David B. v Helen O. (Fam.Ct. 1995)625 N.Y.S.2d 436
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This matter is before the court by petitioner father’s Motion for
Return pursuant to the Convention on the Civil Aspects of
International Child Abduction (“The Hague Convention”) as
implemented in the United States by the International Child
Abduction Remedies Act, 42 U.S.C. 11601-11610. Petitioner
alleges that the parties’ two minor children were wrongfully
retained by the respondent mother in the United States.
Petitioner, who lives in the United Kingdom (England), seeks the
return of the children to that country. Respondent objects to the
return and seeks dismissal of the petition on the ground that the
children were not “habitual residents” of the United Kingdom, as
that term is used in the Hague Convention, but rather, were
settled in Nigeria.
An evidentiary hearing was held on February 9, 1995. The primary
question before the court involves a determination of the
children’s “habitual residence.” Having considered the oral and
written arguments of counsel, as well as the relevant testimonial
and documentary evidence, the following constitutes the court’s
findings of facts and conclusions of law.
I
The objective of the Hague Convention is “to secure the prompt
return of children wrongfully removed to or retained in any
Contracting State” and “to insure that rights of custody and of
access under the law of one Contracting State are effectively
respected in the other Contracting States.” Hague Convention, Art.
1(a)(b); 42 U.S.C. 11601(a)(4). Simply put, the “central core”
of the Convention is aimed at “situations where one parent
attempts to settle a difficult family situation, and obtain an
advantage in any possible future custody struggle, by returning to
the parent’s native country, or country of preferred residence….
[T]he Hague Convention is clearly designed to insure that the
custody struggle must be carried out, in the first instance, under
the laws of the country of habitual residence….” Friedrich v.
Friedrich (6th Cir. 1993) 983 F.2d 1396, 1402. A Hague Convention
proceeding is jurisdictional in nature and solely limited to the
question whether the child should be returned to the country of
habitual residence for determination of the custodial dispute; the
ultimate issue of custody or the merits of the custodial dispute
are not before the court.
It is the petitioner’s burden to establish, by a preponderance of
the evidence, that the minor children were wrongfully removed or
retained within the meaning of the Hague Convention. 42 U.S.C.
11603(e)(1). In turn, there are two predicates a petitioner must
establish in order to be entitled to relief under the Hague
Convention: (1) it must be shown that the removal or retention
involves a child who was “habitually resident in a Contracting
state immediately before any breach of custody or access rights;”
and (2) it must be shown that the petitioner had lawful rights of
custody at the time of the removal or retention. Hague Convention
Arts. 3 & 4.
The focus of the inquiry in this proceeding is on the first
predicate issue regarding habitual residence. The custodial rights
issue was not thoroughly addressed at the hearing. Because the
court’s finding with respect to the habitual residence issue is
dispositive herein, the court does not, and need not make a
determination on the question of petitioner’s custodial rights.
II.
The court had the opportunity to hear the testimony of both the
petitioner father and the respondent mother and to assess the
credibility of each. Although it is the opinion of the court that
both parties have certain credibility problems,1 the facts
regarding the subject children’s whereabouts and the chronology of
relevant events are largely undisputed.
Petitioner is a British national and respondent is a dual British
and Nigerian national. They were married in December, 1985 in
England. The two subject children were born in England in
February, 1986 and July, 1990, respectively. The family resided
together in England until the parties separated in July, 1991 due
to marital difficulties.
In or about July, 1991, respondent mother and the two children
went to Nigeria. It is in explaining the respondent’s intentions
and purpose in going to Nigeria that the testimony of the parties
is in conflict. Petitioner testified that it was his understanding
that respondent was taking the children to Nigeria for a “visit”
with respondent’s parents and family who reside there. He
testified that although the trip was “open-ended,” he believed
that respondent and the children would return to England within
about three months. He also contended that a round-trip ticket had
been purchased.
