In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2511

DEREK REDMOND,

Petitioner-Appellee,

v.

MARY REDMOND,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 11 C 8542—Charles R. Norgle, Judge.

ARGUED OCTOBER 31, 2012—DECIDED JULY 25, 2013

Before EASTERBROOK, Chief Judge, and WILLIAMS and

SYKES, Circuit Judges.

SYKES, Circuit Judge. Mary Redmond left her home

in Illinois at age 19 to attend college in Ireland. There

she met Derek Redmond, and the two began a romantic

relationship. For most of the next 11 years, the couple

lived together in Ireland, though they never married;

their common last name is a coincidence.

In 2006 Mary became pregnant. She and Derek agreed

that the baby would be born in America but raised in
2 No. 12-2511

Ireland. On March 28, 2007, their son, “JMR,” was born

in Illinois. They returned to Ireland with the baby 11 days

later, but their relationship soon deteriorated. On November 10, 2007, Mary moved back to Illinois with JMR

against Derek’s wishes. The child was not quite eight

months old.

Ordinarily a parent in Derek’s position might have

recourse to the Hague Convention on the Civil Aspects

of International Child Abduction, Oct. 25, 1980,

T.I.A.S. No. 11670, which requires signatories to

promptly return children to the country of their habitual

residence when they are “wrongfully removed to or

retained in” another country in breach of the custody

rights of the left-behind parent. Hague Convention art. 3,

supra, T.I.A.S. No. 11670. The catch for Derek was that he

had no custody rights under Irish law; unmarried

fathers in Ireland are not legally recognized as parents,

although they may petition a court for guardianship

and custody rights. The Hague Convention remedy

was unavailable.

Derek thereafter waged a three-and-a-half-year battle

to establish his paternity rights in Ireland. On February 10,

2011, an Irish court granted Derek’s request for guardianship and joint custody of JMR, and also ordered that

the child live in or near Ballymurphy, Ireland. Mary

participated in these proceedings and was in Ireland with

JMR for the final hearing. The court allowed her to

take JMR back to Illinois to make preparations for their

move to Ireland, but only on condition that she promise

under oath to return with the child by March 30, 2011.
No. 12-2511 3

Mary made the promise but did not intend to keep it;

she returned to Illinois with JMR and remained with

him there. Eight months later Derek filed a Hague Convention petition in federal court in Illinois claiming

that Mary wrongfully “retained” JMR in the United

States in breach of his newly recognized custody rights

in Ireland.

The district court held that as of March 30, 2011, when

Mary disobeyed the Irish court’s order and the alleged

wrongful “retention” occurred, JMR’s habitual residence

was Ireland. This was so, the court held, even though

JMR had lived in the United States almost all his life.

The court focused instead on the parents’ initial agreement to raise their son in Ireland—their last shared

intent about where he would live—and gave this

evidence decisive effect. Because Mary’s move to

Illinois was unilateral, the court concluded that JMR’s

residence in the United States was temporary and contingent on the results of the Irish guardianship proceeding.

The court ordered JMR returned to Ireland. Mary appealed.

We reverse. The district court treated the parents’

last shared intent as a kind of fixed doctrinal test for

determining a child’s habitual residence. It is not. The

determination of habitual residence under the Hague

Convention is a practical, flexible, factual inquiry that

accounts for all available relevant evidence and considers the individual circumstances of each case. Here,

the parents’ shared intent when JMR was born sheds

little light on the question of his habitual residence in

2011. When Mary moved with the baby to Illinois in
4 No. 12-2511

November 2007, she had the exclusive right to decide

where he would live; because she was JMR’s sole legal

custodian, his removal from Ireland was not wrongful

under the Convention. By March 2011, the time of the

alleged wrongful “retention,” JMR’s life was too firmly

rooted in Illinois to consider Ireland his home. Because

JMR was habitually resident in the United States, the

district court was wrong to order him “returned”

to Ireland.

I. Background

Mary is an American citizen and also a citizen of Ireland

through her father, who was born in Ireland. Derek is a

citizen of Ireland. In 1996 Mary left her family home

in Illinois to attend community college in Ireland, returning during the summers and at other times during

the year. She met Derek soon after she arrived, and they

began an intimate relationship. She remained in Ireland

after completing her associate’s degree, and the couple

lived together for more than a decade. But they never

married.

In 2006 Mary became pregnant. The couple agreed

that the child would be born in America but raised in

Ireland. They traveled together to the United States, and

on March 28, 2007, their son, JMR, was born in Blue

Island, Illinois. Derek was present at the birth and

signed a voluntary acknowledgment of paternity; he is

also listed as JMR’s father on the child’s birth certificate.

Under Illinois law a properly executed voluntary acknowledgment of paternity creates a presumption of paternity
No. 12-2511 5

and may serve as a basis for a child-support order

without more elaborate proceedings to establish paternity. See 750 ILL. COMP. STAT. 45/3, 45/5, 45/6. A childsupport order entered pursuant to an acknowledgment

of paternity may also include a determination of custody

rights, guardianship, and visitation terms. See id. § 45/14.

In contrast, in Ireland the natural father of an

illegitimate child does not have parental rights. See Guardianship of Infants Act, 1964, Part I, § 2 (Act No. 7/1964) (Ir.),

available at http://www.irishstatutebook.ie/1964/en/act/

pub/0007/. Under Irish law “[t]he mother of an illegitimate

infant shall be guardian of the infant,” id. Part II, § 6(4);

the definition of “father” excludes “the natural father of

an illegitimate infant,” id. Part I, § 2. An unmarried

father may formally petition a court for recognition of

paternity and appointment as a guardian of his child,

and if recognized may seek a determination of custody

and access rights. See id. Part I, § 3; Part II, § 11.

In accordance with their original plan, Mary and Derek

returned to Ireland with JMR on April 8, 2007, when

the baby was 11 days old. The couple remained

together for several months, but during this time, their

relationship fell apart. Mary alleges in the underlying

custody dispute that Derek suffered problems with

alcohol and abused her. In November 2007 Mary

decided to end the relationship, move back to Illinois,

and raise JMR there. On November 10, 2007, she and

JMR left Ireland and flew to Illinois.

In February 2008 Mary returned to Ireland with JMR

for a visit. The purpose of the trip is not entirely clear.
6 No. 12-2511

At least in part, Mary wanted to finish collecting her

belongings. She also met with a community welfare

officer, either to request information regarding maintenance payments or to apply for “periodic payments”

for JMR (we do not know which). On March 25, 2008,

while Mary and JMR were still in Ireland, Derek filed a

petition for guardianship and custody rights in an Irish

court and obtained an ex parte order preventing them

from leaving the country. On the basis of this order, Mary

and JMR were stopped by authorities at the airport. On

April 22, 2008, an Irish court vacated the ex parte

order, and Mary left Ireland with JMR the next day.

During the course of the next three years, Mary

returned to Ireland periodically to participate in hearings

on Derek’s guardianship and custody petition. She attended a May 15, 2008 hearing and flew back to Illinois

two days later. She returned to Ireland and attended

another hearing on June 25, during which the Irish court

declined to exercise jurisdiction over the case. Derek

appealed this decision, and another hearing was set

for July 29. Less than a week before the hearing, Derek

obtained an ex parte order requiring that Mary and

JMR appear. Mary and JMR did not appear but her

counsel filed for a continuance, which was denied. At

the hearing the reviewing court reversed the lower

court’s ruling and held that the court had jurisdiction

over Derek’s application. Mary appealed. The Irish

High Court heard the case on November 18 and ruled

against her on November 26, 2008.

Mary then filed her own application in the Irish court

to relocate with JMR to the United States permanently.
No. 12-2511 7

Dueling petitions were now before the court in Ireland.

