Annual Survey of International & Comparative Law


Todd Heine


This article addresses three jurisdictional standards that arise in every cross-border child custody dispute between European Union Member States and the United States: home state, cross-border, and habitual residence jurisdiction. These jurisdictional standards face uncertainty in many cases.

First, this article provides a history of family law jurisdiction in the United States and thoroughly reviews home state jurisdiction in United States domestic law. While domestic family lawyers know this standard, the standard’s rigidity and fragmented application among the states baffle many foreign family lawyers.

Second, this article offers an overview of the remarkable emergence of family law in European Union law, chronicling the history of crossborder jurisdiction as a treaty matter to the present day status of family law jurisdiction under European Union law. This article reviews the recent Court of Justice of the European Union and United Kingdom court decisions on habitual residence, which leave an uncertain standard for habitual residence determinations in custody disputes.

Third, this article reviews habitual residence jurisdiction in custody disputes under private international law. After reviewing the relevant treaties, this article examines cases in seven jurisdictions to show the uncertain jurisdictional standard that remains, despite habitual residence’s supposed uniformity.

After analyzing these cases, this article proposes a time-based, categorical standard for habitual residence jurisdiction determinations. Private international law needs a uniform standard for the growing number of cross-border custody disputes. A temporal standard would make habitual residence determinations more certain, which would in turn benefit children, parents, and courts.