Case Update (17 April 2026): Kalff v. Fennell; mobile child’s habitual residence

The parties are parents to a daughter, now age 5, who was born in Hawai’i during the COVID pandemic (October 2020). The Petitioner Mother is a dual German-American. The Respondent Father is an American, presently residing in Hawai’i with the child. On March 4, 2026, the Petitioner Mother filed a request to return the minor child to Germany pursuant to the Hague Abduction Convention.

The Petitioner, herself, “spent much of her childhood traveling back and forth between Hawai’i and Germany. … her schooling in the United States was not her choice, but rather was borne from her mother’s travels. … [she] attended Maui schools on and off during her middle and high school grades.” The parties met during high school, and began a relationship in 2014. In November 2018, the parties agreed to relocate to Prien Germany, where Petitioner has extended family. The parties “did not share an understanding of whether they would reside in Germany long term.” The Respondent ultimately left in May 2019, and never returned. In late 2019, Petitioner traveled to Hawai’i, continued her relationship with Respondent and got pregnant. She could not travel during her first trimester and then COVID shut down international travel, so the child was born in Hawai’i. In March 2021, the parties traveled to Germany with the child to submit a declaration to establish their parental rights pursuant to German law. They maintained an address in Prien, but shortly thereafter traveled to Sardinia Italy where the Respondent’s family had a vacation property. In May 2021, the parties’ relationship dissolved, and they separated. At some point after separating, the Respondent made plans to return to Hawai’i. Before departing, the parties executed a power of attorney, which ultimately delegated the Respondent’s joint decision making authority to the Petitioner, including the right to determine the child’s place of residence. In February 2022, the parties signed a second POA that evinced the Respondent’s rights to transfer all custodial rights to Petitioner. Between February 2022 through June 2022, the Petitioner and child traveled to French Polynesia. From June 2022 onward, the Petitioner and child returned to Hawai’i. The child was enrolled in school in Hawai’i, attending “regularly from October 24, 2023, until February 2025.” Petitioner maintained registrations for herself and the child in Germany during this time. In August 2024, the Petitioner met her current partner, and became pregnant. In February 2025, the Petitioner traveled to Germany to “resolve custody there”. On March 10, 2025, she initiated custody proceedings in Germany. In June 2025, the Respondent sought emergency ex parte relief in Hawai’i’s courts, and obtained an order to return the child to Hawai’i. The German court “suspended” its proceedings “pending the final decision of the Hawai’i State Court.” Petitioner and her new significant other signed a three month lease to a home in Germany in late 2025, so that Petitioner could have their baby in Germany. The Respondent filed a Hague Abduction return petition in the German courts in September 2025, which was ultimately denied, concluding the Father did not prove that the child was habitually resident in the USA. Choosing not to appeal the German Hague ruling, or pursue the Hawai’i custody proceeding, the Respondent instructed lawyers to withdraw the POA that provided Petitioner with authority to determine the child’s residence. On October 10, 2025, the Petitioner and her new partner gave birth to their child. The court stressed that the new partner had no intention of residing in Germany beyond the birth, and, in particular he shared custody of the child his other child who resided in Maui. In November 2025, the Petitioner traveled to Hawai’i with the parties’ child, and met Respondent at a park to allow him to see the child. At that time, she was served with the Hawai’i custody proceedings, including the ex parte custody order. The Hawai’i courts ultimately concluded it had subject matter jurisdiction to resolve custody, after direct judicial communication with the German courts.

Looking at the threshold question - has the Petitioner Mother proven that Germany was the child’s habitual residence - the district court concluded that she has not. Therefore, it denied her request to return the child to Germany. The court stated that “the habitual residence inquiry is not about what a parent wished for; it is what the child actually experienced.” “The court accepts that [Petitioner] considers herself a German mother, but a child does not inherit her mother’s habitual residence the way she might inherit her mother’s citizenship.” “That [the child’s] history reflects a life shaped by movement, exposure, and close family relationships across borders.” “Within that broader pattern, Hawai’i stands out as the place where [the child]’s life took on the highest degree of continuity.”

Finally, the court found its order, denying the Petitioner’s request to return the child, not inconsistent with the German Hague ruling. It also addrssed the Hawai’i custody case, saying, “[n]othing in this court’s order touches the merits of the underlying custody dispute or interprets any provision of the UCCJEA. The UCCJEA’s ‘home state’ concept and the Hague Convention’s ‘habitual residence’ standard are the distinct legal frameworks with different purposes.“