Evelyn Larbie v. Derek Larbie

Case: 11-50859 Document: 00511940231 Page: 1 Date Filed: 07/31/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 31, 2012

No. 11-50859 Lyle W. Cayce

Clerk

EVELYN M. LARBIE,

Plaintiff – Appellee

v.

DEREK LARBIE,

Defendant – Appellant

Appeal from the United States District Court

for the Western District of Texas

Before KING, PRADO, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Plaintiff-Appellee Evelyn Larbie filed a petition under the Hague

Convention on the Civil Aspects of International Child Abduction (the

“Convention”), T.I.A.S. No. 11670, 19 I.L.M. 1501, codified by the International

Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601, et seq., seeking

the return of her son, K.L., to the United Kingdom (“U.K.”). The district court

granted Evelyn’s petition and ordered Defendant-Appellant Derek Larbie to turn

K.L. over to Evelyn’s care. The district court’s application of the Convention

here, however, effectively reverses a custody order entered after lengthy

proceedings, culminating in a final divorce and custody order, in which neither

party objected to the state court’s jurisdiction, creating precisely the type of

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international custody dispute that the Convention seeks to avoid. Accordingly,

we VACATE the district court’s order and RENDER judgment in Derek’s favor.

I. Facts and Procedural History

Derek and Evelyn are Ghanian nationals. Derek obtained naturalized

citizenship in the United States and serves as an officer in the United States Air

Force. Evelyn possesses permanent residency in the U.K.

Derek and Evelyn met in 2004, when he was stationed in Europe. They

married in December 2005. At the time, they lived in San Antonio, Texas,

because Derek was stationed at Lackland Air Force Base. K.L. was born in

August 2006. Derek already had a son from a previous relationship.

Derek sponsored Evelyn for a “green card,” which expired on June 27,

2009. Although Evelyn held a temporary work permit, she stayed home to care

for K.L. The family remained in San Antonio except for several months when

Evelyn temporarily returned to the U.K. and when Derek deployed to Iraq.

The marriage soon foundered. In March 2008, Derek filed for divorce in

Texas state court. Shortly thereafter, Derek received orders to report in June

for two months of training in preparation for a deployment to Afghanistan.

Evelyn responded to Derek’s divorce petition by answer and

counterpetition. In her counterpetition she asserted that she had been domiciled

in Texas for at least six months and that she had resided in San Antonio for at

least ninety days before the suit commenced. She also specified that no other

court had jurisdiction over K.L.

Given Derek’s impending overseas assignment, the Larbies entered into

an agreed temporary divorce decree on June 11, 2008 (the “Temporary Order”).

Among other things, the Temporary Order appointed Derek and Evelyn

“Temporary Joint Managing Conservators” of K.L. and entered a “Standard

Possession Order” outlining how the parties would spend time with him. The

Temporary Order also gave Evelyn the authority to determine K.L.’s residence

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“without regard to geographic location.” However, it also provided that “[i]n the

event that [K.L.] [was] to travel internationally,” Evelyn had to inform Derek of

the dates and location of such travel, the identity of those persons with whom

K.L. was staying, and the telephone numbers at which K.L. could be reached

“while [he was] traveling.” The Temporary Order, moreover, ordered Evelyn to

allow K.L. “weekly” visits with Derek’s other son, and provided that various

provisions were operative only so long as the “case [was] pending.” Evelyn also

received the right to “occupy” the “marital residence” and assumed the

responsibility “for the care and upkeep of such residence,” which was to “be kept

in a substantially like condition of cleanliness as such residence was on June 14,

2008,” the day before Derek reported for training. Derek was made responsible

for paying a detailed list of expenses,1 and Evelyn was given Power of Attorney

to act as Derek’s agent “with respect to addressing any matter which requires

or pertains to the maintenance and service of all utilities associated with the

residence.”

On the same day the parties agreed to the Temporary Order, Derek moved

to stay the proceedings pursuant to the Servicemembers Civil Relief Act, 50

U.S.C. app. §§ 501, et seq., “until Sept. 1, 2009 or until such time as [he]

return[ed] to Lackland Air Force Base at the conclusion of [his] deployment.”2

The Texas court granted Derek’s motion to stay and entered the Temporary

Order on July 23 and 24, 2008, respectively. The Temporary Order specified

that it was to “continue in force until the signing of the Final Decree of Divorce

or until further order of th[e] Court.”

1

The Temporary Order also required Derek to pay $800 per month in child and spousal

support, an amount that increased to $1000 per month beginning September 1, 2008.

2

The Servicemembers Civil Relief Act entitles members of the military to “[a] stay of

an action, proceeding, attachment, or execution . . . for the period of military service and 90

days thereafter, or for any part of that period.” 50 U.S.C. app. § 525(a).

