Home Sweet Home? Determining Habitual Residence Within the Meaning of the Hague Convention

Abstract

In becoming a signatory to The Hague Convention on International Child Abduction, the United States agreed to expeditiously return all internationally abducted children to the country of their habitual residence, such that that nation may determine the merits of any underlying custody disputes. The Convention failed, however, to instruct American courts as to how to determine a child’s habitual residence. This has resulted in a split among circuits as to whether habitual residence should be determined using objective evidence of the child’s perspective, subjective evidence of parental intent, or some combination. In 2017, the Eighth Circuit held in Cohen v. Cohen that a child’s habitual residence should be determined according to the child’s perspective with some, albeit lesser, deference given to parental intent. This Comment argues that American courts should adopt a uniform approach to determining a child’s habitual residence by examining objective, child-centered evidence regarding habitual residency.