TREATY LAW--EIGHTH CIRCUIT APPLIES "THE CHILD'S PERSPECTIVE" STANDARD TO DETERMINE HABITUAL RESIDENCE UNDER THE HAGUE CONVENTION.

• Author: Homan, Madison
• Position: Case note

TREATY LAW--Eighth Circuit Applies "The Child's Perspective" Standard to Determine Habitual Residence Under the Hague Convention--Cohen v. Cohen., 858 F.3d 1150 (8th Cir. 2017).

Under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), a child who is wrongfully removed or retained must be returned promptly to the country of the child's habitual residence, unless certain limited exceptions apply. (1) The United States implements the Convention through the International Child Abduction Remedies Act (ICARA). (2) In Cohen v. Cohen (3) the United States Court of Appeals for the Eighth Circuit addressed the question whether a child had been wrongfully retained in the United States within the meaning of the Convention. (4) The Court affirmed the district court's decision that the child's country of habitual residence is the United States, and thus retention of the child in the United Sates is not wrongful within the meaning of the Convention. (5)

O.N.C., the child at the center of this case, was born in Israel in 2009. (6) O.N.C. lived in Israel with his parents until 2012, when he moved to St. Louis with his mother. (7) The parties dispute the facts: the mother testified that the family intended to move permanently to the United States; the father testified that they intended to move for only for a few years and the move was conditioned on his ability to leave Israel. (8) In the United States, the mother found a pediatrician for O.N.C. and enrolled him in school and speech therapy. (9) In 2013 and 2014, O.N.C. and his mother visited his father in Israel for approximately two weeks each year, but the marriage was deteriorating. (10) In 2015, a St. Louis court granted O.N.C's mother a divorce and awarded her sole custody of O.N.C. (11)

O.N.C.'s father filed an application in Israel for O.N.C.'s return under the Convention. (12) On November 25, 2015, O.N.C.'s father also filed a complaint in the Eastern District of Missouri requesting O.N.C.'s return under the Convention. (13) The district court determined, through an evidentiary hearing and discovery, that O.N.C.'s "country of habitual residence" was the United States. (14) O.N.C.'s father appealed the decision, after the district court concluded that he had "failed to make a prima facie case under the Convention." (15) The Eighth Circuit held that the district court did not err in finding that the United States is O.N.C.'s country of habitual residence, and accordingly, that retention of O.N.C. in the United States is not wrongful within the meaning of the Convention. (16)

In international custody disputes, determining a child's country of habitual residence is critical because the law of the country of habitual residence governs the underlying custody dispute. (17) However, in order to give the courts flexibility, the Convention drafters deliberately did not define this term. (18) As a result, the federal courts of appeal have been split on the question of how to determine habitual residence. (19) In determining habitual residence, some circuits have applied the "parental intent" standard, while other circuits have looked at this issue from the child's perspective. (20) The Supreme Court of the United States has recently declined the opportunity to resolve this issue. (21) Because there is no guidance in the Convention or in ICARA, and there is no guidance from the Supreme Court, the federal courts continue to apply conflicting standards in determining habitual residence. (22)

Most of the circuit courts of appeal apply the parental intent standard in habitual residence determinations. (23) The landmark case applying the parental intent standard is the Ninth Circuit decision in Mozes v. Mozes. (24) Other Circuits--specifically the First, Second, Fourth, Fifth, Seventh, and Eleventh Circuits --have also adopted the parental intent standard set out in Mozes. (25) Because there is a high bar for overcoming the presumption favoring shared parental intent, in some cases this presumption is almost irrefutable. (26)

Other circuits have rejected the Mozes approach. (27) The Sixth Circuit was one of the first appellate courts to adopt a child-centered approach to the question of habitual residence. (28) The Third Circuit has also adopted a child-centered approach. (29) The Eighth Circuit also concluded that in determining a child's habitual residence under the Convention, courts must view the circumstances of the case from the child's perspective. (30) Where a lower court in the Eighth Circuit failed to examine habitual residence from the child's perspective, the court's decision was reversed on appeal. (31) In determining habitual residence, the Court of Appeals for the Eighth Circuit has consistently taken a child-centered approach. (32)

