Sixth Circuit refines standards in Hague Convention cases

In Robert v Tesson, ___ F3d ___ (2007), the Sixth Circuit Court of Appeals decided a case on November 14, 2007 that refined the legal standard to be applied in determining a child’s “habitual residence” under the Hague Convention. The Sixth Circuit court heard oral argument in this case in October 2007 and rendered its 15-page decision about three weeks later, in response to a letter received from the United States Department of State, Office of Children’s Affairs that emphasized the Hague Convention’s command that Hague Convention matters be resolved “expeditiously.”

The Robert Court held as follows:

1. A child acquires a new habitual residence when, focusing exclusively on the child’ s experience, the child is present in a new country long enough to allow acclimatization, and that presence has a degree of settled purpose;
2. A court should determine a child’s habitual residence under a preponderance of the evidence standard.
3. It was unnecessary to remand to the district court for application of the appropriate standard and proper burden of proof because the factual findings of the lower court, transcripts, depositions, and hundreds of exhibits provided the Circuit Court with a sufficiently developed record that the Court could decide the case expeditiously, as required by the Convention.

The Court quoted an earlier Sixth Circuit holding, Friedrich v Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996) (“Friedrich II”): “The Convention seeks to ‘restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.’ “ The Court restated the purpose of the Hague Convention, which is to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Hague Convention, Preamble.

The point of the Hague Convention is to place the child in the country of his or her “habitual residence,” in other words, “according to the official commentary on the Hague Convention, the Convention should be read to prevent a circumstance where ‘the child is taken out of the family and social environment in which its life has developed.’ “

Basic facts of Robert v Tesson

In this case, the petitioner father, Ivan Robert, appealed a decision by the U.S. district court favoring his estranged wife, respondent Gayle Tesson. He claimed that she had illegally abducted their twins from France and had taken them to the United States. Robert claimed that the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) requires that the children be returned to France.

The case was highly fact-dependent. Thus, the decision contained many pages detailing the twins’ life, from their birth in Texas to the point of removal from France, where they resided from time to time.

Procedural History

Tesson, after leaving France with the twins, filed for legal separation from Robert in the Court of Common Pleas, Warren County, Ohio. Shortly thereafter, Robert filed for divorce in France. He also filed a criminal complaint against Tesson, alleging that she had abducted the children and was holding them outside of France. She was tried and convicted in absentia in France.

Robert filed a petition in the US District Court alleging wrongful removal of the children from France, in violation of the Hague Convention. Trial before a magistrate judge consumed nine days of testimony. Depositions and hundreds of exhibits were admitted. The district court relied upon a Ninth Circuit case, and decided that the parties “lacked a shared intent to remain in France.” The magistrate recommended denial of the petition seeking return of the twins and the district court adopted that report in its entirety. Thereafter, Robert appealed to the Sixth Circuit Court.

What Conduct Violates the Hague Convention?

Under the Hague Convention, the removal of a child from one nation to another is considered wrongful when:

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

What is the proper meaning of “habitually resident” under the Hague Convention?

Because there is no Supreme Court authority on the question of habitual residence under the Hague Convention, the Sixth Circuit began its inquiry with that court’s sole precedent on this issue. In Friedrich v. Friedrich, 983 F.2d at 1399. [“Friedrich I”] That case involved removal of a child from Germany. This child had lived his entire life in Germany before his mother left Germany for the United States, taking the child with her. It was the first reported case in  this country dealing with  interpreting the meaning of "habitual resident."

The Sixth Circuit found Friedrich I to be a “simple case.” The child was found to be a habitual resident of Germany. Id at 1402.

The Robert Court considered five principles articulated in Friedrich I that it said should guide the Court in weighing more complicated decisions.

1. Habitual residence should not be determined through the “technical” rules governing legal residence or common law domicile. Instead, courts should look closely at “[t]he facts and circumstances of each case.”
2. Because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence.  
3. This inquiry should focus exclusively on the child’s “past experience.” “Any future plans” that the parents may have “are irrelevant to our inquiry.”  
4. “A person can have only one habitual residence.”
5. A child’s habitual residence is not determined by the nationality of the child’s primary caregiver. Only “a change in geography and the passage of time” may combine to establish a new habitual residence.

The district court relied not upon the Sixth Circuit’s earlier Friedrich I standards, but based its decision instead upon Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). That court held that the subjective intentions of the parents are all but dispositive of a child’s habitual residence. See Id. at 1076-78.

