Child Abduction: “Habitual Residence” Under The Hague Convention

When a child is removed from or retained in a country that is not a child’s habitual residence a parent can seek to have the child returned to their habitual residence country under the Hague Convention on the Civil Aspects of International Child Abduction. However, not every country recognizes the Hague Convention and thus determining a child’s habitual residence may be pivotal in an international child custody case. Whether a child can have concurrent habitual residences was addressed by a United States appellate court in the case of Didon v. Castillo.  In the Didon case, two children lived in the parents’ home in Dutch St. Maarten, although their school and doctors’ appointments were in French St. Maarten and the family had other connections with French St. Maarten. When the mother removed the children to the United States ostensibly for a family event and did not return with them, the father filed a Hague Convention Petition in a Pennsylvania, U.S. federal court seeking their return.

Child Abduction Ally Law

Critical to the decision on the father’s petition was whether the “habitual residence” of the children was Dutch or French St. Maarten, as Dutch St. Maarten does not recognize the Hague Convention. The trial court found that the “island of St. Martin is essentially undivided.” Thus, pursuant to the Hague Convention the judge found the father had been exercising his custodial rights for one of the children (he did not have custody rights for the other child, who was not his biologic child), that child had been wrongfully retained, and ordered the child transferred to the father.

Both parents appealed the order, and the appellate court was charged with deciding whether the children had concurrent habitual residences, which would allow for the application of the Hague Convention under French St. Maartin’s accession to it, or whether they were found to have one habitual residence in Dutch St. Maarten, in which case the trial court’s order would have to be vacated as not a valid exercise under the Hague Convention. The appellate court outlined a two-pronged analytical structure/test that courts should use when determining a child’s habitual residence country and found that under the test the children’s habitual residence was in Dutch St. Maarten. Accordingly, the appellate court vacated the trial court’s order and instructed the child be returned to its mother in the United States.

The Didon case was a novel one, and in addition to providing clarity to the issue of “habitual residence” under the Hague Convention, it provided a framework for analysis when faced with difficult facts such as in this case in determining what is a child’s habitual residence. Wherever you are on the globe, see your Ally Law member firm attorneys to discuss child custody issues before they become adversarial so that you know your rights and obligations. For more information about Ally Law member firm services and outstanding lawyers, contact us at team@ally-law.com.

Click here for the original article Michael E. Bertin of Ally Law member Obermayer, Rebmann, Maxwell & Hippel, LLP.