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

A Former Judge. A Father-Son Trial Firm. Fifty Years of New Jersey Practice.

Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003) — a reported Third Circuit decision interpreting the Hague Convention on the Civil Aspects of International Child Abduction. Robert W. Avery, Esq. served as counsel on the petition that produced the underlying District of New Jersey ruling and the Third Circuit’s affirmance. The case is the firm’s reported federal-precedent credential and the reason Avery & Avery, Esqs. appears on the Hague-Convention map for North New Jersey practitioners.

Caption

Editorial note. Argument-date and bench-composition specifics are withheld pending founder review. The dates above are the District Court filing date, the Third Circuit decision date, and the Supreme Court cert.-denial date as published in the official Federal Reporter and the Lawyers’ Edition. Where this page lacks an unambiguous, verifiable date, the page reflects what is on the printed opinion rather than reconstruction from secondary sources.

Question Presented

Whether a four-month-old infant whose parents were transient between Belgium and the United States and who had spent only ten weeks in Belgium prior to removal had a “habitual residence” in Belgium within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction — such that the child’s removal to the United States by the mother could constitute “wrongful removal” triggering return under Article 3.

Holding

A child whose parents have not yet established a settled, mutually intended common residence — and where the parents’ situation reflects no shared, settled purpose to raise the child in either country — lacks a “habitual residence” within the meaning of the Convention. Where there is no habitual residence, there can be no “wrongful removal” under Article 3, and the petition for return must be denied. The Third Circuit affirmed the District Court’s denial of the petition.

Brief Background

The petition arose from a Belgian father’s petition under the Hague Convention seeking the return of his infant son, who had been brought to New Jersey by the child’s mother. The parents were not married. Their relationship had been transient: the father lived in Belgium; the mother had lived in the United States and traveled to Belgium for the birth and the early weeks of the child’s life. The child had never lived for any settled period in either country before the mother returned to the United States with him at approximately four months of age.

The father filed a Hague Convention petition in the United States District Court for the District of New Jersey, seeking the child’s return to Belgium on the theory that Belgium was the child’s habitual residence at the time of the alleged wrongful removal. Avery & Avery, Esqs. appeared on behalf of the mother. The case was assigned to the late Hon. Faith S. Hochberg.

After an evidentiary hearing, the District Court denied the petition, concluding that the infant — given his age, the brief duration of his time in Belgium, and the absence of a shared parental intent to establish a Belgian residence — had no habitual residence in Belgium within the meaning of the Convention. The father appealed.

The Firm’s Argument as Counsel

On behalf of the mother, Avery & Avery argued three points that the District Court accepted and the Third Circuit affirmed:

1. A “habitual residence” requires more than mere physical presence. The Convention’s “habitual residence” inquiry is fact-specific and asks where the child has lived for a settled period sufficient to reflect “some degree of integration in a social and family environment.” (Borrowing the European Court of Justice formulation, later adopted by the Supreme Court in Monasky v. Taglieri, 589 U.S. 68 (2020).) Ten weeks of an infant’s first months — most of them spent recovering from birth and adjusting to the parents’ transient circumstances — does not amount to a settled period.

2. Where parents have no settled, shared intent, an infant has no habitual residence. A pre-verbal child is not capable of forming his or her own residence; the inquiry collapses into the parents’ shared, settled intent. Where the parents themselves had no shared, settled common residence — and where the relationship was characterized by transit and instability — there can be no “habitual residence” attributable to the child.

3. Without a habitual residence, Article 3 has nothing to bite on. The Convention’s wrongful-removal provision is triggered only when the removal is from the country of the child’s habitual residence. If no such residence exists, the petition fails at the threshold regardless of the merits of any underlying custody claim — which the Convention does not adjudicate in any event.

The Third Circuit affirmed the District Court’s denial of the petition on substantially these grounds, in a published opinion that has since been cited in numerous Hague Convention proceedings across the federal circuits.

Disposition

District Court denial of Hague Convention petition: AFFIRMED in a published opinion. Petition for writ of certiorari to the United States Supreme Court: DENIED (540 U.S. 967 (Oct. 20, 2003)). The Third Circuit’s published opinion stands as binding precedent within the circuit and is widely cited in international child-abduction proceedings beyond it.

Citation — Bluebook

Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003), aff’g 224 F. Supp. 2d 843 (D.N.J. 2002), cert. denied, 540 U.S. 967 (2003).

Subsequent Treatment

Editorial note. The list below reflects representative citations the firm has tracked in the period after the Third Circuit’s opinion. A comprehensive citation review against Westlaw / Lexis is queued for the page’s next refresh. Unverified entries are deliberately omitted in favor of opinions whose text the firm has read.

• Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006) — later Third Circuit opinion citing Delvoye on the habitual-residence framework, particularly the role of parental intent in cases involving young children.

• Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) — applies the Delvoye settled-purpose framework to a child whose parents shared a temporary intent to live in the country of alleged habitual residence.

• Monasky v. Taglieri, 589 U.S. 68 (2020) — although the Supreme Court’s later “totality-of-the-circumstances” formulation superseded earlier appellate-court frameworks, Delvoye is still cited by lower federal courts for the proposition that an infant with no settled life in either parent’s country has no habitual residence within the Convention.

The firm tracks subsequent Hague Convention authority on an ongoing basis; this section is updated when material new authority lands.

About this Case — Why It Matters for the Firm’s Practice

A reported federal precedent is unusual on a North New Jersey trial firm’s homepage. Most municipal-court / DWI / personal-injury practices never appear in the Federal Reporter. Delvoye v. Lee is a single case that does three things at once for Avery & Avery, Esqs.:

• It demonstrates federal-court trial competence at the District level (an evidentiary Hague hearing is no different in kind from a contested federal motion practice).
• It demonstrates appellate competence: the Third Circuit’s affirmance was not a one-line summary disposition — the firm wrote the appellee’s brief, argued the case, and obtained a published opinion that has since been cited as binding precedent.
• It demonstrates subject-matter depth in international family law — a niche area few NJ generalists touch — making the firm a natural referral for Bergen County family-law practitioners who encounter Hague Convention questions in their own practice.

When Avery & Avery describes the firm as a “Bergen County trial firm with a published Third Circuit precedent,” the precedent in question is Delvoye v. Lee. The case sits squarely on the border between the firm’s family-law practice and its federal-court practice — and it is the single most credibility-anchoring published item in either column.

Related Practice Resources

• Family Law Practice — the firm’s Chancery Division Family Part work, including international and Hague Convention matters.
• Criminal Defense Practice — including U.S. District Court (D.N.J.) federal practice.
• About Avery & Avery, Esqs. — the firm’s fifty-year Bergen County trial-practice history.
• Robert W. Avery, Esq. — counsel of record on the Delvoye v. Lee petition and Third Circuit appeal.
• Reported Matters & Results — the broader catalog of the firm’s reported and notable matters.

Schedule a Free Consultation

If you are facing a New Jersey family-law matter with an international or Hague Convention dimension — or any other federal- or state-court matter where the kind of trial-and-appellate depth reflected in Delvoye v. Lee is the right fit — call (201) 943-2445 for a free first consultation.

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Attorney Advertising. Prior results do not guarantee a similar outcome. This page is an editorial summary of a published Third Circuit opinion and is not legal advice. The firm is admitted in the State of New Jersey and the federal courts noted above.