Establishing Habitual Residency Child Custody Cases

When you marry a person from another country and then have children, establishing habitual residence may become an issue if one parent want custody of the child later and resides in a country outside the United States. Under the Hague Convention, a child can only be returned to the child’s habitual place of residence.

In the case Neergaard-Colon v Neergaard, — F.3d —-, 2014 WL 2111307 (C.A.1 (Mass.), a mother who is a citizen of the United States, Lisette Neergaard-Colon, and the father, who is a citizen of Denmark were married in Massachusetts in 2011 and their two daughters were born in the United States, one in 2011 and the other in 2012. The family moved to Singapore in 2012 because the father took a three year employment contract and relocated there with the family. However, the living arrangements in Singapore ended in January 2014, with the mother and the two children returning to their home in Boston. The father was awarded custody in Singapore and filed a Petition for the return of the children with the U.S. District Court.

The U.S. District Court granted the father’s petition, but the Court of Appeals reversed and remanded the case for further hearing finding that the District Court made an error when it determined that the children’s habitual residence was Singapore. The basis of the ruling was that the U.S. District Court should have first considered the intent of the parties as to where the habitual residence would be located-the United States or Singapore. The family did open a bank account in Singapore and established pediatricians for their daughters and also purchased a Singapore zoo membership, while retaining ownership of their two Boston properties, and the mother had an extension for three years on her maternity leave with the School Board. The father also maintained his green card legal resident status.

Establishing Nature of Habitual Residence

In establishing the nature of habitual residence, the First Circuit Court of Appeals looked at the shared intent of the parties and their established residence. The father had the burden of proof to establish that Singapore was the children’s habitual residence under the Hague Convention. The Court of Appeal ruled that a person cannot establish a new habitual residence without first abandoning their former habitual residence. In this case, the children took multiple short trips back to the United States to see family. The Court of Appeal remanded the case for further hearing to determine the parents’ intent as to whether they were abandoning their former habitual residence in the United States and/or establishing a new habitual residence in Singapore.