Maurice Didon v. Alicia Castillo ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 15-3350 & 15-3579
_____________
MAURICE MARIE DIDON,
Appellant in No. 15-3579
v.
ALICIA DOMINGUEZ CASTILLO
Appellant in No. 15-3350
_____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
(M.D. Pa. No. 1-15-cv-01586)
District Judge: Honorable Christopher C. Conner
Argued: June 22, 2016
_________________
Before: MCKEE, Chief Judge, FISHER and
GREENAWAY, JR., Circuit Judges
(Filed: September 26, 2016)
Anthony J. Vetrano, Esq. [ARGUED]
Vetrano Vetrano & Feinman
630 Freedom Business Center Drive
Suite 215
King of Prussia, PA 19406
Counsel for Maurice Marie Didon
Michelle Pokrifka, Esq. [ARGUED]
CGA Law Firm
135 North George Street
York, PA 17401
Counsel for Alicia Dominguez Castillo
__________________
OPINION
__________________
GREENAWAY, JR., Circuit Judge.
The Hague Convention on the Civil Aspects of
International Child Abduction1 allows a parent2 to petition for
1
Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No.
11,670, 19 I.L.M. 1501 [hereinafter Hague Convention]. The
Hague Convention has been ratified by the United States and
is implemented by the International Child Abduction
Remedies Act (“ICARA”), 22 U.S.C. § 9001 et seq. (formerly
at 42 U.S.C. § 11601 et seq.). According to ICARA, courts
must “decide [] case[s] in accordance with the Convention.”
Id. § 9003(d).
2
the return of a child when that child has been removed or
retained from her “habitual residence” country in violation of
the parent’s custody rights in that country. The petition at
issue in this case concerns two children (A.D. and J.D.)
retained by their mother in the United States who hail from
the Caribbean island of Saint Martin. That 34-square-mile
island is comprised of two legally distinct, yet highly
integrated, countries—French Saint Martin (where the
children went to school) and Dutch Sint Maarten (where the
children had their home).3 To complicate matters further, the
Hague Convention is recognized by French Saint Martin
(through France),4 but is not recognized by Dutch Sint
Maarten.5
2
The Convention may be invoked by any person or
entity that has custody rights over a child, see Legal Analysis
of the Hague Convention on the Civil Aspects of International
Child Abduction, 51 Fed. Reg. 10494, 10505 (Mar. 26, 1986)
[hereinafter Legal Analysis], but for the sake of simplicity we
will refer to the “parent” of a child as invoking the
Convention.
3
We will use the term “Saint Martin” to refer to the
entire island, “French Saint Martin” to refer to the French
country, and “Dutch Sint Maarten” to refer to the Dutch
country.
4
See France—Declarations/Reservations, Convention
of 25 October 1980 on the Civil Aspects of International
Child Abduction,
https://www.hcch.net/en/instruments/conventions/status-
3
The extraordinary facts of this case require us to
decide an issue of first impression: may a child have two
“habitual residence” countries at the same time under the
table/notifications/?csid=619&disp=resdn (“[T]he
Government declares that the Convention shall extend to the
whole of the territory of the French Republic.”).
5
See Netherlands—Declarations/Reservations,
Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction,
https://www.hcch.net/en/instruments/conventions/status-
table/notifications/?csid=634&disp=resdn; Netherlands—
Extensions, Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction,
https://www.hcch.net/en/instruments/conventions/status-
table/extensions/?cid=24&mid=634; Netherlands Ministry of
Security and Justice, Guide for International Cases of Child
Abduction to Foreign Countries (May 2016),
https://www.government.nl/binaries/government/documents/l
eaflets/2014/04/15/guide-for-international-cases-of-child-
abduction-to-foreign-countries/2016-05-11-herziene-guide-
for-international-casesof-child-abduction-to-foreign-
countries.pdf (“[T]he Convention does not apply to [Dutch
Sint Maarten].”); Country Reports on Human Rights Practices
for 2015: Netherlands, U.S. Department of State,
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.h
tm?year=2015&dlid=252883 (“[Netherlands] is a party to the
1980 Hague Convention on the Civil Aspects of International
Child Abduction, but the convention does not apply to . . .
[Dutch] Sint Maarten . . . .”).
4
Hague Convention (“concurrent habitual residence”6)? We
conclude that the text of the Convention does not permit
concurrent habitual residence. We therefore look to the
ordinary meaning of the term “residence” and hold that the
children were habitual residents only of the country in which
they “lived”—Dutch Sint Maarten. Because Dutch Sint
Maarten does not recognize the Convention, the Convention
does not apply to this case.
Accordingly, we will vacate the District Court’s
judgments and dismiss the petition. Because the District
Court granted the petition as to A.D., we will also instruct the
District Court to order that A.D. be returned to the United
States forthwith.
6
The authorities on this issue are inconsistent in their
usage of terminology. The phrases “concurrent habitual
residence,” “alternating habitual residence,” and “dual
habitual residence” are sometimes used interchangeably.
