Back to basics: Determining a child's habitual residence in international child abduction cases under the hague convention

Fordham Law Review

Volumn 77, Issue 6, 2009, Pages 3325-3369

  Vivatvaraphol, Tai ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 67650546972     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (377)

1. Sorenson v. Sorenson, 563 F. Supp. 2d 961, 964 (D. Minn. 2008).
2. 563 F. Supp. 2d 961.
3. Hague Convention on the Civil Aspects of International Child Abduction pmbl, Oct. 25, 1980, T.I.A.S. No. 11,670 [hereinafter Child Abduction Convention]; Sorenson, 563 F. Supp. 2d at 968 (noting that it was not until the family's visas expired on June 2, 2007, and Eric sought to bring E. S. S. back to the United States that Janea "retained" E. S. S.).
4. Sorenson, 563 F. Supp. 2d at 963; see also Appellant's Brief at *10, Sorenson v. Sorenson, No. 08-2098 (8th Cir. filed July 10, 2008), 2008 WL 3977191.
5. Sorenson, 563 F. Supp. 2d at 963; see also Appellant's Brief, supra note 3, at *10-11 (describing the infeasibility of maintaining the Minnesota home while in Australia).
6. Sorenson, 563 F. Supp. 2d at 963; see also Appellant's Brief, supra note 3, at *13 (discussing Janea's extramarital affair); Appellee's Brief at *9, Sorenson v. Sorenson, No. 08-2098 (8th Cir. filed Aug. 12, 2008), 2008 WL 3977192 (describing the rapid deterioration of the marriage upon arrival in Australia).
7. Sorenson, 563 F. Supp. 2d at 964; see also Appellant's Brief, supra note 3, at *13-14.
8. Sorenson, 563 F. Supp. 2d at 964; see also Appellant's Brief, supra note 3, at *14- 15; Appellee's Brief, supra note 6, at *10.
9. Sorenson, 563 F. Supp. 2d at 964.
10. Id.; see also Appellant's Brief, supra note 3, at *15.
11. Appellant's Brief, supra note 3, at *15. The U.S. Central Authority is the primary contact for child abductions to and from the United States. It is through this office that Child Abduction Convention petitions can be filed. See United States of America-Central Authority, Hague Conference on Private International Law, http://hcch.e-vision.nl/index-en.php? act=authorities.details&aid=133 (last visited Apr. 3, 2009); U.S. Department of State, Using the Hague Convention, http://www.travel.state.gov /family/abduction/Solutions/Solutions-3 854.html (last visited Apr. 3, 2009).
12. Appellant's Brief, supra note 3, at *15; Appellee's Brief, supra note 6, at *11. After the district court determined that E. S. S.'s habitual residence was Australia, Eric Sorenson appealed the case to the U.S. Court of Appeals for the Eighth Circuit, arguing that the district court had focused too much on evidence of acclimatization. See Appellant's Brief, supra note 3, at *21.
13. Appellant's Brief, supra note 4, at *23; Appellee's Brief, supra note 6, at *15.
14. Appellee's Brief, supra note 6, at *15.
15. 338 F.3d 886 (8th Cir. 2003). For a complete discussion of Silverman v. Silverman, see infra notes 216-23 and accompanying text.
16. Sorenson v. Sorenson, 563 F. Supp. 2d 961, 969-70 (D. Minn. 2008).
17. Id. at 969 ("[The Sorensons] did not have a definite intention to return to the United States .... Their shared intention was to live in Australia for an indefinite period of time, lasting at least three years.").
18. Id, at 970; see also supra note 5 and accompanying text.
19. Sorenson, 563 F. Supp. 2d at 970; see also infra app.
20. Sorenson, 563 F. Supp. 2d at 969.
21. Michael R. Walsh & Susan W. Savard, International Child Abduction and the Hague Convention, 6 BARRYL. REV.29,32 (2006).
22. Linda Silberman, Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. DAVISL. REV.1049,1063 (2005).
23. Id.
24. See infra Parts I.B.2, π.A-B.
25. See Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001); Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995); see also infra Part π.A.
26. Feder, 63 F.3d at 224.
27. Mozes, 239 F.3d at 1076.
28. Id. at 1081.
29. Robert v. Tesson, 507 F.3d 981, 991 (6th Cir. 2007); see also infra Part π.B.
30. See infra Part I.B.I.
31. International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11611 (2006).
32. International Child Abduction Remedies Act, Pub. L. No. 100-300, § 2, 102 Stat. 437 (1988) (codified as amended at 42 U.S.C. §§ 11601-11611).
33. ANNE-MARIE HUTCHINSON & HENRY SETRIGHT, INTERNATIONAL PARENTAL CHILD ABDUCTION3 (1998). <
34. Id.
35. PAULR. BEAUMONT & PETERE. MCELEAVY, THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION1 (1999) ("The expression 'child abduction' .... is sufficiently wide in meaning to suggest a variety of possible acts, all wrongful and almost invariably harmful to the children involved.").
36. Id. (contrasting this definition with "classic kidnappings" where a third party or stranger is the abductor); see also Rapport Explicatίf de Mlle Elisa Pérez-Vera [Explanatory Report by Elisa Pérez-Vera], in 3 CONFERENCEDE LA HAYEDE DROIT INTERNATIONAL PRIVÉ, ACTES ET DOCUMENTS DE LA QUATORZIÈME SESSION, ENLÈ VEMENT D'ENFANTS [HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION, CHILD ABDUCTION]426, 428 (1982) [hereinafter Pérez-Vera Report] (noting that "the situations envisaged are those which derive from the use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child").
37. BEAUMONT & MCELEAVY,supra note 35, at 3-4, 9. This contrasts with the traditional, "paradigm case... of the father who became so frustrated with being denied access to his child or children after the court had granted sole custody to the mother, that he stole the child, went abroad, and then underground." Id. at 9.
38. Id. at 1 (distinguishing this from the "classic kidnapping" objective of material gain).
39. Id. at 11 ("It... depends whether one assesses the issue from the perspective of the abductor, or that of the left-behind parent.").
40. Id.
41. Id. at 11 & n.26 ("It may be noted that the initial relocation of the family may itself have represented an attempt to 'mend' an ailing relationship.").
