## Facts

- Wim Delvoye, a Belgian resident, and Christina Lee, an American, began a relationship in New York in 2000.
- Lee moved into Delvoye’s New York apartment in August 2000; Delvoye continued living primarily in Belgium while spending significant time in New York.
- After Lee became pregnant, she began prenatal care in New York but agreed to give birth in Belgium because Delvoye would not pay U.S. delivery costs and Belgium provided free medical care.
- In November 2000, Lee went to Belgium on a three-month tourist visa, brought only limited luggage, left most belongings in New York, and did not extend the visa.
- The child, Sebastian, was born in Belgium on May 14, 2001, after the parties’ relationship had deteriorated.
- Delvoye signed paperwork enabling Lee to obtain a U.S. passport for the child and agreed that Lee and the child could return to the United States in July 2001.
- After failed reconciliation attempts in the United States, Delvoye filed a petition under the Hague Convention and ICARA seeking the child’s return to Belgium.
- The district court denied relief after an evidentiary hearing, finding Delvoye failed to prove Belgium was the child’s habitual residence; Delvoye appealed.

## Issues

1. Whether the petitioner proved that the infant was habitually resident in Belgium immediately before removal to the United States, such that the removal was “wrongful” under Article 3 of the Hague Convention and ICARA.

## Decision

- The Third Circuit affirmed the district court’s denial of the return petition.
- The court held Delvoye failed to carry his burden to prove the child’s habitual residence was Belgium.
- Because Belgium was not shown to be the habitual residence, the child’s return to the United States was not a “wrongful” removal under Article 3, and the Convention’s return remedy did not apply.

## Legal Principles

- Under the Hague Convention and ICARA, the petitioner bears the burden to prove a “wrongful” removal, including that the child was habitually resident in the claimed state immediately before removal.
- Habitual residence is a fact-driven determination informed by (1) acclimatization and (2) the parents’ shared intent as to where the child will live.
- For an infant too young to acclimatize meaningfully, habitual residence depends primarily on the parents’ shared and settled intent, rather than the child’s contacts with a country.
- A time-limited stay abroad for childbirth and medical care, without a shared intent to relocate and settle there, does not establish habitual residence in that country.

## Conclusion

The Third Circuit concluded that, given the child’s infancy and the lack of a shared and settled parental intent to make Belgium the child’s home, Delvoye did not prove Belgium was the habitual residence; accordingly, the Hague Convention did not require the child’s return from the United States to Belgium.


Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003)