At a hearing on July 2, 2009, the court ordered that JMR

undergo an independent psychiatric assessment, and

the court-appointed examiner interviewed JMR and his

parents, and also other paternal and maternal relatives.

The psychiatric report concluded that JMR was welladjusted and happy but would benefit from growing up

near both parents—an arrangement that could only

work if JMR and Mary moved to Ireland given Derek’s

lack of American citizenship. The report recommended

that Derek be granted guardianship and custody rights,

and also that JMR live in Ireland so that Derek could

have regular access to his son. Finally, the report recommended that the parents develop a parenting plan

for JMR with “appropriate weekly and regularized

access plans.”

Throughout this time JMR lived with Mary in Orland

Park, Illinois. More than a year and a half passed

from Mary’s move to Illinois and the hearing at which

the Irish court commenced consideration of Derek’s

guardianship petition on the merits and ordered a psychiatric evaluation; another year and a half elapsed before

the final hearing on February 9, 2011. By the time of

that hearing, JMR had spent well over three of his four

years in Illinois. He attended daycare and preschool

in Orland Park from the age of two and a half, and was

enrolled in kindergarten at St. Michael’s School in

Orland Park for September 2012. He saw a pediatrician

and a dentist in Illinois, where all of his medical records

were kept. He played on a children’s baseball team

with the local baseball association, had playdates with
8 No. 12-2511

friends, and went to church with his mother and played

in the neighborhood park on Sundays. He has a large

extended family in Illinois and had frequent contact

with his grandparents, aunts, uncles, and cousins. During

this time, he periodically traveled to Ireland with Mary,

mostly for court proceedings. Between November 2007

and February 2011, he spent about ten and a half

separated weeks in Ireland.

On February 10, 2011, the day after the final hearing,

the Irish court entered an order denying Mary’s application to relocate and granting Derek’s request for guardianship and joint custody over JMR. The court ordered

that JMR live in Ireland, in or near Ballymurphy, Carlow

County, and attend the Ballymurphy National School.

Derek and Mary were ordered to share custody on an

equal basis. Mary and JMR were in Ireland for the final

hearing; the court allowed her to return to Illinois with

JMR to wind up her affairs. As a condition of her return

to Illinois, Mary promised under oath not to apply to

any court outside of Ireland regarding JMR’s custody,

not to remove JMR to a third country, and to quit her

job and move with JMR to Ireland on or before March 30,

2011. The Irish court incorporated these undertakings

into its order. For his part Derek promised not to remove

JMR to a third country, to pay $200 per month in child

support, and to pay for Mary’s plane ticket to return

to Ireland.

Mary admits that she never intended to keep these

promises. On February 15, 2011, she returned to Illinois

with JMR, and on March 23 she petitioned for sole
No. 12-2511 9

custody in Cook County Circuit Court. The next day she

moved for an emergency protective order against Derek

alleging a history of abuse and alcohol-related misconduct.

The March 30 deadline came and went. Mary did not

move to Ireland with JMR as ordered. On May 10, 2011,

the Irish court issued a further order compelling Mary

to bring JMR to Ireland on or before June 30. This order

stated that retaining the child in the United States

violated the Hague Convention. Again Mary did

not comply.

Back in Cook County Circuit Court, Derek moved

through counsel to dismiss Mary’s sole-custody petition

for lack of jurisdiction under the Uniform Child-Custody

Jurisdiction and Enforcement Act, 750 ILL. COMP. STAT.

36/101 et seq. Under the Act Illinois courts generally lack

jurisdiction over a custody petition when a valid

custody order of another state or foreign court already

governs the disposition of the child. See id. §§ 36/105,

36/206. After conferring with the Irish court, see id. § 36/110,

the Illinois state-court judge concluded as follows:

(1) Derek had timely invoked the jurisdiction of the Irish

court; (2) the Irish guardianship and custody decree

was issued in substantial conformity with the requirements of the Act; and (3) the decree did not violate fundamental principles of human rights. Accordingly, on July 27,

2011, the Illinois court deferred to the prior claim of

jurisdiction by the Irish court, see id. §§ 36/105, 36/206,

and declined to exercise jurisdiction over Mary’s petition.

At this point Derek might have sought registration

and enforcement of the Irish decree in Cook County
10 No. 12-2511

We do not know why the court thought it had authority to 1

order Mary, a free adult citizen, to go to Ireland. As far as

we can determine, neither the Hague Convention nor its

implementing legislation, the International Child Abduction

Remedies Act, 102 Stat. 437 (1988) (codified at 42 U.S.C. §§ 11601

et seq. (2006)), authorizes the court to order the relocation

of parents.

Circuit Court, along with an order granting him immediate physical custody of JMR, as provided under the

Uniform Act. See id. §§ 36/303-306, 36/310, 36/313. Instead,

on December 1, 2011—five months after the state judge

dismissed Mary’s sole-custody petition—Derek filed a

Hague Convention petition in the United States District

Court for the Northern District of Illinois seeking an

order that JMR be returned to Ireland. Derek contended

that by disobeying the Irish custody order, Mary had

wrongfully retained JMR in the United States. The

district court held an evidentiary hearing on June 8, 2012,

and by written order entered on June 19, 2012, granted

Derek’s petition. The judge concluded that as of March 30,

2011, when Mary defied the Irish court’s order and the

alleged wrongful retention occurred, JMR’s habitual

residence was Ireland, not the United States. The judge

ordered JMR returned to Ireland by July 9, 2012, accompanied by Mary.1

Mary appealed and asked the district court to stay

the return order pending appeal, but the court denied

the motion. She then moved this court for an emergency

stay. A motions panel denied the stay and also denied

her motion to expedite the appeal. In compliance with
No. 12-2511 11

the district court’s order, JMR was returned to Ireland,

where he remains.

II. Discussion

A. Mootness

Before addressing the merits, we note a jurisdictional

question. Article III of the Constitution limits the

federal judicial power to actual, ongoing cases or controversies, a limitation understood to require a live

dispute involving a party with “an actual injury

traceable to the defendant and likely to be redressed by

a favorable judicial decision.” Lewis v. Cont’l Bank Corp.,

494 U.S. 472, 477 (1990). The case-or-controversy requirement “subsists through all stages of federal judicial

proceedings, trial and appellate.” Id. If on appeal it becomes “impossible for a court to grant any effectual

relief whatever,” the case becomes moot and jurisdiction no longer exists. Knox v. Serv. Emps. Int’l Union,

Local 1000, 132 S. Ct. 2277, 2287 (2012) (internal quotation

marks omitted).

At oral argument we asked whether Mary’s appeal

became moot when JMR was returned to Ireland. The

question arose because a favorable decision may not

redress Mary’s injury; it was not clear as a legal or

practical matter that a reversal could secure JMR’s “rereturn” to Illinois. We ordered supplemental briefing,

noting that the Supreme Court had granted certiorari

in Chafin v. Chafin, 133 S. Ct. 81 (2012), to decide this

very question. The Court has now issued its decision in
12 No. 12-2511

Chafin, holding that an appeal from an adverse return

order under the Hague Convention is not rendered moot

by the child’s return. Chafin v. Chafin, 133 S. Ct. 1017,

1028 (2013).

The facts in Chafin track the facts of this case in all

material respects. There, as here, the parents disputed

the question of their child’s habitual residence for

purposes of the Hague Convention’s return remedy. The

father claimed it was the United States; the mother

claimed it was Scotland. The district court sided with the

mother and ordered the child returned to Scotland, and

mother and child left for Scotland the next day. Id. at 1022.

