You plan a temporary move. A few years abroad, then back home. But life intervenes. The marriage ends. One parent stays in the new country with the child. The other parent demands the child's return under the Hague Convention.
The central question: Where is the child's "habitual residence"?
The answer can determine everything—and it may not be what the parents originally intended.
In Yaccov Cohen v. Ocean Ester Debora Cohen, the Eighth Circuit Court of Appeals provided crucial guidance on this very question. The court made clear that habitual residence depends on the child's actual experience, not just what the parents planned or agreed upon.
The Case That Changed Everything
Meet the Cohens
| Detail | Information |
|---|---|
| Father (Yaccov) | Israeli citizen |
| Mother (Ocean) | Israeli and U.S. citizen |
| Child (O.N.C.) | Born December 6, 2009 in Israel; Israeli and U.S. citizen |
| Family life | Lived together in Israel for first 3 years of child's life |
The Move
In late 2012, the family faced a crisis. The father had accumulated significant debts—criminal fines, penalties, and restitution payments. A "Stay of Exit Order" prevented him from leaving Israel until the debts were paid.
The solution? Mother and child would move to St. Louis, Missouri, where the mother's brothers lived. Mother would work, send money back to Israel, and help pay off father's debts. Father would join them once the debts were cleared.
What the Parents Intended
| Parent | Their Version |
|---|---|
| Mother | "We intended to move permanently to the United States." |
| Father | "We intended to move for three to five years, then return to Israel." |
What both agreed on: The move was for a significant period. Mother would establish a home in St. Louis, with or without the father.
What Happened After the Move
Life in St. Louis (December 2012 - April 2014)
The mother quickly established a life for herself and O.N.C.:
| Area | Action Taken |
|---|---|
| School | Enrolled O.N.C. promptly |
| Medical | Found a pediatrician |
| Therapy | Enrolled in speech therapy |
| Employment | Secured work |
| Transportation | Purchased a vehicle |
| License | Obtained Missouri driver's license |
| Housing | Rented an apartment |
| Community | O.N.C. attended Jewish Community Center activities |
| Family | Mother's brothers in St. Louis provided support |
Visits to Israel:
- May 2013: Two-week visit
- April 2014: Two-week visit
Mother's support: Sent money to father regularly to help pay off his debts.
The Marriage Deteriorates
April 2014 Visit to Israel
During the April 2014 visit, the relationship began to fall apart. The father asked a lawyer to draft a "travel agreement." The terms:
| Provision | What It Said |
|---|---|
| Return requirement | Mother and child must return to Israel if father couldn't join them within six months |
| Mother's addition | Added clause requiring father to "stay away from crime and not get into trouble" |
| The catch | If father breached this condition, mother and child would NOT be obligated to return |
What happened next: In August 2014, father was arrested for driving without a valid license.
The Divorce
| Date | Event |
|---|---|
| July 2014 | Mother filed for divorce in St. Louis County |
| August 30, 2014 | Father learned of divorce from legal advertisement |
| November 13, 2014 | Father served with divorce petition |
| March 2015 | Default judgment granted; mother got sole custody |
The Hague Proceedings
| Date | Event |
|---|---|
| September 2014 | Father requested Israeli Ministry of Justice to open file |
| November 2014 | Father filed Hague application in Israel |
| November 25, 2015 | Father filed complaint in U.S. District Court |
| February 1, 2018 | Trial held |
The Legal Battleground: What Is "Habitual Residence"?
The Hague Convention Framework
Under the Hague Convention, a parent must prove the child was wrongfully removed or retained from their country of habitual residence.
| Element | Burden |
|---|---|
| Petitioner (Father) | Prove by preponderance of evidence that child's habitual residence was Israel |
| Respondent (Mother) | Show child's habitual residence is the United States |
Critical point: The court does NOT decide who should have custody. It only decides where the custody dispute should be heard.
The Eighth Circuit's Approach
The Eighth Circuit uses a child-centered approach:
"Habitual residence is determined as of the time immediately before the removal or retention and depends on past experience, not future intentions."
| Factor | What Courts Consider |
|---|---|
| Child's perspective | Primary focus |
| Parental intent | Taken into account but NOT dispositive |
| Settled purpose | Some form of settled purpose; doesn't require intent to stay forever |
| Geography | Clear change in location |
| Time | Passage of time in new location |
| Acclimatization | Child's connections to new country |
Why the Father Lost
The Court's Analysis
First: When did the retention occur?
| Possible Date | Event |
|---|---|
| July 2014 | Mother filed for divorce |
| October 2014 | Six-month travel agreement expired |
The key finding: By either date, O.N.C. had been living in the United States for almost two years.
Second: From the child's perspective
- O.N.C. attended school — Established routine in St. Louis
- Had a pediatrician — Received medical care in the U.S.
- Attended speech therapy — Professional care in the U.S.
- Had friends — Social connections
- Attended Jewish Community Center — Community involvement
- Primarily spoke English — Language shift
- Extended family nearby — Mother's brothers in St. Louis
- Had a home — Mother rented an apartment
Meanwhile, little evidence connected O.N.C. to Israel.
