Larbie v Larbie, --- F.3d ----, 2012 WL 3089773 (C.A.5 (Tex.) [United Kingdom] [Moot Appeal ][Consent and Acquiescence] [Habitual Residence]

In Larbie v Larbie, --- F.3d ----, 2012 WL 3089773 (C.A.5 (Tex.) Plaintiff-Appellee Evelyn Larbie filed a petition under the Hague Convention seeking the return of her son, K.L., to the United Kingdom. The district court granted Evelyn's petition and ordered Defendant Derek Larbie to turn K.L. over to Evelyn's care. The Fifth Circuit Court of Appeals found that district court's application of the Convention effectively reversed a custody order entered after lengthy proceedings, culminating in a final divorce and custody order, in which neither party objected to the state court's jurisdiction, creating precisely the type of international custody dispute that  the Convention seeks to avoid. Accordingly, it vacated the district court's order and rendered judgment in Derek's favor.

 Derek and Evelyn were Ghanian nationals. Derek obtained naturalized citizenship in the United States and served as an officer in the United States Air Force. Evelyn possessed permanent residency in the U.K. They married in December 2005. They lived in San Antonio, Texas. K.L. was born in August 2006. Derek had a son from a previous relationship. Derek sponsored Evelyn for a "green card," which expired on June 27, 2009. Although Evelyn held a temporary work permit, she stayed home to care for K.L. In March 2008, Derek filed for divorce in Texas state court. Shortly thereafter, Derek received orders to report in June for two months of training in preparation for a deployment to Afghanistan. Evelyn responded to Derek's divorce petition by answer and counter petition. In her counter petition she asserted that she had been domiciled in Texas for at least six months and that she had resided in San Antonio for at least ninety days before the suit commenced. She also specified that no other court had jurisdiction over K.L. Given Derek's impending overseas assignment, the Larbies entered into an agreed temporary divorce decree on June 11, 2008 which appointed Derek and Evelyn "Temporary Joint Managing Conservators" of K.L. and entered a "Standard Possession Order" outlining how the parties would spend time with him. The Temporary Order also gave Evelyn the authority to determine K.L.'s residence "without regard to geographic location." However, it also provided that "[i]n the event that [K.L.] [was] to travel internationally," Evelyn had to inform Derek of the dates and location of such travel, the identity of those persons with whom K.L. was staying, and the telephone numbers at which K.L. could be reached "while [he was] traveling." The Temporary Order ordered Evelyn to allow K.L. "weekly" visits with Derek's other son, and provided that various provisions were operative only so long as the "case [was] pending." On the same day the parties agreed to the Temporary Order, the Court granted Derek’s motion to stay the proceedings pursuant to the Service members Civil Relief Act,"until Sept. 1, 2009 or until such time as [he] return [ed] to Lackland Air Force Base at the conclusion of [his] deployment. It granted Derek's motion to stay and entered the Temporary Order on July 23 and 24, 2008, respectively. The Temporary Order specified that it was to "continue in force until the signing of the Final Decree of Divorce or until further order of th[e] Court."

 A few weeks after Derek left for training, Evelyn bought a plane ticket to travel to London on July 12th. Evelyn took only what was "permissible on the aircraft," leaving behind "substantially all" of her and K.L.'s "clothing and personal effects" and giving no indication that the trip was anything other than temporary. She and Derek exchanged e-mails that indicated her intent to return to San Antonio. Derek deployed to Afghanistan. Although Evelyn apparently contemplated obtaining a residence order there , she never sought custody of K.L. in the U.K. courts. A residence order is the U.K. equivalent of a custody order and different from he contact order. See Children Act 1989, c. 41, Part II, s 8(1) ("In this Act-'a contact order' means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other...."). K.L. had entered the U.K. on a limited-duration visitor's visa that expired in early 2009. Without notifying Derek, Evelyn filed an application to obtain permanent resident status for K.L. in autumn 2008. The U.K. denied that application on June 23, 2009, in part because Evelyn failed to show that she was " 'present and settled in the [U.K.] and ... had sole responsibility for [K.L.'s] upbringing.' " The U.K. official also reasoned that the Temporary Order " 'impl[ied] that the final decision regarding [K.L.'s] place of residence and which of [his] parents will have primary responsibility for [his] upbringing will not be decided until [his] parents' final decree is signed.' " The official saw " 'nothing to indicate that [Derek had] agreed to [K.L.'s] residing in the [U.K.] permanently with [his] mother.' "