Respondent testified, in contrast, that in July of 1991, she and
petitioner agreed to go their separate ways and further agreed
that the children would remain with her. She testified
additionally that her intention in going to Nigeria was to “start
a new life” there. Respondent claimed that there was no time limit
whatsoever on her intended stay.
The court credits respondent’s testimony with respect to her
intention in going to Nigeria in July, 1991. Moreover, the court
finds that petitioner’s credibility on this point is undercut by
his behavior and other factual developments in the subsequent
months. Shortly after respondent’s arrival in Nigeria in July,
1991 petitioner traveled to Nigeria himself for approximately one
month. During that time, on August 2, 1991, respondent signed,
and petitioner co-signed (as a witness), a lease for a four
bedroom home for respondent and the two children in Nigeria. The
lease provided for a term of two years and contained an option to
renew for another two years. The rent was fully paid in advance
for three years. Thereafter, in September, 1991, petitioner sent a
trunk box from England to respondent in Nigeria containing items
including respondent’s and the children’s clothing, and a variety
of other personal possessions.
The testimony established that petitioner went to Nigeria for
another visit in December, 1991 for approximately three weeks.
Three months later, in a letter dated March 5, 1992, petitioner
addressed the Controller of Immigration Services in Nigeria
requesting that respondent and the children be allowed to apply
for a residence permit to live in Ibadan, Oyo State, Nigeria.
Petitioner wrote: “After living for some 10 years in the United
Kingdom and away from other members of the [sic] her family, Helen
would like to stay for a lengthy period with the children and get
to know her family and Nigeria better.”
In April of 1992, however, respondent and the two children
returned to England. Respondent testified that the reason for her
return to England at that time was to obtain a divorce from the
petitioner. In fact, the parties were divorced on October 9, 1992,
pursuant to a decree issued by the Watford County Court, England.
(No particular custody order was issued by that Court.)
Respondent and the children remained in England (for a total of
approximately nine months) before returning to Nigeria. Respondent
testified her purpose in remaining in England was to attend
college. During this time, respondent did attend college and the
children were enrolled in school. They lived in an apartment in
South London not far from the petitioner’s home.
Following the school year, and after experiencing difficulties at
college, in or about June of 1993, respondent went back to Nigeria
with the children. Petitioner testified that he consented to her
going to Nigeria again and that “it wasn’t defined exactly when
the return would be.” In Nigeria, respondent and the children
resumed their occupancy of the home that respondent had previously
leased. Moreover, the children attended school in Nigeria during
the 1993- 1994 term.
In August of 1994, respondent and the children again went to
England. Respondent testified that petitioner had ceased sending
her necessary financial support. (Petitioner claimed otherwise.)
They remained in England for approximately seven weeks. During
this period, respondent applied for public assistance, and she and
the children stayed at the homes of various friends and relatives
(including petitioner) and in a hotel. Respondent did not make any
arrangements for more permanent living accommodations in England.
The children were not enrolled in school in England for the fall
term. Although respondent did not renew the lease for her home in
Nigeria, most of her personal belongings remained in Nigeria at
the home of her uncle.
Respondent and the children left England and arrived in New York
on September 24, 1994, thus beginning the chain of events that led
to this proceeding. Petitioner testified that he consented to
respondent and the children going to New York for a “holiday
period” because she “needed a break.” He stated that he hoped the
visit to New York would last “for a month at most. But I wasn’t
sure if it would last longer.”
On December 21, 1994, petitioner came to New York. He testified
that the purpose of his trip was to find his children and return
with them to England. To this end, petitioner took various steps
which culminated in the filing of the instant petition for return
pursuant to the Hague Convention. Petitioner stated that if the
children are ordered to be returned to England, it is his
intention to file in England for legal and physical custody.
III.
