Colin Smith v. Sarah Smith

Case: 19-11310 Document: 00515578919 Page: 1 Date Filed: 09/25/2020

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

September 25, 2020

No. 19-11310

Lyle W. Cayce

Clerk

Colin David Smith,

Plaintiff—Appellant,

versus

Sarah Elizabeth Smith,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CV-784

Before Barksdale, Elrod, and Ho, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge: *

This case arises out of a child custody dispute. Colin David Smith

filed a petition under the Hague Convention asserting that Sarah Elizabeth

Smith wrongfully removed their children from Argentina to Texas. The

district court denied the father’s petition because it determined that

Argentina was not the children’s habitual residence. For the reasons set forth

below, we AFFIRM the district court’s judgment.

*

Judge Ho concurs in the judgment only.

Case: 19-11310 Document: 00515578919 Page: 2 Date Filed: 09/25/2020

No. 19-11310

I.

Petitioner-Appellant Colin Smith and Respondent-Appellee Sarah

Smith married in 2008 and have four children. After several moves within

the United States, the family moved to Argentina in June 2017. The couple

separated in May 2018 and jointly petitioned an Argentinian court for

divorce. That court’s divorce decree provided for the parents’ shared

custody. Sarah removed the children to Texas in July 2019, with Colin’s

permission, to attend a funeral, but then she remained in the United States

with the children.

Colin filed a lawsuit seeking the children’s return to Argentina under

the Hague Convention on the Civil Aspects of International Child Abduction

(the “Hague Convention” or “Convention”) in the United States District

Court for the Northern District of Texas, Fort Worth Division, on October

1, 2019.

The district court held a bench trial in which Colin argued that a

foreign custody order and the provisions thereof, combined with the length

of time the children lived in Argentina, determined that Argentina was the

children’s habitual residence. He also testified, however, that there was no

objective evidence showing a shared intention to permanently move to

Argentina.

Sarah pointed to the fact that none of the children had ever left the

United States before moving to Argentina, certain provisions in Colin’s work

contract, the children’s attendance at an American school in Argentina, and

her own continued ownership of inherited property in Texas as evidence that

Argentina was not the children’s habitual residence. She further testified

that Colin had reassured her that the move to Argentina was only for two

years and that they would use the money he earned there to pay for a house

in the United States. A close family friend also testified at the hearing that

2

Case: 19-11310 Document: 00515578919 Page: 3 Date Filed: 09/25/2020

No. 19-11310

neither party ever represented that they intended to permanently abandon

the United States by moving to Argentina and that they always spoke of the

move as temporary.

The district court then issued an order denying the return of the

children to Argentina, determining that the facts supported the conclusion

that none of the children habitually resided in Argentina. Specifically, the

district court found: both parents and all the children were born in the United

States and continued to be United States citizens; Colin was eligible to apply

for Argentinian citizenship and did not do so; Colin’s work contract was at-

will, contained provisions for “home leave” which referred to the United

States, specifically San Francisco, and provided for a 24-month housing

allowance; the parties brought all of their personal belongings with them to

Argentina, but Sarah continued to own, and Colin was aware of, land in Texas

that she inherited prior to the move abroad; the parties chose to sign a two-

year lease in Argentina rather than purchase a residence; all four children

were enrolled in an “American style” school in Buenos Aires; none of the

parties own any property or have any family members in Argentina; Sarah

does not now qualify for anything other than an Argentinian tourist visa,

which would only allow her to stay in the country for up to three months.

Regarding the Argentinian divorce decree, the district court found

that, generally, Sarah had primary custody of the children while Colin

exercised custody rights when he was not traveling. It also contained

provisions allowing the children to travel to their “country of origin” and

requiring each parent to inform the other if the children traveled across

Argentina in a radius exceeding 100 miles. Notably, the district court found

no express provision in the decree requiring any individual to live exclusively

in Argentina.

3

Case: 19-11310 Document: 00515578919 Page: 4 Date Filed: 09/25/2020

No. 19-11310

The district court also found that the oldest two children were of

sufficient age and maturity to object to being sent back to Argentina, and that

they did object.

Colin filed this appeal in which he contends that the district court

erroneously applied a “shared intent” standard for determining the habitual

residence of the children instead of a “totality of the circumstances”

standard. It is Colin’s position that the Argentinian divorce decree is

dispositive in that its shared custody provisions can practically be

implemented only in Argentina. Colin further argues that there was

insufficient evidence to support the district court’s additional determination

that the oldest two children were of sufficient age and maturity to object to

being returned to Argentina.

II.

