Duhaime's Law Dictionary


Habitual Residence Definition:

Ordinary residence.

Related Terms: Domicile, Permanent Resident, Abode, Ordinarily Resident

A place of settled dwelling which constitutes a person's ordinary residence.

In C v S, the British Court said:

"If he or she leaves ... with a settled intention not to return ... but to take up residence in country B instead, such a person cannot, however, become habitually resident in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so."

In other words, it may take time to establish a habitual residence, but terminating only takes a departure with intent to relocate permanently. In some cases, a new habitual residence could be established in as little as one month.

The term is a pivotal part of the Hague Convention on International Child Abduction which, at Article 4, uses the term but does not define it, as follows:

"The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply where the child attains the age of sixteen years."

Legal theorists have opined that the omission on a definition of the term in international law is intentional with the design being to leave the judiciary unhindered by rigidity and free to adapt or adjust their findings to disparate judicial systems, such as a Hague Convention matter would be bound to produce.

The habitual residence of a child for example, where their parents live together, would be the residence of the parents.

A finding of habitual residence may be determinative of a court's jurisdiction. For example, the 2011 version of the Family Relations Act of the Canadian jurisdiction of British Columbia, codifies the steps at §44:

"A court must exercise its jurisdiction to make an order for custody of or access to a child only if:

  • The child is habitually resident in British Columbia at the commencement of the application for the order; or
  • Although the child is not habitually resident in British Columbia, the court is satisfied that the child is physically present in British Columbia at the commencement of the application for the order, substantial evidence concerning the best interests of the child is available in British Columbia, no application for custody of or access to the child is pending before an extraprovincial tribunal in another place where the child is habitually resident, no extraprovincial order in respect of custody of or access to the child has been recognized by a court in British Columbia, the child has a real and substantial connection with British Columbia, and on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia.

"A child is habitually resident in the place where the child resided:

  • With both parents;
  • If the parents are living separate and apart, with one parent under a separation agreement or with the implied consent of the other parent or under a court order; or
  • With a person other than a parent on a permanent basis for a significant period of time;

... whichever last occurred.

"The removal or withholding of a child without the consent of the person who has custody of the child does not alter the habitual residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld."

Note these words from the 2011 edition of the CED re Conflict of Laws, at §263 and §264:

"Some courts assume jurisdiction in custody matters on the basis of habitual residence. If the child is not habitually resident in the province, the court may assume jurisdiction in certain circumstances if the child is physically present in the province.

"Habitual residence is the place where the child ordinarily resides with both parents, or with one parent with the consent of the other parent, or by court order, or the place where the child resides with some other responsible custodian. Forcible or unauthorized removal of a child from his or her residence does not change the habitual residence."

On this issue, American Courts (eg Feder, see below) have cited and followed a 1989 British case (Re Bates) which stated:

"(T)here must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the (person) intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."

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