Valenzuela v. Michel

Habitual residence under the Hauge Convention’s Article 3 is determined by a shared intent to abandon the prior habitual residence and an actual change in location along with a period of time; when there is more than one potential habitual residence under this test, the habitual residence is the one in which the children are physically in at a given time.

Plaintiff, mother, appealed the district court’s ruling that the father’s retention of the children in the United States was not wrongful under the Hauge Convention. The defendant, father, had retained the twins in the United States, and refused to return them. The district court held that when the parents decided that the children should spend the majority of their time in the United States for an indefinite period, the parents had abandoned Mexico as the children’s habitual state of residence. Both the United States and Mexico are parties to the Hauge Convention, whose purpose in this instance is to prevent forum shopping in custody battles. In the Ninth Circuit the legal standard for habitual residence is determined by the last settled intent of the parents as to what the central location is of the children’s family and social development is. This case involved “shuttle custody” because the children had been transported back and forth between the United States and Mexico. In looking at persuasive precedent the Ninth Circuit held that even in “shuttle custody” cases, habitual residence can be established by a shared intent to abandon the prior habitual residence and an actual change in location along with a period of time. Because the facts showed that Steve and Blanca shared the intent to abandon Mexico and adopt the United States as the twins’ habitual residence, and the children’s habitual residence was determined to be in the United States at the time of the litigation, the defendant’s failure to return the children was not wrongful under the convention. AFFIRMED.