The parties are the joint legal custodians of the parties’ child, age 4 and born in France. The primary residence of the child is fixed with the Respondent Mother through a French court order. A French court order also instituted a travel ban, preventing the Mother from removing the child from France. She did, however, manage to travel by car to Spain, and fly from a Spanish airport to the United States on or about June 2022. Shortly after discovering that the child and Respondent were missing, the Petitioner Father sent some text messages that might be construed as consenting to the child’s relocation to the United States. He argued that they were sarcastic and distressed, and not intended as consent. In August 2022, Father traveled to the U.S., retrieved the child, returned to France, and the Mother followed. From August 2022 to November 2022, Mother spent time in South Korea, leaving the child in Father’s primary care. On November 14, 2022, Mother took the child and left for the U.S. When Father located them in December 2022, he filed a Hague Abduction Convention return petition.
The key issue in this case is the child’s habitual residence. The court pulled a lot of language from Monasky v. Taglieri in examining where this child is habitually resident. It observed that both parties, but particularly the Mother, defined this child’s habitual residence not in terms of a country so much as being with a parent, most notably with her. “While the Court does not outright reject the testimony and evidence about the Child’s emotional ties and feeling “at home” with the Parties, the Court determines for a number of reasons that it would be error to determine habitual residence in reference to a person instead of a country.” “Moreover, as an element of an ICARA claim, the habitual residence determination is made in part to determine the law used for assessing rights of custody and the exercise of those rights.” The Mother argued that the French custody order specifically used the words that the child’s “habitual residence is to be set with [Mother].” The court found that this language, if accurately translated, is not dispositive, and not to be given the weight that the Mother argued it should have.
The Court concluded that France was the child’s habitual residence. The child was born in France, had their social networks in France, and was the subject of French custody orders prohibiting the child’s removal from France. Furthermore, the Mother brought the child to the United States in June 2022 and established no ties to the community or economy. Before the French courts put in place a travel ban (ne exeat), the Mother stayed in France with the child voluntarily. The fact that the Father traveled to the United States and unilaterally returned the child to France (arguably a “re-abduction”), without legal recourse, doesn’t change the fact that France remained the habitual residence, and it never shifted to the U.S.
The mother has filed an appeal.