Gitter – Habitual Residence Ruling in the Second Circuit

Some Gitter highlights:

“We would be hard pressed to conclude, for example, that a child who has spent fifteen years abroad in the same State is not habitually resident there, even if the parents intended some day to return and did not intend that the child acquire a new habitual residence.”

“An analysis of the evidence of acclimatization allows courts to take account of the fifteen years spent abroad.”

“As Mozes cautions, however, courts should be “slow to infer” that the child’s acclimatization trumps the parents’ shared intent. Mozes, 239 F.3d at 1079. The object of the Convention is to dissuade parents and guardians from engaging in gamesmanship with a child’s upbringing in order to secure an advantage in an anticipated custody battle. Permitting evidence of acclimatization to trump evidence of earlier parental agreement could “open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit.” 

” We specifically focus on the intent of “the person or persons entitled to fix the place of the child’s residence,” id. at 1076 (quoting E.M. Clive, The Concept of Habitual Residence, 1997 JURID. REV. 137, 144), which is likely to be the parents in most cases. True, the Hague Convention is interested in the habitual residence of only the child, see, e.g., Hague Convention, art. 3 & 4, and it would therefore seem logical to focus on the child’s intentions. However, as the Ninth Circuit recognized, “[c]hildren … normally lack the material and psychological wherewithal to decide where they will reside.” Mozes, 239 F.3d at 1076 (internal footnote omitted).7 Thus, it is more useful to focus on the intent of the child’s parents or others who may fix the child’s residence. Regardless of the evidence relied upon, the parties’ intent is “a question of fact to which we defer to the district court.” Id. at 1076.”

“As Mozes cautions, however, courts should be “slow to infer” that the child’s acclimatization trumps the parents’ shared intent. Mozes, 239 F.3d at 1079. The object of the Convention is to dissuade parents and guardians from engaging in gamesmanship with a child’s upbringing in order to secure an advantage in an anticipated custody battle. Permitting evidence of acclimatization to trump evidence of earlier parental agreement could “open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit.” Id.”

 

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