Child Abduction

• Author: International Law Group

Yossi Gitter ("Yossi") is an Israeli citizen who moved to the U.S. in 1995. Here he met and, in 1999, married Miriam. Their son, Eden, was born the following year. Miriam is a citizen of both Israel and the U.S. but has spent most of her life in the U.S. Later, Miriam reluctantly agreed to move the family to Israel. In 2002, however, she took Eden to New York and remained in the U.S.

The U.S. has ratified the Hague Convention on the Civil Aspects of International Child Abduction [October 25, 1980, T.I.A.S. No 11670, 1343 U.N.T.S. 89, 51 Fed. Reg. 10,494 (March 26, 1986) (Convention)]. In 2000, the U.S. made the Convention effective as U.S. law by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601 (2000). Both Israel and the U.S. are parties to the Convention.

In 2003, Yossi sought an order pursuant to the Convention and the Act from a New York federal court compelling Miriam to return their son to Israel. The court, however, ruled that Eden had never become "habitually resident" in Israel because Miriam had only conditionally resided there. Yossi appealed. Fashioning a new approach in determining the habitual residence of a child under the Convention, the U.S. Court of Appeals for the Second Circuit remands to the district court for reconsideration of the matter in light of the new standard.

The Convention seeks to protect children from wrongful removal or retention. To invoke its protections, the complainant has to show that respondent has "wrongfully removed" a child from a Member State where he/she is "habitually resident" to another Member State.

Unfortunately, the Convention does not define the phrase "habitually resident." Other Circuits having visited the issue, the Court cites Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). There, the Ninth Circuit recognizes the importance of "intentions" in determining a child's habitual residence. Further, a court must consider to what extent the...