NO. 16-582

In the Supreme Court of the United States
PETER VALDEZ CAHUE,v.

Petitioner,

JADED MAHELET RUVALCABA MARTINEZ,

Respondent.

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Seventh Circuit
MOTION FOR LEAVE TO FILE BRIEF AND BRIEF
AMICI CURIAE OF THE INTERNATIONAL ACADEMY OF
FAMILY LAWYERS IN SUPPORT OF PETITIONER

TIM AMOSEDWIN A. FREEDMANTIMOTHY SCOTTCounsel of Record
GERALD L. NISSENBAUMLAW OFFICES OF EDWIN FREEDMANDANA PRESCOTT
58 Harakevet Street
ISABELLE REIN-LESCASTEREYRES Tel-Aviv 6777016
CHARLOTTE BUTRUILLE-CARDEW Israel
00-972-3-6966611
IAN KENNEDY
edwin@edfreedman.com
INTERNATIONAL ACADEMY OF
FAMILY LAWYERS
81 Main Street, Suite 405
White Plains, New York 10601
Counsel for Amici Curiae
International Academy of Family Lawyers

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
MOTION FOR LEAVE TO FILE BRIEF
The International Academy of Family Lawyers
moves for leave to file an amici curiae brief in supportof petitioner, pursuant to Supreme Court Rule 37.2(b).
Amici are filing this motion because respondents havenot consented to filing this brief.
Amici’s brief may assist the Court in determining
whether to grant certiorari to review the issues
presented in this case. Amici are a professional
international association of lawyers whose expertise
focuses on family law issues. Matters relating to theinternational application of Conventions focusing onchildren, in particular the Hague Child Abduction
Convention, are of special interest to the IAFL. Amici
have been represented at all six of the Special
Commissions of the Hague Conference on Private
International Law that deliberate on the Abduction
Convention’s implementation. Amici filed an amici
curiae brief in Lozano v. Montoya, 134 S. Ct. 1224
(2014), which also concerned the implementation of
the Abduction Convention.
Given the importance of uniformity between thecontracting States in implementing the Abduction
Convention, the international perspective which amici
brings can be helpful in determining the issues in thiscase. The Abduction Convention deliberately did notprovide a definition of habitual residence in order toprevent the application of a rigid formula. This hascreated different definitions of habitual residence, bothinternationally and within the member states as seenin the use of the term by the courts of the individual
Federal Judicial Circuits. In addition to the definitionof habitual residence, there is conflict in the definition

ii
of custody rights when one of the legally acknowledged
parents is an unmarried father. Certain jurisdictions,such as Illinois in the present matter, require somejudicial act of recognition before taking into account theparental intent of an unmarried father, while otherjurisdictions do not require any legal act. Although an
unmarried father who is legally acknowledged as aparent and has actively raised the child is responsible
for the child’s welfare and support, in somejurisdictions that father is not recognized by a court
adjudicating an Abduction Convention matter.
Parental intent, which is a crucial factor in
determining the habitual residence of a minor, is solely
determined by the mother in those states. This creates
an unconstitutional category of fathers whose due
process rights are violated. Amici’s brief attempts tocompare the definition of habitual residence in thejurisdiction of the member states as well as the varying
approaches of the states in regard to the parental
rights of unmarried fathers. It offers an analysis which
can lead to uniformity in the definition and applicationof the crucial elements of the Abduction Convention.
Amici therefore request the Court to grant thismotion for leave to file this brief amici curiae.

iii
Respectfully submitted,
Edwin FreedmanCounsel of Record
Law Offices of Edwin Freedman
58 Harakevet Street
Tel Aviv 6777016
Israel00-972-3-6966611
edwin@edfreedman.com
Counsel for Amici Curiae
International Academy of Family Lawyers

iv
QUESTIONS PRESENTED FOR REVIEW
I. What are the factors in determining habitualresidence as that term is used by The Hague
Convention on the Civil Aspects of International
Child Abduction (“The Abduction Convention”)?
II. In determining habitual residence under The
Abduction Convention, does the refusal to consider
the intent of an unmarried father whose paternity
is acknowledged and not in dispute, violate the Due
Process Clause of the United States Constitution?