42. Id. at 11.
43. Id.at 2-3 ("The origins of international child abductions cannot readily be attributed to any one cause or event.").
44. Id. at 2; see also Adair Dyer, Rapport sur L 'enlèvement International D 'un Enfant par Un de Ses Parents («Kidnapping Légal») [Report on International Child Abduction by One Parent ('Legal Kidnapping')] (1978), in 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION, CHILD ABDUCTION,supra note 36, at 12, 18 [hereinafter Dyer Report] (stating that statistics on international child abductions were not readily available, but it is generally agreed that there had been a rapid increase in recent years as a result of a number of underlying factors). The responses to a questionnaire that asked various governments whether they had statistics relating to international child abductions show that very few, if any, statistics were available. Réponses des Gouvernements au Questionnaire [Replies of the Governments to the Questionnaire] (February 1979), in 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION, CHILD ABDUCTION,supra note 36, at 61 passim.
45. Carol S. Bruch, The Hague Child Abduction Convention: Past Accomplishments, Future Challenges, in GLOBALIZATION OF CHILD LAW: THE ROLE OF THE HAGUE CONVENTIONS33, 34 (Sharon Derrick & Paul Vlaardingerbroek eds., 1999); see also BEAUMONT & MCELEAVY,supra note 35, at 2 (noting the increase in individual mobility); Dyer Report, supra note 44, at 18-19 (finding that "freer crossing of borders, fewer visa requirements and decreasing rigour of passport control" contributed to more international movement and greater opportunity for international child abductions).
46. See Dyer Report, supra note 44, at 19 ("The usual underlying condition for the carrying out of a child abduction by a parent on the international level is, of course, an 'international' family. Here once again the statistics available are not satisfying, but it seems apparent that for the same reasons as stated above the number of marriages between persons coming from different countries (and even from different continents) has increased in absolute and in relative terms."); see also BEAUMONT & MCELEAVY,supra note 35, at 10 & n.21 (discussing the fact that 15.9% of all abductions in the United States resulted from marriages between parents with different countries of origin (citing R. L. Hegar & G. L. Greif, Parental Abduction of Children from Interracial and Cross Cultural Marriages, 25 J. COMP. FAM. STUD.135, 138 (1994))). For a discussion of the current economic crisis's effect on international marriages, the complexities of international divorces, and the resulting increase in international child abductions, see Money in Misery, ECONOMIST,Feb. 7, 2009, at 21.
47. See, e.g., BEAUMONT & MCELEAVY,supra note 35, at 2 n.10 (discussing the rise in divorces in the United Kingdom).
48. See Bruch, supra note 45, at 34.
49. Dyer Report, supra note 44, at 18.
50. See Bruch, supra note 45, at 34 (noting that the Dyer Report identified "global problems without global solutions").
51. BEAUMONT & MCELEAVY,supra note 35, at 3 (discussing the many reasons why the chances of recovering an abducted child prior to the Child Abduction Convention were limited); Bruch, supra note 45, at 34 ("Overwhelming practical difficulties ranged from locating an abducted child, to the expense and logistics of handling an international dispute, to obtaining assistance from local and foreign authorities. Legal difficulties were equally daunting: even characterizing and labeling the problem were challenges ....").
52. See BEAUMONT & MCELEAVY,supra note 35, at 3.
53. Id. at 29 ("Ordinarily in private-law proceedings [best interests] would be applied on an individual basis with the court acting to secure the particular child's welfare.").
54. Dyer Report, supra note 44, at 22-23 (finding the standard unclear on whether the interests of the child that are to be served are "those of the immediate aftermath of the decision, of the adolescence of the child, of young adulthood, maturity, senescence or old age").
55. Id. at 23-24 (discussing how time is an important factor in the adjustment of the child and courts may find it difficult to require the return of a child who has been forced to adjust to a new situation for a long period of time).
56. BEAUMONT & MCELEAVY,supra note 35, at 2.
57. Dyer Report, supra note 44, at 22 (reporting that, while "the legal standard used in most of the countries of the Hague Conference for determination of the custody and care of a child is keyed to 'the best interests of the childf,]'-a large number of countries retain the more traditional legal standards for assignment of custody, which range from establishment of a presumption or an irrefutable right in favour of the parent of one sex or the other to systems where the legal dispute over custody centers around the 'fitness' or 'unfitness' of one of the parents, usually the mother, based on allegations of sexual conduct which may have little or nothing to the with the actual suitability of the parent to exercise the custody over and care of the child").
58. HUTCHINSON & SETRIGHT,supra note 33, at 3.
59. Id.; see also BEAUMONT & MCELEAVY, supra note 35, at 2 (indicating that "one must not overlook the absence of any viable legal remedy").
60. HUTCHINSON & SETRIGHT,supra note 33, at 3.
61. Pérez-Vera Report, supra note 36, at 431. For a discussion of various legal systems, see HUTCHINSON & SETRIGHT, supra note 33, at 61-225 (cataloguing the domestic law of thirty different jurisdictions); Bruch, supra note 45, at 44-47 (discussing Israel's application of religious law in the context of best interests analysis once a child has been returned). Adair Dyer, former deputy secretary general of the Hague Conference, only briefly mentioned the issue of jurisdiction in his preliminary report, finding the depth of discussion required to be beyond the scope of his report. Dyer Report, supra note 44, at 35-38.
62. See Pérez-Vera Report, supra note 36, at 431; see also BEAUMONT & MCELEAVY,supra note 35, at 2 n.ll (observing that the same situation currently exists where children are abducted to non-member states).
63. Dyer Report, supra note 44, at 39 (declaring that the "artful abductor" would be unlikely to knowingly remove a child to a jurisdiction that would apply an unfavorable law).
64. Id.; see also supra note 55 and accompanying text.
65. Dyer Report, supra note 44, at 39.
66. See BEAUMONT & MCELEAVY,supra note 35, at 3.
67. Id. at 3 & nn.14-15 (finding that this was the case with what would have been Article 6 of the 1961 Hague Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, as well as the 1980 European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children).
68. Id. at 16-17; Dyer Report, supra note 44, at 12 (observing that the proposal was made by the Expert of Canada, T. Bradbrooke Smith, at a Special Commission meeting for the purpose of considering subjects to be included on the agenda for future conferences).
