Derek Redmond v. Mary Redmond , 724 F.3d 729 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2511
D EREK R EDMOND,
Petitioner-Appellee,
v.
M ARY R EDMOND,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 C 8542—Charles R. Norgle, Judge.
A RGUED O CTOBER 31, 2012—D ECIDED JULY 25, 2013
Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
S YKES, Circuit Judge. Mary Redmond left her home
in Illinois at age 19 to attend college in Ireland. There
she met Derek Redmond, and the two began a romantic
relationship. For most of the next 11 years, the couple
lived together in Ireland, though they never married;
their common last name is a coincidence.
In 2006 Mary became pregnant. She and Derek agreed
that the baby would be born in America but raised in
2 No. 12-2511
Ireland. On March 28, 2007, their son, “JMR,” was born
in Illinois. They returned to Ireland with the baby 11 days
later, but their relationship soon deteriorated. On Novem-
ber 10, 2007, Mary moved back to Illinois with JMR
against Derek’s wishes. The child was not quite eight
months old.
Ordinarily a parent in Derek’s position might have
recourse to the Hague Convention on the Civil Aspects
of International Child Abduction, Oct. 25, 1980,
T.I.A.S. No. 11670, which requires signatories to
promptly return children to the country of their habitual
residence when they are “wrongfully removed to or
retained in” another country in breach of the custody
rights of the left-behind parent. Hague Convention art. 3,
supra, T.I.A.S. No. 11670. The catch for Derek was that he
had no custody rights under Irish law; unmarried
fathers in Ireland are not legally recognized as parents,
although they may petition a court for guardianship
and custody rights. The Hague Convention remedy
was unavailable.
Derek thereafter waged a three-and-a-half-year battle
to establish his paternity rights in Ireland. On February 10,
2011, an Irish court granted Derek’s request for guardian-
ship and joint custody of JMR, and also ordered that
the child live in or near Ballymurphy, Ireland. Mary
participated in these proceedings and was in Ireland with
JMR for the final hearing. The court allowed her to
take JMR back to Illinois to make preparations for their
move to Ireland, but only on condition that she promise
under oath to return with the child by March 30, 2011.
No. 12-2511 3
Mary made the promise but did not intend to keep it;
she returned to Illinois with JMR and remained with
him there. Eight months later Derek filed a Hague Con-
vention petition in federal court in Illinois claiming
that Mary wrongfully “retained” JMR in the United
States in breach of his newly recognized custody rights
in Ireland.
The district court held that as of March 30, 2011, when
Mary disobeyed the Irish court’s order and the alleged
wrongful “retention” occurred, JMR’s habitual residence
was Ireland. This was so, the court held, even though
JMR had lived in the United States almost all his life.
The court focused instead on the parents’ initial agree-
ment to raise their son in Ireland—their last shared
intent about where he would live—and gave this
evidence decisive effect. Because Mary’s move to
Illinois was unilateral, the court concluded that JMR’s
residence in the United States was temporary and contin-
gent on the results of the Irish guardianship proceeding.
The court ordered JMR returned to Ireland. Mary appealed.
We reverse. The district court treated the parents’
last shared intent as a kind of fixed doctrinal test for
determining a child’s habitual residence. It is not. The
determination of habitual residence under the Hague
Convention is a practical, flexible, factual inquiry that
accounts for all available relevant evidence and con-
siders the individual circumstances of each case. Here,
the parents’ shared intent when JMR was born sheds
little light on the question of his habitual residence in
2011. When Mary moved with the baby to Illinois in
4 No. 12-2511
November 2007, she had the exclusive right to decide
where he would live; because she was JMR’s sole legal
custodian, his removal from Ireland was not wrongful
under the Convention. By March 2011, the time of the
alleged wrongful “retention,” JMR’s life was too firmly
rooted in Illinois to consider Ireland his home. Because
JMR was habitually resident in the United States, the
district court was wrong to order him “returned”
to Ireland.
I. Background
Mary is an American citizen and also a citizen of Ireland
through her father, who was born in Ireland. Derek is a
citizen of Ireland. In 1996 Mary left her family home
in Illinois to attend community college in Ireland, re-
turning during the summers and at other times during
the year. She met Derek soon after she arrived, and they
began an intimate relationship. She remained in Ireland
after completing her associate’s degree, and the couple
lived together for more than a decade. But they never
married.
In 2006 Mary became pregnant. The couple agreed
that the child would be born in America but raised in
Ireland. They traveled together to the United States, and
on March 28, 2007, their son, JMR, was born in Blue
Island, Illinois. Derek was present at the birth and
signed a voluntary acknowledgment of paternity; he is
also listed as JMR’s father on the child’s birth certificate.
Under Illinois law a properly executed voluntary acknowl-
edgment of paternity creates a presumption of paternity
No. 12-2511 5
and may serve as a basis for a child-support order
without more elaborate proceedings to establish pater-
nity. See 750 ILL. C OMP . S TAT. 45/3, 45/5, 45/6. A child-
support order entered pursuant to an acknowledgment
of paternity may also include a determination of custody
rights, guardianship, and visitation terms. See id. § 45/14.
In contrast, in Ireland the natural father of an
illegitimate child does not have parental rights. See Guard-
ianship of Infants Act, 1964, Part I, § 2 (Act No. 7/1964) (Ir.),
available at http://www.irishstatutebook.ie/1964/en/act/
pub/0007/. Under Irish law “[t]he mother of an illegitimate
infant shall be guardian of the infant,” id. Part II, § 6(4);
the definition of “father” excludes “the natural father of
an illegitimate infant,” id. Part I, § 2. An unmarried
father may formally petition a court for recognition of
paternity and appointment as a guardian of his child,
and if recognized may seek a determination of custody
and access rights. See id. Part I, § 3; Part II, § 11.
In accordance with their original plan, Mary and Derek
returned to Ireland with JMR on April 8, 2007, when
the baby was 11 days old. The couple remained
together for several months, but during this time, their
relationship fell apart. Mary alleges in the underlying
custody dispute that Derek suffered problems with
alcohol and abused her. In November 2007 Mary
decided to end the relationship, move back to Illinois,
and raise JMR there. On November 10, 2007, she and
JMR left Ireland and flew to Illinois.
In February 2008 Mary returned to Ireland with JMR
for a visit. The purpose of the trip is not entirely clear.
6 No. 12-2511
At least in part, Mary wanted to finish collecting her
belongings. She also met with a community welfare
officer, either to request information regarding mainte-
nance payments or to apply for “periodic payments”
for JMR (we do not know which). On March 25, 2008,
while Mary and JMR were still in Ireland, Derek filed a
petition for guardianship and custody rights in an Irish
court and obtained an ex parte order preventing them
from leaving the country. On the basis of this order, Mary
and JMR were stopped by authorities at the airport. On
April 22, 2008, an Irish court vacated the ex parte
order, and Mary left Ireland with JMR the next day.
During the course of the next three years, Mary
returned to Ireland periodically to participate in hearings
on Derek’s guardianship and custody petition. She at-
tended a May 15, 2008 hearing and flew back to Illinois
two days later. She returned to Ireland and attended
another hearing on June 25, during which the Irish court
declined to exercise jurisdiction over the case. Derek
appealed this decision, and another hearing was set
for July 29. Less than a week before the hearing, Derek
obtained an ex parte order requiring that Mary and
JMR appear. Mary and JMR did not appear but her
counsel filed for a continuance, which was denied. At
the hearing the reviewing court reversed the lower
court’s ruling and held that the court had jurisdiction
over Derek’s application. Mary appealed. The Irish
High Court heard the case on November 18 and ruled
against her on November 26, 2008.
Mary then filed her own application in the Irish court
to relocate with JMR to the United States permanently.
No. 12-2511 7
Dueling petitions were now before the court in Ireland.
