On July 12, 2021, the U.S. District Court for the ND of Illinois ordered the return of the Mr. and Mrs. Ho’s child to New Zealand. The parties are both permanent residents of New Zealand. Petitioner Father is a citizen of Taiwan, and Respondent Mother is a citizen of the United States. In 2016, the parties moved to New Zealand for Petitioner’s job, and while there, Respondent concluded her graduate studies, graduating in December 2018. In October 2018, the parties’ son was born in New Zealand. In 2018 to early 2019, Petitioner applied for employment in the USA, accepting a position with Garmin USA in Kansas in March 2019. On March 14, 2019, however, he emailed Garmin USA and declined the job. Respondent participated in drafting that email. In later March 2019, Respondent obtained her first NZ drivers’ license, and arranged for her sister’s dog to be shipped to NZ, with an offer for the sister and dog to live with the family. Respondent created a video audition for the Great New Zealand Bake Off, where she said that she “now calls New Zealand her home.” In April 2019, the parties signed 2-3 year cell phone contracts with NZ cell service. Respondent was active in an improv group in NZ, and remained active until only 5 days before she departed with the parties’ child to the USA. In March 2020, apparently in an effort to save his marriage, Petitioner began applying to jobs in the USA and Canada again. In April 2020, Petitioner consulted a US immigration attorney, but never followed through applying for a visa or new green card. The parties scheduled a marriage counseling session in NZ for June 16, 2020. On June 18, 2020, Respondent and the child traveled to Chicago, through LAX, on roundtrip tickets, for a 1-month agreed visit. At some point during that month trip, Respondent decided she was going to remain in the USA, and when she didn’t get on her return flight, she told Petitioner that she had a fever, and was waiting for the results of a COVID test. Respondent testified as to several alleged incidents of violence, perpetrated by Petitioner, with the most information revolving around an incident at K-Mart where she indicated she was hit on the head. In October 2020, she sought and obtained a protection order from the family court in Illinois. Petitioner filed this request for return of their child under the Hague Abduction Convention in November 2020.
The primary dispute in this case revolved around the minor child’s habitual residence. The Respondent argued in closing that the minor child had no habitual residence, because the parties never shared an intent of where they would reside long-term, and she certainly did not agree to residing long-term in NZ. Citing to Monasky, the court said that “an actual agreement between the parents is not necessary to establish a young child’s habitual residence.” The Supreme Court, in Monasky, rejected the argument that a child have no habitual residence because of a lack of agreement, as it would then permit a parent to unilaterally block a habitual residence finding, leaving infants vulnerable to abduction. The parents may have had off-and-on plans to potentially relocate to the USA, but they never followed through, and at the time of the retention in July 2020, they had not abandoned NZ as their residence.