However, “concurrent habitual residence” refers to a situation
where a child is habitually resident in two countries at the
same time, whereas “alternating habitual residence” refers to
a distinct situation where a child is moved in between two
countries on a regular basis (known as “shuttle custody”) such
that her habitual residence alternates between those countries.
“Dual habitual residence” can be used to refer to either or
both situations. For the sake of clarity, we will refer to the
phrases “concurrent habitual residence” and “alternating
habitual residence” in the manner just described and will not
use the term “dual habitual residence.”
5
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
A. Factual Background7
The parties’ dispute in this case revolves around two
children—A.D. and J.D. A.D. is the biological son of
Petitioner Maurice Marie Didon (“Didon”) and Respondent
Alicia Dominguez Castillo (“Dominguez”), and J.D. is the
biological daughter of Dominguez from a prior relationship.
Dominguez moved to Dutch Sint Maarten in 2007, leaving
J.D. behind in the Dominican Republic. Dominguez
subsequently met Didon in 2008 and moved into his
apartment in Dutch Sint Maarten in 2009. On November 3,
2010, A.D. was born, and shortly thereafter, in 2011, J.D.
moved into the Dutch Sint Maarten apartment.
After J.D. moved in, Didon and Dominguez petitioned
the French consulate to change J.D.’s birth certificate to list
Didon as her father. That petition was granted and a new
birth certificate was issued for J.D. listing Didon as her father
and Dominguez as her mother. Although Didon characterizes
this process as an “adoption” of J.D., “the parties never
appeared before a court or otherwise formally engaged in the
adoption process.” App. vol. I at 6.
7
The following facts are taken from the District
Court’s factual findings and are unchallenged by the parties
unless otherwise noted.
6
The family resided at the Dutch Sint Maarten
apartment for the next three years. Throughout this time
period, although the family resided in Dutch Sint Maarten, 8 it
was “primarily oriented” to French Saint Martin “where
Didon worked, and where the children attended school,[9]
went to doctor’s appointments, etc.” App. vol. I at 5.
“Further, the family’s administrative affairs, such as the
children’s insurance, were managed [in French Saint
Martin].” App. vol. I at 14.
In July 2014, Didon filed a custody action in French
civil court seeking full custody of A.D. and J.D. Dominguez
was neither served with papers in the action nor otherwise
notified of the custody proceeding. During the pendency of
8
The District Court acknowledged that Didon owned a
two-unit apartment building in French Saint Martin, which
the family used both as a rental unit for tourists and for
“personal use.” App. vol. I at 14−15. However, on the basis
of testimony that the family “did not reside there permanently
and only stayed there together five or six times per year,” the
District Court concluded that the apartment was not “the
parties’ primary residence” and was only used
“periodic[ally].” App. vol. I at 15 n.13.
9
Dominguez argues that only J.D. attended school in
French Saint Martin, but the record contains evidence
suggesting that A.D. attended school in French Saint Martin
as well. See App. vol. II at 141. The District Court’s finding
that both children attended school in French Saint Martin was
not clearly erroneous.
7
the action, Dominguez informed Didon that she would be
taking A.D. and J.D. to New York City on August 27, 2014 to
attend her sister’s wedding. Dominguez advised Didon that
she and the children would return on September 7, 2014, and
showed Didon three round-trip airline tickets from Dutch Sint
Maarten to New York City to that effect.
On September 6, 2014, Didon contacted the children’s
school to inform the school that J.D. would be absent due to a
vacation to the United States. Didon was told by school
administrators that the school was not expecting J.D. to return
because Dominguez had disenrolled the children. Didon
immediately contacted the police, who were able to get in
contact with Dominguez by telephone on the same day.
Didon claims that Dominguez promised on the call to return
with the children the following day, as planned, but
Dominguez claims not to have made such a promise.
Dominguez did not return with the children on September 7.
In the children’s absence, Didon continued to pursue
his French custody action and, on March 23, 2015, the French
court granted full custody of A.D. and J.D. to Didon in an ex
parte order.10 At the same time, Didon had hired a private
investigator to look for the children and, in the summer of
10
Dominguez alleges that Didon procured this
judgment by fraud. She argues that we should deny his
petition because he seeks equitable relief and comes before us
with unclean hands. However, we have expressly rejected the
application of the unclean hands doctrine to Hague
Convention petitions. See Karpenko v. Leendertz, 619 F.3d
259, 265 (3d Cir. 2010).
8
2015, the investigator located them in Hazleton,
Pennsylvania.
B. Procedural History
On August 13, 2015, Didon filed the instant Hague
Convention petition in the Middle District of Pennsylvania
seeking the return of A.D. and J.D. to French Saint Martin.11
Didon also filed an ex parte motion seeking a temporary
restraining order and an expedited hearing on the merits of his
petition.