At a hearing on July 2, 2009, the court ordered that JMR
undergo an independent psychiatric assessment, and
the court-appointed examiner interviewed JMR and his
parents, and also other paternal and maternal relatives.
The psychiatric report concluded that JMR was well-
adjusted and happy but would benefit from growing up
near both parents—an arrangement that could only
work if JMR and Mary moved to Ireland given Derek’s
lack of American citizenship. The report recommended
that Derek be granted guardianship and custody rights,
and also that JMR live in Ireland so that Derek could
have regular access to his son. Finally, the report recom-
mended that the parents develop a parenting plan
for JMR with “appropriate weekly and regularized
access plans.”
Throughout this time JMR lived with Mary in Orland
Park, Illinois. More than a year and a half passed
from Mary’s move to Illinois and the hearing at which
the Irish court commenced consideration of Derek’s
guardianship petition on the merits and ordered a psychi-
atric evaluation; another year and a half elapsed before
the final hearing on February 9, 2011. By the time of
that hearing, JMR had spent well over three of his four
years in Illinois. He attended daycare and preschool
in Orland Park from the age of two and a half, and was
enrolled in kindergarten at St. Michael’s School in
Orland Park for September 2012. He saw a pediatrician
and a dentist in Illinois, where all of his medical records
were kept. He played on a children’s baseball team
with the local baseball association, had playdates with
8 No. 12-2511
friends, and went to church with his mother and played
in the neighborhood park on Sundays. He has a large
extended family in Illinois and had frequent contact
with his grandparents, aunts, uncles, and cousins. During
this time, he periodically traveled to Ireland with Mary,
mostly for court proceedings. Between November 2007
and February 2011, he spent about ten and a half
separated weeks in Ireland.
On February 10, 2011, the day after the final hearing,
the Irish court entered an order denying Mary’s applica-
tion to relocate and granting Derek’s request for guardian-
ship and joint custody over JMR. The court ordered
that JMR live in Ireland, in or near Ballymurphy, Carlow
County, and attend the Ballymurphy National School.
Derek and Mary were ordered to share custody on an
equal basis. Mary and JMR were in Ireland for the final
hearing; the court allowed her to return to Illinois with
JMR to wind up her affairs. As a condition of her return
to Illinois, Mary promised under oath not to apply to
any court outside of Ireland regarding JMR’s custody,
not to remove JMR to a third country, and to quit her
job and move with JMR to Ireland on or before March 30,
2011. The Irish court incorporated these undertakings
into its order. For his part Derek promised not to remove
JMR to a third country, to pay $200 per month in child
support, and to pay for Mary’s plane ticket to return
to Ireland.
Mary admits that she never intended to keep these
promises. On February 15, 2011, she returned to Illinois
with JMR, and on March 23 she petitioned for sole
No. 12-2511 9
custody in Cook County Circuit Court. The next day she
moved for an emergency protective order against Derek
alleging a history of abuse and alcohol-related misconduct.
The March 30 deadline came and went. Mary did not
move to Ireland with JMR as ordered. On May 10, 2011,
the Irish court issued a further order compelling Mary
to bring JMR to Ireland on or before June 30. This order
stated that retaining the child in the United States
violated the Hague Convention. Again Mary did
not comply.
Back in Cook County Circuit Court, Derek moved
through counsel to dismiss Mary’s sole-custody petition
for lack of jurisdiction under the Uniform Child-Custody
Jurisdiction and Enforcement Act, 750 ILL. C OMP. S TAT.
36/101 et seq. Under the Act Illinois courts generally lack
jurisdiction over a custody petition when a valid
custody order of another state or foreign court already
governs the disposition of the child. See id. §§ 36/105,
36/206. After conferring with the Irish court, see id. § 36/110,
the Illinois state-court judge concluded as follows:
(1) Derek had timely invoked the jurisdiction of the Irish
court; (2) the Irish guardianship and custody decree
was issued in substantial conformity with the require-
ments of the Act; and (3) the decree did not violate funda-
mental principles of human rights. Accordingly, on July 27,
2011, the Illinois court deferred to the prior claim of
jurisdiction by the Irish court, see id. §§ 36/105, 36/206,
and declined to exercise jurisdiction over Mary’s petition.
At this point Derek might have sought registration
and enforcement of the Irish decree in Cook County
10 No. 12-2511
Circuit Court, along with an order granting him immedi-
ate physical custody of JMR, as provided under the
Uniform Act. See id. §§ 36/303-306, 36/310, 36/313. Instead,
on December 1, 2011—five months after the state judge
dismissed Mary’s sole-custody petition—Derek filed a
Hague Convention petition in the United States District
Court for the Northern District of Illinois seeking an
order that JMR be returned to Ireland. Derek contended
that by disobeying the Irish custody order, Mary had
wrongfully retained JMR in the United States. The
district court held an evidentiary hearing on June 8, 2012,
and by written order entered on June 19, 2012, granted
Derek’s petition. The judge concluded that as of March 30,
2011, when Mary defied the Irish court’s order and the
alleged wrongful retention occurred, JMR’s habitual
residence was Ireland, not the United States. The judge
ordered JMR returned to Ireland by July 9, 2012, accompa-
nied by Mary.1
Mary appealed and asked the district court to stay
the return order pending appeal, but the court denied
the motion. She then moved this court for an emergency
stay. A motions panel denied the stay and also denied
her motion to expedite the appeal. In compliance with
1
We do not know why the court thought it had authority to
order Mary, a free adult citizen, to go to Ireland. As far as
we can determine, neither the Hague Convention nor its
implementing legislation, the International Child Abduction
Remedies Act, 102 Stat. 437 (1988) (codified at 42 U.S.C. §§ 11601et seq. (2006)), authorizes the court to order the relocation
of parents.
No. 12-2511 11
the district court’s order, JMR was returned to Ireland,
where he remains.
II. Discussion
A. Mootness
Before addressing the merits, we note a jurisdictional
question. Article III of the Constitution limits the
federal judicial power to actual, ongoing cases or contro-
versies, a limitation understood to require a live
dispute involving a party with “an actual injury
traceable to the defendant and likely to be redressed by
a favorable judicial decision.” Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 477 (1990). The case-or-controversy require-
ment “subsists through all stages of federal judicial
proceedings, trial and appellate.” Id. If on appeal it be-
comes “impossible for a court to grant any effectual
relief whatever,” the case becomes moot and jurisdic-
tion no longer exists. Knox v. Serv. Emps. Int’l Union,
Local 1000, 132 S. Ct. 2277, 2287 (2012) (internal quotation
marks omitted).
At oral argument we asked whether Mary’s appeal
became moot when JMR was returned to Ireland. The
question arose because a favorable decision may not
redress Mary’s injury; it was not clear as a legal or
practical matter that a reversal could secure JMR’s “re-
return” to Illinois. We ordered supplemental briefing,
noting that the Supreme Court had granted certiorari
in Chafin v. Chafin, 133 S. Ct. 81 (2012), to decide this
very question. The Court has now issued its decision in
12 No. 12-2511
Chafin, holding that an appeal from an adverse return
order under the Hague Convention is not rendered moot
by the child’s return. Chafin v. Chafin, 133 S. Ct. 1017,
1028 (2013).
The facts in Chafin track the facts of this case in all
material respects. There, as here, the parents disputed
the question of their child’s habitual residence for
purposes of the Hague Convention’s return remedy. The
father claimed it was the United States; the mother
claimed it was Scotland. The district court sided with the
mother and ordered the child returned to Scotland, and
mother and child left for Scotland the next day. Id. at 1022.
The question before the Supreme Court was “whether,
after a child is returned pursuant to [a Hague Conven-
tion] order, any appeal of the order is moot.” Id. at 1021.
