Redmond v. Redmond, 12–2511.

Decision Date29 August 2013
Docket NumberNo. 12–2511.,12–2511.
Citation724 F.3d 729
PartiesDerek REDMOND, Petitioner–Appellee, v. Mary REDMOND, Respondent–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

724 F.3d 729

Derek REDMOND, Petitioner–Appellee,
v.
Mary REDMOND, Respondent–Appellant.

No. 12–2511.

United States Court of Appeals,
Seventh Circuit.

Argued Oct. 31, 2012.
Decided July 25, 2013.

Rehearing Denied Aug. 29, 2013.


[724 F.3d 731]


David N. Schaffer (argued), Schaffer Family Law, Ltd., Naperville, IL, for Petitioner–Appellee.

Sarane C. Siewerth (argued), Schiller, Ducanto & Fleck, Chicago, IL, for Respondent–Appellant.


Before EASTERBROOK, Chief Judge, and WILLIAMS and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Mary Redmond left her home in Illinois at age 19 to attend college in Ireland. There she met Derek Redmond, and the two began a romantic relationship. For most of the next 11 years, the couple lived together in Ireland, though they never married; their common last name is a coincidence.

In 2006 Mary became pregnant. She and Derek agreed that the baby would be born in America but raised in Ireland. On March 28, 2007, their son, “JMR,” was born in Illinois. They returned to Ireland with the baby 11 days later, but their relationship soon deteriorated. On November 10, 2007, Mary moved back to Illinois with JMR against Derek's wishes. The child was not quite eight months old.

Ordinarily a parent in Derek's position might have recourse to the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, which requires signatories to promptly return children to the country of their habitual residence when they are “wrongfully removed to or retained in” another country in breach of the custody rights of the left-behind parent. Hague Convention art. 3, supra, T.I.A.S. No. 11670. The catch for Derek was that he had no custody rights under Irish law; unmarried fathers in Ireland are not legally recognized as parents, although they may petition a court for guardianship and custody rights. The Hague Convention remedy was unavailable.

Derek thereafter waged a three-and-a-half-year battle to establish his paternity rights in Ireland. On February 10, 2011, an Irish court granted Derek's request for guardianship and joint custody of JMR, and also ordered that the child live in or near Ballymurphy, Ireland. Mary participated in these proceedings and was in Ireland with JMR for the final hearing. The court allowed her to take JMR back to Illinois to make preparations for their move to Ireland, but only on condition that she promise under oath to return with the child by March 30, 2011. Mary made the promise but did not intend to keep it; she returned to Illinois with JMR and remained with him there. Eight months later Derek filed a Hague Convention petition in federal court in Illinois claiming that Mary wrongfully “retained” JMR in the United States in breach of his newly recognized custody rights in Ireland.

The district court held that as of March 30, 2011, when Mary disobeyed the Irish court's order and the alleged wrongful “retention” occurred, JMR's habitual residence was Ireland. This was so, the court held, even though JMR had lived in the United States almost all his life. The court focused instead on the parents' initial agreement to raise their son in Ireland—their last shared intent about where he would live—and gave this evidence decisive effect. Because Mary's move to Illinois was unilateral, the court concluded that JMR's residence in the United States was temporary and contingent on the results of the Irish guardianship proceeding.

[724 F.3d 732]

The court ordered JMR returned to Ireland. Mary appealed.

We reverse. The district court treated the parents' last shared intent as a kind of fixed doctrinal test for determining a child's habitual residence. It is not. The determination of habitual residence under the Hague Convention is a practical, flexible, factual inquiry that accounts for all available relevant evidence and considers the individual circumstances of each case. Here, the parents' shared intent when JMR was born sheds little light on the question of his habitual residence in 2011. When Mary moved with the baby to Illinois in November 2007, she had the exclusive right to decide where he would live; because she was JMR's sole legal custodian, his removal from Ireland was not wrongful under the Convention. By March 2011, the time of the alleged wrongful “retention,” JMR's life was too firmly rooted in Illinois to consider Ireland his home. Because JMR was habitually resident in the United States, the district court was wrong to order him “returned” to Ireland.

I. Background

Mary is an American citizen and also a citizen of Ireland through her father, who was born in Ireland. Derek is a citizen of Ireland. In 1996 Mary left her family home in Illinois to attend community college in Ireland, returning during the summers and at other times during the year. She met Derek soon after she arrived, and they began an intimate relationship. She remained in Ireland after completing her associate's degree, and the couple lived together for more than a decade. But they never married.

