Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013)

INCADAT legal file Hague parental abduction

Share THIS:



The proceedings concerned children born in Canada, in January 2009 and July 2011, to an American mother and a Canadian father. The parents were married, but the marriage had difficulties. Following the birth of the first child the mother spent time in New York with her parents. The father joined them there for two months. The parents discussed relocating outside of Canada.
In 2010, the parents completed their medical training in Canada and the father took up employment there. The mother continued to travel to New York and New Jersey to look at schools and communities that might suit the family’s needs if it was to relocate.
In the summer of 2011, the family moved apartments in Montreal. After the birth of the second child the parties agreed that the mother would take the children to stay with the maternal grandparents for a prolonged period. At trial the parents contested the purpose of this trip. For the mother, it was the first step in the family’s permanent relocation to New York, for the father, it was temporary with mother and children to return after the winter.
In the spring of 2012, the parents continued to search in New York for a suitable community for the family and a suitable school for the children. The father continued locum work in Montreal but did not take a permanent position. He paid Canadian income taxes, while the mother filed tax returns in both Canada and the United States of America. In February or March of 2012, the mother cancelled her Quebec health insurance, informed her employer that she would not be returning to work, and repaid $25,000 to her insurance plan.
The father continued to make regular trips to New York to visit the family, and in the spring the parties’ older son was accepted for enrolment at a school in New York. In May of 2012, the parties shipped their belongings to a storage unit in New York. That year the mother filed tax returns only in the United States of America.
In the summer of 2012, the mother began to speak with divorce attorneys. In late August 2012, she retained counsel. At the same time the family went on vacation together. At the end of the holiday, the father returned to Montreal. The mother asked the father to return on September 4 and 5. When he did so, he was served with divorce papers. The father returned to Canada and filed with the Canadian Central Authority a Hague Convention petition for return of the children.
On 17 December 2012 the United States District Court for the Southern District of New York found that the children had retained their habitual residence in Canada and that their retention was wrongful. Consequently it ordered the return of the children. The mother appealed. Subsequently, the Quebec Superior Court, Family Division issued an order granting temporary sole custody to the mother and directing that the children be returned to New York.