Derek Redmond v. Mary Redmond

Citations: 724 F.3d 729; 2013 WL 3821595; 2013 U.S. App. LEXIS 15120Docket: 12-2511

Court: Court of Appeals for the Seventh Circuit; July 25, 2013; Federal Appellate Court

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Derek Redmond and Mary Redmond, who had been in a long-term relationship but were never married, had a son, JMR, born in Illinois. They initially agreed to raise JMR in Ireland but faced relationship issues after returning to Ireland with him. In November 2007, Mary moved back to Illinois with JMR without Derek's consent. Under the Hague Convention, Derek could have sought the return of JMR due to wrongful retention, but he lacked recognized custody rights under Irish law as an unmarried father. After a lengthy legal battle, an Irish court granted Derek guardianship and joint custody of JMR in February 2011, with conditions for Mary's return to Ireland. Mary, however, did not honor her promise to return JMR and remained in Illinois. Derek subsequently filed a Hague Convention petition, claiming wrongful retention. The district court ruled that JMR's habitual residence was Ireland based on the parents' initial agreement, despite his life in the U.S. The court concluded that Mary’s unilateral move did not change JMR’s habitual residence and ordered his return to Ireland. Mary appealed, and the appellate court reversed the decision, stating that the determination of habitual residence should be a practical, flexible inquiry, and the parents' initial intent was not dispositive of JMR's habitual residence in 2011.

Mary had the exclusive right to determine her son JMR's residence when she moved with him to Illinois in November 2007, making his removal from Ireland lawful under the Convention. By March 2011, JMR had become habitually resident in the U.S., and therefore, the district court erred in ordering his return to Ireland. 

Mary, a dual citizen of the U.S. and Ireland, had been living in Ireland since 1996 and had an intimate relationship with Derek, an Irish citizen. They agreed to have their son, JMR, born in the U.S., which occurred on March 28, 2007. Derek acknowledged paternity at the birth, granting him rights under Illinois law that do not exist under Irish law for unmarried fathers. 

After returning to Ireland with JMR shortly after his birth, their relationship deteriorated, prompting Mary to move back to Illinois in November 2007. In early 2008, while visiting Ireland, she encountered legal actions initiated by Derek, who sought custody and guardianship rights. An Irish court initially issued an ex parte order preventing their departure, but this was later vacated. Over the next three years, Mary attended multiple hearings related to Derek's custody petition, during which jurisdictional disputes arose, including a critical ruling that ultimately recognized the Irish court's jurisdiction over Derek's application. Mary appealed this jurisdiction decision.

On November 18, 2008, the Irish High Court ruled against Mary, who then sought to permanently relocate with her son JMR to the United States. Following her application, both Mary and Derek submitted competing petitions in Ireland. A hearing on July 2, 2009, resulted in an order for an independent psychiatric assessment of JMR, which determined he was well-adjusted but would benefit from living near both parents. The report recommended granting Derek guardianship and custody rights, with JMR residing in Ireland to facilitate regular access for Derek. During this time, JMR lived with Mary in Orland Park, Illinois, attending daycare, preschool, and forming a social network, while also making periodic trips to Ireland for court matters. 

On February 10, 2011, the Irish court denied Mary's relocation application, granting Derek joint custody and requiring JMR to live in Ireland and attend a local school. The court mandated that both parents share custody equally, with conditions for Mary's return to Illinois, including a promise not to seek custody elsewhere or relocate JMR. Despite these undertakings, Mary returned to Illinois with JMR on February 15, 2011, and filed for sole custody on March 23, claiming abuse and misconduct by Derek. She failed to comply with the court's March 30 deadline to move to Ireland and subsequently ignored a May 10, 2011, order compelling her to bring JMR to Ireland by June 30, which noted that her actions were in violation of the Hague Convention.