On August 14, 2015, the District Court held an ex
parte telephone hearing with Didon’s counsel, after which it
entered an order directing the U.S. Marshals Service to serve
a copy of the order and petition on Dominguez, and to
confiscate the passports and other travel documents of
Dominguez, A.D., and J.D. The District Court also granted
Didon’s request for a temporary restraining order and
enjoined Dominguez from removing A.D. and J.D. from the
Middle District of Pennsylvania pending a hearing on the
merits of the petition. The District Court subsequently held
hearings in the matter on September 2 and September 22,
during which both parties presented testimony and other
evidence.
On September 24, 2015, the District Court rendered
judgment, granting Didon’s petition as to A.D. and denying
11
Under ICARA, a petition must be filed with a court
“authorized to exercise its jurisdiction in the place where the
child is located at the time the petition is filed.” 22 U.S.C.
§ 9003(b).
9
the petition as to J.D. The District Court began by fixing the
date of retention as September 7, 2014—the day on which
Dominguez had promised to return from the United States
with the children. It then examined where the children were
habitually resident prior to that date. It observed: “The
parties’ testimony reveals that the border [between Dutch Sint
Maarten and French Saint Martin] is so permeable as to be
evanescent, and is regularly and readily traversed by residents
and travelers alike. . . . [F]or most purposes of its residents’
daily life, the island is essentially undivided.” App. vol. I at
13. It highlighted testimony about the family’s extensive
contacts with both countries and concluded that “the record
facts, in addition to the nature of the island itself, support a
finding that J.D. and A.D. were habitual residents of both
[Dutch] Sint Maarten and [French] Saint Martin.” App. vol. I
at 15.
In support of its conclusion, the District Court
distinguished cases holding that a child may have only one
habitual residence country at a time as “deciding whether the
child had abandoned a prior habitual residence in favor of a
new one.” App. vol. I at 15. It also invoked dicta from
Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) referencing
“the rare situation where someone consistently splits time
more or less [evenly] between two locations, so as to retain
alternating habitual residences in each.” App. vol. I at 16
(internal quotation marks omitted) (quoting Mozes, 239 F.3d
at 1075 n.17).
The District Court bifurcated the remainder of its
analysis. With respect to A.D., the District Court noted that
the parties were in agreement that Didon had custody rights
under French law because A.D. is his biological son. The
District Court also noted that Didon was exercising those
10
custody rights until Dominguez took A.D. to the United
States. Because Dominguez retained A.D. from his habitual
residence in violation of Didon’s custody rights under French
law, the District Court concluded that A.D. was “wrongfully”
retained under the Hague Convention and granted the petition
as to A.D.
With respect to J.D., the District Court began by
observing that Didon did not have custody rights over J.D.
through adoption because his purported “adoption” did not
satisfy the requirements of French law to vest custody. The
District Court also rejected Didon’s argument that the French
court’s ex parte custody order vested him with custody rights
over J.D. at the time of retention because “the judgment was
not issued until more than six months after the alleged
wrongful retention date of September 7, [2014].” App. vol. I
at 19. Because Didon did not have custody rights over J.D.
under French law at the time of retention, the District Court
concluded that J.D. was not “wrongfully” retained under the
Convention and denied the petition as to J.D.
Dominguez filed a motion for an emergency stay of
the District Court’s judgment with respect to A.D. pending
appeal, which the District Court denied without comment on
September 25, 2015. A.D. was subsequently transferred from
Dominguez to Didon on that same day.12 Didon and
12
The result of our decision today is that A.D. must be
transferred back to the United States from Saint Martin. After
that transfer, A.D. will have been relocated between Saint
Martin and the United States three times in two years. We are
naturally concerned that these multiple relocations of the
child have been or will be detrimental to his well-being. See
Chafin v. Chafin, 133 S. Ct. 1017, 1026 (2013).
11
Dominguez filed cross-appeals from the District Court’s
judgments with respect to J.D. and A.D., respectively.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction over the Hague
Convention petition pursuant to 28 U.S.C. § 1331 and 22
U.S.C. § 9003(a). We have jurisdiction over the parties’
cross-appeals of the District Court’s judgments pursuant to 28
U.S.C. § 1291.
Accordingly, we reiterate here that a district court
issuing a return order in a Hague Convention matter should
seriously consider the possibility of staying that order
pending appeal. While we do not endorse “[r]outine stays” in
such matters, a district court should carefully consider the
traditional stay factors when “considering whether to stay a
return order”:
(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the
merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the
other parties interested in the proceeding; and
(4) where the public interest lies.
Id. at 1027 (internal quotation marks omitted) (quoting Nken
v. Holder, 556 U.S. 418, 434 (2009)).
12
We review the District Court’s conclusions of law de
novo and its factual findings for clear error.13 Karpenko, 619
F.3d at 262−63. Accordingly, we will uphold the District
Court’s factual findings if its “account of the evidence is
plausible in light of the record, even if . . . we would have
weighed the evidence differently.” Id. at 263 (alteration in
original) (internal quotation marks omitted) (quoting Tsai-Yi
Yang v. Fu-Chiang Tsui, 499 F.3d 259, 270 (3d Cir. 2007)).