v
TABLE OF CONTENTS
MOTION FOR LEAVE TO FILE BRIEF . . . . . . . . . i
QUESTIONS PRESENTED FOR REVIEW . . . . . iv
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
INTEREST OF THE IAFL . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. Shared parental intent is necessary in order tochange the habitual residence of a minor child inproceedings under the Abduction Convention . . 5
II. The intent of an unmarried father whosepaternity is acknowledged and undisputed must
be taken into account when analyzing thehabitual residence of a minor for purposes of theHague Abduction Convention . . . . . . . . . . . . . . 13
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vi
TABLE OF AUTHORITIESCASES
Abbott v. Abbott,
542 F.3d 1081 (5th Cir. 2008) . . . . . . . . . . . 17, 18
Abbott v. Abbott,
560 U.S. 1, 130 S. Ct. 1983 (2010) . . . . . . . 17, 22
In re ALC,
2015 WL 1742347 (9th Cir. 2015) . . . . . . . . . . . . 8
Barzilay v. Barzilay,
600 F.3d 912 (8th Cir. 2010) . . . . . . . . . . . . . . . 12
Delvoye v. Lee,329 F.3d 330 (3d Cir. 2003) . . . . . . . . . . . . . . . . 10
Didon v. Castillo,
15-3350, 2016 WL 5349733(3d Cir. Sept. 26, 2016) . . . . . . . . . . . . . . . . . . . 10
Fawcett v. McRoberts,
326 F.3d 491 (4th Cir. 2003) . . . . . . . . . . . . . . . 17Feder v. Evans-Feder,
63 F.3d 217 (3d Cir. 1995) . . . . . . . . . . . . . . . . . 10
Friedrich v. Friedrich,
983 F.2d 1396 (6th Cir.1993) . . . . . . . . . . . . . . . . 9
Furnes v. Reeves,362 F.3d 702 (11th Cir. 2004) . . . . . . . . . . . . . . 17
Gonzalez v. Gutierrez,
311 F.3d 942 (9th Cir. 2002) . . . . . . . . . . . . . . . 17
Hayes v. County of San Diego,
638 F.3d 688 (9th Cir. 2011) . . . . . . . . . . . . . . . 14

vii
Karkkainen v. Kovalchuk,
445 F.3d 280 (3d Cir. 2006) . . . . . . . . . . . . . . . . 10
Lehr v. Robertson,
463 U.S. 248, 103 S. Ct. 2985,
77 L. Ed. 2d 614 (1983) . . . . . . . . . . . . . . . . . . . 13
Mauvis v. Herisse,2014 WL 5659412 (1st Cir. 2014) . . . . . . . . . . . . 8
Maxwell v. Maxwell,
588 F.3d 245 (4th Cir. 2009) . . . . . . . . . . . . . . . . 9
Mendez v. May,
2015 WL 627215 (1st Cir. 2015) . . . . . . . . . . . . 10
Mozes v. Mozes,
239 F.3d 1067 (9th Cir. 2001) . . . . . . . . . . passim
Ozaltin v. Ozaltin,
708 F.2d 355 (2d Cir. 2013) . . . . . . . . . . . . . . . . 21
Panteleris v. Panteleris,
WL 468197 (6th Cir. 2015) . . . . . . . . . . . . . . . . 11
In re S.E.O.,
873 F. Supp. 2d 536 (S.D.N.Y. 2012) . . . . . . . . . 22
Silverman v. Silverman,
338 F.3d 886 (8th Cir. 2003) . . . . . . . . . . . . . . . 11
Sorenson v. Sorenson,
559 F.3d 871 (8th Cir. 2009) . . . . . . . . . . . . . . . 12
Stern v. Stern,
639 F.3d 449 (8th Cir. 2011) . . . . . . . . . . . . . . . 12

viii
Troxel v. Granville,
530 U.S. 57, 120 S. Ct. 2054,
147 L. Ed. 2d 49 (2000) . . . . . . . . . . . . . . . . . . . 13
United States v. Myers,
426 F.3d 117 (2d Cir. 2005) . . . . . . . . . . . . . . . . 13
Velasquez v. Funes de Velasquez,2015 WL 1565142 (E.D. Va 2015) . . . . . . . . . . . . 9
CONSTITUTION AND STATUTES
U.S. Const. amend. XIV . . . . . . . . . . . . . 4, 13, 14, 23
42 U.S.C. § 11601(b)(3)(B) . . . . . . . . . . . . . . . . . . . 15
OTHER AUTHORITIES
Lord Browne-Wilkinson, Re H (Abduction:
Acquiescence) [1998] AC 72 . . . . . . . . . . . . . . . . 15
Re H (Abduction: Acquiescence)[1997]
1 FLR 872 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Hunter v. Murrow (Abduction: Rights of Custody)[2005] EWCA Civ 976 . . . . . . . . . . . . . . . . . . . . 20
Law and Contemporary Problems, Vol. 57: No.3,
Summer 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Re P (Abduction Consent) [2004]
EWCA Civ 971 . . . . . . . . . . . . . . . . . . . . . . . . . . 19

1
The International Academy of Family Lawyers(IAFL) adopts the facts as they are stated in the
Petitioner’s brief.
INTEREST OF THE IAFL1
The IAFL (formerly the International Academy of
Matrimonial Lawyers, whose name was changed in2015) was formed in 1986 to improve the practice oflaw and the administration of justice in the area ofdivorce and family law throughout the world. The
IAFL currently has 745 “Fellows” in 55 countries, eachof whom is recognized by the bench and bar in his or
her country as an experienced and skilled family law
practitioner.2 It is a worldwide association of practicing
lawyers who are experienced and skilled family law
specialists in their respective countries.
IAFL Fellows have made presentations in the US
and in other Fellows’ States in relation to legal
reforms. The IAFL has sent its representatives toparticipate in relevant international conferences, often
as non-governmental experts, including the six Special
Commissions on the Hague Convention on the Civil
Aspects of International Child Abduction. Its Fellows
have also written and lectured widely on the1

Pursuant to Supreme Court Rule 37.6 counsel for the amici
certify that no counsel for a party authored any part of this brief
and no person or entity other than counsel for the amici has madea monetary contribution to the preparation or submission of thisbrief. Petitioner has consented to the filing of this Brief.
Respondent has not consented.