The question before the Supreme Court was “whether,

after a child is returned pursuant to [a Hague Convention] order, any appeal of the order is moot.” Id. at 1021.

The Court applied the standard rule that a case

becomes moot only where it is “impossible for a court

to grant any effectual relief whatever to the prevailing

party.” Id. at 1023 (citing Knox, 132 S. Ct. at 2287). The

Court held that the district court’s authority to issue a

re-return order—either “under the Convention itself or

according to general equitable principles”—was a merits

question, not a jurisdictional question, and the propriety

of a re-return order was not “so implausible that it

is insufficient to preserve jurisdiction.” Id. at 1024.

The Court also brushed aside concerns about practical

impediments to enforcing a re-return order. Jurisdictional continuation did not depend on the likelihood

that a re-return order would be obeyed by the parent

with custody or enforced by a foreign court; “difficulties
No. 12-2511 13

in enforcement,” the Court said, do not render a case

moot. Id. at 1024-26. Instead, the proper question is if

the court issues a re-return order, and if the custodial

parent complies with the order, will the aggrieved

parent get the child back? Absent a “law of physics

prevent[ing] [the child’s] return” or a similar impediment, the answer to that question is generally “yes.”

Id. at 1025. Accordingly, the Court held that a parent’s

appeal of an adverse return order under the Hague Convention does not become moot by the child’s return.

Id. at 1028.

The holding in Chafin resolves the primary mootness

concern we raised at oral argument. As a secondary

jurisdictional point, we speculated that the appeal may

be moot because the Illinois state-court judge has

deferred to the Irish court’s jurisdiction in the underlying custody battle. In other words, if we reverse and

remand and the district court orders JMR returned to

Illinois, will he go straight back to Ireland pursuant to

the Illinois court’s decision? We asked for supplemental

briefing on this issue as well, and as things stand right

now, the answer to our question is “no.” The Irish court’s

custody ruling was before the Illinois court on the

limited question of the court’s jurisdiction to decide

Mary’s petition for sole custody. Derek had asked the

Illinois court to defer to the Irish court’s earlier claim of

jurisdiction under the terms of the Uniform ChildCustody and Jurisdiction Enforcement Act. The court

granted Derek’s motion and dismissed the petition for

lack of subject-matter jurisdiction, but its order did not

alter the status quo; that is, the Illinois court did not
14 No. 12-2511

give effect to the Irish court’s order. The decision clears

the way for Derek to register the Irish order in the

Cook County Circuit Court and seek its enforcement

under the Uniform Act, but as far as the record discloses,

he has not yet sought that relief. In the meantime, Mary

has moved for reconsideration of the court’s jurisdictional ruling, and that motion is stayed pending the

outcome of these proceedings. See Agreed Order,

Redmond v. Redmond, No. 11 D 79473 (Circuit Ct. of Cook

Cnty.) (filed Oct. 22, 2012). If Mary’s motion for reconsideration is denied, she may appeal.

The upshot of all this is that the Illinois court’s jurisdictional decision does not moot this appeal. Unwinding

the district court’s return order will not inevitably

result in a speedy transatlantic round trip for JMR. Here,

as in Chafin, “[t]his dispute is still very much alive.”

Chafin, 133 S. Ct. at 1023. The question of JMR’s habitual

residence is contested, and the correct answer determines

the propriety of the district court’s return order. Reversal

may precipitate new legal and practical challenges surrounding JMR’s re-return, and if the child is returned to

Illinois, he may not stay for long. His status will depend

on the outcome of the presently pending litigation—and

possible future litigation—in the Illinois state courts.

But Mary unquestionably has an interest in the return

of her son, and “however small that concrete interest may be due to potential difficulties in enforcement,

it is not simply a matter of academic debate, and is

enough to save this case from mootness.” Id. at 1026

(alterations and internal quotation marks omitted).
No. 12-2511 15

B. Was JMR Wrongfully Retained in the United States?

The Hague Convention “was adopted in 1980 in

response to the problem of international child abductions during domestic disputes.” Abbott v. Abbott, 130 S. Ct.

1983, 1989 (2010). The Convention aims “to deter

parents from absconding with their children and

crossing international borders in the hopes of obtaining

a favorable custody determination in a friendlier jurisdiction.” Walker v. Walker, 701 F.3d 1110, 1116

(7th Cir. 2012). The Convention’s main purpose is to

“secure the prompt return of children wrongfully

removed to or retained in” another signatory State. Hague

Convention art. 1, supra, T.I.A.S. No. 11670. Among other

things, signatory States commit to have in place judicial

and administrative remedies for the return of children

taken from the State of their habitual residence to

another signatory State in violation of the left-behind

parent’s custody rights under the law of the State of the

child’s habitual residence. Id. arts. 3, 4, 7, 12. The United

States implements the Hague Convention via the International Child Abduction Remedies Act (“ICARA”),

102 Stat. 437 (1988) (codified at 42 U.S.C. §§ 11601 et seq.

(2006)) (authorizing federal courts to entertain Hague

Convention petitions).

The central question in any petition seeking the return

of a child under the Hague Convention and ICARA is

whether the child who is the subject of the petition

has been “wrongfully” removed or retained within the

meaning of the Convention. Article 3 of the Convention

defines the concept of “wrongful” removal or retention:
16 No. 12-2511

The removal or the retention of a child is to be considered wrongful where—

a) it is in breach of rights of custody attributed to

a person, an institution[,] or any other body,

either jointly or alone, under the law of the State

in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention[,] those rights

were actually exercised, either jointly or alone,

or would have been so exercised but for the removal or retention.

Hague Convention art. 3, supra, T.I.A.S. No. 11670. This

definition reflects the basic premise of the Convention’s

return remedy:

In order for the Convention to apply[,] the child

must have been “habitually resident in a Contracting

State immediately before any breach of custody . . .

rights.” Article 4. In practical terms, the Convention

may be invoked only where the child was habitually

resident in a Contracting State and taken to or retained

in another Contracting State.

Department of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg.

10,494, 10,504 (Mar. 26, 1986) (emphasis added). In addition, a court faced with a Hague petition must keep the

following important principle in mind:

A Hague Convention case is not a child custody

case. Rather, a Hague Convention case is more akin

to a provisional remedy—to determine if the child

was wrongfully removed or kept away from his or
No. 12-2511 17

The Convention also contains several defenses that may 2

be asserted against a prima facie case for a return order, see

(continued...)

her habitual residence, and if so, then to order the

child returned to that nation. The merits of the child

custody case—what a parent’s custody and visitation

rights should be—are questions that are reserved

for the courts of the habitual residence.

JAMES D. GARBOLINO, FED. JUDICIAL CTR., THE 1980 HAGUE

CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL

CHILD ABDUCTION: A GUIDE FOR JUDGES ix (2012).

Accordingly, a Hague Convention case asks the following questions in this order: (1) When did the

removal or retention of the child occur? (2) In what State

was the child habitually resident immediately prior to

the removal or retention? (3) Was the removal or retention in breach of the custody rights of the petitioning

parent under the law of the State of the child’s habitual

residence? and (4) Was the petitioning parent exercising

those rights at the time of the unlawful removal or retention? See Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d

Cir. 2006); Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir.

2001). The first two questions are factual inquiries centering on the determination of the child’s habitual residence; the second two questions involve both legal

and factual inquiries regarding the left-behind parent’s

custody rights under the law of the State of the child’s

habitual residence and whether the parent was actually

exercising those rights at the time of the removal or

retention.2
18 No. 12-2511

(...continued) 2

Hague Convention on the Civil Aspects of International

Child Abduction arts. 12, 13, 20, Oct. 25, 1980, T.I.A.S. No. 11670,

but they are not relevant here.

