Asli Baz v. Anthony Patterson

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-3407
ASLI BAZ,
Petitioner-Appellee,
v.

ANTHONY PATTERSON,
Respondent-Appellant.
____________________

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:23-cv-05017 — Jorge L. Alonso, Judge.
____________________

ARGUED APRIL 11, 2024 — DECIDED APRIL 30, 2024
____________________

Before WOOD, HAMILTON, and LEE, Circuit Judges.
WOOD, Circuit Judge. Asli Baz, a citizen of Germany, filed
this suit under the International Child Abduction Remedies
Act, Pub. L. No. 100-300, 102 Stat. 437 (“ICARA”), seeking to
compel Anthony Patterson, a citizen of the United States, to
return their six-year-old son, A.P., from Illinois to Germany.
ICARA implements the Hague Convention on the Civil As-
pects of International Child Abduction, T.I.A.S., No. 11,670,
1343 U.N.T.S. 89 (Oct. 25, 1980) (“the Convention”), an
2 No. 23-3407

international treaty to which both the United States and Ger-
many are parties. The statute “entitles a person whose child
has been wrongfully [retained in] the United States in viola-
tion of the [] Convention to sue the wrongdoer in federal court
for the return of the child” to the child’s habitual residence.
Altamiranda Vale v. Avila, 538 F.3d 581, 583 (7th Cir. 2008) (cit-
ing 22 U.S.C. § 9003(b)). 1
The district court found that A.P.’s habitual residence at
the time he was retained was in Germany, where he had lived
with Baz for over a year, and that the retention in Illinois vio-
lated Baz’s rights of custody under German law. It thus
granted Baz’s petition and ordered the child’s return. We
stayed the district court’s return order while Patterson ap-
pealed the judgment. In his appeal, Patterson challenges both
the jurisdiction of the district court and its rulings on the mer-
its of the petition. We conclude that the district court properly
exercised the jurisdiction granted to it by ICARA and that the
record supports its decision. We therefore affirm.
I
In 2013, Baz was living in the United Kingdom and Patter-
son resided in Florida. The two met while Baz was visiting
Miami, and they soon struck up a relationship. Two years
later, Baz moved to Chicago on a student visa to pursue a doc-
toral degree in clinical psychology. Patterson accompanied
her, they moved into a house together, and their son, A.P.,
was born in May 2017. Although Baz and Patterson ended
their relationship shortly after A.P.’s birth, they continued to

1 In 2014, the codified legislation was transferred from Title 42 of the

United States Code to Title 22. Our references here are to the 2018 edition
of the Code.
No. 23-3407 3

occupy the same house, though on different floors, pursuant
to an order from the Circuit Court of Cook County, Illinois
(“Illinois state court”). In November 2017, Patterson commit-
ted a domestic battery against Baz, for which he was charged,
convicted, and sentenced to eighteen months of conditional
discharge. He has fully served that sentence.
Over the next few years, Baz and Patterson continued to
rely on the Illinois state court to resolve issues relating to
A.P.’s custody and placement. On August 5, 2019, Baz sought
and received the court’s permission to relocate with A.P. to
Wisconsin for her pre-doctoral internship. In September 2020,
Baz again requested permission to relocate with A.P., this
time to Minnesota so that she could complete a mandatory
pre-doctoral fellowship in forensic psychology. The Illinois
state court granted this request, too, and Baz completed her
fellowship in March 2021.
Baz’s student visa would have expired when her fellow-
ship concluded, but it had been extended six months to March
2022 because of regulatory changes implemented during the
COVID-19 pandemic. A sixty-day grace period allowed Baz
to stay in the United States until May 21, 2022. As that date
approached, Baz exhaustively pursued ways to remain in the
country. She applied for and was offered a position as a foren-
sic psychologist in Cincinnati, Ohio, but her petition in the
H-1B lottery was unsuccessful. She entered the green-card lot-
tery, but she was not selected for a visa. And she hired an im-
migration lawyer who helped her to apply for an EB-2 visa,
but this effort was also unsuccessful.
Anticipating that she would need to leave the United
States in May 2022, Baz sought permission from the Illinois
state court to relocate with A.P. to Germany. Patterson
4 No. 23-3407

objected to her request, and the guardian ad litem, Michael
Bender, recommended that the court deny it. The Illinois state
court held a trial on Baz’s relocation motion and, on May 9,
2022, granted her petition. The court then instructed Baz and
Patterson to draft an agreement detailing how they would di-
vide their parenting time and decision-making responsibili-
ties after Baz relocated.
The Illinois state court memorialized the parental agree-
ment on May 23, 2022, in a document entitled “Allocation
Judgment: Allocation of Parenting Responsibilities and Par-
enting Plan” (“Illinois Allocation Judgment”). The Illinois Al-
location Judgment was signed by Baz, Patterson, and the pre-
siding judge, but not by the guardian ad litem. It provided that
A.P. would move with Baz to Germany, where he would at-
tend school, with each parent paying half of his tuition. The
agreement also stated that A.P. would continue with his pri-
mary health-care provider in the United States, but that Baz
would be responsible for securing medical, health, and hospi-
talization insurance for him in Germany, at least through the
first month following his eighteenth birthday.
Although A.P. was to spend much of his time in Germany,
the Illinois Allocation Judgment provided that Patterson
would have parenting time during the summer and other
school breaks. He also was allowed to have daily video calls
with A.P. and to visit him in Germany. The parents agreed
that each of them would maintain possession of A.P.’s U.S.
passport during his or her respective parenting time, and that
they would exchange the passport whenever A.P. was
dropped off or picked up. The parties were allowed to modify
this parenting schedule by written agreement.
No. 23-3407 5

The Illinois Allocation Judgment also purported to deter-
mine A.P.’s habitual residence for purposes of the Conven-
tion. (As we elaborate below, a child’s habitual residence mat-
ters to the Convention because a retention cannot be wrongful
unless, among other requirements, “it is in breach of rights of
custody attributed to a person … under the law of the State in
which the child was habitually resident immediately before
the … retention.” Convention, art. 3.) The habitual-residence
provision of the Illinois Allocation Judgment states that “[t]he
‘Habitual Residence’ of the minor child is the United States of
America, specifically the County of Cook, State of Illinois,
United States of America.” Another provision provides that
neither Baz nor Patterson had “consented, or acquiesced to
the permanent removal of the child to or retention in any
country other than the United States of America.” The agree-
ment also includes a jurisdictional provision, which states
that “[s]o long as at least one parent resides in the State of Il-
linois, the Circuit Court of the State of Illinois shall retain ex-
clusive and continuing jurisdiction over this cause to enforce
or modify the terms and provisions of this Allocation Judg-
ment.” Although the Illinois Allocation Judgment stated that
Baz would continue to apply for temporary and permanent
visas that would allow her to travel to the United States, it did
not impose a time limit on her efforts, nor did it state that
Baz’s and A.P.’s move would be temporary or provide a date
that the agreement would expire.
By early May 2022, Baz had sold or donated all of her be-
longings in the United States. On May 13, 2022, with the per-
mission of the Illinois state court, she and A.P. relocated to
Germany. A.P. at the time was about five years old. Shortly
after they arrived, Baz acquired a German passport for A.P.,
who, like her, is a German citizen. (To be accurate, A.P. has
6 No. 23-3407

dual U.S. and German citizenship.) Baz testified that she ap-
plied for the passport because under German law A.P. could
not attend school or enroll in the national health-care system
without identification.
After Baz and A.P. relocated to Germany, A.P. enrolled in
school as planned. He attended kindergarten at the Interna-
tional School on the Rhine in Düsseldorf from August 2022
through December 2022. He then transferred to the Johanniter
Kindergarten in Erkrath, Germany (where Baz now lives),
which he attended from January 2023 until July 2023. A.P. was
scheduled to begin first grade on August 8, 2023, at the Re-
genbogen Grundschule (in English, the Rainbow Primary
School), which also is located in Erkrath. Outside of school,
A.P. has taken swim classes, and he has a German pediatri-
cian, dentist, and therapist. Like A.P.’s classes, these extracur-
riculars are conducted in German. A.P. is fluent in German,
English, and Turkish. He also has friends and extended fam-
ily, including a maternal grandmother, in Germany.
During the year following A.P.’s relocation to Germany,
Patterson visited A.P. several times and regularly exercised
his parenting time in the United States. Prior to his relocation,
A.P. had attended school and participated in extracurricular
activities in Chicago during Patterson’s parenting time. He
has siblings who live in Chicago and extended family else-
where in the United States.
Patterson’s parenting time during one of A.P.’s school
breaks ended on January 5, 2023. When he returned A.P. to
Germany, however, he did not hand over the child’s U.S.
passport to Baz. In response, Baz sought the assistance of the
German police. When the police failed to secure the passport,
she became worried that Patterson planned to take the child
No. 23-3407 7

