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Matrimonial Matters: Federal court rules on Hague custody dispute

Sara Stout Ashcraft

Sara Stout Ashcraft

Our society is becoming more and more global and more and more mobile. Legal issues regarding custody may involve different states and even different countries. The Second Circuit Court of Appeals recently handed down a decision applying international law in a custody dispute.

The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, T.I.A.S. No. 11,670,1343 U.N.T.S. 89 (“Hague Convention”), and the United States legislation which implements the Hague Convention, the International Child Abduction Remedies Act, 42 U.S.C.§§ 11601 et seq. (ICARA), are the controlling authorities for federal courts in custody disputes involving another Hague Convention signatory.

In Hollis v. O’Driscoll (No. 13-3688-cv [2d Cir. Jan. 7]), father John Matthew Hollis petitioned the United States District Court, Southern District of New York, for the return of H.L.O., his daughter with the respondent, to New Zealand. The District Court granted the petition and the respondent appealed.

Both Hollis and O’Driscoll are citizens of New Zealand. Their relationship began in early 2010 in New Zealand. Upon O’Driscoll becoming pregnant with H.L.O. in March of 2010, the parties became engaged. The parties resided together in Auckland, New Zealand, until H.L.O. was five months old.

At that time, the relationship started to falter and the parties separately moved to Tauranga, New Zealand, but did not reside together. In Tauranga, O’Driscoll and the parties’ daughter did not have their own residence but stayed with various acquaintances. In the fall of 2011, O’Driscoll went to Japan for two months for a modeling job, taking H.L.O. with her; they returned to New Zealand after that.

By early 2012, the parties spent time together with their daughter, and Hollis suggested they reconcile. When O’Driscoll expressed the possibility of going to New York to re-start her modeling career, Hollis said he would consent, based on the assumption that he would also move to New York. However, in February 2012, the relationship was again rocky and Hollis withdrew his consent for the move to New York.

Hollis finally agreed that Driscoll and their daughter could go to New York, provided that they would stay no longer than four or five months. Driscoll and H.L.O. stayed longer than that and Hollis went to the New Zealand authorities to start an action under the Hague Convention.

In September 2013, the Southern District Court held that H.L.O. must be returned to New Zealand. Driscoll appealed to the Second Circuit. That court stated that, “To succeed on a petition for repatriation of a child under the Hague Convention, the petitioner must prove that the child was removed from a State party in which she was ‘habitually resident,’ and that the removal was ‘wrongful.’”

“Wrongful” means that the act “is in breach of rights of custody … under the law of the State in which the child was habitually resident immediately before the removal …, and at the time of removal … those rights were actually exercised [by the petitioner]. … or would have been so exercised but for the removal.”

O’Driscoll claimed that because she and H.L.O. did not have a stable residence once they moved to Tauranga, New Zealand could not have been her daughter’s “habitual residence.” The Second Circuit supported the trial court’s decision that the country of residence, not the stability of such residence, is the only issue that is to be determined by the court.

O’Driscoll further maintained that even if New Zealand was the parties’ daughter’s “habitual residence,” Hollis had consented to her moving to New York indefinitely. O’Driscoll also argued that the parties’ daughter had become so acclimated to New York that it had become her new “habitual residence.”

In affirming the judgment issued by the District Court, the Second Circuit held that, “New Zealand was H.L.O.’s habitual residence immediately prior to her removal to New York,” that, “Hollis had some custody rights in H.L.O., and did not consent to O’Driscoll taking H.L.O. to New York indefinitely. Therefore, the removal was wrongful,” and that, “H.L.O. had not ‘acclimated’ to life in New York such that it was the equivalent of a new habitual residence.” Under the Hague Convention and ICARA, this determination represents the extent of the court’s scope of authority in such cases, as the court cannot go into the merits of any underlying custody claims.

With more and more international travel and relocation, family lawyers should consider becoming more familiar with how the Hague Convention actually operates.

Sara Stout Ashcraft is a partner in Ashcraft, Franklin, Young & Peters LLP. She concentrates her practice in the areas of matrimonial and family law.

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