In Pope v Lunday, 2020 WL 6817487 (10th Cir., 2020) (not selected for publication) Kenneth Pope appealed from the district court’s denial of his petition. He was a United States citizen who lives permanently in Brazil. Ms. Lunday joined Mr. Pope in Brazil in July 2018. The couple obtained a public deed of stable union in Brazil in December 2018. In March 2019, Ms. Lunday became pregnant with twins. When she was 19-20 weeks’ pregnant, she returned to Oklahoma. Mr. Pope understood her trip to the United States was for only a few weeks, to attend social and business events. But Ms. Lunday took her pet cat back with her, and she did not return to Brazil. The infants were born in Oklahoma in November 2019. Since then, they have resided there with Ms. Lunday. Mr. Pope filed his petition days after the birth, and argued that Ms. Lunday has wrongfully retained the twins in Oklahoma from the moment they were born. Focusing on the threshold question of whether the infants habitually resided in Brazil, the district court decided the petition without holding an evidentiary hearing. It first expressed doubt that newborn infants are capable of having a habitual residence. But even assuming that a newborn can have a habitual residence, it held that Mr. Pope had failed to establish that the infants’ habitual residence was in Brazil. It therefore held that Ms. Lunday had not wrongfully retained the infants, and it denied Mr. Pope’s petition.
The 10th Circuit affirmed. It noted that the district court ruled without the benefit of the Supreme Court’s recent discussion of “habitual residence” in Monasky v. Taglieri, 140 S. Ct. 719 (2020). In Monasky the Court held that a habitual-residence determination is a fact-intensive question to be reviewed only for clear error. It pointed out that Monasky provides some guidance concerning whether a newborn might have a habitual residence. The Court stated there that the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. The Tenth Circuit could not conclude that the district court clearly erred in determining that Brazil was not the infants’ habitual residence.
The Court pointed out that the Hague Convention does not define the term ‘habitual residence.’” Monasky, 140 S. Ct. at 726. “A child ‘resides’ where she lives. Her residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.” The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” “[L]ocating a child’s home is a fact-driven inquiry,” in which “courts must be sensitive to the unique circumstances of the case and informed by common sense. In Monasky the Court rejected any “categorical requirements for establishing a child’s habitual residence,”, and held that “[n]o single fact ... is dispositive across all cases,” Ultimately, the question is, “Was the child at home in the particular country at issue?”.
Mr. Pope’s position was an assertion that the court must rule that a newborn’s habitual residence is wherever the parents last agreed it would be. But Monasky rejected the proposition that any particular circumstance controls. It specifically held that although “the intentions and circumstances of caregiving parents are relevant considerations,” nothing requires an actual agreement between the parties. Ms. Lunday emphasizes that the infants had never even been to Brazil. But as with actual agreement, Monasky states that “[a]n infant’s mere physical presence ... is not a dispositive indicator of an infant’s habitual residence.” . “The bottom line is: There are no categorical requirements for establishing a child’s habitual residence[.]” “[A] wide range of facts ..., including facts indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence in that place has the quality of being ‘habitual. The district court’s ruling was consistent with Monasky’s “totality of the circumstances” approach. Rather than considering any factor to be dispositive, the court considered a wide range of factors. It noted that the infants were born in the United States; that both parents and children were United States citizens; and that Ms. Lunday had moved back to the United States while pregnant and the infants had not “spent a moment of their lives in Brazil” since birth. It discussed Mr. Pope’s actual-agreement argument but found that after their birth, “even granting Pope’s factual allegations every benefit of the doubt [,] there was never shared parental intent with respect to the children.” It rejected Mr. Pope’s contention that “Lunday can never withdraw from the pre-birth agreement she allegedly had with Pope [and] is bound to that agreement forever unless she comes to a new agreement with Pope,” noting that “Pope’s position ignores everything that has happened since the alleged in utero agreement,” And given the conflict between the parties since Ms. Lunday returned to the United States, the court stated, “ ‘shared parental intent’ that existed at 19 to 20 weeks in utero is not sufficient to override every other undisputed fact in this case, all of which point in one direction: away from Brazil as the place of habitual residence.” Having reviewed the briefs, the record, and the law, it could not conclude that the district court’s findings were clearly erroneous. It affirmed the district court’s determinations that the infants were not habitual residents of Brazil and that Ms. Lunday did not wrongfully retain them in Oklahoma.
The Court rejected Mr. Pope’s argument that he was denied due process when the district court denied his petition without holding an evidentiary hearing. Neither the Convention nor ICARA, nor any other law including the Due Process Clause of the Fifth Amendment, requires that discovery be allowed or that an evidentiary hearing be conducted as a matter of right in cases arising under the Convention. Rather, a meaningful opportunity to be heard ... is all due process requires in the context of a Hague Convention petition.
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