 Days later, Evelyn asked the Texas court to set the divorce for a final hearing. In her motion, Evelyn stated that she had returned to Texas and discovered that her immigration paperwork was missing from the marital residence. These documents were crucial, Evelyn argued, because without them she could not "retain her current green card status in the United States." On June 30, 2009, Evelyn, her attorney, and Derek's attorney attended a hearing in San Antonio. Contending that K.L. could be ejected from England at any point in time, Evelyn's counsel asked either that the Texas Court order Derek to give consent for K.L. to have residency in London or lift the stay to allow the parties to litigate the divorce issue, because in order for Evelyn to remain in the United States, she's had to either be divorced or have sponsorship. Evelyn's attorney represented at least two more times in the relatively brief hearing that Evelyn hoped to maintain permanent residence in the United States. Derek's attorney noted that he had been served with "full blown discovery" shortly before the hearing and argued that Derek's continued deployment mandated that the stay remain in place. In response to the judge's questioning, the attorney admitted that he could not think of a solution to K.L.'s visa problem. He reiterated, however, that Derek ultimately sought full custody.

 The judge then proposed a potential solution: "what if [the parties] did some kind of an order that said, the Court finds that this temporary order that was agreed to by the parties signifies [Derek's] consent for [K.L.] to temporarily reside with [Evelyn] in London, until such time as the Court hears ... further orders in ... October of 2009 or something[?]" The attorneys agreed "that might do the trick." The judge repeatedly made clear that any consent for K.L. to stay overseas was to temporarily avoid separating him from Evelyn and should not "prejudice [Derek's] right to come back here and conduct a custody trial in the future." The judge also warned the parties that if they could not reach an agreement along the lines she had proposed, she would not rule out lifting the stay and finalizing the divorce. The attorneys agreed to work on an agreed order and to come back before another judge in a few days. The next day, Derek's attorney sent Derek an email about the "emergency" proceedings. Attached to the email was an affidavit for Derek's signature giving consent for K.L. to "reside" with Evelyn. In line with the discussion at the June 30th Hearing, Derek's attorney suggested that any consent would be valid only through Derek's return to the United States, noting that they would "have to have a side agreement between [Evelyn], her lawyer, and [Derek's attorney] that [K.L.'s] residence in England is not permanent and that he shall be returning to the U.S. eventually and that this case shall proceed here and only here in Texas." Derek signed the affidavit on July 6, 2009 . In it, Derek affirmed that he was K.L.'s biological father, reported that he was "currently deployed in Afghanistan," and gave his consent for K.L. to "reside with his mother ... in England," which he considered to be in K.L.'s "best interest." The same day, Derek emailed the affidavit to his attorney, writing only that he had "read, signed[,] and attached the consent form as discussed." On July 2nd-just two days after the June 30th Hearing-Evelyn filed an amended counter petition in the Texas court. Consistent with her stated desire to maintain permanent residency in the United States, the counter petition again stated that Evelyn had been domiciled in Texas for the preceding six months and had been a resident of Bexar County, in which San Antonio is located, for the preceding ninety days. Evelyn also sought "the exclusive use and possession" of the marital residence and an injunction against Derek's "entering or remaining on  the premises." The counter petition further asked the Texas court to appoint Evelyn as sole managing conservator of K.L. and to enter certain "temporary" child support and spousal maintenance provisions "until a final decree [was] signed." The counter petition also disavowed that K.L. was "under the continuing jurisdiction of any other court" or subject to any "court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships."

 The second hearing on Evelyn's motion to lift the imposed stay was held on July 6, 2009-the same day that Derek signed and emailed the Consent Affidavit. Evelyn's representations differed from those made at the June 30th Hearing in at least two crucial aspects. This time, Evelyn's counsel reported that U.K. immigration officials had scheduled K.L.'s deportation for July 9th, just three days away, and that Evelyn "could never come back over here and live with her child" because her green card had expired. Both of these claims were questionable. Evelyn's counsel nonetheless contended that the only way to prevent K.L.'s deportation was to grant a divorce or to have Derek sign the consent form. Derek's attorney had not yet heard back from Derek about the Consent Affidavit and announced "not ready." He argued that any action without Derek's participation violated the Service members Civil Relief Act, but attempted to work out some sort of agreement. Based on the alleged emergency, the judge crafted a compromise. She "order {ed] that [Derek] sign the consent form to do a status quo. In the event he fail[ed] to do that, [the judge would] enter a divorce decree." Although the decree would "grant the divorce and grant custody," it would only be a temporary arrangement to prevent K.L.'s deportation. After entry of the decree, the judge proposed that a motion for new trial be filed by Evelyn's attorney to "prevent it becoming a final order until [Derek was] able to get back from Afghanistan." The judge noted that she did not expect Derek's attorney to agree to this solution. In fact, when Derek's attorney asked for sanctions and attorneys' fees under the Service members Civil Relief Act, the judge promised to take up those issues when  "we really do have a final hearing." The judge was explicit that this arrangement would "not prejudice [Derek] for his custody suit" and that he was "not in any way precluded from coming back and obtaining [custody]-and [that] if he want[ed] to come back sooner, [she would] grant him a new trial." Although Derek emailed the Consent Affidavit to his attorney on July 6th, there apparently was some objection to Derek's failure to have it notarized. The Texas court therefore entered a "final" divorce decree on July 30, 2009, awarding Evelyn sole managing conservatorship over K.L. but notably omitting the Temporary Order's "without regard to geographic location" modifier. Evelyn forwarded the "final" divorce decree to U.K. immigration authorities.

