Case Update (2020): Forcelli v. Smith; Hague Abduction, Habitual Residence

On August 25, 2020, the U.S. District Court for the District of Minnesota ordered a minor child returned to Germany in the case of Forcelli v. Smith under the Hague Abduction Convention.  The key issue was whether Germany was the child's habitual residence. 

In or about August 2019, the parents, with the Mother in Germany and Father in Minnesota, agreed to have the parties' three children visit with their father in Minnesota for 3 weeks.  Just prior to the trip, the parties started talking about the Mother securing a U.S. green card (although she never completed the process).  The 1 oldest child was already a U.S. citizen, and the parents applied for U.S. citizenship for both younger children.  When the mother and 3 children arrived in Minnesota, the Mother expressed concern over finances and her health.  The parents agreed the three children would remain with their Father in the United States "for the time being" (according to the Mother).  She returned to Germany on September 6, 2019.  During the month of September, she was hospitalized twice.  The parents enrolled the children in school in Minnesota, and the Mother notified the German school that they will be in the U.S. "for the time being."  The Mother also contacted the German municipality to notify it that the children would be in the United States temporarily and she did not wish to deregister them (something that is typically required when one moves out of the municipality). 

Throughout, the Father kept talking about "the plan," which he understood was the parents agreement that the entire family would locate permanently to Minnesota and that the parents would reconcile.  Whenever he would mention the plan to the Mother, she would ignore him or change the subject, which she said was out of concern he would become upset.  But, in late September, she did tell him that "the plan" was only temporary.  Their communication then went downhill.  The children's communication with their Mother in Germany dropped.  Finally, on November 17, 2019, the parents had a particularly angry exchange where the Father told the Mother to never come to his home again or he would inform the police.  The Mother pinpointed this as when she concluded the Father would not return the children to Germany.  She called the Minnesota police and the German consulate. 

In December 2019, the Mother traveled to Minnesota with the intention of returning the children to Germany.  The two older children returned with her.  The youngest refused.  The youngest child was seeing a therapist in Minnesota after having difficulty adjusting to the move there. The child disclosed to the therapist that she had a girlfriend, was a lesbian, and that her mother was abusive towards her because of this. The child suffered from adjustment disorder, depression, and had suicidal ideation.  The 12-year old daughter was interviewed by the court and was clear about her preference to remain in the United States with her Father.  The child used the Father's words of "flip-flopping" about the plan to live in the United States and "kidnapping" the older siblings back to Germany when interviewed by the Court.

In COVID times, the trial was held by Zoom, and the child was interviewed in chambers, with the parties listening, but not viewing, by Zoom. 

In applying Monasky, the court concluded as follows: "Courts determine the habitual residence of a child based on the totality of the circumstances....“The Hague Convention does not define the term ‘habitual residence’ ” but a “child ‘resides’ where she lives.” ... That residence becomes habitual “when her residence there is more than transitory,” when it is where “the family and social environment in which the child's life has developed,” and when there is “some degree of integration by the child in a social and family environment.” ...  At the same time, “[c]ommon sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.”... In acquiring a new habitual residence, one must also have a settled intention to abandon one's prior habitual residence...."  The court found that the mother did not intend to abandon Germany as the children's habitual residence. 

The Father argued the exceptions of consent, grave risk, and a mature child's objection.  The court was not persuaded by these arguments, and ordered the youngest child returned to Germany.