The Court applied the standard rule that a case
becomes moot only where it is “impossible for a court
to grant any effectual relief whatever to the prevailing
party.” Id. at 1023 (citing Knox, 132 S. Ct. at 2287). The
Court held that the district court’s authority to issue a
re-return order—either “under the Convention itself or
according to general equitable principles”—was a merits
question, not a jurisdictional question, and the propriety
of a re-return order was not “so implausible that it
is insufficient to preserve jurisdiction.” Id. at 1024.
The Court also brushed aside concerns about practical
impediments to enforcing a re-return order. Jurisdic-
tional continuation did not depend on the likelihood
that a re-return order would be obeyed by the parent
with custody or enforced by a foreign court; “difficulties
No. 12-2511 13
in enforcement,” the Court said, do not render a case
moot. Id. at 1024-26. Instead, the proper question is if
the court issues a re-return order, and if the custodial
parent complies with the order, will the aggrieved
parent get the child back? Absent a “law of physics
prevent[ing] [the child’s] return” or a similar impedi-
ment, the answer to that question is generally “yes.”
Id. at 1025. Accordingly, the Court held that a parent’s
appeal of an adverse return order under the Hague Con-
vention does not become moot by the child’s return.
Id. at 1028.
The holding in Chafin resolves the primary mootness
concern we raised at oral argument. As a secondary
jurisdictional point, we speculated that the appeal may
be moot because the Illinois state-court judge has
deferred to the Irish court’s jurisdiction in the under-
lying custody battle. In other words, if we reverse and
remand and the district court orders JMR returned to
Illinois, will he go straight back to Ireland pursuant to
the Illinois court’s decision? We asked for supplemental
briefing on this issue as well, and as things stand right
now, the answer to our question is “no.” The Irish court’s
custody ruling was before the Illinois court on the
limited question of the court’s jurisdiction to decide
Mary’s petition for sole custody. Derek had asked the
Illinois court to defer to the Irish court’s earlier claim of
jurisdiction under the terms of the Uniform Child-
Custody and Jurisdiction Enforcement Act. The court
granted Derek’s motion and dismissed the petition for
lack of subject-matter jurisdiction, but its order did not
alter the status quo; that is, the Illinois court did not
14 No. 12-2511
give effect to the Irish court’s order. The decision clears
the way for Derek to register the Irish order in the
Cook County Circuit Court and seek its enforcement
under the Uniform Act, but as far as the record discloses,
he has not yet sought that relief. In the meantime, Mary
has moved for reconsideration of the court’s jurisdic-
tional ruling, and that motion is stayed pending the
outcome of these proceedings. See Agreed Order,
Redmond v. Redmond, No. 11 D 79473 (Circuit Ct. of Cook
Cnty.) (filed Oct. 22, 2012). If Mary’s motion for recon-
sideration is denied, she may appeal.
The upshot of all this is that the Illinois court’s jurisdic-
tional decision does not moot this appeal. Unwinding
the district court’s return order will not inevitably
result in a speedy transatlantic round trip for JMR. Here,
as in Chafin, “[t]his dispute is still very much alive.”
Chafin, 133 S. Ct. at 1023. The question of JMR’s habitual
residence is contested, and the correct answer determines
the propriety of the district court’s return order. Reversal
may precipitate new legal and practical challenges sur-
rounding JMR’s re-return, and if the child is returned to
Illinois, he may not stay for long. His status will depend
on the outcome of the presently pending litigation—and
possible future litigation—in the Illinois state courts.
But Mary unquestionably has an interest in the return
of her son, and “however small that concrete inter-
est may be due to potential difficulties in enforcement,
it is not simply a matter of academic debate, and is
enough to save this case from mootness.” Id. at 1026(alterations and internal quotation marks omitted).
No. 12-2511 15
B. Was JMR Wrongfully Retained in the United States?
The Hague Convention “was adopted in 1980 in
response to the problem of international child abduc-
tions during domestic disputes.” Abbott v. Abbott, 130 S. Ct.
1983, 1989 (2010). The Convention aims “to deter
parents from absconding with their children and
crossing international borders in the hopes of obtaining
a favorable custody determination in a friendlier juris-
diction.” Walker v. Walker, 701 F.3d 1110, 1116
(7th Cir. 2012). The Convention’s main purpose is to
“secure the prompt return of children wrongfully
removed to or retained in” another signatory State. Hague
Convention art. 1, supra, T.I.A.S. No. 11670. Among other
things, signatory States commit to have in place judicial
and administrative remedies for the return of children
taken from the State of their habitual residence to
another signatory State in violation of the left-behind
parent’s custody rights under the law of the State of the
child’s habitual residence. Id. arts. 3, 4, 7, 12. The United
States implements the Hague Convention via the Interna-
tional Child Abduction Remedies Act (“ICARA”),
102 Stat. 437 (1988) (codified at 42 U.S.C. §§ 11601 et seq.
(2006)) (authorizing federal courts to entertain Hague
Convention petitions).
The central question in any petition seeking the return
of a child under the Hague Convention and ICARA is
whether the child who is the subject of the petition
has been “wrongfully” removed or retained within the
meaning of the Convention. Article 3 of the Convention
defines the concept of “wrongful” removal or retention:
16 No. 12-2511
The removal or the retention of a child is to be consid-
ered 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 im-
mediately 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 re-
moval or retention.
Hague Convention art. 3, supra, T.I.A.S. No. 11670. This
definition reflects the basic premise of the Convention’s
return remedy:
In order for the Convention to apply[,] the child
must have been “habitually resident in a Contracting
State immediately before any breach of custody . . .
rights.” Article 4. In practical terms, the Convention
may be invoked only where the child was habitually
resident in a Contracting State and taken to or retained
in another Contracting State.
Department of State, Hague International Child Abduc-
tion Convention; Text and Legal Analysis, 51 Fed. Reg.
10,494, 10,504 (Mar. 26, 1986) (emphasis added). In addi-
tion, a court faced with a Hague petition must keep the
following important principle in mind:
A Hague Convention case is not a child custody
case. Rather, a Hague Convention case is more akin
to a provisional remedy—to determine if the child
was wrongfully removed or kept away from his or
No. 12-2511 17
her habitual residence, and if so, then to order the
child returned to that nation. The merits of the child
custody case—what a parent’s custody and visitation
rights should be—are questions that are reserved
for the courts of the habitual residence.
JAMES D. G ARBOLINO, F ED. JUDICIAL C TR., T HE 1980 H AGUE
C ONVENTION ON THE C IVIL A SPECTS OF INTERNATIONAL
C HILD A BDUCTION: A G UIDE FOR JUDGES ix (2012).
Accordingly, a Hague Convention case asks the fol-
lowing questions in this order: (1) When did the
removal or retention of the child occur? (2) In what State
was the child habitually resident immediately prior to
the removal or retention? (3) Was the removal or reten-
tion in breach of the custody rights of the petitioning
parent under the law of the State of the child’s habitual
residence? and (4) Was the petitioning parent exercising
those rights at the time of the unlawful removal or reten-
tion? See Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d
Cir. 2006); Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.
2001). The first two questions are factual inquiries cen-
tering on the determination of the child’s habitual resi-
dence; the second two questions involve both legal
and factual inquiries regarding the left-behind parent’s
custody rights under the law of the State of the child’s
habitual residence and whether the parent was actually
exercising those rights at the time of the removal or
retention.2
2
The Convention also contains several defenses that may
be asserted against a prima facie case for a return order, see
(continued...)
18 No. 12-2511
1. An anomaly in Derek’s Hague Convention petition
We note at the outset that this is not a case of wrongful
removal. Derek does not argue, nor could he, that Mary’s
move with JMR from Ireland to Illinois in Novem-
ber 2007 was wrongful under the Hague Convention.3
Under Irish law only the mother is recognized as the
guardian of an illegitimate child; Ireland does not pre-
sumptively confer parental rights on unmarried fathers.