from Germany and to retain him in the United States, and so
she filed a lawsuit in German court seeking an order prevent-
ing A.P. from being removed from Germany and awarding
her sole custody. That court entered interim orders that pro-
hibited A.P.’s removal from Germany, but it did not rule on
the custody request. Patterson obtained German counsel to
represent him during the proceedings, which he attended vir-
tually.
In March 2023, Patterson filed an “Emergency Motion to
Modify Parenting Time and Allocation of Parental Responsi-
bilities and Parenting Time” in Illinois state court. The court
continued the proceedings because it did not consider Patter-
son’s motion to be an emergency. A month later, the court or-
dered Baz to file a supplemental appearance. As of December
2023, she had not done so.
Back in the German court, Baz and Patterson negotiated a
settlement agreement and memorialized it in a “German Con-
sent Order” dated May 31, 2023. The settlement was twice dic-
tated and translated before each of the parents approved it. It
reaffirmed that joint parental care and custody of A.P. would
remain in place, and that the Illinois Allocation Judgment
would continue to apply to the extent that additional specifi-
cations had not been adopted. The parents further agreed that
A.P. was living in Germany with Baz, but that Patterson was
authorized and required to have parenting time or contact
with A.P. from June 19, 2023, through July 31, 2023, pursuant
to the Illinois Allocation Judgment. Once A.P. was back in
Germany, Patterson would be allowed to see him at discrete
times in August 2023 and to attend the child’s first-day-of-
school ceremony on August 8, 2023. Patterson would keep
8 No. 23-3407

A.P.’s U.S. passport going forward, and Baz would keep his
German passport.
Through the German Consent Order, Baz and Patterson
also agreed that they would not continue to pursue custody-
related matters pertaining to A.P. in either the United States
or Germany. Patterson “commit[ted] himself to submit the
[German Consent Order] to the [Illinois state] court in Chi-
cago by” June 2, 2023. He also agreed “to request that the
American court suspend the proceedings in view of the fact
that the German attorneys want to come up with an out-of-
court solution.” Patterson notified the Illinois state court of the
agreement on June 1, 2023, but he did not furnish the court a
complete copy of the German Consent Order (either in Ger-
man or in English).
Immediately after informing the Illinois state court about
the German Consent Order, Patterson told Bender (the guard-
ian ad litem) that he had agreed to that order under duress. 2
By June 2, 2023, Patterson had also filed a motion with the Il-
linois state court entitled “Emergency Motion to Modify Par-
enting Time and Allocation of Parental Responsibilities and
Parenting Plan and Petition for Rule to Show Cause and for a
Finding of Indirect Civil Contempt.” This motion may have

2 Bender testified that Patterson told him he entered into the German

Consent Order under duress “[a]lmost immediately” after the agreement
was entered. The district court, however, expressly declined to find that
Patterson was under duress at that time, noting that Patterson had been
“represented by retained counsel, voluntarily participated in the May 31,
2023, settlement proceedings, and presented no evidence that he signed
the [German] Consent Order under duress.” Baz v. Patterson, 2023 WL
8622056, at *3 n.2 (N.D. Ill. Dec. 13, 2023). Patterson has not challenged
that finding on appeal.
No. 23-3407 9

been the same as (or at least related to) the one Patterson filed
in March 2023, but in any event he appears to have continued
to pursue this request despite his agreement in the German
Consent Order to ask that the Illinois state court proceedings
be suspended pending efforts to resolve the case amicably.
When Baz learned that Patterson was acting contrary to
the German Consent Order, she expected that he would also
refuse to return A.P. to Germany by July 31, 2023, when his
summer parenting time was up. Motivated by this concern,
Baz did not make plans for A.P. to return to the United States
on June 19, 2023. This conflicted with the German Consent Or-
der.
On June 27, 2023, the Illinois state court ruled on a separate
motion filed by Patterson, this one entitled “Emergency Mo-
tion to Enforce the May 23, 2022 Court Order and to Modify
Parental Responsibilities and Parenting Plan.” The court
found that Baz had not turned A.P. over to Patterson on June
1, 2023, as the Illinois Allocation Judgment had required. (The
German Consent Order had modified the exchange date to
June 19, 2023, which also had passed.) It ordered Baz imme-
diately to turn over A.P. to Patterson, and authorized Patter-
son to travel to Germany to retrieve the child.
On July 3, 2023, Patterson arrived in Germany, went to
A.P.’s school, and removed the child from his kindergarten
class to bring him to the United States. The kindergarten staff
called the German police, who briefly stopped Patterson at the
Düsseldorf airport, but ultimately allowed him to leave the
country with A.P. because the German Consent Order stated
that Patterson’s parenting time had begun on June 19, 2023.
That same day, Patterson messaged Baz to inform her that he
10 No. 23-3407

had A.P. and that he would allow them to talk via FaceTime
once they were settled in the United States.
Sometime around July 7, 2023, Patterson filed an “Emer-
gency Ex Parte Petition for Temporary Restraining Order and
Preliminary Injunction” with the Illinois state court. 3 He re-
quested that Baz be ordered to return A.P. to Chicago (though
A.P. was in Chicago by that time) and sought sole custody.
On July 10, 2023, Patterson secured a favorable ruling on his
motion. The order stated that, until further order from the
court, Baz was “restrained from having physical contact
with” A.P. and that Patterson was “granted exclusive parent-
ing time and decision making for the minor child[.]” It further
ordered Baz to “deposit any and all foreign identification,
passport(s) (including, but not limited to any German pass-
port), or travel document(s)” for A.P. with the court by July
25, 2023.
On July 18, 2023, about a week after the temporary re-
straining order was entered, Baz filed a Hague Convention
Application for Return with the Central Authorities for the
United States and Germany, seeking A.P.’s return to Ger-
many. See 22 U.S.C. § 9003. Baz also petitioned the Illinois
state court to stay both its temporary restraining order and
the custody case. The court declined her request, and on July
25, 2023, it converted its temporary restraining order against
Baz into a preliminary injunction that remains in place. Since

3 The district court was not provided with a copy of Patterson’s peti-

tion, and so it found that the petition was filed around July 7, 2023 (i.e.,
three days before the Illinois state court ruled on the motion). Neither
party contests this finding.
No. 23-3407 11

pulling A.P. from his kindergarten class in July 2023, Patter-
son has not allowed the child to return to Germany.
On August 1, 2023, Baz filed her Verified Petition for Re-
turn of Child to Germany in the Northern District of Illinois.
The district court held a two-day evidentiary hearing, during
which it considered testimony from the parties, two German
attorneys, Bender, and Patterson’s sister. On December 13,
2023, the court granted Baz’s petition. It issued an order the
following day requiring that A.P. be returned to Germany.
But, after entering final judgment, the district court stayed its
return order through January 5, 2024, so that Patterson could
in turn seek a stay from us while he appealed the judgment.
See FED. R. APP. P. 8. We granted Patterson’s request for a stay
pending appeal and ordered expedited briefing. The case is
now ready for decision.
II
Before we reach the merits of this appeal, we must address
an unusual threshold issue. Patterson insists that the district
court should have denied Baz’s petition because various
provisions in the Illinois Allocation Judgment displace the
Convention. A close inspection of Patterson’s argument
shows that it can be understood in two discrete ways. On the
one hand, he states repeatedly that the district court lacked
“jurisdiction” over Baz’s petition because the Illinois
Allocation Judgment confers exclusive jurisdiction on the
Illinois state court. These statements suggest to us that
Patterson is making a forum-selection argument. On the other
hand, Patterson suggests that certain language in the Illinois
Allocation Judgment prevents any court but the Circuit Court
of Cook County from applying the Convention (and ICARA),
which we take to be a choice-of-law argument. As it turns out,
12 No. 23-3407