III. ANALYSIS
13
Didon argues that the District Court’s determination
that the children were concurrent habitual residents of Dutch
Sint Maarten and French Saint Martin is a factual finding that
we must review for clear error. However, Didon’s argument
conflates the related, but distinct, questions presented by this
case.
The determination of where a child is habitually
resident is a mixed question of law and fact. Feder v. Evans-
Feder, 63 F.3d 217, 222 n.9 (3d Cir. 1995). “On such
questions we employ a mixed standard of review, accepting
[a] district court’s historical or narrative facts unless they are
clearly erroneous, but exercising plenary review of the court’s
choice of and interpretation of legal precepts and its
application of those precepts to the facts.” Id. Under this
standard, the question of whether a child may have concurrent
habitual residence countries under the Hague Convention
“defines the concept of habitual residence,” id., and therefore
is a classic legal question over which we exercise plenary
review.
13
The Hague Convention was designed to “deter parents
from engaging in international forum shopping in custody
cases.” Karpenko, 619 F.3d at 263 (internal quotation marks
omitted) (quoting Tsai-Yi Yang, 499 F.3d at 270). To that
end, it provides a return remedy that seeks to “restore the
status quo” that existed prior to the “wrongful” removal or
retention14 of a child from her habitual residence country. Id.(internal quotation marks omitted) (quoting Tsai-Yi Yang, 499
F.3d at 270). The Convention deems a removal or retention
to be “wrongful” where:
a) it is in breach of rights of custody attributed
to a person, an institution or any other body,
either jointly or alone, under the law of the State
in which the child was habitually resident
immediately before the removal or retention;
and
b) at the time of removal or retention those
rights were actually exercised, either jointly or
alone, or would have been so exercised but for
the removal or retention.
Hague Convention, supra, at art. 3.
14
Because Didon permitted Dominguez to travel to the
United States with the children, Didon has alleged only a
wrongful retention of the children. See Feder, 63 F.3d at 220
n.4. Therefore, we will not discuss wrongful removal.
14
In evaluating whether the petitioning parent has made
that showing, a court must determine: (1) when the removal
or retention took place; (2) where the child was habitually
resident immediately prior to the removal or retention; (3)
whether the removal or retention violated the petitioning
parent’s custody rights under the law of the child’s habitual
residence; and (4) whether the petitioning parent was actually
exercising those custody rights at the time of the removal or
retention, or would have exercised those rights but for the
removal or retention.15 Karpenko, 619 F.3d at 263.
In this case, we need only examine the second question
(habitual residence), which proves dispositive. The District
Court concluded that the Hague Convention permits the
children to have concurrent habitual residence in Dutch Sint
15
“Once the petitioner meets its initial burden, the
respondent may oppose the child’s return by proving one of
five affirmative defenses.” Karpenko, 619 F.3d at 263.
Before the District Court, Dominguez unsuccessfully sought
to invoke the affirmative defense that there is “a grave risk
that [A.D.’s] return would expose him to physical or
psychological harm or otherwise place [him] in an intolerable
situation.” Id. at 263 n.3. Dominguez does not present any
argument on this point on appeal and so has waived our
consideration of the affirmative defense. See Tsai-Yi Yang,
499 F.3d at 269 n.9. In any event, as the District Court
concluded, the sketchy and sharply disputed evidence of
Didon’s alleged abuse of A.D. does not approach the level of
“clear and convincing evidence” required to prove the
affirmative defense. Karpenko, 619 F.3d at 263 n.3.
15
Maarten and French Saint Martin. We conclude that the
Hague Convention does not permit concurrent habitual
residence and hold that the children were habitually resident
only in the country in which they lived—Dutch Sint Maarten.
Because Dutch Sint Maarten does not recognize the Hague
Convention,16 the Convention does not apply to this case. See
Hague Convention, supra, at arts. 4 & 35; Karkkainen v.
Kovalchuk, 445 F.3d 280, 287 (3d Cir. 2006); Legal Analysis,
supra, at 10504 (“[T]he Convention may be invoked only
where the child was habitually resident in a Contracting State
and taken to or retained in another Contracting State.”).
Accordingly, the petition must be dismissed.
A. The Hague Convention Does Not Permit Concurrent
Habitual Residence
In determining whether the Hague Convention permits
concurrent habitual residence, we begin our analysis with the
text of the treaty. See Abbott v. Abbott, 560 U.S. 1, 10 (2010)
(“The interpretation of a treaty, like the interpretation of a
statute, begins with its text.” (internal quotation marks
omitted) (quoting Medellín v. Texas, 552 U.S. 491, 506
(2008))). As with a statute, where the text of a treaty is
unambiguous, we apply the treaty as written and the analysis
is complete. See Chan v. Korean Air Lines, Ltd., 490 U.S.
122, 134−35 (1989); United States v. Duarte-Acero, 208 F.3d
1282, 1285 (11th Cir. 2000).
We conclude that the text of the Hague Convention
unambiguously contemplates that a child may have only one
habitual residence country at a time. Rather than referencing
16
See supra note 5 and accompanying text.
