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.