FAMILY LAW-Children Alienated from Father: Third Circuit Discounts Hague Convention on Legally Inseparable Caribbean Island

By Johnston, William C. | Suffolk Transnational Law Review, Summer 2017 | Go to article overview

FAMILY LAW-Children Alienated from Father: Third Circuit Discounts Hague Convention on Legally Inseparable Caribbean Island


Johnston, William C., Suffolk Transnational Law Review


FAMILY LAW--Children Alienated from Father: Third Circuit Discounts Hague Convention on Legally Inseparable Caribbean Island--Didon v. Castillo, 838 F.3d 313 (3rd Cir. 2016).

The Hague Convention sets out the international parameters for International Child Abduction. (1) Under the Hague Convention discussing the Civil Aspects of International Child Abduction (Hague Abduction Convention), the parent of a child who has been removed from his or her "habitual residence country" not in accordance with that country's custody laws may seek the return of that child. (2) In Didon v. Castillo, (3) for the first time the United States Court of Appeals for the Third Circuit was confronted with deciding whether it is possible for a child to have two "habitual residence countries" simultaneously under the Hague Abduction Convention, and furthermore how does a court determine a child's "habitual residence country." (4) The Court held that the text of the Hague Abduction Convention does not permit a child to have two habitual residences and further found that Dutch Sint Maarten is the children at issue's "habitual residence country." (5)

This dispute centers around two children, A.D., the biological son of Maurice Marie Didon (Didon) and Alicia Dominguez Castillo (Castillo), and J.D., the biological daughter of only Castillo. (6) In (2011), Didon and Castillo filed in French Saint Martin to list Didon as J.D.'s father on her birth certificate because she was now living with both of them as well as A.D in Didon's Dutch Sint Maarten apartment. (7) Without ever formally appearing in court, J.D.'s birth certificate was changed "to identify Didon as her father." (8) The family lived in Dutch Sint Maarten for three years, however, their daily activities including work, school, and medical appointments took place in French Saint Martin. (9) Due to a deteriorating relationship with Castillo, Didon pursued full custody of both children by bringing a custody action in French Saint Martin civil court. (10) In September 2014, Castillo, who was never notified of the proceeding, informed Didon that she would be bringing the children to New York City to attend her sister's wedding. (11)

On September 6, 2014, a day before Castillo was expected to return with the children, Didon learned from school officials that they were not expecting the children to return because Castillo had withdrawn them from the school. (12) Didon, after contacting police who were able to communicate with Castillo, claims he was promised by Castillo that she would return with the children on September 7, 2014. (13) Castillo did not return with the children on the day promised; meanwhile, Didon pursued his custody action in French Saint Martin civil court which ultimately granted "full custody of A.D. and J.D. to Didon in an ex parte order." (14) In early 2015, Didon hired a private investigator to look for the children, who found them during that summer in Hazelton, Pennsylvania. (15)

On August 13, 2015, Didon filed a Hague Abduction Convention suit asking a Pennsylvania District Court for both A.D. and J.D. to be returned to French Saint Martin. (16) On September 24, 2015, the lower court ruled in favor of Didon concerning A.D., but against him regarding J.D. (17) Concerning A.D., the district court held that Didon had lawful custody over him because he is Didon's biological son. (18) Regarding J.D., the district court found that Didon did not have lawful custody over her because he did not follow the proper adoption requirements under French law. (19) The district court reasoned that the children were habitual residents of both French Saint Martin and Dutch Sint Maarten because "the border is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike [...]." (20) On appeal, the Third Circuit reversed, concluding that Didon does not have lawful custody over both A.D. and J.D. because the Hague Abduction Convention is not recognized by Dutch Sint Maarten. …

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