The Gitter Standard: Creating a Uniform Definition of Habitual Residence under the Hague Convention on the Civil Aspects of International Child Abduction

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INTRODUCTION

Each year hundreds of children are kidnapped by one parent and taken across international borders while the other parent suffers from the traumatic loss of a child.1 Between October 1, 2003, and September 30, 2004, 154 of these abducted children were returned after a Hague application had been filed on their behalf.2 The Hague Convention on the Civil Aspects of International Child Abduction ("Convention")3 was enacted to protect children from parental abduction and illegal retention across international borders. In order to fulfill the Convention's purpose of ensuring "the prompt return of children wrongfully removed,"4 a Contracting State must respect the laws of other Contracting States and return all kidnapped children to the state of their habitual residence. This allows for the restoration of the "status quo which is unilaterally altered" through parental child abduction.5 The Convention applies to children who are under the age of sixteen and who were habitual residents of a Contracting State at the time of the abduction.6

Under the Convention, courts must establish the child's state of habitual residence. This question is of utmost concern because it is the state of habitual residence that determines the law that is to be applied, whether there has been a wrongful removal, and the jurisdiction to which the child is to be returned.7 Neither the Convention nor the Perez-Vera Report8 defines "habitual residence." Instead of applying an idiosyncratic definition created by domestic law, courts interpret the term according to "its ordinary meaning free from technical rules."9 This ensures "uniformity of application" that allows courts "to reconcile their decisions with those reached by other courts in similar situations."10 Existing case law must be examined to determine how US courts are defining habitual residence, as well as to create a uniform standard to help the United States further the Convention's goals. The objectives of the Convention are "to secure the prompt return of children wrongfully removed," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."11 To guarantee that a child's acclimatization as well as his desires are not overlooked, the Convention includes two exceptions that permit a court to "stay the proceedings or dismiss the application for the return of the child" altogether.12 Article Twelve includes an acclimatization exemption that prevents the return of the child in the event that the child is "settied in [his] new environment,"13 and Article Thirteen allows for the child's objections to overrule parental intent as long as the child is mature enough to make his own decisions as to his habitual residence.14

This Development offers a discussion and analysis of the most recent cases that have formulated a definition of "habitual residence" in the context of the Convention. As the definition has evolved, US courts have differed as to how much weight should be given to the various components of the definition. It is my contention that the Gitter Standard15 is the most comprehensive standard that thoroughly contemplates the acclimatization of the child. To define habitual residence, the first prong of the Gitter Standard asserts that courts should inquire into the last shared intent of those entitled to fix the child's residence. The second prong states that the court should determine whether the evidence "unequivocally points to the conclusion that the child has acclimatized to the new environment."16 Taken together, the two prongs protect the child's best interest when it can be proven that the child has become acclimatized to his surroundings and is considered mature enough to contest his return to the country of habitual residence. The standard also takes into consideration the exceptions in Articles Twelve and Thirteen of the Convention by allowing the proven acclimatization of the child to trump parental intent. …