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Friday, September 15, 2017
Eubanks v Eubanks, 2017 WL 3235446 (E.D. Louisiana, 2017)[Cayman Islands][Habitual Residence][Petition denied]
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.