Case Update (20 Dec 2021): Chigariro v. Gessen; habitual residence and understanding when countries are treaty partners under the Hague Abduction Convention

The U.S. District Court for the District of Massachusetts denied a petitioner's request to return her children to Zimbabwe, after concluding that Russia, and not Zimbabwe, was the child's habitual residence.

The court gave an explanation of when the Hague Abduction Convention is in place between two countries. It's explanation was a bit incomplete. The court said that the treaty is only in force when both states have acceded to the treaty and then formally accept each other as treaty partners. In reality, a country that was a member of the Hague Conference on Private International Law in 1981, when the treaty was concluded, would not accede to the treaty. It would ratify the treaty. If another country then ratifies the treaty, the ratifying countries are automatically treaty partners. Each Hague Convention is a little different in how countries become treaty partners. The U.S. actually ratified the treaty in 1988. Zimbabwe, not having been a member of the Hague Conference in 1981 (and still is not), acceded to the treaty. The U.S. accepted its accession in 1995. This is relevant in this case because the only options for the child's habitual residence were Zimbabwe or Russia. Russia acceded to the treaty (not becoming a Hague Conference member until 2001), and the U.S. has, to date, chosen not to accept Russia's accession. If Russia is the child's habitual residence, the treaty is not applicable.

In applying the Monasky totality-of-the-circumstances standard, the court concluded that Russia was the child's habitual residence. During the child's first 3 years of life, Zimbabwe was. During this time, the child's father lived in Russia for work. The child visited the father frequently, and in 2016, the family decided that the child and mother would relocate to Russia. The parents wished to reconcile and conceive a child using surrogacy, which was impossible in Zimbabwe. The parents disagree, however, as to their family's long term plans. The court believed the father's narrative, and felt that the facts surrounding the child's three years living in Russia made Russia his habitual residence. He attended school, had doctor visits, was proficient in Russian, had social and extra curricular activities, played sports, took music lessons, attended play dates, and went on excursions. He had a Russian live-in nanny, and the family spent thousands of dollars renovating their Moscow apartment to live in. In January 2019, the parents separated, but maintained separate residences in Moscow. Both parents engaged in substantial business in Russia. The family maintained some ties to Zimbabwe. The child continued to visit Zimbabwe occasionally, sometimes for months at a time. The family maintained businesses and property there, and, depending on the length of the child's visit, he attended school in Zimbabwe. Nonetheless, the facts persuaded this judge that Russia was the child's habitual residence at the time of the father's removal of the child from Russia to the United States.