Splitting the Baby: Does the Child Have a Say?

Divorces can be hard enough on children without being abducted by one of their parents. Unfortunately, this problem occurred frequently enough for 98 countries to adopt an international law addressing this problem. The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides for a prompt return of children to their “habitual residence” in the event of being wrongly removed or retained in a foreign country by one of their parents. 22 U.S.C. § 9003(e). The Convention sets out to protect children in the context of custody battles by deterring parents from crossing international borders in an attempt to gain advantage in a more favorable jurisdiction.

The sole purpose of the Convention is to protect children who are uprooted from their homes in the wake of their parents’ split by returning them to their “habitual residence.”  Unfortunately, the Convention failed to define what constitutes a child’s “habitual residence,” which gave rise to competing interpretations of the term. The point of contention is whether the child’s perspective rules in determining where they must be returned or if greater weight should be given to the parents’ last shared intent regarding the child’s residence.

The Split

Courts of most contracting nations evaluate both of these factors – the child’s perspective as well as the parents’ shared decision prior to the break-up. However, courts in the U.S. disagree regarding which one of them is dispositive. In Cohen v. Cohen (8th Cir. 2017), after a mother and child moved to St. Louis from Israel, the relationship between the parents deteriorated. The father filed a request to have the child returned to Israel under the Convention. He asserted that the parents agreed that if the father will be unable to join his family in the United States, they will return to Israel. He “urge[d] the court to adopt the standard applied in the Second Circuit, among others, which gives dispositive weight to parental intent,” in reference to Gitter v. Gitter (2nd Cir. 2005).  In Gitter, the Second Circuit concluded that:

“…the first step in determining a child’s habitual residence is to inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared.”

The Cohen court refused to adopt this standard, giving greater weight to the fact that the child has spent a significant portion of his life in the United States, where he has been going to school, socializing, and making other significant connections in the community.  The Eighth Circuit “declined to adopt this standard and decided that [they] determine habitual residence from the child’s perspective.” Although the court admits that the parents may have a more mature perspective on the situation, their primary goal is to ensure the child remains in their habitual environment.

The child-focused approach is in the minority, distinct from the “Mozes framework” proclaimed in the Ninth Circuit’s Mozes v. Mozes (2001). Here, the Ninth Circuit held that children “normally lack the material and psychological wherewithal to decide where they will reside,” so the dispositive weight is given to the last shared intent of “persons entitled to fix the place of child’s residence.” The Fourth, Seventh, and Eleventh Circuits, among others, adopted this perspective. However, the court in Redmond v. Redmond (7th Cir. 2013) attempted to reconcile the two approaches, emphasizing that “habitual residence” should be a “practical, flexible, factual inquiry, not a “fixed doctrinal test.” While it declared that it also subscribes to the Mozes framework, the Seventh Circuit Court declared that courts should consider both elements and determine which one deserves greater weight on a case-by-case basis.

Looking Forward

Since the Convention focuses on preventing children from needlessly suffering as a result of their parents’ actions, the Second Circuit’s decision to prioritize the child’s perspective seems like the just approach. However, the majority view, articulated by the Ninth Circuit, also have some traction, particularly in situations involving younger children. Although the courts have an interest in establishing a consistent interpretation, many commentators emphasize the importance of flexibility in determining the meaning of “habitual residence.” Depending on the child’s age and circumstances, a case-by-case approach will likely result in more equitable decisions than when applying a rigid, uniform principle. If the Supreme Court ever decides to address this question, it could likely establish a fairly flexible test, similar to the Redmond opinion, allowing the courts a lot of discretion in subsequent cases.