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Tuesday, August 26, 2014

Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.)) [Mexico] [Habitual Residence] [Petition Granted]

In Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.))   Plaintiff-Appellee A.V. filed a petition under the Hague Convention seeking the return of her child, M.V., to Mexico. Plaintiff-Appellee alleged that Defendant-Appellant, M.A.V., unlawfully abducted their minor child when he removed M.V. from Mexico and took M.V. to the United States on June 16, 2012. The district court found that M.V. had been wrongfully removed to the United States and ordered Respondent-Appellant to return M.V. to Mexico. The Fifth Circuit affirmed in a Per Curiam opinion.   The only issue on appeal was whether the district court correctly determined that Mexico, and not the United States, was M.V.'s habitual residence for the purposes of the Convention. Applying the decision in  Larbie v. Larbie, 690 F.3d 295 (5th Cir.2012), the district court found that the parties manifested a shared intent for M.V. to abandon the United States as her habitual residence and to remain in Mexico indefinitely. The Court of Appeals held that the district court's finding that Mexico was M.V.'s habitual residence at the time of M.V.'s removal was supported by sufficient and compelling evidence. The district court based its decision in part on the credibility of both Petitioner and Respondent. The Fifth Circuit stated that it affords credibility determinations great deference upon appellate review. See  Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir.2005) ("[T]he court's task [is] to determine the intentions of the parents as of the last time that their intentions were shared. Clearly, this is a question of fact in which the findings of the district court are entitled to deference.") It rejected Respondent's argument that the district court should not have considered the parties' actions surrounding M.V.'s move to Mexico is unavailing. Since Larbie's shared intent standard is a fact-based inquiry, the district court properly considered the events surrounding the parties' agreement to move M.V. to Mexico when making its habitual residence determination. See  Gitter, 396 F.3d at 134 ("In making [the shared intent] determination the court should look, as always in determining intent, actions as well as declarations."); see also  Larbie, 690 F.3d at 310 (noting that the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case").

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