These are the facts in a recent parental child abduction case applying the Hague Convention on the Civil Aspects of International Child Abduction:
• Parents and two twins live in Texas for over 12 months (5/97 to 6/98)
• Parents and twins travel the U.S. for over 6 months (6/98 to 12/98)
• Entire family moves to France and live there for 7 months (12/98 to 7/99)
• Couple separates and twins live with just mother for 26 months in United States (7/99 to 9/01)
• Couple reunites and twins live with both parents in France for 10 months (9/01 to 7/02)
• Mother separates from father and returns alone to United States. Twins live with just father in France for 5 months (7/02 to 11/02)
• Mother returns to France to care for child with appendicitis for 1 month (11/02 to 12/02)
• Twins return to United States and live with just mother for 9 months (12/02 to 9/03)
• Mother and twins return to France to make final effort at marriage for 19 days (9/03 to 10/03)
• Mother returns to United States with twins for good (10/8/03)
• Both mother and father file legal proceedings for divorce/separation and father files criminal complaint in French court against mother for child abduction.
If you do the math the twins lived 18 months in the United States with both parents, 37 months in the United States with just mother, 19 months in France with both parents, and 5 months in France with just father. But if you focus on the twins’ later years (since their 4th birthday in May 2001), they lived 13 months in the United States and 17 months in France before they were “abducted” in October 2003.
The legal question is whether the twins had been unlawfully abducted from their “habitual residence” in France under the Hague Convention on the Civil Aspects of International Child Abduction. Can you guess what the Sixth Circuit ruled was the “habitual residence” of the twins?
You guessed it right: France was not the habitual residence of the twins and therefore the mother did not unlawfully abduct the twins from France. Here is the key excerpt in the Sixth Circuit case of
Robert v. Tesson:
[W]e hold that even though the district court applied an incorrect legal standard in determining Thomas and Alexis’ habitual residence, it reached the correct result in holding that they were habitual residents of the United States at the time of their removal from France….
[A] preponderance of the evidence demonstrates that the boys were habitual residents of the United States at the time of their removal from France.
Even assuming that the boys acquired an habitual residence in France during their 15 month stay in that country, the boys took up a new habitual residence in the United States during the period beginning December 2002 when they lived in Denver. While in Denver, the boys attended an American kindergarten. They vacationed with Respondent’s sister and family to Yellowstone National Park, and they visited their maternal grandmother in Baton Rouge. As the magistrate judge found, the children became “more and more socialized in the United States.” They attended American schools, formed meaningful relationships with their American relatives, and participated in excursions throughout the United States.
This America-centered experience contrasts dramatically with the boys’ contact with France during this period. As the magistrate judge found, the children had “scant contact with their father,” contact which could have helped them maintain a sense of French identity. Similarly, the boys were “largely ignored” by their French relatives, and they celebrated holidays and birthdays almost exclusively with the American side of their family. In effect, the boys’ ties with France were cut while they lived in Denver, and all of these facts point to a finding that the boys were habitual residents of the United States.
Having determined that the boys were habitual residents of the United States at the time they boarded their September 2003 flight to France, the remaining question is whether or not their habitual residence changed from the United States to France during their three week stay at Mas Verdoline [in France]. A preponderance of the evidence suggests that it did not. Admittedly, some evidence points to a conclusion that the boys did acquire a new habitual residence while in France. The boys were already fluent in French, and they were briefly enrolled in a French school. These facts, however are not sufficient to outweigh the volumes of evidence suggesting that the boys would have perceived their stay in France to be merely a temporary journey before they returned to a permanent residence in the United States. First, their French father did little to welcome them to France or communicate that they should expect a long stay…. Second, … Thomas and Alexis brought only “two seasons worth of clothing” to France, a fact that suggests a return to the United States when the weather became warmer. Third, the actual length of the boys’ stay in France was only three weeks, hardly enough time for them to become “acclimatized” to a new residence, and far less than the ten months they had recently spent in the United States. Finally, the rough state of Mas Verdoline would suggest to any child that the French house was completely unlivable…. [T]hey had few experiences that would have acclimatized them to their new surroundings, or which would indicate a settled purpose to remain in France. Indeed, most of their experiences at Mas Verdoline suggest the opposite. Accordingly, we hold that the twins’ habitual residence at the time of their removal from France was the United States.
The decision makes sense to me. They quite plausibly had a new habitual residence in France for 15 months until December 2002, but then established a new habitual residence for 9 months from December 2002 to September 2003. The fact they they make a final go at the marriage and the children live in France for just three weeks is insufficient to establish a new habitual residence.
Unfortunately the court’s approach to interpreting the treaty leaves much to be desired. It does not even mention the Vienna Convention on the Law of Treaties or utilize the standard interpretive tools recognized for treaty interpretation (plain meaning, object and purpose, context). It does look to the purpose of the Convention in passing, but focuses primarily on one Sixth Circuit precedent and two other circuit precedents. It acknowledges that the Supreme Court has held that a court should “find the opinions of our sister signatories to be entitled to considerable weight,” but then states that the legislation implementing the treaty is a “superceding” act of Congress and these decisions from other countries cannot overcome that superceding legislation.
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