Questions of law are typically reviewed de novo and questions of fact

for clear error, but determining a child’s habitual residence is a mixed

question of law and fact which requires a court to determine the appropriate

legal standard before applying that standard to the facts. Monasky v. Taglieri,

140 S. Ct. 719, 730 (2020).

Before Monasky, the Fifth Circuit adopted an approach that looked to

the parents’ “shared intent” as a threshold test for determining a child’s

habitual residence. Larbie v. Larbie, 690 F.3d 295, 310–11 (5th Cir. 2012).

This was the approach the district court used to arrive at its determination in

this case.

While this appeal was pending, the Supreme Court of the United

States held in Monasky that the correct approach to habitual residence is to

examine the totality of the circumstances. 140 S. Ct. at 730. Once this

standard is identified, a court need only apply that standard to determine if a

child was at home in the country from which the child was removed. Id. This

4

Case: 19-11310 Document: 00515578919 Page: 5 Date Filed: 09/25/2020

No. 19-11310

is a fact-intensive analysis that “should be judged on appeal by a clear-error

review.” Id.; see also Delgado v. Osuna, 837 F.3d 571, 577 (5th Cir. 2016)

(“The mixed standard of review means that the court accept[s] the district

court’s historical or narrative facts unless they are clearly erroneous . . . .”

(quoting Berezowsky v. Ojeda, 765 F.3d 456, 465–66 (5th Cir. 2014))).

Therefore, we review the district court’s determination for clear error, but

we do so under a totality-of-the-circumstances analysis. 1

III.

The Hague Convention’s overall goal is “[t]o address the problem of

international child abductions during domestic disputes.” Lozano v. Montoya

Alvarez, 572 U.S. 1, 4 (2014) (internal quotation marks omitted). The

International Child Abduction Remedies Act codifies the United States’

obligations under the Convention, providing that courts are “to determine

only rights under the Convention and not the merits of any underlying child

custody claims.” 22 U.S.C. § 9001(b)(4). Procedurally, the Convention

attempts to accomplish its goal primarily through “the prompt return of a

child wrongfully removed or retained away from the country in which she

habitually resides.” Monasky, 140 S. Ct. at 723. It is then up to the courts of

the “habitual residence” to decide the substantive merits of the underlying

custody issue. Redmond v. Redmond, 724 F.3d 729, 737 (7th Cir. 2013).

However, separating the procedural questions of international law

from the substantive issues of the underlying custody battle has proven to be

1

In light of the Supreme Court’s holding in Monasky that a child’s habitual

residence should be determined by looking to the totality of the circumstances, to the extent

that our circuit’s prior caselaw in Larbie and other cases has prioritized the parents’ shared

intent over other factors, we overrule that emphasis. Monasky, 140 S. Ct. at 730; Larbie,

690 F.3d at 310–11; see also, e.g., Berezowsky, 765 F.3d at 466 (“Like the majority of circuits,

we have ‘adopted an approach that begins with the parents’ shared intent or settled

purpose regarding their child’s residence.’” (quoting Larbie, 690 F.3d at 310)).

5

Case: 19-11310 Document: 00515578919 Page: 6 Date Filed: 09/25/2020

No. 19-11310

a challenging task for federal courts, which seldom have the family law

expertise of their state court counterparts. Rachel Koehn, Note, Family Law

Frustrations: Addressing Hague Convention Issues in Federal Courts, 69 BAYLOR

L. REV. 636, 641 (2017); see also Chafin v. Chafin, 568 U.S. 165, 185 (2013)

(Ginsburg, J., concurring); Berezowsky v. Rendon Ojeda, 652 F. App’x 249,

255 (5th Cir. 2016) (Elrod, J., concurring); Redmond, 724 F.3d at 749

(Easterbrook, J., dubitante). This task is made even more difficult where key

terms in the Convention’s procedural mechanisms remain undefined. Such

is the case with “habitual residence.”

The Supreme Court held in Monasky that “a child’s habitual

residence depends on the totality of the circumstances specific to the case.”

140 S. Ct at 723. It also held that a child’s “residence in a particular country

can be deemed ‘habitual’ . . . only when her residence there is more than

transitory.” Id. at 726.

In Monasky, a United States citizen and an Italian citizen married in

the United States in 2011. Id. at 724. Two years later, they moved to Milan,

Italy, where they both lived and worked for about a year before Monasky

became pregnant. Id. Taglieri’s move to a different town three hours away

for new employment, allegations of physical abuse, and a difficult pregnancy

strained the couple’s relationship leading up to the birth of their daughter in

February 2015. Id. By April 2015, their marriage had deteriorated to the

point that Monasky fled Italy with their two-month-old daughter to move in

with Monasky’s parents in Ohio. Id.