In 2006 Mary became pregnant. The couple agreed that the child would be born in America but raised in Ireland. They traveled together to the United States, and on March 28, 2007, their son, JMR, was born in Blue Island, Illinois. Derek was present at the birth and signed a voluntary acknowledgment of paternity; he is also listed as JMR's father on the child's birth certificate. Under Illinois law a properly executed voluntary acknowledgment of paternity creates a presumption of paternity and may serve as a basis for a child-support order without more elaborate proceedings to establish paternity. See750 Ill. Comp. Stat.. 45/3, 45/5, 45/6. A child-support order entered pursuant to an acknowledgment of paternity may also include a determination of custody rights, guardianship, and visitation terms. See id. § 45/14.

In contrast, in Ireland the natural father of an illegitimate child does not have parental rights. See Guardianship of Infants Act, 1964, Part I, § 2 (Act No. 7/1964) (Ir.), available at http:// www. irishstatute book. ie/ 1964/ en/ act/ pub/ 0007/. Under Irish law “[t]he mother of an illegitimate infant shall be guardian of the infant,” id. Part II, § 6(4); the definition of “father” excludes “the natural father of an illegitimate infant,” id. Part I, § 2. An unmarried father may formally petition a court for recognition of paternity and appointment as a guardian of his child, and if recognized may seek a determination of custody and access rights. See id. Part I, § 3; Part II, § 11.

In accordance with their original plan, Mary and Derek returned to Ireland with JMR on April 8, 2007, when the baby was 11 days old. The couple remained together for several months, but during this time, their relationship fell apart. Mary alleges in the underlying custody dispute that Derek suffered problems with alcohol and abused her. In November 2007 Mary decided to end the relationship, move back to Illinois, and raise JMR there. On November 10, 2007, she and JMR left Ireland and flew to Illinois.

[724 F.3d 733]

In February 2008 Mary returned to Ireland with JMR for a visit. The purpose of the trip is not entirely clear. At least in part, Mary wanted to finish collecting her belongings. She also met with a community welfare officer, either to request information regarding maintenance payments or to apply for “periodic payments” for JMR (we do not know which). On March 25, 2008, while Mary and JMR were still in Ireland, Derek filed a petition for guardianship and custody rights in an Irish court and obtained an ex parte order preventing them from leaving the country. On the basis of this order, Mary and JMR were stopped by authorities at the airport. On April 22, 2008, an Irish court vacated the ex parte order, and Mary left Ireland with JMR the next day.

During the course of the next three years, Mary returned to Ireland periodically to participate in hearings on Derek's guardianship and custody petition. She attended a May 15, 2008 hearing and flew back to Illinois two days later. She returned to Ireland and attended another hearing on June 25, during which the Irish court declined to exercise jurisdiction over the case. Derek appealed this decision, and another hearing was set for July 29. Less than a week before the hearing, Derek obtained an ex parte order requiring that Mary and JMR appear. Mary and JMR did not appear but her counsel filed for a continuance, which was denied. At the hearing the reviewing court reversed the lower court's ruling and held that the court had jurisdiction over Derek's application. Mary appealed. The Irish High Court heard the case on November 18 and ruled against her on November 26, 2008.

Mary then filed her own application in the Irish court to relocate with JMR to the United States permanently. Dueling petitions were now before the court in Ireland. At a hearing on July 2, 2009, the court ordered that JMR undergo an independent psychiatric assessment, and the court-appointed examiner interviewed JMR and his parents, and also other paternal and maternal relatives. The psychiatric report concluded that JMR was well-adjusted and happy but would benefit from growing up near both parents—an arrangement that could only work if JMR and Mary moved to Ireland given Derek's lack of American citizenship. The report recommended that Derek be granted guardianship and custody rights, and also that JMR live in Ireland so that Derek could have regular access to his son. Finally, the report recommended that the parents develop a parenting plan for JMR with “appropriate weekly and regularized access plans.”

Throughout this time JMR lived with Mary in Orland Park, Illinois. More than a year and a half passed from Mary's move to Illinois and the hearing at which the Irish court commenced consideration of Derek's guardianship petition on the merits and ordered a psychiatric evaluation; another year and a half elapsed before the final hearing on February 9, 2011....

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