The “rights of custody” at issue in a Hague Convention
petition are “rights relating to the care of the person of
the child and, in particular, the right to determine the
child’s place of residence.” Hague Convention art. 5(a),
supra, T.I.A.S. 11670. They arise “by operation of law or
by reason of a judicial or administrative decision, or by
reason of an agreement having legal effect under the
law [of the child’s habitual residence].” Id. art. 3. As of
November 2007, when Mary moved with JMR to the
United States, Derek had no custody rights to assert
against Mary’s removal of their son from Ireland;
under Irish law he was not recognized as JMR’s legal
guardian and had no right to direct the child’s
2
(...continued)
Hague Convention on the Civil Aspects of International
Child Abduction arts. 12, 13, 20, Oct. 25, 1980, T.I.A.S. No. 11670,
but they are not relevant here.
3
Derek initially alleged in his petition that Mary’s removal
of JMR from Ireland in November 2007 was wrongful under
the Hague Convention, but he has dropped that claim.
No. 12-2511 19
upbringing or decide where he would live.4 So it is no
surprise that Derek does not challenge Mary’s removal of
JMR from Ireland in November 2007. Assuming that
Ireland was the child’s habitual residence at that time,
Mary’s conduct was not wrongful under the Hague
Convention.5 See, e.g., White v. White, No. 12-1835, 2013 WL
4
As we have explained, Derek’s voluntary acknowledgment
of paternity gave rise to a presumption of paternity in Illinois.
After Mary and JMR moved to Illinois, he could have filed an
action in Illinois state court to perfect his paternity rights,
acknowledge his support obligation, and obtain a determina-
tion of custody. Instead, he spent years litigating the recogni-
tion of his paternity, guardianship, and custody rights in
Ireland. By foregoing the available Illinois remedies to
establish joint custody under Illinois law—thus establishing
his joint right to direct where JMR would live—Derek enabled
Mary to fix JMR’s residence in the United States. Cf. Kijowska
v. Haines, 463 F.3d 583, 589 (7th Cir. 2006) (the father’s failure
to pursue available remedies after the mother relocated the
child to Poland “enabled [the child] to obtain a habitual resi-
dence in the country to which her mother took her”).
5
Mary hints that the entire inquiry could end here. She suggests
that the only date relevant to the analysis is November 10, 2007,
when she removed JMR from Ireland, and because her conduct
was not wrongful as of that date, further analysis is unnecessary.
We disagree, although the point has intuitive force. The cases
refer to the “first step” in a Hague petition—in which the
court identifies the date of the alleged wrongful removal or
retention—because the court must determine the child’s
habitual residence “immediately before” the alleged removal or
(continued...)
20 No. 12-2511
2284877, at *4-5 (4th Cir. May 24, 2013) (holding that
the mother’s removal of her son from Switzerland
was not wrongful under the Hague Convention because
the child’s father lacked custody rights under Swiss law,
giving her sole custody of the child and the exclusive
authority to move with him to the United States).
5
(...continued)
retention. Hague Convention art. 3, supra, T.I.A.S. No. 11670.
In the case of alleged wrongful removals, that date is fairly easy
to ascertain; with alleged wrongful retentions, however, the
answer is not always clear. See JAMES D. G ARBOLINO , F ED .
JUDICIAL C TR ., T HE 1980 H AGUE C ONVENTION ON THE C IVIL
A SPECTS OF I NTERNATIONAL C HILD A BDUCTION : A G UIDE FOR
JUDGES 24 (2012). Wrongful retentions typically occur when a
parent takes a child abroad promising to return with the
child and then reneges on that promise; disputes sometimes
arise over when such a temporary sojourn ripens into a wrong-
ful retention. See, e.g., Walker v. Walker, 701 F.3d 1110, 1118
(7th Cir. 2012).
In a given Hague Convention case, an “abduction” might
have occurred on one of several dates; the question is always
whether there was any date on which a wrongful removal
or retention occurred. A court may entertain the possibility
that a wrongful removal occurred on one date, conclude that
the child’s removal on that date was not wrongful, then
move on to other possibilities. The district court conducted
this kind of analysis, in substance if not in form. The court
skipped over the question of JMR’s removal from Ireland,
implicitly concluding that it was not wrongful, and then
moved forward in time to determine when a wrongful reten-
tion might have occurred.
No. 12-2511 21
Instead, Derek contends that Mary wrongfully “re-
tained” JMR in the United States on or after March 30,
2011, when she failed to return with him to Ireland in
violation of the Irish court’s guardianship and custody
order. This is an unconventional use of the Hague Con-
vention—one that raises a threshold question about
its scope. The child-return remedy is a potent and im-
portant one, but its application is limited, and the
limited nature of the remedy must be kept in mind to
avoid drawing federal courts into the merits of interna-
tional custody disputes. See Koch v. Koch, 450 F.3d 703,
711 (7th Cir. 2006) (“An action under the Convention
and ICARA is not an action to determine the merits
of custody rights.”).
The Hague Convention is an antiabduction treaty; it is
“ ‘not a treaty on the recognition and enforcement of
[foreign] decisions on custody.’ ” Barzilay v. Barzilay, 600
F.3d 912, 921-22 (8th Cir. 2010) (quoting Elisa Pérez-Vera,
Explanatory Report on the 1980 Hague Child Abduction
Convention, in H AGUE C ONFERENCE ON P RIVATE INT’L
L AW, 3 A CTS AND D OCUMENTS OF THE F OURTEENTH S ESSION,
C HILD A BDUCTION 426, 435 (1982)); see also Koch, 450 F.3d at
711 (recognizing the Pérez-Vera report as the official
history of the Hague Convention and an authoritative
source of its meaning and scope); Holder v. Holder, 392 F.3d
1009, 1013 (9th Cir. 2004) (same). “The Convention’s
procedures are not designed to settle international
custody disputes, but rather to restore the status quo
prior to any wrongful removal or retention, and to deter
parents from engaging in international forum shopping
in custody cases.” Karkkainen, 445 F.3d at 287; see also
22 No. 12-2511
Koch, 450 F.3d at 711; Ruiz v. Tenorio, 392 F.3d 1247, 1250
(11th Cir. 2004); Friedrich v. Friedrich, 78 F.3d 1060, 1064
(6th Cir. 1996).
Nor does the Convention contain rules for resolving
competing claims of jurisdiction in international custody
struggles or procedures for obtaining recognition and
enforcement of foreign judgments or orders governing
child custody. As we have explained, those rules and
procedures are found in state law under the Uniform
Child-Custody Jurisdiction and Enforcement Act. See
750 ILL. C OMP. S TAT. 36/110 et seq. (the Uniform Act, as
adopted in Illinois); id. § 36/105 (governing the interna-
tional aspects of the Act).6 The court’s inquiry in a
Hague petition is limited to the merits of the abduction
claim; the Convention is not a vehicle for resolving com-
peting jurisdictional or merits claims in the underlying
custody dispute. Cf. Ruiz, 392 F.3d at 1250.
Here, Derek seems to be using the Hague Convention
as a substitute for an action in Illinois state court under
the Uniform Act to enforce his newly recognized
custody rights pursuant to the Irish court’s order.
Perhaps this invocation of the Convention’s remedy is
permissible under an expansive understanding of the
term “retention,” but we have our doubts. Although
6
The Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”), 9 U.L.A. 657 (Master ed.) (1999), has been
adopted in 49 states, the District of Columbia, Guam, and the
U.S. Virgin Islands. See id. Table of Jurisdictions, 9 U.L.A. 114-
15 (Supp. 2012).