it does not matter which theory Patterson intends to advance.
Regardless of whether the jurisdictional provision is
understood as a forum-selection clause or a choice-of-law
clause, Patterson cannot rely on the Illinois Allocation
Judgment to oust federal jurisdiction over a case brought
under the Convention.
We begin with the forum-selection theory. A forum-
selection clause will not be enforced if it “would contravene a
strong public policy of the forum in which the suit is brought,
declared by statute or judicial decision.” Bonny v. Society of
Lloyd’s, 3 F.3d 156, 160 (7th Cir. 1993) (citing M/S Bremen v.
Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). The Convention is
an international treaty that “was adopted in 1980 in response
to the problem of international child abductions during
domestic disputes.” Abbott v. Abbott, 560 U.S. 1, 8 (2010). By
signing the treaty, the Senate and the President pledged that
the United States would “have in place judicial and
administrative remedies for the return of children taken from
the State of their habitual residence to another signatory State
in violation of the left-behind parent’s custody rights under
the law of the State of the child’s habitual residence.” Redmond
v. Redmond, 724 F.3d 729, 737 (7th Cir. 2013) (citing
Convention, arts. 3, 4, 7, 12).
Congress enacted ICARA to implement the Convention
for the United States. See 22 U.S.C. § 9001(b). The statute pro-
vides that “[t]he courts of the States and the United States dis-
trict courts shall have concurrent original jurisdiction of ac-
tions arising under the Convention.” Id. § 9003(a). By confer-
ring concurrent jurisdiction upon both the state and the fed-
eral courts, Congress made a policy judgment about how best
to meet the obligations it undertook under the treaty. The
No. 23-3407 13

parties have no power to contravene Congress’s choices about
subject-matter jurisdiction. All they might be able to do would
be to select one among several potential venues for suit. That
choice cannot be made without reference to the Convention.
There is thus nothing in the parties’ private forum-selection
agreement that either adds to or subtracts from the court’s ju-
risdiction, in the sense of its power to adjudicate the issues the
parties have raised. 4
The choice-of-law theory fails for similar reasons. As the
name suggests, choice-of-law clauses affect only the substan-
tive law that will apply to a claim raised under the Conven-
tion and ICARA. The possibility that some claims might not
be cognizable under the chosen law does not affect the court’s
jurisdiction. Choice-of-law clauses are generally enforceable,
but such a clause would be invalid if it violated United States
public policy. See Seafarers Pension Plan on behalf of Boeing Co.
v. Bradway, 23 F.4th 714, 726 (7th Cir. 2022). Congress, as we
have said, enacted ICARA so that a parent of a wrongfully
retained or removed child could petition courts in the United
States for the return of the child to the child’s habitual resi-
dence. Faced with such a petition, the court’s job is to consult
the governing law and decide where the child habitually re-
sides. If that residence is not in the forum state, then the court
dismisses as instructed by ICARA and the Convention so that

4 We note that there are provisions in the treaty and ICARA that affect

the kinds of claims that can be brought. For example, Congress has re-
quired that full faith and credit be accorded to prior judgments of both
state and federal courts, see 22 U.S.C. § 9003(g), thereby creating the basis
for an affirmative defense in some circumstances. But no judgment per-
taining to A.P. has arisen through adjudication of a claim under the Con-
vention, and neither is such a suit pending in another court.
14 No. 23-3407

the proper court can decide the delicate issues of residence
and custody that these cases present. Those are preliminary
procedural decisions, not jurisdictional rulings. As applied
here, there was no subject-matter jurisdiction bar preventing
Baz from filing her petition for a return order in the federal
court, notwithstanding the language in the Illinois Allocation
Judgment purporting to give “exclusive and continuing juris-
diction” over the case to the Circuit Court of the State of Illi-
nois. Upon Patterson’s motion, the federal court simply had
to decide what weight to give that choice-of-forum (or law)
provision under the Convention.
III
With this jurisdictional detour out of the way, we are
ready to address Baz’s return petition. In their briefs and at
oral argument, the parties at times seemed to mistake this case
for a custody proceeding. But “[a] Hague Convention case is
not a child custody dispute.” Redmond, 724 F.3d at 737 (quo-
tation omitted); see also 22 U.S.C. § 9001(b)(4) (“The Conven-
tion and this chapter empower courts in the United States to
determine only rights under the Convention and not the mer-
its of any underlying child custody claims.”). Rather, the pur-
pose of a Convention case is to determine whether a child has
been wrongfully removed or retained from his habitual resi-
dence and, if so, to order the child’s prompt return. See Red-
mond, 724 F.3d at 737. As the Supreme Court explained in a
decision that takes center stage in this dispute, “[t]he Conven-
tion’s return requirement is a provisional remedy that fixes
the forum for custody proceedings.” Monasky v. Taglieri, 589
U.S. 68, 72 (2020) (quotation omitted). Underlying the return
requirement “is the Convention’s core premise that ‘the inter-
ests of children … in matters relating to their custody’ are best
No. 23-3407 15

served when custody decisions are made in the child’s coun-
try of ‘habitual residence.’” Id. (quoting Convention Pream-
ble).
Thus, far from weighing in on a custody dispute, all that
we must decide is whether Baz has shown by a preponder-
ance of the evidence that A.P. was wrongfully retained away
from his habitual residence. See 22 U.S.C. § 9003(e)(1). To do
so, we apply a familiar four-part inquiry:
(1) When did the removal or retention of the child oc-
cur? (2) In what State was the child habitually resident
immediately prior to the removal or retention? (3) Was
the removal or retention in breach of the custody rights
of the petitioning parent under the law of the State of
the child’s habitual residence? and (4) Was the petition-
ing parent exercising those rights at the time of the un-
lawful removal or retention?
Redmond, 724 F.3d at 737–38. We address these four questions
sequentially.
A. Time of Retention
Baz alleges that Patterson wrongfully retained (as op-
posed to removed) A.P., and so “[t]he first question
is … when the retention began.” Walker v. Walker, 701 F.3d
1110, 1118 (7th Cir. 2012). “Wrongful retentions typically oc-
cur when a parent takes a child abroad promising to return
with the child and then reneges on that promise.” Redmond,
724 F.3d at 738 n.5. The date on which a wrongful retention
commenced is a question of fact on which we defer to the dis-
trict court. See Walker, 701 F.3d at 1118.
The district court identified July 7, 2023, as the date of
A.P.’s retention. Patterson had returned to the United States
16 No. 23-3407

with A.P. on July 3, 2023, and by July 10, 2023, he had re-
quested a temporary restraining order and exclusive parent-
ing time and decision-making authority. The district court un-
derstood Patterson’s actions as an indication of his refusal to
abide by the German Consent Order and of an intent not to
return A.P. to Germany when his summer parenting time
ended on July 31, 2023. It concluded that the retention oc-
curred on July 7, 2023, because that was “‘the date consent
was revoked’ or ‘when the petitioning parent learned the true
nature of the situation.’” Baz v. Patterson, 2023 WL 8622056,
at * 5 (N.D. Ill. Dec. 13, 2023) (quoting Abou-Haidar v. Sanin
Vazquez, 945 F.3d 1208, 1216 (D.C. Cir. 2019), abrogated on other
grounds by Monasky, 589 U.S. 68).
The record amply supports the district court’s finding.
When he agreed to the German Consent Order, Patterson
made affirmative representations regarding the date on which
he would return A.P. to Germany. He then turned around and
sought sole custody of A.P. notwithstanding his commitment
in the German Consent Order not to pursue further custody-
related matters pending efforts to resolve their dispute out of
court. Baz could reasonably infer from Patterson’s decision to
renege on that commitment that he also would not be return-
ing A.P. to Germany as they had agreed. Cf. Palencia v. Perez,
921 F.3d 1333, 1342 (11th Cir. 2019) (holding that “the date the
petitioning parent learned the true nature of the situation” is
the date of wrongful retention). The district court did not
clearly err by identifying July 7, 2023, as the date of retention.
B. Habitual Residence Prior to Retention
Our next task is to ascertain A.P.’s “habitual residence ‘im-
mediately before’ the alleged … retention.” Redmond, 724 F.3d
at 738 n.5 (quoting Convention, art. 3). As we noted in
No. 23-3407 17

