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-รก-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.
