Category: Hague Abduction Convention

Austria, Habitual Residence and the Hague Convention

Posted by Ron Kauffman on August 17, 2026

A recent federal court decision from South Florida, which refused to return a child to his habitual residence in Austria, illustrates an important principle in international child custody and the Hague Convention. How does a court handle issues relating to temporary immigration status, a special needs child, and the length of time all become important to the decision of habitual residence?

Hague Austria

Vienna Waits for You

In November 2022, a family moved to Florida from Austria under the father’s O-1 visa for work and so the child could receive medical treatment and therapy. They leased furnished apartments, and the child started therapy. By the time of the case in 2026, the child had lived in Florida for about 31 months.

The family also had substantial connections to Austria. The father maintained a family home there, including the child’s bedroom.

They also kept Austrian bank accounts, telephone numbers, health insurance, residence registrations, and many of their belongings in Austria. Neither parent ever obtained a Florida driver’s license or filed U.S. tax returns.

In September 2024, as their lease approached expiration, the parents discussed returning to Austria. The parties separated, and the Father traveled between Europe and Florida. On March 21, 2025, the Mother filed a petition for dissolution of marriage in Miami, and later applied to change her immigration status to F-1 student status after the Father’s O-1 visa expired.

The Father did not consent to the child staying in Florida after expiration of his O-1 visa, and filed a Hague Abduction Convention petition in federal court on March 13, 2026.

Florida Hague Convention

I have written about the Hague Abduction Convention and international child custody issues before, and was asked to speak on the topic at the prestigious Family Law Certification Review Course in Orlando in 2027 on the topic.

The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court for the return of their child to her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

To establish a prima facie case a court must make find that the state in which the child was habitually resident immediately prior to the removal or retention is where Petitioner resides and the law of the state of habitual residence; and that the petitioner was exercising those rights at the time of the removal and removal breached the rights of custody.

The Blue Danube

Following the trial, the federal court determined that the relevant date of the alleged wrongful retention was June 30, 2025, when the father’s consent to the child remaining in the United States expired with the visa-based arrangement.

The court found that the father failed to prove Austria was the child’s habitual residence. Although significant Austrian ties remained, the child had spent 31 formative months in Florida, lived in a stable household with his primary caregiver, and developed an established network of therapists. For this child, the therapeutic relationships were highly significant.

The court also found that the combination of duration, stability, and continuing therapy outweighed the family’s retained administrative and property connections to Austria, noting that a preserved bedroom, insurance registration, and other continuing ties did not outweigh the child’s experience in Florida.

The court also threw out the argument that the family’s temporary immigration status prevented Florida from becoming the child’s habitual residence. Habitual residence, it reasoned, does not require lawful permanent residency or an intention to remain forever.

Because Austria was no longer the child’s habitual residence when the alleged retention occurred, there could be no “wrongful retention” under the Hague Convention. The court therefore did not need to decide the mother’s consent, acquiescence, or “settled child” defenses.

The case is a lesson that a temporary move can, over time, change a child’s habitual residence. The longer a child remains i and develops meaningful connections here, the more complicated a later Hague Abduction Convention claim may become.

The court order is here.

Relocation During a Hague Abduction Case

Posted by Ron Kauffman on July 6, 2026

A recent federal court decision out of Chicago poses important issues for an interested international child custody practitioners: a parent’s relocation to a new country may or may not automatically shift a child’s habitual residence, and may or may not give the alleged taking parent the right to retain the child.

Relocation Hague

The Fugitive

In November 2018 the child was born in Costa Rica. The parents were unmarried. The Mother was Costa Rican and father was an American residing in Illinois. The child made routine trips to Illinois to spend time with his father, even after the parents’ relationship ended.

In early 2023, the Mother became pregnant with a second child and advised the father she was giving birth in Spain. What followed was months of contentious WhatsApp exchanges — about the length of the visit, about the father’s new wife, about child support, and about where the mother was heading next.

In late May 2023, the Mother told the father in Illinois she intended to remain in Spain permanently, not just to give birth, and asked the father to return the child to Spain, not Costa Rica. The father refused.

The Mother filed a petition for return under the Hague Abduction Convention in Chicago. The father raised three defenses: the mother’s decision to relocate to Spain meant Costa Rica was no longer the child’s habitual residence; the child had was now settled in the United States; and the mother had acquiesced to the retention.

Hague Abduction Convention and Florida

I was invited to speak in January 2027 on, and written about, the Hague Abduction Convention and international child custody issues . The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

Home Alone

The trial Court rejected the father’s three defenses and ordered the child returned to Costa Rica. However, there are a few important points to this case.

First, moving to Spain did not really change the child’s habitual residence as the Father argued. The court found the parties’ last shared intent was that their child would travel to the United States for an extended stay and return to Costa Rica. Where a child’s translocation from an established habitual residence was clearly intended to be of a specific, delimited period. Mother’s relocation to Spain was entirely conditioned upon Father’s return of the child to her custody.

Second, an underappreciated part of the case involves the law in the habitual residence. Under Costa Rican law, the mother, had rights of custody of a child born out of wedlock. But unmarried fathers only have the right to exercise parental authority together with the mother in special cases, and there was no evidence the Father took the required steps in Costa Rica to obtain parental authority.