Redmond, “[t]he Convention does not define the term ‘habitual
residence.’” Id. at 742. But the Supreme Court’s recent deci-
sion in Monasky sheds light on the meaning of that term. See
589 U.S. 68. In Monasky, the Court expressly rejected the view
“that habitual residence depends on an actual agreement be-
tween a child’s parents.” Id. at 77. Instead, “[t]he place where
a child is at home, at the time of … retention, ranks as the
child’s habitual residence.” Id.
Determining where a child was at home at the time of re-
tention is a “fact-driven inquiry,” “not a categorical one.” Id.
at 78, 77. The inquiry “must be ‘sensitive to the unique cir-
cumstances of the case and informed by common sense.’” Id.
at 78 (quoting Redmond, 724 F.3d at 744). Among the factors to
consider are “facts indicating acclimatization,” which “will be
highly relevant,” and “the intentions and circumstances of
caregiving parents.” Id. at 78. But “[n]o single fact … is dis-
positive across all cases,” and so courts must consider “the to-
tality of the circumstances specific to the case” to determine a
child’s habitual residence. Id. at 78, 71.
Monasky also announced the standard that an appellate
court must apply when reviewing a district court’s habitual-
residence determination. The Court concluded that the
inquiry presents a mixed question of law and fact because a
district court must first “correctly identif[y] the governing
totality-of-the-circumstances standard.” Id. at 84. Once a
district court has identified the appropriate standard, “what
remains for the court to do in applying that standard … is to
answer a factual question: Was the child at home in the
particular country at issue?” Id. Thus, so long as a district
court applies the correct legal standard, its habitual-residence
18 No. 23-3407

determination “should be judged on appeal by a clear-error
review standard deferential to the factfinding court.” Id.
1.
Here, the district court applied the totality-of-the-
circumstances standard to determine where A.P. was at home
on July 7, 2023. Patterson argues, however, that the totality-
of-the-circumstances standard does not apply. In his view, the
habitual-residence clause of the Illinois Allocation Judgment,
which states that A.P.’s habitual residence for purposes of the
Convention is Cook County, should have been conclusive
upon the court. Baz conceded in her petition that this
provision purported to determine the child’s future habitual
residence, and so we can take the meaning of the provision as
established. The critical question that Patterson raises is
whether a parental stipulation as to their child’s future
habitual residence conclusively establishes residence, or if
instead it is simply a factor (albeit a powerful one) for the
totality-of-the-circumstances test. We conclude that it can be
only the latter.
Patterson’s theory suffers from two fatal flaws. First, it
rests on the fallacy that Baz’s and Patterson’s stipulation can
bind third parties (such as A.P.’s guardian ad litem, who was
not a party to the Illinois Allocation Judgment) or the district
court. Patterson has directed us to no Convention case in
which a court concluded that either it or a non-party was
bound by a parental stipulation about the future habitual res-
idence of a child, and neither are we aware of such a case. To
the contrary, the courts that have confronted arguments of the
kind that Patterson presses have found them unpersuasive.
See, e.g., Karkkainen v. Kovalchuk, 445 F.3d 280, 292–93 (3d Cir.
2006) (concluding that a habitual-residence stipulation was no
No. 23-3407 19

longer binding because the child’s circumstances had
changed since the agreement was made).
In other contexts, we have refused to allow stipulations be-
tween the parties to bind third parties or to dictate the district
court’s factual determinations. As we noted in United States v.
Barnes, a sentencing case, “[g]enerally, stipulations are not
binding on the fact-finder.” 602 F.3d 790, 796 (7th Cir. 2010)
(citing Analytical Engineering, Inc. v. Baldwin Filters, Inc., 425
F.3d 443 (7th Cir. 2005)). In that case, we observed that a stip-
ulation is merely “a contract between two parties to agree that
a certain fact is true” and thus could not “bind a third party—
the district court judge—without his consent as well.” Id. Var-
ious treatises likewise take the position that stipulations can-
not bind third parties without their consent. See, e.g., 83 C.J.S.
Stipulations § 53 (2024) (noting that “[p]arties cannot by stip-
ulation affect any rights but their own” and that “there is no
binding effect on parties to the action who do not join in the
stipulation, especially when the rights of those not made par-
ties involve a matter of public interest”); 73 AM. JUR. 2d Stipu-
lations § 8 (2024) (“[I]t is recognized that a stipulation is not
binding upon those who are not parties either to the stipula-
tion or to the action or proceeding in which it is entered
into.”). We decline to carve out from that general rule an ex-
ception for habitual-residence determinations in Convention
cases.
The second flaw in Patterson’s theory is that it assumes
that parental intent alone can dictate a child’s habitual resi-
dence. That assumption is mistaken. Courts have long recog-
nized that the Convention has as its central goal the best in-
terests of the child, and so the child’s perspective is relevant
to determining his habitual residence. See, e.g., Feder v. Evans-
20 No. 23-3407

Feder, 63 F.3d 217, 224 (3d Cir. 1995) (explaining that a deter-
mination of habitual residence “must focus on the child and con-
sists of an analysis of the child’s circumstances in that place
and the parents’ present, shared intentions” (emphases
added)); Barzilay v. Barzilay, 600 F.3d 912, 918 (8th Cir. 2010)
(similar). The Supreme Court adopted that view in Monasky,
where it concluded that “[w]hat makes a child’s residence ha-
bitual is … some degree of integration by the child in a social
and family environment.” 589 U.S. at 77 (quotation omitted).
Even before Monasky, we had rejected the view that a pa-
rental agreement about a child’s future habitual residence
should be given decisive effect. See Redmond, 724 F.3d at 732.
The parents in Redmond had agreed in 2006 to raise their soon-
to-be-born son in Ireland, and the district court had treated
this agreement, which was evidence of “the parents’ last
shared intent[,] as a kind of fixed doctrinal test for determin-
ing a child’s habitual residence.” Id. We reversed, concluding
that last shared parental intent at the time of the child’s birth
“shed[] little light on the question of [the child’s] habitual res-
idence in 2011.” Id. Our decision was motivated by the belief
that it would be “unwise to set in stone the relative weights of
parental intent and the child’s acclimatization.” Id. at 746.
There is little to distinguish the parental agreement in
Redmond from the stipulation upon which Patterson relies.
Both the agreement and the stipulation seek to determine a
child’s habitual residence ex ante, rather than at the time
specified in the Convention. Although Baz and Patterson
attempted to tie the court’s hands in the Illinois Allocation
Judgment with respect to the future habitual residence of
their child, the district court correctly determined that the
No. 23-3407 21

stipulation can be only one factor among others to consider
when applying the totality-of-the-circumstances test.
In reaching this conclusion, we do not suggest that the
habitual-residence provision of the Illinois Allocation
Judgment carries no weight, nor do we imply in any way that
either parent was foolish to make such an agreement. A
parental stipulation as to their child’s future habitual
residence will often be powerful evidence of “the intentions
and circumstances of caregiving parents,” which are
“relevant considerations.” Monasky, 589 U.S. at 78. In other
cases, it may be evidence of the last shared parental intent,
which we have said “is one fact among others, and indeed
may be a very important fact in some cases.” Redmond, 724
F.3d at 744. Our conclusion does not disturb these principles.
But in the end, a child’s habitual residence depends not on
any one fact, but on the totality of the circumstances specific
to the case.
2.
Because the district court applied the correct legal test, we
review its finding that Germany was A.P.’s habitual residence
at the time of retention only for clear error. For this purpose,
Patterson advances two arguments. First, he insists that the
district court erred by considering evidence of A.P.’s acclima-
tization in Germany. In his telling, facts about A.P.’s time in
Germany are tainted as evidence of post-abduction acclimati-
zation, because Baz wrongfully removed A.P. to Germany
and retained him there.
This argument is a non-starter—and not simply because
Patterson has never brought a claim under the Convention.
Cf. Kijowska v. Haines, 463 F.3d 583, 588–89 (7th Cir. 2006)
22 No. 23-3407

(explaining that a father who did not pursue a remedy under
the Convention “enabled [the child] to obtain a habitual resi-
dence in the country to which her mother took her, even if the
initial taking was wrongful”). Patterson agreed to Baz’s relo-
cation to Germany with A.P. when he entered into the Illinois
Allocation Judgment and again when he signed the German
Consent Order. He cannot now claim that an arrangement
that he authorized constitutes a wrongful removal or reten-
tion of A.P. Patterson resists that conclusion by pointing to ev-
idence in the record that Baz procured permission to return to
Germany under false pretenses, namely, by disingenuously
telling the Illinois state court that she would continue to pur-
sue lawful immigration status in the United States when she
had no actual intent to do so. But the district court evaluated
that evidence and (unlike the Illinois state court) did not find
it persuasive. This was a credibility determination to which
we defer on clear-error review. On the basis of the facts the
district court found, it properly considered evidence of A.P.’s
acclimatization.
Patterson next argues that, even if the district court did not
err in considering A.P.’s acclimatization to Germany, we
should still reverse because it did not properly weigh the evi-
dence. Yet the court’s habitual-residence determination was
based on a close examination of the record and a careful
weighing of the circumstances specific to the case. The court
acknowledged that significant evidence suggests that A.P.’s
habitual residence was Chicago: the Illinois Allocation Judg-
ment expressed the parents’ shared intent in May 2022 that
Cook County would be A.P.’s habitual residence; the German
Consent Order arguably reaffirmed that shared parental in-
tent in May 2023; and A.P. has siblings in Chicago, as well as
extended family elsewhere in the United States.
No. 23-3407 23

