

Headquartered in the Netherlands, the Hague Conference on Private International Law is an international organization of member countries who work for the unification of private international law. The Hague Conference accomplishes this goal through different "conventions"--multi-lateral treaties negotiated and adopted by member countries. There have been over 40 conventions adopted. (2)

The Hague Convention has become the primary international legal instrument to ensure the return of children who have been abducted from his or her country of habitual residence. The Hague Convention's mission is to protect children from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the country of their habitual residence, as well as to secure parental rights of access. (3) The Hague Convention was not designed to resolve underlying custody disputes, but to determine the merits of a wrongful removal and retention claim. (4)

The U.S. Congress implemented the Hague Convention by enacting the International Child Abduction Remedies Act (ICARA). (5) ICARA vests concurrent jurisdiction over claims brought under the Hague Convention in federal and state courts. (6) Congress found that the wrongful removal and retention of children is harmful to their well-being, and that persons should not be permitted to obtain custody of children by virtue of the child's wrongful removal or retention. (7)

The U.S. State Department is the designated central authority responsible for preventing abductions and responding when international child abductions occur. The State Department also issues compliance reports identifying countries that are noncom-pliant with the convention and cases that remain active for 18 months or more after a Hague Convention application is filed.

In 2014, Congress modified ICARA because of obstacles American parents faced trying to ensure the return of their child from other Hague Convention signatory countries. The case of Sean Goldman's abduction to Brazil from New Jersey by his mother was one widely reported example. A Brazilian court awarded the mother custody after she refused to return Sean during their vacation in Brazil. The mother re-married, then died unexpectedly in childbirth. Incredibly, a Brazilian judge awarded custody to the mother's Brazilian widower, not the natural father. Ultimately, Brazil's Supreme Court ordered Sean's return five years later. The Goldman fiasco resulted in the passage of the Sean and David Goldman International Child Abduction Prevention and Return Act (ICAPRA). (8)

The newer ICAPRA expanded the responsibility and authority of the State Department in international parent-child abduction cases, gave additional assistance to left-behind parents, authorized the U.S. Secretary of State to take coercive action, increased U.S. interagency cooperation and outreach to foreign countries, and renumbered the ICARA statute in the U.S. Code.

Follow the Yellow Brick Road

A left-behind parent seeking his or her child's return has to prove, by a preponderance of the evidence, that their child was wrongfully removed or retained within the meaning of the convention from the child's Habitual Residence. (9) To establish a prima facie case, the parent must prove that the habitual residence of their child immediately before the date of the alleged wrongful removal or retention was in a foreign country; that the removal or retention was in breach of custody rights under the foreign country's law; and the left-behind parent was exercising custody rights at the time of the alleged wrongful removal or retention. (10)

Generally speaking, "wrongful removal" refers to the...