No. 12-2511 23
Derek has won a legal victory in Ireland and his custody
rights are now recognized in the courts of his country,
it’s hard to see how Mary’s refusal to comply with the
Irish court’s order is, without more, a “retention” of JMR
in the sense meant by the Convention. Derek’s petition
thus presents a threshold question: Is a change in one
parent’s custody rights enough to make the other’s
parent’s continued physical custody of the child a puta-
tive wrongful “retention” under the Convention? Stated
differently, does the parent with physical custody of a
child commit a wrongful retention—colloquially, an
“abduction”—by reneging on a promise, made under
oath, to obey a newly entered custody order in favor of
the other parent?
We asked for supplemental briefing on this question as
well, but the parties seem to have missed our point. As
far as we can tell, this is a question of first impression in
this circuit and in most other circuits as well. The
Eighth Circuit has come closest to addressing the issue. In
Barzilay Israeli parents lived with their three children
in Missouri for several years. 600 F.3d at 914-15. They
divorced and the father returned to Israel. Id. at 915. On
a visit to Israel, the mother and three children were
hailed into an Israeli court, and as a condition of
allowing them to return to the United States, the court
entered a consent judgment providing that Israel was
the stipulated habitual residence of the children and
giving the father custody rights. Id. After returning to the
United States, the mother refused to send the children
back. Id. The father asserted that her refusal constituted
a wrongful retention, placing great emphasis on the
24 No. 12-2511
Israeli court’s consent judgment, id. at 916, 919; he also
relied on an earlier stipulation in the Missouri divorce
proceeding that the entire family would return to Israel
if either parent did, id.The Eighth Circuit first addressed the question of
habitual residence and affirmed the district court’s
finding that the circumstances of the children’s lives
clearly established Missouri as their home. Id. at 915. The
court then rejected the father’s reliance on the Israeli
consent judgment and the Missouri repatriation stipula-
tion, noting that although he characterized these agree-
ments as “prospective stipulations of habitual residence,”
they were “in fact custody decrees,” and the father was
“trying to use the Hague Convention as a vehicle to
enforce his custody rights[] simply by relabeling them as
stipulations of habitual residence.” Id. at 921. The court
explained the problem this way:
Having obtained a favorable judgment [in the Israeli
court], [the father] then turned to the federal court
seeking enforcement of his newly minted custody
rights through [a Hague Convention] petition. This
course of litigation not only betrays a fundamental
misunderstanding of the Hague Convention, but [is]
also precisely the sort of international forum
shopping the Convention seeks to prevent.
Id. at 922.7
7
Barzilay thus refused to give preclusive effect to the habitual-
residence determination in the Israeli court’s consent judg-
(continued...)
No. 12-2511 25
The Fourth Circuit’s recent decision in White is also
instructive. There, a husband and wife living in Switzer-
land with their son obtained an order of legal separation
that gave custody of the child to the mother and limited
visitation rights to the father. White, 2013 WL 2284877,
at *3-4. The mother then moved with her son to the
United States. The father filed a Hague Convention
petition seeking return of the child, and in the meantime,
the Swiss court adjusted its ordering of parental rights,
giving the father legal custody and the mother visitation
7
(...continued)
ment. Under ICARA American courts must give full faith
and credit to the Hague Convention determinations of other
American courts, state or federal, but only when those determi-
nations are rendered “pursuant to the Convention, in an
action brought under [ICARA and the Convention].” 42 U.S.C.
§ 11603(g). This special preclusion rule does not, on its face,
affirmatively authorize American courts to apply res judicata
principles to the Hague Convention determinations of foreign
courts; it’s an open question whether it precludes application
of res judicata principles to foreign Hague Convention deter-
minations. See Holder v. Holder, 305 F.3d 854, 864-65 (9th Cir.
2002). Applying general preclusion doctrine to Hague Con-
vention determinations by foreign courts raises complex
comity considerations in the context of a treaty that itself
targets international forum shopping. Derek has not raised the
preclusion issue or otherwise relied on the Irish court’s determi-
nation that Mary’s retention of JMR in Illinois violated the
Hague Convention. Accordingly, he has forfeited the issue.
See, e.g., Simmons v. Gillespie, 712 F.3d 1041, 1041 (7th Cir.
2013); Marcus v. Sullivan, 926 F.2d 604, 614 (7th Cir. 1991).
26 No. 12-2511
rights only. Id. The district court concluded that the
mother’s removal of the child from Switzerland was not
wrongful because she had the sole right of custody, and
the Fourth Circuit affirmed. The court noted that at the
time of removal, the father had only visitation rights,
which are insufficient to support the Convention’s return
remedy. Id. at *3-5 (explaining that the visitation
rights—known as “rights of access” under the Conven-
tion—are not a basis for the return remedy). The court
also held that the Swiss court’s later custody order—issued
two years after the child’s removal to the United
States—was ineffective to render the removal “wrongful”
under the Convention. Id. at *6-7. Although the Fourth
Circuit did not separately address the issue of “retention,”
the court did note that “[State] signatories [to the Con-
vention] agree that orders claiming to adjust custody
arrangements after removal or retention do not typically
affect rights under Article 3 of the Convention.” Id. at *6
(emphasis added).
Although our case is not perfectly analogous to
either Barzilay or White, the basic point is the same. The
Hague Convention targets international child abduc-
tion; it is not a jurisdiction-allocation or full-faith-and-
credit treaty. It does not provide a remedy for the recogni-
tion and enforcement of foreign custody orders or proce-
dures for vindicating a wronged parent’s custody rights
more generally. Those rules are provided in the Uniform
Child-Custody Jurisdiction and Enforcement Act. Rather
than applying to the Cook County Circuit Court for
enforcement of the Irish custody order under the
Uniform Act, Derek sought to enforce his newly declared
No. 12-2511 27
custody rights via a Hague petition by treating Mary’s
refusal to comply with the Irish court’s order as a
wrongful “retention” of their son in the United States.
But the concepts of removal and retention can be under-
stood only by reference to the child’s habitual residence;
a legal adjustment of a parent’s custody rights does not
by itself give rise to an abduction claim. “The determina-
tion of a child’s habitual residence is significant
because wrongful removal can occur only if the child
has been taken away from his or her habitual residence.”
G ARBOLINO, FED. JUDICIAL C TR., supra, at 41.
A fundamental premise of the Hague Convention is
that the interests of children are best served when they
remain in their country of habitual residence while their
parents resolve contested custody questions in the courts
of that country. When a child is taken from its country
of habitual residence, the left-behind parent may invoke
the Convention’s return remedy to restore the factual
status quo—in ordinary language, to bring an abducted
child home. But a parent may not use the Convention
to alter the child’s residential status based on a legal
development in the parent’s favor. The availability of the
return remedy depends on the child’s habitual residence
because the “retention of a child in the state of its
habitual residence is not wrongful under the Conven-
tion.” Barzilay, 600 F.3d at 916. Or as the Second Circuit
put it:
A petitioner cannot invoke the protection of the
Hague Convention unless the child to whom the
petition relates is “habitually resident” in a State
28 No. 12-2511
signatory to the Convention and has been removed to
or retained in a different State. The petitioner must
then show that the removal or retention is “wrongful.”
Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005).
Accordingly, every Hague Convention petition turns on
the threshold determination of the child’s habitual resi-
dence; all other Hague determinations flow from that
decision. If a child has not been moved from its habitual
residence, there is no “left-behind” parent with grounds to
complain about the move, and it makes no sense to speak
in terms of ordering the child’s “return.” In that situation,
relief under the Hague Convention must be denied without
further inquiry into whether the petitioning parent’s
custody rights have been breached or whether the petition-
ing parent was actually exercising those rights at the
relevant time.
