Hague Convention Not for Dutch Antilles Children

(CN) — A child cannot be a resident of two countries under the Hague Convention, even if he or she sleeps in one country but goes to school in another, the Third Circuit ruled, dashing a Dutch Sint Maarten father's attempt to get his children back.

U.S. Circuit Judge Joseph Greenaway Jr. outlined the case's history in his 29-page opinion, released Monday.

In August 2014, Alicia Dominguez Castillo took her two children from Dutch Sint Maartin to attend her sister's wedding in New York City and never came back.

The father, Maurice Didon, petitioned for his children's return to Dutch Sint Maarten under the International Child Abduction Remedies Act, a U.S. law that implemented the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

Sint Maarten is an island territory in the Caribbean and part of the Dutch Antilles governed by the Netherlands. The 34-square-mile island is divided between Dutch Sint Maarten and the French-governed St. Martin.

Didon and Dominguez Castillo lived on the Dutch side of the island, but they worked on the French side, where the children went to school.

The Netherlands is a member of the 94-nation Hague Convention but Sint Maarten is not. However, Saint Martin is.

A federal judge declared that the children have two "habitual residence" countries at the same time, so the father may seek their return under the treaty.

But the Third Circuit reversed the ruling.

"Consider, for example, a child whose home is in New Jersey but who travels to New York each day to attend elementary school and engage in various other daily activities. On those facts, regardless of how much time the child spent each day in New York, an ordinary person would not say that the child is a 'resident' of New York," Judge Greenaway said, writing for a three-judge panel.

Greenaway added it would defy common sense to confuse the relationship of "residence," the location of one's home, with "residency." "Although the children attended school in French Saint Martin, it is clear that the country in which they lived (i.e., had a home) was Dutch Sint Maarten," the panel concluded.

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