In
Eubanks v Eubanks, 2017 WL 3235446 (E.D. Louisiana, 2017) the district court
denied the Petition of Ivan Eubanks’ for the return of his children to the
Cayman Islands.
The
district court found that the parties were both American Citizens. They were
married on December 1, 2007 in Louisiana. In 2008, they moved to Boston,
Massachusetts after Mr. Eubanks accepted a teaching position at Boston
University. E.E. and P.E. were born on April 18, 2013 in Boston, Massachusetts.
Shortly after the birth of E.E. and P.E., Mr. Eubanks secured a job as a
professor in Moscow, Russia. Mr. Eubanks moved to Moscow in August of 2013. Ms.
Eubanks and the two children followed in October of 2013. While in Russia, Mr. Eubanks applied for over
ninety different jobs, almost all of which were teaching positions in the
United States. At some point prior to January 2016, Mr. Eubanks, accepted a
position teaching freshman English at the University College of the Cayman
Islands. Mr. Eubanks’ teaching contract with the University College of the Cayman
Islands was for two-years. Mr. Eubanks told Ms. Eubanks that the move to the
Cayman Islands would be a temporary move for the duration of one semester,
until he received a position in the United States. Ms. Eubanks agreed to the
move because the parties were desperate to leave Russia and because Mr. Eubanks
promised their stay in the Cayman Islands was to be temporary and that it would
provide an opportunity for them to decompress after leaving Russia. Mr. Eubanks
specifically told Ms. Eubanks that he was 100 percent positive he would be
offered a teaching position at the University of San Diego by the end of the
semester. The parties moved to the Cayman Islands on or about January 1, 2016.
The
court found that Ms Eubanks was the more credible witness, and that E.E. and
P.E. lived in the Cayman Islands, with both Mr. and Ms. Eubanks, from January 1,
2016 until August 26, 2016. Neither Mr. Eubanks nor Ms. Eubanks had any
relatives residing in the Cayman Islands. Mr. Eubanks did not change the
mailing address on his credit cards or bank statements to the Cayman Islands
and, instead, they are mailed to his father’s address in South Carolina. Mr.
Eubanks was registered to vote in Florida. The parties rented a furnished
condominium in the Cayman Islands and continued to store their personal
belongings in their storage facility in New Orleans, Louisiana. The lease
agreement for the condominium contained, at the parties’ request, an “escape
clause” allowing the parties to break to break the lease, without penalty, at
any time prior to May 31, 2016. The
escape clause was included in the lease so that the parties could break the
lease if Mr. Eubanks received an offer to work in the United States. Shortly after moving to the Cayman Islands and
participating in a Skype interview, Mr. Eubanks learned on January 18 that he
was not chosen for the teaching position at the University of San Diego. After
learning he did not get the job at the University of San Diego, Mr. Eubanks
assured Ms. Eubanks his chances of getting hired by the State Department were
good. In June 2016, Mr. Eubanks accepted
a position as Acting Dean of Academic Affairs with his current employer, the
University College of the Cayman Islands. Mr. Eubanks told Ms. Eubanks that
accepting this position would make him a more desirable applicant in his job
search. E.E. and P.E. were registered
but had not started school in the Cayman Islands as of August 26, 2016. Both Mr. Eubanks and Ms. Eubanks wanted E.E.
and P.E. to be raised and educated in the United States. From the time of
arrival in the Cayman Islands to the date of this trial, Mr. Eubanks actively
sought employment in the United States. Ms. Eubanks did not intend for the children’s
habitual residence to be in the Cayman Islands. Ms. Eubanks removed E.E. and P.E. from the
Cayman Islands to New Orleans, Louisiana on August 26, 2016, without the
consent of Mr. Eubanks. E.E and P.E.
continued to reside in New Orleans, Louisiana with Ms. Eubanks. On February 10, 2017, Mr. Eubanks filed his
Verified Complaint for the Return of Children to the Cayman Islands.