 Derek returned from Afghanistan just over two weeks later. He quickly filed motions for a new trial and to lift the stay. The Texas court entered an agreed order granting the motion for new trial on August 26, 2009.

 A U.K. immigration appeals judge granted K.L. permanent residency in the U.K. a week later, but not because Evelyn had been granted sole managing conservatorship. The judge found that it was "quite clear from the [Texas court] documents that both parents retain[ed] a significant responsibility for the care of [K.L.]" and that Evelyn's "evidence [was] far from showing that [she] ha[d] sole responsibility for [him]." The U.K. judge noted that it was "not in dispute that suitable arrangements [had] been made for [K.L.'s] care both as a result of the American divorce proceedings and as a result of [Evelyn's] financial condition." The judge thus affirmed the rejection of K.L.'s application under the U.K. law provision relied upon in the original decision. The judge instead granted the appeal based on a provision allowing permanent residency in cases where "one parent is present and settled in the [U.K.] and there are serious and compelling family or other considerations which make exclusion of the child undesirable."

 Derek filed a "Motion for Additional Temporary Orders" on September 16, 2009, seeking extended visitation with K.L. in the U.K. The Texas court granted the motion on September 30th, and ordered Evelyn to allow Derek three weeks of "continuous and unrestricted (twenty four (24) hours per day) visitation with K.L." from October 20th to November 10th. Evelyn lodged no objections to this order even though she originally opposed Derek's visitation request.

 With Derek's return, the divorce proceedings turned to discovery. The record suggests that Evelyn refused to comply with several discovery requests and court orders. Derek filed motions to compel, for sanctions, and for a continuance. After a December hearing, the Texas court granted Derek's requests, ordering Evelyn to respond to the discovery requests and to pay Derek $1538 in sanctions. Trial was continued to March 1, 2010. Evelyn failed to comply with the order, and Derek filed another motion to compel and other motions. The Texas court granted these requests by, among other things, giving Derek the exclusive right to occupy the marital residence, ordering Evelyn to comply with certain discovery requests, and setting other matters for a hearing. Evelyn was ordered to bring K.L. to the hearing. On February 4th, the Texas court issued a multi-part order addressing several pending matters. Among other things, the order provided that Derek discontinue child and spousal support payments as a sanction for Evelyn's failure to bring K.L. to the hearing; that Evelyn comply with the outstanding discovery requests and finish paying the previously ordered sanction; that Evelyn was prohibited from raising certain issues in future proceedings; and that Evelyn pay an additional $1200 in sanctions for her failure to abide by various orders. The order also imposed heavy sanctions for her conduct, but allowed her to fully participate in the final divorce hearing if she complied with all unresolved orders and discovery requests by March 1, 2010. Evelyn complied with the sanction order, as well as an order to bring K.L. back to the United States for the trial. The Texas court heard arguments on March 1 and 2, 2010. Derek and Evelyn both testified, along with an immigration specialist and an accountant.

 The Texas court entered a "Final Decree of Divorce" on May 25, 2010, finding that it had "jurisdiction of [the] case and of all the parties." It appointed Derek and Evelyn as joint managing conservators of K.L., with Derek as the possessory parent, and found that such an arrangement was in K.L.'s "best interests." Because the parties "reside[d] in different and remote countries," the Final Decree imposed a custom possession order rather than the Texas Standard Possession Order used in the Temporary Order. In lieu of child support, Evelyn was ordered to pay "all costs of travel associated with her visitation" rights. Unlike the Temporary Order, the Final Decree contained a mutual ne exeat provision that required each party to obtain "written authorization" from the other to take K.L. "beyond the territorial limits of the United States," provided that during her periods of possession, Evelyn had the right to take K.L. to England, Scotland, and Wales. Before removing K.L. from the United States, however, the Final Decree obligated Evelyn to post a $25,000 bond in Derek's favor. The Texas court gave Derek "the exclusive right to designate the primary residence of [K.L.] without regard to geographic location," and found "that the United States of America is the country of habitual residence of [K.L.]"

