Friday, January 07, 2005

Habitual residence. When one parent kidnaps a child from one country to another, the non-kidnapping party can get the child back to the child's "habitual residence" to decide all child custody issues by invoking the Hague Convention on the Civil Aspects of International Child Abduction, providing the relevant countries are parties to the treaty. In order to invoke the treaty, it must be shown the location of the habitual residence of the child. This term is not decided in the treaty, and in Gitter v. Gitter, the Second Circuit provided the factors that must be considered in making such a decision. First, the intent of the parents must be considered. However, that is not dispositive. The Court must also look to evidence that unequivocally points to the child having acclimatized to another country. The District Court had decided that the United States, not Israel was the habitual residence of the child based on the first factor, but did not consider the second factor. Based on that, the Second Circuit remanded the case for reconsideration by the District Court. The decision can be found here.

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