16
“a State” of habitual residence or “the States” of habitual
residence, the Convention repeatedly refers to “the State” of
habitual residence. See, e.g., Hague Convention, supra, at
Preamble (“The States signatory to the present
Convention, . . . Desiring to . . . establish procedures to ensure
the[] prompt return [of children] to the State of their habitual
residence . . . .” (emphasis added)); id. at art. 3 (“The . . .
retention of a child is to be considered wrongful where . . . it
is in breach of rights of custody attributed to a person . . .
under the law of the State in which the child was habitually
resident immediately before the . . . retention . . . .” (emphasis
added)); see also 22 U.S.C. § 9003(f)(1) (“[T]he term
‘authorities’, as used in article 15 of the Convention to refer
to the authorities of the state of the habitual residence of a
child . . . .” (emphasis added)). Such language is not
susceptible to any construction whereby a child may have
more than one habitual residence country at a time. See In
Marriage of Hanbury-Brown (1996) 130 FLR 252, 285
(Austl.)17; Rhona Schuz, Policy Considerations in
17
“In interpreting any treaty, ‘[t]he opinions of our
sister signatories . . . are entitled to considerable weight.’”
Abbott, 560 U.S. at 16 (alterations in original) (internal
quotation marks omitted) (quoting El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999)). “The
principle applies with special force here, for Congress has
directed that ‘uniform international interpretation of the
Convention’ is part of the Convention’s framework.” Id.(quoting former 42 U.S.C. § 11601(b)(3)(B)). Accordingly,
we consider the “views of other contracting states,” as
expressed in “international case law,” in interpreting the
Hague Convention. Id.17
Determining the Habitual Residence of a Child and the
Relevance of Context, 11 J. Transnat’l L. & Pol’y 101, 126
(2001); cf. Linda Silberman, Interpreting the Hague
Abduction Convention: In Search of a Global Jurisprudence,
38 U.C. Davis L. Rev. 1049, 1067 n.78 (2005).
This textual conclusion finds support in the
Convention’s Explanatory Report, which is “generally
recognized as ‘the official history and commentary on the
Convention.’” Whiting v. Krassner, 391 F.3d 540, 546 n.3
(3d Cir. 2004) (quoting Legal Analysis, supra, at 10503);
accord Feder, 63 F.3d at 221 n.7. The Explanatory Report
similarly makes clear that a child may have only one habitual
residence country at a time:
The practical application of [the wrongful
retention] principle requires that the signatory
States be convinced that they belong, despite
their differences, to the same legal community
within which the authorities of each State
acknowledge that the authorities of one of
them—those of the child’s habitual residence—
are in principle best placed to decide upon
questions of custody and access.
Elisa Pérez-Vera, Explanatory Report ¶ 34, in 3 Hague
Conference on Private International Law, Acts and
Documents of the Fourteenth Session 434–35 (1982)
(emphasis added).
Thus, it is unsurprising that the overwhelming majority
of United States cases that have addressed the issue have
concluded that a child may have only one habitual residence
country at a time. See, e.g., Sorenson v. Sorenson, 559 F.3d
18871, 873 (8th Cir. 2009) (“[A] person may have only one
habitual residence.” (quoting Silverman v. Silverman, 338
F.3d 886, 898 (8th Cir. 2003) (en banc))); Robert v. Tesson,
507 F.3d 981, 989 (6th Cir. 2007) (same); Miller v. Miller,
240 F.3d 392, 400 (4th Cir. 2001) (same).18 Foreign cases
addressing the issue have reached the same conclusion. See,
e.g., In Marriage of Hanbury-Brown (1996) 130 FLR 252,
285−86 (Austl.) (“[T]he notion of [concurrent] habitual
residence is simply inconsistent with the wording of the
Convention, and with all known judicial pronouncements
upon it.”); Kaniuch v. Pontes, 2004 CarswellAlta 1922, para.
14 (Can. Alta. Q.B.) (WL); Re V (Abduction: Habitual
Residence) (1995) 2 FLR 992, 1001−02 (Eng.); Cameron v.
Cameron (1996) SC 17 (Scot.).19
Courts have not strayed from this bedrock principle
even where a child has meaningful connections to two
18
Accord Panteleris v. Panteleris, 30 F. Supp. 3d 674,
682 (N.D. Ohio 2014) (same); Blanc v. Morgan, 721 F. Supp.
2d 749, 760 (W.D. Tenn. 2010) (same); In re Morris, 55 F.
Supp. 2d 1156, 1161 (D. Colo. 1999) (same); Freier v.
Freier, 969 F. Supp. 436, 440 (E.D. Mich. 1996) (same); cf.
Tsai-Yi Yang, 499 F.3d at 272 (“[A] child’s prior habitual
residence must be effectively abandoned by the shared intent
of the parents for her to acquire a new habitual residence.”);
Whiting, 391 F.3d at 550 (same).
19
Accord Maharaj v. Maharajh, 2011 ONSC 525, para.
