Case Update (13 Dec 2023): Baz v. Patterson; parents’ agreement to fix child’s habitual residence in USA is only one factor in a habitual residence analysis

The parties are unmarried parents to one child, born in Illinois in 2017. “Shortly after, the parties separated, and lived on different floors of their home with [the child] pursuant to an Illinois state court custody order.” After “several years” of litigation in the Circuit Court of Cook County, Illinois, “[o]n August 5, 2019, the court allowed Baz to relocate with [the child] to Wisconsin for her pre-doctoral internship.” The court then subsequently, on September 2, 2020, allowed her to relocate with the child to Minnesota for her post-doctoral fellowship. “Baz completed her post-doctoral fellowship in 2021, and her student visa was set to expire in May 2022.” Thereafter, she sought permission from the Illinois court to relocate the child to Germany. “The court granted Baz’s request over Patterson’s objection and the recommendation of the guardian ad litem…” The May 23, 2022 Illinois Allocation Judgment provided that Father would have parenting time with the child “during summer and other school breaks, and could visit [the child] in Germany, but otherwise [the child] would spend his time with Baz.” “The parents also agreed that, specifically with respect to the Hague Convention, ‘[t]he ‘Habitual Residence’ of the minor child is the United States of America, specifically the County of Cook, State of Illinois, United States of America,’ and that they had not ‘consented, or acquiesced to the permanent removal of the child to or retention in any country other than the United States of America.’” The Allocation Judgment also reaffirmed Illinois’ exclusive and continuing jurisdiction over the case to modify the order. The Allocation Judgment did not provide an end date, but “Baz’s move to Germany was intended to be temporary while she sought to return to the United States…” The court noted the child’s schooling in Germany, fluency in multiple languages, and participation in certain swim classes while in Germany. The court also noted the child’s pediatrician, dentist, and therapist were in Germany and appointments were conducted in German.

At the conclusion of Respondent’s parenting time on January 5, 2023, Respondent did not return the child’s U.S. passport to the Petitioner, who, in response, sought the help of German police, and then filed a legal case in Germany “seeking an order preventing [the child] from being removed from Germany and a custody order.” The German court entered interim orders, preventing the child’s removal. Respondent filed an Illinois matter in March 2023, as an emergency motion to modify parenting time. In May 2023, the parties reached a settlement in the German proceedings, and memorialized the terms in a Consent Order, which confirmed that the child “is currently living in Germany with the Child’s Mother” and that the Respondent “is authorized and required to have parenting time or contact with [the child] during the period of 06/19/2023 through 07/31/2023” and that he “commits himself to return [the child] to Germany at the end of his parenting time.” “The parties otherwise agreed ‘that the court settlement from the Circuit Court of Cook County, Illinois, from 05/23/2022 should continue to apply’…” The Illinois court was notified of the Consent Order. Respondent apparently “then immediately claimed to the guardian ad litem … that he had agreed to the Consent Order under duress.” He then filed another emergency motion in Illinois. Because of this, Petitioner believed that Respondent would not return the child at the conclusion of the summer 2023 parenting time, so she did not send the child to the USA as required by the Consent Order and Allocation Judgment. The Illinois court ordered the Petitioner to turn over the child immediately. Respondent traveled to Germany and took the child from school. The staff called the police, who stopped Father and child at the airport, but ultimately allowed him to leave per the terms in the Consent Order. On July 7, 2023, Respondent filed an emergency petition in Illinois for the child to be returned to Chicago and requesting sole custody. About one week later, Petitioner filed this request to return the child pursuant to the Hague Abduction Convention.

One of the key issues before the court relates to the child’s habitual residence. “Here, certain facts weigh against Baz. Most notably, the parties explicitly agreed in the May 23, 2022, Allocation Judgment that [the child’s] habitual residence … was the United States of America.” This is complicated by the fact that the parties “appeared to reaffirm” the child’s U.S. residence when they reiterated, in their Consent Order in May 2023, that provisions of the Allocation Judgment remained in place, except for certain carveouts, which appears to reaffirm their agreement that the U.S. remained the child’s habitual residence as of that date, too. The court noted, however, that in Monasky, “the Supreme Court rejected the view that the parties’ shared intentions control the habitual-residence inquiry….” It is just one factor. The Court must consider the totality of the circumstances in determining the child’s habitual residence as of July 2023 (the date of retention). Here, the court found that the evidence of the child’s acclimation in Germany outweighs any agreement. The Petitioner proved her prima facie case, and the child was ultimately ordered returned to Germany forthwith.

On January 4, 2024, the U.S. Court of Appeals for the Seventh Circuit granted the father’s motion for an stay, pending appeal. His appellate brief is due on January 26th with Mother’s brief due on February 26th, and father’s reply brief due on March 4th.