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Monday, August 27, 2012

Holmes v Holmes, --- F.Supp.2d ----, 2012 WL 3610218 (E.D.Mich.)[Ireland] [Habitual Residence]

In Holmes v Holmes, --- F.Supp.2d ----, 2012 WL 3610218 (E.D.Mich.) Plaintiff Michael Holmes was a citizen and resident of the Republic of Ireland. Defendant Angela T. Holmes was a citizen and resident of the United States. Mr. Holmes and Ms. Holmes were the parents of a daughter. They married in the United States on February 9, 2011, about a month and a half after meeting for the first time. About a month after the couple married, they found out they were pregnant. The couple decided that they would move to Ireland, largely based on the fact that Ms. Holmes had no health insurance in the United States and would receive healthcare benefits in Ireland. Their daughter was born on December 11, 2011 in Ireland. On February 6, 2012, at Defendant Angela Holmes' request, the Irish police were called. She reported spousal abuse. A nurse and social worker took Ms. Holmes and child to a safe house in Ireland. On February 15, 2012, Ms. Holmes brought the child to the United States without Mr. Holmes' permission.

The District Court concluded that Mr. Holmes had not shown that Ireland was the child's habitual residence by a preponderance of the evidence and denied the petition. It observed that a child's habitual residence is the place where she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. Feder -Evans v Feder, 63 F.3d at 224. The child was only two-months-old when she was removed from Ireland. The child was still nursing. The couple's infant, two-month-old, child did not acquire a habitual residence in Ireland before her mother relocated her to the United States. See Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir.2003) (finding that a two-month-old infant, who is still nursing, has not been present long enough to have an acclimatization apart from his parents). Because the child was too young to have acclimated itself to its surroundings, the Court considered the intentions of the parents as factors in determining whether there was a habitual residence for the child. The evidence did not support a finding that Ireland was the intended long-term residence of the parents.

It was undisputed that the couple moved to Ireland to receive healthcare for the mother and child during birth. It was also undisputed that neither the mother or the father had a job in Ireland. They did not own a home in Ireland. They were renting a place to live, and the lease was to end in June. They essentially had no family support in Ireland because Mr. Holmes was estranged from his family. This was admitted by Mr. Holmes and also supported by his brother's testimony and Ms. Holmes' testimony. The couple did, however, receive financial support and emotional support from Ms. Holmes' family in the United States. The parties disagreed as to their intent to stay in Ireland long-term. Mr. Holmes maintained that they only agreed to move to Ireland temporarily and had planned on moving back to the United States. Ms. Holmes testified that they discussed moving back but the discussion was simply a possibility and not set in stone. Mr. Holmes' own testimony and Skype conversation transcript supports this notion-that the couple was not committed to staying in Ireland. Also supporting the claim that the move was not permanent was the fact that Mr. Holmes left behind tools in the United States that he used for his trade. If they intended on moving permanently, it did not seem likely that he would have left behind tools needed to make a living. The couple also completed a Petition for Alien Relative, I-130, from the U.S. Citizen and Immigration Services. Although it was never submitted, this application shows that the couple was not necessarily committed to staying in Ireland long-term. They had been in Ireland for less than a year and were already filling out paperwork to return to the United States. Ms. Holmes' assertion was supported by her own testimony, which the Court found to be credible. The evidence presented in the form of testimony and exhibits supported Ms. Holmes' assertion that the move to Ireland was temporary. Therefore, the Court found that the child did not have a habitual residence in Ireland.

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