Derek filed a motion to dismiss Mary’s sole-custody petition in Cook County Circuit Court, asserting lack of jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act, which restricts Illinois courts from hearing custody cases governed by valid orders from other jurisdictions. After consulting with the Irish court, the Illinois judge determined that: 1) Derek had properly invoked Irish jurisdiction; 2) the Irish custody decree met the Act's requirements; and 3) it respected fundamental human rights principles. Consequently, on July 27, 2011, the Illinois court deferred to the Irish court's jurisdiction and dismissed Mary’s petition. 

Rather than registering the Irish decree in Illinois for enforcement, Derek filed a Hague Convention petition on December 1, 2011, requesting the return of JMR to Ireland, arguing that Mary wrongfully retained JMR in the U.S. The district court held a hearing and granted Derek's petition, concluding that JMR's habitual residence was Ireland as of March 30, 2011. JMR was ordered to be returned to Ireland by July 9, 2012, along with Mary. Mary’s appeal against the return order was denied, and she sought an emergency stay, which was also refused. JMR was returned to Ireland as mandated.

The court then raised a jurisdictional mootness issue regarding Mary’s appeal, questioning whether it remained a live dispute since JMR had been returned to Ireland, potentially leaving no effective remedy for Mary. This concern prompted supplemental briefings, especially in light of the Supreme Court's ruling in Chafin v. Chafin, which held that appeals from adverse return orders under the Hague Convention are not rendered moot by the child's return. The Chafin case parallels the present situation, with similar disputes over the child's habitual residence.

The district court ruled in favor of the mother, ordering the return of the child to Scotland, which took place the following day. The Supreme Court addressed whether an appeal of a Hague Convention order becomes moot once the child is returned. The Court determined that a case becomes moot only if it is impossible to provide any effective relief to the prevailing party. It concluded that the district court retains authority to issue a re-return order based on the Hague Convention or equitable principles, and the feasibility of enforcing such an order does not affect jurisdiction. The Court emphasized that, absent extraordinary circumstances preventing the child's return, the potential for compliance with a re-return order is sufficient to maintain jurisdiction.

The Court also examined concerns regarding an Illinois state court's deferral to an Irish court in the custody matter, questioning whether a reversal would lead to the child’s immediate return to Ireland. The Illinois court had dismissed a custody petition for lack of jurisdiction but did not enforce the Irish court's order. This allows the father to seek enforcement of the Irish order in Illinois, although he has not yet done so. The mother's motion for reconsideration of the jurisdiction ruling is currently stayed, and if denied, she may appeal. The Court concluded that the Illinois court’s jurisdictional ruling does not render the appeal moot, highlighting that the case remains active and contested, particularly concerning the child's habitual residence. The mother retains a legitimate interest in her child's return, sufficiently grounding the case in reality and preventing mootness.

JMR's potential wrongful retention in the U.S. is analyzed under the Hague Convention, established in 1980 to address international child abductions amid domestic disputes. The Convention's primary goal is to ensure the swift return of children wrongfully removed or retained across borders, requiring signatory States to implement remedies for such violations. A child is deemed 'wrongfully' removed or retained if it violates custody rights recognized under the law of the State where the child was habitually resident prior to the removal or retention. Article 3 outlines that wrongful removal occurs when custody rights are breached and those rights were actively exercised or would have been if not for the wrongful act.

For the Convention to be applicable, the child must have been habitually resident in a Contracting State before the breach. Crucially, Hague Convention cases are not about custody determinations but are provisional remedies focused on whether wrongful removal or retention has occurred. Key inquiries include: 1) the timing of the removal or retention, 2) the child's habitual residence before the incident, 3) whether the removal breached the petitioning parent's custody rights, and 4) whether those rights were being exercised at the time.

In this instance, the case is not one of wrongful removal since Derek does not contest that Mary’s relocation with JMR from Ireland to Illinois in November 2007 was wrongful under the Hague Convention. Irish law designates the mother as the sole guardian of an illegitimate child, denying presumptive parental rights to unmarried fathers. The relevant 'rights of custody' encompass the care and residence of the child, established through legal frameworks, judicial decisions, or enforceable agreements in the child's habitual residence jurisdiction.