13 (Can.); Wilson v. Huntley, 2005 CarswellOnt 1606, para.
57 (Can. Ont. Sup. Ct. J.) (WL); S.-C. (S.) v. C. (G.), 2003
CarswellQue 2223, para. 53 (Can. Que. Ct. Sup.) (WL);
Dickson v. Dickson (1990) SCLR 692 (Scot.).
19
countries. For example, in shuttle custody situations, a child
spends a roughly equal amount of time in two countries
because her parents, who live in different countries, agree to
split custody. See supra note 6. In a recent shuttle custody
case, rather than considering the possibility of concurrent
habitual residence, the Ninth Circuit adopted the theory of
alternating habitual residence whereby a child’s habitual
residence alternates between those two countries.20
Valenzuela v. Michel, 736 F.3d 1173, 1178−79 (9th Cir.
2013).
20
As the Ninth Circuit noted, foreign cases have
similarly adopted the theory of alternating habitual residence.
See In re CL (a minor) and In re the Child Abduction and
Custody Act 1985; JS v. CL (unreported High Court N. Ir.
Aug. 25, 1998) (“[T]he child was habitually resident in
whichever jurisdiction he was living for a particular week.”);
Maharaj v. Maharajh, 2011 ONSC 525, para. 13 (Can.);
Wilson v. Huntley, 2005 CarswellOnt 1606, para. 32 (Can.
Ont. Sup. Ct. J.) (WL); In re A. (1998) 1 FLR 497 (Eng.); Re
V (Abduction: Habitual Residence) (1995) 2 FLR 992,
1001−02 (Eng.); cf. Watson v. Jamieson (1998) SLT 180
(Scot.).
Although we need not examine the propriety of
alternating habitual residence in this case, we note that
alternating habitual residence comports with the text of the
Hague Convention because, under that theory, a child has
only one habitual residence country at any given time.
20
In concluding that concurrent habitual residence is
possible under the Convention, the District Court relied on an
earlier Ninth Circuit decision—Mozes v. Mozes, 239 F.3d
1067 (9th Cir. 2001). In Mozes, the Ninth Circuit observed in
dicta that, although “the view held by many courts” is that “a
person can only have one habitual residence at a time under
the Convention,” “[t]he exception would be the rare situation
where someone consistently splits time more or less evenly
between two locations, so as to retain alternating habitual
residences in each.” Id. at 1075 n.17 (emphasis added). The
Court went on to observe that, if “[a] child . . . spent regularly
alternating periods with each parent,” the child “might . . .
acquire[] dual habitual residences.” Id. at 1083 n.50
(emphasis added). In support of its observations, the Court
cited to a commentator that advocates for the possibility of
concurrent habitual residence—Paul R. Beaumont & Peter E.
McEleavy, The Hague Convention on International Child
Abduction 110 (1999).
After carefully reviewing Mozes, it is not clear to us
whether the Ninth Circuit was endorsing concurrent habitual
residence or alternating habitual residence in that case.21 The
Ninth Circuit’s later opinion in Valenzuela appears to
interpret Mozes to have endorsed alternating habitual
residence. See Valenzuela, 736 F.3d at 1177−79. However,
21
We are particularly confused by the Ninth Circuit’s
statement that the “exception” to a child having “one habitual
residence at a time” would be “alternating habitual
residences.” Mozes, 239 F.3d at 1075 n.17. In an alternating
habitual residence scenario, the child’s habitual residence
alternates between two countries such that the child does, in
fact, have only one habitual residence country at a time.
21
to the extent that Mozes can be read to support concurrent
habitual residence, we reject that interpretation of the Hague
Convention as inconsistent with the Convention’s
unambiguous text.
We are mindful that, in cases where a child has
meaningful connections to two countries, the determination of
which is the child’s habitual residence may sometimes be
difficult. However, that is the determination required by the
text of the Hague Convention.22 Courts are permitted only to
interpret existing treaty provisions—not re-draft those
provisions. See Lozano v. Montoya Alvarez, 134 S. Ct. 1224,
22
Permitting concurrent habitual residence would also
introduce a fundamental problem into the structure of the
treaty—in cases where the custody laws of two concurrent
habitual residence countries conflict, how would a court
determine which country’s laws to apply in determining
whether a wrongful retention had taken place? Given that the
Convention clearly contemplates a child having only one
habitual residence country at a time, it provides no choice of
law rule for such a situation. But see Beaumont & McEleavy,
supra, at 110 (suggesting a theoretical solution to this
problem).
Despite finding that the children in this case were
habitually resident in both Dutch Sint Maarten and French
Saint Martin at the same time, the District Court avoided this
choice of law problem by analyzing Didon’s custody rights
only under French law. It did not provide any justification for
ignoring Dutch custody law, which would have equal
application to the wrongful retention inquiry in a concurrent
habitual residence scenario.