Derek initially alleged in his petition that Mary’s removal 3

of JMR from Ireland in November 2007 was wrongful under

the Hague Convention, but he has dropped that claim.

1. An anomaly in Derek’s Hague Convention petition

We note at the outset that this is not a case of wrongful

removal. Derek does not argue, nor could he, that Mary’s

move with JMR from Ireland to Illinois in November 2007 was wrongful under the Hague Convention.3

Under Irish law only the mother is recognized as the

guardian of an illegitimate child; Ireland does not presumptively confer parental rights on unmarried fathers.

The “rights of custody” at issue in a Hague Convention

petition are “rights relating to the care of the person of

the child and, in particular, the right to determine the

child’s place of residence.” Hague Convention art. 5(a),

supra, T.I.A.S. 11670. They arise “by operation of law or

by reason of a judicial or administrative decision, or by

reason of an agreement having legal effect under the

law [of the child’s habitual residence].” Id. art. 3. As of

November 2007, when Mary moved with JMR to the

United States, Derek had no custody rights to assert

against Mary’s removal of their son from Ireland;

under Irish law he was not recognized as JMR’s legal

guardian and had no right to direct the child’s
No. 12-2511 19

As we have explained, Derek’s voluntary acknowledgment

4

of paternity gave rise to a presumption of paternity in Illinois.

After Mary and JMR moved to Illinois, he could have filed an

action in Illinois state court to perfect his paternity rights,

acknowledge his support obligation, and obtain a determination of custody. Instead, he spent years litigating the recognition of his paternity, guardianship, and custody rights in

Ireland. By foregoing the available Illinois remedies to

establish joint custody under Illinois law—thus establishing

his joint right to direct where JMR would live—Derek enabled

Mary to fix JMR’s residence in the United States. Cf. Kijowska

v. Haines, 463 F.3d 583, 589 (7th Cir. 2006) (the father’s failure

to pursue available remedies after the mother relocated the

child to Poland “enabled [the child] to obtain a habitual residence in the country to which her mother took her”).

Mary hints that the entire inquiry could end here. She suggests 5

that the only date relevant to the analysis is November 10, 2007,

when she removed JMR from Ireland, and because her conduct

was not wrongful as of that date, further analysis is unnecessary.

We disagree, although the point has intuitive force. The cases

refer to the “first step” in a Hague petition—in which the

court identifies the date of the alleged wrongful removal or

retention—because the court must determine the child’s

habitual residence “immediately before” the alleged removal or

(continued...)

upbringing or decide where he would live. So it is no 4

surprise that Derek does not challenge Mary’s removal of

JMR from Ireland in November 2007. Assuming that

Ireland was the child’s habitual residence at that time,

Mary’s conduct was not wrongful under the Hague

Convention. See, e.g., White v. White, No. 12-1835, 2013 WL 5
20 No. 12-2511

(...continued) 5

retention. Hague Convention art. 3, supra, T.I.A.S. No. 11670.

In the case of alleged wrongful removals, that date is fairly easy

to ascertain; with alleged wrongful retentions, however, the

answer is not always clear. See JAMES D. GARBOLINO, FED.

JUDICIAL CTR., THE 1980 HAGUE CONVENTION ON THE CIVIL

ASPECTS OF INTERNATIONAL CHILD ABDUCTION: A GUIDE FOR

JUDGES 24 (2012). Wrongful retentions typically occur when a

parent takes a child abroad promising to return with the

child and then reneges on that promise; disputes sometimes

arise over when such a temporary sojourn ripens into a wrongful retention. See, e.g., Walker v. Walker, 701 F.3d 1110, 1118

(7th Cir. 2012). 

In a given Hague Convention case, an “abduction” might

have occurred on one of several dates; the question is always

whether there was any date on which a wrongful removal

or retention occurred. A court may entertain the possibility

that a wrongful removal occurred on one date, conclude that

the child’s removal on that date was not wrongful, then

move on to other possibilities. The district court conducted

this kind of analysis, in substance if not in form. The court

skipped over the question of JMR’s removal from Ireland,

implicitly concluding that it was not wrongful, and then

moved forward in time to determine when a wrongful retention might have occurred.

2284877, at *4-5 (4th Cir. May 24, 2013) (holding that

the mother’s removal of her son from Switzerland

was not wrongful under the Hague Convention because

the child’s father lacked custody rights under Swiss law,

giving her sole custody of the child and the exclusive

authority to move with him to the United States).
No. 12-2511 21

Instead, Derek contends that Mary wrongfully “retained” JMR in the United States on or after March 30,

2011, when she failed to return with him to Ireland in

violation of the Irish court’s guardianship and custody

order. This is an unconventional use of the Hague Convention—one that raises a threshold question about

its scope. The child-return remedy is a potent and important one, but its application is limited, and the

limited nature of the remedy must be kept in mind to

avoid drawing federal courts into the merits of international custody disputes. See Koch v. Koch, 450 F.3d 703,

711 (7th Cir. 2006) (“An action under the Convention

and ICARA is not an action to determine the merits

of custody rights.”).

The Hague Convention is an antiabduction treaty; it is

“ ‘not a treaty on the recognition and enforcement of

[foreign] decisions on custody.’ ” Barzilay v. Barzilay, 600

F.3d 912, 921-22 (8th Cir. 2010) (quoting Elisa Pérez-Vera,

Explanatory Report on the 1980 Hague Child Abduction

Convention, in HAGUE CONFERENCE ON PRIVATE INT’L

LAW, 3 ACTS AND DOCUMENTS OF THE FOURTEENTH SESSION,

CHILD ABDUCTION 426, 435 (1982)); see also Koch, 450 F.3d at

711 (recognizing the Pérez-Vera report as the official

history of the Hague Convention and an authoritative

source of its meaning and scope); Holder v. Holder, 392 F.3d

1009, 1013 (9th Cir. 2004) (same). “The Convention’s

procedures are not designed to settle international

custody disputes, but rather to restore the status quo

prior to any wrongful removal or retention, and to deter

parents from engaging in international forum shopping

in custody cases.” Karkkainen, 445 F.3d at 287; see also
22 No. 12-2511

The Uniform Child Custody Jurisdiction and Enforcement

6

Act (“UCCJEA”), 9 U.L.A. 657 (Master ed.) (1999), has been

adopted in 49 states, the District of Columbia, Guam, and the

U.S. Virgin Islands. See id. Table of Jurisdictions, 9 U.L.A. 114-

15 (Supp. 2012).

Koch, 450 F.3d at 711; Ruiz v. Tenorio, 392 F.3d 1247, 1250

(11th Cir. 2004); Friedrich v. Friedrich, 78 F.3d 1060, 1064

(6th Cir. 1996).

Nor does the Convention contain rules for resolving

competing claims of jurisdiction in international custody

struggles or procedures for obtaining recognition and

enforcement of foreign judgments or orders governing

child custody. As we have explained, those rules and

procedures are found in state law under the Uniform

Child-Custody Jurisdiction and Enforcement Act. See

750 ILL. COMP. STAT. 36/110 et seq. (the Uniform Act, as

adopted in Illinois); id. § 36/105 (governing the international aspects of the Act). The court’s inquiry in a 6

Hague petition is limited to the merits of the abduction

claim; the Convention is not a vehicle for resolving competing jurisdictional or merits claims in the underlying

custody dispute. Cf. Ruiz, 392 F.3d at 1250.

Here, Derek seems to be using the Hague Convention

as a substitute for an action in Illinois state court under

the Uniform Act to enforce his newly recognized

custody rights pursuant to the Irish court’s order.

