In Harm v. Lake-Harm, --- F.4th, ---- 2021 WL 4900305 (5th Cir., 2021) the Fifth Circuit affirmed an order of the district court which concluded that the residence of the child in Ireland was only transitory and held that the district court correctly applied the totality-of-the-circumstances” analysis in determining the child’s habitual residence, in accordance with the United States Supreme Court’s most recent precedent on the Hague Convention in Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 726, 206 L.Ed.2d 9 (2020).
Petitioner-Appellant Christopher Ryan Harm was a citizen of the United Kingdom and Northern Ireland, currently residing in the latter. Respondent-Appellee Meschiya Rachel Lake-Harm was a citizen of the United States, currently living in New Orleans, Louisiana. Mr. Harm alleged that their three-year-old child, SLH, was abducted by Ms. Lake-Harm from Ireland on May 21, 2019, when SLH was between one and two years old.
Ms. Lake-Harm was a professional musician. She met Mr. Harm while she was performing. At that time, Mr. Harm was living in Kilkenny, Ireland, and Ms. Lake-Harm was living in New Orleans. They both moved to New Orleans in November 2016 and were married in Mississippi that December. SLH was born in New Orleans on January 15, 2017. Because Ms. Lake-Harm frequently performed in Europe and because of “the political climate in the United States,” she and Mr. Harm discussed setting up and maintaining a “home base” in Ireland for long enough that Ms. Lake-Harm could obtain European Union residency. (The couple had also become concerned about crime in New Orleans after a drug addict broke into their van and left a used hypodermic needle under SLH’s car seat.) Both parents also wanted to give SLH the opportunity of living in the European Union and ultimately attending college there in the future if she so desired. Ms. Lake-Harm was interviewed by Offbeat Magazine, during which she explained that she could only live in New Orleans if she elected to live in the United States, but that she wanted to move to Europe so that SLH would have both United States and Irish passports.
The couple began to experience marital difficulties in February of 2018, after which they slept in separate bedrooms. Ms. Lake-Harm kept traveling to perform, however, and did not cease her efforts to obtain European Union residency for herself and SLH. In May of that year, after spending time in New Orleans to sell some of her belongings, Ms. Lake-Harm took SLH to Amsterdam. Along with Mr. Harm, she and SLH traveled in the Netherlands, Switzerland, and Denmark for her performances. In June 2018, Ms. Lake-Harm learned of sexual assault allegations against Mr. Harm, and the couple’s relationship further deteriorated. In July, two months after their arrival in Europe, the family moved to Ireland and rented the Woodview House outside of Cork, but Mr. Harm and Ms. Lake-Harm continued to sleep in separate bedrooms. Ms. Lake-Harm applied for and obtained an international driver’s license. She deposited her funds in an Irish bank account and closed her United States bank account. She then legally added “Harm” to her last name, even though her marriage continued to crumble. When Ms. Lake-Harm entered Ireland, she informed a customs official that Ireland was her new home. She also shared this information on her social media accounts. In March 2019, Ms. Lake-Harm moved out of the Woodview House and into a house in Wexford, Ireland, approximately three hours away from the Woodview House, where Mr. Harm still lived. Following Ms. Lake-Harm’s move to Wexford, the couple attempted to share custody of SLH. An equal division was not often followed, however, because of Ms. Lake-Harm’s frequent international travel, in which she would take SLH along. During that time, Ms. Lake-Harm expressed that Ireland was her “home base of operations.” The family traveled together to Italy in August of that year, but later Ms. Lake-Harm alone took SLH to the United States. Ms. Lake-Harm and SLH then traveled to Germany, where Mr. Harm was working at the time. While on that trip, the couple got into a dispute during which Mr. Harm attempted to take SLH from Ms. Lake-Harm forcibly. Ms. Lake-Harm became afraid: She told Mr. Harm that she wanted a divorce and that she could no longer co-parent with him. She consulted legal counsel in Ireland but was told that she could not file for divorce there because she was not a legal