Hofmann v. Sender
716 F.3d 282
2d Cir.2013Background
- Hofmann, a Canadian citizen, and Sender, a United States citizen, governed by Hague Convention and ICARA regarding custody.
- District court found the children habitually resident in Canada and ordered their return to Canada for custody proceedings.
- Evidence showed movement toward New York by the family in 2011–2012, with Hofmann’s involvement in decisions and visits to New York.
- Sender took the children to New York in August 2011; Hofmann’s consent to relocation was conditioned on the family staying together in New York.
- Sender later pursued divorce and custody; Hofmann was never granted U.S. legal status to live/work in the United States.
- On appeal, the Second Circuit held the last shared intent was Canada, not the United States, and that Article 12/13 defenses failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether last shared intent determined habitual residence | Hofmann: shared intent remained Canada. | Sender: shared intent was relocation to New York. | Canada remained the habitual residence. |
| Whether Hofmann’s consent was conditioned, invalidating wrongful retention | Consent was conditioned on joining family in New York. | Consent was unconditional relocation to New York. | Consent was conditional; retention wrongful when condition not met. |
| Whether child acclimatization defeated shared intent | Acclimatization to New York supported a new habitual residence. | Acclimatization cannot override parental shared intent in this case. | Acclimatization did not establish a new habitual residence; Canada remained. |
| Whether Article 12/13 defenses apply | Lack of settled status prejudices application of defenses. | Now-settled and consent/acquiescence defenses should apply. | Article 12/13 defenses did not apply. |
Key Cases Cited
- Abbott v. Abbott, 130 S. Ct. 1983 (U.S. 2010) (establishes standard for rights of custody under Hague and return remedy)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (two-part test for habitual residence and acclimatization)
- Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (conditional parental consent controls habitual residence outcome)
- Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) (consent/acquiescence defenses under Article 13)
- Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010) (mother's sole intent cannot establish habitual residence)
- Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (reluctance to treat acclimatization as overriding shared intent)
- Chafin v. Chafin, 133 S. Ct. 1017 (U.S. 2013) (return to habitual residence does not moot live dispute)