The district court nonetheless concluded that there was
more evidence showing that A.P. had acclimated to social life
in Germany. The evidence of acclimatization included the fol-
lowing points: A.P. had been attending kindergarten and was
set to begin first grade in Germany; he had participated in ex-
tracurricular activities in Germany; he spoke German and his
schooling, extracurriculars, and medical services were con-
ducted in that language; he had friends and extended family
in Germany; he visited the United States only during school
breaks; and neither the Illinois Allocation Judgment nor any
other evidence indicated that the parents had made plans for
A.P. to return permanently to the United States. In the light of
these competing factors, we see no clear error in the district
court’s weighing of the evidence.
We freely concede that another judge considering the
same circumstances might have weighed the evidence differ-
ently. Even Baz acknowledges in her appellate briefing that
some evidence suggests A.P. is at home in Cook County; she
goes so far as to suggest that perhaps the court could have
made that finding. As we have said, however, appellate courts
must review a habitual-residence determination under the
deferential clear-error standard. See Monasky, 589 U.S. at 84.
When applying that standard, we cannot reverse “[i]f the dis-
trict court’s account of the evidence is plausible in light of the
record viewed in its entirety.” Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573–74 (1985). And “[w]here there are
two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” Id. at 574. The
district court’s finding that A.P. was at home in Germany on
July 7, 2023, is plausible, and so we must accept its determi-
nation.
24 No. 23-3407

C. Wrongful Nature of Retention
The third inquiry requires us to determine whether Patter-
son’s retention of A.P. was wrongful. A retention is wrongful
under the Convention only if it violates the petitioning par-
ent’s “‘rights of custody,’” which “‘include rights relating to
the care of the person of the child and, in particular, the right
to determine the child’s place of residence.’” Abbott, 560 U.S.
at 11 (quoting Convention, art. 5). A parent’s rights of custody
are determined by “the laws of the country in which the child
has his or her ‘habitual residence.’” Altamiranda Vale, 538 F.3d
at 583 (quoting Convention, art. 3). Our task, then, is to deter-
mine whether the retention of A.P. breached Baz’s rights of
custody under German law. The district court’s interpretation
of foreign law is a question of law that we review de novo. See
FED. R. CIV. P. 44.1. In interpreting the content of German law,
we “may consider any relevant material or source[.]” Id.; see
also Animal Science Prods., Inc. v. Hebei Welcome Pharmaceutical
Co. Ltd., 585 U.S. 33, 42–43 (2018).
The district court properly concluded that Baz had rights
of custody under German law. The German Consent Order
specifically states that the joint parental care and custody re-
quired by the Illinois Allocation Judgment would remain in
place. Dr. Andreas Hanke, an expert in German family law
and procedure, testified that this settlement gave Baz joint
custody rights under German law. Patterson did not dispute
Dr. Hanke’s interpretation of German law, nor did he submit
evidence showing that he was authorized to retain A.P. in the
United States at the time of retention. The balance of the evi-
dence thus shows that Patterson’s refusal to abide by the pa-
rental agreements, as evidenced by his efforts to seek sole cus-
tody and his claim to have agreed to the German Consent
No. 23-3407 25

Order under duress, breached Baz’s rights of custody under
German law. 5
D. Exercise of Rights of Custody
We arrive at the fourth and final inquiry: whether Baz was
exercising her rights of custody at the time of the retention.
“The standard for finding that a parent was exercising his cus-
tody rights is a liberal one.” Walker, 701 F.3d at 1121. A person
who has valid custody rights to a child under the law of the

5 The dissent seems to look past the record evidence to find error in

the district court’s analysis. For example, as support for its suggestion that
we should view Baz’s request for relief from the German court in early
2023 as a breach of parental rights, the dissent speculates (without any
apparent basis in the record) about possible motives underlying Baz’s de-
cision to seek relief from the German court. See post at 41, 44. (Conven-
iently absent from this theory is the fact that in January 2023 Patterson
refused to hand over A.P.’s U.S. passport at the end of his parenting time,
as required by the Illinois Allocation Judgment—a finding that, unlike any
speculation about ill motives, was made by the district court and is amply
supported by the evidence in the record.) The dissent also suggests that
Patterson’s claim to Bender that he agreed to the German Consent Order
under duress “had no apparent effect” on Bender or the Illinois state court.
Post at 44 n.6. But there is evidence that Patterson’s claim did affect
Bender, see supra n.2, and the record is silent on its effect on the Illinois
state court.
We think it is unusual, to say the least, to fault the district court for
not considering evidence not before it. The dissent’s approach is also in-
consistent with the standard of review adopted by Monasky. Under clear-
error review, “[o]ur ‘task on appeal[]’ … ‘is not to see whether there is any
evidence that might undercut the district court’s finding; it is to see
whether there is any evidence in the record to support the finding.’”
United States v. Dickerson, 42 F.4th 799, 804 (7th Cir. 2022) (quoting United
States v. Cruz-Rea, 626 F.3d 929, 938 (7th Cir. 2010)). As we have said, the
district court’s findings of fact are plausible in light of the record evidence,
and so our inquiry ends there.
26 No. 23-3407

country of the child’s habitual residence “‘cannot fail to “ex-
ercise” those custody rights under the Hague Convention
short of acts that constitute clear and unequivocal abandon-
ment of the child.’” Id. (quoting Friedrich v. Friedrich, 78 F.3d
1060, 1066 (6th Cir. 1996) (alteration omitted)). Nothing in the
record suggests that Baz abandoned, or sought to abandon,
A.P. Quite the opposite, the evidence shows that Baz actively
sought to maintain regular contact with A.P. and that she was
able to do so. That is enough to establish that she was exercis-
ing her rights of custody at the time of the retention.
IV
We close with an important reminder. All that we have de-
cided today is that A.P. was wrongfully retained away from
his habitual residence, and that the Convention entitles Baz to
have him returned to Germany. Our decision does not touch
on any matters of custody. The Convention seeks to promote
the best interests of the child by entrusting custody proceed-
ings to the country where the child is at home. As we have
explained, “[t]he merits of [a] child custody case—what a par-
ent’s custody and visitation rights should be—are questions
that are reserved for the courts of the habitual residence.” Red-
mond, 724 F.3d at 737 (quotation omitted). As such, if future
custodial disputes involving A.P. should arise while his ha-
bitual residence remains in Germany, the task of resolving
them will fall on the tribunals established in that country for
the resolution of such issues. It is entirely possible that the
German courts would conclude that they should defer to the
Illinois Allocation Judgment, under principles of lis pendens or
other doctrines. But that is a question that they, not we, must
resolve. The Convention is an anti-abduction treaty; it “is not
No. 23-3407 27

a vehicle for resolving competing jurisdictional … claims in
[an] underlying custody dispute.” Id. at 740.
The judgment of the district court is AFFIRMED. The stay
we issued in this case will dissolve when our mandate issues.
28 No. 23-3407

HAMILTON, Circuit Judge, dissenting. We should reverse
the district court’s order to return A.P. to Germany. The order
was based on two important legal errors. Those errors, ac-
cepted by the majority, will make it significantly more diffi-
cult to resolve international child custody issues by agree-
ment.
First, the district court gave no meaningful weight to the
parents’ May 2022 agreement, accepted and ratified by the
court in Illinois, where both parents and the child had lived
and where earlier custody issues had been adjudicated. The
mother was about to leave the United States because her visa
was expiring. The parents’ agreement, called the Illinois Allo-
cation Judgment, resolved a host of issues, including custody,
visitation, schooling, and support. It also included agreement
that the child’s habitual residence for Hague Convention pur-
poses would remain in Illinois as he would be traveling back
and forth between the father in Illinois and the mother in Ger-
many.
To encourage such fair and sensible agreements, courts
should enforce them absent unusual circumstances threaten-
ing the well-being of the child. Cf. Barzilay v. Barzilay, 600 F.3d
912, 921 (8th Cir. 2010) (rejecting agreement that habitual res-
idence would be nation where child had never lived).
The majority, by refusing to enforce the agreement based
on nothing more than the parents having carried out its terms
that allowed the child’s temporary move to Germany, and de-
spite the habitual residence disclaimer, signals that the father
was indeed foolish to reach that agreement. The child was in
Germany only temporarily, pursuant to the terms of the
agreed Illinois Allocation Judgment. See generally Monasky v.
No. 23-3407 29