resident of Ireland. Ms. Lake-Harm continued to travel with SLH, but no longer with Mr. Harm. However, Ms. Lake-Harm went to Greece in November and left SLH with Mr. Harm for six days. That was the first time SLH had been cared for overnight by Mr. Harm alone. When Ms. Lake-Harm traveled to Moscow, she again left SLH with Mr. Harm. But, after returning, Ms. Lake-Harm learned that Mr. Harm had been bathing naked with SLH and had taught her words for the male genitalia. After that, Ms. Lake-Harm no longer felt comfortable leaving SLH alone with Mr. Harm for more than a few hours at a time. That December, after receiving permission from Mr. Harm, Ms. Lake-Harm took SLH to New Orleans to visit family and friends and to perform there. Ms. Lake-Harm and SLH returned to Ireland in mid-January 2019. SLH celebrated her January birthday in Ireland, but with no friends in attendance. (She had celebrated the same birthday with parties in New Orleans and Tucson prior to returning to Ireland.) With Mr. Harm’s permission, Ms. Lake-Harm continued to travel throughout Europe, accompanied by SLH. During that extended period of travel, SLH was in Ireland, together with Ms. Lake-Harm, for one-and-a-half weeks at the most. Early in May of 2019, Ms. Lake-Harm began planning the above-noted move from Woodview House to Wexford, Ireland. Then, on May 21, Ms. Lake-Harm took SLH to the United States, originally with Mr. Lake’s permission, planning to go to Tucson, Arizona and visit Ms. Lake-Harm’s parents there. However, the mother and child ended up traveling to New Orleans instead.
Mr. Harm then initiated the action in the Eastern District of Louisiana, claiming that Ms. Lake-Harm had abducted SLH, in violation of the Hague Convention. The district court ultimately held that SLH’s habitual residence was the United States, and that her residence in Ireland was transitory. In its oral opinion and order, the district court considered testimony and arguments from both sides. The court based its finding that SLH’s residence in Ireland was transitory partially on the fact that Mr. Harm had consented to all of SLH’s travels, including the “abduction” in May 2019. That consent, the district court noted, was buttressed by Mr. Harm’s knowledge that Ms. Lake-Harm maintained substantial ties to New Orleans and that SLH had been born there. The court also recognized that the couple had set up a base in Europe. The trial court then discussed in detail, month-by-month, Ms. Lake-Harm’s world-wide travel, almost always accompanied by SLH. The court noted that in every instance of travel, Mr. Harm consented to SLH going along with Ms. Lake-Harm. Testimony also established that, while in Ireland, SLH did not meet any friends or attend school. The court further noted that, when SLH was in Ireland, she was never there “for more than a couple of weeks” before again traveling with Ms. Lake-Harm. The court concluded that SLH’s ties to Ireland were “extremely limited.” The district court further found that Mr. Harm had not attempted to be in SLH’s life very much. The court also noted the instability in the couple’s marriage. Finally, the court summed up its holding by stating: “And now to say that [the couple] established habitual residence as a married couple and the parents of a minor child in Ireland under those circumstances would be absurd.”
The Fifth Circuit pointed out that the habitual-residence determination thus presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court. “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” It found that while reasonable minds may disagree with the district court’s conclusion, that court made a plausible finding in light of the record as a whole, which it would not set it aside as clearly erroneous. It held that the district court’s determinations were plausible in light of the record as a whole. Despite the increase of SLH’s parents’ center of gravity in Ireland, it was obliged to follow the Supreme Court’s precedent in Hague Convention cases such as this one, keeping in mind the trial court’s unique position vis-á-vis the testimony of the witnesses and the other evidence, and conclude that it did not commit clear error in determining and weighing the operative facts of this case. Because that court determined, on the basis of all of the trial evidence, that SLH’s presence in Ireland was transitory, the United States remained her habitual residence and its law governed this case.