In Didon v Castillo, --- F.3d ----, 2016 WL 5349733 (3rd Cir., 2016) the father sought the return of his two children (A.D. and J.D.), to the Caribbean island of Saint Martin, a 34-square-mile island comprised of two legally distinct, yet highly integrated, countries—French Saint Martin. The Hague Convention is recognized by French Saint Martin (through France), but is not recognized by Dutch Sint Maarten.
The family resided in an apartment in Dutch Sint Maarten for three years before the children were retained in the United States. Throughout this period, although the family resided in Dutch Sint Maarten, it was “primarily oriented” to French Saint Martin “where Didon worked, and where the children attended school, went to doctor’s appointments, etc. The family’s administrative affairs, such as the children’s insurance, were managed in French Saint Martin. The district court observed: “The parties’ testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. ... [F]or most purposes of its residents’ daily life, the island is essentially undivided.” It highlighted testimony about the family’s extensive contacts with both countries and concluded that “the record facts, in addition to the nature of the island itself, supported a finding that J.D. and A.D. were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin. The District Court bifurcated the remainder of its analysis. Because Dominguez retained A.D. from his habitual residence in violation of Didon’s custody rights under French law, the District Court concluded that A.D. was “wrongfully” retained under the Hague Convention and granted the petition as to A.D. With respect to J.D., the District Court began by observing that Didon did not have custody rights over J.D. through adoption because his purported “adoption” did not satisfy the requirements of French law to vest custody. Because Didon did not have custody rights over J.D. under French law at the time of retention, the District Court concluded that J.D. was not “wrongfully” retained under the Convention and denied the petition as to J.D.
The Third Circuit reversed. It pointed out that the extraordinary facts of this case required it to decide an issue of first impression: may a child have two “habitual residence” countries at the same time under the Hague Convention (“concurrent habitual residence”)? It concluded that the text of the Convention does not permit concurrent habitual residence. Rather than referencing “a State” of habitual residence or “the States” of habitual residence, the Convention repeatedly refers to “the State” of habitual residence. Such language is not susceptible to any construction whereby a child may have more than one habitual residence country at a time. This textual conclusion finds support in the Convention’s Explanatory Report. It noted that in concluding that concurrent habitual residence is possible under the Convention, the District Court relied on an earlier Ninth Circuit decision—Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). In Mozes, the Ninth Circuit observed in dicta that, although “the view held by many courts” is that “a person can only have one habitual residence at a time under the Convention,” “[t]he exception would be the rare situation where someone consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each.” After carefully reviewing Mozes, it was not clear to the Court whether the Ninth Circuit was endorsing concurrent habitual residence or alternating habitual residence in that case. To the extent that Mozes could be read to support concurrent habitual residence, it rejected that interpretation of the Hague Convention as inconsistent with the Convention’s unambiguous text, and remaining faithful to the text of the treaty, it held that a child may have only one habitual residence country at a time under the Hague Convention.
The Third Circuit therefore looked to the ordinary meaning of the term “residence” and concluded that a child must have lived in a country (i.e., had a home) before that country can be considered her habitual residence under the Hague Convention. It held that the children were habitual residents only of the country in which they “lived”—Dutch Sint Maarten. Because Dutch Sint Maarten does not recognize the Convention, the Convention did not apply to this case. The Third Circuit vacated the District Court’s judgments and dismissed the petition. Because the District Court granted the petition as to A.D., it instructed the District Court to order that A.D. be returned to the United States forthwith.