FAQ / Q: How do you determine whether the Convention applies in a case involving U.S. citizen prospective adoptive parent(s) residing abroad who seek to adopt a child resident in the United States?

This FAQ concerns U.S. citizens living abroad in another Convention country who plan to adopt a child resident in the United States and return with that child to their residence abroad. Under the Intercountry Adoption Act of 2000, the Convention applies to “an adoption of a child resident in the United States by an individual residing in another Convention country.”

The Department of State generally considers a U.S. citizen residing in Convention countries to be habitually resident in the United States if the US citizen is domiciled in the United States or will be returning to establish a domicile in the United States at any point before the child’s 18th birthday. Note that this approach is not inconsistent with the definition of habitual residence found in CFR 204.303 (which applies when a U.S. citizen adopts a child from another Convention country). However, it is ultimately the role of the relevant State court to determine the residence of the prospective adoptive parent(s).