On January 18, 2022, the Supreme Court of Kings County, NY denied a Father’s petition for emergency jurisdiction to return his son to England, and his request for an opinion that England was the child’s habitual residence.
The parties are parents to one child, adopted in 2013. The family resided in England until 2014 when the Father received a job offer in San Francisco. The family relocated. Their marriage soured, and the Mother asked the Father to move out of their SF home with the Child. In 2016, the Father sought a divorce in the Superior Court of California. In 2018, the Mother moved to NY for medical treatment. In December 2019, Father and Child unilaterally moved from San Francisco to England. The Mother thought the move was temporary. The Father and Child visited the Mother in NY for the holidays, and during a school break in February 2020, but then COVID occurred, limiting travel. The parties exchanged a lot of emotionally charged texts, but, before a July 2021 visit to NY, the texts seemed to focus on a serious exploration of schools for the Child in NY, to start in Fall 2021. The Father and Child were scheduled to return to England in late August 2021. The Mother thought it was to collect the child’s belongings, but when she learned that it was intended to be a permanent return to England, she withheld the child. On September 21, 2021, the Father sought an emergency custody order from the Superior Court of California for permission to return to England with the child. The California court questioned whether it had jurisdiction to resolve the case under the UCCJEA, with everyone having left California. Simultaneously, the Father filed an application for the return of his child to England pursuant to the Hague Abduction Convention. He then sought temporary emergency custody from the NY family court to return the child to England.
The NY family court, because of the pending California custody case, which remained open and unresolved despite the skepticism that California has jurisdiction, denied the Father’s application.
To bolster his presumptive Hague Abduction return petition, the Father also asked that the NY family court determine that England is the child’s habitual residence. The court applied the Monasky standard and concluded that the United States (particularly NY) was the child’s habitual residence. The parents did not share an intent to permanently relocate the child to England, the parents began exploring NY schools for the child to attend, the child had visited his mother in NY, and there was no evidence that the child had acclimated to England (albeit, perhaps because of COVID lockdowns). There was no mention of family outings, visits, or continuous relations in England for the child.