69. BEAUMONT & MCELEAVY,supra note 35, at 17. Dyer's research was the basis for what this Note refers to as the Dyer Report. See Dyer Report, supra note 44 passim.
70. BEAUMONT & MCELEAVY,supra note 35, at 18; see also Conclusions des Discussions de la Commission Spéciale de Mars 1979 sur le Kidnapping Legal [Conclusions Drawn from the Discussions of the Special Commission of March 1979 on Legal Kidnapping] (June 1979), in 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION, CHILD ABDUCTION,supra note 36, at 162, 162 [hereinafter Conclusions of the Special Commission] (observing that the Special Commission had before it the Dyer Report).
71. See Conclusions of the Special Commission, supra note 70, passim; BEAUMONT & MCELEAVY,supra note 35, at 18-20. Under the Child Abduction Convention, the central authorities of the abducted-to and left-behind countries (assuming both are signatories to the convention) are responsible for processing petitions and coordinating proceedings. Thus, it is theoretically only necessary to file a petition in one country; however, there is nothing in the convention that prevents a left-behind parent from filing petitions in both countries.
72. BEAUMONT & MCELEAVY,supra note 35, at 20-22 (addressing the drafting process). Many of the Special Commission's discussions were catalogued in the report that accompanied the draft. Rapport de la Commission Spéciale Établipar Mlle Elisa Pérez-Vera [Report of the Special Commission by Elisa Pérez-Vera], in 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION, CHILD ABDUCTION, supra note 36, at 172 passim [hereinafter Report of the Special Commission].
73. BEAUMONT & MCELEAVY,supra note 35, at 22-23 (discussing the meeting of the Fourteenth Session of the Hague Conference); Pérez-Vera Report, supra note 36, at 426 (noting that Elisa Pérez-Vera was appointed the reporter for both the Special Commission and during the fourteenth session of the Hague Conference).
74. Pérez-Vera Report, supra note 36, at 426 & n. 1.
75. Hague Conference on Private International Law, Status Table, http://hcch.e-vision.nl/index-en.php?act=conventions.status&cid=24 (last visited Apr. 3,2009).
76. Child Abduction Convention, supra note 3, art. 1. When read together, the Preamble and Article 1 show that the drafters did not seek to protect children from the removal or retention itself because "a prima facie wrongful removal or retention might actually serve a child's interests." BEAUMONT & MCELEAVY,supra note 35, at 28-29.
77. BEAUMONT & MCELEAVY,supra note 35, at 29 ("It was imperative... that in its objectives [the Child Abduction Convention sought] to break the existing mindset before replacing it with its own model, the qualified summary-return mechanism."); see also Walsh & Savard, supra note 21, at 33 ("Evidence relevant to custody or the best interest of the child are excluded, and the inquiry is limited to whether the child has been wrongfully removed or wrongfully retained from his nation of habitual residence." (citing Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995))).
78. Silberman, supra note 22, at 1063.
79. BEAUMONT & MCELEAVY,supra note 35, at 29; Pérez-Vera Report, supra note 36, at 431 ("[The] two paragraphs in the preamble reflect quite clearly the philosophy of the [Child Abduction] Convention-[T]he struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests.").
80. BEAUMONT & MCELEAVY,supra note 35, at 29 & n.8 (indicating that the novelty of the Child Abduction Convention lies in the fact "that the welfare of the individual child is not the first and paramount consideration"); see also Report of the Special Commission, supra note 72, at 182 (discussing the place given to the interests of the child); Pérez-Vera Report, supra note 36, at 431 (explaining why there is no explicit reference to "best interests" in the Child Abduction Convention); supra notes 52-56 and accompanying text (discussing the difficulties a best interests analysis posed).
81. BEAUMONT & MCELEAVY,supra note 35, at 29-30.
82. Id. at 29.
83. Id. at 29-30; Siiberman, supra note 22, at 1063 (finding that "the usual kind of 'best interests' evaluation that a judge makes in a custody case is not called for in a [Child Abduction Convention] case because the 'best interests' determination is to be made back in the courts of the State of the habitual residence after the child has been returned").
84. BEAUMONT & MCELEAVY,supra note 35, at 30; see also Pérez-Vera Report, supra note 36, at 430.
85. BEAUMONT & MCELEAVY,supra note 35, at 30; see also supra Part LA (discussing the uncertain, lengthy proceedings that occurred prior to the Child Abduction Convention).
86. Silberman, supra note 22, at 1054; see also BEAUMONT & MCELEAVY,supra note 35, at 30 (describing how awareness of the Child Abduction Convention will deter parents from "removing or retaining [their] children abroad"); Pérez-Vera Report, supra note 36, at 429 ("[I]t can firmly be stated that the problem with which the [Child Abduction] Convention deals ... derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links which are more or less artificial.").
87. BEAUMONT & MCELEAVY,supra note 35, at 226; see also In re H, [1998] A.C. 72, 87 (H.L.) (appeal taken from Eng.) (U.K.) ("An international Convention . . . cannot be construed differently in different jurisdictions. The [Child Abduction] Convention must have the same meaning and effect under the laws of all contracting states.").
88. BEAUMONT & MCELEAVY,supra note 35, at 226.
89. Id.; see also supra note 67 and accompanying text.
90. BEAUMONT & MCELEAVY,supra note 35, at 226.
91. Child Abduction Convention, supra note 3, art. 4; see also BEAUMONT & MCELEAVY,supra note 35, at 36-37 (emphasizing that a child older than sixteen is presumed to have a mind of his or her own that cannot be ignored).
92. Child Abduction Convention, supra note 3, art. 3; see also BEAUMONT & MCELEAVY,supra note 35, at 37-44 (defining wrongful retention or removal).
93. Child Abduction Convention, supra note 3, art. 5.
94. Id. The issue of rights of custody and access are not important for this Note, but simply serve to show the deliberate choice the Child Abduction Convention drafters made to define certain terms, but not others. For a discussion of rights of custody, see BEAUMONT & MCELEAVY,supra note 35, at 45-87.
95. BEAUMONT & MCELEAVY,supra note 35, at 86.
96. Id.
97. Id. at 88.
98. See Child Abduction Convention, supra note 3, pmbl.; see also Silberman, supra note 22, at 1063 ("[I]f the child is already at the habitual residence, there is no need for return.").