As noted above, under Article 3 of the Hague Convention petitioner
must show that immediately before the child’s removal, the child
was habitually resident in a Contracting State. Both the United
Kingdom and the United States are Contracting States (signatories)
to the Convention; Nigeria is not. Because petitioner seeks the
children’s return to the United Kingdom (England) petitioner must
prove that the children were habitual residents of the United
Kingdom immediately prior to their removal to the United States.
A curious feature of the Convention is that although the term
“habitual residence” is a critical predicate term it is undefined
in the Convention. In addition, because Hague Convention
proceedings are relatively infrequent there is only a small body
of case law in the United States that has sought to define the
term and its applicability to a variety of factual situations. As
noted by one court, the apparent intent is for the concept to
remain fluid and fact based, without becoming rigid. Levesque v.
Levesque, note 1, supra at 666.
A review of the existing case law reveals that most cases are
indeed heavily “fact based”, with little doctrinal exposition
defining the term habitual residence. However, there is an
emerging consensus in the majority of recently reported cases in
the United States (see Friedrich v. Friedrich, 983 F.2d 1396,
supra, Levesque, supra at note 1; Ponath v. Ponath [D. Utah 1993]
829 F.Supp. 363; Slagenweit v. Slagenweit [N.D. Iowa 1993], 841
F.Supp. 264 appeal dismissed, 43 F.3d 1476 [8th Cir.1994]; Falls
v. Downie [D.Mass.1994] 871 F.Supp. 100) that British courts have
provided a useful analysis of the term habitual residence. Cited
in all these eases is language in In Re Bates, No. CA 122/89, High
Court of Justice, Family Div’n Ct. Royal Court of Justice, United
Kingdom (1989).
The Bates court initially quotes Dicey & Morris, The Conflicts of
Laws 166 (llth ed.) as follows:
No definition of “habitual residence” has ever been included in a
Hague Convention. This has been a matter of deliberate policy, the
aim being to leave the notion free from technical rules, which can
produce rigidity and inconsistencies as between different legal
systems…. It is greatly to be hoped that the courts will resist
the temptation to develop detailed and restrictive rules as to
habitual residence, which might make it as technical a term of art
as domicile. The facts and circumstances of each case should
continue to be assessed without resort to presumptions or
pre-suppositions.
After noting that “there is no real distinction between ordinary
residence and habitual residence”, the court then quotes R. u
Barnet London Borough Council ex parte Shah (1983) 2 A C. 309,
314:
. . . and there must be a degree of settled purpose. The purpose
may be one or
there may be several. It may be specific or general. All that the
law requires is that there is a settled purpose. That is not to
say that the propositus intends to stay where he is indefinitely.
Indeed his purpose while settled may be for a limited period.
Education, business or profession, employment, health, family or
merely love of the place spring to mind as common reasons for a
choice of regular abode, and there may well be many others. All
that is necessary is that the purpose of living
where one does has a sufficient degree of continuity to be
properly described as settled.
In re Bates at 10-11 (emphasis added).2
In this case, it is clear that the United States can not qualify
as the habitual residence. (The parties do not contend otherwise.)
As pointed out in Friedrich, supra, habitual residence pertains to
customary residence prior to the removal (or retention). Moreover,
habitual residence can be “altered” only by a change in geography
and the passage of time. Otherwise, any removal or retention could
be characterized by the subject parent as a change in habitual
residence, a claim that would defeat the purpose of the
Convention. Factually, the respondent mother and children, who are
temporarily residing in the New York City shelter system, and who
have been in the City for a relatively short period of time prior
to the institution of these proceedings, are clearly not settled
in the United States.