Taglieri, 589 U.S. 68, 78 (2020) (reason that child is present in
one nation is relevant to habitual residence determination).
Under the reasoning of the district court and the majority,
if the father wanted to ensure that the Illinois court retained
legal control over the child’s care, he should have eschewed
any agreement. He should instead have fought in court in
May 2022 to prevent the mother from taking the U.S.-resident
child to Germany, even temporarily.
The district court’s second legal error was holding that the
father’s act of supposedly “wrongful retention” under the
Hague Convention was filing in the Illinois court a petition to
modify custody. That holding is wrong for several reasons.
Both parents had agreed the Illinois court would have contin-
uing and exclusive jurisdiction over such matters. We should
interpret the Hague Convention to encourage court involve-
ment rather than self-help. And adding insult to injury, if we
are going to treat any court petitions as acts of wrongful re-
tention, the mother’s earlier resort to a German court in Feb-
ruary 2023 to seek sole custody was a far clearer breach. She
tried to strip the father of his rights under the law of the
child’s habitual residence in Illinois. Moreover, the father
filed his supposedly wrongful July 2023 petition only after the
mother had refused to allow him to take the child to the
United States on June 19, 2023. The mother’s refusal was
wrongful under both the Illinois and German court orders.
I. Parental Agreements and the Hague Convention
My greatest concern about the majority opinion is its fail-
ure to give much greater weight to the parents’ agreement.
That agreement offered a comprehensive resolution of cus-
tody, visitation, and support issues. Those issues were
30 No. 23-3407

especially challenging because the parents intended to live in
different countries, though the mother had agreed her resi-
dence in Germany would be only temporary. Given the inter-
national dimension, a critical term of that agreement was that
the United States would remain the child’s habitual residence
for purposes of the Hague Convention. In the absence of pow-
erful contrary reasons, based on the best interests of the child,
courts should respect and enforce such agreements.
Every step of the district court’s and majority’s reasoning
begins with the finding that the child’s habitual residence had
shifted to Germany by July 2023. That finding contradicts the
parents’ agreement as set forth in the Illinois Allocation Judg-
ment. The logic underlying that critical finding will under-
mine parents’ and state courts’ ability to resolve difficult fam-
ily law disputes by agreement.
The majority and I agree that a child’s country of habitual
residence is a critical concept under the Convention, and the
Supreme Court has held that habitual residence is a question
of fact that must be determined based on the totality of the
circumstances. Monasky, 589 U.S. at 77–78. The majority and I
also agree that parents cannot contract their way out of the
Convention, at least not conclusively. We also agree that, on
the path the parents chose here in their 2022 agreement—to
share custody and arrange for frequent trans-Atlantic travel,
thereby giving the child strong ties to both nations—their ac-
tions toward the child would send mixed signals about his
habitual residence. Some facts favored the United States and
others Germany. See ante at 23 (acknowledging another judge
might have come to a different conclusion on the child’s ha-
bitual residence).
No. 23-3407 31

As a practical matter, courts have every reason to give
such agreements great weight. Doing so will encourage par-
ents to work out these problems by agreement rather than
forcing parents toward premature, unnecessary, and corro-
sive litigation to establish sole custody or to prevent tempo-
rary relocations abroad. Giving such agreements great
weight, subject to exceptions for serious threats to a child’s
best interests, is entirely consistent with the Supreme Court’s
decision in Monasky.
I can explain this concern best by looking back to May 2022
and the dilemma that this father and mother faced. The child
was then five years old. He had been born in the United States
as a United States citizen. He had lived his entire life in the
United States. The father and mother had a difficult relation-
ship, but they had managed for more than four years to share
custody of the child and even a residence. But they all faced a
crisis in May 2022. The mother’s student visa was about to ex-
pire. Her efforts to find another way to stay in the United
States legally had not been successful. Her departure from the
United States was imminent.
The mother had a powerful and obvious desire to take her
child with her, regardless of what the future might bring. The
father also had a powerful and obvious desire to stay in-
volved in the child’s life. He could rightly fear that if he
agreed to the mother taking the child to Germany, even tem-
porarily, he would have no assurance the child would ever
return or the mother would even let him visit.
What options were available to them? The Illinois court
had the power to deny the mother’s request to take the child
to Germany. If the court did so and the mother wanted to stay
a part of her son’s life, she would need to figure out a way to
32 No. 23-3407

return to the United States legally, either permanently or tem-
porarily, to see him on periodic visits.
The Illinois court also had the power to allow the mother
to take the child to Germany, temporarily or even perma-
nently. Once that happened, though, the Illinois court would
have little if any power to protect the father’s rights to stay
involved in the child’s life.
So should the Illinois court have allowed the removal or
not? Either choice would have bad consequences for the child
and both parents. Each parent risked a devastating and pos-
sibly permanent loss through further litigation.
The alternative was to work out an agreement—one in
which both parents could have confidence. Facing those pres-
sures, and with the help of the Illinois court and the child’s
guardian ad litem, the parents worked out the May 2022 Illi-
nois Allocation Judgment.
That agreement was comprehensive. It certainly seems to
have been fair to both parents and the child. It was a sensible
solution to the dilemma the parents and child faced. Most im-
portant for present purposes, it also included carefully nego-
tiated provisions for resolving disputes that might arise, in-
cluding disputes under the Hague Convention.
Under the agreement, the parents agreed to joint custody
and decision-making on major issues, including education
and health care. The mother would take the child to
Germany—temporarily—and would enroll him in school
there. The father would have the child in the United States
over the summer, Christmas holidays, and his school spring
break, and would have parenting time with him in Germany
during the autumn and late winter school breaks.
No. 23-3407 33

Several provisions emphasized the temporary nature of
the departure to Germany. Most important here, the parents
agreed that the habitual residence of the child would remain
in the United States, specifically in Illinois. Illinois Allocation
Judgment, Art. VI. They also agreed that the Illinois court was
the appropriate venue for resolving any disputes about the
child’s custody, support, and so on. Art. VI(B). The mother
agreed to “continue to make efforts towards applying for tem-
porary or permanent Visas” for the United States and to re-
port to the father every six months on her progress. Art. III,
¶ 3.01(G). The parties also agreed: “Nothing in the order shall
aver or imply that either party has consented, or acquiesced
to the permanent removal of the child to or retention in any
country other than the United States of America.” Art. VI(D).
Both parents also agreed to waive the Convention’s one-year
“statute of limitations,” agreeing that neither would raise as a
defense to a return order that the child had resided in a for-
eign state in excess of one year. Art. VI(C).
The agreement further specified that if “either party fails
to comply with the terms of this Order and fails to return the
minor child to the State of Illinois … then for purposes of any
proceedings or litigation under the Hague Convention” that
party will be responsible for attorneys’ fees. Art. VI(F). This,
again, shows that the parties intended the child’s move to
Germany to be temporary and that Illinois would continue to
be the child’s permanent home.
After the move to Germany, disputes between the mother
and father arose, as they and the Illinois court had anticipated
might happen and for which they had planned. The agreed
plan was to address them in the Illinois court under the Illi-
nois Allocation Judgment. Both the district court and the
34 No. 23-3407

majority opinion effectively disregard the parents’ fair and
sensible agreement.
There can be no doubt that, as of May 2022, the child’s ha-
bitual residence was the United States. The district court
found, though, that the one year the child spent (primarily)
with his mother in Germany under the terms of the Illinois
agreement was sufficient to move his habitual residence to
Germany. That reasoning caused the agreement effectively to
self-destruct within a year. In May 2022, both parents and the
Illinois court agreed (a) that the mother could take the child
temporarily to Germany subject to the visitation and other
terms, and (b) that the temporary removal to Germany would
not change the child’s habitual residence.
In other words, the district court blew up the Illinois
agreement based only on events that were agreed, planned,
and designed into the comprehensive agreement. There was
nothing unexpected here, no external shock to disrupt the
parties’ expectations (such as an illness, a pandemic, civil dis-
order in one country, loss of a job forcing another interna-
tional move, one parent’s practical abandonment of the child,
etc.).
Under these circumstances, in the interest of promoting
agreed-upon resolutions of dilemmas like the one faced by
this family in May 2022, courts should give much greater
weight to such agreements. In this case, where no unexpected
or unforeseeable factors would render the agreement con-
trary to the child’s best interests, it should have controlling
weight.
The majority, after explaining why it is disregarding the
parents’ agreement here, asserts “we do not suggest that the
No. 23-3407 35

