Harm v. Lake-Harm, --- F.4th, ---- 2021 WL 4900305 (5th Cir., 2021) [Ireland][Habitual Residence][Petition granted] [Standard of Review]

 

In Harm v. Lake-Harm, --- F.4th, ---- 2021 WL 4900305 (5^th 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.

Recent District Court Hague Convention District Court Cases - Philanthrope v Jean, 2021 Westlaw 4896266 (S.D Florida, 2021)

Philanthrope v Jean, 2021 Westlaw 4896266 (S.D Florida, 2021)
[Chile] [Petition granted] [Well Settled defense not established]

Saada v Golan, Not Reported in Fed. Rptr., 2021 WL 4824129 (2d Cir.,2021)[Italy][Federal and State Judicial Remedies][ Rule 60(b) motion][Newly discovered evidence][Denied]

 

In Saada v Golan, Not Reported in Fed. Rptr., 2021 WL 4824129 (2d Cir.,2021) Respondent Narkis Aliza Golan, B.A.S.’s mother, appealed the District Court’s March 29, 2021 order and accompanying judgment denying her Rule 60(b) motion for relief from the District Court’s earlier May 5, 2020 order directing that B.A.S. be returned to Italy. Seeing no error in the District Court’s denial of Golan’s Rule 60(b) motion, the Court affirmed the March 29, 2021 order and the accompanying April 6, 2021 judgment.

 

 In July 2018, Golan, a U.S. citizen, and B.A.S. (then two years old) travelled to the United States from Milan, Italy, where the two of them, along with Petitioner Isacco Jacky Saada, B.A.S.’s father and an Italian national, had been living. Though Golan and B.A.S., who had been born in Italy, were originally scheduled to return to Italy the next month, Golan decided to stay in the United States and move to a confidential domestic violence shelter in New York. In September 2018, Saada commenced this case by filing a petition before the District Court seeking B.A.S.’s return to Italy pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.  After a nine-day bench trial, the District Court concluded that B.A.S.’s “habitual residence was Italy. See Saada v. Golan, No. 18-CV-5292 (AMD) (LB), 2019 WL 1317868, at *15 (E.D.N.Y. Mar. 22, 2019) (“Saada I”), aff’d in part, vacated in part, and remanded, 930 F.3d 533 (2d Cir. 2019) (“Saada II”). While the District Court concluded that returning B.A.S. to Italy would expose him to a “grave risk of harm,” the psychological harm accompanying exposure to domestic violence perpetrated by Saada against Golan, it was satisfied that a series of “undertakings” by Saada, including his promises to stay away from Golan after she and B.A.S. returned to Italy and to visit B.A.S. only with Golan’s consent, were sufficient to “ameliorate the grave risk of harm to B.A.S. upon his repatriation to Italy.” The District Court ordered that B.A.S. be returned to Italy. On appeal, the Second Circuit agreed with the District Court’s habitual-residence determination, but concluded that the District Court erred in granting Saada’s petition because “the most important protective measures it imposed [we]re unenforceable and not otherwise accompanied by sufficient guarantees of performance.” Saada II, 930 F.3d at 537. It remanded the case and instructed the District Court to conduct further proceedings to determine the availability of alternative ameliorative measures.

 

The parties subsequently sought, and were granted, an Italian court order that, inter alia, required Saada to stay away from Golan, restricted Saada’s access to B.A.S., and ordered Saada to undergo certain psychological evaluations and counseling. In light of this development, on remand, the District Court again granted Saada’s petition, and also ordered Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their return to Italy. Saada v. Golan, No. 18-CV-5292 (AMD) (SMG), 2020 WL 2128867, at *5 (E.D.N.Y. May 5, 2020) (“Saada III”). On appeal, the Second Circuit affirmed the District Court’s judgment. Saada v. Golan, 833 F. App’x 829. 834 (2d Cir. 2020) (summary order) (“Saada IV”).

 

Soon after the Court issued a mandate returning this case to the District Court, on January 25, 2021, Golan filed a Rule 60(b) motion for relief from judgment, arguing that “newly discovered evidence” justified reconsideration of the Court’s order in Saada III. See Fed. R. Civ. P. 60(b)(2). Golan offered what she claimed was the transcript of a November 2020 phone call between Saada, his father, and a rabbi, and to which Golan was surreptitiously listening, in which Saada purportedly told the rabbi that he did not trust Golan as a mother because “she bring[s] men[ ] to her place to have sex with her” and that he was in possession of a “picture of [B.A.S.] with different men[ ].” When asked by the rabbi how he knew what Golan was doing in her apartment, Saada responded, “I cannot tell you how I know, but I have proof[ ]” and that “[t]he lawyers who [inaudible] investigators ... so I know.” Golan argued that Saada’s November 2020 statements demonstrated that he violated a “court order.”  Golan argued that Saada’s violation of the October 16, 2018 order cast doubt on Saada’s willingness to abide by Italian court orders. Saada explained that the “investigators” he referenced during the November 2020 phone call were hired by his counsel after a man, one Kfir Hazan, contacted Saada alleging that he had been romantically involved with Golan, that she was engaging in “high-risk” behavior around B.A.S., and that he now wished to offer damaging information about her. Saada’s attorneys likewise represented to the court that they had hired an investigator for the limited purpose of ensuring that B.A.S. was safe, and that the investigator had not disclosed the respondent’s address to Saada or his attorneys.