22
1235 (2014). “[T]o alter, amend, or add to any treaty, by
inserting any clause, whether small or great, important or
trivial, would be on our part an usurpation of power, and not
an exercise of judicial functions. It would be to make, and
not to construe a treaty.”23 Chan, 490 U.S. at 135 (alteration
in original) (internal quotation marks omitted) (quoting In re
The Amiable Isabella, 19 U.S. (6 Wheat.) at 22). Therefore,
remaining faithful to the text of the treaty, we hold that a
child may have only one habitual residence country at a time
under the Hague Convention.
B. The Children’s Habitual Residence Country is Dutch
Sint Maarten
Given our conclusion that the Convention does not
permit concurrent habitual residence, we must now determine
in which country the children were habitually resident—
Dutch Sint Maarten or French Saint Martin.
The Hague Convention does not define the phrase
“habitual residence.” See Feder, 63 F.3d at 222. However,
we interpret the words of treaties in accordance with their
ordinary meaning. See Santovincenzo v. Egan, 284 U.S. 30,
23
This principle holds true even if one views the
Convention’s failure to address concurrent habitual residence
as a “gap” or “oversight” rather than a conscious choice that a
child may have only one habitual residence country at a time.
See Chan, 490 U.S. at 135 (“Neither can this Court supply
a casus omissus in a treaty, any more than in a law.” (quoting
In re The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 22 (1821))).
23
40 (1931); Abbott, 560 U.S. at 11; In re B. Del C.S.B., 559
F.3d 999, 1010 (9th Cir. 2009). “Habitual residence” is
defined as “[a] person’s customary place of residence.”
Habitual Residence, Black’s Law Dictionary (10th ed. 2014).
We therefore look to the ordinary meaning of the term
“residence,” which is incorporated into the phrase “habitual
residence” as a matter of language and definition. See Koch
v. Koch, 450 F.3d 703, 712 (7th Cir. 2006); Guzzo v.
Cristofano, 719 F.3d 100, 106 & n.5 (2d Cir. 2013); Simcox v.
Simcox, 511 F.3d 594, 602 (6th Cir. 2007). “Residence” is
defined as “[t]he place where one actually lives,” or, put
another way, where one has a home. Residence, Black’s Law
Dictionary (10th ed. 2014); Residence, Merriam-Webster
Dictionary Online, http://www.merriam-
webster.com/dictionary/residence (last visited Sept. 23,
2016); see Live, Merriam-Webster Dictionary Online,
http://www.merriam-webster.com/dictionary/live (last visited
Sept. 23, 2016).
In our view, it would disregard the ordinary meaning
of the term “residence” to find that a child is habitually
resident in a country in which she has not “lived.” Consider,
for example, a child whose home is in New Jersey but who
travels to New York each day to attend elementary school and
engage in various other daily activities. On those facts,
regardless of how much time the child spent each day in New
York, an ordinary person would not say that the child is a
“resident” of New York—a state in which she does not live.
See In re B. Del C.S.B., 559 F.3d at 1011. Indeed, the parties
have not pointed us to any case in which a child was found to
24
be habitually resident in a country in which she had not
lived.24
Although drawing such a distinction between two
relevant countries may seem somewhat arbitrary, it is the
result of a difficult choice of law question faced by the
drafters of the Hague Convention: how to determine which
country’s custody law to apply where two countries have a
potential interest in the application of their own custody law.
The drafters of the Convention decided to resolve this
question by according priority to the country of “habitual
residence,” believing authorities in that country to be “in
principle best placed to decide upon questions of custody and
access.” Pérez-Vera, supra, ¶ 34 at 434–35. Such
distinctions are common in conflict of laws analyses, which
often resolve difficult choice of law questions by reference to
rules viewed as predictable and easy-to-apply. See generally
Kermit Roosevelt, Conflict of Laws 3−32 (2010) (examining
the territorial theory of the Restatement (First) of Conflict of
Laws under which the law of the location of a legal event
generally governs).25 In following the ordinary meaning of
24
We note that, in all our Hague Convention cases in
which we examined a district court’s determination as to
where a child was habitually resident, the child had lived in
the purported habitual residence countries. See Tsai-Yi Yang,
499 F.3d at 266−67; Karkkainen, 445 F.3d at 285−86; In re
Application of Adan, 437 F.3d 381, 386 (3d Cir. 2006);
Whiting, 391 F.3d at 542−43; Feder, 63 F.3d at 218−20.
25
The drafters of the Hague Convention could have
adopted, instead of a “habitual residence” rule, an interest
analysis standard, under which a court would examine the
interest of the relevant countries in the application of their
25
the term “residence” and requiring that a child have lived in a
country for a finding of habitual residence, we are honoring
the choice of law rule provided by the drafters of the
Convention.
The adoption of a “living” requirement for habitual
residence also fits harmoniously within existing habitual
residence jurisprudence. Such a requirement is consistent
with principles of habitual residence to which we have looked
in the past. See Whiting, 391 F.3d at 547 (“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.” (emphasis added) (quoting Feder, 63 F.3d at 223));
In re Application of Adan, 437 F.3d at 392 (same); Delvoye v.