99. See Child Abduction Convention, supra note 3, art. 4; see also BEAUMONT & MCELEAVY,supra note 35, at 39 ("[T]he essential element in a wrongful removal is the fact that a child habitually resident in one Contracting State is moved to another Contracting State.").
100. See Child Abduction Convention, supra note 3, art. 3; see also Pérez-Vera Report, supra note 36, at 444 ("[T]he duty to return a child arises only if its removal or retention is considered wrongful in terms of the Convention.").
101. Pérez-Vera Report, supra note 36, at 444. "The [Child Abduction] Convention is intended to defend those relationships which are already protected, at any rate by virtue of an apparent right to custody in the State of the child's habitual residence." Id.
102. Id. at 441, 451; see also A. V. DICEY &J. H. C. MORRIS, DICEY & MORRIS ON THE CONFLICT OF LAWSpara. 6-123 (Lawrence Collins ed., 13th ed. 2000) ("No definition of habitual residence has ever been included in a Hague Convention; this has been a matter of deliberate policy.").
103. Pérez-Vera Report, supra note 36, at 445. The Pérez-Vera Report also states that habitual residence is a question of pure fact. Id. This Note declines to address what the proper standard of review for a habitual residence determination should be. It is generally agreed by the circuits that there should be a mixed standard of review; a district court's findings of fact should be reviewed for clear error, and its legal determination and application of the law to the facts should be reviewed de novo. See, e.g., Ruiz v. Tenorio, 392 F.3d 1247,1251 (11th Cir. 2004).
104. DICEY & MORRIS,supra note 102, para. 6-005. The United States, showing its common-law roots, has an identical definition of domicile. See, e.g., 28 CJ.S. Domicile § 6 (2008) (noting that the addition of intent to remain in a place is the distinguishing factor between domicile and residence); 25 AM. JUR. 2D Domicil § 6 (2004) ("Domicil of choice, generally, consists of a bodily presence in a particular locality and a concurrent intent to remain there permanently or at least indefinitely").
105. DICEY & MORRIS,supra note 102, para. 6-039.
106. Id. para. 6-048 ("There is ... no circumstance or group of circumstances which furnishes any definite criterion of the existence of the intention. A circumstance which is treated as decisive in one case may be disregarded in another, or even relied upon to support a different conclusion.").
107. Id. para. 6-123 (contrasting this with domicile, which is essentially a term of art).
108. See id. para. 6-115. Residence can also be established without any mental element. Id. para. 6-034.
109. Id. para. 6-124 (quoting Cruse v. Chittum [1974] 2 All E.R. 940, 942 (H.L) (appeal taken from Eng.) (U.K.)). This can be compared with "ordinary residence," which implies "an element of continuity, order, or settled purpose." Id. para. 6-118.
110. Id. para. 6-124 (quoting Cruse, 2 All E.R. at 942).
111. BEAUMONT & MCELEAVY,supra note 35, at 89.
112. Id.; see also DICEY & MORRIS,supra note 102, para. 6-123 (indicating that "the aim [was] to leave the notion free from technical rules which can produce rigidity and inconsistencies as between different legal systems").
113. BEAUMONT & MCELEAVY,supra note 35, at 88.
114. Id. at 89.
115. Id. at 90; see also Rhona Schuz, Policy Considerations in Determining the Habitual Residence of a Child and the Relevance of Context, 11 J. TRANSNAT'LL. & POLύ101, 103 (2001) (discussing how the reports of the Special Commission "pay only limited attention to the issue of determining habitual residence" because they presume that there is little difficulty in determining habitual residence and yet there is considerable difficulty in determining habitual residence in "borderline" cases that involve relocation).
116. BEAUMONT & MCELEAVY,supra note 35, at 90.
117. See Hague Conference on Private International Law, supra note 75; see also BEAUMONT & MCELEAVY,supra note 35, at 23 (noting that Canada, France, Greece, and Switzerland signed on October 25,1980); Pérez-Vera Report, supra note 36, at 426 n.l.
118. International Child Abduction Remedies Act, Pub. L. No. 100-300, § 2, 102 Stat. 437 (1988) (codified as amended at 42 U.S.C. §§ 11601-11611 (2006)); see also HUTCHINSON & SETRIGHT,supra note 33, at 210; Hague Conference on Private International Law, supra note 75.
119. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES§ 111 cmt. h(1987) ("[T]he intention of the United States determines whether an agreement is to be self-executing in the United States or should await implementation by legislation or appropriate executive or administrative action. If the international agreement is silent as to its self-executing character and the intention of the United States is unclear, account must be taken of any statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole for approval, and of any expression by the Senate or by Congress in dealing with the agreement."); see also BEAUMONT & MCELEAVυ,supra note 35, at 248 & n.60 (comparing the United States with France, where the Child Abduction Convention is self-executing).
120. 42 U.S.C. § 11601(b)(2) ("The provisions of this chapter are in addition to and not in lieu of the provisions of the Convention.").
121. Id.% 11601(b)(1).
122. Id. § 11603(a); Walsh & Savard, supra note 21, at 51.
123. 42 U.S.C. § 11603(e)(1).
124. See, e.g., Olympic Airways v. Husain, 540 U.S. 644, 650 (2004) (describing how the definition of the term "accident" was discerned from the Warsaw Convention's text and history).
125. Silberman, supra note 22, at 1057.
126. See supra note 90 and accompanying text.
127. Silberman, supra note 22, at 1057 ("[T]he effectiveness of the [Child Abduction] Convention is left in the hands of... the national courts that implement and interpret the Convention."); see also BEAUMONT & MCELEAVY,supra note 35, at 229 (noting that, while the simplicity of the text has reduced the difficulties of interpreting the Child Abduction Convention, there are still problematic areas).
128. Silberman, supra note 22, at 1059 ("If [Child Abduction] Convention cases become subject to varying national approaches and perspectives, neither of the core objectives of the treaty-deterring abductions and directing adjudication of custody cases to the State of the child's habitual residence-will be possible."); see also supra Part I.B.I.