2

The IAFL website, www.iafl.org, contains, among other items, alisting of the Fellows.

2
Convention and related topics, such as proceedings to
obtain court approved relocation of children to anothercountry.
The IAFL filed an amicus curiae brief in Lozano v.
Montoya, 572 U.S. ____, 134 S. Ct. 1224 (2014). The
Academy has also filed amicus briefs in cases
concerning the interpretation of the Abduction
Convention in the Supreme Courts of the United
Kingdom, In the Matter of AR, (Children) (Scotland)
UKSC 2105/0048 and France, Bowie v. Gaslain (No.T
15-26664)
The IAFL’s interest in the instant case relates to its
concern that implementation of the Convention, which
has significantly reduced the harmful effects ofinternational child abduction, will be severely
undermined if the judgment of the Seventh Circuit inthis matter is not overturned. Many Convention cases
are brought to court in the signatory States by IAFL
Fellows. The IAFL, therefore, has a significant
professional and policy interest in preserving thedeterrent effect of the Convention and ensuring theprompt return of wrongfully removed or retained
children to their habitual residence.
The IAFL is acting pro bono in submitting this brief.

3
SUMMARY OF ARGUMENT
The purpose of the Abduction Convention is toreturn a minor child who has been wrongfully removed
or retained to his or her country of habitual residence
as swiftly as possible. It is an instrument to determine
jurisdiction, not custody. The Abduction Convention
therefore does not apply a best interests test but rather
determines the correct forum to apply that test.
The term habitual residence was deliberately notdefined by the drafters of the Abduction Convention inorder to avoid the application of rigid formulas to anissue which is fact driven. The Federal Circuits havedeveloped different approaches to determine habitualresidence. A majority of the Circuits focus on joint
parental intent in conjunction with a physical presenceof the minor in the new jurisdiction. The minority haveapplied a test that emphasizes the perspective of thechild, particularly his or her acclimation to the new
surroundings. It looks back in time, not forward. The
geographical change, coupled with the passage of time,
can alter habitual residence, even where one of theparents had no intent to make a change.
A parent or institution may initiate proceedings
under the Abduction Convention if they have rights ofcustody (Par. 3 of the Convention). Those rights are
determined by State law. Thus, when consideringparental intent, only the intent of a parent with rights
of custody as defined by the State of the left behindparent will be taken into account. Some Statesrecognize unmarried fathers as having the same rights
of custody as married fathers, while other Statesrequire the unmarried father to take legal steps inorder for their rights to be recognized. This creates two

4
categories of fathers, resulting in unlawful
discrimination against the unmarried fathers.
In addition, this discrimination undermines
uniformity in the application of the Abduction
Convention. Identical fact patterns regarding the nonconsensual removal of a child between the same twocountries can result in completely opposite outcomes.
The petitioner is a resident of Illinois, a state which
does not automatically recognize the parental rights ofan unmarried father, even where paternity was legally
acknowledged and not in question. Without obtaining
a court order recognizing his rights, the petitioner’s
intent in determining habitual residence is not taken
into account.
The IAFL believes that the correct approach indetermining habitual residence is that adopted by the
majority of Circuits, holding that joint parental intent
is required. The failure to recognize the petitioner’s
parental rights is therefore a denial of due process andequal protection under the Fourteenth Amendment of
the United States Constitution.
In addition, it is argued that Abduction Convention
case law has developed an autonomous definition ofparental rights. That definition should be theapplicable one. Its adoption will promote uniformity
among the member states and prevent discrimination
against a class of fathers whose categorization results
in a denial of due process.

