In international family disputes, parents often begin with the child’s nationality:

— The child is a Russian citizen, so the case must be heard in Russia.

— The child has a French passport, so the French courts have jurisdiction.

— The child is registered at an apartment in Moscow, so the child’s place of residence is Russia.

However, nationality, formal registration and even the child’s place of birth do not usually answer the central question. To determine which State has jurisdiction and whether international legal mechanisms apply, a court may need to establish the child’s habitual residence: the State in which the real centre of the child’s daily, family and social life was located immediately before the dispute arose.

This issue is particularly important in international child abduction cases. It may determine whether the child’s removal or retention was wrongful and whether the child’s return can be sought under the 1980 Hague Convention.

The determination of habitual residence may affect:

• which country’s courts have jurisdiction over the child dispute;
• whether the child’s removal abroad was wrongful;
• whether the child’s return may be sought;
• which authorities should decide issues of custody, residence and contact;
• whether the child’s presence in another country was temporary;
• whether the country with which the child’s life was actually connected has changed.

In proceedings under the 1980 Hague Convention, the court determines where the child was habitually resident immediately before the alleged wrongful removal or retention. For more information about the requirements of the Convention, the return procedure and Russian court practice, see “How to Return a Child under the 1980 Hague Convention.”

A child may simultaneously have:

• the nationality of several States;
• formal registration in Russia;
• a residence permit abroad;
• access to the parents’ homes in different countries;
• Russian and foreign medical insurance;
• links to schools or nurseries in more than one State.

None of these factors determines habitual residence on its own. The court considers the circumstances as a whole and asks the central question: Where was the real centre of the child’s life immediately before the dispute arose? The focus is not merely on the parents’ circumstances, but primarily on the child’s own life.

There is no exhaustive list of criteria. The significance of each factor depends on the child’s age, the length of residence and the particular circumstances of the family.

Duration and Regularity of Residence

The court may examine:

• how long the child stayed in each country;
• whether the child lived there continuously or visited periodically;
• whether the trips were short-term;
• whether the family retained its main home in the previous country;
• whether a return date had been agreed;
• whether all family members moved between the countries.

A lengthy stay does not always mean that habitual residence has changed. For example, a child may spend several months abroad because of a parent’s temporary work assignment, medical treatment or education. If the family retained its home, school arrangements and plans to return, the court may regard the stay as temporary.

However, the longer the child actually lives in the State and the stronger the child’s connections become, the more significant the duration of residence may be.

School or Nursery

The court will usually consider:

• where the child was enrolled in school or nursery;
• whether the child attended regularly;
• how long the education was intended to continue;
• whether the child’s place in the previous institution was retained;
• whether the parents intended to return by the beginning of the school year;
• the language in which the child was educated.

For a school-age child, the educational environment is often an important indicator of integration into a particular country. However, enrolment in a school does not necessarily mean that habitual residence has changed, particularly where the education was temporary or the child was enrolled only after the dispute arose.

Family and Social Environment

The court may examine:

• where the child’s close relatives live;
• with whom the child regularly communicates;
• whether the child has friends;
• whether the child attends clubs or sports activities;
• whether the child participates in the local community;
• how stable the child’s connections are with each country.

For a young child, the environment of the child’s primary caregiver may be especially significant. For an older child, school, friends, language and independent social relationships may carry greater weight.

Language

Language skills may indicate the child’s degree of integration, but they are rarely decisive on their own. A child may:

• speak several languages fluently;
• attend an international school;
• use a language at home that differs from the language of the country of residence;
• speak the language of the country of nationality without ever having lived there permanently.

The court therefore considers not merely whether the child speaks a language, but how that language is connected to the child’s daily life.

Medical Care

Relevant evidence may include:

• registration with a local clinic;
• an established relationship with a paediatrician;
• ongoing treatment for a chronic condition;
• medical insurance;
• scheduled examinations;
• vaccination records;
• regular work with specialist professionals.

These documents are particularly persuasive when they show the stable organisation of the child’s life rather than a single medical appointment during a visit.

Housing and Everyday Living Arrangements

The court may consider:

• whether the child had a permanent home;
• whether the child had a separate bedroom or regular sleeping place;
• where the child’s main belongings were kept;
• whether the accommodation was temporary;
• where the family actually conducted its daily life;
• whether a long-term tenancy agreement had been concluded.

The fact that a parent owns an apartment in a country does not, by itself, mean that the child habitually lived there. For example, a child may be formally registered at the grandmother’s apartment in Russia while actually living and attending school in France for several years.

The Parents’ Intentions

In international disputes, courts often examine how the parents themselves understood the family’s future plans. Relevant questions include:

• whether permanent relocation was discussed;
• whether a period of temporary residence was agreed;
• whether the parents looked for permanent accommodation;
• whether they applied for residence permits;
• whether they enrolled the child in school;
• whether they moved the family’s belongings;
• whether they terminated housing and insurance arrangements in the previous country;
• whether they retained plans to return.

However, the parents’ intentions are assessed together with the factual circumstances. A single message saying “we are moving permanently” may be insufficient if the family retained its home, school and ordinary life in the previous State.

Similarly, the statement “we will live here for a while” does not necessarily prove that the stay was temporary where the family has in fact fully settled in the new country.

Yes, but it is not usually decisive. Russian nationality does not automatically mean that Russia is the child’s habitual residence. A child may be a Russian citizen but:

• live permanently abroad;
• attend school there;
• receive medical care there;
• have friends and a social environment there;
• visit Russia only during holidays.