In November 2007, Mary relocated with JMR to the United States, during which Derek lacked any custody rights under Irish law, as he was not recognized as JMR’s legal guardian and could not object to the move. Consequently, Derek did not contest the legality of Mary’s actions. Assuming Ireland was JMR’s habitual residence at that time, Mary’s conduct was not deemed wrongful under the Hague Convention, leading her to argue that the analysis should focus solely on the date of removal. However, the court maintains that it must identify the child's habitual residence immediately before any alleged wrongful removal or retention. The distinction between wrongful removals and retentions is crucial, particularly as retentions often arise from temporary agreements to return the child, which can later evolve into disputes over custody. Derek alleges that Mary wrongfully retained JMR in the United States after March 30, 2011, by failing to return him in violation of an Irish custody order. This interpretation of the Hague Convention is unconventional and raises questions about the scope of the treaty, which is primarily designed to address abduction rather than custody disputes. The Convention aims to restore the status quo prior to wrongful actions and prevent international forum shopping, rather than adjudicate custody rights. While Derek’s custody rights have been recognized in Ireland, the court expresses skepticism that Mary’s noncompliance with the Irish order constitutes a 'retention' under the Convention’s framework.

Derek’s petition raises a critical legal question regarding whether a change in one parent's custody rights can render the other parent's ongoing physical custody a wrongful 'retention' under the Hague Convention. Specifically, it examines if a parent who physically retains a child, despite promising under oath to comply with a new custody order favoring the other parent, is committing an act of wrongful retention or abduction. Supplemental briefings requested on this issue did not clarify the parties' positions, indicating this is likely a novel question in this circuit and others.

The Eighth Circuit case of Barzilay is cited as close to addressing this issue. In Barzilay, the parents lived in Missouri, divorced, and the father returned to Israel. Following a court ruling in Israel that designated the children’s habitual residence as Israel, the mother refused to comply and return the children, which the father claimed was a wrongful retention. The Eighth Circuit affirmed that Missouri was the children's habitual residence, rejecting the father's reliance on the Israeli court's consent judgment as mere custody decrees rather than valid stipulations of habitual residence. The court criticized the father's approach as an attempt to enforce custody rights through the Hague Convention, which undermines its purpose.

The Fourth Circuit case of White also provides insight. In White, a Swiss couple with a custody order moved to the United States, leading the father to petition for the child's return under the Hague Convention after the Swiss court modified custody rights. Under ICARA, U.S. courts must respect Hague Convention determinations from other American courts rendered under the Convention; however, it remains uncertain whether res judicata principles can be applied to foreign Hague Convention determinations.

Applying the general preclusion doctrine to Hague Convention determinations by foreign courts introduces complex comity issues, particularly as the treaty aims to prevent international forum shopping. Derek has not asserted a preclusion argument or relied on the Irish court’s finding that Mary violated the Hague Convention by retaining JMR in Illinois, resulting in his forfeiture of this issue. The district court found that Mary’s removal of the child from Switzerland was not wrongful due to her sole custody rights, which the Fourth Circuit affirmed, noting the father's visitation rights were insufficient for a return remedy under the Convention. The Fourth Circuit also determined that a subsequent Swiss custody order did not retroactively render the removal wrongful under the Convention, emphasizing that adjustments to custody after a removal or retention do not typically affect rights under Article 3. The Hague Convention primarily addresses international child abduction, not the recognition of foreign custody orders, which falls under the Uniform Child-Custody Jurisdiction and Enforcement Act. Derek's approach sought to enforce Irish custody rights through a Hague petition, mischaracterizing Mary’s non-compliance as wrongful retention. The concepts of removal and retention hinge on the child's habitual residence, as wrongful removal can only occur if the child is taken from that residence. The Hague Convention's intent is to keep children in their habitual residence while custody disputes are resolved, allowing a left-behind parent to seek the return remedy to restore the status quo, not to alter a child's residential status based on favorable legal developments.