Lee, 329 F.3d 330, 334 (3d Cir. 2003) (“Where a child is born
while his . . . mother is temporarily present in a country other
than that of her habitual residence . . . the child will normally
have no habitual residence until living in a country on a
footing of some stability.” (first alteration in original)
(emphasis added) (quoting Dr. E.M. Clive, The Concept of
Habitual Residence, The Jurid. Rev. part 3, 138, 146 (1997)).
It is also consistent with cases from other courts. See Guzzo,
719 F.3d at 106 (defining habitual residence as “the place
where [a child] usually or customarily lives” (emphasis
own custody law. See generally Roosevelt, supra, at 41–79.
While such an approach might appear more appealing in this
particular case given the meaningful connections of the
children to both Dutch Sint Maarten and French Saint Martin,
the drafters did not choose this choice of law approach and
we must respect their decision.
26
added)); Barzilay v. Barzilay, 600 F.3d 912, 921 (8th Cir.
2010) (observing that an agreement between two parents
purporting to set a child’s habitual residence in a country
where the child has “never lived” would be ineffectual).
Moreover, in a typical Hague Convention case where a child
is moved from one country to another and a court must
determine which is her habitual residence, see Valenzuela,
736 F.3d at 1177−78, the child has lived in both countries and
so the requirement would be satisfied no matter which
country the court determines to be the child’s habitual
residence.
We therefore conclude that a child must have lived in a
country before that country can be considered her habitual
residence under the Hague Convention. We take this
opportunity to outline the analytical structure that courts
should use in determining a child’s habitual residence
country.
In answering the question of where a child is
habitually resident, we have traditionally followed several
principles. “The inquiry into a child’s habitual residence is a
fact-intensive determination that cannot be reduced to a
predetermined formula and necessarily varies with the
circumstances of each case.” Karkkainen, 445 F.3d at 291.
As a general matter, a child’s habitual residence is “the place
where [the child] has been physically present for an amount
of time sufficient for acclimatization and which has a degree
of settled purpose from the child’s perspective.” Baxter v.
Baxter, 423 F.3d 363, 368 (3d Cir. 2005) (internal quotation
marks omitted) (quoting Feder, 63 F.3d at 224). “This
approach considers a child’s experience in and contacts with
her surroundings, focusing on whether she ‘develop[ed] a
certain routine and acquire[d] a sense of environmental
27
normalcy’ by ‘form[ing] meaningful connections with the
people and places [she] encountered’ in a country prior to the
retention date.” Karkkainen, 445 F.3d at 292 (alterations in
original) (quoting Whiting, 391 F.3d at 550–51). We also
“consider the ‘parents’ present, shared intentions regarding
their child’s presence [in a particular location],’” Tsai-Yi
Yang, 499 F.3d at 272 (alteration in original) (quoting Baxter,
423 F.3d at 368), especially “[w]hen a child is too young to
have an intent regarding her habitual residence,” In re
Application of Adan, 437 F.3d at 392.
Within this framework, the living requirement
logically comes before any question of where a child is
“acclimatized” or the “shared intentions” of her parents—it is
a prerequisite to a finding of habitual residence. A court
adjudicating a Hague Convention petition should first ask
whether the child at issue has lived in the purported habitual
residence countries. If that requirement is satisfied for those
countries, the court should then engage in the fact-intensive
inquiry laid out in the preceding paragraph. Viewed in this
way, the living test is used to determine whether a child has
multiple residence countries, and the fact-intensive inquiry is
used to determine, among those residence countries, which is
the child’s habitual residence.
In this case, although the children attended school in
French Saint Martin, it is clear that the country in which they
lived (i.e., had a home) was Dutch Sint Maarten.26 Because
26
As we observe supra note 8, the District Court found
that Didon owned a two-unit apartment building in French
Saint Martin. However, the testimony credited by the District
Court made clear that the family stayed there together only
five or six times a year and so the children did not live in
28
there is only one country in which the children lived, our
analysis is complete and we need not proceed to the fact-
intensive inquiry. We hold that the children were habitual
residents of Dutch Sint Maarten alone. Because Dutch Sint
Maarten does not recognize the Hague Convention,27 the
Convention does not apply to this case and the petition must
be dismissed.28 See Hague Convention, supra, at arts. 4 &
35.
VI. CONCLUSION
For the foregoing reasons, we will vacate the District
Court’s judgments and dismiss the petition. We will also
instruct the District Court to order that A.D. be returned to the
United States forthwith. The Clerk of Court will issue the
mandate immediately.
French Saint Martin. Indeed, the District Court found that
“[p]rior to Dominguez’s departure with the children, the
family unit had been living together [in Dutch Sint Maarten]
since A.D.’s birth in 2010.” App. vol. I at 21.
27
See supra note 5 and accompanying text.
28
Our dismissal of the petition is not limited to
Dominguez’s appeal of the District Court’s grant of the
petition as to A.D. Because the Hague Convention does not
apply to this case, our dismissal must also extend to Didon’s
appeal of the District Court’s denial of the petition as to J.D.
29