Treaty Law-Eighth Circuit Applies "The Child's Perspective" Standard to Determine Habitual Residence under the Hague Convention

By Homan, Madison | Suffolk Transnational Law Review, Winter 2018 | Go to article overview

Treaty Law-Eighth Circuit Applies "The Child's Perspective" Standard to Determine Habitual Residence under the Hague Convention


Homan, Madison, Suffolk Transnational Law Review


TREATY LAW--Eighth Circuit Applies "The Child's Perspective" Standard to Determine Habitual Residence Under the Hague Convention--Cohen v. Cohen., 858 F.3d 1150 (8th Cir. 2017).

Under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), a child who is wrongfully removed or retained must be returned promptly to the country of the child's habitual residence, unless certain limited exceptions apply. (1) The United States implements the Convention through the International Child Abduction Remedies Act (ICARA). (2) In Cohen v. Cohen (3) the United States Court of Appeals for the Eighth Circuit addressed the question whether a child had been wrongfully retained in the United States within the meaning of the Convention. (4) The Court affirmed the district court's decision that the child's country of habitual residence is the United States, and thus retention of the child in the United Sates is not wrongful within the meaning of the Convention. (5)

O.N.C., the child at the center of this case, was born in Israel in 2009. (6) O.N.C. lived in Israel with his parents until 2012, when he moved to St. Louis with his mother. (7) The parties dispute the facts: the mother testified that the family intended to move permanently to the United States; the father testified that they intended to move for only for a few years and the move was conditioned on his ability to leave Israel. (8) In the United States, the mother found a pediatrician for O.N.C. and enrolled him in school and speech therapy. (9) In 2013 and 2014, O.N.C. and his mother visited his father in Israel for approximately two weeks each year, but the marriage was deteriorating. (10) In 2015, a St. Louis court granted O.N.C's mother a divorce and awarded her sole custody of O.N.C. (11)

O.N.C.'s father filed an application in Israel for O.N.C.'s return under the Convention. (12) On November 25, 2015, O.N.C.'s father also filed a complaint in the Eastern District of Missouri requesting O.N.C.'s return under the Convention. (13) The district court determined, through an evidentiary hearing and discovery, that O.N.C.'s "country of habitual residence" was the United States. (14) O.N.C.'s father appealed the decision, after the district court concluded that he had "failed to make a prima facie case under the Convention." (15) The Eighth Circuit held that the district court did not err in finding that the United States is O.N.C.'s country of habitual residence, and accordingly, that retention of O.N.C. in the United States is not wrongful within the meaning of the Convention. (16)

In international custody disputes, determining a child's country of habitual residence is critical because the law of the country of habitual residence governs the underlying custody dispute. (17) However, in order to give the courts flexibility, the Convention drafters deliberately did not define this term. (18) As a result, the federal courts of appeal have been split on the question of how to determine habitual residence. (19) In determining habitual residence, some circuits have applied the "parental intent" standard, while other circuits have looked at this issue from the child's perspective. (20) The Supreme Court of the United States has recently declined the opportunity to resolve this issue. (21) Because there is no guidance in the Convention or in ICARA, and there is no guidance from the Supreme Court, the federal courts continue to apply conflicting standards in determining habitual residence. (22)

Most of the circuit courts of appeal apply the parental intent standard in habitual residence determinations. (23) The landmark case applying the parental intent standard is the Ninth Circuit decision in Mozes v. Mozes. (24) Other Circuits--specifically the First, Second, Fourth, Fifth, Seventh, and Eleventh Circuits --have also adopted the parental intent standard set out in Mozes. (25) Because there is a high bar for overcoming the presumption favoring shared parental intent, in some cases this presumption is almost irrefutable. …

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