A petitioner must establish that a child is "habitually resident" in a Hague Convention signatory State and has been wrongfully removed or retained in another State to seek protection under the Convention. The determination of habitual residence is crucial, as it dictates the viability of a Hague Convention claim; if a child has not been moved from their habitual residence, the left-behind parent lacks grounds for a return petition. The review of habitual residence involves a mixed standard of law and fact, with factual findings reviewed for clear error and legal issues reviewed de novo. The Convention does not define "habitual residence," leading courts to avoid rigid doctrines and assess each case based on its unique facts. The interpretation should align with the everyday meaning of the term to prevent forum shopping, ensuring that the determination is made by considering all relevant circumstances.

Determining a child's habitual residence involves evaluating the factual circumstances rather than legal status. The analysis of custody rights follows the establishment of habitual residence, as mischaracterizing this as a legal issue would misinterpret the Convention's purpose. As of March 30, 2011, JMR's habitual residence was Illinois, where he was born and had lived for nearly four years, with only brief visits to Ireland. His substantial time in Illinois—approximately 80% of his life—alongside his engagement in local activities, relationships, and care from local healthcare providers, supports this conclusion. Although the duration of residence is not solely determinative, JMR's ties to Illinois were significant compared to his tenuous connections to Ireland, where he spent less than 20% of his life, primarily during infancy and for court proceedings. The district court initially acknowledged JMR's established life in Illinois but deemed it temporary based on prior parental intent to raise him in Ireland. However, Mary’s unilateral relocation with JMR to Illinois in late 2007 effectively altered this intent, which the court chose to disregard.

The court determined that Mary was aware that JMR's stay in Illinois hinged on the outcome of Irish custody proceedings, rendering her aspirations regarding JMR’s life insufficient to establish his habitual residence in the U.S. The district court's focus on the parents' last shared intent was deemed misplaced, although it is commonly an important factor in Hague Convention cases concerning habitual residence. However, habitual residence analysis is inherently flexible and considers the unique circumstances of each case, rather than applying a uniform test based solely on parental intent. Different circuits interpret the significance of parental intent in habitual residence questions variably. The Sixth Circuit, in its early interpretation of the Hague Convention, emphasized focusing on the child's perspective and past experiences rather than the parents' future intentions. In Friedrich, the child had habitually resided in Germany prior to being moved to the U.S. without the father's consent, leading to the rejection of the mother's claim based on her intentions for the child’s future. Other circuits, namely the Third and Eighth, generally align with this child-centric approach, considering a child's habitual residence based on their physical presence and acclimatization, while still recognizing parental intent. Conversely, the Ninth Circuit prioritizes the parents' perspective, associating habitual residence with the settled purpose to reside in a specific location.

The habitual residence of a child is determined primarily by the shared intention of the parents regarding the child's place of residence, rather than the child's own purpose. If parents jointly intend to raise their child in a particular location and reside there, that location becomes the child's habitual residence. A change in habitual residence can occur only with mutual parental intent to abandon the current residence, as unilateral intent from one parent is insufficient. Although the Ninth Circuit acknowledges the child's perspective, it asserts that without settled parental intent, courts should hesitate to infer that an earlier habitual residence has been abandoned. A change in habitual residence should be inferred only when objective facts clearly indicate that the child's ties to a new location have significantly altered, such that returning to the original location would disrupt the child's established social environment. 

Most circuits have adopted the Ninth Circuit's “Mozes framework,” which emphasizes parental intent while also recognizing the child’s acclimatization to a new country. The Third, Sixth, and Eighth Circuits, while focusing on the child's perspective, also consider parental intent in determining habitual residence. Cases from these circuits have highlighted the importance of analyzing both the child’s circumstances in a location and the parents’ shared intentions. Overall, while there is a division between circuits that focus on parental intent and those that prioritize the child's perspective, many circuits incorporate aspects of both approaches, recognizing the complexities of family dynamics and children's lives.

