Habitual Residence of Infants | Lack of Necessity of Evidentiary Hearing

When a district court found that the United States was the habitual residence of twin children born there, despite an alleged agreement between the parents that the children would be raised in Brazil, the father appealed.

Holdings

When reviewing a dispute over a child’s habitual residence, the court need only decide whether the child is the habitual resident of the country claimed by the petitioner. Evidentiary hearings are not a matter of right in Hague Convention cases.

Facts

The mother become pregnant with twins while living with the father in Brazil. When she was about twenty weeks pregnant, she moved to Oklahoma and ended her relationship with the father. After the twins were born, she stayed in Oklahoma. The father filed a petition for “return” of the children to Brazil. He argued that when the children were in utero, the mother had agreed that the family would raise the children in Brazil, and he argued that she could not unilaterally change this shared intent. While conceding that the children were not removed from Brazil, the father argued that the children were nonetheless being wrongfully retained in the United States. The mother argued that the children could not be habitually resident in a country where they had never lived.

The district court denied the father’s request for an evidentiary hearing to establish the existence of the parents’ agreement to raise the children in Brazil. The court expressed doubts about whether newborns can acquire a habitual residence and concluded that even if this were possible, the children’s habitual residence would not be Brazil.

Discussion

Affirming the district court’s judgment, the Tenth Circuit reiterated the principle that when habitual residence is challenged, the reviewing court need not determine where the child is habitually resident, but rather only whether the child is a habitual resident of the country claimed by the petitioner.^[1]

The lower court rendered its decision before Monasky v. Taglieri,^[2] but the Tenth Circuit found that the ruling was consistent with the totality-of-circumstances test outlined in Monasky. The district court had considered the facts surrounding the birth of the children, the mother’s move to the United States, the absence of a written parental agreement, and the fact that the twins were never physically present in Brazil.

The Tenth Circuit also reviewed the father’s argument that he was denied due process because the district court failed to conduct the requested evidentiary hearing on the existence of an agreement between the parents about where the children would be raised. The court found no error, noting the district court’s “substantial degree of discretion in determining the procedures necessary to resolve a [Hague Convention] petition,” and citing its decision in West v. Dobrev.^[3]

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.