Perhaps this invocation of the Convention’s remedy is

permissible under an expansive understanding of the

term “retention,” but we have our doubts. Although
No. 12-2511 23

Derek has won a legal victory in Ireland and his custody

rights are now recognized in the courts of his country,

it’s hard to see how Mary’s refusal to comply with the

Irish court’s order is, without more, a “retention” of JMR

in the sense meant by the Convention. Derek’s petition

thus presents a threshold question: Is a change in one

parent’s custody rights enough to make the other’s

parent’s continued physical custody of the child a putative wrongful “retention” under the Convention? Stated

differently, does the parent with physical custody of a

child commit a wrongful retention—colloquially, an

“abduction”—by reneging on a promise, made under

oath, to obey a newly entered custody order in favor of

the other parent?

We asked for supplemental briefing on this question as

well, but the parties seem to have missed our point. As

far as we can tell, this is a question of first impression in

this circuit and in most other circuits as well. The

Eighth Circuit has come closest to addressing the issue. In

Barzilay Israeli parents lived with their three children

in Missouri for several years. 600 F.3d at 914-15. They

divorced and the father returned to Israel. Id. at 915. On

a visit to Israel, the mother and three children were

hailed into an Israeli court, and as a condition of

allowing them to return to the United States, the court

entered a consent judgment providing that Israel was

the stipulated habitual residence of the children and

giving the father custody rights. Id. After returning to the

United States, the mother refused to send the children

back. Id. The father asserted that her refusal constituted

a wrongful retention, placing great emphasis on the
24 No. 12-2511

Barzilay thus refused to give preclusive effect to the habitual- 7

residence determination in the Israeli court’s consent judg-

(continued...)

Israeli court’s consent judgment, id. at 916, 919; he also

relied on an earlier stipulation in the Missouri divorce

proceeding that the entire family would return to Israel

if either parent did, id.

The Eighth Circuit first addressed the question of

habitual residence and affirmed the district court’s

finding that the circumstances of the children’s lives

clearly established Missouri as their home. Id. at 915. The

court then rejected the father’s reliance on the Israeli

consent judgment and the Missouri repatriation stipulation, noting that although he characterized these agreements as “prospective stipulations of habitual residence,”

they were “in fact custody decrees,” and the father was

“trying to use the Hague Convention as a vehicle to

enforce his custody rights[] simply by relabeling them as

stipulations of habitual residence.” Id. at 921. The court

explained the problem this way:

Having obtained a favorable judgment [in the Israeli

court], [the father] then turned to the federal court

seeking enforcement of his newly minted custody

rights through [a Hague Convention] petition. This

course of litigation not only betrays a fundamental

misunderstanding of the Hague Convention, but [is]

also precisely the sort of international forum

shopping the Convention seeks to prevent.

Id. at 922.7
No. 12-2511 25

(...continued) 7

ment. Under ICARA American courts must give full faith

and credit to the Hague Convention determinations of other

American courts, state or federal, but only when those determinations are rendered “pursuant to the Convention, in an

action brought under [ICARA and the Convention].” 42 U.S.C.

§ 11603(g). This special preclusion rule does not, on its face,

affirmatively authorize American courts to apply res judicata

principles to the Hague Convention determinations of foreign

courts; it’s an open question whether it precludes application

of res judicata principles to foreign Hague Convention determinations. See Holder v. Holder, 305 F.3d 854, 864-65 (9th Cir.

2002). Applying general preclusion doctrine to Hague Convention determinations by foreign courts raises complex

comity considerations in the context of a treaty that itself

targets international forum shopping. Derek has not raised the

preclusion issue or otherwise relied on the Irish court’s determination that Mary’s retention of JMR in Illinois violated the

Hague Convention. Accordingly, he has forfeited the issue.

See, e.g., Simmons v. Gillespie, 712 F.3d 1041, 1041 (7th Cir.

2013); Marcus v. Sullivan, 926 F.2d 604, 614 (7th Cir. 1991).

The Fourth Circuit’s recent decision in White is also

instructive. There, a husband and wife living in Switzerland with their son obtained an order of legal separation

that gave custody of the child to the mother and limited

visitation rights to the father. White, 2013 WL 2284877,

at *3-4. The mother then moved with her son to the

United States. The father filed a Hague Convention

petition seeking return of the child, and in the meantime,

the Swiss court adjusted its ordering of parental rights,

giving the father legal custody and the mother visitation
26 No. 12-2511

rights only. Id. The district court concluded that the

mother’s removal of the child from Switzerland was not

wrongful because she had the sole right of custody, and

the Fourth Circuit affirmed. The court noted that at the

time of removal, the father had only visitation rights,

which are insufficient to support the Convention’s return

remedy. Id. at *3-5 (explaining that the visitation

rights—known as “rights of access” under the Convention—are not a basis for the return remedy). The court

also held that the Swiss court’s later custody order—issued

two years after the child’s removal to the United

States—was ineffective to render the removal “wrongful”

under the Convention. Id. at *6-7. Although the Fourth

Circuit did not separately address the issue of “retention,”

the court did note that “[State] signatories [to the Convention] agree that orders claiming to adjust custody

arrangements after removal or retention do not typically

affect rights under Article 3 of the Convention.” Id. at *6

(emphasis added).

Although our case is not perfectly analogous to

either Barzilay or White, the basic point is the same. The

Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-andcredit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights

more generally. Those rules are provided in the Uniform

Child-Custody Jurisdiction and Enforcement Act. Rather

than applying to the Cook County Circuit Court for

enforcement of the Irish custody order under the

Uniform Act, Derek sought to enforce his newly declared
No. 12-2511 27

custody rights via a Hague petition by treating Mary’s

refusal to comply with the Irish court’s order as a

wrongful “retention” of their son in the United States.

But the concepts of removal and retention can be understood only by reference to the child’s habitual residence;

a legal adjustment of a parent’s custody rights does not

by itself give rise to an abduction claim. “The determination of a child’s habitual residence is significant

because wrongful removal can occur only if the child

has been taken away from his or her habitual residence.”

GARBOLINO, FED. JUDICIAL CTR., supra, at 41.

A fundamental premise of the Hague Convention is

that the interests of children are best served when they

remain in their country of habitual residence while their

parents resolve contested custody questions in the courts

of that country. When a child is taken from its country

of habitual residence, the left-behind parent may invoke

the Convention’s return remedy to restore the factual

status quo—in ordinary language, to bring an abducted

child home. But a parent may not use the Convention

to alter the child’s residential status based on a legal

development in the parent’s favor. The availability of the

return remedy depends on the child’s habitual residence

because the “retention of a child in the state of its

habitual residence is not wrongful under the Convention.” Barzilay, 600 F.3d at 916. Or as the Second Circuit

put it:

A petitioner cannot invoke the protection of the

Hague Convention unless the child to whom the

petition relates is “habitually resident” in a State
28 No. 12-2511

signatory to the Convention and has been removed to

or retained in a different State. The petitioner must

then show that the removal or retention is “wrongful.”

Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005).

Accordingly, every Hague Convention petition turns on

the threshold determination of the child’s habitual residence; all other Hague determinations flow from that

decision. If a child has not been moved from its habitual

residence, there is no “left-behind” parent with grounds to

complain about the move, and it makes no sense to speak

in terms of ordering the child’s “return.” In that situation,

relief under the Hague Convention must be denied without

further inquiry into whether the petitioning parent’s

custody rights have been breached or whether the petitioning parent was actually exercising those rights at the

relevant time.

2. JMR’s habitual residence

With these background understandings in place, we

proceed to the disputed question of JMR’s habitual residence. Our review of the district court’s decision is subject

to a split standard of review; findings of fact are reviewed

for clear error, issues of law are reviewed de novo, and

“[t]he ultimate determination of habitual residence is a

mixed question of law and fact to which we will apply

de novo review.” Koch, 450 F.3d at 710. There is no real

dispute about the historical facts; this appeal turns on

the ultimate determination of JMR’s habitual residence.

