Feder v. Evans-Feder

United States District Court for the Eastern District of Pennsylvania · Family Law

Family LawHague ConventionInternational Child AbductionHabitual ResidenceHague ConventionICARAhabitual residencewrongful retention

Facts

The parties, American citizens, lived with their son Evan in Pennsylvania until January 1994, when the mother reluctantly accompanied the father and Evan to Australia after the father accepted a job there. The mother went only as a last attempt to save the marriage, did not commit to staying, kept her Pennsylvania driver's license, and took no steps herself to obtain Australian permanent residency, although the family lived in Australia for slightly less than six months and Evan attended nursery school there. In June 1994, after the marriage worsened, the mother returned with Evan to Pennsylvania on tickets purchased by the father and then refused to send Evan back to Australia. The father petitioned for Evan's return, arguing Australia had become Evan's habitual residence.

Issue

Whether Evan was habitually resident in Australia at the time the mother refused to return him there, such that her retention of him in Pennsylvania was wrongful under the Hague Convention and ICARA. More specifically, the question was whether Evan's less-than-six-month stay in Australia changed his prior habitual residence in the United States.

Rule

Under the Hague Convention, a retention is wrongful only if it breaches custody rights under the law of the state where the child was habitually resident immediately before the retention and those rights were being exercised. Habitual residence is not governed by technical domicile concepts or arbitrary statutory time periods; it is a fact-sensitive inquiry that focuses on the child, examines past experience rather than future intentions, and requires a sufficient degree of continuity and settled purpose. For a very young child, the parents' desires and actions cannot be ignored in deciding whether the child acquired a new habitual residence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Brooks and Omar Brooks lived with their four-year-old daughter in Cleveland, Ohio for most of the child's life. After Omar accepted a position in Dublin, Ireland, Nina reluctantly went with them only to see whether the marriage could improve, kept her Ohio driver's license, and never signed residency papers; after five months abroad, she returned with the child to Ohio and refused to send her back.

If Omar files a Hague Convention petition in federal court seeking the child's return to Ireland, which result is most consistent with the governing rule?

Explanation. Wrongful retention requires proof that the child was habitually resident in the foreign country immediately before the retention. Habitual residence is a fact-sensitive inquiry focused on the child's past experience and whether life there had sufficient continuity and settled purpose. For a very young child, the parents' objective actions and intentions matter because the child cannot choose a residence independently. Here, Nina's move was temporary and on a trial basis, she retained ties to Ohio, and the child spent only five months abroad, so the petitioner likely fails to prove a change in habitual residence. (Derived from Feder v. Evans-Feder (n.d.).)