Chicago Journal of International Law


This Development offers a discussion and analysis of the most recent cases that have formulated a definition of "habitual residence" in the context of the Convention. As the definition has evolved, US courts have differed as to how much weight should be given to the various components of the definition. It is my contention that the Gitter Standard is the most comprehensive standard that thoroughly contemplates the acclimatization of the child. To define habitual residence, the first prong of the Gitter Standard asserts that courts should inquire into the last shared intent of those entitled to fix the child's residence. The second prong states that the court should determine whether the evidence "unequivocally points to the conclusion that the child has acclimatized to the new environment." Taken together, the two prongs protect the child's best interest when it can be proven that the child has become acclimatized to his surroundings and is considered mature enough to contest his return to the country of habitual residence. The standard also takes into consideration the exceptions in Articles Twelve and Thirteen of the Convention by allowing the proven acclimatization of the child to trump parental intent. In the event that the child is a newborn, the Gitter Standard should be expanded to include the Delvoye Standard. This Development further asserts that in cases that were wrongly decided, habitual residence would have been correctly defined and properly assigned had the court applied the Gitter Standard. The first Section sets forth the definition of habitual residence created by the Mozes court and explains how the Gitter Standard expands upon the prior definition, by placing more emphasis on whether a child has become acclimated to his environment. The second Section discusses two recent cases that would have had a different outcome had the Gitter Standard been properly applied. The third Section explores how habitual residence is determined when one country is not a party to the Convention, as well as how non-Contracting States acknowledge the importance of a child's desires and level of acclimatization, which places their logic closely in line with that of the court in Gitter. Previous commentaries have acknowledged the need for a uniform standard, and this Development concludes by reexamining the reasons why the Gitter Standard is the standard that should be uniformly adopted.