The Convention does not define the term “habitual

residence.” Early courts faced with Hague petitions
No. 12-2511 29

sought to avoid overcomplicating the issue of habitual

residence with layers of rigid doctrine. An English

opinion widely cited in American courts expressed this

aspiration nicely:

“It is greatly to be hoped that the courts will resist

the temptation to develop detailed and restrictive

rules as to habitual residence, which might make it

as technical a term of art as common law domicile.

The facts and circumstances of each case should

continue to be assessed without resort to presumptions or pre-suppositions.”

Re Bates (1989), No. CA 122/89 (High Ct. of Justice, Fam.

Div., Eng.), 1989 WL 1683783 (quoting ALBERT VENN DICEY

& JOHN HUMPHREY CARLILE MORRIS, THE CONFLICTS OF

LAWS 166 (11th ed. 1987)); see Whiting v. Krassner, 391 F.3d

540, 546 (3d Cir. 2004) (citing quoted passage); Silverman v.

Silverman, 312 F.3d 914, 916 (8th Cir. 2002) (same);

Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)

(same). We elaborated on this point in Kijowska v. Haines:

The determination of “habitual residence” is to be

made on the basis of the everyday meaning of these

words rather than the legal meaning that a particular

jurisdiction attaches to them, as otherwise forum

shopping would come in by the back door—each

contestant would seek a forum that would define

“habitual residence” in the contestant’s favor.

463 F.3d 583, 586 (7th Cir. 2006).

Accordingly, we interpret the phrase “habitual residence” in accordance with “the ordinary and natural
30 No. 12-2511

meaning of the two words it contains, as a question of fact

to be decided by reference to all the circumstances of any

particular case.” Mozes, 239 F.3d at 1071 (internal quotation

marks and alterations omitted); see also Norinder v.

Fuentes, 657 F.3d 526, 534 (7th Cir. 2011); Kijowska,

463 F.3d at 586; Koch, 450 F.3d at 712. Determining a

child’s habitual residence thus requires an assessment of

the observable facts on the ground, not an inquiry into

the child’s or parent’s legal status in a particular place.

Only after habitual residence is determined does an examination of custody rights come into play; treating

the question of habitual residence as a legal inquiry

would misconstrue the Convention as a custody-rights

enforcement treaty.

Under this commonsense and fact-based approach,

we think it clear that as of March 30, 2011, when the

alleged wrongful retention occurred, JMR habitually

resided in Illinois and had for some time. He was born

in Illinois, and except for seven and a half months of

his infancy, he lived continuously in Illinois with only

periodic, brief visits to Ireland. By March 30, 2011, he

had spent more than three of his four years in Illinois—approximately 80% of his young life. It is true that

the length of time a child has spent in one place is not

dispositive and must be considered with care. We have

recognized that “[t]he length of the child’s residence in

the country of one of the parents cannot be decisive. [A]

parent cannot create a new ‘habitual residence’ by the

wrongful removal and sequestering of a child. That would

invite abduction.” Kijowkska, 463 F.3d at 587 (internal

quotation marks and citations omitted). Here, however,

Mary’s removal of JMR from Ireland was not wrongful, so
No. 12-2511 31

giving weight to the substantial duration of the child’s

residence in the United States does not undermine

the purposes of the Convention.

In addition to the length of time JMR had spent in

the United States prior to the Irish court’s order, the

everyday details of his life confirm that Illinois was

home. JMR had frequent contact with his extended family

in Illinois; he received regular care from an Illinois pediatrician and an Illinois dentist; he went to daycare, preschool, and church in Orland Park; he had neighborhood

friends and played on a children’s baseball team in the

area. The district court credited this evidence: “[T]hese

facts, coupled with the passage of nearly three-and-ahalf years of very early childhood, suggest that JMR is

happy and well-adjusted to his life in Illinois.”

In contrast, on March 30, 2011, JMR’s ties to Ireland

were tenuous. As of that date, he had spent only a

small fraction of his life in Ireland—not more than

20%—and much of that time was prior to his

initial move to Illinois when he was an infant. After the

move, which occurred when he was not yet eight

months old, JMR spent only about ten and a half

separated weeks in Ireland and then primarily for the

purpose of attending court proceedings. Although

Derek and his extended family live in Ireland, these ties,

without more, do not translate to habitual residence. As

of March 30, 2011, any objective observer of the facts

of JMR’s everyday life would not call Ireland the

child’s home.

The district court recognized that JMR’s life was

firmly situated in Illinois but held that his residence in
32 No. 12-2511

the United States was only “temporary” and “contingent”

based on the evidence of the last shared intent of his

parents about where he would live. The last time Mary

and Derek agreed on anything, they agreed that their

son should be raised in Ireland; this parental intent to

raise JMR in Ireland and his presence there during his

first seven months were enough to establish his habitual

residence in Ireland as of the fall of 2007. When

in early November 2007 Mary abandoned the couple’s

earlier plans and relocated with JMR to Illinois, she did

so unilaterally, and the district court chose to disregard

her unilateral intent. The court held that Mary “was

fully aware” that JMR’s stay in Illinois depended on the

outcome of the Irish custody proceedings, so her “hopes

and desires” about JMR’s life were ineffective to

establish his habitual residence in the United States.

The district court’s reliance on the parents’ last shared

intent was misplaced, though perhaps understandable.

Many Hague Convention cases emphasize the last

shared intent of the parents as an important factor in the

analysis of a child’s habitual residence. But the habitualresidence inquiry remains a flexible one, sensitive to the

unique circumstances of the case and informed by

common sense. The parents’ last shared intent is one

fact among others, and indeed may be a very important

fact in some cases. But it is not a uniformly applicable

“test” for determining habitual residence, as the district

court seemed to think.

Not all circuits agree on the role or significance of

parental intent in resolving habitual-residence questions.
No. 12-2511 33

In one of the earliest American applications of the

Hague Convention, the Sixth Circuit held that “[t]o determine the habitual residence, the court must focus on

the child, not the parents, and examine past experience,

not future intentions.” Friedrich, 983 F.2d at 1401. In

Friedrich an American woman married a German man

and they had a son. When the child was a year and a

half, she separated from her husband and moved with

the child from Germany to the United States without the father’s knowledge or consent. In the ensuing

Hague Convention proceedings, she claimed that her son

habitually resided in the United States simply because

she wanted to raise him there, even though the child

had been born in Germany and had spent his entire life

prior to removal there. The court rejected her argument:

All of the factors listed by Mrs. Friedrich pertain to the

future. Moreover, they reflect the intentions of Mrs.

Friedrich; it is the habitual residence of the child

that must be determined. Mrs. Friedrich undoubtedly

established ties between Thomas and the United

States and may well have intended for Thomas to

move to the United States at some time in the future.

But before Mrs. Friedrich removed Thomas to the

United States without the knowledge or consent of

Mr. Friedrich, Thomas had resided exclusively in

Germany. Any future plans that Mrs. Friedrich had for

Thomas to reside in the United States are irrelevant to

our inquiry.

Id. (emphases added).

