Habitual Residence, Changing Custody Rights, and Wrongful Retention and Removal under the Hague Convention on Civil Aspects of International Child Abduction

By Torto, Melissa | Suffolk Transnational Law Review, Winter 2014 | Go to article overview

Habitual Residence, Changing Custody Rights, and Wrongful Retention and Removal under the Hague Convention on Civil Aspects of International Child Abduction


Torto, Melissa, Suffolk Transnational Law Review


Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013).

International family law, especially in the area regarding international parental child abduction, has become a controversial topic in the recent years. (1) International parental child abduction can be defined as "the unilateral removal or retention of children by parents in violation of the other parent's custody rights." (2) In reaction to the growing rate of parental abductions, the United Nations developed the Hague Convention on Civil Aspects of International Child Abduction in 1980 for the purpose of protecting children from wrongful international removals and ensuring that the abducted children are safely returned to their true habitual residence; nevertheless, a substantial amount of law is left for the judicial system to interpret. (3) In Redmond v. Redmond, (4) the United States Court of Appeals for the Seventh Circuit addressed, as a matter of first impression, whether a change in one parent's custodial rights is sufficient to make the other parent's continued physical custody of the child a putative wrongful "retention" under the Convention. (5) The court held that one parent's continued custody of a child, despite an order granting removal to another country, does not constitute a punitive wrongful "retention" under the Convention when the child remains in his habitual residence. (6)

The parents involved in the custody dispute are Mary Redmond and Derek Redmond, who began a romantic relationship in 1996 while attending college in Ireland. (7) Mary was a dual U.S. and Irish citizen from Illinois, whereas Derek is a citizen of Ireland. (8) In 2006, Mary became pregnant, and the couple agreed that the child would be born in America and raised in Ireland. (9) On March 28, 2007, their son "JMR" was born in Illinois, and after eleven days, they returned to Ireland with the baby. However, in November 2007, their relationship began to deteriorate, causing Mary to move back to Illinois with JMR, who was under eight months old. (10)

Derek had no custody rights under Irish law; therefore, he was unable to seek custody rights under the Hague Convention. (11) It took Derek three and a half years to establish his paternity rights in Ireland, and in February 2011, an Irish court not only approved Derek's request for guardianship and joint custody of JMR, but also ordered that the child live in Ireland. (12) The court allowed Mary to return to Illinois with JMR to make arrangements for their move to Ireland, but only on the condition that she promise under oath to return with her son by March 30, 2011. (13) Unknown to the court, Mary never intended to keep her promise, and stayed in Illinois. (14) Eight months later, Derek filed a petition under the Hague Convention in U.S. District Court in Illinois claiming that Mary wrongfully retained JMR in the United States in breach of his recognized custody rights in Ireland. (15)

The district court held that when Mary disobeyed the Irish Court, JMR's habitual residence was Ireland on March 30, 2011. (16) Despite the fact that JMR lived in the United States for most of his life, the district court gave weight to the parents' initial agreement in which the parents agreed that they would raise their son in Ireland. (17) The court held that because Mary made a unilateral decision to move back to Illinois against the couple's last shared intent, JMR's residence in the United States was only temporary and subject to the results of the Irish guardianship proceeding, thus his habitual residence was Ireland. (18) As a result, the district court held that JMR must be returned to Ireland; consequently, the mother soon appealed to the Seventh Circuit. (19) That court reversed the lower court's decision by concluding that the test for habitual residence is a flexible inquiry that accounts for all relevant evidence and considers individual circumstances, not just the parents' last shared intent. (20) As a result, the Seventh Circuit determined that because JMR's life was too embedded in the United States, it would be erroneous to call Ireland his habitual residence under the Hague Convention.

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