On July 1, 2009, I received a decision on one of the more interesting cases I have worked on since embarking on my legal career. The case started out as a custody case in Juvenile Court, but quickly spiraled into a full-scale federal trial; and subsequently, an appeal in the United States Court of Appeals for the Sixth Circuit. It’s safe to say that this was not your typical custody case. What made this case different, among other things, was that the family had moved to Ohio from Israel and the mother had returned to Israel. While in Israel, she decided to pursue custody and filed a Petition for the return of the minor child under the Hague Convention on the Civil Aspects of International Child Abduction, claiming that our client, the child’s father, had kidnapped the child and wrongfully retained him here in the United States instead of allowing him to return to Israel.
The Hague Convention was ratified in 1980 and signed by the United States in 1986. The primary purpose of the Hague Convention is to protect children from wrongful removal or retention from their nation of habitual residence and to put into place a procedure that promptly returns them to their place of habitual residence. The important considerations are that a parent must have established legal rights in their home nation, and there must have been a wrongful removal or retention from the child’s habitual residence.
“Habitual residence” is a concept that has not been clearly defined either by statute or by case law. The concept can be tricky when the child has lived for extended periods of time in more than one country. It is not as simple as where the child is presently residing, or domiciled, but rather where the child has been present long enough to become acclimatized and where there is a degree of settled purpose from the child’s perspective. There are certain factors that must be analyzed to make the determination of habitual residence. These factors can include academic programs, sports, social engagements, excursions, and connections with people. Additionally, when a child brings more personal possessions than usual, that can indicate settled purpose from the child’s perspective.
In our case, the child and his parents had been present in the United States for roughly six months when the mother decided to return to Israel. At that time, the child was 2-1/2 years old. The intention when they moved was for the family to remain in the United States permanently, and efforts were underway to obtain citizenship for the parents and the child. They packed what they could and moved to Ohio from Israel to start their life together here. Troubles arose in the marriage, and the mother left to return to Israel about six months later. The father tried to convince her to stay and fight for custody here in the United States, but the mother left to return to her family in Israel. There was a dispute over what efforts each parent made to have the mother to remain here, but ultimately, she returned to Israel where she filed for a divorce and for custody and child support.
In an odd wrinkle, the marriage in Israel was a religious marriage that was not officially recognized here in the United States as a legal marriage, so the father filed for custody rights in Juvenile Court in Ohio. This was an ongoing battle until February, 2008, when the mother filed a Petition under the Hague Convention in the United States District Court for the Southern District of Ohio for the return of the child. Those of you who think that the federal judicial system moves slowly are normally correct; but in this case, because it was on an expedited docket, we conducted extensive discovery and pretrial proceedings in less than two months (including depositions in Ohio, Israel and Kosovo). Most of the depositions required us to find a translator who was fluent in Hebrew. Finally, we had to secure a number of documents from Israel.
A three-day trial was conducted in federal court in Dayton with the eventual decision filed on April 30, 2008. Click here to read it. The Court decided that there was a wrongful retention on the day that the mother left because it was the last date that the child was present in the United States with both parties’ permission. It next determined that the child’s habitual residence was the United States, and more specifically, here in Ohio. The basis for that determination was that the six months he had been in the United States and the brief period he visited the year prior had been sufficient to acclimatize him to the United States. From the child’s perspective, the United States was his home where he had a degree of settled purpose. The trial court noted that the child was in school full-time in the United States and had been since his arrival. His English skills had surpassed his Hebrew skills. He had made numerous friends at school and the Synagogue, and he attended numerous parties and other activities with these friends. He took numerous excursions, regularly going to the local Air Force Museum. He had regular contact with his father and paternal grandmother, as well as friends and teachers. Finally, all of his possessions were here in the United States.
Some courts have considered the intent of the parents when moving, if the child is too young, in order to determine habitual residence. The Sixth Circuit has not officially established this test, but the trial court did address the parties’ shared intent of permanently relocating to the United States as something that it would consider if permitted to do so.
The mother decided to appeal the trial court’s decision claiming that the trial court was incorrect in its determination. She argued that the analysis was incorrect and the factual findings were not supported by the evidence. She made several other procedural arguments which were not addressed based on the outcome of the appeal.
The Court of Appeals determined the case on the basis that there was no wrongful retention. It stated that since both parents had equal rights of custody under Israeli and Ohio law, there was no wrongful retention. There was no wrongful removal since both parties agreed to take the child to the United States, and there was no wrongful retention since both parties had equal rights. At most, the Court determined that there may have been a breach in the rights of Mother’s access to the child. That was not enough to overturn the decision of the trial court. It determined that there was ample evidence on the record to support the trial court’s decision. A dissenting opinion was filed that would have reversed the decision and remanded for a more thorough analysis of why Israel was not the habitual residence of the child, rather than focusing solely on why the United States was his habitual residence. Click here to read the decision rendered by the United States Court of Appeals for the Sixth Circuit.
The mother has requested the Court reconsider the decision. The increasing globalization of society makes it more likely that there will be an increase in these Hague Convention cases. If you are moving to a new country, it is important to know what steps should be taken to guarantee that you are not jeopardizing your rights of custody or access to your child. To read the Hague Convention Treaty, click here. If you find yourself likely to become involved in an international divorce or custody case, these cases are very fact-specific and extremely complicated. No two are the same, and it is most often necessary for a party to secure legal representation in both countries. For a list of the approximately 75 countries that are members of the Hague Convention, click here. Also, merely because a country is a party to the Hague Convention does not mean that it will enforce its treaty obligations. For example, the U.S. State Department has asserted that even our neighbor Mexico is “non-compliant” with the terms of the Convention. Don’t try to navigate these waters alone!
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