The
Court’s habitual residence analysis was accordance with the Ninth Circuits
decision in Mozes v Mozes, 299
F.3d at 1070. As E.E. and P.E. were only three years old at the time of removal,
the Court found that its inquiry as to their habitual residence depended solely
on the parents’ intentions. The Court did not need to determine E.E. and P.E.’s
habitual residence before they moved to the Cayman Islands. Even assuming the children were at one point
habitually resident in Russia, it was undisputed that there was a clear meeting
of the minds between Mr. and Ms. Eubanks to abandon Russia as the children’s
habitual residence. As a result, the issue was whether the parties mutually
intended to establish the Cayman Islands as the children’s habitual residence.
The Fifth Circuit has explicitly held that the shared intent to abandon a
habitual residence and move somewhere new does not require that the parents
must agree on the new country of residence. Further, the Fifth Circuit has
noted “it is possible for a young child to have no habitual residence when
there is no evidence of a shared intention for the child to be settled in any
particular location.” Berezowsky v. Ojeda, 765 F.3d 456, 467 (5th
Cir. 2014) (citing Delvoyle v. Lee, 329 F.3d 330, 334 (3d Cir. 2003)).
At trial, the parties offered conflicting
testimony regarding whether they intended to establish a habitual residence in
the Cayman Islands. Ms. Eubanks testified that she agreed to the move only
because Mr. Eubanks told her the move to the Cayman Islands would be temporary.
Ms. Eubanks introduced evidence that Mr. Eubanks continued to seek employment
in the United States after the parties moved to the Cayman Islands. Her sister testified
that Mr. Eubanks applied for jobs after moving to the Cayman Islands and that
he told her the move to the Cayman Islands was temporary and his family would
be moving as soon as he found another job on the mainland. Ms. Eubanks
testified that the parties specifically required that an “escape-clause” be
included in the rental agreement for their condominium so that the parties
would be able to break their lease, without penalty, when Mr. Eubanks received
a position in the United States. Ms. Eubanks also testified that in June, after
Mr. Eubanks accepted the position as Acting Dean, the parties looked to
purchase a home in order to reduce monthly expenses, but that the parties would
only purchase a house on the water so that it could either be rented or sold
relatively quickly. Ms. Eubanks testified that the parties did not purchase a
home because they could not find property in their price range that fit this
criteria. Although both parties testified that they took affirmative steps to
purchase a home in the Cayman Islands, this fact alone is not dispositive to
the Court’s habitual residence analysis. The Court found that Ms. Eubanks put
forth credible reasons as to why the parties may have considered purchasing a
home despite their intention to leave the Cayman Islands as soon as Mr. Eubanks
received a job offer in the United States. Although Ms. Eubanks testified that
the children were registered for school in the Cayman Islands but had not yet
started, Ms. Eubanks also testified that both she and Mr. Eubanks wanted E.E.
and P.E. to be raised and educated in the United States. Evidence that the
children were enrolled to start school in the Cayman Islands is not substantial
evidence that the parties intended to remain in the Cayman Islands
indefinitely. Ms. Eubanks also testified that Mr. Eubanks told her he was not
content with his job in the Cayman Islands and that Mr. Eubanks often
complained that the job was beneath his qualifications. Although Mr. Eubanks
unequivocally testified that he did not actively seek other employment while
living in the Cayman Islands, emails proved his testimony clearly was not true.
Included in these emails were countless communications between Mr. Eubanks and
potential employers during 2016, including the State Department. Mr. Eubanks
continued his quite active search for employment in the United States after he,
Ms. Eubanks, and their children moved to the Cayman Islands. The emails
corroborate Ms. Eubanks’ testimony that Mr. Eubanks was very actively pursuing
a position with the State Department while in the Cayman Islands.
The
Court found that Mr. Eubanks failed to meet his burden of proof by a
preponderance of the evidence that he and Ms. Eubanks had a shared intent to
establish the children’s habitual residence in the Cayman Islands. As a result,
Mr. Eubanks failed to prove by a preponderance of the evidence that the
children were habitually resident in the Cayman Islands at the time they were
removed by their mother.
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