The issue, therefore, is whether, given the factual history, the
children were habitual residents of England or of Nigeria prior to
their retention in the United States. In this court’s judgment,
the evidence supports the respondent mother’s argument that the
children were residents of Nigeria for the following reasons:
First, a majority of the time that the children have spent since
the parties separated in July, 1991 has been spent in residency in
Nigeria. Second, in the full year from June, 1993 through July,
1994 (prior to the relatively brief seven week stay in England)
the children resided in Nigeria. Third, during the time the
children resided in Nigeria with their mother they lived in a four
bedroom house pursuant to a long-term lease. While living in this
house the children and their mother had all their possessions. The
children also continuously attended school. Fourth, in 1992
petitioner supported the application by the mother and children
for a residence permit to live in Nigeria. Fifth, many of the
mother’s possessions still remain in the home of a relative in
Nigeria. Sixth, the mother (and apparently the children as well)
retain Nigerian citizenship, the place where most of the mother’s
close relatives also live. Seventh, the sojourn to England, prior
to the move to the United States, was relatively brief; the
children and their mother had no fixed residence, but rather, in a
transient manner, moved from place to place. The mother’s
application for public assistance in England, during the seven
week period, motivated by perceived economic plight, did not alter
the transient nature of her and the children’s stay in England.
In sum, and in accordance with the principles delineated in Bates
as concurred in by the United States precedents, supra, the above
factors clearly point to Nigeria as the place where, prior to the
children’s removal to the United States, there was a “sufficient
degree of continuity to be properly described as settled” (Bates,
supra) and, therefore, the habitual residence under the Hague
Convention.3
Nothing in this opinion should be construed in any way as
expressing any view concerning the ultimate substantive merits of
the custodial conflict between the parties. That issue, if not
resolved by the parties themselves, would have to be resolved in
accordance with jurisdictional principles and applicable law
without resort to the Hague Convention.
Accordingly, the petition is dismissed.
George L. Jurow, Judge.
Barbara Sobal and Robert D. Arenstein, New York City for
Petitioner.
Samuel I. Ackerman, Beechurst, for Respondent.
Lawyers For Children by Nancy Dunbar, Law Guardian, New York City.
FOOT NOTES
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1. For example, petitioner was less than credible in his claims
that respondent’s recurrent trips abroad from England were
intended to be time limited; respondent was less than
credible in her evasive testimony concerning her varied
applications for and use of passports.
As noted in Levesque v. Levesque (D.Kan. 1993) 816 F.Supp.
662, 666 fn. 3 “determining credibility” in this type of
case, “where both parents obviously care about the child’s
welfare and are seeking a ruling in their favor, is a
difficult task at best. At worst, it does a disservice to
the parties, by tending to discredit one of the parent’s
testimony. The court recognizes that each party’s truth is
colored by his/her perception….”
2. Although one case, Cohen v. Cohen, 158 Misc.2d 1018, 602
N.Y.S.2d 994 (1993) suggests that cases involving the issue
of “domicile” provide a useful analogy to the term habitual
residence, the weight of authority suggests otherwise. See
Explanatory Report by Elisa Perez-Vera at 64 (the
Perez-Vera Report is considered an official commentary on
the Convention); Dicey & Morris, supra; and Friedrich, supra
at 1401 (arguing that habitual residence is distinct from
and should not be confused with the common law term
domicile).
On the distinction between “domicile” and “residence” see
Domicil and Residence, NY Juris.2d 2; Larkin v. Herbert,
185 A.D.2d 607, 608, 586 N.Y.S.2d 679 (1992) (“Residence
means living in a particular locality, but domicile means
living in that locality with intent to make it a fixed and
permanent home.”)
Although the term habitual residence may appear to be a
hybrid of the terms domicile and residence, and although all
three may, depending on context, contain factual variables
in common the terms are capable of distinction. The
authorities noted in the general text above indicate that
the term habitual residence is intended to be conceptually
more similar to that of residence than to domicile.
3. Even if, as the father contends, the mother always and
ultimately intended to return to, or even permanently settle
in England, throughout her residential tenure with the
children in Nigeria, such intention would not alter the
finding of Nigeria as the habitual residence. Such
intention, if it existed, would be germane to an argument
that England was the domicile of the children. See note 2,
supra.