New York Mom’s Custody Fight Hits Montreal Snag

(CN) - The children of a divorcing couple were properly ordered to be returned from New York to Canada for a custody determination, the 2nd Circuit ruled.

Adam Hofmann was born and raised in Montreal, and attended McGill University for medical school there where he met fellow classmate Abigail Sender, an American.

They both earned medical degrees, but Hofmann cannot work in the United States because of his immigration status and lack of a work visa.

Hofmann and Sender got married in 2008 at the Spanish and Portuguese Synagogue in Montreal in 2008. Their son was born in 2009, and Sender moved to New York so her family could help her care for the baby.

That fall, Hofmann took two months off of work and went to New York to be with his family. He and Sender discussed their marital and family problems, but they also talked about having another baby and about leaving Canada. The couple returned to Montreal in 2009 with a tentative plan to move back to New York in 2010.

Hofmann eventually cut ties with his immediate family and continued exploring job and relocation options as the couple welcomed their second son in 2011. Sender again went to New York so her parents could help with the boys, with Hofmann spending time there when he could.

At this point, the parties disagreed about the nature of the trips to New York. Hofmann characterized it as a temporary move, while Sender argued that it was the first step of the family's permanent move to New York.

In the summer of 2012, Sender began to consult with divorce lawyers and changed the children's last name to Sender. On one trip to New Jersey, Hofmann was greeted at the hotel not by his family, but with divorce papers.

Hofmann went to the Canadian Central Authority and filed a Hague Convention petition to have his children returned to Canada.

A federal judge in White Plains, N.Y., ruled in favor of Hofmann, stating that the children were Canadian residents, and that Hofmann only agreed to the New York move as a prelude to the family being together permanently in the United States.

Upon return of the children to Canada, the Quebec family court awarded temporary custody to Sender and ordered that they be sent back to her in New York. Another hearing is scheduled for May 23 in Montreal.

Sender meanwhile appealed the habitual residency finding to the 2nd Circuit, arguing that she and Hofmann unconditionally planned to move the children to New York. The Manhattan-based federal appeals court disagreed with her Wednesday.

"In the summer of 2012, before the family relocation was complete, Sender developed the unilateral intention to reside in New York with the children but without Hofmann," Judge Peter Hall wrote for a three-judge panel.

"Sender's unilateral decision to retain the children in New York without their father thus precluded satisfaction of the condition on which Hofmann's shared intent was based," Hall added. "The District Court properly determined under the convention that the parties' last shared intention regarding the children's residence was that they live in Canada and for that reason, the habitual residence of the children remained in Canada."

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