5
ARGUMENT
I. Shared parental intent is necessary in orderto change the habitual residence of a minor
child in proceedings under the Abduction
Convention.
The United States Supreme Court has yet to rule on
the issue of habitual residence in the context of theHague Abduction Convention. The thirteen Federal
Circuit Courts and the fifty State Courts therefore haveno precedent which binds them all.
The distinction in the analysis of habitual residence
lies in the weight given to parental intent as opposed tothe physical location of the child. The First, Second,
Fourth and Seventh Circuits follow the analysis of theNinth Circuit’s judgment in Mozes v. Mozes, 239 F.3d
1067 (9th Cir. 2001). The Mozes court held that theanalysis is fact intensive and therefore there are no
rigid rules to apply. It ruled that there must be ashared parental intent to abandon the existing habitualresidence before a new one can be acquired. Therefore
the length of the move must be examined in the context
of the parties’ agreement as to the purpose of the move.
The relocation need not be permanent. It can be for any
number of reasons: business, study, health or just thedesire to explore other ways of life. However, there
must be a settled purpose to the move and the movemust actually take place.
The interrelationship between parental intent andthe child’s adaption to new surroundings exists on acontinuum. The weight given to each factor will dependon the circumstances of the case. The shorter the timein the new jurisdiction, the more weight given to6parental intent. In Mozes, the children had spent 15
months in the US while the father remained in Israel.
There was no agreed upon intent to abandon Israel as
the habitual residence. The court found that thechildren’s habitual residence did not change, regardlessof how much they adjusted to their new surroundings.
Had the move been for a substantially longer period,
the court might have given less weight to parental
intent and given more emphasis to the child’s
adjustment to his or her new surroundings. Mozes
stands for an integration of parental intent and thechild’s adjustment to its new environment, with norigid formula to on how balance the two.
Focusing on parental intent attains an important
Abduction Convention objective: the prevention of aunilateral change of the child’s habitual residence. Oneof the essential motivating factors in adopting the
Abduction Convention is to prevent the unlawful
removal of children from one country to another.
Changing a child’s habitual residence without consent
of both parents, in situations where the left-behindparent was exercising his or her custodial rights, orwithout court approval, is an act that seriously harms
both the child and parent. It severely interferes withand often totally prevents the continuance of theparent-child relationship. Parental intent must
therefore always be an important and essential criteria
when determining if the change of habitual residence
was unlawful under the Hague Convention.
In addition, by placing primary evidence on theacclimation of the child to the new environment, theAbduction Convention will lose its deterrent capacity.
The proceedings will shift from determining

7
jurisdiction, which is at the heart of the Abduction
Convention, to an analysis more appropriate to acustody proceeding. The outcome will no longer be
determined by the actions of the parent, whether
lawful or unlawful, but by the nature of the child. A
child who has the ability to easily adapt to new
surroundings will have been found to have acquired a
new habitual residence, while a child who struggles tomake new friends, learn a new language or adjust to aforeign school system will be considered not to haveacquired a new habitual residence. This would result infederal courts applying a “best interests” test as it
would in a conventional custody case. That would becontrary to the essence of an Abduction Convention
proceeding, whose purpose is to determineinternational jurisdiction, not custody. The purpose of
the Abduction Convention is not served by the outcomeof a proceeding under its framework being determinedprimarily by a child’s ability to make the switch from
American football to European soccer.
The continuum between parental intent and thechild’s adaptation to new surroundings is also impacted
by the age of the child. The impact of relocation on a 13
or 14 child is significantly different from that of a 3 or
4 year old. The ability of a 4 year old to adapt to their
new surroundings may be of far less significancecompared to that of a 14 year old.
The Mozes court divided the question of habitualresidence into three different scenarios; 1) Where thefamily unit has manifested a settled purpose to change
habitual residence, despite the qualms of one of theparents, 2) Where the translocation from anestablished habitual residence was clearly intended to8
be of a specific, delimited period, 3) In between cases
where the petitioning parent had earlier consented to
let the child stay abroad for some period of ambiguous
duration. The first situation will result in habitualresidence being acquired in a relatively short period oftime. In the second situation, habitual residence will
not be acquired even after an extended stay, although
once the delimited period has passed the length of thecan determine the change in habitual residence. The
third situation is the problematic one. The court statedthat in the absence of settled parental intent, courts
should be slow to infer from acclimatization that an
earlier habitual residence has been abandoned.
The Ninth Circuit recently reaffirmed the Mozes
precedent in the case of In re ALC, 2015 WL 1742347(9th Cir. 2015). The court held that the first task is to
examine shared parental intent. When that does not
resolve the dispute, then the new jurisdiction will beconsidered the habitual residence when objective facts
point unequivocally to the child’s relative attachments
to the two countries changing to the point whererequiring a return would be tantamount to removing
the child from the environment in which its life hasdeveloped. The court held that where a child is bornunder the cloud of disagreement between the parents
over its habitual residence, a child of tender age
remains without an habitual residence.
The First Circuit followed the Mozes approach inthe case of Mauvis v. Herisse, 2014 WL 5659412 (1stCir. 2014) an abduction from Haiti to Massachusetts.
The court stated that the analysis of habitual residence
is a two-part approach. The first question is whether
there was a shared parental intent or settled purpose