129. Silberman, supra note 22, at 1057.
130. Vienna Convention on the Law of Treaties, May 23, 1969, 8 I.L.M. 679 [hereinafter Vienna Convention].
131. Evan Criddle, The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 VA.J. INT'LL. 431, 437 (2004).
132. Id. at 438 (describing the goal of interpretation as "elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties" (quoting Reports of the International Law Commission to the General Assembly, [1966] 2 Y.B. Int'l L. Comm'n 220, U.N. Doc. A/6309/Rev.l)).
133. Vienna Convention, supra note 130, art. 31, § 1.
134. Id. art. 32.
135. Criddle, supra note 131, at 443 (discussing the fact that, while the United States is a signatory to the Vienna Convention, the treaty entered into force on January 27, 1980, and remains, without U.S. ratification).
136. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES§ 325 cmt. a (1987) (noting that, while the Vienna Convention does not strictly govern interpretation by courts, it "represents generally accepted principles and the United States has also appeared willing to accept them"); Criddle, supra note 131, at 443.
137. Air France v. Saks, 470 U.S. 392, 399 (1985); see also Olympic Airways v. Husain, 540 U.S. 644, 650 (2004).
138. Air France, 470 U.S. at 397 (citing Choctaw Nation of Indians v. United States, 318 U.S. 423,431-32 (1943)); Silberman, supra note 22, at 1060.
139. Air France, 470 U.S. at 400 (commenting on the fact that courts frequently refer to the "travaux préparatoires," documents that catalogue the development of a treaty, to resolve ambiguities in text); see also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES§ 325 cmt. e (1987) (remarking that the U.S. Supreme Court is much more amiable toward the use of travaux préparatoires than the Vienna Convention). This is analogous to referring to a statute's legislative history in considering the intent of legislators where a statute's text is ambiguous. See 2 AM. JUR. 2D Administrative Law § 246 (2004).
140. Air France, 470 U.S. at 404 ("[W]e 'find the opinions of our sister signatories to be entitled to considerable weight.'" (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978))); see also BEAUMONT & MCELEAVY,supra note 35, at 236 (discussing the Supreme Court's holding in Air France that considerable weight should be given to the well-reasoned opinions of other member states); Silberman, supra note 22, at 1062 ("With respect to courts in the United States faced with an issue of interpretation of the [Child Abduction] Convention, the Supreme Court in the Air France v. Saks case made particular reference to the desirability of looking to the opinions of other signatory countries in interpreting an international convention.").
141. While American courts have looked to other common-law jurisdictions for guidance on the habitual residence inquiry, there are a number of cases from civil-law jurisdictions that have largely been ignored. See infra Part π.C.
142. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES§ 325 cmt. e (1987).
143. See Criddle, supra note 131, at 452, 455; Silberman, supra note 22, at 1060-61 ("The direction to consult supplementary materials is particularly important in respect to the [Child] Abduction Convention because ... the 'travaux préparatoires' of the Convention are easily accessible in the Acts and Documents of the 14th Session (Tome III) on Child Abduction, Oct. 6-25, 1980. Included in that material is the Perez-Vera Explanatory Report, which serves as the official commentary on the Convention." (citing 3 HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW, ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION, CHILD ABDUCTION,supra note 36)).
144. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396 (6th Cir. 1993). The Sixth Circuit remanded to the district court the issue of whether, under German law, Emanuel Friedrich was exercising his custody rights at the time of removal and whether Jeana Friedrich had any affirmative defenses. Id. at 1403. The district court found that Mr. Friedrich was exercising his custody rights and Mrs. Friedrich had not established any affirmative defenses, and the case was again appealed to the Sixth Circuit. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1063 (6th Cir. 1996). Friedrich II affirmed the district court's holding, but did not revisit the issue of habitual residence and will not be discussed in this Note; Friedrich Iwill be referred to simply as "Friedrich."
145. Friedrich I, 983 F.2d at 1398.
146. Id. at 1399.
147. Id.
148. Id. at 1400-01.
149. Id. at 1401.
150. Id.
151. Id.
152. Id. at 1402.
153. See infra Part II.A-B.
154. 63 F.3d 217 (3d Cir. 1995).
155. Id. at 224.
156. 239 F.3d 1067 (9th Cir. 2001).
157. Id. at 1076.
158. Id. at 1081 (quoting Zenel v. Haddow [1993] S.C. 612, 617 (Scot.)).
159. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993).
160. 507 F.3d 981, 993 (6th Cir. 2007).
161. Federv.Evans-Feder,63 F.3d 217,218(3d Cir. 1995).
162. Id.
163. Id.
164. Id. at 219.
165. Id.
166. Id. at 220.
167. Id. Edward Feder also commenced Child Abduction Convention proceedings simultaneously in Australia, where it was deemed that Evan Feder was a habitual resident of Australia and that Melissa-Ann Feder's retention was wrongful under the Convention. Id.
168. Id. at 222.
169. Id.
170. 1989) CA 122/89, slip op. (High Ct. of Justice, Fam. Div., Royal Cts. of Justice), http://www.hiltonhouse.com/cases/Bates-uk.txt.
171. Feder, 63 F.3d at 222 (quoting Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401-02); see also supra Part I.E.
172. Feder, 63 F.3d at 223 (quoting In re Bates, (1989) CA 122/89); see also infra notes 275-87 and accompanying text. Although the citation is omitted from the Third Circuit's opinion, Justice John Waite in In re Bates was actually referring to Lord Leslie Scarman's opinion from Regina v. Barnet London Borough Council, [1983] 2 A.C. 309, 343 (H.L. 1982) (appeal taken from Eng.) (U.K.).
173. Feder, 63 F.3d at 224; see also Michelle Morgan Kelly, Note, Taking Liberties: The Third Circuit Defines "Habitual Residence" Under the Hague Convention on International Child Abduction, 41 VILL.L. REV.1069, 1080-81 (1996) (discussing the Third Circuit's reliance on Bates and Friedrich in developing its definition of habitual residence).
174. Feder, 63 F.3d at 224.
175. Id.
176. Id.; see also BEAUMONT & MCELEAVY, supra note 35, at 106; infra app.
177. Feder, 63 F.3d at 224; see also infra app.
178. Feder, 63 F.3d at 224.
179. Id. at 225.
180. 239 F.3d 1067 (9th Cir. 2001).