 

The District Court denied Golan’s motion. It declined to disturb its prior order on the basis of “vague statements,” and in light of “no other evidence to support [Golan’s] claim that [Saada] tried to find out where she lived during the pendency of the petition.” Saada V, 2021 WL 1176372, at *5. The District Court also pointed out that evidence demonstrated that Golan had sent Saada her address as early as April 2020 so that he could send things to B.A.S.  It further concluded that Saada did not violate the District Court’s October 16, 2018 directive because it was Saada’s counsel that engaged the investigator.  Ultimately, the District Court concluded that “[k]nowledge of the limited investigation that did take place would not have changed the outcome” of its order granting the petition because “it does not establish that [Saada] has violated an order of this Court or that the protections put in place in Italy will be insufficient ....”. Golan appealed the District Court’s denial of her Rule 60(b) motion.

 

The Second Circuit affirmed. It pointed out that it reviews a denial of Rule 60(b) relief for abuse of discretion. United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). Rule 60(b) relief “is generally not favored” and granted only upon a showing of “exceptional circumstances.” The burden of proof rests on the party seeking the relief, and when the existence of “newly discovered evidence” forms the basis of a motion, the movant must demonstrate that (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably ignorant of them despite due diligence, (3) the evidence must be admissible and of such importance that it probably would have changed the outcome, and (4) the evidence must not be merely cumulative or impeaching.

 

The Second Circuit noted that Golan argued that the District Court’s principal error lie in its refusal to hold an evidentiary hearing in response to her Rule 60(b) motion. It held that in the Rule 60(b) context, a party is not automatically entitled to an evidentiary hearing. As a general matter, in the Rule 60(b) context, evidentiary hearings should be held to decide disputes concerning “material issues of fact.” Flaks v. Koegel, 504 F.2d 702, 712 (2d Cir. 1974); cf. Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (noting that “[i]f material facts are in dispute” concerning an ineffective assistance of counsel claim, a court should usually hold an evidentiary hearing). It reviews a district court’s refusal to grant a hearing for abuse of discretion, 219 Ingersol St., 1999 WL 822492, at *2 (citing United States v. 8136 S. Dobson St., Chicago, Ill., 125 F.3d 1076, 1086 (7th Cir. 1997)); see In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (describing the abuse-of-discretion standard), and found no such abuse here. The District Court concluded that had it known of the “limited investigation” prior to its granting of Saada’s petition, this “would not have changed the outcome” and it still would have granted the petition. Saada V, 2021 WL 1176372, at *5.

 

Recent Hague Convention District Court Cases - Pflucker v Warms, 2021 WL 4593824 ( M.D. Florida, 2021) [Peru][Petition denied][Habitual Residence][Consent and acquiescence defense]

 Pflucker v Warms, 2021 WL 4593824 ( M.D. Florida, 2021) 
[Peru][Petition denied][Habitual Residence][Consent and acquiescence defense]

Recent Hague Convention District Court Cases - Oliva v Espinoza, 2021 WL 4554579 ( S.D. California, 2021) [Mexico][Petition denied][Habitual residence][ Wrongful retention]

 

Oliva v Espinoza,  2021 WL 4554579 ( S.D. California, 2021)
[Mexico][Petition denied][Habitual residence][ Wrongful retention]

Recent Hague Convention District Court Cases - Bhattacharjee v. Craig., 2021 WL 4504376 ( E.D. Missouri, 2021) [Singapore][Habitual Residence][Mature Child Defense][Petition granted]

 

Bhattacharjee v. Craig., 2021 WL 4504376 ( E.D. Missouri, 2021)

[Singapore][Habitual Residence][Mature Child Defense][Petition granted]

Douglas v Douglas, 2021 WL 4286555 (6th Cir., 2021)[Australia] [Habitual Residence] [Summary Judgment] [Petition denied]

 

