International Child Abduction

• Author: International Law Group

Robert Silverman and Julie Hechter met in Israel in 1988 and married in Seattle, Washington, in 1989. They next moved to the U.S. where their two children, Samuel and Jacob, were born. In 1999, the family moved back to Israel. Julie intermittently returned to the U.S. to attend bankruptcy proceedings. The spouses filed a joint U.S. tax return giving a Minnesota address. In June 2000, Julie and the children returned to the U.S. for a summer trip. During that visit, she sued in state court for a legal separation from Robert and for custody of the two children.

Meanwhile in Israel, Robert filed a "Request for Return of Abducted Children" with the National Center for Missing and Exploited Children (NCMEC). He invoked the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670, 19 I.L.M. 1501 (1980)], as implemented in the U.S. by the International Child Abduction Remedies Act (ICARA) [42 U.S.C. Section 11601].

Robert also lodged a Hague Convention petition in a Minnesota federal court. While the state and federal matters were pending, an Israeli court ruled that Israel was the children's "habitual residence" under the Hague Convention. A few months later, the Minnesota state court awarded custody to Julie.

In May 2002, the district court ruled in Julie's favor on Robert's Hague Convention claim, finding that Minnesota was the children's "habitual residence" as defined by Minnesota law. Alternatively, even if Israel were their habitual residence, the gravity of the risk in returning them to Israel brought the matter within the Convention Article 13(b) exception.

Robert duly noted an appeal. The U.S. Court of Appeals for the Eighth Circuit, in an en banc opinion, reverses and remands. In an increasingly international world, according to the Court, parents must be able to determine habitual residence while traveling or visiting other countries. The Court opines not only that habitual residence is a legal determination subject to de novo review, but also that that is the correct policy conclusion under the Convention and ICARA. Article 1 sets forth the goals of the Convention. They are (1) to secure the prompt return of children wrongfully removed to, or retained in, a Contracting State, and (2) to make sure that each Contracting State respects the laws of custody and the access rights of the other state parties. Here, the district court agreed with Julie that she had not taken the children from their "habitual...