The case of Schwartz v. Hinnendael gives an interesting assessment of both the Monasky habitual residence standard and the grave risk of harm analysis. I suggest reading the actual case to get the best view of how the court weighed all the facts and reached its conclusion. I think the conclusion shows how fact-intensive these cases are, and how judge-specific certain results may be.
The parties are both Americans, met in California, and were married in the United States. The parties separated, and Ms. Hinnendael initiated a divorce proceeding in the United States. Ms. Hinnendael then moved to Mexico for work. Mr. Schwartz followed, and the two reconciled. Ms. Hinnendael ended work with her company (where she sold time shares), but Mr. Schwartz started working for the same company. The couple then had two children (one in 2018 and the other earlier this year (2020)), both in Mexico. Ms. Hinnendael removed the children from Mexico and flew to Wisconsin, where her family resides, on June 17, 2020. Mr. Schwartz filed a return petition using the Hague Abduction Convention. The Eastern District of Wisconsin denied his return petition.
First, the Court determined that the children were habitually resident in the United States, even though they were both born in Mexico and had resided full-time in Mexico with both parents since their births. The court reviewed Monasky, and determined that the family never had the intention of a long-term residence in Mexico. Mr. Schwartz was there on a work-permit, which he then used to apply for and obtain permanent residency, the children were both dual U.S.-Mexican nationals, but, Ms. Hinnendael was only there on a tourist visa, requiring her to return to the United States every six months. They owned no property, and the children were young and had few connections to Mexico, but for their parents. Their extended families were in the United States, and the eldest child had taken nine trips to the United States during his short life.
Second, the Court determined that even if Mr. Schwartz had made out a prima facie case, the grave risk of harm exception applied. It appeared that Mr. Schwartz used cocaine and had only just started drug treatment, his Facetime calls with the children were tumultuous, but, the court acknowledged he loved and would not hurt his children. The children were, however, in the primary care of their mother, who had raised them as she was not working while in Mexico, and an expert witness testified that removing them from her care and returning them to the “non-custodial” parent in Mexico would present a psychological harm to them.
As a note, Mr. Schwartz did initiate a custody proceeding in Mexico. When the Eastern District of Wisconsin issued its opinion on October 16, 2020, the children had only been resident in Wisconsin for four months, short of the six-month requirement to establish a home state under the UCCJEA. It will be interesting to see if Mexico will issue a custody order, and the next steps for this particular family in what will no doubt be ongoing litigation.