In Douglas v Douglas, 2021 WL 4286555 (6th Cir., 2021) in late October 2017, Heath, an Australian man, contacted Nancy, an American woman, on a dating website. Heath lived in Curlewis, New South Wales (NSW), Australia, and Nancy lived in Boston, Massachusetts. Heath and Nancy began communicating via telephone in November 2017. The same month, the parties began planning for Nancy to visit Heath. Heath purchased a roundtrip ticket for Nancy to fly to Australia for “[a] few weeks” beginning in late December. Nancy left her associate-editor job in Boston, where she had worked since August 2016. The same company hired her to work remotely as a freelance editor. Nancy arrived in Australia on December 21, 2017. Upon her arrival, Heath gave her an American Express card with $7,000 and told her, “[L]ook, any time you want to go back, use that, go home, you don’t have to stay.” Shortly after Christmas, Heath proposed marriage, and Nancy accepted. The parties were married on February 10, 2018. Nancy moved into Heath’s home, and within a month, she became pregnant. The couple began arguing soon after their marriage. The arguments occurred “[e]very few days” and were “[s]evere.” Nancy testified that the “themes” of these arguments were “[t]hat [she] was disrespecting [Heath] and not submitting to [him].” Despite the parties’ marital strife, they attempted to build a life together in Australia. On June 6, 2018, Heath paid $7,000 to the Australian Department of Home Affairs to sponsor Nancy’s Permanent Partner Visa. Nancy obtained a debit card linked to Heath’s National Australian Bank account. On June 29, 2018, the parties signed a twelve-month lease for an apartment in Merewether, NSW. By October 2018, the parties began seeking marriage counseling. At the end of October, Heath told Nancy that he “[couldn’t] handle this” and stayed at a motel for the night.. Around the same time, he told Nancy to “get the F out” of the apartment. He then ran after her and she returned, telling him that she wanted a divorce. However, the couple did not divorce at that time. Nancy and Heath’s son, J.D., was born in Australia on November 4, 2018. Nancy’s mother flew to Australia for J.D.’s birth. On the morning of November 7, 2018, Heath and Nancy got into an argument. When Heath returned home from work, he told Nancy to “get out” of the apartment... Heath and Nancy had not lived together since November 7, 2018. On November 21, 2018, Nancy sent an e-mail to Heath stating: The marriage is over. I would like to return to America with [J.D.] Will you agree to this and sign his [Australian-passport application]? There can still be ways to see and spend time with [J.D.] .... This email confirms that we have officially separated as of today, 21/11/18. After separating from Heath, Nancy applied for child support. On December 3, 2018, a law firm representing Nancy wrote a letter to Heath informing him that Nancy “wishes to return to Michigan ... to live with her parents ... and seeks to also relocate [J.D.’s] residence to the United States.” On December 7, 2018, Heath sent Nancy an e-mail stating, “I understand that you really do not want me in your life anymore, and this really hurts.” On December 9, 2018, Heath wrote Nancy another e-mail stating, “you obviously aren’t coming back to me.”. Sometime between December 2018 and January 2019, Heath left the parties’ Merewether apartment and moved over three hours away, back to Curlewis. On December 13, 2018, Heath commenced a custody proceeding in federal circuit court in Australia.   On December 15, 2018, Nancy wrote a letter to Heath: please sign [J.D.’s Australian-passport application] so I can go somewhere where I have support and people I know and a free place to stay. I need the space. If you want, I can show you my return ticket. if you really love me, you’ll let me go. As it turns out, Nancy had not purchased a return ticket to Australia, and Heath did not ask to see a return ticket. On December 24, 2018, Heath responded: OK nancy, Merry Christmas. Please take care of our little man.. On the back of his letter, Heath wrote: No conditions. No expectations. I will provide, love heath xo. Heath signed J.D.’s Australian-passport application. Also on December 24, 2018, Heath dismissed the custody proceeding he initiated earlier that month. In January 2019, Heath paid a child-support assessment. On January 11, 2019, Heath wrote a letter to Nancy stating: You are free to go home now. I am sorry for not getting these through to you earlier, but maybe the timing is just right? I don’t know. I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing! Thanks for your patience with me as I learnt what it is to be a good Dad and friend. I have never had to sacrifice so much! Be blessed nancy!  On January 30, 2019, Heath signed a letter authorizing J.D. to travel with Nancy to the United States. The next month, Nancy unilaterally withdrew her Permanent-Partner-Visa application.

 

On February 13, 2019, Nancy and J.D. flew to the United States. Nancy ended Heath’s child-support assessments. Since their arrival, Nancy and J.D. lived with Nancy’s parents in Michigan. Nancy filed for divorce in September 2019 and served Heath with divorce papers in Australia on October 3, 2019.  Heath filed this petition for return of J.D. on May 14, 2020. Following discovery on the issue of J.D.’s habitual residence, Nancy filed a motion for summary judgment, arguing that there was no genuine dispute that J.D.’s habitual residence was the United States. The district court granted Nancy’s motion, concluding that immediately before the alleged wrongful retention, J.D.’s “habitual residence” was Michigan, not Australia. Heath appealed. 

