International Family Law News & Analysis

Habitual Residence: Objective facts beat claimed agreement that residence is temporary

Maynard v. Maynard, USDC E. Mich. 3/21/07 is one of those cases where a family gave every indication of living in another country, but one spouse later claimed they were only doing so provisionally, with an agreement that they could move back to the U.S. in a year if it didn't work out. That's what the mother claimed when she took the kids back to Michigan, their former home state, after the family lived in Australia for 10 months. Fedeal Judge Patrick J. Duggan said that whether you look solely at the facts from the child's perspective, as in a long line of cases going back to Friedrich and Evans-Feder, or consider the parents' shared intent as in the   more recent Mozes case, Australia was these children's habitual residence. As that was the only issue in the case, the children were sent back to Australia. Even if there had been an agreement to come back to the U.S. if the wife didn't like Australia, such an agreement would not have kept Australia from being the habitual residence, the judge wrote.  Such a nebulous agreement "for an indefinite period" is fundamentally different from an agreement that a stay in a country is only for a certain defined time and purpose, he said. (Such as the family's earlier presence in Michigan, which was pursuant to a five-year employment contract with an Australian company.)

HAGUE CONVENTION – WRONGFUL RETENTION – RE-ABDUCTION – SCHEME TO EXPLOIT IMMIGRATION-STATUS PROBLEM.

An American who invited his ex-girl friend to bring his illegitimate daughter back from Poland for a visit, in a situation that began with the mother’s unilateral removal of the child from the U.S., committed a wrongful retention under the Hague Convention. That was the holding in Kijowska v. Haines, ___ F. Supp. 2d ___, 32 FLR 1368 (N.D. Ill. 5/18/06).

HAGUE CONVENTION AND CUSTODY MODIFICATION LITIGATION - HABITUAL RESIDENCE - “GRAVE RISK” DEFENSE - ADDITIONAL ANALYSIS REQUIRED.

A California Court of Appeal made some important points about the boudaries between custody cases adn hague convention cases, and construed the "Grave Risk of Harm" defense narrowly, in Forrest-Benavides v. Eaddy, ___ P.3d ___, ___ Cal. App. ___, 33 FLR 1039 (11/17/06), as it reversed a modifying decision by the California court that had made the original custody order.