So the Sixth Circuit focuses on habitual residence

from the child’s perspective, downplaying parental intent.
34 No. 12-2511

See id. The Third and Eighth Circuits have generally

followed suit. See, e.g., Feder v. Evans-Feder, 63 F.3d 217,

224 (3d Cir. 1995) (“[A] child’s habitual residence is

the place where he or she has been physically present

for an amount of time sufficient for acclimatization

and which has a ‘degree of settled purpose’ from the

child’s perspective. . . . [A] determination of whether any

particular place satisfies this standard must focus on the

child and consists of an analysis of the child’s circumstances in that place and the parents’ present, shared

intentions . . . .” (emphases added)); Barzilay,

600 F.3d at 918 (8th Cir.) (“The ‘settled purpose’ of a

family’s move to a new country is a central element of the

habitual residence inquiry. . . . [T]he settled purpose

must be from the child’s perspective, although parental

intent is also taken into account.” (emphasis added)

(internal quotation marks omitted)).

On the other hand, the Ninth Circuit emphasizes

the parents’ perspective, explaining in its influential

opinion in Mozes that the concept of habitual residence

is based on the “settled purpose” to live in a particular

place. 239 F.3d at 1074. It is not the child’s purpose

that matters, however. “[T]he intention or purpose

which has to be taken into account is that of the person

or persons entitled to fix the place of the child’s residence”—usually, the parents. Id. at 1076 (internal quotation marks omitted). When parents jointly intend to

raise a child in a place and actually live there, that

place becomes the child’s habitual residence. The child’s

habitual residence may change later if the parents

mutually intend to abandon the residence in favor of a
No. 12-2511 35

new one, but only a shared intent will do; the unilateral

intent of a single parent will not. Id. at 1075-77.

This is not to say that the Ninth Circuit ignores the

child’s perspective entirely. In some circumstances “a

child’s life may become so firmly embedded in the

new country as to make it habitually resident even

though there be lingering parental intentions to the contrary.” Id. at 1078. But “in the absence of settled parental

intent, courts should be slow to infer from such

contacts that an earlier habitual residence has been abandoned.” Id. at 1079. A court should infer a change in

habitual residence only where “the objective facts

point unequivocally to a person’s ordinary or habitual

residence being in a particular place”; that is, when

the court “can say with confidence that the child’s

relative attachments to the two countries have changed

to the point where requiring return to the original

forum would now be tantamount to taking the child out

of the family and social environment in which its life

has developed.” Id. at 1081 (internal quotation marks

omitted).

A majority of the circuits have preferred the Ninth

Circuit’s approach and adopted the so-called “Mozes

framework.” See Gitter, 396 F.3d at 131 (2d Cir.);

Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009);

Ruiz, 392 F.3d at 1252 (11th Cir.). We too have “adopted

a version of the analysis set out by the Ninth Circuit

in Mozes.” Norinder, 657 F.3d at 534 (citing Koch, 450 F.3d

at 715). Conventional wisdom thus recognizes a split

between the circuits that follow Mozes and those that use
36 No. 12-2511

a more child-centric approach, but we think the differences are not as great as they might seem. Although

the Third, Sixth, and Eighth Circuits focus on the child’s

perspective, they consider parental intent, too. In Feder

the Third Circuit observed that the inquiry into a

child’s habitual residence “must focus on the child and

consists of an analysis of the child’s circumstances in

that place and the parents’ present, shared intentions

regarding their child’s presence there.” 63 F.3d at 224 (emphasis added). Feder reversed the district court’s habitualresidence determination precisely because the district

court had given insufficient attention to the intentions

of one of the parents. See id. Similarly, in the Eighth

Circuit, “[t]he ‘settled purpose’ of a family’s move to a

new country is a central element of the habitual

residence inquiry. . . . [T]he settled purpose must be

from the child’s perspective, although parental intent is

also taken into account.” Barzilay, 600 F.3d at 918 (emphasis

added).

The same is true on the other side. Although the

Mozes framework focuses on the shared intent of the

parents, the child’s “acclimatization” in a country has

an important role to play. Indeed, the Ninth Circuit

explained in Mozes that “a child’s life may become so

firmly embedded in the new country as to make it habitually resident even though there be lingering parental

intentions to the contrary.” 239 F.3d at 1078. We have

emphasized that the Mozes approach is “flexible” and

takes account of “the realities of children’s and family’s

lives despite the parent’s hopes for the future.” Koch,

450 F.3d at 715-16.
No. 12-2511 37

In substance, all circuits—ours included—consider

both parental intent and the child’s acclimatization, differing only in their emphasis. The crux of disagreement

is how much weight to give one or the other, especially

where the evidence conflicts. See Karkkainen, 445 F.3d at

297 (describing the disagreement among the circuits as

a difference of opinion about how to “weigh [parental

intent and the child’s acclimatization] against each other

if they conflict[]”). We have not yet had occasion

to resolve how to balance the parents’ and child’s perspectives, but nothing in our caselaw justifies the overwhelming weight the district court gave the parents’

last shared intent at the expense of the undisputed evidence of JMR’s acclimatization. To repeat, in loosely

adopting the Mozes framework, we highlighted its flexibility. See Koch, 450 F.3d at 715. We emphasized that

the inquiry is “not . . . rigid” and “does not require

courts to ignore reality,” id. at 716, and noted that the

Ninth Circuit had acknowledged as much when it said

in a subsequent case that “it was ‘keenly aware of the

flexible, fact-specific nature of the habitual residence

inquiry envisioned by the Convention,’ ” id. (quoting

Holder, 392 F.3d at 1015).

In the final analysis, the court’s focus must remain

on “the child[]’s habitual residence.” Holder, 392 F.3d at

1016 (emphasis added). Shared parental intent may be a

proper starting point in many cases because “[p]arental

intent acts as a surrogate” in cases involving very

young children for whom the concept of acclimatization

has little meaning. Id. at 1016-17. “Acclimatization is an

ineffectual standard by which to judge habitual
38 No. 12-2511

residence in such circumstances because the child lacks

the ability to truly acclimatize to a new environment.”

Karkkainen, 445 F.3d at 296. On the other hand, an emphasis on shared parental intent “does not work when . . .

the parents are estranged essentially from the outset.”

Kijowska, 463 F.3d at 587. In short, the concept of “last

shared parental intent” is not a fixed doctrinal requirement, and we think it unwise to set in stone the

relative weights of parental intent and the child’s acclimatization. The habitual-residence inquiry remains

essentially fact-bound, practical, and unencumbered

with rigid rules, formulas, or presumptions. See

Kijowska, 463 F.3d at 586; Karkkainen, 445 F.3d at 291;

Friedrich, 983 F.2d at 1401; Re Bates, No. CA 122/89.

Here, all relevant indicators point to Illinois as JMR’s

habitual residence. We already have discussed JMR’s

perspective; by all accounts and by any measure, Illinois

was his home. That leaves the matter of how to weigh

parental intent. On this issue the district court erred

by heavily weighting the parents’ last shared intent.

That might make sense when both parents have the

right to fix the child’s place of residence, but shared

intent has less salience when only one parent has the

legal right to do so. “[T]he intention or purpose which

has to be taken into account is that of the person or

persons entitled to fix the place of the child’s residence.”

Mozes, 239 F.3d at 1076 (emphasis added) (internal quotation marks omitted). Most often two parents exercise

that authority jointly, but not always. Here, Mary had

sole custody under Irish law from the time of JMR’s
No. 12-2511 39

birth until March 2011; as such, she had the exclusive

right to fix the place of JMR’s residence.

Because Mary had the lawful authority to relocate

without Derek’s consent, JMR’s residence in Illinois

was neither “temporary” in fact nor wrongful as a

matter of law under the Hague Convention. Moreover,

the actual facts of JMR’s life in Orland Park and his thoroughgoing acclimatization there for almost all of his

life suffice to establish the United States as JMR’s

habitual residence notwithstanding Derek’s objections.