9
to abandon the prior habitual residence and acquire a
new one. The court then stated that as a secondary
factor, it would ascertain whether the acclimatizationof the child to the new residence is relevant. It
reiterated that a new habitual residence cannot be
acquired without abandoning the prior one.
The Fourth Circuit adopted the Mozes analysis in
Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009). The
court held that habitual residence is determined by a
two-part formula. First it attempts to determine theshared parental intent. Where a shared parental intent
is lacking or cannot be determined, the court must
decide if petitioner has agreed to taking up a new
habitual residence.
The recent Fourth Circuit case of Velasquez v.
Funes de Velasquez, 2015 WL 1565142 (E.D. Va 2015)
involved the third position stated in the Mozes decision.
The move from El Salvador to the US was an open
ended one. There was no clear parental intent toabandon the habitual residence in El Salvador. The
court affirmed the two-part approach of Mozes. It
examined whether there was an actual change of
geography coupled with an appreciable passage of time.
It found that returning the children to El Salvador
would not be tantamount to returning them home andtherefore denied the appeal of the father for a returnorder.
The Sixth Circuit takes an approach that is morechild focused. In the case of Friedrich v. Friedrich, 983
F.2d 1396 (6th Cir. 1993) (Friedrich I), the court heldthat the habitual residence of the child is its customary
residence prior to the removal. It looks back in time,
not forward. It is the child’s habitual residence, not the10parents’, which is determinative. A child can have only
one habitual residence. There must be a change in
geography to alter habitual residence. That change in
geography must occur prior to the removal in question.
The geographical change, coupled with the passage oftime, can alter habitual residence.
A recent First Circuit case, Mendez v. May, 2015
WL 627215 (1st Cir. 2015), rejected the proposition
that a change of geography is a prerequisite to achange in habitual residence. It held that it is only one
factor and not a prerequisite. It is the last sharedparental intent which is determinative, even if thechange in geography had yet to take place.
The courts of the Third and Eighth Circuits havetaken a child centered approach in conjunction withequal weight given to the parents’ present sharedintentions. The Third Circuit case of Feder v. EvansFeder, 63 F.3d 217 (3d Cir. 1995) established thedefinition of habitual residence for that Circuit. It heldthat a child’s habitual residence is the place where heor she has been physically present for an amount oftime sufficient for acclimatization and which has adegree of settled purpose from the child’s perspective.
A determination of whether any particular placesatisfies this standard must focus on the child. It
consists of an analysis of the child’s circumstances inthat place and the parents’ shared, present intentions
regarding the child’s presence there. See Delvoye v. Lee,329 F.3d 330 (3d Cir. 2003), Didon v. Castillo, 15-3350,
2016 WL 5349733 (3d Cir. Sept. 26, 2016).
The Third Circuit case of Karkkainen v. Kovalchuk,
445 F.3d 280 (3d Cir. 2006) made a distinction as to theage of the children regarding parental intent. In the11case of very young children, particular weight is placedon parental intent. In the case of older children, theimpact of parental intention is more limited.
The recent case of Panteleris v. Panteleris, WL
468197 (6th Cir. 2015) rejected the Mozes analysis andreaffirmed the Friedrich I precedent and further
elaborated. It established 5 principles to determine
habitual residence:
1) Not to use technical rules but examine the facts,
2) Consider only the child’s experiences,
3) Focus on the child’s past,4) A person can have only one habitual residence,5) Only a change in geography and a passage oftime can combine to establish a new habitualresidence.
The Eighth Circuit also applies a two-pronged test
that takes into account parental intent and the child’s
perspective, with an emphasis on the child’s
perspective. In the case of Silverman v. Silverman, 338
F.3d 886 (8th Cir. 2003) the court was called upon todetermine whether the habitual residence of children
born and raised in Minnesota had been changed to
Israel after ten months. It held that the court must
examine habitual residence from the children’s
perspective, including the family’s change in geography
along with personal possessions and pets, the passageof time, the selling of their prior residence, enrollment
in school, obtaining benefits granted to new
immigrants and to some degree, the parents’ intentions
at the time of the move to Israel. Assessing these facts

12
led to the conclusion that the children’s habitualresidence had been changed to Israel.
The relevant factors in determining habitualresidence in the Eighth Circuit are the settled purposeof the move to the new country from the child’s
perspective, parental intent, a change in geography,
the passage of time and the acclimation of the child tothe new country. See Barzilay v. Barzilay, 600 F.3d 912(8th Cir. 2010), Stern v. Stern, 639 F.3d 449 (8th Cir.
2011), Sorenson v. Sorenson, 559 F.3d 871 (8th Cir.
2009).
All of the US Federal Courts take into accountparental intentions to some degree. While the courtsthat follow the Ninth Circuit place significant emphasison parental intent, particularly the First Circuit, eventhe courts that are more child focused still weighparental intent to some degree. The courts all agree
that the definition is fact intensive and no fixed
formula should be applied. Yet it is clear that theunilateral decision of one parent is not sufficient tochange the habitual residence of a child. The analysisof the Ninth Circuit requires mutual parental consent
and should be the analysis that is followed.