2. JMR’s habitual residence
With these background understandings in place, we
proceed to the disputed question of JMR’s habitual resi-
dence. Our review of the district court’s decision is subject
to a split standard of review; findings of fact are reviewed
for clear error, issues of law are reviewed de novo, and
“[t]he ultimate determination of habitual residence is a
mixed question of law and fact to which we will apply
de novo review.” Koch, 450 F.3d at 710. There is no real
dispute about the historical facts; this appeal turns on
the ultimate determination of JMR’s habitual residence.
The Convention does not define the term “habitual
residence.” Early courts faced with Hague petitions
No. 12-2511 29
sought to avoid overcomplicating the issue of habitual
residence with layers of rigid doctrine. An English
opinion widely cited in American courts expressed this
aspiration nicely:
“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 common law domicile.
The facts and circumstances of each case should
continue to be assessed without resort to presump-
tions or pre-suppositions.”
Re Bates (1989), No. CA 122/89 (High Ct. of Justice, Fam.
Div., Eng.), 1989 WL 1683783 (quoting A LBERT V ENN D ICEY
& JOHN H UMPHREY C ARLILE M ORRIS, T HE C ONFLICTS OF
L AWS 166 (11th ed. 1987)); see Whiting v. Krassner, 391 F.3d
540, 546 (3d Cir. 2004) (citing quoted passage); Silverman v.
Silverman, 312 F.3d 914, 916 (8th Cir. 2002) (same);
Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)
(same). We elaborated on this point in Kijowska v. Haines:
The determination of “habitual residence” is to be
made on the basis of the everyday meaning of these
words rather than the legal meaning that a particular
jurisdiction attaches to them, as otherwise forum
shopping would come in by the back door—each
contestant would seek a forum that would define
“habitual residence” in the contestant’s favor.
463 F.3d 583, 586 (7th Cir. 2006).
Accordingly, we interpret the phrase “habitual resi-
dence” in accordance with “the ordinary and natural
30 No. 12-2511
meaning of the two words it contains, as a question of fact
to be decided by reference to all the circumstances of any
particular case.” Mozes, 239 F.3d at 1071 (internal quotation
marks and alterations omitted); see also Norinder v.
Fuentes, 657 F.3d 526, 534 (7th Cir. 2011); Kijowska,
463 F.3d at 586; Koch, 450 F.3d at 712. Determining a
child’s habitual residence thus requires an assessment of
the observable facts on the ground, not an inquiry into
the child’s or parent’s legal status in a particular place.
Only after habitual residence is determined does an ex-
amination of custody rights come into play; treating
the question of habitual residence as a legal inquiry
would misconstrue the Convention as a custody-rights
enforcement treaty.
Under this commonsense and fact-based approach,
we think it clear that as of March 30, 2011, when the
alleged wrongful retention occurred, JMR habitually
resided in Illinois and had for some time. He was born
in Illinois, and except for seven and a half months of
his infancy, he lived continuously in Illinois with only
periodic, brief visits to Ireland. By March 30, 2011, he
had spent more than three of his four years in Illi-
nois—approximately 80% of his young life. It is true that
the length of time a child has spent in one place is not
dispositive and must be considered with care. We have
recognized that “[t]he length of the child’s residence in
the country of one of the parents cannot be decisive. [A]
parent cannot create a new ‘habitual residence’ by the
wrongful removal and sequestering of a child. That would
invite abduction.” Kijowkska, 463 F.3d at 587 (internal
quotation marks and citations omitted). Here, however,
Mary’s removal of JMR from Ireland was not wrongful, so
No. 12-2511 31
giving weight to the substantial duration of the child’s
residence in the United States does not undermine
the purposes of the Convention.
In addition to the length of time JMR had spent in
the United States prior to the Irish court’s order, the
everyday details of his life confirm that Illinois was
home. JMR had frequent contact with his extended family
in Illinois; he received regular care from an Illinois pedia-
trician and an Illinois dentist; he went to daycare, pre-
school, and church in Orland Park; he had neighborhood
friends and played on a children’s baseball team in the
area. The district court credited this evidence: “[T]hese
facts, coupled with the passage of nearly three-and-a-
half years of very early childhood, suggest that JMR is
happy and well-adjusted to his life in Illinois.”
In contrast, on March 30, 2011, JMR’s ties to Ireland
were tenuous. As of that date, he had spent only a
small fraction of his life in Ireland—not more than
20%—and much of that time was prior to his
initial move to Illinois when he was an infant. After the
move, which occurred when he was not yet eight
months old, JMR spent only about ten and a half
separated weeks in Ireland and then primarily for the
purpose of attending court proceedings. Although
Derek and his extended family live in Ireland, these ties,
without more, do not translate to habitual residence. As
of March 30, 2011, any objective observer of the facts
of JMR’s everyday life would not call Ireland the
child’s home.
The district court recognized that JMR’s life was
firmly situated in Illinois but held that his residence in
32 No. 12-2511
the United States was only “temporary” and “contingent”
based on the evidence of the last shared intent of his
parents about where he would live. The last time Mary
and Derek agreed on anything, they agreed that their
son should be raised in Ireland; this parental intent to
raise JMR in Ireland and his presence there during his
first seven months were enough to establish his habitual
residence in Ireland as of the fall of 2007. When
in early November 2007 Mary abandoned the couple’s
earlier plans and relocated with JMR to Illinois, she did
so unilaterally, and the district court chose to disregard
her unilateral intent. The court held that Mary “was
fully aware” that JMR’s stay in Illinois depended on the
outcome of the Irish custody proceedings, so her “hopes
and desires” about JMR’s life were ineffective to
establish his habitual residence in the United States.
The district court’s reliance on the parents’ last shared
intent was misplaced, though perhaps understandable.
Many Hague Convention cases emphasize the last
shared intent of the parents as an important factor in the
analysis of a child’s habitual residence. But the habitual-
residence inquiry remains a flexible one, sensitive to the
unique circumstances of the case and informed by
common sense. The parents’ last shared intent is one
fact among others, and indeed may be a very important
fact in some cases. But it is not a uniformly applicable
“test” for determining habitual residence, as the district
court seemed to think.
Not all circuits agree on the role or significance of
parental intent in resolving habitual-residence questions.
No. 12-2511 33
In one of the earliest American applications of the
Hague Convention, the Sixth Circuit held that “[t]o deter-
mine the habitual residence, the court must focus on
the child, not the parents, and examine past experience,
not future intentions.” Friedrich, 983 F.2d at 1401. In
Friedrich an American woman married a German man
and they had a son. When the child was a year and a
half, she separated from her husband and moved with
the child from Germany to the United States with-
out the father’s knowledge or consent. In the ensuing
Hague Convention proceedings, she claimed that her son
habitually resided in the United States simply because
she wanted to raise him there, even though the child
had been born in Germany and had spent his entire life
prior to removal there. The court rejected her argument:
All of the factors listed by Mrs. Friedrich pertain to the
future. Moreover, they reflect the intentions of Mrs.
Friedrich; it is the habitual residence of the child
that must be determined. Mrs. Friedrich undoubtedly
established ties between Thomas and the United
States and may well have intended for Thomas to
move to the United States at some time in the future.
But before Mrs. Friedrich removed Thomas to the
United States without the knowledge or consent of
Mr. Friedrich, Thomas had resided exclusively in
Germany. Any future plans that Mrs. Friedrich had for
Thomas to reside in the United States are irrelevant to
our inquiry.
Id. (emphases added).
So the Sixth Circuit focuses on habitual residence
from the child’s perspective, downplaying parental intent.
