Home Sweet Home? Determining Habitual Residence Within the Meaning of the Hague Convention

In becoming a signatory to The Hague Convention on International Child Abduction, the United States agreed to expeditiously return all internationally abducted children to the country of their habitual residence, such that that nation may determine the merits of any underlying custody disputes. The Convention failed, however, to instruct American courts as to how to determine a child’s habitual residence. This has resulted in a split among circuits as to whether habitual residence should be determined using objective evidence of the child’s perspective, subjective evidence of parental intent, or some combination. In 2017, the Eighth Circuit held in Cohen v. Cohen that a child’s habitual residence should be determined according to the child’s perspective with some, albeit lesser, deference given to parental intent. This Comment argues that American courts should adopt a uniform approach to determining a child’s habitual residence by examining objective, child-centered evidence regarding habitual residency

Home Is Where the Heart Is: Determining “Habitual Residence” Under the Hague Convention on the Civil Aspects of International Child Abduction

Part I.A first outlines the three major divisions in habitual residence interpretation within the United States, paying particular attention to the approaches of the Ninth, Sixth, and Third Circuits. Next, Part I.B briefly addresses international trends in habitual residence interpretation among other signatory nations. After analyzing the shortcomings of each approach in Part II, Part III emphasizes a renewed emphasis on the child in all habitual residence determination

Monasky’s Totality of Circumstances Is Vague – The Child’s Perspective Should Be the Main Test

After decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight states and one regional organization, provides that children must be returned to their habitual residence in the event of being wrongfully removed or retained in a foreign country by one of their parents, Courts struggle with the difficult task of determining a child’s habitual residence

Home State, Cross-Border Custody, and Habitual Residence Jurisdiction: Time for a Temporal Standard in International Family Law

This article addresses three jurisdictional standards that arise in every cross-border child custody dispute between European Union Member States and the United States: home state, cross-border, and habitual residence jurisdiction. These jurisdictional standards face uncertainty in many cases. First, this article provides a history of family law jurisdiction in the United States and thoroughly reviews home state jurisdiction in United States domestic law. While domestic family lawyers know this standard, the standard’s rigidity and fragmented application among the states baffle many foreign family lawyers. Second, this article offers an overview of the remarkable emergence of family law in European Union law, chronicling the history of crossborder jurisdiction as a treaty matter to the present day status of family law jurisdiction under European Union law. This article reviews the recent Court of Justice of the European Union and United Kingdom court decisions on habitual residence, which leave an uncertain standard for habitual residence determinations in custody disputes. Third, this article reviews habitual residence jurisdiction in custody disputes under private international law. After reviewing the relevant treaties, this article examines cases in seven jurisdictions to show the uncertain jurisdictional standard that remains, despite habitual residence’s supposed uniformity. After analyzing these cases, this article proposes a time-based, categorical standard for habitual residence jurisdiction determinations. Private international law needs a uniform standard for the growing number of cross-border custody disputes. A temporal standard would make habitual residence determinations more certain, which would in turn benefit children, parents, and courts

Home State, Cross-Border Custody, and Habitual Residence Jurisdiction: Time for a Temporal Standard in International Family Law

This article addresses three jurisdictional standards that arise in every cross-border child custody dispute between European Union Member States and the United States: home state, cross-border, and habitual residence jurisdiction. These jurisdictional standards face uncertainty in many cases. First, this article provides a history of family law jurisdiction in the United States and thoroughly reviews home state jurisdiction in United States domestic law. While domestic family lawyers know this standard, the standard’s rigidity and fragmented application among the states baffle many foreign family lawyers. Second, this article offers an overview of the remarkable emergence of family law in European Union law, chronicling the history of crossborder jurisdiction as a treaty matter to the present day status of family law jurisdiction under European Union law. This article reviews the recent Court of Justice of the European Union and United Kingdom court decisions on habitual residence, which leave an uncertain standard for habitual residence determinations in custody disputes. Third, this article reviews habitual residence jurisdiction in custody disputes under private international law. After reviewing the relevant treaties, this article examines cases in seven jurisdictions to show the uncertain jurisdictional standard that remains, despite habitual residence’s supposed uniformity. After analyzing these cases, this article proposes a time-based, categorical standard for habitual residence jurisdiction determinations. Private international law needs a uniform standard for the growing number of cross-border custody disputes. A temporal standard would make habitual residence determinations more certain, which would in turn benefit children, parents, and courts