habitual-residence provision of the Illinois Allocation Judg-
ment carries no weight, nor do we imply in any way that ei-
ther parent was foolish to make such an agreement.” Ante at
21. With respect, that assurance strikes me as wishful thinking
about a difficult issue.
Consider what happens the next time parents in the
United States face a similar dilemma. One parent needs to
leave the United States and would like to take a child along
for more than a month or two. If the parent remaining in the
United States cannot count on the courts to enforce an agree-
ment like this one, that parent will have a powerful incentive
to refuse to agree to even a temporary removal, no matter how
much sense it might otherwise make for the parents and child.
I do not know what advice the majority would give such a
parent, other than to litigate to the bitter end before the other
parent is allowed to travel abroad with the child. Such divi-
sive litigation will be corrosive for both parents and for the
child. It would be unnecessary if courts were willing to en-
force agreements like this one.
The majority acknowledges that an agreement like this
“will often be powerful evidence of ‘the intentions and cir-
cumstances of caregiving parents,’ which are ‘relevant con-
siderations.’” Ante at 21, quoting Monasky, 589 U.S. at 78.
That’s exactly the case here. All the evidence the district court
relied upon to find a change in habitual residence consisted
of actions that the parties had agreed to in the same Illinois
court order in which they also agreed the move to Germany
would not change the child’s habitual residence. See Monasky,
589 U.S. at 78 (reason that child is physically present in a
country is a factor when determining habitual residence). See
also Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir. 2005) (directing
36 No. 23-3407

courts to “pay close attention” to the intentions of the parents
“to determine whether the child’s presence at a given location
is intended to be temporary, rather than permanent”); Mozes
v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001) (“Despite the su-
perficial appeal of focusing primarily on the child’s contacts
in the new country, … in the absence of settled parental intent,
courts should be slow to infer from such contacts that an ear-
lier habitual residence has been abandoned.”), abrogated on
other grounds by Monasky; Feder v. Evans-Feder, 63 F.3d 217,
224 (3d Cir. 1995) (reversing habitual residence determination
partly because district court gave insufficient weight to the
shared intent of the parents).
The goal of the Hague Convention was to discourage
forum-shopping in international child custody disputes, both
by literal abductions and refusals to comply with court
orders. E.g., Walker v. Walker, 701 F.3d 1110, 1116 (7th Cir.
2012) (Convention serves “to deter parents from absconding
with their children and crossing international borders in the
hopes of obtaining a favorable custody determination in a
friendlier jurisdiction”); Mozes, 239 F.3d at 1079 (“The
Convention is designed to prevent child abduction by
reducing the incentive of the would-be abductor to seek
unilateral custody over a child in another country.”); Barzilay,
600 F.3d at 922 (father engaged in “precisely the sort of
international forum shopping the Convention seeks to
prevent” by seeking to resolve custody disputes in Israel
where he expected more favorable disposition than in United
States where his children had lived for five years).
Yet the district court and majority have rewarded just such
actions by the mother in this case. She told the Illinois court
she wanted to take the child to Germany temporarily. She
No. 23-3407 37

assured the Illinois court and the father that she would “con-
tinue to make efforts towards applying for temporary or per-
manent Visas that enable her to travel to and from the United
States.” Illinois Allocation Judgment, Art. III, ¶ 3.01(G). She
also promised to provide updates to the father every six
months about her progress. Id. And of course she further
agreed that any future disputes would be resolved through
the Illinois court. Art. VI(B). 1

1 There is good reason to believe that the mother deliberately misled

the Illinois court and the father in assuring them in May 2022 that she in-
tended only a temporary stay in Germany, until she could obtain a visa
for the United States. She told the German court that the Illinois guardian
ad litem had “suggested that my son should stay with his father and I
should live alone in Germany until my Green Card applications are de-
cided. Since I had already read his report, and the prospect of losing my
child was so distressing for me, my lawyer said we should tell the court
that I would return if I got a Green Card. Otherwise, we might lose.”A-54.
This damning admission (understandable in human terms, but difficult
for courts to tolerate, especially when both parents face similarly powerful
pressures) was the subject of testimony in the district court. The court
made no findings about the admission, which is difficult to reconcile with
that court’s ultimate decision. The majority seems to treat the district
court’s silence as an implicit credibility finding. Ante at 22. The better
reading is that the district court simply failed to confront the force of this
powerful evidence of deliberate deception.
It should be black-letter law under the Convention that a party should
not be able to better her position by such deception, and that evidence of
a child’s acclimatization obtained wrongfully should be discounted in any
habitual residence determination. See Monasky, 589 U.S. at 78 (explaining
“that an infant lived in a country only because a caregiving parent had
been coerced into remaining there … should figure in the calculus”); id. at
82 (“When all the circumstances are in play, would-be abductors should
find it more, not less, difficult to manipulate the reality on the ground,
thus impeding them from forging ‘artificial jurisdictional links … with a
38 No. 23-3407

Then, the first time a dispute arose with the father, eight
months after departing the United States, the mother did not
go to the Illinois court. Instead, she filed an entirely new
action in a German court seeking “transfer of sole parental
custody” of the child. A-48. In doing so, she also appears to
have lied to the German court when she swore: “The father
has consented to a permanent move to Germany via court
approval.” A-52. He had done no such thing. He agreed to
temporary removal under all the terms of the Illinois
Allocation Judgment. The child’s guardian ad litem also
testified to the district court that it was the Illinois state court’s
understanding at the time of the May 2022 agreement that the
move would be temporary—otherwise the Illinois court
would not have approved the arrangement.
To sum up the point, by disregarding the parents’
agreement and by effectively rewarding the mother’s
deceptive forum-shopping tactics, the decision in this case
will make it more difficult for parents facing similar issues in
the future to resolve them through fair agreements. That
result is not required by the Convention nor by case law
interpreting it. We should instead adopt not a bright-line rule
that such agreements are always controlling, but a strong

view to obtaining custody of a child,’” quoting 1980 Conférence de La
Haye de droit international privé, Enlèvement d’enfants, E. Pérez-Vera,
Explanatory Report in 3 Actes et documents de la Quatorzième session,
p. 428 ¶ 11 (1982)); Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001) (“a
parent cannot create a new habitual residence by wrongfully removing
and sequestering a child”). Cf. Redmond v. Redmond, 724 F.3d 729, 743 (7th
Cir. 2013) (parent’s removal of child from country A to country B was not
wrongful, so district court did not error in giving weight to time child had
spent in country B when determining habitual residence).
No. 23-3407 39

presumption that such an agreement about habitual residence
should be honored absent extraordinary circumstances
requiring otherwise in order to serve the best interests of the
child. There are no such circumstances here, so we should
honor the agreement and treat the United States as this child’s
habitual residence. 2
II. Wrongful Retention
The second major legal error in the district court’s decision
was finding that the father engaged in what the Hague Con-
vention calls “wrongful retention.” That finding triggered the
mother’s right to demand the remedy of return. The suppos-
edly wrongful act was the father’s filing of an ex parte petition
for a temporary restraining order and preliminary injunction
to bar the mother from contacting the child or removing the
child back to Germany. The majority apparently endorses this
theory. Ante at 24–25.
With respect, I believe this theory of wrongful retention is
profoundly mistaken—both in general and especially on the
specific facts in this case. I also believe this theory is incorrect
even if the district court and majority were correct to find the
child’s habitual residence had switched to Germany.
As a general matter, asking a court with at least arguable
jurisdiction to grant relief through fair legal procedures is
hard to call wrongful. The central focus of the Hague Conven-
tion, after all, is international abductions of children. Putting