34 No. 12-2511
See id. The Third and Eighth Circuits have generally
followed suit. See, e.g., Feder v. Evans-Feder, 63 F.3d 217,
224 (3d Cir. 1995) (“[A] child’s habitual residence is
the place where he or she 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. . . . [A] determination of whether any
particular place satisfies this standard must focus on the
child and consists of an analysis of the child’s circum-
stances in that place and the parents’ present, shared
intentions . . . .” (emphases added)); Barzilay,
600 F.3d at 918 (8th Cir.) (“The ‘settled purpose’ of a
family’s move to a new country is a central element of the
habitual residence inquiry. . . . [T]he settled purpose
must be from the child’s perspective, although parental
intent is also taken into account.” (emphasis added)
(internal quotation marks omitted)).
On the other hand, the Ninth Circuit emphasizes
the parents’ perspective, explaining in its influential
opinion in Mozes that the concept of habitual residence
is based on the “settled purpose” to live in a particular
place. 239 F.3d at 1074. It is not the child’s purpose
that matters, however. “[T]he intention or purpose
which has to be taken into account is that of the person
or persons entitled to fix the place of the child’s resi-
dence”—usually, the parents. Id. at 1076 (internal quota-
tion marks omitted). When parents jointly intend to
raise a child in a place and actually live there, that
place becomes the child’s habitual residence. The child’s
habitual residence may change later if the parents
mutually intend to abandon the residence in favor of a
No. 12-2511 35
new one, but only a shared intent will do; the unilateral
intent of a single parent will not. Id. at 1075-77.
This is not to say that the Ninth Circuit ignores the
child’s perspective entirely. In some circumstances “a
child’s life may become so firmly embedded in the
new country as to make it habitually resident even
though there be lingering parental intentions to the con-
trary.” Id. at 1078. But “in the absence of settled parental
intent, courts should be slow to infer from such
contacts that an earlier habitual residence has been aban-
doned.” Id. at 1079. A court should infer a change in
habitual residence only where “the objective facts
point unequivocally to a person’s ordinary or habitual
residence being in a particular place”; that is, when
the court “can say with confidence that the child’s
relative attachments to the two countries have changed
to the point where requiring return to the original
forum would now be tantamount to taking the child out
of the family and social environment in which its life
has developed.” Id. at 1081 (internal quotation marks
omitted).
A majority of the circuits have preferred the Ninth
Circuit’s approach and adopted the so-called “Mozes
framework.” See Gitter, 396 F.3d at 131 (2d Cir.);
Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009);
Ruiz, 392 F.3d at 1252 (11th Cir.). We too have “adopted
a version of the analysis set out by the Ninth Circuit
in Mozes.” Norinder, 657 F.3d at 534 (citing Koch, 450 F.3d
at 715). Conventional wisdom thus recognizes a split
between the circuits that follow Mozes and those that use
36 No. 12-2511
a more child-centric approach, but we think the dif-
ferences are not as great as they might seem. Although
the Third, Sixth, and Eighth Circuits focus on the child’s
perspective, they consider parental intent, too. In Feder
the Third Circuit observed that the inquiry into a
child’s habitual residence “must focus on the child and
consists of an analysis of the child’s circumstances in
that place and the parents’ present, shared intentions
regarding their child’s presence there.” 63 F.3d at 224 (em-
phasis added). Feder reversed the district court’s habitual-
residence determination precisely because the district
court had given insufficient attention to the intentions
of one of the parents. See id. Similarly, in the Eighth
Circuit, “[t]he ‘settled purpose’ of a family’s move to a
new country is a central element of the habitual
residence inquiry. . . . [T]he settled purpose must be
from the child’s perspective, although parental intent is
also taken into account.” Barzilay, 600 F.3d at 918 (emphasis
added).
The same is true on the other side. Although the
Mozes framework focuses on the shared intent of the
parents, the child’s “acclimatization” in a country has
an important role to play. Indeed, the Ninth Circuit
explained in Mozes that “a child’s life may become so
firmly embedded in the new country as to make it habitu-
ally resident even though there be lingering parental
intentions to the contrary.” 239 F.3d at 1078. We have
emphasized that the Mozes approach is “flexible” and
takes account of “the realities of children’s and family’s
lives despite the parent’s hopes for the future.” Koch,
450 F.3d at 715-16.
No. 12-2511 37
In substance, all circuits—ours included—consider
both parental intent and the child’s acclimatization, dif-
fering only in their emphasis. The crux of disagreement
is how much weight to give one or the other, especially
where the evidence conflicts. See Karkkainen, 445 F.3d at
297 (describing the disagreement among the circuits as
a difference of opinion about how to “weigh [parental
intent and the child’s acclimatization] against each other
if they conflict[]”). We have not yet had occasion
to resolve how to balance the parents’ and child’s per-
spectives, but nothing in our caselaw justifies the over-
whelming weight the district court gave the parents’
last shared intent at the expense of the undisputed evi-
dence of JMR’s acclimatization. To repeat, in loosely
adopting the Mozes framework, we highlighted its flexi-
bility. See Koch, 450 F.3d at 715. We emphasized that
the inquiry is “not . . . rigid” and “does not require
courts to ignore reality,” id. at 716, and noted that the
Ninth Circuit had acknowledged as much when it said
in a subsequent case that “it was ‘keenly aware of the
flexible, fact-specific nature of the habitual residence
inquiry envisioned by the Convention,’ ” id. (quoting
Holder, 392 F.3d at 1015).
In the final analysis, the court’s focus must remain
on “the child[]’s habitual residence.” Holder, 392 F.3d at
1016 (emphasis added). Shared parental intent may be a
proper starting point in many cases because “[p]arental
intent acts as a surrogate” in cases involving very
young children for whom the concept of acclimatization
has little meaning. Id. at 1016-17. “Acclimatization is an
ineffectual standard by which to judge habitual
38 No. 12-2511
residence in such circumstances because the child lacks
the ability to truly acclimatize to a new environment.”
Karkkainen, 445 F.3d at 296. On the other hand, an em-
phasis on shared parental intent “does not work when . . .
the parents are estranged essentially from the outset.”
Kijowska, 463 F.3d at 587. In short, the concept of “last
shared parental intent” is not a fixed doctrinal require-
ment, and we think it unwise to set in stone the
relative weights of parental intent and the child’s ac-
climatization. The habitual-residence inquiry remains
essentially fact-bound, practical, and unencumbered
with rigid rules, formulas, or presumptions. See
Kijowska, 463 F.3d at 586; Karkkainen, 445 F.3d at 291;
Friedrich, 983 F.2d at 1401; Re Bates, No. CA 122/89.
Here, all relevant indicators point to Illinois as JMR’s
habitual residence. We already have discussed JMR’s
perspective; by all accounts and by any measure, Illinois
was his home. That leaves the matter of how to weigh
parental intent. On this issue the district court erred
by heavily weighting the parents’ last shared intent.
That might make sense when both parents have the
right to fix the child’s place of residence, but shared
intent has less salience when only one parent has the
legal right to do so. “[T]he intention or purpose which
has to be taken into account is that of the person or
persons entitled to fix the place of the child’s residence.”
Mozes, 239 F.3d at 1076 (emphasis added) (internal quota-
tion marks omitted). Most often two parents exercise
that authority jointly, but not always. Here, Mary had
sole custody under Irish law from the time of JMR’s
No. 12-2511 39
birth until March 2011; as such, she had the exclusive
right to fix the place of JMR’s residence.
Because Mary had the lawful authority to relocate
without Derek’s consent, JMR’s residence in Illinois
was neither “temporary” in fact nor wrongful as a
matter of law under the Hague Convention. Moreover,
the actual facts of JMR’s life in Orland Park and his thor-
oughgoing acclimatization there for almost all of his
life suffice to establish the United States as JMR’s
habitual residence notwithstanding Derek’s objections.