13
II. The intent of an unmarried father whosepaternity is acknowledged and undisputed
must be taken into account when analyzing
the habitual residence of a minor for purposesof the Hague Abduction Convention.
The Seventh Circuit found that the Petitioner, thelegally recognized father who had been actively
involved in the child’s upbringing, lacked custodyrights under Illinois law and therefore did not have totake into account his intent when analyzing thehabitual residence of the minor in question. Petitioner
argues that his intent must be taken into account inorder to determine the habitual residence of the minor.
The Seventh Circuit’s approach violates due process
and equal protection under the Due Process Clause of
the Fourteenth Amendment to the U.S. Constitution.
The Supreme Court has held that the Due Process
Clause of the Fourteenth Amendment protects thefundamental right of parents to make decisions as tocare, custody and control of their children. Troxel v.
Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d49 (2000). “It is well established that a parent’s interestin maintaining a relationship with his or her child is
protected by the Due Process Clause of the Fourteenth
Amendment.” United States v. Myers, 426 F.3d 117, 125(2d Cir. 2005). When an unwed father demonstrates afull commitment to the responsibilities of parenthoodby “com[ing] forward to participate in the rearing of hischild his interest in personal contact with his childacquires substantial protection under the Due Processclause.” Lehr v. Robertson, 463 U.S. 248, 261, 103 S. Ct.
2985, 2993, 77 L. Ed. 2d 614 (1983).

14
By entirely disregarding the legal father’s intent
and failing to conduct a shared parental intent
analysis, the Seventh Circuit has deprived non-married
fathers of their interest in continuous personal contact
with their children without due process of law. Such an
approach fails to take into account the entirety of thecircumstances of the case and the Constitutionally
guaranteed substantial protection afforded to thefather under the Due Process Clause.
This approach also fails to take into account theright of the child to maintain a personal relationshipwith his or her father, “… a child has a constitutionallyprotected liberty interest under the Fourteenth
Amendment in the ‘companionship and society’ of her
father.” Hayes v. County of San Diego, 638 F.3d 688,
693 (9th Cir. 2011) opinion withdrawn, 658 F.3d 867(9th Cir. 2011), certified question answered, 57 Cal. 4th622, 305 P.3d 252 (2013). Considering only themother’s intent to determine habitual residence denies
due process to the father as well as the child asprotected by the Fourteenth Amendment.
The Seventh Circuits decision also represents anunconstitutional classification which discriminates
between married fathers and unmarried fathers withno compelling societal justification. A married father
has the same right to determine the habitual residenceof his minor child as the mother. However, anunmarried father, even though his paternity has beenlegally acknowledged and is not in dispute, does nothave the same right. The unmarried father, according
to the Seventh Circuit’s application of Illinois law,must take additional legal action, not required by amarried father, in order that his intent be considered15
when determining the minor’s habitual residence. No
public interest is served by this arbitrary
discrimination between categories of fathers. This
result of this erroneous interpretation is that the minor
child may be deprived of a personal relationship withhis or her father based on a marriage certificate rather
than the actual circumstances of the case.
Petitioner further argues that there should be a
uniform interpretation of custody rights under theHague Convention.
Custody Rights: Defined by the State, Construedby The Hague Convention on Child Abduction“An international convention, expressed in different
languages and intended to apply to a wide range ofdiffering legal systems cannot be construed differently
in different jurisdictions. The convention must have thesame meaning and effect under the laws of all
Contracting States”. (Lord Browne-Wilkinson, Re H
(Abduction: Acquiescence) [1998] AC 72.) The principleof uniformity in applying Abduction Convention
principles is an accepted one. Courts that have weighedin on the issue have all stated the importance of
uniform definitions in order to avoid both uncertainty
and asymmetry in applying the Convention.
The United States Abduction Convention
implementing legislation, The International Child
Abduction Remedies Act, (ICARA) directs that“uniform international interpretation” of theConvention is part of its framework, see 42 U.S.C.
§ 11601(b)(3)(B). The Guide to Good Practice, which iscompiled by the delegates to the Special Commissionsof the Hague Conference convened every four years and16
updated from time to time, emphasizes an autonomous
definition of the Abduction Convention terms. Part IIIof the Guide, under Implementing Measures, statesthat an international approach is necessary forconsistent interpretation and application.
Case law and legal scholars have supported theapproach taken by the Guide to Good Practice.
Interpreting rights of custody solely according to state
law can not only lead to inconsistent interpretation, but
create totally unacceptable outcomes which arecontrary to the objectives of the Abduction Convention.
Prof. Linda Silberman, who has written extensively on
the Abduction Convention, has stated “If Convention
cases became subject to varying national approaches
and perspectives, neither of the core objectives of thetreaty would be attainable.” (Law and Contemporary
Problems, Vol. 57: No.3, Summer 1994, p.258.)
Custody rights as defined by the various signatory
states can vary significantly. Custody rights of thefathers are those most often subject to interpretation.
Some jurisdictions, such as Illinois, require unmarried
fathers to take specific legal action in order to havetheir custodial rights recognized. Failure to do soleaves the father without custodial rights, even if defacto he is an active parenting partner, including
financially supporting the child. This can create asituation whereby two cases of abduction with identicalfact patterns can result in contrary decisions, theoutcome depending solely on the different laws of thestate of habitual residence.

