Case Update (17 Aug 2026): Giguere v. Tardif; affirmed habitual residence conclusion; concurring opinion that will lead to confusing law
This Hague Abduction Convention case has been featured twice already in this blog. The first was in May 2025, when the Respondent failed to persuade the district court to dismiss the Petitioner’s request to return the children to Quebec. The second was almost one year ago, when the district court ordered the children returned to Quebec, finding that Canada remained the children’s habitual residence (despite the relatively significant amount of time the children had been in Massachusetts as compared to Canada). The Respondent appealed on the issue of “habitual residence.” On August 17, 2026, the First Circuit issued its opinion. As a reminder, the case of Monasky v. Taglieri sets the standard of review on appeal of “habitual residence” to be clear error.
The district court had set the date of wrongful retention as August 28, 2024. This date was the culmination of several months of discussions between the Parties about whether they would be returning to Canada, or not. In or around March 2024, when the Petitioner expressed a desire to return to Canada, the Respondent responded that a return was possible, to be revisited after the summer. On August 28, 2024, the Respondent refused to bring the children to Canada to spend Labor Day weekend with Petitioner, as she had previously agreed. She then changed the locks on the doors of their Massachusetts’ residence. When determining the children’s habitual residence as of August 28, 2024, the Court cited to Monasky v. Taglieri - that both the children’s acclimatization and parental intent are relevant considerations, but no single fact is dispositive across all cases, and the analysis is a fact-driven one where the court looks at the totality-of-the-circumstances.
In making its decision, the district court focused on the fact that the parties had younger children, there was no real shared intent as to the nature of the family’s time in Massachusetts, the family’s E-2 non-immigrant visas, and Petitioner’s job had him in Canada often. The children had the vast majority of their familial ties in Quebec, and their social integration in Massachusetts was limited. On appeal, Respondent argued that the clear error was that the district court did not conduct a totality-of-the-circumstances analysis and focused too heavily on the parents’ intentions. The Court of Appeals was not persuaded by her argument.
The Court of Appeals also affirmed the district court’s findings on each of the Respondent’s argued defenses. There was a bit more focus on acquiescence than the other defenses, discussing it in the framework of a Massachusetts’ custody case that the Petitioner had counterclaimed in. There was some discussion about the concept of waiver - whether the Petitioner’s counterclaim was a waiver of the Petitioner’s right to request a return of their child - but it was found that Respondent didn’t argue waiver. Further, the counterclaim requested the child be relocated to Canada. Here is the problematic part of the waiver-acquiescence discussion in the concurrence. It framed the discussion around the custody case, making an argument that if a non-retaining parent enters into a consent order (but not a counterclaim) in the state family court case, ceding the right to “have jurisdiction for custody proceedings determined under the Hague Convention”, it is a waiver. But, there are significant issues with this statement and the extraneous, potentially unnecessary language in the concurring opinion. This blog urges you to read the Uniform Law Commission’s Commentary distinguishing custody jurisdiction from a request to return a child under the Hague Abduction Convention. The two are different. A Hague Abduction Convention suit does not determine where a custody suit may be filed - it is not a jurisdictional treaty. Furthermore, a parent cannot consent to subject matter jurisdiction in a state court case. Custody jurisdiction is subject matter jurisdiction. Furthermore, and unique to this particular case, Massachusetts is the only state that still uses the old version of the uniform act on custody jurisdiction. So, what might be said for Massachusetts may be different for every other U.S. state in terms of custody jurisdiction. Read the ULC’s commentary. It is really critical to understanding the Hague Abduction Convention and custody jurisdiction in the United States. The concurrence was unnecessary, and instead of adding clarity, may have created potential future confusion.