The Sixth Circuit Court held that the lower court erred by applying the Ninth Circuit’s standard rather than the Sixth Circuit’s binding decision in Friedrich I. According to the Court, the lower court should have focused solely on the past experiences of the child, not the intentions of the parents. Friedrich I, 983 F.2d at 1401. Citing other more recent decisions where a parent’s subjective intentions controlled, the Robert Court said that “[s]uch a rule (where the parent's subjective intentions control) turns the Hague Convention on its head, and it cannot be followed by the Sixth Circuit in light of our Friedrich I decision. Moreover, the Court emphasized, this defeats the Convention’s goal of preventing forum-shopping by allowing a parent to lay the foundation for an abduction by expressing reservations over an upcoming move.

Quoting the official commentary on the Hague Convention, the Robert Court said that this general principle should control: ‘children must no longer be regarded as parents’ property, but must be recognised [sic] as individuals with their own rights and needs.” Perez-Vera Report, at para. 24. Thus, a court’s holding should honor the child’s perception of where home is, rather than one that subordinates the child’s experience to their parents’ subjective desires.

What is the proper standard in determining a child’s “Habitual residence?”

Because Friedrich I was such a “simple case,” the Robert Court elected to use this opportunity to determine what standard should apply when a child has alternated residences between two or more nations. The Court looked at decisions from several other Circuits in its effort to refine its holding on what a child’s habitual residence is.

The Sixth Circuit adopted a holding from the Third Circuit’s decision in Feder v. Evans-Feder, 63 F.3d 217 (3d. Cir 1995) and held that “a child’s habitual residence is the nation where, at the time of their removal, the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ “ Feder, 63 F.3d at 224. The Court stated that this holding “is not only consistent with the collective wisdom of many of our sister Circuits, but it is also consistent with Friedrich I’s holding that a habitual residence inquiry must ‘focus on the child, not the parents, and examine past experience, not future intentions.’ “ 983 F.2d at 1401.

A secondary holding in Robert was that the court should apply a “preponderance of the evidence” standard to prove which country was the children’s habitual residence rather than an unequivocal evidence” standard.

Finally, to resolve the issue of whether France or the United States is the country of the twins’ habitual residence, the Sixth Circuit granted expedited review, and declined to remand to the district court. Applying the standards it had articulated, the Court held that although the district court had applied the wrong standard, it had reached a correct result in holding that the twins were habitual residents of the United States at the time their mother removed them from France. Thus, there was no violation of the Hague Convention and the children were not returned to France.

For guidance in determining whether a child has been acclimatized to a new country and whether their stay in that new country has a settled purpose, the Robert Court turned to a recent decision by the Third Circuit in Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006). Thus instead of focusing on the parent’s subjective intention, the analysis is as follows:

• The Court must “focus on the child, not the parents, and examine past experience, not future intentions.” Friedrich 1,983 F.2d at 1401.
• Factual circumstances that may be considered by a court in determining whether or not a child’s stay in a new country meets the tests of ”acclimatization,” and “settled purpose” are (a) “academic activities are among ‘the most central in a child’s life’ and therefore highly suggestive of acclimatization,” (b) “social engagements,” (c) “participation in sports programs and excursions,” and (d) “meaningful connections with the people and places” in the child’s new country.
• Additionally, the court could look at whether a child brought more personal belongings with her to the new country than usual in anticipation of remaining, the child’s stated desire about where she would reside, and a parent’s communication about the child’s freedom to choose for herself.

This decision is a major refinement of the standards under which a Hague Convention case should be decided. What appeals most to me about it is that children are not to be considered as mere extensions of their parents or to be chattel to be dealt with as a parent may choose. While the UCCJEA, as I've written before, is merely a jurisidictional statute and therefore has no "best interest" standard, the Hague Convention combines the best of all worlds in helping children avoid a "grab and run" by one parent that may be unsettling at best and heart-breaking and completely improper at worst.

You can read Robert v Tesson here.
You can read Karrkainen v Kovalchuk here

Visit the Hague Conference on Private International Law Page on Child Abduction.
You can research the status of and holdings of  Hague Convention cases worldwide.
Alphabetical listing of Hague Convention decided cases

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For more information about the Uniform Child Custody Jurisdiction and Enforcement Act "UCCJEA", which deals with wrongful removal from one State to another (likely a more common problem), see the LawLinks page of my website.