The Delvoye Standard

Unit 8—International Law

The Delvoye Standard:

A Memo on the Implications of the Proposed Adoption of the

Delvoye Standard for Habitual Residence

Simone Johnson

PA 415-01: Family Law and Divorce Mediation

Professor Randee Breiter

8 February 2011

Kutcher, Moore & Willis

Attorney at Law

101 Delaware Street, Suite 201A

Indianapolis, IN 46278

(317) 555-5555

INTERNAL MEMORANDUM

TO: Randee Breiter, Esq.

FROM: Simone Johnson (Paralegal)

DATE: February 8, 2011 RE: The Delvoye Standard

Background:

On December 1, 1983, the Hague Conference on International Law enforced the Hague Convention on the Civil Aspects of International Child Abduction (HCCAICA), which provides for an expeditious method for the return of children abducted and taken across international borders from one contracting nation to another. The Convention is a multilateral treaty aimed at returning abducted children from their country of habitual residence or wrongfully retained in a contracting state that is not their country of habitual residence (Wikipedia, 2011). The Convention does not address violent kidnapping by strangers, instead addresses the growing problem of international abduction committed by a parent (Schwartz, 2004).

The main issue in any international child abduction case is the determination of the child’s habitual residence. Since international child abduction occurs when one parent unilaterally removes or retains a child in violation of a valid custody agreement the habitual residence is important to determine which court has jurisdiction over the dispute to adjudicate the issue.

A clear definition of habitual residence has not been established by the HCCAICA. In the United States international child abduction cases have been decided on a case-by-case basis. According to Stephen Schwartz, author of The Myth of Habitual Residence, there are three standards that are being used in American jurisprudence to define habitual residence: the Friedrich Standard,...