181. Id. at 1069.
182. Id.
183. Id.
184. Id.
185. Id. Arnon and Michal Mozes's eldest child elected to return to Israel and did so by mutual agreement, so the U.S. Court of Appeals for the Ninth Circuit considered only the habitual residence of the three youngest children. Id.
186. Id. at 1072-73.
187. Id. at 1073-74 ("Under this approach, we might say that if we observe someone centering his life around a particular location during a given period, so that every time he goes away from it he also comes back, we will call this his habitual residence.").
188. Id. at 1074.
189. Id. (quoting Adderson v. Adderson, [1987] 51 Alta. L.R.2d 193,198 (Can.)).
190. Id.
191. 1983] 2 A.C. 309, 343 (H.L. 1982) (appeal taken from Eng.) (U.K.).
192. Mozes, 239 F.3d at 1074 (quoting Regina, [1983] 2 A.C. at 344).
193. Id.
194. Id. at 1075.
195. Id. at 1076.
196. Id.
197. Id.
198. Id. (citing Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995); In re Application of Ponath, 829 F. Supp. 363, 367 (D. Utah 1993); E. M. Clive, The Concept of Habitual Residence, 1997 JURID. REV.137,144-45).
199. Id.
200. Id. at 1077. The Ninth Circuit considered the other two broad categories of Child Abduction Convention cases much easier to decide. In the first category, where a family is deemed to have "jointly taken all the steps associated with abandoning habitual residence in one country to take it up in another," a shared intent to move is usually found. Id. at 1076-77. In the second category, where a child is allowed by one parent to abandon an established habitual residence in favor of another for a specified time period, courts rarely find that a child's habitual residence has changed based on a change in a parent's intent. Id. at 1077.
201. Id. at 1076.
202. Id. at 1078.
203. Id.
204. Id. The court determined that, given enough time, a child may become acclimatized to the new country so that habitual residence may be established despite parental intent to the contrary. Id.
205. Id. at 1078-79.
206. Id. at 1079; see also Silberman, supra note 22, at 1065 ("Requiring a clear showing that a 'new' residence has been acquired reduces the ease with which habitual residence may be shifted ....").
207. Mozes, 239 F.3d at 1079.
208. Id. at 1081 (quoting Zenel v. Haddow [1993] S.C. 612, 617 (Scot.)).
209. Id. at 1079; see also Silberman, supra note 22, at 1065 (discussing the Third Circuit's opinion that, "in these international parental abduction cases, courts should be slow to infer that an earlier habitual residence had been abandoned").
210. Mozes, 239 F.3d at 1081.
211. Id. at 1083.
212. Id. (quoting Mozes v. Mozes, 19 F. Supp. 2d 1108,1116 (CD. Cal. 1998)); see also infra app.
213. Mozes, 239 F.3d at 1084. The Ninth Circuit remanded the case to the U.S. District Court for the Central District of California for consideration of this issue. Id.
214. See Merle H. Weiner, Navigating the Road Between Uniformity and Progress: The Need for Purposive Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 33 COLUM. HUM. RTS.L. REV.275, 276-77 (2002) (discussing the three hundred percent increase in decisions released from 1993 to 2001).
215. See, e.g., Koch v. Koch, 450 F.3d 703, 714-15 (7th Cir. 2006) (stating that "virtually every circuit court to consider the issue of habitual residence since Mozes has adopted some variation of its approach" and finding "no reason to disavow the Mozes approach").
216. Silverman v. Silverman, 338 F.3d 886, 889 (8th Cir. 2008).
217. Id. at 890.
218. Id. at 891.
219. Id. at 891-93; see also Silverman v. Silverman, No. CIV. 00-2274, 2002 WL 971808, at *4, *6 (D. Minn. May 9,2002).
220. Id. at 898-99.
221. Id. (footnote omitted); see also infra app.
222. Silverman, 338 F.3d at 902 (Heaney, I, dissenting).
223. Id. at 905-06.
224. 392 F.3d 1247 (11th Cir. 2004).
225. Id. at 1249.
226. Id.
227. Id.
228. Id.
229. Id. at 1249-50.
230. Id. at 1250.
231. Id. at 1252.
232. Id. at 1252-53.
233. See id. at 1254 (citing Mozes v. Mozes, 239 F.3d 1067,1077 (9th Cir. 2001)); supra note 200 and accompanying text.
234. Ruiz, 392 F.3d at 1254; see also Silberman, supra note 22, at 1066 (discussing the district court's findings that Melissa had moved to Mexico as a "trial period" to save her marriage and that Juan had had second thoughts about moving).
235. Ruiz, 392 F.3d at 1255; see also infra app.
236. Ruiz, 392 F.3d at 1255.
237. Id. at 1256; see also Silberman, supra note 22, at 1066 (highlighting the Eleventh Circuit's greater emphasis on the intentions of the parties).
238. 396 F.3d 124 (2d Cir. 2005).
239. Id. at 128.
240. Id.
241. Id. at 128-29.
242. Id. at 129.
243. Id.
244. Id. at 131 (remarking that the "primary insight of Mozes is its recognition of the importance of intentions (normally the shared intentions of the parents or others entitled to fix the child's residence) in determining a child's habitual residence").
245. Id. at 132.
246. Id. at 133; see also Carshae DeAnn Davis, Note, The Gitter Standard: Creating a Uniform Definition of Habitual Residence Under the Hague Convention on the Civil Aspects of International Child Abduction, 1 CHI. J. INT'LL.321, 328 (2006) (finding that the Second Circuit's inquiry into the parents' shared intentions was a means of satisfying the intent requirement of Mozes).
247. Gitter, 396 F.3d at 135-36; see also infra app. The U.S. Court of Appeals for the Second Circuit remanded the case to the district court to determine whether the facts were sufficient for a finding that Israel was Eden Gitter's habitual residence. Gitter, 396 F.3d at 136.
248. See supra Part II.A.3.
249. See supra notes 148-53 and accompanying text.
250. Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007).
251. Id. at 998 (recognizing that the holding "places [the Sixth Circuit] at odds with the Ninth Circuit's decision in Mozes").