 Derek took possession of K.L. shortly after the trial ended. Evelyn appealed and in January 2011 filed a "Motion to Modify and Motion for Clarification" of the Final Decree which was disposed of.

 On February 25, 2011, Evelyn initiated this action. A an evidentiary hearing, at which both parties testified and presented evidence the district court granted Evelyn's petition on August 10, 2011, and ordered that Derek immediately return K.L. to Evelyn's possession. The district court found that the U.K. was K.L.'s "habitual residence" under the Convention; that Derek breached Evelyn's U.K. custody rights by retaining K.L. pursuant to the Final Decree; and that Evelyn was actually exercising her U.K. custody rights at the time of retention. Evelyn departed for the U.K. with K.L. in tow. Derek timely appealed.

 The Fifth Circuit rejected Evelyn’s argument that the court should adopt the reasoning of the Eleventh Circuit's opinion in Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001), and hold that the case was moot in light of K.L.'s return to the U.K. The petitioner in Bekier took his son from the United States to Israel immediately after the district court resolved the Convention issue in his favor. The Eleventh Circuit dismissed the respondent's appeal, reasoning that it could provide her "no actual affirmative relief" because any "potential remedies ... lie in the Israeli courts." The Fifth Circuit found that Bekier was inconsistent with the grain of circuit authority. The Third and Fourth Circuits, the only other circuit courts to rule on the issue, had explicitly rejected Bekier 's approach. See Whiting v. Krassner, 391 F.3d 540, 544-46 & n.2 (3d Cir.2004); Fawcett v. McRoberts, 326 F.3d 491, 494-97 (4th Cir.2003). The Court held that Derek's appeal was not moot for basically the reasons articulated by the Fawcett court. '[C]ompliance [with a trial court's order] does not [ordinarily] moot an appeal [of that order] if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action.' " The Convention and U.K. law perhaps best demonstrate that granting Derek relief can " 'affect the matter in issue.' Both provide a "mechanism for enforcing a judgment by this court or the district court on remand." It also was possible that Evelyn could voluntarily respond to an order requiring K.L.'s return or risk contempt sanctions.

 Turning to the merits of Evelyn's case the court concluded that Derek should prevail. The district court's order had the effect of undoing the custody arrangement ordered by the Texas court of competent jurisdiction, before which both parties participated and sought relief, in favor of relitigating custody before tribunals that, until this proceeding, Evelyn never argued had authority over the matter. Derek contended that Evelyn consented to the Texas court's resolution of the custody issue and "waived" recourse to the Convention by failing to raise it in the Texas court. The district court, however, held that Evelyn's "[m]erely participating in the Texas divorce and custody proceedings [was] not consent to [K.L.'s] removal or retention in Texas." According to the district court, Evelyn attended the final divorce proceedings "under compulsion of the Texas court's order," belying the voluntariness of her participation. Similarly, the district court believed that "[t]here was nothing consensual or voluntary in her surrender of her son."

 The Court observed that under Article 13(a), "[t]he consent defense involves the petitioner's conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005). The focus of inquiry is "the petitioner's subjective intent," , as "evinced by the petitioner's statements or conduct, which can be rather informal." Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir.2010). "In examining a consent defense, it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. The nature and scope of the petitioner's consent, and any conditions or limitations, should be taken into account." Consent for a particular tribunal to make a final custody determination, which may be established by entry of a temporary custody order, suffices to establish an affirmative defense under the Convention. See Nicolson, 605 F.3d at 106-07 ("The consent order in this case provided only for temporary custody but, if it were read as agreeing to let the Maine courts determine final custody..., we would think that this was an acquiescence or, alternatively, a waiver of Hague Convention rights."; cf. Navani, 496 F.3d at 1132 ("As the English family court retained jurisdiction at all times over [the child's] custody, and we have never had jurisdiction over the merits of the English family court's custodial decisions, we are powerless to alter the current custodial regime forbidding the very relief that [the appellant-respondent] seeks: return of the child to the United States.").

