Posts
Jeremy D. Morley*
Determining the
child’s “habitual residence” is a threshold issue in any case brought pursuant
to the Hague Convention. It is often outcome-determinative because, if the
court concludes that the country from which the child was removed was not the
country of the child’s habitual residence, the Convention will not apply and
the petition must be dismissed.
The U.S. majority
rule as to the interpretation of the term focuses on the “last shared parental
intent.” In this regard a joint decision by the parents to relocate can be
decisive. However, it is well established that a conditional consent will be
insufficient unless and until the condition is fulfilled.
Some courts have
upheld claims that a condition on a relocation may be implied or inferred,
sufficient to prevent a child’s habitual residence from being changed.
In Mota v. Castillo, 692
F.3d 108 (2d Cir.2012),
the Second Circuit upheld the decision of a district court to infer such a
condition from the circumstances even though the parent who thereby benefitted
testified that there had been no such agreement. In that case, the parents of a
child who habitually resided in Mexico with her mother agreed that the mother
and child would join the father in New York in order to reunite their family
and live there indefinitely. The mother gave the child to third parties to take
her to New York, where she was reunited with her father. However, U.S. border
guards prevented the mother from entering the country illegally. She tried a
second time but was deported.
The Second Circuit upheld the finding that the
mother's consent to her daughter's relocation was impliedly conditioned upon
her own ability to join the family in New York and that the failure of this
condition annulled her consent. There was no direct evidence of any agreement
between the parents concerning the condition and the mother testified that
there was no such agreement. Nonetheless, the Court upheld the district court's
finding that such a condition could--and should--be “reasonably inferred” from the circumstances, since the mother was
a devoted mother who “more
likely than not ... intended for [the child] to live in the United States only
if she herself could join the household and continue to raise her child.”
Thus, Mota reaffirmed the
rule that if the parents' agreement to their child's relocation is subject to a
condition precedent, there is no shared intent to relocate unless the condition
is fulfilled. Mota also established that the existence of a condition to
an agreed relocation can be established by inference from the circumstances of
the case.
Many couples undergoing marital
problems make attempts at reconciliation. In international relationships, this
can take the form of an agreement for one spouse to move to the other spouse's
country conditionally, to see if their problems can be resolved. If the
reconciliation is not successful, the spouse who has moved may attempt to
return to his or her home country with their children. However, if they have
spent an extended period of time in the country of relocation, notwithstanding
parental intentions, the child or children may have acclimatized and could be
found to have acquired a settled purpose.
In Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013)he
Second Circuit ruled that Canada was the country of the children's habitual
residence even though the mother and children had come to New York with the
father's consent and had lived there for 1½ years. The court held that the
parties did not have a shared intent at the time the father consented to the
move to New York; the father intended for the children to reside habitually in
New York only if he was also resident in New York in the same home as his
children and his wife, but the wife had served him with divorce papers instead.
In this regard,
the key findings – which help to demonstrate the extent to which such cases are
fact-sensitive -- were as follows: “On direct examination, Hofmann “testified
that he consented to respondent’s travel to New York with the children based on
his understanding that he . . . and the children, would stay as a family . . .
‘come what may.’” The court found this statement was consistent with Hofmann’s
other actions including his institution of this Hague Convention proceeding
immediately after he was served with divorce papers. Similarly, the court found
that Sender “testified, both on direct and on cross [examination], that it was
her understanding and assumption that she and [Hofmann] were relocating to New
York as a family.” Sender admitted on cross examination that “the only reason”
Hofmann had allowed her to take the children to New York in 2011 was his belief
that he would remain part of the family. She also stated that the parties had
agreed to move to New York as a family, and that it was an attempted “rebirth”
of their marriage.”
These cases
underscore the need for sharp analysis of the facts, case law and issues
surrounding habitual residence in any Hague Convention case.
_________________
*Jeremy D. Morley represented the successful petitioner in
the Hofmann case.
