Submitted by: Submitted by blondie2784
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Category: Other Topics
Date Submitted: 03/03/2011 08:26 AM
The Delvoye standard is an age dependent standard that evaluates a variety of elements to determine the habitual residence of a child depending [*712] on their age and maturity. In the case of the neonate, the Delvoye standard does not always require that the neonate be physically present in the state of habitual residence prior to the removal or retention. At this stage, the element evaluated by the Delvoye standard for habitual residence to determine the neonate's habitual residence is the mutual intent of the parents. 138 In the infant stage, the elements to be evaluated by the Delvoye standard are the states in which the child was physically present prior to the removal or retention, the length of time the child spent in those states and the mutual intent of the parents regarding the state of habitual residence. For children older than neonates and infants, the elements evaluated by the Delvoye standard are the states in which the child was physically present prior to the removal or retention, the length of time the child spent in those states, the child's intent to remain in those states and the past actions of the child relating to that intent.
In May of 2003, the Third Circuit Court of Appeals in Delvoye v. Lee, eschewed the physical presence and passage of time requirements of prior habitual residence standards. 139 The Delvoye court crafted a new standard that examines only the mutual intent of the parents to determine the state of habitual residence for a neonate. 140 The question before the court in Delvoye v. Lee was whether Belgium or the United States was the state of Sebastian's habitual residence. The court found that the United States was Sebastian's habitual residence. 141
In November of 2000, while pregnant, Ms. Lee moved from the United States to Belgium. 142 Her travel to Belgium was temporary. 143 On May 14, 2001, Sebastian was born in Belgium to Ms. Lee and Mr. Delvoye. 144 Seventy days later on July 23, 2001, Ms. Lee returned to the...