Derek Redmond v. Mary Redmond
2013 U.S. App. LEXIS 15120
| 7th Cir. | 2013Background
- Mary (U.S./Irish citizen) and Derek (Irish citizen) had a long relationship in Ireland; their son JMR was born in Illinois on March 28, 2007 and returned to Ireland with them 11 days later.
- Mary unilaterally moved with JMR to Illinois on November 10, 2007; under Irish law an unmarried father (Derek) had no automatic custodial rights, so that removal was not wrongful under Irish law.
- Derek litigated in Ireland and on February 10, 2011 obtained guardianship and joint custody and an order that JMR live in or near Ballymurphy, Ireland; Mary returned to Illinois with JMR after promising under oath to move to Ireland by March 30, 2011 but did not do so.
- Derek filed a Hague Convention petition in U.S. federal court claiming Mary had wrongfully retained JMR in the United States as of March 30, 2011; the district court ordered return to Ireland, concluding JMR’s habitual residence was Ireland.
- The Seventh Circuit reversed: it held the habitual-residence inquiry is a flexible, fact-based test; by March 30, 2011 JMR was habitually resident in Illinois (having lived there ~80% of his life and being thoroughly acclimatized), so Mary’s continued custody was not a wrongful retention under the Convention.
Issues
| Issue | Plaintiff's Argument (Derek) | Defendant's Argument (Mary) | Held |
|---|---|---|---|
| Mootness of appeal after child returned | Appeal moot because JMR was already in Ireland | Appeal not moot; re-return orders and relief still possible (Chafin) | Not moot; Chafin controls — appeal can proceed |
| Scope of Hague "retention" when custody rights change abroad | Mary’s refusal to obey new Irish custody order (post-2011) is a wrongful retention | Hague cannot be used to enforce foreign custody orders; retention requires wrongful removal/retention relative to child’s habitual residence | Hague cannot be used merely to enforce a foreign custody ruling; threshold is child’s habitual residence |
| Determination of habitual residence date and test | Habitual residence was Ireland as parents last shared intent favored Ireland | Habitual residence should be based on child’s acclimatization and Mary’s exclusive legal authority to fix residence; by Mar 30, 2011 JMR was habitually resident in Illinois | Habitual residence is factual, flexible; on facts JMR was habitually resident in Illinois immediately before Mar 30, 2011 |
| Weight of parental "last shared intent" vs. child acclimatization | Last shared parental intent (raise in Ireland) controls despite unilateral acts | Last shared intent is only one factor; where one parent had sole legal authority and child is acclimatized, intent is less probative | District court erred by giving decisive weight to last shared intent; acclimatization and mother’s sole authority predominated |
Key Cases Cited
- Chafin v. Chafin, 133 S. Ct. 1017 (2013) (appeal from a Hague return order is not rendered moot by the child’s return)
- Abbott v. Abbott, 130 S. Ct. 1983 (2010) (describing Hague Convention’s purpose to deter international forum-shopping in custody disputes)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (habitual residence analysis centers on parental settled purpose but allows child acclimatization to outweigh intent)
- Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006) (framework for Hague inquiry and emphasis on fact-specific habitual-residence inquiry)
- Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) (focus on child’s perspective and past experience over future parental intentions)
- Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) (habitual residence determined by ordinary meaning and factual circumstances; unilateral parental intent insufficient)
- Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) (rejecting use of Hague petition to enforce foreign custody decree; habitual residence must be determined by facts)
- Holder v. Holder, 392 F.3d 1009 (9th Cir. 2004) (parental intent acts as a surrogate for very young children but is not dispositive)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (petitioner must show child was habitually resident in a Contracting State and that removal/retention was wrongful)