Habitual Residence v. Domicile: A Challenge Facing American Conflicts of Laws

Habitual residence has now become an internationally accepted connecting factor in conflict of laws and is widely being used as an alternative to, or replacement of, domicile. This concept, however, remains remote to American conflict of laws. Although the use of habitual residence in the U.S. courts is mandated by the codification of the Hague Child Abduction Convention, there is still a lack of general acceptance in American conflict of law literature. The Article argues that habitual residence should be adopted as a conflict of law connecting factor in American conflict of laws, and it would be unwise for the U.S. to stay isolated from the rest of the world. The ongoing drafting of the Restatement (Third) of Conflict of Laws provides a great opportunity to reposition American Conflict of Laws so that the international issues would be properly and adequately addressed. Habitual residence is such an issue that the Restatement (Third) could not, and should not, ignore

Kewarganegaraan Ganda Anak Dalam Perkawinan Campuran Dan Implikasinya Dalam Hukum Perdata Internasional

Dengan diundangkannya Undang-Undang No. 12 Tahun 2006 tentang Kewarganegaraan Republik Indonesia yang memberlakukan dua kewarganegaraan bagi anak-anak hasil perkawinan campuran. Berdampak dalam Hukum Perdata Internasional dimana mereka tunduk pada dua yurisdiksi dari dua Negara yang berbeda. Permasalahan yang timbul dalam hukum perdata Internasional yakni hukum dari negara mana yang berlaku terhadap status personal mereka. Solusi bagi anak yang berkewarganegaraan ganda yaitu bila ia mempunyai habitual residence di Indonesia yang jatuh bersamaan dengan salah satu kewarganegaraannya yaitu Indonesia, maka hukum Indonesia berlaku bagi status personalnya. Bagi yang mempunyai habitual residence di luar negeri maka dia diperlakukan sebagai orang asing. Hak waris atas rumah dan tanah dapat diturunkan misalnya dari hak milik menjadi hak pakai.The promulgation of Law No 12 Year 2006 about Republic Indonesia of Citizenship executing dual citizenship to children of mixed marriage gives impact to International Civil Law in which they have to obey to the law of two different countries. The raising problem in the International Civil Law is which law can be used to give their personal status. The solution used by children who have dual citizenship is since they have habitual residence inIndonesiaautomatically they are the citizenship ofIndonesiaand the law ofIndonesiaused to give their personal status. On the other hand, those who have habitual residence in overseas country, they are considered as foreigners. Inheritances rights of land and house are the proprietary can be changed become use rights

KEWARGANEGARAAN GANDA ANAK DALAM PERKAWINAN CAMPURAN DAN IMPLIKASINYA DALAM HUKUM PERDATA INTERNASIONAL

Dengan diundangkannya Undang-Undang No. 12 Tahun 2006 tentang Kewarganegaraan Republik Indonesia yang memberlakukan dua kewarganegaraan bagi anak-anak hasil perkawinan campuran. Berdampak dalam Hukum Perdata Internasional dimana mereka tunduk pada dua yurisdiksi dari dua Negara yang berbeda. Permasalahan yang timbul dalam hukum perdata internasional yakni hukum dari negara mana yang berlaku terhadap status personal mereka. Solusi bagi anak yang berkewarganegaraan ganda yaitu bila ia mempunyai habitual residence di Indonesia yang jatuh bersamaan dengan salah satu kewarganegaraannya yaitu Indonesia, maka hukum Indonesia berlaku bagi status personalnya. Bagi yang mempunyai habitual residence di luar negeri maka dia diperlakukan sebagai orang asing. Hak waris atas rumah dan tanah dapat diturunkan misalnya dari hak milik menjadi hak pakai.The promulgation of Law No 12 Year 2006 about Republic Indonesia of Citizenship executing dual citizenship to children of mixed marriage gives impact to International Civil Law in which they have to obey to the law of two different countries. The raising problem in the International Civil Law is which law can be used to give their personal status. The solution used by children who have dual citizenship is since they have habitual residence inIndonesiaautomatically they are the citizenship ofIndonesiaand the law ofIndonesiaused to give their personal status. On the other hand, those who have habitual residence in overseas country, they are considered as foreigners. Inheritances rights of land and house are the proprietary can be changed become use rights

The influence of type of residence and habitual activity on lung function and body composition in children

The influence of type of residence and habitual activity on lung function and body composition in childre

The continuing refinement of habitual residence: R, petitioner.

The past two years have provided fertile ground for judicial consideration of habitual residence as a factor connecting a person to a specific legal jurisdiction. Since September 2013, the connecting factor has been considered twice by the Court of Justice of the European Union1 and four times by the Supreme Court.2 These judgments were followed by a plethora of decisions from the lower courts, particularly the family division of the High Court, in which the question of habitual residence has been considered in myriad factual circumstances. The principal focus of this analysis is the recent judgment of the Supreme Court in the Scottish case of R, Petitioner,3 but in order fully to understand the context in which this decision was made it is necessary first to consider the development of the law in these earlier judgments, particularly that of A v A