On October 21, 2021, the U.S. Court of Appeals for the Fifth Circuit affirmed the ED of Louisiana in its denial of Mr. Christopher Harm’s request to return his child to Ireland using the Hague Abduction Convention.
The case, in many respects, is relatively straight forward. The appellate issue was whether Ireland was the child’s habitual residence. The Fifth Circuit ran through a variety of factual findings from the trial court, some that weighed in favor of Ireland being the habitual residence, such as the parents’ original intent to set up Ireland as a home base, the child’s involvement in a toddler group, the application for the child’s residency status, a medical visit card for the child, the mother’s international driver’s license, and her social media posts calling Ireland “home,” among other things. There were also other factors that weighed in favor of Ireland not being the child’s habitual residence, the most prominent being that the Mother was a musician and was barely ever in Ireland with the child. She had performances throughout Europe and the U.S., and was constantly traveling, and brought the child with her (only on rare occasion leaving the child with her father). Based on Monasky v. Taglieri, the appellate court is only going to upend the trial court’s conclusion on habitual residence if the trial judge committed clear error, and that is not the case here.
I do want to reaffirm a few important legal issues, however, based on the language selected by the court in its initial paragraphs of the opinion. In the opinion, the court states, “Federal courts do not ordinarily decide custody disputes. But in rare instances, such as this one, such courts are called on to decide which country has jurisdiction over an international child-custody dispute.” The court then says, “[t]hat country [the child’s habitual residence] is the jurisdiction of any Hague Convention custody dispute between such child’s parents.” These quotes do not alter the underlying resolution of this case, but they are incorrect statements. The Hague Abduction Convention, in Article 1, includes the following objectives: to “secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.” Contrast that with the Hague Child Protection Convention, which the U.S. has signed in 2010, but has not ratified. In Article 1 of that treaty, the objects include, “to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child…” This treaty also has, as one of its objects, a determination of applicable law, which is also misstated by the Fifth Circuit. A Hague Abduction Convention suit is unequivocally not a case about jurisdiction. It is true that in many circumstances a child’s habitual residence is ultimately the venue that has jurisdiction to resolve custody over the child. But that is not always the case, and, at times, more than one court may have authority under its domestic/internal law to resolve custody. A Hague Abduction Convention suit is not a “Hague Convention custody dispute.”