Hollis v. O'Driscoll
739 F.3d 108
| 2d Cir. | 2014Background
- Parents Hollis and O’Driscoll, both New Zealand citizens, lived together in New Zealand when their child H.L.O. was conceived and for ~6 months after birth; they later separated and lived apart in New Zealand.
- After separation, O’Driscoll and H.L.O. stayed in various temporary accommodations in New Zealand; O’Driscoll worked in Japan for two months in 2011.
- In early 2012 O’Driscoll proposed moving to New York for modeling; Hollis initially said he would consent if he moved too, later limited consent to a 4–5 month stay.
- O’Driscoll departed New Zealand with H.L.O. for New York in March 2012, misled Hollis about the departure date, and did not return; she and H.L.O. remained in New York ~18 months.
- Hollis filed a Hague Convention petition; District Court ordered H.L.O.’s return to New Zealand on Sept. 4, 2013. Appeal followed.
Issues
| Issue | Hollis' Argument | O’Driscoll's Argument | Held |
|---|---|---|---|
| Whether H.L.O.’s habitual residence immediately before removal was New Zealand | H.L.O. was habitually resident in New Zealand (parents lived there and considered it home) | New Zealand cannot be habitual residence because accommodations were unstable after parental separation | New Zealand was H.L.O.’s habitual residence |
| Whether removal to New York was wrongful (consent to indefinite move) | Hollis did not consent to an indefinite move; consent limited to ~4–5 months | Hollis consented to moving to U.S. indefinitely | Removal was wrongful; Hollis did not consent to indefinite removal |
| Whether H.L.O. acclimated to New York making it a new habitual residence | N/A (Hollis argued return appropriate) | O’Driscoll argued H.L.O. had acclimated after ~18 months (nanny, playgroup) | No acclimation sufficient to create new habitual residence |
| Whether costs/fees should be awarded to Hollis | Hollis sought costs and fees under ICARA | O’Driscoll did not contest on appeal | Remanded to District Court to determine whether and what costs to award |
Key Cases Cited
- Guzzo v. Cristofano, 719 F.3d 100 (2d Cir. 2013) (standard of review and habituaI-residence fact-intensive inquiry)
- Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013) (limits on merits inquiry in Hague cases)
- Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (elements petitioner must prove under Hague/ICARA)
- Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (definition of wrongful removal under Convention)
- Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003) (parental conflict does not automatically defeat habitual residence)
- Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013) (district court’s role in awarding costs under ICARA)
- McCarthy v. Bowen, 824 F.2d 182 (2d Cir. 1987) (procedural guidance on appellate fee applications)
- Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2005) (treaty signing vs. ratification distinction)
- Blue Ridge Investments, L.L.C. v. Republic of Argentina, 735 F.3d 72 (2d Cir. 2013) (ratification as establishing treaty-state party)