Mary and Derek were “estranged essentially from the
outset.” Kijowska, 463 F.3d at 587. Under the circumstances
here, JMR’s acclimatization in Illinois overwhelmingly
outweighs the last shared parental intent. Immediately
prior to March 30, 2011, when the alleged wrongful
retention occurred, JMR’s life was in Illinois, and legiti-
mately so. Based on a commonsense view of all the evi-
dence, we “can say with confidence that the child’s rela-
tive attachments to the two countries have changed to
the point where requiring return to [Ireland] would now
be tantamount to taking the child out of the family
and social environment in which its life has developed.”
Mozes, 239 F.3d at 1081 (internal quotation marks omitted).
Accordingly, immediately prior to March 30, 2011, JMR
was habitually resident in Illinois, so sending him to
Ireland was not sending him home. See Holder, 392 F.3d at
1019 (“Simply put, would returning the children to Ger-
many be tantamount to sending them home?”). Mary and
Derek are obviously locked in an international struggle
over JMR’s custody, and the potential for a jurisdictional
40 No. 12-2511
conflict remains. But the Hague Convention does not
provide a procedure for resolving the disputed jurisdic-
tional and merits claims in this child-custody battle.
Because JMR was habitually resident in Illinois, Mary
did not wrongfully retain him in the United States. The
district court should not have ordered the child returned
to Ireland. For the foregoing reasons, we R EVERSE
the district court’s order and R EMAND this case for
further proceedings consistent with this opinion.8
8
Although the Supreme Court did not decide the matter in
Chafin, and the parties have not briefed the question here,
we think it clear that the court has the equitable authority to
issue an order requiring JMR’s return to the United States.
That’s the position of the U.S. Department of State, the desig-
nated Central Authority for assisting the implementation of
the Hague Convention in the United States. On its behalf the
United States filed an amicus curiae brief in Chafin explaining
its position that because the court has the inherent equitable
power to order the child’s re-return, an appeal of a return
order under the Hague Convention does not become moot by
the return of the child. See Br. for the U.S. as Amicus Curiae
Supporting Pet’r at 14-18, Chafin v. Chafin, 133 S. Ct. 1017 (2013)
(No. 11-1347), 2012 WL 7069914 at *14-18; see also id. at 15, 2012
WL 7069914 at *15 (“If the court of appeals concluded that
the district court’s return order was erroneous because
the United States was the country of the child’s habitual
residence, it could reverse the district court’s decision and
order respondent to bring the child back to the United States.”).
No. 12-2511 41
E ASTERBROOK, Chief Judge, dubitante. Chafin v. Chafin, 133
S. Ct. 81 (2012), shows that this litigation is not moot,
despite the fact that JMR is in Ireland. Still, I find it hard
to understand why this litigation continues or how
any good can come of it.
The Hague Convention on the Civil Aspects of Interna-
tional Child Abduction specifies where a child is to
stay while the normal legal procedures for determining
ultimate custody run their course. Yet here the order or
decision has been reversed. The courts of Ireland have
reached a final decision and awarded custody to Derek
Redmond. The courts of Illinois also have reached a
final decision and concluded that they have no warrant
to disagree with the Irish decision. Unlike the common
situation in which each parent runs to the jurisdiction he
or she thinks favorable and obtains an ex parte order
of custody, both the Irish and the Illinois proceedings
were adversarial, producing judgments that bind both
parents in personam. This litigation under the Hague
Convention did not even begin until both Ireland and
Illinois had made their decisions about JMR’s custody.
Instead of asking officials in Illinois to send JMR to
Ireland, Derek filed suit under the Hague Convention.
Mary Redmond not only is bound by the Irish judg-
ment awarding custody to Derek but also promised to
obey that judgment. Her promise was essential to ob-
taining permission to travel with JMR to Illinois, pur-
portedly to tidy up a few personal matters in prepara-
tion for a long-term stay in Ireland. Mary broke her
promise and defied the Irish judgment. Ireland considers
42 No. 12-2511
her a fugitive from justice (her contempt of court is obvi-
ous), which also makes it impossible to see how she can
realistically hope to obtain lawful custody of JMR in
Illinois. It is not simply that she violated both a valid
judicial order and her own undertaking; it is that she
has revealed that she will violate any order in Derek’s
favor. No legal system can accept that “heads I win, tails
you lose” approach. See Homola v. McNamara, 59 F.3d
647 (7th Cir. 1995). Mary has disqualified herself as a
candidate for favorable treatment by the judiciary of
any state or nation.
Yet the parties have not asked us to dismiss the
federal suit on the ground that the suits in Ireland
and Illinois are over. Nor has Derek invoked the Irish
judgment as a ground of issue or claim preclusion, even
though the Irish court not only awarded Derek joint
custody as a matter of Ireland’s domestic law but also
concluded, under the Hague Convention, that Mary’s
custody of JMR in Illinois was wrongful. The parties’
indifference to principles of preclusion is why my col-
leagues proceed to render a second decision under the
Hague Convention—one at odds with Ireland’s. This is
within the judicial power, given Chafin, but teeters on
the brink of being an advisory opinion. Under Chafin the
district court has the legal power to direct a parent to
return a child to the United States (see slip op. 40 n.8),
but given the Irish judgment—whose validity the
parties do not question—it would be an abuse of discre-
tion to issue such an order to Derek.
That’s not the only problem with this litigation. My
colleagues discuss at length where JMR was “habitually
No. 12-2511 43
resident” when Mary violated the Irish judgment and
retained JMR in Illinois. The premise of this discussion
is that JMR was lawfully present in Illinois, in
Mary’s custody, beginning in November 2007, when she
unilaterally removed JMR from Ireland. JMR’s presence
in Illinois was lawful, and therefore counts toward estab-
lishing “habitual residence”, because under Irish law
Derek, as an unmarried father, had no right to control
his child’s residence. Derek did not obtain parental
rights, as a matter of Irish law, until February 2011, when
an Irish court granted his petition for guardianship
and joint custody of JMR.
This is right from the perspective of Ireland. Is it right
from the perspective of Illinois too? What happens to
the “habitual residence” issue when the jurisdiction in
which the child is physically present does not view a
change of residence as valid?
That question potentially matters because, although
Ireland treats unmarried fathers as having no custodial
rights, Illinois has a different approach. JMR was born
in Illinois, and Derek acknowledged being the father.
His name is on JMR’s birth certificate. Under Illinois
law, an acknowledged but unmarried father has some
custodial rights, which go with obligations to support
the child. 750 ILCS §45/14; see also slip op. 19 n.4. I do not
want to resolve any issue of Illinois law (my colleagues
correctly state that rights under the Hague Convention
are a matter of federal law), but Illinois could well
deem Mary’s action in 2007 to have been a violation of
Derek’s rights—as Illinois understands those rights,
44 No. 12-2511
though not as Ireland understands them. And if Illinois
would deem JMR’s presence in Illinois to be unlawful,
how can the time he spent in Illinois count toward ac-
quiring “habitual residence” in Illinois?
My colleagues recognize that time in Illinois would
not count toward habitual residence if Mary’s unilateral
removal of JMR from Derek’s custody had violated
Irish law. Slip op. 30–31, citing Kijowska v. Haines, 463 F.3d
583, 587 (7th Cir. 2006). So why would time in Illinois
count toward habitual residence if Mary’s unilateral
removal of JMR from Derek’s custody violated Illinois
law? My colleagues do not address that question—nor
did the parties, though we issued an order after oral
argument directing them to do so. Perhaps they misun-
derstood the question. But the result is an opinion
that discusses a subject that may matter to other cases
(though likely not to this one) without considering
a potentially vital issue.
I am not sure how this issue should be resolved, and
I am content to let it pass because nothing we say here
is likely to affect JMR’s ultimate placement. The courts
of Ireland and Illinois have made their decisions in ad-
versarial litigation. It is time for this federal overlay
to end and the subject be returned to the domestic-
relations apparatus of Illinois and Ireland, where
it should have been all along.
7-25-13