No full text available

Case Name

Headifen v. Harker 2013 U.S. Dist. LEXIS 80819 (W.D. Tex., 2013)

INCADAT reference

HC/E/US 1265





United States District Court for the Western District of Texas


First Instance

Sparks (United States District Judge)

States involved

Requesting State


Requested State




7 June 2013




Aims of the Convention - Preamble, Arts 1 and 2 | Habitual Residence - Art. 3


Application dismissed

HC article(s) Considered


HC article(s) Relied Upon


Other provisions


Authorities | Cases referred to
England v. England, 234 F.3d 268 (5th Cir. 2000); Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000); Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012); Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010); Gitter v. Gitter, 396 F.3d 124, (2d Cir. 2005); Ruiz v. Tenorio, 392 F.3d 1247, (11th Cir. 2004); In re Ponath, 829 F. Supp. 363, (D. Utah 1993); Adderson v. Adderson (1987) 51 Alta. L.R. 2d 193 (Alberta C.A.).
Published in


INCADAT comment

Aims & Scope of the Convention

Habitual Residence
Habitual Residence


Summary available in EN


The proceedings concerned a child who was born in the United States of America in August 2008 and adopted shortly thereafter. The adoptive parents had married in 2005. The father was a New Zealand national, the mother South African. Both were naturalised citizens of the United States of America.

The family moved to New Zealand on 3 December 2009, the purpose of the move was the subject of dispute between the parents. The parents separated in August 2012 but remained living in New Zealand, with the child splitting her time each week between both parents.

The mother's case was that she, the father and the child would return to Texas in March 2013. The mother had given notice to her employer. On 18 February 2013, the father emailed the mother stating it was his desire that the child stay in New Zealand for her schooling.

On 2 April, the mother emptied joint banks accounts and removed the child to the United States. She had previously arranged for her possessions to be shipped to Texas.

The father filed a return petition on 24 April 2013.


Application dismissed; the removal was not wrongful as the child had never lost her original habitual residence in Texas.


Aims of the Convention - Preamble, Arts 1 and 2

The Court noted that one of the main concerns of the 1980 Hague Child Abduction Convention was to prevent a parent from obtaining sole care and control over a son or daughter in a new jurisdiction. It stated that this was not the situation in the present case; the father was manifestly capable of residing in the United States and exercising joint care over the child as he had lived and worked in the country for twenty-four years previously, and remained an American citizen. There was no reason to believe the father would somehow be at a disadvantage in the courts of Texas.

Habitual Residence - Art. 3

The Court noted that the federal courts of appeals were split as to the proper framework for determining habitual residence. Whilst a child centric approach had been followed by the Third and Sixth Circuits, the majority of circuits (including the Fifth Circuit, in whose jurisdiction the District Court was located) had adopted an approach which started by considering the parents' shared intent or settled purpose regarding the child's residence. Consequently, the first task for the Court was to determine whether the parents had a shared intent to abandon Texas as the child's habitual residence, and, if this was not established, to consider whether objective facts unequivocally showed that New Zealand had nevertheless become the child's habitual residence.

The Court found in the light of the evidence that the parents never had a shared intention to make New Zealand the child's habitual residence. Rather, they had a shared intention, until the father's email of 18 February 2013, to maintain Texas as the child's habitual residence.

The Court further held that the objective facts did not unequivocally indicate that the parent's shared intent to keep the United States as the child's habitual residence was nevertheless supplanted by the practical effects of the child's time in New Zealand. The Court noted, inter alia, that the parents' testimony was conflicting. The nine months the child was cared for by a French au pair was not indicative of integration, and the child's enrolment in pre-school was not unequivocal evidence.

The Court was not persuaded that the mere length of the child's stay in New Zealand (3 ½ years) was dispositive. Referring to Ruiz v. Tenorio, 392 F.3d 1247, (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780], it noted that there was no bright line rule with respect to the length of an absence. The Court accepted that three and a half years was a long time, but held that it was not much greater than the two years and ten months spent in Ruiz, and was far less than the example of fifteen years put forth by the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301]. The Court ruled that the length of time spent in New Zealand, whether taken alone or in conjunction with the limited evidence of acclimatization, failed to indicate unequivocally that the child had established a habitual residence in New Zealand.

The Court accepted that to focus on a young child's experiences would encourage future would-be abductors to seek unilateral custody over a child in another country or to delay returning to the child's original habitual residence as long as possible. It added that the child-centric cases from the Third and Sixth Circuits were factually distinguishable from the present case in important ways.

Author of the summary: Peter McEleavy

INCADAT comment

See also the decision rendered by the Appeal court: Headifen v. Harker (5th Cir. 2013) [INCADAT Reference: HC/E/USf 1268].

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.