PA415-01:
Family Law and Divorce Mediation
1202A March 2012 Term
Instructor: Lashawn Piquant
Unit 8
Memo
Delvoye standards
To: Supervising Attorney
From: Paralegal- Dow L. Pettis
Implications of the Proposed Adoption of the Delvoye
Standard for Habitual Residence
Abstract
It is quite intriguing that despite having many standards proposed and used in the determination of a child 's habitual residence , there has still not come a standard that will conform fully to the objectives of the Hague Convention on the Civil Aspect of International Child Abduction . The Delvoye standard seems to be the most compatible with the guidelines of the convention . An examination of its implications advantages and disadvantages might tell us whether its application can help deter parents from child abduction and wrong retention.
The Delvoye Standard of habitual residence of children is a standard that depends on the child 's age and maturity as a determinant for its habitual residence . It also considers the mutual intent of the parents At the age of infancy it also considers both the physical present state in which the child was before the removal or retention and the period in time that the child spent in that state.
Implications of the Delvoye Standards
The Delvoye Standard for habitual residence has got different implications linked to its adoption . First , it implies that the law of a child 's residence being based on its citizenship is not important in determination of its habitual residence . This is so for a case where a child is a citizen of a certain country by birth . This was demonstrated in the case of Delvoye v . Lee.
One of the most interesting topics we studied in my course on Family Law and Divorce Mediation is: INTERNATIONAL CHILD ABDUCTION.
John Dietrich is a thirteen year old male child, who was born in Berlin, Germany. He resided in Berlin until he was five years old. His parents were divorced at that time. After the divorce, he and his Mother, Maria, moved from Germany to the United States and established a residence in New York City. When he turned thirteen, his Father, Gunther, came to the United States and abducted him. He was taken back to Germany. His mother was very upset, and contacted an attorney to find out how to get him back. He originally lived in Germany, but he had lived in the United States for eight years. She wants to know what she can do.
Both the United States and Germany are signers of the Hague Convention on the International Aspects of Child Abduction. Maria must act quickly to contact an attorney, who can file a lawsuit in court and try to get John returned to the United States. The Convention applies in cases where:
1. Both the country of the child's habitual residence and the country to which the child was taken have acceded to the Convention;
2. The child in question is younger than 16 years of age; and
3. The child has been "wrongfully removed or retained" in breach of rights of custody under the law of the State of the child's habitual residence.
The current standard for determining habitual residence was not clearly defined in the treaty. There are at least three standards that have been applied to the question of habitual residence. The clearest, and most recent one is the Delvoye Standard. The reason that it works better is that it allows the court to determine the habitual residence of infants and neonates.
The Delvoye Standard is the standard that is needed to determine the habitual residence of neonates under the HCCAICA. For the first time, the Delvoye Standard worked in determining habitual residence because it proposed that physical presence does not have to be present to determine the habitual residence of a newborn child. In order to prove habitual residence for a neonate the only element that has to be shown to the court is the mutual assent of the parents. It must be present and proved before the child has been removed from the home. The standard is needed for neonates because they are unable to have preferences and establish ties and connections to the environment.
The Delvoye Standard works for infants as well. These are children who are aged from six months to four years of age. In the infant stage, the requirements to be evaluated are physical presence, the passage of time, and the mutual assent of the parents. It incorporates the requirements of the Settled Purpose Standard. Again the mutual assent of the parents must be established prior to the time the child is removed from the home. As the child grows older, the child’s ties to the place of physical residence grow stronger and it becomes more likely that the place of physical residence is in fact the child habitual residence.
Finally, for children between the ages of four years and sixteen years of age the Delvoye Standard evaluates the elements of physical presence, the passage of time, the child’s intent, and the past actions of the child to determine the habitual residence of the child. An older child will be able to express their intentions to the court, and state what they want and where they want to live. As the child grows older, the value of parental intent weakens. The court will determine on a case by case basis whether the child is old enough to acclimate to the environment and form intentions as to their preferred habitual residence. Using a strict physical presence standard for older children will lead to fair results.
For more information on International Child Abduction and International Child Custody follow this link to the website of International Family Law Attorney, Jeremy Morley. It has lots of information on this problem. Cases that involve kidnapping and abduction of children from their homes are very emotional, and heart wrenching cases. After all, a child is involved, whose life has been disrupted and irreparably altered. It is very, very wrong that anything like this ever happens, but nevertheless, it does.
