Case Update: Hague Abduction Convention, Habitual Residence and the Monasky test


On August 26, 2020, the U.S. District Court for the Middle District of North Carolina, in the case of Chambers v. Russell, ordered the return of a minor child to his habitual residence in Jamaica under the Hague Abduction Convention.  Among the court's examination, one of the key issues was its review of the child's habitual residence.

The parties' minor child was born in and lived his entire life in Jamaica.  His parents had an informal custody arrangement, where the child resided primarily with his mother.  In 2018, the child's father moved to the United States.  Around this time, the mother found a job opportunity in the United Kingdom, and secured a visa. Mother then sought to apply for the child's visa in February 2019, which required the child's Father to provide his written consent. The initial visa application was denied, and the UK Embassy advised the Mother that she needed either a formal custody order or some other proof that she has sole custody.  Mother had her lawyer in Jamaica draft another consent letter, but the Father never signed it.  

On March 21, 2019, mother moved to the U.K. for work, and left the child in the care of her niece and nephew in Jamaica, with the Father's consent, to finish the school year.  The Mother applied for the child to continue school in Jamaica.  She planned on reapplying for his visa after the child's graduation that July and while the Father was in town.  At the graduation, the parents had a fight, and the Father took the child's passport, which was needed for the visa application/interview.  The Father then took the child to the U.S. for his annual summer visit.  The Mother returned to the U.K. for her job.  

On August 15, 2019, the child's Mother asked when the child would be returning to Jamaica.  The Father said August 28th.  However, the father brought the child back early in an attempt to enroll the child in a different school in Jamaica.  When that failed, he removed the child from Jamaica on August 21st.  He insisted he would not return the child.  The Mother filed her return petition in North Carolina on June 5, 2020. 

The Court examined the child's habitual residence.  It cited to the totality-of-the-circumstances test in Monasky, and then distinguished Monasky from this case, as Monasky addressed a situation where the parents had no agreement related to their child's custody.  The court further said that Monasky did not overturn the Circuit's prior 2-prong approach to decide habitual residence - (1) whether the parents shared an intent to abandon the child's prior habitual residence, and (2) whether there was an actual change in geography and an appreciable period of time sufficient for the child to acclimatize. On that basis, the North Carolina court applied the 2-pronged approach.  The court did a backwards looking analysis and concluded that the parents never abandoned their intent to have the child reside in Jamaica.  They may have had a future desire for the child to reside in the U.K., but their intent at the time of the child's removal from Jamaica was that the child reside in Jamaica, and attend school there. As for whether the child is acclimatized, the court looks at a variety of facts, including the child's school, social activities, length of stay, family, etc., but always with an eye towards not letting a parent create a new habitual residence by their actions of removing or retaining the child. The court was not bothered by the Mother's residence on a temporary work visa in the United Kingdom, recognizing that her relocation to the U.K. would never be permanent unless the child were with her.

The court gives a good examination of the other elements of the Mother's case-in-chief, along with the Father's three argued defenses, but the habitual residence analysis was interesting.



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