Custody Denied for Unmarried Irish Father

CHICAGO (CN) - Since Ireland does not legally recognize unmarried fathers as parents, an Illinois woman need not return with her son to the Emerald Isle, the 7th Circuit ruled.

Mary Redmond left Illinois for college in Ireland when she was 19. She and Derek Redmond, a County Carlow man who coincidentally shared her last name, began a romantic relationship but never married in their 11 years together.

When Mary became pregnant with Derek's child, the couple went to Illinois for the March 2007 birth and then returned to Ireland 11 days later.

Mary and Derek's relationship deteriorated over the next several months, however, and Mary moved back to Illinois with her 8-month-old child against Derek's wishes.

Derek fought for the next three years to establish his paternity rights in Ireland, which does not legally recognize unmarried fathers as parents.

When he finally won custody rights, an Irish court ordered that the child live in or near Ballymurphy, Ireland. Mary and JMR had been in Ireland for the final hearing, and the court allowed them to return to Illinois so that they could prepare for the move. Mary never returned to Ireland once she left. She admits she never intended to honor the court order.

Derek then filed a federal petition in Illinois under the Hague Convention on the Civil Aspects of International Child Abduction, pleading that Mary wrongfully retained the child in the United States in violation of his newly recognized custody rights in Ireland.

The District Court agreed, finding that JMR's residence was Ireland, based on the parents' initial agreement to raise their son there.

A three-judge panel of the 7th Circuit refused to grant Mary an emergency stay, forcing JMR's return to Ireland where he remains. On Thursday, the federal appeals court reversed for Mary.

"The District Court treated the parents' last shared intent as a kind of fixed doctrinal test for determining a child's habitual residence," Judge Diane Sykes wrote for the panel. "It is not."

She added: "When Mary moved with the baby to Illinois in November 2007, she had the exclusive right to decide where he would live; because she was JMR's sole legal custodian, his removal from Ireland was not wrongful under the Convention. By March 2011, the time of the alleged wrongful 'retention,' JMR's life was too firmly rooted in Illinois to consider Ireland his home. Because JMR was habitually resident in the United States, the district court was wrong to order him 'returned' to Ireland."

The Hague Convention targets child abduction but does not provide for the enforcement of foreign custody orders, according to the ruling.

"The concepts of removal and retention can be understood only by reference to the child's habitual residence; a legal adjustment of a parent's custody rights does not by itself give rise to an abduction claim," Sykes wrote.

In a rare dubitante opinion, Chief Judge Frank Easterbrook cited the U.S. Supreme Court's recent resolution of the custody dispute Chafin v. Chafin .

By flaunting the Irish court's order, Mary became "a fugitive from justice" and "disqualified herself as a candidate for favorable treatment by the judiciary of any state or nation," Easterbrook wrote.

"I am not sure how this issue should be resolved, and I am content to let it pass because nothing we say here is likely to affect JMR's ultimate placement," he added. "The courts of Ireland and Illinois have made their decisions in adversarial litigation. It is time for this federal overlay to end and the subject be returned to the domestic relations apparatus of Illinois and Ireland, where it should have been all along."

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