Conversely, foreign nationality does not prevent Russia from being recognised as the child’s habitual residence. Nationality and habitual residence answer different questions:

• nationality reflects the person’s legal connection with a State;
• habitual residence reflects the actual centre of the child’s life.

Formal registration may be used as evidence, but it does not determine the outcome of the dispute by itself. A child may remain registered in Russia while living permanently abroad for several years.

The reverse is also possible: the child may have no permanent Russian registration but may actually live in Russia, attend school there, receive medical care and be surrounded by family.

Registration is therefore only one element of the overall picture.

A child in an international family may regularly live in two countries.

For example, the child may:

• spend the school year in one State;
• spend every holiday in another;
• travel continuously with the parents;
• study remotely;
• have a home and close relatives in both countries.

Nevertheless, to resolve a particular dispute, the court will usually need to determine where the principal centre of the child’s life was located at the legally relevant time. Close connections with two States do not necessarily mean that the child has two equivalent habitual residences.

There is no universal minimum period. Habitual residence does not change automatically:

• on the day the child crosses the border;
• when a visa is obtained;
• when the child is formally registered;
• when the child is enrolled in school;
• after three, six or twelve months according to any fixed formula.

The court determines whether the real centre of the child’s life has changed. For a young child, particular importance may be attached to:

• the place where daily care is provided;
• the primary caregiver;
• the stability of the child’s home environment.

For a school-age child, greater weight may be given to:

• school;
• language;
• friends;
• extracurricular activities;
• the duration of residence;
• the child’s independent social integration.

One of the most difficult disputes arises where one parent says that the child relocated to another country, while the other maintains that the arrangement was only temporary.

The court may examine:

• whether a return ticket was purchased;
• whether a return date was discussed;
• how long the accommodation was provided for;
• whether the child’s place in the previous school was retained;
• whether all the child’s belongings were moved;
• whether long-term immigration documents were obtained;
• whether previous tenancy arrangements were terminated;
• whether medical arrangements were retained in the previous State;
• what the parents wrote to each other before the trip;
• how they behaved afterwards.

Consent for the child to spend one school semester abroad does not necessarily amount to consent to a permanent change in the child’s country of residence. Where an initially lawful trip ends with one parent refusing to return the child, the situation may become one of wrongful retention.

For more information, see “Child Not Returned after an Agreed Trip: Wrongful Retention Abroad.”

Depending on the circumstances, relevant evidence may include:

• records from the child’s school or nursery;
• contracts with educational institutions;
• school reports;
• medical records;
• insurance policies;
• tenancy agreements;
• property documents;
• formal registration records;
• immigration documents;
• tickets and border-crossing information;
• correspondence between the parents;
• agreements concerning travel and residence;
• records from clubs and sports activities;
• witness statements;
• photographs and other material showing the child’s daily life.

A coherent body of evidence is usually more persuasive than a single document. For example, a school certificate proves where the child studied. Together with a long-term tenancy agreement, medical insurance, parental correspondence and evidence of continuous residence, it may demonstrate that the centre of the child’s life was located in that State.

Habitual residence is determined by reference to a particular point in time. In an international child abduction case, this is usually the period immediately before:

• the child was removed to another country;
• or the date on which an agreed trip became wrongful retention.

The child’s subsequent integration into the new country does not retrospectively make the original removal lawful.

For example, after wrongful retention, the child may begin attending a new school, learn the language and make new friends. Those circumstances may be relevant to the child’s settlement or to possible grounds for refusing return. However, they do not automatically change where the child was habitually resident when the breach occurred.

A parent seeking the child’s return will usually need to provide evidence showing that immediately before the removal or retention, the child was habitually resident in another State.

The other party may argue that:

• the family had already relocated permanently;
• the previous residence had been abandoned;
• both parents agreed to change the child’s country of residence;
• the stay in the new country was never intended to be temporary;
• the centre of the child’s life had already moved.

A dispute over habitual residence therefore often concerns not a single legal document, but the family’s entire history.

Is Nationality the Main Criterion for Determining Habitual Residence?

No. Nationality is relevant, but it does not automatically determine where the centre of the child’s life is located.

Can Registration in Russia Prove Habitual Residence?

It may be used as one item of evidence. However, the court will also consider the child’s actual residence, school, medical care, family environment and social connections.

Does Habitual Residence Change Immediately after Relocation?

No. Crossing a border does not automatically change the child’s habitual residence.

Can Temporary Education Abroad Change Habitual Residence?

It can, where the child’s centre of life has actually moved to the new country. However, education for a limited period does not necessarily mean that a permanent relocation has occurred.

Do the Parents’ Views Matter?

Yes. The court considers the parents’ agreements and intentions, but compares them with the actual circumstances of the child’s life.

Can Habitual Residence Change without the Other Parent’s Consent?

The factual centre of the child’s life may change over time. However, a unilateral relocation may simultaneously breach the other parent’s rights of custody and lead to return proceedings.

A child’s habitual residence is not an entry in a passport and is not merely a formal address. It is the State with which the child’s life was genuinely connected immediately before the dispute arose, including:

• the child’s home;
• daily care;
• school or nursery;
• close family members;
• language;
• medical care;
• social environment;
• the family’s stable plans.

In an international dispute, it is not enough to say: “The child is a citizen of this country” or “The child is registered here.”

The court must be shown where the child’s real centre of life was located and why the stay in another country was temporary or, conversely, had become sufficiently stable.

This material does not constitute legal advice and is published for informational purposes only.