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.
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.
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. There are also several defenses the alleged taking parent can raise in a case.
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.
