U.S. Military Families and Habitual Residence Under the Hague Abduction Convention
A child’s habitual residence is one of the most fundamental legal concepts under the Hague Abduction Convention, yet the negotiators of the Convention left the term undefined. Until Feb. 25, 2020, different circuits within the United States applied different legal tests to determine a child’s habitual residence. In early 2020, the U.S. Supreme Court addressed the issue in the case of Monasky v. Taglieri, 140 S. Ct. 719 (2020). In its guidance, the Supreme Court put forth the premise that a judge can examine any fact put before them, and their factual finding as to where a child is habitually resident will only be overturned upon a showing of clear error. This has created an increasingly judge-dependent analysis. No single fact is dispositive across all cases — a child’s habitual residence is the country where the child is “at home.” Therefore, judges routinely look at whether an older child is acclimatized to their environment or a younger child’s caregivers intend that their child’s habitual residence shifts to a new country. The Supreme Court, in footnote 3 of Monasky, highlighted certain facts that judges have considered in their analysis of a child’s acclimatization, including: a change in the child’s geography coupled with a passage of an appreciable period of time, the child’s age, the child’s and their parents’ immigration status, academics, activities, socialization, sports, connections to their new country versus their old country, language proficiency, and the location of their personal belongings.
Since Monasky v. Taglieri, the trend has been even more fact-driven litigation, with more witnesses and more courtroom time. The outcomes have become more judge specific, and less predictable, with the clear-error appellate review standard making it nearly impossible to overturn. There have been situations where children have resided most of their lives in one country, but a judge found their habitual residence to never have shifted to that country. (See, e.g., Horacius v. Richard, 2024 WL 3580772 (11th Cir. 2024)). Courts have been asked to use their fact-weighing skills to determine the habitual residence of children who lived on a boat while their family traveled between California and Mexico (Minkiewitz v. Becker, 2021 WL 566975 (Cal.App. 2 Dist. 2021)) or in a nomadic caravan among countries in South America (Alzu v. Huff, 738 F.Supp.3d 1157 (2024)). The U.S. Court of Appeals for the Ninth Circuit affirmed a district court finding that children who had lived most of their lives in one country had no habitual residence (Nisbet v. Bridger, 124 F.4th 577 (2024)). Parents who made an amorphous plan to relocate their children to another country did not actually shift their children’s habitual residence with a plan for a future relocation without more than just a plan. (Peyre v. McGarey, 2023 WL 3726728 (2023)). When two parents agreed that their child could relocate to another country, and the child actually moved to that new country, their habitual residence did not shift when the agreement was conditioned on certain terms that never came to pass, such as where in that new country the child would reside and when the child would return to the original country to spend time with that parent. (Correa Morales v. Escobar Restrepo, 2025 WL 939294 (E.D. NY 2025)). A child who, by court order, was placed in the residence (i.e., physical custody) of that child’s mother, was not habitually resident wherever the mother chose to live. (Castang v. King, No. 23-10426 (11th Cir. 2023)). Courts were left comparing a child’s connections to all relevant countries in situations where a child was highly mobile, moving back and forth between countries relatively frequently. (See, e.g., Morrison v. Chang, 2024 WL 1765675 (2024), Argueta v. Argueta-Ugalde, 2023 WL 4635901 (6th Cir. 2023), Staggers v. Timmerman, 746 F.Supp.3d 635 (2024)). Since Monasky, even more than before, one more fact on one side of the equation could shift a court’s factual findings in the opposite direction. The same judge on a different day may reach a different conclusion.
One of the most chronically mobile families, and therefore one of the most complex situations in which a judge must determine habitual residence, are U.S. military families. Many U.S. military families are comprised of family members that are all U.S. citizens. The family may move to another country for the Service Member’s posting overseas. Prior to their move, they may have lived in another country or in a U.S. state. In fact, they may have moved frequently between U.S. states. They may own property in multiple states. They may have a “home of record” in a completely different state. They are the epitome of highly mobile families. When a U.S. military family moves overseas, and one parent pre-emptively moves their child back to the United States, before the family’s tour overseas has concluded, a court in the United States, deciding an Abduction Convention case, will need to determine where the child was habitually resident. Further complicating these family’s situations, U.S. military families rarely return to the same state in the United States from which they left for their overseas assignment and sometimes move to a U.S. state where the family has never resided. If a court is resolving the child’s habitual residence, and in doing so, comparing the child’s acclimatization to both the overseas location and the location in the United States, the child’s lack of connections to their new residence in the United States may tilt the habitual residence analysis.