The Sixth Circuit affirmed. It reviewed de novo a grant of summary judgment, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in the nonmoving party’s favor. The Court observed that child’s habitual residence depends on the totality of the circumstances specific to the case.” Monasky, 140 S. Ct. at 723. “A person can have only one habitual residence.” Simcox v. Simcox, 511 F.3d 594, 602 (6th Cir. 2007). In Monasky, the Supreme Court articulated several principles for determining habitual residence. The term “habitual” “suggest[s] a fact-sensitive inquiry, not a categorical one.” Monasky, 140 S. Ct. at 726. Habitual residence does not turn on the existence of an actual agreement or on any other categorical requirement. “The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.” A child’s residence in a particular country can only be considered “habitual” when “her residence there is more than transitory.” Id. “What makes a child’s residence ‘habitual’ is ... ‘some degree of integration by the child in a social and family environment.’ ” Moreover, [b]ecause locating a child’s home is a fact-driven inquiry, courts must be “sensitive to the unique circumstances of the case and informed by common sense.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant. Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence. But suppose, for instance, that an infant lived in a country only because a caregiving parent had been coerced into remaining there. Those circumstances should figure in the calculus. And “[a]n infant’s ‘mere physical presence’ ... is not a dispositive indicator of an infant’s habitual residence[,] ... [b]ut 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.’ ” 

 

Heath’s complaint alleged that Nancy’s retention of J.D. became wrongful on October 3, 2019. Heath did not challenge the wrongful-retention date on appeal. The Court noted that one factor informing a young child’s habitual residence is the caregiving parents’ “intentions and circumstances.” Monasky, 140 S. Ct. at 727. Some evidence suggests that before J.D. was born, the parties may have intended to raise him in Australia: Nancy obtained a debit card linked to Heath’s National Australian Bank account; the parties signed a twelve-month lease for an apartment in Merewether; Nancy obtained an NSW driver’s license; the parties contemplated a ten-year plan to live in Australia; and Nancy applied for a Permanent Partner Visa. 

Other evidence, however, more strongly indicated that by the wrongful-retention date, the parties intended for J.D. to live in the United States. In October 2018, the parties got into an argument in which Heath told Nancy to “get the F out” of their apartment and Nancy told Heath that she wanted a divorce. Three days after J.D. was born, Heath exiled Nancy from the apartment again. The parties lived separately after that point. On December 3, 2018, a law firm representing Nancy informed Heath that Nancy wished to return to Michigan and relocate J.D.’s residence there. Heath’s e-mails from December 7 and 9, 2018 stated, “I understand that you really do not want me in your life anymore” and “you obviously aren’t coming back to me.” On December 24, 2018, in response to Nancy’s request for Heath to sign J.D.’s passport application, Heath replied, “OK nancy, ... Please take care of our little man.” On the back of the letter, Heath wrote, “No conditions / No expectations.” On the same day, Heath signed J.D.’s passport application and dismissed the custody proceeding he had initiated eleven days earlier. On January 11, 2019, Heath sent a letter to Nancy stating, “You are free to go home now. ... I want the best for you and [J.D.] and if that is back in America with your folks, then you have my blessing!” In a letter dated January 30, 2019, Heath authorized J.D. to travel with Nancy to the United States.

 

Heath argued that he wrote “No conditions / No expectations” “after Nancy’s promise to return,” and that this context creates an issue of fact as to the parties’ intent. Appellant’s Br. at 32–33. Heath testified that “No conditions / No expectations” meant he “didn’t want to put any expectation or conditions on her travel if she needed to go anywhere to see friends [or] family,” he “[did not] want to be a controlling husband[,] and [he did not] want to hold her back if she need[ed] to go anywhere.” R. 35-2, PID 274. Because we must draw all reasonable inferences in Heath’s favor, we take this testimony as true. See Fisher, 951 F.3d at 416. But even accepting this interpretation of the December 24th correspondence, other evidence in the record, including Heath’s January letters and the parties’ conduct, establish that by the wrongful-retention date, the parties intended for J.D. to live in the United States.

 

Another relevant consideration is the “degree of integration by the child in a social and family environment.” Monasky, 140 S. Ct. at 726 (quotation omitted). When Heath directed Nancy to leave their apartment, J.D. was three days old. For three months afterward, Nancy, her mother, and J.D. moved between rentals and other temporary housing. Heath moved over three hours away from the Merewether apartment. J.D. was not meaningfully integrated in any social or family environment in Australia; his residence there was merely transitory. In contrast, J.D. had lived in Michigan with his mother and maternal grandparents for over seven months by the wrongful-retention date. Thus, as of October 3, 2019, J.D. was “at home” in Michigan, not Australia.