Finally, the mother filed her return petition within one year. Her filing date was decisive. Had she missed the one year window, she opened herself up to the father’s now settled defense, and the outcome could have been very different.

The decision is here.

Hague Child Abduction and Child Custody

Posted by Ron Kauffman on May 31, 2026

How important an international child custody rights determination in a foreign country can be for two American parents became the deciding factor in a Hague Child Abduction case. A recent federal Hague Convention decision proves a return petition can fail even when a court finds a child’s habitual residence was Japan before the child was removed.

hague child custody rights

Turning Japanese

The Mother and Father, both Americans, met in May 2022 while working at Al Udeid Air Base in Qatar for the U.S. Air Force. They visited Mother’s brother and their nieces in Japan, and enjoyed the food, culture, and cleanliness of the country. Upon returning to the U.S., their child was later born in Colorado.

They discussed moving to Japan because they wanted a healthy future for their daughter, had looked at schooling, and read statistics on child education in Japan, which ranked high.

On January 6, 2025, the family relocated to Misawa, Japan. By May 2025, the Mother asked for a divorce and started sleeping in another bedroom in the home. A few weeks later, when the child was then 18 months old, the Mother moved to Washington state.

The father filed a Hague Convention petition seeking the return of their infant daughter to Japan arguing Japan was the child’s habitual residence and he had custody rights under the laws of Japan.

Florida Hague Child Abduction

I have spoken and written about the Hague Abduction Convention and international child custody issues before. The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

Big in Japan

The trial court agreed with the father on several important points. It found that the American child was habitually resident in Japan, and that the father had custody rights and was exercising them at the time of removal. Ordinarily, those findings would be powerful evidence in favor of return. But the petition failed on a different element: breach.

Under the Hague Convention, a removal is wrongful only if it breached the Father’s the rights of custody under the law of Japan. The mother presented unrebutted expert testimony that, under Japanese law, if the primary custodian removes the child without force, and the child does not object, the removal does not infringe the other parent’s custody rights.

The trial court found that the mother had been the child’s primary custodian during most of the family’s time in Japan, that there was no evidence the mother used force to remove the child, and no evidence the child objected to leaving Japan.

The trial judge concluded that the father had not proven removal breached his rights of custody rights under the law of Japan, and denied his return petition.

The case is a reminder that Hague Convention cases are not ordinary custody cases and the law of the child’s habitual residence still matters, even if it is the child custody law of another country.

The order is here.

International Custody, Hague Convention, and the Settled Defense

Posted by Ron Kauffman on August 4, 2025

In a recent international custody case for return under the Hague Convention, a mother asserts a defense her son is settled in the U.S. and shouldn’t be returned. But his grades are bad, he misses school, and his connections to his stepfather’s family come at the expense of his longer relationship with family in Brazil. After the trial court orders him returned to Brazil, will the appellate court reverse?

Hague Now Settled

Boa Sorte

Both parents, and the child A.R., are all citizens and natives of Brazil. The parents were married in 2011, and lived in Belo Horizonte, Brazil (meaning “beautiful horizon” and pictured above). In 2016 they separated, and finally divorced in 2021. The parents shared custody of A.R., but A.R. lived with the mother. The mother then began a relationship with a man who immigrated to the United States.

The father signed a passport application that included a travel authorization permitting A.R. to travel outside of Brazil. The mother and A.R. then flew to Mexico, where they crossed the Mexico-United States border in 2022. She then applied for asylum.

Upon discovering the abduction, the father filed a petition to return A.R. to Brazil. The trial court in the U.S. found the father had met his prima facie burden to show A.R. was wrongfully removed from Brazil. Then, it rejected all the affirmative defenses the mother raised about consent, the now settled defense and the grave risk of harm. The Mother appealed.

Florida and the Hague Convention

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children under 16 years of age. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before the wrongful child abduction. The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence.

But there are defenses too. If return proceedings have been commenced after the expiration of a period of one year, courts can order the return of a child to their habitual residence, unless it is demonstrated that the child is now settled in its new environment.

Não Me Deixe Só

In rejecting the settled defense at the trial level, and ordering the child returned to Brazil, the district court analyzed several factors: age, stability and duration of the residence; whether the child consistently attended school; friends and relatives; involvement in the community and in extracurricular activities; employment and financial stability; and immigration status.

But on appeal, the circuit court found A.R. had lived in the same community for nearly three years, a significant amount of time for a school-age child. Also, his mother has steady employment and income. Those facts, standing alone, weigh heavily in favor of finding A.R. to be “now settled.”

A.R., it was also found, benefitted from a supportive extended family. He had a step-aunt and step-uncle who lived nearby and saw him twice a month. Despite A.R.’s poor grades and disruptive behavior, he arrived from Brazil unable to read or write in Portuguese, let alone in English, and was “meeting expectations of the classroom.”

The circuit court also found that A.R. attended church twice a month, participated in a youth group, had several friends of Brazilian descent, and importantly, played on a Massachusetts soccer team twice a week.

The circuit court remanded for the district court to decide whether, in the exercise of equitable discretion, returning A.R. to Brazil is warranted despite the appellate court finding that his status was “now settled.”

The case is here.