August 1, 2013 by Robert Franklin, Esq.
When you’re wrong, you’re wrong, and I was wrong in this post of July 15, 2012. In it I said, “So, that’s the end of a fairly unremarkable story of a child abducted by his mother.”
Wrong. It wasn’t the end. It should have been, but it wasn’t. Here’s the latest (Courthouse News Service, 7/30/13). Here are the facts up through last July.
Mary Redmond’s an American, but she lived for years in Ireland. There she met Derek Redmond and the two had a love affair. They never married, but in due course, Mary became pregnant. She returned to her native Illinois to give birth, but when her son was just a week old, the two returned to Ireland to live with Derek. Things went along alright for about seven months when Mary announced she wanted to take little Jack to the United States for a month. As these things have a way of doing, “a month” stretched into forever. Mary didn’t return to Ireland and she kept Jack with her.
Derek went to court. He got the Irish court to enter an order giving him and Mary joint custody and he filed a petition, under the Hague Convention on the Civil Aspects of International Child Abduction, for return of Jack to Ireland. Mary responded, but eventually, the Irish court did the obvious thing; it found that Jack should be with his father in Ireland. One necessary finding was that Ireland was Jack’s residence. Courts ruling on Hague Convention cases are required to find in what country the child’s habitual residence is located, and in Jack’s case, that was Ireland. That’s no surprise since, when Derek filed his claim, Jack had lived almost all his life in the Emerald Isle.
But, as is so often the case, Mom wasn’t about to let a little thing like international law get in her way. She kept Jack with her in Illinois and filed suit for custody in Cook County. That included the requisite allegations of abuse by Derek, but, so weak were her claims that, once she got a temporary order of protection, she let the matter drop. Still, she managed to draw out the proceedings for some four years counting the Hague case in Ireland and her case in the States. That process meant Derek Redmond has spent his entire life savings litigating to get his son back.
And he finally succeeded. The judge in Cook County found out that the Irish court had jurisdiction of the case and therefore refused to issue custody orders that would contravene those of the Irish judge. After much legal wrangling and large amounts of time and money spent, Jack was finally returned to his father. On getting into Derek’s care the five-year-old announced that he wanted “to go home and see my cat.” So I guess the judge got it right; Ireland is Jack’s home in his eyes as well as the law’s.
So Derek has had his son back in his care for a year because the couple always intended to live in Ireland and did in fact live there during the early part of the boy’s life. The Illinois state court ruled that it didn’t have jurisdiction of the case because the Irish court did. Therefore, there is no court in this country with jurisdiction to decide with whom the child should live. But there is one in Ireland. Of course Mary could go there to try to get custody, but there’s a little problem with that. Her abduction of the boy resulted in a contempt citation by the Irish judge. She can go back if she wants to go to jail.
Apparently, she’s not too keen on that, so she appealed the federal court’s ruling on Derek’s petition under the Hague Convention, which brings us to the latest development in the case.
Mary won! Her lawyer convinced the Court of Appeals for the Seventh Circuit that the federal district judge had wrongly ruled in Derek’s favor. To say that ruling is of dubious legal merit is putting it mildly. Here’s the important part of the court’s ruling:
"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."
This is a classic case of a court’s losing sight of the purpose of the law, in this case, the Hague Convention. The purpose of the Hague convention is to ensure stability and continuity in the lives of children by discouraging their abduction to foreign climes by one or the other parent. Therefore, which country is the child’s place of habitual residence becomes important in order to promote the stability the Convention deems vital to a child’s well-being.
What the Seventh Circuit got wrong is its confusion of parental rights (i.e. the power to decide where the child is to live) with the child’s country of habitual residence. The idea that Mary could have established JMR’s place of habitual residence at her whim, just because Derek had not yet perfected his parental rights in Ireland distorts the legal idea of habitual residence beyond recognition. Simply put, the two parents agreed to live in Ireland and raise their son there. When Mary abducted the boy, she violated that agreement. When Derek filed his claim under the Hague Convention, JMR had lived virtually his whole life in Ireland. Those considerations, not Derek’s not-yet-perfected parental rights, govern the determination of a child’s habitual residence.
Of course the Seventh Circuit made much of the fact that, after some five years of legal wrangling, most of JMR’s life has now been spent in the U.S. (He lived about seven months in Ireland, another three years in the U.S. and now another year in Ireland with his dad.) But that obviously misconstrues the Convention. After all, to take the approach that “possession is nine points of the law,” when dealing with a child’s welfare, not only makes no sense, it directly contravenes the clear terms of the Convention itself. To reward a parent’s abduction of a child because she managed to evade capture or because, as in this case, of the glacial pace of judicial action, is obviously not what the Convention seeks to achieve. The argument that “JMR’s life was too firmly rooted in the United States,” due solely to Mary’s wrongful act, is simply and obviously wrong under the Convention.
Meanwhile, the Chief Judge of the Seventh Circuit, Frank Easterbrook, had a novel approach to the case. The article explains:
When he finally won custody rights, an Irish court ordered that the child live in or near Ballymurphy, Ireland. Mary and JMR had been in Ireland for the final hearing, and the court allowed them to return to Illinois so that they could prepare for the move. Mary never returned to Ireland once she left. She admits she never intended to honor the court order.
By flaunting (sic) the Irish court's order, Mary became "a fugitive from justice" and "disqualified herself as a candidate for favorable treatment by the judiciary of any state or nation," Easterbrook wrote.
It’s a simple and straightforward approach, but the court didn’t adopt it. My guess is that it’s on to the Supreme Court from here.
Meanwhile, the boy still resides with his father in Ireland and, whatever any future court may rule, I see little chance of his coming back to the U.S. Will Mary risk jail by going to Ireland to litigate the matter? Would a mother who’s alienated her son from his father for most of the boy’s life get custody there? What power does a U.S. federal court have to force an Irish man to return his son to this country, particularly when a court there has given him custody of the boy?
Good questions all. What’s certain is that this case isn’t over yet, contrary to my previous claim.
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