Nowlan v Nowlan, Not Reported in Fed. Rptr., 2022 WL 34141 (4th Cir, 2022) [Canada] [Habitual Residence] [Petition granted]

 

In Nowlan v Nowlan, Not Reported in Fed. Rptr., 2022 WL 34141 (4th Cir, 2022) Nina Lynn Nowlan appealed the district court’s order granting Bryce Gerald Randall Nowlan’s Petition for Return of the Child under the Hague Convention on the Civil Aspects of International Child Abduction. The court determined that the Nowlans’ child, AEN, was a habitual resident of Canada when Nina took AEN to Virginia. The court further determined that Nina did not show by clear and convincing evidence that AEN would be in grave risk of harm if AEN was returned to Canada to live with Bryce. The Fourth Circuit affirmed in an unpublished opinion. It noted that a  child’s habitual residence is a mixed question of law and fact. Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020). The first issue is whether the district court identified “the governing totality-of-the-circumstances standard.”  The second issue involves answering a factual question: “Was the child at home in the particular country at issue.” Its  review of the district court’s decision was for clear error. It concluded  that the district court applied the correct legal standard and did not clearly err in determining that AEN’s habitual residence was Canada when Nina took AEN to Virginia. the district court did not err in determining that Nina did not prove by clear and convincing evidence that AEN would be in grave risk of harm if the child was returned to Canada. See Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (stating burden of proof). It affirmed  for the reasons stated by the district court. See Nowlan v. Nowlan, No. 5:20-cv-00102-TTC (W.D. Va. June 10, 2021).