An important term of art arises in Hague analysis, but the definition of the term varies depending on which treaty is being applied, and depending on who is defining it.  Both the Hague Adoption Convention (1993) and the Hague Child Abduction Convention(1980) are in force in the United States.  Both are intended to harmonize disparate legal doctrines in countries with different systems.  And both are intended to provide certainty in the legal protection of children.

In U.S. practice, however, they function quite differently.

The Abduction Convention requires member states to establish procedures for returning a child to his or her country of habitual residence after being removed from that country or wrongfully retained in another country.  Pretty straightforward stuff there– imagine a little girl was born in Korea, but has spent her entire six-year life in Illinois.  Her mother decides to take her back to Korea– and stay there– without her father’s consent.  Korea would be obliged to return the child to the U.S. pursuant to a valid Hague request.  If a German mother sends her son to spend the Christmas holiday with the father in Vermont– but Dad refuses to let him go home to Germany, U.S. authorities should force the boy’s return.  Not a lot of gray area there, although courts occasionally go beyond this straightforward analysis (see here for Fox Rothschild’s excellent criticism of a Third Circuit decision that reached a proper result– but with far too deep an inquiry into best interest).

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

The Adoption Convention uses the same terminology to define what constitutes an “intercountry adoption”.  If a family in Australia seeks to adopt an orphan from Italy, then permission must be sought from the Italian government via a Hague request.  But if the child’s mother emigrates with her to Australia and puts her up for adoption several months later, no such permission is necessary.  The child’s habitual residence changes upon the mother’s entry into Australia, and the Italian Central Authority for the Adoption Convention would rightly scratch its head in wonder, declining to even respond to a Hague request sent by an Australian magistrate.

But that same child is not afforded the same consideration if the mother emigrates to the United States.  U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  A preposterous reading, given the plain meaning of the words.  And that is precisely the way the rest of the world views the United States: preposterous.

In an average state family court, this really isn’t a problematic question.  If a child is in Missouri, and his parents aren’t around to take care of him, he’s under the jurisdiction of Missouri courts– regardless of his national origin or citizenship.  His domicile is Missouri.  As such, if an aunt or uncle or cousin seeks to adopt him, it’s very unlikely that the state would object, and it’s even more unlikely that any of the lawyers involved would invoke the Hague Adoption Convention to slow down the procedure.  Congratulations, new parents, on your new son or daughter.

But when those new parents seek permanent resident status or citizenship for the child, they run into a buzzsaw– a very preposterous buzzsaw.  The Department of Homeland Security (parent organization of the various customs & immigration services) will undoubtedly invoke the Adoption Convention– and the State Department’s incredibly warped definition of habitual residence– to refute the validity of the adoption and, consequently, dash any hope that the child can become an American citizen.

Why is this?  I can only speculate, because the logic put forth in the State Department’s criteria offers little guidance (they say what the criteria are, not why those criteria exist).  But it isn’t hard to reach some very sad conclusions.