In 2024, the U.S. District Court for the Eastern District of Virginia, in Roberts v. Serrano Roberts, 1:24-cv-00817 (2024), concluded that a U.S. citizen child who had been relocated with both of her U.S. citizen parents to England for her father’s military service, did not shift her habitual residence from the United States to England. Therefore, when her mother unilaterally relocated the child back to the United States after ten months of living in England, and the father subsequently sought the child’s return to England for the duration of his orders (an additional 26 months on paper), the father’s request was denied. While the district court applied the Monasky standard, it made certain references to the family’s military status and how that may add a layer of complexity to the analysis. “Some courts have noted that military families do not present the typical fact pattern and concluded that conditional stays [in the country where the family is posted] may not demonstrate a shared intention to shift a child’s habitual residence away from the country where they previously resided.” (citing to Holder v. Holder, 392 F.3d 1009, 1018-1019 (9th Cir. 2004)). However, because a Monasky analysis requires the district court to analyze all facts, with no one fact being dispositive, the child’s acclimatization is also relevant. Some of the salient questions to ask a Service Member client, to determine a child’s habitual residence, include: how long is the assignment overseas (both on paper, and with what the parties understood and agreed)?, what household goods, if any, are in storage pending the next move?, what is the intention of each parent as to their next residence and their assigned residence overseas?, was there a “return plan” at the end of the assignment?, was there a “return plan” for before the end of the assignment? What are the child’s activities, community, and schooling in the United States and in the overseas post? or, does the family reside in military housing?
An additional consideration in a court’s habitual residence analysis is whether the family member returned to the continental United States by an Early Return of Dependents (ERD) or an Advance Return of Dependents (ARD). When a family member accompanies the Service Member on their overseas post, they are usually considered “command sponsored.” This gives the family member certain privileges, such as the ability to occupy housing on the overseas installation or shop at the commissary. There are two ways in which a family member may return to the continental United States before a normal return date. One is an ERD and the other an ARD. An ERD is a tool available to the commander to transfer a family member back home when that family member’s presence negatively impacts the normal operation of the unit, including embarrassment to the government, prejudice to order or discipline, or conditions when the dependent’s safety can no longer be ensured. If the Family Member Spouse and the Service Member are having marital discord while posted overseas, a commander may use an ERD to transfer the family member back home. This would send the family member home with their household goods at the government’s expense. In contrast, an ARD is Service Member-requested (or requested by their family member) for personal reasons, such as finances, death or illness of close relatives, unforeseen family problems like divorce or family violence, humanitarian or compassionate reasons, or other situations that are negatively impacting the Service Member’s performance. The ARD is generally approved only if the family or Service Member obtains documentation justifying the ARD from an appropriate agency or office (like a marriage counselor). See The Military Divorce Handbook, 3rd Ed., by Mark E. Sullivan. These two means of returning “home” may factor into a court’s analysis if they exist when a family member returns with the Service Member’s child and the Service Member remains overseas for the duration of their orders.
Military families have a variety of other complicating issues that lawyers should account for but not be sidetracked by. For instance, a military member and their family are often present overseas under the protections of a Status of Forces Agreement (SOFA). These SOFAs are bilateral or multilateral agreements between the country hosting the military family and the United States that may address the legal status of the family members and the obligations of military and civilian personnel within the host country. It is unlikely that anything within these SOFAs will impact upon a military family’s multi-jurisdictional family law dispute, but it is nonetheless incumbent upon a lawyer to review any applicable SOFA (and the United States is party to over 100) to ensure that nothing therein creates such a complication.
Overall, military families are some of the most highly mobile families, with some additional complicating factors that dictate the rules surrounding their mobile lifestyle. But, given that the determination of a child’s habitual residence under Monasky is a highly fact-dependent analysis, any request to return a child to the country of an overseas posting under the Hague Abduction Convention is going to require a robust analysis of minutiae related to their move and planned return to the United States through a unique filter.
Melissa Kucinski consults on international family law cases for lawyers and their clients and is based out of Washington DC and New York.