2 The majority’s emphasis on deferential appellate review might be

understood to narrow the breadth of this precedent. That point about def-
erential review will not, however, offer meaningful comfort ex ante to a
parent deciding whether to agree to or fight a temporary departure from
the United States.
40 No. 23-3407

an issue of custody before a court, for the court to decide, is
the antithesis of abduction or other extra-judicial self-help
measures the Convention is meant to avoid. This case pre-
sents a disagreement about jurisdiction and choice of forum,
not an abduction or wrongful retention of a child in the
United States. See Toren v. Toren, 191 F.3d 23, 28 (1st Cir. 1999)
(rejecting argument that mother’s filing of custody complaint
in state court when prior agreement between parents pro-
vided that custody disputes would be handled by Israeli
courts was a wrongful retention because “it is in no way
linked to the retention of children”).
More specific to this case, even if some uses of one nation’s
courts might be deemed wrongful under the Convention, it’s
especially hard to call the father’s action wrongful in this case.
See, e.g., Abou-Haidar v. Sanin Vazquez, 945 F.3d 1208, 1217–18
(D.C. Cir. 2019) (wrongful retention occurred when mother
unilaterally filed in D.C. courts brand new custody suit seek-
ing permanent sole custody of child and informed father that
she no longer intended to return to France with the child as
previously agreed). Unlike the mother in Abou-Haidar, the fa-
ther here asked for judicial relief from the court that both parents
had agreed would have jurisdiction to decide all such questions
between them. With respect, how can that be wrongful?
To declare that action wrongful, the mother, the district
court, and the majority engage in circular reasoning. Whether
the action is potentially wrongful depends on whether it vio-
lated the mother’s rights under the law of the child’s habitual
residence. Redmond v. Redmond, 724 F.3d 729, 737–38 (7th Cir.
2013). In July 2023, when the father filed his petition in the
Illinois court, he had every reason to think that Illinois re-
mained the child’s habitual residence. The mother had even
No. 23-3407 41

repeated her agreement to that point—just a few weeks earlier—
by ratifying the Illinois Allocation Judgment in the German
Consent Order on May 31, 2023.
Thus, the only reason the father’s July 2023 court filing
could be a “wrongful retention” was because the district court
found, ex post, that the child’s habitual residence had shifted
to Germany immediately prior to that July filing. But this es-
sentially punishes the father for a good-faith reliance on the
May 2022 agreement, recently reaffirmed in the May 31, 2023
German Consent Order, just a few weeks before he filed his
July 2023 petition. As discussed above, a disagreement over
whether a court has jurisdiction to address a custody dispute
is not in and of itself a wrongful retention.3
Adding to the irony and inconsistency here, consider
events from a few months earlier, in February 2023. That’s
when the mother filed an entirely new case in a German court
asking that court to award her sole custody. If the courts are
going to treat any requests for judicial relief as wrongful un-
der the Convention, the mother’s action in February 2023 was
an earlier and worse breach of the father’s rights. See Abou-
Haidar, 945 F.3d at 1217–18. The mother had agreed only nine
months earlier that she would take no such action and that the
Illinois court would retain exclusive jurisdiction over the
child’s custody, support, visitation, and so on. Back in Febru-
ary 2023, the case for treating Illinois as the child’s habitual

3 Perhaps further highlighting the oddities here, if the district court

had ordered the child returned to Germany on the date of the alleged
“wrongful retention,” that order would have conflicted with the agreed
terms of the German Consent Order providing the father with parenting
time in the United States through the end of July 2023.
42 No. 23-3407

residence was even stronger than it was five months later in
July. 4
At that point, perhaps, under the majority’s reasoning, the
father would have been well-advised to launch his own
Hague Convention petition in Germany for a court order re-
turning the child to the United States. But we should not fault
him for trying to work things out by further agreement, at
least for a few months. 5
Another odd aspect of the majority opinion is its conclu-
sion that the father’s “efforts to secure sole custody” of the
child “breached [the mother’s] rights of custody under Ger-
man law.” Ante at 24–25 (emphasis added). With respect, I do
not see how an effort to modify the other parent’s legal rights

4 The majority says that this dissent goes outside the record to specu-

late here about the mother’s motives. Ante at 25 n.5. Neither point is cor-
rect. I am not speculating about the mother’s motives, which do not mat-
ter, at least under my view of the case. For the relevant facts, I am relying
on her filings in the German courts. Those filings were before the district
court and are before this court. See Resp. Tr. Ex. 14 at A-47–74. The details
of the parents’ dispute over just when, where, and how the father was
supposed to turn over the child’s U.S. passport in January 2023 show the
kind of squabbles that often can arise between parents impatient and frus-
trated with each other. The salient point, though, is that the mother had
agreed to address such foreseeable disputes before the Illinois court.
5 The father’s approach here is not fairly comparable to events in Ki-

jowska v. Haines, 463 F.3d 583, 588–89 (7th Cir. 2006), cited by the majority
on this point. We suggested in Kijowska that a father in the United States
should have sought relief under the Convention in Poland, where the
child was a habitual resident, rather than seek ex parte relief from a court
in Illinois. In Kijowska, however, the father had previously disavowed in-
terest in seeking custody, and there was no prior court case at all, let alone
one in which the mother had agreed that a state court in the United States
should decide custody and related issues.
No. 23-3407 43

in court violates those rights. See Toren, 191 F.3d at 28 (court
filing seeking modification of visitation agreement was not
wrongful retention). That question of rights is the question
put to the court. If the effort is not successful, it’s hard to find
a violation. And if the effort is successful, it’s even harder to
find a violation of legal rights, at least subject to further re-
view and appeal.
The district court’s theory was that the father’s going to
the Illinois court in July 2023 violated the mother’s rights un-
der German law, as established under the German Consent
Order of May 31, 2023. That was also a mistake. The German
Consent Order recognized that the child was “living” with his
mother at the moment, using the present tense. But it also rat-
ified the Illinois Allocation Judgment, under which the Ger-
man residence was supposed to be temporary and with no ef-
fect on habitual residence for Convention purposes. Remem-
ber, as well, that the Illinois Allocation Judgment fixed the Il-
linois court with “continuing and exclusive jurisdiction” over
custody disputes. In the German Consent Order, both parents
reaffirmed the Illinois Allocation Judgment, and nothing in
the German Consent Order expressly displaced that provi-
sion or any other term of the Illinois Allocation Judgment. The
German Consent Order was also only an interim agreement.
It was temporary, to apply pending an anticipated broader
and more permanent out-of-court agreement that the parents
were never able to reach.
Moreover, by the time the father went to the Illinois court
on July 7, 2023, the mother had already blown up the interim
German Consent Order. That happened when she refused to
allow the father to take the child to the United States on June
19 for the scheduled summer visit through the end of July.
44 No. 23-3407

The father had done what he had agreed to do under the Ger-
man Consent Order. The day after it was signed, he submitted
a translation of the order to the Illinois court. It was not the
official translation (which was not available that quickly), but
it was substantially correct and reliable. It communicated to
the Illinois court that the father had agreed to withdraw pend-
ing requests to modify the Illinois agreement, including his
March 2023 emergency motion requesting the court to give
him sole physical custody. 6
Under both the Illinois Allocation Judgment and the new
German Consent Order, the mother clearly was required to
allow the father to take the child on June 19 to the United
States. She did not do so. If there was any wrongful retention
in this case, that was it. (The majority recognizes this fact in
its factual review, ante at 9, but ignores it in the key paragraph
affirming the wrongful retention finding, ante at 16.) The
mother’s breach came several weeks before the father sought
help from the Illinois court. Whichever country was correctly
deemed the child’s habitual residence as of June 19, 2023, the
father had a legal right to that visitation under the court or-
ders of both countries.
Conclusion
This is no doubt a difficult case, and I do not claim to know
what arrangements are in the best interests of this child. That

6 One of the best facts for the mother’s case is that in early June, the

father told the child’s guardian ad litem in Illinois that he had agreed to
the German Consent Order only under “duress.” As best I can tell, how-
ever, neither the guardian ad litem nor the Illinois court gave any credence
to that assertion. It was a mistake for the father to make that claim, but it
had no apparent effect. See ante at 8 n.2.
No. 23-3407 45

sort of decision is beyond our role here, which is limited to
deciding the appropriate forum for resolving the parents’ dis-
putes. I agree with my colleagues that, even under this court’s
decision, the German courts retain discretion to defer to the
Illinois court under the Illinois Allocation Judgment. For the
reasons explained above, however, the precedent set in this
appeal is not required under the Convention or applicable
precedents. This precedent will make it more difficult for fam-
ilies to reach agreements on international custody arrange-
ments and to resolve new disputes when they inevitably arise.
I respectfully dissent.