The underlying premise of the Hague Convention in both wrongful removal and wrongful retention cases is that the child should be returned to his/her State of habitual residence. When a wrongful retention situation arises, the parent seeking the return of the child must show by a preponderance of evidence that:
- the habitual residence of the child immediately before the date of the alleged wrongful retention was in a foreign country;
- the retention is in breach of custody rights under the foreign country’s law; and
- the petitioner was exercising custody rights at the time of the alleged wrongful retention
The first factor is the most heavily litigated factor in terms of what qualifies as the child’s “habitual residence.” In Mozes v. Mozes, the Court determined the child’s “habitual residence” by examining first whether the parents both formed a “settled intent” to change the child’s residence to the United States. 239 F.3d 1067 (9th Cir. 2001). Although the children had moved to the United States from Israel more than a year prior to the litigation, the Court found that their habitual residence would still be Israel if the intent was always to return to Israel.
In contrast, the Court in Menechem v. Menechem, 246 F.Supp.2d 437 (D. Md., 2003) found that the children’s habitual resident was the United States after they had resided in the United States for two and half years after moving from Israel. In that case, both parents had intended to change the children’s residency to the United States when they moved from Israel, as evident by their decision to enroll the children in school in the United States and their search for a house in the United States toddler new balance shoes. It was only after the parties’ marriage ended that the father returned to Israel and sought custody of the children under the Hague Convention. The Court denied the father’s claim for wrongful retention.
If the party seeking return of the children successfully proves his or her case for wrongful retention by establishing these three factors, the child must be returned to his or her State of habitual residence unless the opposing party can establish one of four possible affirmative defenses. These defenses are:
- the proceeding was commenced more than one year after the removal of the child and the child has become settled in his or her new environment;
- the person seeking return of the child consented to or subsequently acquiesced in the removal or retention;
- there is a grave risk that the return of the child would expose it to physical or psychological harm; or
- the return of the child would not be permitted under the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
The majority of disputes fall under the first factor, as the concept of “settled in” is subject to interpretation and varies from case to case. Courts have looked to the following factors to evaluate whether or not a child has settled in his or her new environment:
- the age of the child
- the stability of the child’s new residence
- whether the child attends school or daycare consistently
- whether the child attends church regularly
- the stability of the mother’s employment
- whether the child has friends and relatives in the new area
The Court in In Re Koc additionally considered the parent’s immigration status, finding that the uncertain immigration status of the mother and child due to an expired visa suggested that the child is not well settled in the new country. 181 F.Supp.2d, 136, 154 (E.D.N.Y. 2001).
The Court must weigh each of these factors and the circumstances surrounding the child’s life in the new country to determine if the child has in fact “settled in” to the new environment. However, even if the Court does find the child has settled in, this does not guarantee that the child will not be returned to his/her State of habitual resident air max 90 essential. The Court in Friedrich v. Friedrich stated that “a federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.” 78 F.3d 1060, 1067 (6th Cir. 1996). Thus, even if the party can prove one of these affirmative defenses, the Court still has the overall discretion to order the return of the child.