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Oklahoma Law Review Volume 63 | Number 4 Symposium: Divorcing the Multi-National Family 2011 The Meaning of "Habitual Residence" Under the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Convention on the Protection of Children Jeff Atkinson Follow this and additional works at: https://digitalcommons.law.ou.edu/olr Part of the Family Law Commons, and the International Law Commons Recommended Citation Jeff Atkinson, The Meaning of "Habitual Residence" Under the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Convention on the Protection of Children, 63 Oᴋʟᴀ. L. Rᴇᴠ. 647 (2011). This Introduction is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. THE MEANING OF “HABITUAL RESIDENCE" UNDER THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION AND THE HAGUE CONVENTION ON THE PROTECTION OF CHILDREN JEFF ATKINSON* Table of Contents I. Importance of “Habitual Residence” in Hague Convention Cases . 647 II. Lack of Fixed Definition of “Habitual Residence” . 648 III. Need for “Settled Purpose;” General Description of “Habitual Residence” .................................................. 649 IV. Perspective of Child vs. Perspective of Parents . 650 V. Factors Considered When Determining “Habitual Residence” . 654 A. Factors Related to Parental Intent . 654 B. Factors Related to Acclimatization of the Child . 656 VI. Comparison of “Habitual Residence” and Jurisdictional Principles of the UCCJEA .............................................. 658 VII. Conclusion .............................................. 660 I. Importance of “Habitual Residence” in Hague Convention Cases The Hague Convention on the Civil Aspects of International Child Abduction1 provides for the prompt return of children who have been * Copyright, 2011, Jeff Atkinson. Jeff Atkinson teaches at DePaul University College of Law, Chicago. He also serves as a professor-reporter for the Illinois Judicial Conference, responsible for training Illinois judges in Family Law. Professor Atkinson is the author of four books on Family Law, including MODERN CHILD CUSTODY PRACTICE (2d ed. LexisNexis 2010). The author=s e-mail address is: [email protected]. 1. Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 (entered into force Dec. 1, 1983) [hereinafter CCAICA]; see also Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494 (Mar. 26, 1986). Drafting of the Hague Convention on the Civil Aspects of International Child Abduction was concluded at the Hague in the Netherlands on October 25, 1980. See id. The United States Senate ratified the Convention in October 1986. The text of the Convention and related materials are available online. See Full Text: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, http://www.hcch.net/index_en.php?act= conventions.text&cid=24 (last visited June 24, 2011). The U.S. State Department=s website also contains material regarding International Parental Child Abduction. See International Parental Child Abduction, TRAVEL.STATE.GOV., http://travel.state.gov/abduction/abduction_580.html (last visited June 24, 647 Published by University of Oklahoma College of Law Digital Commons, 2011 648 OKLAHOMA LAW REVIEW [Vol. 63:647 wrongfully taken from their state of habitual residence or wrongfully retained outside their state of habitual residence.2 Thus, a key element of an action under the Hague Convention is ascertainment of the child=s state (country) of habitual residence. If a state from which a child is taken not found to be the child=s habitual residence, the return remedy of the Convention is not available.3 Under the International Child Abduction Remedies Act (ICARA), the burden of proof for proving the child=s state of habitual residence is preponderance of the evidence.4 The meaning of “habitual residence” also is important for another Family Law Convention B the Hague Convention on the Protection of Children B which determines which country has jurisdiction to determine a child=s custody or protect a child=s property.5 The United States ratified the convention in 2010.6 II. Lack of Fixed Definition of “Habitual Residence” The Hague Abduction Convention does not define “habitual residence.” The term is commonly used in international conventions covering a variety of subjects, and the drafters of the conventions deliberately avoided seeking 2011). 2. See CCAICA, supra note 1, at art. 3 (“The removal or the retention of a child is to be considered wrongful where B (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”); CCAICA, supra note 1, at art. 12 (“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”). 3. See Holder v. Holder, 392 F.3d 1009, 1014-15 (9th Cir. 2004). 4. See 42 U.S.C. '' 11603(e)(1) (2006) (“A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence B (A) in the case of an action for the return of a child, that the child has been wrongfully removed or retained within the meaning of the Convention . .”); Robert v. Tesson, 507 F.3d 981, 994-95 (6th Cir. 2007); Humphrey v. Humphrey, 434 F.3d 243, 246 (4th Cir. 2006). 5. See Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co- operation in Respect of Parental Responsibility and Measures for the Protection of Children, Oct. 19, 1996, 2204 U.N.T.S. 39130, available at http://hcch.e-vision.nl/upload/conventions/ txt34en.pdf. 6. Press Release, U.S. Sec’y of State, U.S. Signature of the Child Protection Convention (Oct. 22, 2010), http://www.state. gov/secretary/rm/2010/10/149860.htm. https://digitalcommons.law.ou.edu/olr/vol63/iss4/3 2011] THE MEANING OF “HABITUAL RESIDENCE” 649 to impose a precise, fixed definition. A 1989 Hague Convention case from the United Kingdom, In Re Bates,7 frequently cited in the United States,8 stated: “It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions.”9 Courts in the United States also have noted that the Convention does not provide a definition of “habitual residence.”10 The Ninth Circuit Court of Appeals said the decision to not include a definition of “habitual residence” in the Convention “has helped courts avoid formalistic determinations but also has caused considerable confusion as to how courts should interpret ‘habitual residence.’”11 III. Need for “Settled Purpose;” General Description of “Habitual Residence” In In re Bates, the court described “habitual residence” as follows: [T]here must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has 7. No. CA 122.89, 1989 WL 1683783 (UK), High Court of Justice, Family Division Court, Royal Court of Justice (1989). 8. See generally Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001); Feder v. Evans-Feder, 63 F.3d 217, 222B24 (3d Cir. 1995); Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993). 9. In re Bates, 1989 WL 1683783, at *13 (quoting 1 DICEY & MORRIS ON THE CONFLICT OF LAWS 166 (Lawrence Collins et al. Eds., 11th ed. 1987)). 10. See, e.g., Nicolson v. Pappalardo, 605 F.3d 100, 103-04 (1st Cir. 2010); Gitter v. Gitter, 396 F.3d 124, 131 (2d Cir. 2005); Silverman v. Silverman, 338 F.3d 886, 897 (8th Cir. 2003), cert. denied, 540 U.S. 1107 (2004); Mozes v. Mozes, 239 F.3d 1067, 1071 (9th Cir. 2001); see also Linda Silberman, Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis, 28 FAM. L.Q. 9, 20 (1994) (“The Convention does not provide a definition of habitual residence, but identifying the State of habitual residence is critical.”). 11. Holder v. Holder, 392 F.3d 1009, 1015 (9th Cir. 2004). Published by University of Oklahoma College of Law Digital Commons, 2011 650 OKLAHOMA LAW REVIEW [Vol. 63:647 a sufficient degree of continuity to be properly described as settled.12 It is generally agreed a person can have only one habitual residence at a time,13 although as the Ninth Circuit has noted, “The exception would be the rare situation where someone consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each.”14 Determination of habitual residence “is a fact-specific inquiry that should be made on a case-by-case basis.
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