Thursday, December 26, 2019
In Pope v Lunday, 2019 WL 7116115 (WD Oklahoma, 2019) the district court denied Pope’s petition seeking an order requiring that his estranged wife, Respondent Lauren Lunday, “return” their newborn twin children to Brazil.
Pope’s petition claimed that the International Child Abduction Remedies Act applied to this matter because “the Children resided in utero with the parties in the family home [in Brazil] prior to the Respondent traveling by way of her deception to the United States,” that “Brazil was the habitual residence of the children at birth,” and that by keeping the children in Oklahoma, Lunday was thus “wrongfully retaining” the children away from their place of “habitual residence” in Brazil. The petition acknowledged, however, that (1) Lunday left Brazil long before the children were born (at 19-20 weeks in the pregnancy), (2) the children were born in the United States and had not spent a moment of their lives in Brazil, and (3) were currently with Lunday in the United States where Lunday presumably intended to stay.
Pope argued that “this is not a case about wrongful removal of the children in utero,” but rather a case about “wrongful retention” of the children after birth. In Pope’s view, at the moment the children were born, they became “habitual residents” of Brazil because his and Lunday’s “last shared intent” was to reside in Brazil and raise the children there—a position that he believed rendered irrelevant the fact that he and Lunday had been estranged since the children were 19 to 20 weeks in utero. Pope’s position also assumed that day- (or hour- or minute-) old newborns must have a place of “habitual residence,” that this place of habitual residence can be a country in which the newborns had never been physically present, and that his and Lunday’s actual respective intents at the time of the children’s birth must be overridden by any past agreement he and Lunday had regarding where they would raise their hypothetical, future children. In response, Lunday argued that the children could not be habitual residents of a country in which they had never been physically present, that she and Pope had no agreement regarding where the children would reside, and that even if any agreement was reached when the children were in utero, such an agreement is not sufficient to establish the habitual residency of the subsequently-born children.
The Court held that this was not a case of children being wrongfully removed or retained within the meaning of the Convention, but rather a custody dispute that ought to be decided by a court with jurisdiction over such matters.
The Court pointed out that Pope argued that the establishment of habitual residency in Brazil and the wrongful retention away from Brazil occurred simultaneously, at the moment of birth. Pope offered no on-point authority for this position, and it appeared none exists. This position cannot be squared with the text of the Convention, which explains that a child cannot be wrongfully “retained” away from a place unless they were first a habitual resident of that place. Not every crossing of a border with a child is “wrongful” under the Convention. Only removals or retentions of a child away from the place of habitual residence are “wrongful,”—i.e., it is the unilateral severing of established ties to the country that makes the removal or retention “wrongful.” For these reasons, the Court was not convinced that a newborn is capable, at the moment of birth, of having a place of “habitual residence,” as that term is used in the Convention. To conclude otherwise would be to render “habitual” meaningless. But even if a newborn can—or must—be assigned a place of habitual residence, there was no sense in which these children could be considered habitual residents of Brazil. It was undisputed that they were born in the United States to parents who were United States citizens, that they were themselves United States citizens, and that they hadn’t spent a moment of their lives in Brazil, much less enough time that Brazil could be considered the place they usually reside. Pope’s attempt to extend the concept of “last shared parental intent” to a case like this was problematic for several reasons. First, it rendered an agreement as to where to raise a child irrevocable unless superseded by a new agreement. Second, Pope’s position ignored everything that had happened since the alleged in utero agreement. It was undisputed that after leaving Brazil for the United States, Lunday ended her relationship with Pope, remained in the United States, and intended to remain in the United States. The petition was accordingly denied.