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Media Alerts - Maurice Marie Didon v. Alicia Dominguez Castillo - Third Circuit
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September 27, 2016
  Maurice Marie Didon v. Alicia Dominguez Castillo - Third Circuit
Headline: The Hague Convention does not Allow for Concurrent Residence in Multiple Countries

Area of Law: International Law, Custody Law

Issues Presented: May a child have two countries of habitual residence at the same time under the Hague Convention?

Brief Summary: The children in this custody dispute lived on the island of Saint Martin which comprises two countries, French Saint Martin and Dutch Sint Maarten. The children lived on the Dutch side and went to school on the French side. The father filed for custody in the French court, and, when the mother took them to the United States, he sought their return under the Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention only allows enforcement of orders from countries where children are habitually residing. The Third Circuit rejected the lower court ruling that the children were residents of both countries. It found that, based on the text of the Hague Convention a child could only habitually reside in a single country. Because residence is decided by where the child has lived, and Sint Maarten has not recognized the Convention, it did not apply.

Extended Summary: This case concerns two children, A.D. and J.D., from Saint Martin. This island is split into French Saint Martin, where the children went to school, and Dutch Sint Maarten, where the children lived. French Saint Martin recognizes the Hague Convention on the Civil Aspects of International Child Abduction but Sint Maarten does not. The Convention allows a parent to petition for the return of a child removed from his or her "habitual residence," in violation of a custody order.

A.D. was the son of both parties and J.D. the daughter of the respondent Dominguez Castillo, referred to by the Court as Dominguez. The parties sought and obtained in French court a change to J.D.'s birth certificate naming Didon as the father but completed no other adoption procedures. The family lived in Dutch Sint Maarten but Didon worked and the children went to school in French Saint Martin. In July 2014 Didon filed for full custody in French civil court, resulting in no notice to Dominguez. Before these procedures were complete, she took the children to New York with no clear intention to return. The French court granted Didon full custody and a private investigator he hired found them in Hazleton, Pennsylvania.

In August, 2015 Didon filed a Hague Convention Petition in the Middle District of Pennsylvania to return his children and enforce the French custody order. The District Court approved the petition as to A.D. but denied it as to J.D. The court found that due to the family's contacts it was resident in both parts of the island and added that: "The parties' testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. . . . [F]or most purposes of its residents' daily life, the island is essentially undivided." The District court distinguished cases denying multiple habitual residences previously as deciding the issue of whether the child had abandoned a previous residence. It granted Didon custody of A.D. due to the biological relationship. However, the adoption of J.D. did not satisfy French law such that it could grant him custody.

The Third Circuit reversed, holding that a child can have only a single country of habitual residence, and because the children lived in Sint Maarten, it was their habitual residence. Because Sint Maarten did not recognize the Convention, Didon could not rely on the Convention to enforce his French custody order. The Court cautioned that determining an individual's place of residence is a mixed question of law and fact. The purpose of the Hague Convention is to prevent forum shopping during custody cases; it seeks to restore the status quo by returning children to their homes. The Court set forth distinct questions to be evaluated in such a custody battle: (1) where the removal or retention took place; (2) where the child was habitually resident immediately prior to the removal or retention; (3) whether the removal or retention violated the petitioning parent's custody rights under the law of the country of habitual residence; (4) whether the petitioning parent was actually exercising those custody rights at the time of the removal or retention, or would have but for the removal or retention.

The Court found the second question dispositive. The Court examined the text of the Hague Convention and found that it unambiguously contemplated only a single place of residence in referring only to a single "State" of habitual residence at multiple points. Moreover case law from multiple circuits has reiterated this point. While there was a case from the Ninth Circuit which the District Court used to justify its reasoning which found it could be possible to find multiple residences where a child split their time, the case was unclear if it was referring to alternating or concurrent habitual residence. The Third Circuit went on to explain that even if the case was referring to concurrent habitual residence it would not override the text of the convention.

The Court then found that Dutch Sint Maarten was the children's place of habitual residence based on the concept that residence cannot be established where a child has not lived. This interpretation honors the choice of law rule provided by the drafters of the Convention. A child must have lived in a country for that country to be her place of habitual residence under the Hague Convention. Thus the French custody order could not be enforced through the Convention as the habitual residence was Sint Maarten which did not recognize the Convention.

To read the full opinion, please visit

Panel (if known): McKee, Fisher, Greenaway, Circuit Judges

Argument Date: June 22, 2016

Date of Issued Opinion: September 26, 2016

Docket Number: 15-3350 and 15-3579

Decided: Vacated

Case Alert Author: John Farrell

Counsel: Anthony J. Vetrano, Esq., Counsel for Didon; Michelle Pokrifka, Esq., Counsel for Dominguez

Author of Opinion: Judge Greenaway

Circuit: Third Circuit

Case Alert Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 09/27/2016 03:36 PM     3rd Circuit  

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