Mary and Derek were “estranged essentially from the

outset.” Kijowska, 463 F.3d at 587. Under the circumstances

here, JMR’s acclimatization in Illinois overwhelmingly

outweighs the last shared parental intent. Immediately

prior to March 30, 2011, when the alleged wrongful

retention occurred, JMR’s life was in Illinois, and legitimately so. Based on a commonsense view of all the evidence, we “can say with confidence that the child’s relative attachments to the two countries have changed to

the point where requiring return to [Ireland] would now

be tantamount to taking the child out of the family

and social environment in which its life has developed.”

Mozes, 239 F.3d at 1081 (internal quotation marks omitted).

Accordingly, immediately prior to March 30, 2011, JMR

was habitually resident in Illinois, so sending him to

Ireland was not sending him home. See Holder, 392 F.3d at

1019 (“Simply put, would returning the children to Germany be tantamount to sending them home?”). Mary and

Derek are obviously locked in an international struggle

over JMR’s custody, and the potential for a jurisdictional
40 No. 12-2511

Although the Supreme Court did not decide the matter in 8

Chafin, and the parties have not briefed the question here,

we think it clear that the court has the equitable authority to

issue an order requiring JMR’s return to the United States.

That’s the position of the U.S. Department of State, the designated Central Authority for assisting the implementation of

the Hague Convention in the United States. On its behalf the

United States filed an amicus curiae brief in Chafin explaining

its position that because the court has the inherent equitable

power to order the child’s re-return, an appeal of a return

order under the Hague Convention does not become moot by

the return of the child. See Br. for the U.S. as Amicus Curiae

Supporting Pet’r at 14-18, Chafin v. Chafin, 133 S. Ct. 1017 (2013)

(No. 11-1347), 2012 WL 7069914 at *14-18; see also id. at 15, 2012

WL 7069914 at *15 (“If the court of appeals concluded that

the district court’s return order was erroneous because

the United States was the country of the child’s habitual

residence, it could reverse the district court’s decision and

order respondent to bring the child back to the United States.”).

conflict remains. But the Hague Convention does not

provide a procedure for resolving the disputed jurisdictional and merits claims in this child-custody battle.

Because JMR was habitually resident in Illinois, Mary

did not wrongfully retain him in the United States. The

district court should not have ordered the child returned

to Ireland. For the foregoing reasons, we REVERSE

the district court’s order and REMAND this case for

further proceedings consistent with this opinion.8
No. 12-2511 41

EASTERBROOK, Chief Judge, dubitante. Chafin v. Chafin, 133

S. Ct. 81 (2012), shows that this litigation is not moot,

despite the fact that JMR is in Ireland. Still, I find it hard

to understand why this litigation continues or how

any good can come of it.

The Hague Convention on the Civil Aspects of International Child Abduction specifies where a child is to

stay while the normal legal procedures for determining

ultimate custody run their course. Yet here the order or

decision has been reversed. The courts of Ireland have

reached a final decision and awarded custody to Derek

Redmond. The courts of Illinois also have reached a

final decision and concluded that they have no warrant

to disagree with the Irish decision. Unlike the common

situation in which each parent runs to the jurisdiction he

or she thinks favorable and obtains an ex parte order

of custody, both the Irish and the Illinois proceedings

were adversarial, producing judgments that bind both

parents in personam. This litigation under the Hague

Convention did not even begin until both Ireland and

Illinois had made their decisions about JMR’s custody.

Instead of asking officials in Illinois to send JMR to

Ireland, Derek filed suit under the Hague Convention.

Mary Redmond not only is bound by the Irish judgment awarding custody to Derek but also promised to

obey that judgment. Her promise was essential to obtaining permission to travel with JMR to Illinois, purportedly to tidy up a few personal matters in preparation for a long-term stay in Ireland. Mary broke her

promise and defied the Irish judgment. Ireland considers
42 No. 12-2511

her a fugitive from justice (her contempt of court is obvious), which also makes it impossible to see how she can

realistically hope to obtain lawful custody of JMR in

Illinois. It is not simply that she violated both a valid

judicial order and her own undertaking; it is that she

has revealed that she will violate any order in Derek’s

favor. No legal system can accept that “heads I win, tails

you lose” approach. See Homola v. McNamara, 59 F.3d

647 (7th Cir. 1995). Mary has disqualified herself as a

candidate for favorable treatment by the judiciary of

any state or nation.

Yet the parties have not asked us to dismiss the

federal suit on the ground that the suits in Ireland

and Illinois are over. Nor has Derek invoked the Irish

judgment as a ground of issue or claim preclusion, even

though the Irish court not only awarded Derek joint

custody as a matter of Ireland’s domestic law but also

concluded, under the Hague Convention, that Mary’s

custody of JMR in Illinois was wrongful. The parties’

indifference to principles of preclusion is why my colleagues proceed to render a second decision under the

Hague Convention—one at odds with Ireland’s. This is

within the judicial power, given Chafin, but teeters on

the brink of being an advisory opinion. Under Chafin the

district court has the legal power to direct a parent to

return a child to the United States (see slip op. 40 n.8),

but given the Irish judgment—whose validity the

parties do not question—it would be an abuse of discretion to issue such an order to Derek.

That’s not the only problem with this litigation. My

colleagues discuss at length where JMR was “habitually
No. 12-2511 43

resident” when Mary violated the Irish judgment and

retained JMR in Illinois. The premise of this discussion

is that JMR was lawfully present in Illinois, in

Mary’s custody, beginning in November 2007, when she

unilaterally removed JMR from Ireland. JMR’s presence

in Illinois was lawful, and therefore counts toward establishing “habitual residence”, because under Irish law

Derek, as an unmarried father, had no right to control

his child’s residence. Derek did not obtain parental

rights, as a matter of Irish law, until February 2011, when

an Irish court granted his petition for guardianship

and joint custody of JMR.

This is right from the perspective of Ireland. Is it right

from the perspective of Illinois too? What happens to

the “habitual residence” issue when the jurisdiction in

which the child is physically present does not view a

change of residence as valid?

That question potentially matters because, although

Ireland treats unmarried fathers as having no custodial

rights, Illinois has a different approach. JMR was born

in Illinois, and Derek acknowledged being the father.

His name is on JMR’s birth certificate. Under Illinois

law, an acknowledged but unmarried father has some

custodial rights, which go with obligations to support

the child. 750 ILCS §45/14; see also slip op. 19 n.4. I do not

want to resolve any issue of Illinois law (my colleagues

correctly state that rights under the Hague Convention

are a matter of federal law), but Illinois could well

deem Mary’s action in 2007 to have been a violation of

Derek’s rights—as Illinois understands those rights,
44 No. 12-2511

though not as Ireland understands them. And if Illinois

would deem JMR’s presence in Illinois to be unlawful,

how can the time he spent in Illinois count toward acquiring “habitual residence” in Illinois?

My colleagues recognize that time in Illinois would

not count toward habitual residence if Mary’s unilateral

removal of JMR from Derek’s custody had violated

Irish law. Slip op. 30–31, citing Kijowska v. Haines, 463 F.3d

583, 587 (7th Cir. 2006). So why would time in Illinois

count toward habitual residence if Mary’s unilateral

removal of JMR from Derek’s custody violated Illinois

law? My colleagues do not address that question—nor

did the parties, though we issued an order after oral

argument directing them to do so. Perhaps they misunderstood the question. But the result is an opinion

that discusses a subject that may matter to other cases

(though likely not to this one) without considering

a potentially vital issue.

I am not sure how this issue should be resolved, and

I am content to let it pass because nothing we say here

is likely to affect JMR’s ultimate placement. The courts

of Ireland and Illinois have made their decisions in adversarial litigation. It is time for this federal overlay

to end and the subject be returned to the domesticrelations apparatus of Illinois and Ireland, where

it should have been all along.

7-25-13