by Jeremy D. Morley[1]
www.international-divorce.com
Marriage usually implies a condition of faithful monogamy which, if breached, may override the other spouse’s express consent to the international child relocation of their child for the purpose of a Hague Abduction Convention petition for international child abduction. So held an Illinois District Court in Jetel v. Jetel, 2925 WL 3043527 (N.D.Ill. Oct. 31, 2025) (Johnston, J.).[2]
The father had consented to his wife’s request that they should relocate with their 4-year-old son from Chicago to London for the purpose of her employment. Shortly after the move, he discovered that his wife had been engaged in a long-standing affair in London, which she had concealed from him. He then unilaterally took the child back to Illinois, and his wife petitioned under the Convention for the child’s return to England.
The Court dismissed the petition, on the ground that the mother failed to meet her burden to prove that the child was habitually resident in England when returned to Illinois, holding that her concealed affair nullified the father’s consent and that the child was, in any event, not sufficiently acclimatized to life in London.
Intent and Habitual Residence
The Court’s overall conclusions of law concerning habitual residence included the following:
- In Monasky Taglieri, 589 U.S. 68 (2020), the Supreme Court endorsed a totality of the circumstances test to determine habitual residence, but parental intent and acclimatization are still relevant considerations.
The concept of “home” is fickle and multifaceted, particularly when examining the home of a young child. “It can be used to signify the place where a person generally sleeps, eats, works, and engages in social and recreational activities, but it can also mean the place where a person feels most comfortable and the place to which the person has the strongest emotional ties.” Monasky.
- In the context of a four-year-old, whose cognizance of “home” is more limited, parental intent is perhaps moreimportant in making this determination than it would be for an older child, but even for young children parental intent is certainly not dispositive. See Redmond, 724 F.3d at 746 (weighing parental intent with acclimatization based on a child’s age).
- Like the other relevant considerations, parental intent is not dispositive. Monasky, 589 U.S. at 68-69 (“no single fact is dispositive across all cases.”). But because this case involves a young child, the “intentions and circumstances of caregiving parents” matter a great deal. at 78. The moment of last shared parental intent is a relevant consideration.
- Shared parental intent often dovetails into issues surrounding acclimatization. The longer a child resides in a locale because of a shared parental intent, the more likely it is that the child has acclimatized.
Implied and Conditional Consent
The Court stated that courts have repeatedly recognized that if only one party has a conditional intent to relocate, and the other party does not, it cannot be said the parents shared an intent. Grano v. Martin,[3] 443 F. Supp.3d 510, 536 (S.D.N.Y. 2020), aff’d, 821 F. App’x 26 (2d Cir. 2020) (quoting Mota v. Castillo, 692 F.3d 108, 115 (2d Cir. 2012)); Ho, 2021 U.S. Dist. LEXIS 129173, at *26-27, 2021 WL 2915161.[4]
Applying that concept, the District Court stated:
“Petitioner intended to move to London with the child. Respondent shared this intent until he confirmed existence of the affair. Respondent would not have moved if he had known about the affair and Petitioner’s activities. Consistent with prior behavior, he moved to support Petitioner and continue his family life. His discovery of Petitioner’s long running affair and activities came as a devastating personal shock.”
The Court stated that the question of whether the father’s intent to relocate was valid given that the mother was concealing from him that she wasn’t being monogamous, should be answered by turning to common sense, “which is at the heart of the habitual residence inquiry.” It explained that, “Common sense says that monogamy is generally (but not necessarily always) an explicit condition in a committed marriage, let alone an implicit one,” citing Obergefell v. Hodges, 576 U.S. 644, 657 (2015) (noting marriage “allows two people to find a life that could not be found alone ….”).
The facts in the case showed, the Court stated, that monogamy was a condition of these parties’ marriage, which was not displaced by scattered, vague, and sarcastic conversations and comments to the contrary, and that the father’s willingness to move to London was conditioned on the continuation of a monogamous relationship.
Therefore, there was “no real shared intent in this case. To assert the existence of a shared parental intent blinks the reality of how Respondent’s acquiescence was obtained.” “Respondent’s intent, induced through non-disclosure of the affair, was induced fraudulently. A party ‘should not be able to better her position by such deception.’”
