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Child Return following Removal | International Custody Law

The Hague Convention on the Civil Aspects of Child Abduction provides a method for petitioning for child return following removal from his or her “habitual residence” to another country.  However, the Convention only applies in signatory countries listed here.

In an interesting decision earlier this week, the 3rd Circuit Court of Appeals decided whether the Hague Convention would apply to require the child return to where they had lived on the Caribbean island of St. Martin but had been taken to the United States by a parent.  The interesting issue arises because St. Martin, a 34 square-mile island, is home to two distinct, but highly integrated countries- French St. Martin and Dutch Sint Maarten.  French St. Martin is a signatory to the Convention (through France), while Dutch Sint Maarten is not.

In Didon v. Castillo, the issue for the court was whether the Hague Convention would apply- given that the child had a home in Dutch Sint Maarten, but the father worked in, and the child attended school in, French St. Martin.  Additionally, the family’s administrative affairs, such as the child’s insurance, were managed in French St. Martin.

When the mother brought the child to the Pennsylvania for a family wedding but failed to return as promised, father filed a petition in the Middle District of Pennsylvania under the Hague Convention, which would mandate the child’s return if it was applicable.  The court granted the petition, and ordered the child returned to father, holding that the Hague Convention did apply, based on a finding that the child was a concurrent resident of both French Saint Martin and Dutch Sint Maarten.

On appeal, mother argued that the Hague Convention did not apply because the children lived in the non-signatory country of Dutch Sint Maarten.  In its analysis of the issue, the 3rd circuit concluded that while it was possible for a child to have alternating habitual residences (where the child would have homes in two countries and spend equal periods in both), that concurrent habitual residences, as argued by father, were not contemplated by the convention.

Therefore, since the child’s home was in Dutch Sint Maarten, the Hague Convention did not apply and the 3rd Circuit ordered that the child return to the United States.

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Child Return following Removal | International Custody Law was last modified: October 4th, 2016 by Helen Stolinas