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International Custody Dispute Over Infant Children

Posted on Friday, May 18, 2018

 The International Child Abduction Remedies Act and the Hague Convention are both in place to ensure that one parent is unable to abduct the children from the other parent, alienating them from their children. Ahmed v Ahmed, 867 F3d 682 (2017), is a case looking at both of these laws. The father seeks to have his children returned to the United Kingdom from the United States. For the father to obtain a remedy both countries must be part of the Hague Convention–and they are. Then under the Hague Convention there are two methods to determine the child’s proper habitual residence.

The preferred method by the court is the “acclimatization standard.” This is where the aspects of the child’s life are considered to attempt to determine whether the child would consider themselves acclimated to one place over another. The first thing to analyze under this standard is whether the child is old enough to form meaningful relationships and is actually capable of acclimating to a certain place over another. Other factors to consider under the acclimatization standard is the period a child spends in a certain location, academic activities, social engagements, sports programs, etc.. This standard will not always work because, as alluded to before, some children are not old enough to have these meaningful relationships. When the child is at such a young age, the court will then analyze the second test, the parents’ shared intent. To determine the parents’ shared intent, it must be clear what the intent actually is. The reason these cases are generally in the court is because the parent’s intentions for the child differs. In Ahmed, the United States District Court denied the father’s request to have the children returned to the United Kingdom because he failed to meet his burden of proof showing that either the children were acclimated to the United Kingdom, or that the intent of both parents was that the children move to the United Kingdom. The district court did not analyze the intent of the parents, but only the acclimatization standard. In analyzing this standard, the district court focused mainly on the length that the children had stayed in a single location and stated that the seven to eight weeks in the United Kingdom was not sufficient time to have the children returned there.

On appeal to the Sixth Circuit, the father argued that the intent of the parents should have been analyzed when clearly the infant children were not old enough to be acclimated to one location over another. The Sixth Circuit went through the analysis of the parents’ shared intent for the children. The father argued that the married couple had agreed in 2013 to move to the United Kingdom together before the children were conceived. The marriage then fell apart in February 2014 and at this point the intent was not clear. The Sixth Circuit concluded that because the mother had her valuable possessions in the United States and, was still maintaining her optometrist license in the United States, she did not intend to stay in the United Kingdom and that the father failed to meet his burden of proof that the United Kingdom was the children’s habitual residence. The Sixth Circuit, thus, affirmed the district court.

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