Vol. 40 Associate Editor
When Yacov and Ocean Cohen’s son was three, he moved from Israel, where he had been born and where he had lived to that point, to the United States with his American citizen mother. His father, an Israeli citizen, stayed in Israel due to a Stay of Exit Order that prevented him from entering the United States. Three years later, Yacov still could not enter the United States, and Ocean filed for divorce. The question then became, where should their son live once the divorce was finalized? In international divorce cases, this question is not as straightforward as it might appear, and the answer may depend on where the case is filed.
International child custody cases are governed by the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”), which the United States implements through the International Child Abduction Remedies Act (“ICARA”). One key determination in the Convention is where the child’s “habitual residence” is. Generally, a child should be kept in (or returned to) their nation of habitual residence. But the Convention fails to define “habitual residence,” leaving the term up to the courts of various nations to interpret and administer. “The term is commonly used in international conventions covering a variety of subjects, and the drafters of the conventions deliberately avoided seeking to impose a fixed, precise, definition.” This consideration for judicial discretion leaves many families in limbo while they navigate this process, unsure of where their child will end up, and unaware that the answer could be different in a different court.
The main split between jurisdictions in interpreting “habitual residence” is whose position we should look to when determining where a child habitually resides. In the 8th Circuit, where the Cohens’ case was decided, the courts look at the question from the perspective of the child—where does he or she feel settled? In this, the 8th Circuit is in line with most Civil Law countries, who follow a similar totality of the circumstances approach from the child’s point of view.
The 9th Circuit, the 2nd Circuit, and most Common Law countries, meanwhile, following the oft-cited British case In Re Bates, consider the issue based on the intent of the parents. This includes looking at where the parents decided to live while they were married, how long they each intended the child to live in his or her current location, and whether there were any longer-term plans the family had together. Clearly, these two approaches can lead to vastly different results in the same case, particularly if a child is young and has settled in to his or her current location, but the parents always intended to move elsewhere.
In the Cohens’ case, the court looked at a whole of host of factors to determine the child’s place of habitual residence according to his point of view: that he attended an American school, had a local pediatrician, had American friends, had family in the area, and lived in an apartment with his mother. Though the court noted that an analysis based on parental intent may have yielded a similar result, the only important consideration was how the child viewed his circumstances and where he would consider himself to reside.
Meanwhile, in Gitter v. Gitter, which was tried in the 2nd Circuit, the Gitters moved to Israel from the United States with their son, Eden, when he was only three months old, and his mother took him back to the United States and divorced his father when he was two years old. Despite Eden having lived in Israel for the great majority of his life, the court found that the Gitters had no shared intent to stay in Israel, as the move had been treated as a sort of trial run. Therefore, the court ruled that Eden’s place of habitual residence was the United States, and the case was remanded to a lower court to determine if Israel supplanted the United States.
It is easy to see how applying the Gitter facts to the analysis in Cohen would most likely have led to a different result. Eden Gitter had known no other home, and surely would have felt that he lived in Israel and not the United States. Applying the Cohen analysis also reaches the more natural result, that a child who has lived in one country for the vast majority of his life habitually resides in that country.
Applying the strict standard of the Gitter court resulted in a strange situation where a child who has not lived in the United States since he was three months old can nonetheless be said at the age of two years to be a habitual resident of the United State. This case demonstrates the weakness of the parental intent approach, which can be rigid and not take the nuance of the actual circumstances into account. Following the Cohen analysis, the court would have arrived at the more natural conclusion that a child who has lived in Israel for the entirety of his life post-infancy is a habitual resident of Israel.
The Convention is meant to be applicable across a broad range of cultures and circumstances in an increasingly globalized world. Specifically, the term “habitual residence” not meant to be rigid and subject to formal tests, but to allow for flexibility as circumstances demand. Given these considerations, the Civil Law/8th Circuit approach exemplified in Cohen is the more natural one to follow. It allows courts to make a holistic review of the circumstances and make a determination about a child’s life based on what would be least disruptive for the child, which is surely a worthy aim in divorce proceedings. It also allows for cultural nuance to enter the judge’s consideration, which makes the standard more workable across borders. Rigid tests may work in one country while leading to results that would be considered bizarre in another. Additionally, the overarching goal of deciding custody, generally, is to disrupt the child’s life as little as possible. By looking at residence from his or her point of view, courts will tend to end up with the decision that places a child in the country, and surrounded by the people, he or she is most familiar with. Going forward, courts would do well to place the perspective of the child above the intent of his or her parents in determining where he or she habitually resides.
 Cohen v. Cohen, 858 F.3d 1150, 1152 (8th Cir. 2017).
 Id. at 1153.
 Tai Vivatvaraphol, Back to Basics: Determining a Child’s Habitual Residence in International Child Abduction Cases Under the Hague Convention, 77 Fordham L. Rev. 3325, 3327 (2009).
 Jeff Atkinson, The Meaning of “Habitual Residence” Under the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Convention on the Protection of Children, 63 Okla. L. Rev. 647, 648 (2011).
 Id. at 648-49.
 Id. at 650.
 Cohen v. Cohen, 858 F.3d 1150, 1153 (8th Cir. 2017).
 Vivatvaraphol, supra note 5, at 3358.
 In re Bates, (1989) CA 122/89 (High Ct. of Justice, Fam. Div., Royal Cts. of Justice).
 Id. at 3355.
 See id. at 3357.
 Cohen, 858 F.3d at 1154.
 See id. at 1154.
 Gitter v. Gitter, 396 F.3d 124, 128-29 (2nd Cir. 2005).
 Id. at 135.
 Id. at 136.
 Atkinson, supra note 7, at 669.