Difference between home state & habitual residence
Q. My ex-boyfriend and I are fighting about where I can live with our daughter. Kelly was originally born here but we moved to Ireland during the pandemic (where my ex is from). She was only three at the time and his parents cared for her so he could work and I could continue my PhD program remotely. We never intended to live there permanently, just during the lockdown.
I moved back in March, 2022 to defend my dissertation, attend my graduation and get Kelly ready to begin school here in September. He chose not to move back. I got engaged over New Years and when my ex learned of my impending marriage, he filed for custody of Kelly and the right to move her to Ireland. He keeps threatening to file that I kidnapped her.
My lawyer said it’s not a problem because Massachusetts is Kelly’s home state. His lawyer keeps telling the judge that Ireland is Kelly’s habitual residence. What is the difference in these terms?
A. Unless he files an action under the Hague Kidnapping Convention within one year of your returning to Massachusetts with
Kelly, it almost doesn’t matter that you understand the difference in these terms. I do not know when you returned but his clock is ticking loudly and may have already reached the oneyear mark when the standard for return changes and his case becomes harder to win.
For habitual residence to become a factor, he needs to actually file for Kelly’s return under the Hague Convention. Habitual residence is a fact-based inquiry and a court would consider things like the circumstances of your being in Ireland — was the agreement for a limited duration and can you prove it?
If so, her habitual residence did not change from Massachusetts to Ireland during your temporary relocation. If you cannot prove an agreement for a limited stay, the court will look at factors like whether she was enrolled in school when she went to Ireland, what her medical care looked like, etc.
Home state is generally where a child was born or lived in the six months preceding a court action.
Because you returned with Kelly more than six months before he filed his action, Massachusetts is her home state.