Third: Parental intent
| Issue | The Court's Finding |
|---|---|
| Both intended to move | Yes—for at least 3-5 years, if not permanently |
| Applied for U.S. citizenship together | Yes |
| Mother established life | Yes—employment, housing, vehicle |
| Mother sent money | Yes—to enable father to join |
| Father's "temporary" claim | Appeared after the move, during marital deterioration |
| Travel agreement | Signed after move; contract cannot fix habitual residence |
The Father's Arguments That Failed
| Father's Argument | Why It Failed |
|---|---|
| "We intended to return to Israel." | Intent formed after the move, not before. |
| "The travel agreement proves it was temporary." | Contract cannot determine habitual residence. |
| "I never agreed to a permanent move." | Mother's intent plus child's acclimatization matter. |
| "I filed Hague proceedings quickly." | Child had already established life in the U.S. |
The Court's Conclusion
"The district court did not err in finding that O.N.C.'s habitual residence is the United States. From O.N.C.'s perspective, his move to the United States has resulted in 'a sufficient degree of continuity to be properly described as settled.'"
The Circuit Split: Why the Court You're In Matters
| Circuit | Standard | Impact |
|---|---|---|
| Second Circuit | Gives dispositive weight to parental intent | Easier for left-behind parent to argue for return |
| Eighth Circuit (and majority) | Child's perspective primary; parental intent only one factor | Easier for parent in new location to keep child |
What this means: If you're in the Second Circuit, parental intent is the dominant factor. In the Eighth Circuit, the child's actual experience matters more.
Key Takeaways for Parents
If You Are the Parent Moving Abroad with a Child:
| Do This | Why |
|---|---|
| Be clear about intent from the start | Ambiguity can hurt you later. |
| Document everything | Keep records of conversations, plans, and agreements. |
| Get court approval | If you have a custody order, get permission before moving. |
| Understand the risks | Once the child acclimatizes to a new country, they may not be returned. |
| Act quickly if things change | If the other parent tries to keep the child, file immediately. |
If You Are the Parent Left Behind:
| Do This | Why |
|---|---|
| Don't delay | File Hague proceedings as soon as possible. |
| Document your intent | Show you never agreed to a permanent move. |
| Keep evidence of the child's ties to the home country | School records, medical records, family connections. |
| Know your circuit's law | Different circuits apply different standards. |
| Be realistic | If the child has established a life in the new country, courts may find that's now the habitual residence. |
The Policy Behind the Convention
The Hague Convention was designed to:
"Restore the pre-abduction status quo."
But what if the "status quo" has already changed? What if the child has established a new life in a new country?
The Convention aims to prevent parents from forum shopping—abducting children to friendly jurisdictions. But it also aims to protect children from being uprooted after they've settled.
The Eighth Circuit's child-centered approach balances these interests:
- Prevents abduction: Parents cannot create a new habitual residence by unilateral action alone.
- Protects children: Once a child has actually established a life in a new country, courts recognize that as the new home.
Lessons from the Case
1. Parental Intent Is Not the End of the Story
The father in this case genuinely believed the move was temporary. But the court didn't focus on what he intended—it focused on where the child actually lived.
2. Children Acclimatize Quickly
Within two years, O.N.C. had school, friends, activities, medical care, and a stable home in the United States. That was enough to establish habitual residence, even though the family had not originally intended to stay permanently.
3. Contracts Cannot Fix Habitual Residence
The travel agreement was irrelevant. Parents cannot contractually determine where a child habitually resides. Courts look at actual residence, not agreements.
4. The Timing of Intent Matters
The father's "temporary" intent appeared only after the move and during marital deterioration. Courts are suspicious of intent that materializes only when it benefits a litigant.
5. Know Your Circuit
The Second Circuit approaches these cases differently from the Eighth Circuit. If you are involved in a Hague Convention case, understand the law in your circuit.
Conclusion
Yaccov Cohen v. Ocean Ester Debora Cohen is a landmark case that reinforces a crucial principle:
"Habitual residence is about where the child actually lived, grew, and established a life—not just what the parents planned or intended."
The Eighth Circuit's child-centered approach recognizes that children are not pawns in their parents' disputes. They are individuals whose experiences and connections matter.
Parents who move with children—even for what they believe is a "temporary" period—must understand that once a child has put down roots in a new place, that place may become their home.
The message is clear:
"If you plan to move temporarily, document it, act quickly, and understand the risks. But once your child has acclimatized to a new environment, courts will look at their actual experience—not just your intentions—to determine where they habitually reside."
Case Reference:
Cohen v. Cohen, No. 16-3757, 2017 WL 2473508 (8th Cir. June 7, 2017)
Full Citation: Yaccov Cohen v. Ocean Ester Debora Cohen, 859 F.3d 1150 (8th Cir. 2017)
Useful Resources
- Hague Conference on Private International Law
- Peshawar High Court – Official Website
- Islamabad High Court – Official Website
- U.S. State Department — Child Abduction
- Supreme Court of Pakistan
For related matters, you may also want to read our guides on Hague Convention child abduction in Pakistan, child custody rights in Pakistan, and family law in Pakistan.
Disclaimer: This article is based on Cohen v. Cohen, 859 F.3d 1150 (8th Cir. 2017), and related Hague Convention cases. This article is for general informational purposes only and does not constitute legal advice. For advice specific to your situation, consult a qualified family lawyer in Peshawar, lawyer in Islamabad, or wherever your matter is being handled.
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