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Custody Rights and Ne Exeat Orders
The significance of a ne exeat order has exemplified
how courts of the member states have given different
meaning to the same term as it pertains to the right ofcustody. In an attempt to clarify the definition ofcustody rights, the Abduction Convention states in
Article 5(a) that the right of custody includes the rightto determine the child’s residence. That has notprevented extensive litigation in the contracting statesas to whether the issuance of a ne exeat order alone,absent any other basis in law or by agreement, falls
within that definition.
The conflicting interpretations of the significance ofa ne exeat order in the various U.S. federal courts
eventually led to the U.S. Supreme Court’s grant ofcertiorari in the case of Abbott v. Abbott, 560 U.S. 1,
130 S. Ct. 1983 (2010). Until then, the majority of U. S.
Federal Circuits had adopted the restrictive
interpretation as defined in Croll, which held that theissuance of a ne exeat order did not constitute a rightof custody in favor of the requesting parent. (seeGonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002),
Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003) and
Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008). The
exception was the Eleventh Circuit which applied theaccepted interpretation in the majority of Abduction
Convention jurisdictions, (see Furnes v. Reeves, 362
F.3d 702 (11th Cir. 2004).
The majority opinion of the Supreme Court
overturned the judgment of the Court of Appeals andheld that the accepted interpretation of custody rights
includes the right to prevent the removal of a childfrom the jurisdiction. Any other interpretation would

18
render the Abduction Convention meaningless. The
court stated that it was not relevant that traditional
notions of custody referred to physical custody. The
emphasis needs to be placed on the Abduction
Convention’s understanding of the term. Doing sowould promote international consistency and prevent
arbitrary results. Abbott boldly stated that “Thedefinition of ‘rights of custody’ is an issue of treaty
interpretation and does not depend on the domestic lawof the country of habitual residence.” Id. at 1991. That
perhaps was the clearest declaration of a uniqueautonomous Abduction Convention definition ofcustody rights to be applied by any court called upon todetermine a petition for return in a Convention
proceeding.
It is now accepted case law in the majority ofjurisdictions that the definition of custody rights forpurposes of implementing the Abduction Convention
includes the right to prevent the removal of the childfrom the jurisdiction of his or her habitual residence.
Autonomous Nature of the Child Abduction
Convention
As the definition of custody has evolved in state
courts, there has developed an autonomous Hague
Convention definition of custody rights which places
the emphasis on the right to determine the child’s placeof residence. The synthesis between custody rights as
defined by the state and the autonomous Abduction
Convention definition has been addressed in a numberof cases. A two step approach has been developed whichtakes into account the law of the habitual residence asstated in Article 3 while applying a common Abduction
Convention definition of those rights.

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In the 2004 case of Re P (Abduction Consent) [2004]
EWCA Civ 971, LJ Ward held that the Hague
Convention requires the court to give the expression“rights of custody” and autonomous interpretation. He
further stated that the task of the court is to establish
the rights of the parents under the law of the State ofhabitual residence and then to consider whether thoserights are rights of custody for Hague Convention
purposes.
The case of Re P gave the courts the legal basis fordeveloping a uniform definition of custody rights thatwould be conducive to the Abduction Convention’s goals
without the need to amend it, a difficult and arduous
task, which has not happened since its adoption in
1980. It made it clear that the state definition ofcustody rights was not simply to be applied, as is, to apetition for return under the Abduction Convention.
A year later, in another Court of Appeal of Englandcase, LJ Thorpe expanded on Re P and took its
development to the next level. Justice Thorpe
recognized that the Abduction Convention is a living
instrument. He was also aware that revision of its text
“is simply impracticable…”. He cited the provisions of
the Vienna Convention on the Law of Treaties, which
also came into force in 1980, permitting a constructionthat reflects “any subsequent practice in theapplication of the treaty which establishes theagreement of the parties regarding its interpretation”(Article 31(3)(b). He held that social developments
must be incorporated by evolutions in interpretationand construction in order for a treaty to remain
relevant (Hunter v. Murrow (Abduction: Rights ofCustody) [2005] EWCA Civ 976).

