Case Update (30 April 2024): Baz v. Patterson, parental agreement as to habitual residence is one factor, and is not alone determinative
The U.S. Court of Appeals for the 7th Circuit affirmed a district court order returning a minor child from Illinois to Germany. The case presents an interesting issue, which international family law practitioners encounter often. Many lawyers, when drafting a parenting agreement, will include a provision that designates a country as the child’s “habitual residence.” The salient facts can be found in this blog’s summary of the December 2023 district court return order.
While the Father argued, on appeal, that “a parental stipulation as to their child’s future habitual residence conclusively establishes residence”, the 7th Circuit disagreed and found it to be “simply a factor (albeit a powerful one) for the totality-of-the-circumstances test”. “Even before Monasky, we had rejected the view that a parental agreement about a child’s future habitual residence should be given decisive effect.” The majority also stressed that existing caselaw affirms that an agreement cannot bind third parties, including a court. In the dissenting opinion, the court focused on giving legal effect to parental agreements, short of some compelling reason.
The opinion itself presents some interesting commentary that, in the end, may simply be a red herring. In the opinion, the 7th Circuit stated that the Convention’s premise is best served “when custody decisions are made in the child’s country of ‘habitual residence’”. This language, while routinely cited by courts in U.S. Abduction Convention cases, is misleading. The Hague Child Protection Convention, not the Abduction Convention, is the international convention that addresses jurisdiction over where a custody lawsuit can be filed. While that Convention uses the term “habitual residence”, the U.S. has not ratified this Convention, and U.S. custody jurisdiction is and remains based on the child’s “home state” pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act, which is unequivocally different from “habitual residence.” Custody jurisdiction is subject matter jurisdiction, and one cannot consent to, or agree to, subject matter jurisdiction – it either exists or it does not. If parents incorporate language into their parenting agreement that appears to designate a particular location as the appropriate forum to litigate custody, this is traditionally considered not enforceable, pursuant to the UCCJEA, to designate the venue for a custody suit.
Further germane to this case is the parental agreement that Illinois would have continuing exclusive jurisdiction to modify the Illinois custody order. While the parents agreed to this, this did not need to be agreed to. Jurisdiction to modify a custody order exists by statute in the UCCJEA, and their agreement was immaterial to whether the Illinois court actually had jurisdiction or not to modify the custody order.
Again, all of this may be a red herring. The Abduction Convention focuses on habitual residence, which is not the legal basis for custody jurisdiction in the United States. All of this is separate to the legal pre-requisite to establish custody jurisdiction in Germany, which is a matter of German domestic law. It is entirely possible that, in these cross-border custody disputes, custody jurisdiction may shift, even if unintentionally, or that more than one country can and does have jurisdiction pursuant to its own domestic laws, leading to simultaneous custody lawsuits and competing custody orders, all of which the Hague Child Protection Convention aims to prevent.
Update as of October 18, 2024: The Respondent Father has filed a petition for writ of certiorari to the U.S. Supreme Court. The docket, and all filings, may be accessed here.