 Applying these principles left no doubt that Evelyn gave " 'clear and unequivocal' " consent for the Texas court to make a final custody determination. Evelyn and Derek agreed to the Temporary Order because Derek's military service made a final resolution and trial impractical at the time. Evelyn answered the divorce lawsuit and filed a counter petition seeking affirmative relief. Evelyn exercised custody, as a temporary joint managing conservator, under the Temporary Order until July 30, 2009, when the "final" divorce decree was entered at the suggestion of a Texas judge and as a compromise to forestall what was claimed to be K.L.'s imminent deportation. That decree was vacated weeks later by agreement of the parties. During Evelyn's time in the U.K., she recognized and obeyed orders entered by the Texas court on multiple occasions. Although Evelyn was sanctioned for discovery abuses and for failing to bring K.L. to the United States on one occasion, she ultimately paid the imposed sanctions and complied with all Texas court orders. She participated in the divorce trial, appealed the Final Decree, and later moved that the Texas court modify its terms based on her consistent obedience to the court's orders and submission to its jurisdiction. By her own admission, at no time did Evelyn initiate custody proceedings in the U.K.

 The only thing in the record suggesting that Evelyn disagreed with the Texas court's authority was the filing of this action nine months after Final Decree was entered and almost a year after the divorce trial ended. Accordingly, the Fifth Circuit held that Derek proved as a matter of law that Evelyn agreed to the Texas court's final resolution of the custody issue.

 The Courts conclusion that consent was given defeated Evelyn's claim of "wrongful retention." Even if this analysis was incorrect, however, the Court concluded that Evelyn failed to satisfy her burden on the elements necessary to establish wrongful retention. Because wrongful-retention analysis depends on first determining
 K.L.'s country of "habitual residence," it began there. The Fifth Circuit joined the majority of circuits that "have adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence." Nicolson, 605 F.3d at 104 & n.2 (collecting cases). This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents ' intentions should be dispositive where, as here, the child is so young that "he or she cannot possibly decide the issue of residency." Whiting, 391 F.3d at 548-49. In such cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind." Mozes, 239 F.3d at 1075; see also Whiting, 391 F.3d at 549-50. Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion." Mozes, 239 F.3d at 1082. Notably, when "the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration [,] ... most courts will find no change in habitual residence." Mere retention in another country and "private reservations" or intentions that are made "manifest and definitive" only after the child has left its country of origin are generally insufficient to establish intent to change a child's habitual residence.

 The district court concluded that the U.K. was K.L.'s habitual residence in March 2010 based on K.L.'s acclimation to the U.K. and Derek's intent that K.L. reside there with Evelyn during Derek's deployment. The district court relied primarily on Derek's agreeing to the Temporary Order provision giving Evelyn the right to determine K.L.'s residence without geographic restrictions and on his executing the Consent Affidavit allowing K.L. to reside in the U.K. The district court found that Evelyn and Derek's "last shared agreement ... was that [K.L.] reside in the U.K. with his mother." The Fifth Circuit disagreed.

 As an initial matter, the district court's order did not consider several components of the habitual-residence inquiry. The order never analyzed the threshold question of whether Derek and Evelyn shared an intention that K.L. abandon the United States, which was indisputably his habitual residence before his arrival in the U.K.. Nor did the order address the fact that Evelyn never claimed before filing her petition that she intended for K.L. to permanently remain in the U.K. Derek, for his part, never intended for K.L. to "abandon" the United States for any amount of time and, at most, agreed for K.L. to stay in the U.K. through resolution of the divorce proceedings. Thus, although Derek agreed that K.L. could remain in the U.K. for some time, no objective facts "unequivocally" show that the U.K. should "supplant[ ]" the United States as K.L.'s habitual residence. Regardless of the ties that K.L. unavoidably developed in the U.K., his young age required Derek and Evelyn's
 shared intentions be the primary focus in the habitual residence inquiry here. The Court opted against following the Sixth Circuit's exclusively child-centered approach. To focus on a young child's experience encourages future "would-be abductor[s] to seek unilateral custody over a child in another country" or to delay returning to the child's original habitual residence as long as possible.

 The record established that K.L.'s presence in the U.K. was to last for a limited duration; that Derek never agreed to any other arrangement; and that no special circumstances justified departing from courts' general practice of finding no change in habitual residence in such cases. See Whiting, 391 F.3d at 549-50. It concluded that Evelyn's sojourn did not alter K.L.'s habitual residence. As a result, it did not need to analyze any other element of the "wrongful-retention" analysis.

 It held that the appeal was not moot; that Derek satisfied his affirmative defense burden under the Convention to show that Evelyn consented and acquiesced to the Texas court's authority to make a final custody adjudication; and found that K.L.'s habitual residence at the time of the alleged retention remained the United States.