20
In interpreting the meaning of an Article of the
Abduction Convention, Justice Thorpe held that theanswer is to be found in the international
jurisprudence of the Contracting States. He goes as far
to say that it is not sufficient to argue the case law of
the jurisdiction in which the case is litigated. He holds
that it is incumbent upon an attorney arguing a Hague
Convention case to not only cite English case law but
also to refer to the international jurisprudence of the
Abduction Convention as applied by the signatory
states. The court even makes reference to the case law
data base of the Hague Conference, the INCADAT
website, in order to encourage attorneys to refer tointernational case law.
Having established that there is an autonomous
Abduction Convention definition of custody rights, weare still faced with the question of which case law iscontrolling. Are the courts hearing a Hague Abduction
petition to review the international judgments andattempt to determine the controlling case law? Perhaps
it is the Abduction Convention case law of thejurisdiction in which the proceedings take place thatshould prevail. Justice Thorpe, relying on the case of
Re H (Abduction: Acquiescence)[1997] 1 FLR 872, heldthat it is the English perception of the autonomous lawof the Hague Convention which should be applied.
The Abduction Convention is essentially a treaty
which determines jurisdiction. As such, one of its
primary purposes is to discourage forum shopping. If
the Abduction Convention produces contradictory
outcomes due to the application of conflicting
definitions of its terms, then forum shopping will not be
discouraged. On the contrary, it may encourage some

21
parents to remove their child to a jurisdiction that has
a more favorable legal interpretation. A goal of the
Abduction Convention is to discourage unlawful
removals. The more clarity there is regarding what
constitutes an unlawful removal, the better the chanceof deterring a potential abduction.
The clearest expression of the synthesis of state
definition of custody rights and a determination ofwhether those rights constitute a right of custodyunder the Abduction Convention can be found in a
judgment of the U. S. Court of Appeals for the Second
Circuit (Ozaltin v. Ozaltin, 708 F.2d 355 (2d Cir. 2013).
The case involved a Turkish couple whose two
daughters were taken by the mother to the UnitedStates without the father’s permission.
The father promptly filed an application for returnwith the Turkish Central Authority. The mother thenobtained an ex parte order of protection in the Turkish
Family Court. The mother subsequently filed for
divorce in Turkey and was awarded temporary childsupport.
This prompted the father to file in the Turkish
Court for temporary custody, or in the alternative, anorder requiring that the children be brought to Turkey
and visitation rights be granted. The request for
temporary custody was denied but visitation in New
York was granted, as well as the right to take thechildren for a visit to Turkey during the summer. The
children were belatedly returned to the mother in the
U.S. and the father was again granted visitation withthem in New York. A second application by the father
for temporary custody was rejected by the Turkish
Family Court. The father then filed his petition in the22
U.S. Federal Court. The mother opposed the petition,
claiming, among other arguments, that the father did
not have custody rights under Turkish Law.
The District Court heard opposing expert testimony
from two witnesses regarding the nature of the father’scustody rights under Turkish Law. The District Court
found that the removal was in violation of the father’s
rights of custody and ordered the return of the twochildren, In re S.E.O., 873 F. Supp. 2d 536 (S.D.N.Y.
2012). The mother appealed, claiming that the removal
was lawful under Turkish law. She cited in particular
the order of the Turkish Court requiring the father toreturn the children’s passports to her after the summer
visit so that she could return to the U.S. The Federal
Court of Appeals rejected the appeal. Citing the Abbott
case, the court held that “the definition of ‘rights ofcustody’ under the Convention is an issue of treaty
interpretation and does not depend on the domestic
custody law of the country of habitual residence”. The
court went on to explain that it is domestic law that
supplies the “substance of parental rights, but therelevant provisions of the Hague Convention determine
whether those rights are considered ‘rights of custody’
under the Convention”. The court gave us a two step
formula for analyzing custody rights under the
Abduction Convention. The first step is to examine
state law to ascertain the substance of the parental
rights held by the petitioner. The second step is todetermine whether those rights meet the definition ofcustody rights under the Abduction Convention’s
guidelines.

23
CONCLUSION
The definition of habitual residence must be asynthesis of joint parental intent combined withphysical relocation. The length of time in the new
jurisdiction as well as the age of the minor child arefactors to be considered in the analysis.
Discrimination between married and unmarried
fathers whose paternity is legally acknowledged is aviolation of the Due Process Clause of the Fourteenth
Amendment to the U.S. Constitution. Excluding theintent of the unmarried father in determining habitualresidence is harmful to the Constitutionally protectedrights of both father and child.
There is a growing body of Abduction Convention
case law which is developing an autonomous
Convention definition of custody rights. In order toattain uniformity in application of the Abduction
Convention and to prevent unjust results between
Abduction Convention member states in cases
involving identical fact patterns, the courts should
apply a uniform definition of father’s rights,
recognizing the parental intent of unmarried fathers.

24
Respectfully submitted,
Edwin FreedmanCounsel of Record
Law Offices of Edwin Freedman
58 Harakevet Street
Tel Aviv 6777016
Israel00-972-3-6966611
edwin@edfreedman.com
Tim Amos
Timothy Scott
Gerald L. Nissenbaum
Dana Prescott
Isabelle Rein-LescastereyresCharlotte Butruille-Cardew
Ian Kennedy
International Academy of
Family Lawyers
81 Main Street, Suite 405
White Plains, New York 10601
Counsel for Amici Curiae
International Academy of
Family Lawyers