Acclimatization
The District Court then reviewed whether the child was, nonetheless, sufficiently acclimatized to life in London for it to have become his home.
Here, the relevant facts were that the child was in London for only 52 consecutive days; as a family unit, the parents and child were only in London for 11 days; the parties rented a London flat which was furnished, but only with the bare minimum, and it had a “break” clause that could be effectuated in a short time; they retained ownership of their home in Chicago, which was rented out with a one-year lease; and they attended two going-away parties in Illinois, but their trusted friend believed they were going to return to Illinois.
The mother had a bank account in the United Kingdom, but that was her only financial account in the United Kingdom and Respondent had no accounts in the United Kingdom. The mother was employed in London, but it was for a three-year term via a secondment agreement. Father did not possess a job in the United Kingdom, or a work visa to work there, and his visa and the child’s visas were contingent on the mother’s visa remaining in good standing.
Some personal belongings, including some of the child’s, were moved to London, but much personal property remained in Illinois, including vehicles, the child’s bike, and the family’s beloved dog. So much personal property remained in Illinois that the father had rented an additional storage unit to keep it, and some personal property items were to be reclaimed by the father upon a later, undetermined return to Illinois.
The child was establishing roots and enrolled in nursery (but not school) in London and was signed up for (but didn’t attend) extracurricular activities. Although he made a friend in London, he retained friends and family in Illinois that he recalled, missed, and spoke with over the phone. He had a nanny in London, but she worked for less than two weeks before she left on vacation. He went to a doctor in London, but this was a one-time event for an ear infection. He went to various locations in London with the parties, but these locations were essentially tourist spots.
In conclusion on this issue, the Court stated that for every fact that the mother introduced to establish the child’s habitual residence in London, there were other facts—many of which were more persuasive—that undermined London being his habitual residence.
The breakdown of a relationship, the Court stated, is likely the sine qua non of a Hague Convention case. A partner in a happy relationship doesn’t abduct his or her child. The Court recognized that habitual residence can’t turn on one parent’s displeasure that things are not turning out the way he or she hoped. A party can’t wake up five years into a move, declare that he is unhappy, that his happiness was a condition of the move, and claim that this negates his intent. Using common sense, a court wouldn’t need to credit such testimony. “But that’s also not what happened here.”
The father had discovered the existence of the long-running affair just 52 days into the child’s stay in London, and when the mother had only been with the family in London on-and-off for 11 of those days.
Overall Determination
The Court considered the lack of a shared parental intention and the level of acclimatization together. It held that:
- The habitual residence inquiry is one based on circumstances. When the circumstances change—like when a parent suddenly learns that the reason supporting the intent to move was founded on a lie—so will decisions.
- Acclimatization is part of determining the child’s home. But home isn’t built in a day. Building a home requires “the passage of an appreciable period of time … that is sufficient for acclimatization.” The timeframe through which one views the child is important.
- Here, the child’s behavior and activities would appear much closer to that of an extended tourist than a resident. The child went to several tourist attractions and a public library but had not been secured a membership to regularly attend any of them where membership was necessary. Indeed, the child’s time in London was akin to what the Brits refer to as “holiday.”
- The Court acknowledged that the issues in the case had elements of the harm the Hague Convention is designed to prevent—“unilateral decisions to remove children across international borders.” But Monaskyinstructs courts to conduct more searching inquiries based “on the totality of the circumstances specific to each case.”
Accordingly, the child was not habitually resident in England when his father unilaterally took the child back to Illinois. The petition was dismissed.
[1] www.international-divorce.com; jmorley@international-divorce.com
[2] Jeremy D. Morley, Molshree Sharma and Jonathan Standeford represented the successful Respondent.
[3] Jeremy D. Morley and others represented the successful Petitioner.
[4] This principle was notably applied by the Second Circuit in Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013), in which the Court ruled that, although the mother and children had moved from Canada to New York with the father’s consent, the circumstances indicated that the father intended for the children to reside habitually in New York only if he was in an intact family unit there with his children and his wife. Instead, immediately upon his move to New York the wife had served him with divorce papers. The Court ruled that the parties’ intention to relocate was necessarily subject to an implied condition of living together as a family, at least initially, which was not fulfilled. (Jeremy D. Morley and others represented the successful Petitioner).