252. Id. at 984.
253. Id.
254. Id.
255. Id. at 984-86.
256. Id. at 987.
257. Id. at 988 ("[0]ur inquiry must begin with our sole precedent on this issue."). But see, e.g., Mozes v. Mozes, 239 F.3d 1067, 1069 (9th Cir. 2001) ("In a case of first impression in our court, we interpret the term 'habitual residence' in the Hague Convention on the Civil Aspects of International Child Abduction.").
258. Robert, 507 F.3d at 989.
259. Id. (citing Friedrich v. Friedrich {Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993); In re Bates, (1989) CA 122/89, slip op. (High Ct. of Justice, Fam. Div., Royal Cts. of Justice), http://www.hiltonhouse.com/ cases/Bates-uk.txt); see also supra Part I.E; infra notes 275-87 and accompanying text.
260. Robert, 507 F.3d at 989; see also supra Part π.A. 1-2.
261. Robert, 507 F.3d at 991 (quoting Koch v. Koch, 416 F. Supp. 2d 645, 651 (E.D. Wis. 2006)).
262. Id.; Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004); see also supra notes 224-37 and accompanying text.
263. Robert, 507 F.3d at 991; Ruiz, 392 F.3d at 1254; see also supra notes 232-37 and accompanying text.
264. Robert, 507 F.3d at 991 (quoting Pérez-Vera Report, supra note 36, at 429).
265. Id. at 991-92.
266. Id. at 992-93 (finding that "not all post-Friedrich I developments should be rejected"); see also supra notes 173-74 and accompanying text.
267. Id. at 993 (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)) (describing this standard as consistent with the goal of the Child Abduction Convention to protect the rights of children not to have their lives altered absent a guarantee of stability in a new environment and with the holding of Friedrich that "a habitual residence inquiry must 'focus on the child, not the parents, and examine past experience, not future intentions'" (quoting Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993))).
268. Id. at 996; see also infra app.
269. Robert, 507 F.3d at 996-97; see also infra app.
270. Robert, 507 F.3d at 997; see also infra app.
271. Robert,507 F.3d at 997.
272. See supra Part LB. 1.
273. See supra Part I.D.
274. See, e.g., Robert, 507 F.3d at 989 (citing In re Bates, (1989) CA 122/89, slip op. (High Ct. of Justice, Fam. Div., Royal Cts. of Justice) (U.K.), http://www.hiltonhouse.com/cases/Bates-uk.txt); Mozes v. Mozes, 239 F.3d 1067, 1074, 1081 (9th Cir. 2001); see also BEAUMONT & MCELEAVυ,supra note 35, at 236 (noting that courts in the United States have chosen, in accordance with the decision of the Supreme Court in Air France v. Saks, to consult foreign case law).
275. See BEAUMONT & MCELEAVY,supra note 35, at 236 (discussing the fact that Bates is the starting point for many courts considering habitual residence, as well as the fact that, despite English and Scottish reluctance to rely on foreign case law, courts in Australia and New Zealand have made extensive use of such decisions, particularly those from England).
276. In re Bates, (1989) CA 122/89 (High Ct. of Justice, Fam. Div., Royal Cts. of Justice).
277. Id.
278. Id. Tatjana's father wanted them to wait for him in their London home, whereas Tatjana's mother wished to remain in New York. Id.
279. Id.
280. Id. Tatjana Bates's father felt that the nanny was "essential to look after his interest, to maintain surveillance and to report back to him. He told [the nanny] privately that if the mother was ... 'mean' to her, she was to report to him straight away." Id.
281. Id.
282. Id. (citing Regina v. Barnet London Borough Council, [1983] 2 A.C. 309, 343 (H.L. 1982) (appeal taken from Eng.) (U.K.); A. V. DICEY &J. H. C. MORRIS,1 DICEY & MORRIS ON THE CONFLICT OF LAWSch. 7 (Lawrence Collins ed., 11th ed. 1987)).
283. Id. (quoting DICEY & MORRIS,supra note 282, at 167).
284. Id. (quoting Regina, [1983] 2 A.C. at 344). It must be noted, first, that Regina v. Barnet London Borough Council was not a Child Abduction Convention case, but rather a case deciding the "ordinary residence" of immigrants with respect to the British Education Act, and, second, that Lord Leslie Scarman equated the concept of habitual residence with "ordinary residence," a development that has been subject to great criticism. See BEAUMONT & MCELEAVY,supra note 35, at 101 n.81; see also supra notes 108-10 and accompanying text.
285. Bates, (1989) CA 122/89.
286. Id.; see also infra app.
287. Bates, (1989) CA 122/89.
288. See, e.g., B v. H, [2002] 1 F.L.R. 388 (Fam.) (U.K.); In re J, [1990] 2 A.C. 562 (H.L.) (appeal taken from Eng.) (U.K.), aff'd sub nom. C v. S, [1990] 2 All E.R. 961 (H.L.) (appeal taken from Eng.) (U.K.).
289. 1990] Sc. L.R. 692 (Sess.) (Scot.).
290. Id. at 693.
291. Id.
292. Id. After spending some time at his sister's home in England, James Dickson returned with the child to Scotland. Id.
293. Id. at 694-96.
294. Id. at 693.
295. Id. at 699 (quoting Kapur v. Kapur, [1984] F.L.R. 920, 926 (Fam.) (U.K.)); see also BEAUMONT & MCELEAVY,supra note 35, at 101 ("[T]he Lord President stated that a habitual residence was: '. . . one which is being enjoyed voluntarily for the time being and with the settled intention that it should continue for some time.'" (quoting Dickson [1990] Sc. L.R. at 703)).
296. Dickson [1990] Sc. L.R. at 699.
297. Id. at 699-700; see also infra app. The court made no distinction between England and Scotland, finding the United Kingdom the child's habitual residence. Dickson [1990] Sc. L.R. at 699-700.
298. 1995) 18 Fam. L.R. 433 (Austl.).
299. Id. at 434.
300. Id. H was born on one of those visits to Australia. Id.
301. Id.
302. Id.
303. Id.
304. Id. at 435-36 (citing Friedrich v. Friedrich {Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993); In re B, [1993] 1 F.L.R. 993 (Fam.) (U.K.)).
305. 1993] 1 F.L.R. 993.
