Before he discontinued his excellent New Jersey Family Law Blog, Pieter Droppert published the following article discussing where is the habitual residence of a child under the Hague Convention?:
Thanks to Charles Abut's New Jersey Family Law blog for drawing attention to the informative and well written opinion of Judge Posner in the 7th Circuit Court of Appeals case of Kijowska v. Haines where the question presented is what is the definition of “habitual residence” for the purposes of the Hague Convention? This case is relevant to New Jersey, since many parents are immigrants or nationals of other countries.
The Hague Convention on the Civil Aspects of International Child Abduction gives a parent of a child who has been wrongfully abducted or detained, the right to petition the court in the country where the child has been taken to have the child returned. This convention only applies to countries who are party to it e.g. United States, but not to countries who are not e.g. China.
The Hague Convention requires that custody of a child be determined under the law of the child's place of habitual residence. In this case, a Polish woman had an affair with a U.S. Citizen. After overstaying her student visa, she returned with the baby to Poland. Six months later she came back on a visit to see the father from who she was estranged. However, at the fathers request she was refused entry to the U.S. due to his allegation that she was not intending to return to Poland, and the father was given custody of the parties' infant daughter, based on an ex-parte custody order obtained from an Illinois state court.
The mother then brought suit in federal district court under the Hague Convention for her daughter to be returned to Poland. The father argued that the baby's habitual residence had become the United States and that the mother had illegally abducted her in the first place. However, the district court and the 7th Circuit disagreed finding that just because the daughter was born in the United States did not make it her habitual residence, nor did the prolonged stay with her father mean the daughter had acquired a new habitual residence. Instead, the court held that since the mother was an illegal alien, she had no choice after the child was born but to leave the United States and take the child back to Poland. It was noted that the father made no effort to obtain custody at that time either in the US or Poland. Therefore, Poland became the child's habitual residence and under Polish law, an unwed mother has custody of her child
Since the Hague convention requires custody to be determined under the law of the child's place of habitual residence, the ex-parte Illinois custody order in favor of the father was “irrelevant”. The court affirmed the district judge's order that the parties' twenty one month old daughter be returned to her mother in Poland.
Source: "Where Is The Habitual Residence of a Child Under The Hague Convention?" by Pieter Droppert, posted at the New Jersey Family Law Blog.