All circuits, including the one in question, analyze both parental intent and the child's acclimatization in determining habitual residence, differing primarily in the emphasis placed on each factor when evidence conflicts. The district court incorrectly prioritized the parents' last shared intent over JMR's acclimatization, which is crucial since the inquiry should remain flexible and fact-specific, as underscored in case law. While shared parental intent serves as a starting point, it is less relevant when one parent holds sole legal authority over the child's residence, as was the case here with Mary having sole custody under Irish law. Given JMR’s strong acclimatization to Illinois, evidenced by his experiences there, the court determined that Illinois is JMR’s habitual residence, regardless of Derek's objections. The court concluded that Mary's lawful authority to relocate JMR without Derek's consent rendered the child's residence in Illinois neither temporary nor wrongful under the Hague Convention, particularly since the parents were essentially estranged from the outset.

JMR's residency in Illinois prior to March 30, 2011, significantly outweighs the previous parental intent regarding his custody. Evidence indicates that JMR was legitimately living in Illinois, and requiring his return to Ireland would disrupt the social and familial environment he has known. Consequently, he was deemed habitually resident in Illinois, meaning his return to Ireland would not be a return home. The case reflects a conflict between Mary and Derek over JMR’s custody, highlighting the lack of procedures under the Hague Convention to resolve jurisdictional disputes in such custody battles. The district court's order for JMR's return to Ireland was deemed erroneous, as Mary did not wrongfully retain him in the U.S. The appellate court reversed the district court's decision and remanded the case for further proceedings. Although the Supreme Court case Chafin did not specifically address the issue, it clarified that courts possess the equitable authority to order a child’s return to their habitual residence, which in this case is the United States. The litigation continues despite JMR being in Ireland, as both Irish and Illinois courts have made binding decisions regarding custody.

Litigation under the Hague Convention initiated after both Ireland and Illinois made custody determinations regarding JMR. Derek opted to file a suit instead of seeking JMR's return to Ireland through Illinois officials. Mary Redmond is bound by the Irish court's custody award to Derek and had promised to comply with this ruling to gain permission to travel with JMR to Illinois. However, Mary violated this promise, leading Ireland to regard her as a fugitive from justice, undermining her chances of obtaining lawful custody in Illinois. Her disregard for legal orders raises questions about her credibility in seeking favorable treatment from any judiciary.

The litigation has persisted despite the Irish court's decision granting Derek joint custody and declaring Mary's custody in Illinois wrongful under the Hague Convention. The parties involved have not sought dismissal of the federal suit or invoked principles of issue or claim preclusion, leading to conflicting decisions under the Hague Convention. While the district court has the authority to direct the return of a child, issuing such an order to Derek would be an abuse of discretion given the standing Irish judgment.

The discussion of JMR's "habitual residence" centers on the legality of his presence in Illinois following Mary’s unilateral removal from Ireland in November 2007. Under Irish law, Derek had no custodial rights until granted guardianship and joint custody in February 2011, raising questions about the validity of the residence change from both Ireland's and Illinois's legal perspectives. While Ireland does not recognize custodial rights for unmarried fathers, Illinois law affords some rights to acknowledged but unmarried fathers like Derek, who is listed on JMR's birth certificate.

The author expresses concern regarding the interpretation of Illinois law in relation to the Hague Convention, emphasizing that rights under the Convention are federal, yet Illinois may view Mary’s 2007 actions as a violation of Derek’s rights based on its own legal understanding, which differs from Ireland's. The author questions how JMR's time spent in Illinois could be considered as contributing to "habitual residence" if Mary’s removal of him from Derek’s custody was unlawful under Illinois law, noting that similar reasoning applies if it were unlawful under Irish law. The author critiques the lack of discussion on this critical issue, suggesting that it remains unresolved and may not impact JMR’s future placement. He advocates for the matter to revert to the jurisdiction of Illinois and Ireland’s domestic relations systems, indicating that the federal court's involvement should conclude.