In Cohen v. Cohen, (33) the United States Court of Appeals for the Eighth Circuit determined habitual residence by examining the circumstances of the case from the child's perspective. (34) At the outset, the Court noted that it would review the district court's decision de novo because determinations of habitual residence under the Convention involve mixed questions of law and fact. (35) The Court began its analysis by explaining that habitual residence depends on experience in the past, not future intent, meaning that it would focus on the child's past experience and not the future intentions of his parents. (36) The Court stated that habitual residence includes "some form of settled purpose," and other relevant factors include passage of time, change in the child's physical location, and the child's acclimatization. (37) In this child-centered approach, the Court viewed "settled purpose" from the perspective of the child. (38) The Court explained that a move could have settled purpose from the child's perspective, even if one parent has reservations about the move and parental intent is unclear. (39)

O.N.C.'s father also urged the Court to adopt the standard applied in the Second Circuit, as well as other circuits. (40) The Court noted that it had previously declined to adopt this standard, "which gives dispositive weight to parental intent." (41) In analyzing "settled intent" from O.N.C.'s perspective, the Court concluded that the child's move to the United States had a "sufficient degree of continuity" to be regarded as settled. (42) Although the Court gave parental intent lower weight, the Court found intent of the parents supported the same conclusion as its child-centered analysis. (43) Accordingly, the Court held that the district court did not err in concluding O.N.C.'s habitual residence is the United States, and therefore O.N.C.'s retention in the United States was not wrongful within the meaning of the Convention. (44)

In concluding that O.N.C.'s habitual residence is the United States, the Court's reasoning appropriately followed a child-centered approach. (45) By applying a child-centered standard, the Court correctly relegated parental intent to a subordinate role in its analysis (46) Rather than focusing on the parents, the Court's reasoning focused on factors indicating O.N.C.'s acclimatization in the United States. (47) Following Eighth Circuit precedents of habitual residence cases, the Court considered such factors as the length of time O.N.C. had been in the United States, his family and social relationships in the country, the primary language he spoke, and his schooling. (48) Based on these factors, the Court concluded that, viewed from O.N.C.'s perspective, his move to the United States has a "settled purpose." (49) Although analysis of parental intent supported the same conclusion, the Court correctly afforded parental intent "lower weight" because the child's view of his move to a new country is the paramount factor in a child-centered analysis. (50)

The Court's child-centered approach is the proper legal standard. (51) This approach is consistent with the Convention's recognition of children as individuals rather than parental property. (52) In addition, the Court's child-centered approach is in step with the standard recently adopted by courts in the European Union and United Kingdom. (53) While courts in the United States are not bound by decisions of foreign courts, Congress has recognized the importance of "uniform international interpretation of the Convention." (54) However, in Cohen (55) the Court did not explain that its child-centered approach is consistent with the prevailing international view. (56) Nor did the Court explain why its child-centered approach is the proper standard among competing views in the federal courts. (57)

As habitual residence case law continues to grow, so does the division among the circuits. (58) In Murphy v. Sloan, (59) the Ninth Circuit recently declined to revisit the framework it enunciated in Mozes. (60) Although the parent-focused Mozes framework considers acclimatization of the child as well as parental intent, the Mozes framework sets a high bar for acclimatization to trump parental intent. (61) Thus, while recent cases in the Eighth and Ninth Circuits considered both acclimatization and parental intent, the circuits differed significantly regarding the weight these factors should receive. (62) Because the same case could have different results in different circuits, this disagreement in the federal courts invites forum shopping--precisely the result the Convention intended to avoid. (63)

In Cohen; (64) the United States Court of Appeals for the Eighth Circuit applied the appropriate standard and reached the right result, concluding that the child's habitual residence is the United States. (65) The Court's child-centered approach in determining habitual residence is consistent with the Convention and with recent international case law. However, the Court missed the opportunity to explain why "from the child's perspective" is the proper standard. (66) Without Supreme Court authority, the circuit courts of appeal...