With Monasky in the United States, Taglieri secured an order from

an Italian court terminating Monasky’s parental rights and petitioned under

the Hague Convention for the U.S. District Court for the Northern District

of Ohio to return their daughter to Italy. Id. After a bench trial, the district

court granted Taglieri’s petition, proceeding on a “shared intent” basis. Id.

6

Case: 19-11310 Document: 00515578919 Page: 7 Date Filed: 09/25/2020

No. 19-11310

According to the district court, the parents’ establishment of a marital home

in Italy and Monasky’s lack of any “definitive plans” to raise their daughter

in the United States prior to her exodus evidenced a shared parental intent

for their daughter’s habitual residence to be in Italy. Id. at 724–25. Monasky

appealed the district court’s determination, and the Sixth Circuit affirmed.

Id. at 725.

Despite holding that a totality-of-the-circumstances, rather than a

“shared intent,” standard applied, the Court nonetheless affirmed the

district court’s determination because it found that the district court had

determined all the relevant facts, the parties agreed no further factual

development was required, and neither party asked for a remand. Id. at 731.

The Convention’s preference for “swift resolution” also favored a final

decision from the Court. Id.

Many of the issues from Monasky present themselves in this case as

well. On one hand, and much like the couple in Monasky, Colin and Sarah

married in the United States, decided to move to a different country together,

and shared a marital home abroad. Like Taglieri, Colin has a foreign court

order granting him some measure of custody. Colin’s court order may even

be more indicative of a shared intent than Taglieri’s because it was the result

of a process that included Sarah. Colin and Sarah’s children were in

Argentina for two years, much longer than the two months Monasky and

Taglieri’s daughter was in Italy before her removal. Though it appears Colin

and Sarah discussed the possibility of future moves out of Argentina, the

record does not contain any plans more definite than Monasky’s.

On the other hand, whereas Taglieri was a citizen of Italy, all parties

in this case are United States citizens and have remained so despite

opportunities to become Argentinian citizens. Though the daughter in

Monasky was only in Italy for two months before she was removed, those two

7

Case: 19-11310 Document: 00515578919 Page: 8 Date Filed: 09/25/2020

No. 19-11310

months constituted the entire period of time since her birth. In contrast, the

children in this case were all born in the United States and, before their move

to Argentina, never lived outside of the United States. Monasky does not

speak to whether or not those parties continued to own any property in the

United States after their move to Italy, but Sarah’s continued ownership of

property in the state where the children now reside—the only real property

either of the parties owns—weighs in her favor as well. While the divorce

decree would seem to favor Colin’s assertion that Argentina is the children’s

habitual residence, its “shared” custody language is equally unworkable in

Argentina as it is in the United States. Combined with the fact that it contains

no language that expressly mandates the children’s residence in Argentina, it

is even less persuasive.

The district court, in keeping with what was then-binding Fifth

Circuit precedent, began with the parents’ shared intent before moving onto

a “fact-intensive determination that necessarily varies with the

circumstances of each case.” Larbie, 690 F.3d at 310 (quoting Whiting v.

Krassner, 391 F.3d 540, 546 (3d Cir. 2004)). However, as was the case in

Monasky, the district court had determined and considered all the relevant

facts. After doing so, it decided that Colin, as petitioner, did not meet his

burden of establishing habitual residency. Finding no clear error with the

district court’s factual findings and examining those findings under the

totality of the circumstances, we hold that Argentina is not the children’s

habitual residence. 2

2

The district court also determined that the two oldest children were of sufficient

age and maturity to object to being sent back to Argentina and that both of them did so

object. Colin argues in his appeal that this factual finding was based on insufficient

evidence. Because we determine that Argentina is not the children’s habitual residence,

we need not address whether the district court’s determination on this issue was clearly

erroneous.

8

Case: 19-11310 Document: 00515578919 Page: 9 Date Filed: 09/25/2020

No. 19-11310

IV.

Following the example set in Monasky, we do not remand for the

district court to reconsider because to do so would “consume time when

swift resolution is the Convention’s objective,” and there is no indication

that “the District Court would appraise the facts differently on remand.”

Monasky, 140 S. Ct. at 731. Likewise, counsel agreed at oral argument that a

remand was unnecessary. Instead, because we are unable to find any clear

error with the district court’s findings of fact, we apply the totality-of-the-

circumstances standard established in Monasky to the district court’s factual

findings. Because the totality of the circumstances shows that the children

did not habitually reside in Argentina, we AFFIRM.

9