306. Cooper, (1995) 18 Fam. L.R. at 435-36 (quoting In re B, [1993] 1 F.L.R. at 995).
307. Id.; see also infra app.
308. Corte Suprema de Justicia de la Nación [CSJN] [Supreme Court of Justice], 14/6/1995, "Wilner, Eduardo Mario v. Osswald, Maria Gabriela / recurso de hecho," Colección Oficial de Fallos de la Corte Suprema de Justicia de la Nación [Fallos] (1995-318-1269) (Arg.), translated and available at http://web.archive.org/web/20070526143121/ http://www.hcch.net/incadat/fullcase/0362.htm.
309. Id. at 1281-82.
310. Id.
311. Id.
312. Id.
313. Id.
314. Id. at 1285; see also Juzgado de Primera Instancia [la Inst.] [Buenos Aires National Court of First Instance], 05/10/2001, "Aisemberg de Altheim, Andrea F. v. Altheim, Flavio David," (Arg.), translated and available at http://hiltonhouse.com/cases/Altheim- Argentina.txt ("[Habitual residence] therefore signifies the place where the minor carries out his activities, where he has been established with a certain degree of permanence, the centre of his emotional and daily experiences ... the expression 'habitual residence' refers to a factual situation that assumes stability and permanence.").
315. Wilner, Fallos (1995-318) at 1285. Implicit in the court's rejection of the parents' domicile as a factor in determining habitual residence is a rejection of the parents' subjective intention. See supra text accompanying notes 104-05.
316. Wilner, Fallos (1995-318) at 1285; see also infra app.
317. Regeringsrätten [RegR] [Supreme Administrative Court] 1996-05-09 (Swed.), translated and available at http://www.hiltonhouse.com/cases/ Johnson-002-Sweden.txt.
318. Id.
319. Id.
320. Id.
321. Id.; see also BEAUMONT & MCELEAVY, supra note 35, at 100 (discussing the parties' shuttle agreement, confirmed by the Alexandria Circuit Court in Virginia, whereby Amanda would alternate between Sweden and the United States).
322. Johnson, [RegR] 1996-05-09.
323. Id.
324. Id.
325. Id.; see also infra app.
326. Johnson, [RegR] 1996-05-09.
327. Id.
328. Juvenile Court of Rome, 07 jan. 1999, n.2450/98 E (Italy), translated and available at http://web.archive.Org/web/20050817001646/http://www.hcch. net/incadat/fullcase/0297.htm.
329. Id.
330. Id.
331. Id. Pasqualina Rochford argued that she intended to take Luca Rochford permanently to Italy when she left London in September 1997 and that Nicholas Rochford wrongfully retained Luca in London at the end of the Christmas holidays. Id.
332. Id.
333. Id. The court further noted that Luca did not even speak Italian when he arrived in Italy in September 1997. Id.; see also infra app.
334. Rochford, Juvenile Court of Rome, n.2450/98 E.
335. See supra notes 172-74,191-94 and accompanying text.
336. See supra Part II.A. 1-2.
337. See supra Part π.B. 1.
338. See supra Part π.C. 1.
339. See supra Part π.C.2.
340. See supra notes 216-23 and accompanying text.
341. See supra notes 16-19 and accompanying text.
342. See Sorenson v. Sorenson, 563 F. Supp. 2d 961,964 (D. Minn. 2008).
343. See supra notes 18-20 and accompanying text.
344. See Sorenson, 563 F. Supp. 2d at 970; see also infra app.
345. See Sorenson, 563 F. Supp. 2d at 970.
346. See supra notes 173-79 and accompanying text.
347. See supra notes 190,195-98,204-09 and accompanying text.
348. See supra Part π.A.
349. See supra notes 202-09 and accompanying text. Since the Sorensons had kept a few vestiges of their previous life with family in Minnesota and maintained a joint Minnesota bank account, a court following Mozes v. Mozes would be highly unwilling to find the remainder of the objective evidence "unequivocal."
350. See supra Part III.A; see also supra text accompanying notes 216-23 (describing how the Eight Circuit, applying the same Mozes standard, disagreed on Sam and Jacob's habitual residence).
351. See supra notes 172-73, 267 and accompanying text.
352. See supra note 174 and accompanying text.
353. See supra notes 104-05,191-94 and accompanying text.
354. See supra notes 260,267 and accompanying text.
355. This is a difficulty that even the Ninth Circuit recognized in Mozes. See supra text accompanying note 199.
356. See supra notes 200-01 and accompanying text.
357. See supra note 78 and accompanying text; see also Report of the Special Commission, supra note 72, at 178 ("[The Child Abduction Convention] does not settle, or seek to settle, the question of custodial rights.").
358. See supra notes 81-84 and accompanying text.
359. See supra notes 197-98, 207 and accompanying text.
360. See supra notes 53-56, 61, 77-86 and accompanying text; see also Report of the Special Commission, supra note 72, at 182-83.
361. See supra notes 53-56, 61, 77-86 and accompanying text (describing the pitfalls of the best-interests standard).
362. See supra notes 87-90 and accompanying text.
363. See supra notes 86,265 and accompanying text.
364. See supra note 86 and accompanying text.
365. See Weiner, supra note 214, at 279 (noting that lack of uniform interpretation might weaken the Convention); see also supra note 89 and accompanying text.
366. See supra notes 111-12 and accompanying text.
367. See supra notes 53-57 and accompanying text.
368. See supra notes 61, 80-81 and accompanying text.
369. See Dyer Report, supra note 44, at 21 (describing how children suffer from the "sudden upsetting of [their] stability, the traumatic loss of contact with the parent who has been in charge of [their] upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives"); see also supra note 84 and accompanying text.
370. See, e.g., supra notes 268-71, 316,325-26, 332-33 and accompanying text.
371. This may be the case where the child is too young to enroll in school or show evidence of relationships, where there is insufficient evidence to show definitively that one country is the child's habitual residence over another (the evidence "cuts both ways"), or where the court feels strongly that the child's attachments have been manipulated by the abducting parent. See, e.g., supra notes 18-19 and accompanying text.
372. Report of the Special Commission, supra note 72, at 189.
373. See supra notes 102-14 and accompanying text.
374. See supra notes 68-76 and accompanying text.
375. See supra notes 77-85, 103-12 and accompanying text.
376. See supra note 128.
377. Many thanks to Professor Thomas Lee for suggesting the use of a table to summarize concisely the facts of the cases discussed in this Note.