International Custody – “Trial Period” Abroad Keeps Child in the U.S.

August 28th, 2014

The 9th Circuit recently ruled that the “habitual residence” of a child is based on the “shared, settled intent of the parents.”  In other words, where did the parents intend for the child to live.  The habitual residence is important in Hague international custody cases for a number of reasons including that if a parent wrongfully removes a child from the habitual residence country, the court must order that child be returned to that habitual residence country for adjudication of custody and visitation rights  An earlier Supreme Court Hague case is discussed here.

In Murphy v. Sloan, even though the child had spent several years in Ireland, the parties intended the time away to be a trial period.  The parties last agreement was that the child’s home country was the U.S. and the time in Ireland was a trial only.  While one party (the parent in Ireland) may have changed her mind, the Court looked back to the final “shared settled intent of the parents.”

Acclimatization (“Certain circumstances related to a child’s residence and socialization in another country”) by the child in the new country may overtake deference to the habitual residence.  However, the necessary acclimatization to Ireland was not found in Murphy, and the mother’s request to have the children returned to Ireland was denied.  (Note:  Mother can still attempt to regain custody; however, she must do so in a California and not Irish court.)

International custody disputes may involve California, federal, and international law.  Be sure to speak to an experienced family law attorney who is familiar with the Hague convention as well as state and federal law.