Case Update (9 May 2023): Castang v. King; habitual residence is a country, not a parent; returning child in a parent's "custody" is not a custody determination
The U.S. Court of Appeals for the Eleventh Circuit affirmed an order returning a minor child to France. On appeal, the Mother argued two things, neither of which the Eleventh Circuit felt had merit.
The first argument was that the order to return the child was a custody determination that modified an existing French custody order when it said that the "father be allowed to take 'physical custody of the Child' so that he could 'return the Child to France.'" The Eleventh Circuit found that the district court did not exceed its subject matter jurisdiction and did not award custody to the father. "Although the district court's order used the word 'custody' in directing that the father be allowed physical possession of the child to return the child to France, the district court made clear that its order had no effect on the ongoing custodial rights of either parent and that the French court's orders remained in effect."
The second argument, made by the Mother, was that the district court should have found that the child's "habitual residence" was with her, and therefore in whatever country she happened to reside, and not France. She based this argument on the language in the existing French custody order. The existing French custody order granted "joint exercise of parental authority over the child, as well as the habitual residence at the mother's home with a classic right of visit and accommodation for the father..." A subsequent order prohibited the mother from removing the child from France without the father's consent. The Eleventh Circuit, however, much like the district court, found that the mother's argument was "based mostly on semantics." The word "habitual residence" in the French court order was intended to refer to physical custody of the child with her, and not to the Convention's term "habitual residence" (the home country).