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A few weeks after Derek left for training, Evelyn bought a plane ticket to

travel to London on July 12th. Evelyn took only what was “permissible on the

aircraft,” leaving behind “substantially all” of her and K.L.’s “clothing and

personal effects” and giving no indication that the trip was anything other than

temporary. She and Derek exchanged e-mails that indicated her intent to return

to San Antonio.

Derek deployed to Afghanistan. He subsequently learned that he would

be allowed mid-deployment leave in March 2009. Reasoning that this coincided

with the “Spring Break” visitation provisions in the Temporary Order allowing

him 24-hour custody of K.L. during that time, he planned to spend a portion of

his leave in London. Evelyn, however, refused to allow Derek visitation under

the Temporary Order’s terms.

Derek filed a “Motion to Clarify” the Temporary Order in the Texas court,

which was granted (the “Clarification Order”). The Clarification Order found

that the visitation provision was “binding on the parties . . . and that, for

purposes of spring break visitation for the year 2009, the spring break schedule

for the school district in which the marital residence sits [would] govern the

dates of visitation.” Responding to Evelyn’s concern that exclusive 24-hour

custody might “traumatize[]” K.L., the Clarification Order provided that Derek’s

visitation occur for twelve hours a day from March 7th to March 15th, with K.L.

staying at Evelyn’s residence overnight.

Evelyn declined to honor the Clarification Order, and Derek sought

enforcement via U.K. authorities.3 A U.K. family court enforced the Texas order

3

Evelyn contended to the district court that she and Derek’s U.K. counsel agreed in

this process that K.L.’s “habitual residence was England.” There is no evidence of such an

agreement in the record. Although Evelyn apparently contemplated obtaining a residence

order, she admitted to the district court that she never sought custody of K.L. in the U.K.

courts. A residence order is the U.K. equivalent of a custody order and different from the

contact order Derek obtained to enforce the Clarification Order. See Children Act 1989, c. 41,

Part II, § 8(1) (“In this Act—‘a contact order’ means an order requiring the person with whom

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by entering a “contact order” under the U.K. Children Act 1989 that required

Evelyn to allow Derek visitation on the same dates and times ordered by the

Texas court. Derek and his other son visited K.L. during “Spring Break,” and

Derek returned to Afghanistan.

K.L. had entered the U.K. on a limited-duration visitor’s visa that expired

in early 2009. Without notifying Derek, Evelyn had filed an application to

obtain permanent resident status for K.L. in autumn 2008. A U.K. immigration

official denied that application on June 23, 2009, in part because Evelyn failed

to show that she was “‘present and settled in the [U.K.] and . . . had sole

responsibility for [K.L.’s] upbringing.’” The official also reasoned that the

Temporary Order “‘impl[ied] that the final decision regarding [K.L.’s] place of

residence and which of [his] parents will have primary responsibility for [his]

upbringing will not be decided until [his] parents’ final decree is signed.’” The

official saw “‘nothing to indicate that [Derek had] agreed to [K.L.’s] residing in

the [U.K.] permanently with [his] mother.’” Evelyn immediately appealed.

Days later, Evelyn asked the Texas court to set the divorce for a final

hearing. In her motion, Evelyn stated that she had returned to Texas and

discovered that her immigration paperwork was missing from the marital

residence. These documents were crucial, Evelyn argued, because without them

she could not “retain her current green card status in the United States.”

On June 30, 2009, Evelyn, her attorney, and Derek’s attorney attended a

hearing in San Antonio (the “June 30th Hearing”). Contending that K.L. could

be “ejected from England at any point in time,” Evelyn’s counsel “ask[ed] either

that the [Texas] Court order [Derek] to give consent for K.L. to have residency

a child lives, or is to live, to allow the child to visit or stay with the person named in the order,

or for that person and the child otherwise to have contact with each other . . . .”); Fawcett v.

McRoberts, 326 F.3d 491, 498-500 (4th Cir. 2003)(discussing residence and contact orders in

the context of the analogous Children (Scotland) Act), overruled on other grounds by Abbott v.

Abbott, 130 S. Ct. 1983 (2010) (Abbott II).

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in London . . . [o]r . . . lift the stay” to allow the parties to “litigate [the divorce]

issue, because . . . in order for [Evelyn] to remain in the United States, she’s

either got to be divorced or she’s got to have sponsorship.” Evelyn’s attorney

represented at least two more times in the relatively brief hearing that Evelyn

hoped to maintain permanent residence in the United States.4

Derek’s attorney noted that he had been served with “full blown discovery”

shortly before the hearing and argued that Derek’s continued deployment

mandated that the stay remain in place. In response to the judge’s questioning,

the attorney admitted that he could not think of a solution to K.L.’s visa

problem. He reiterated, however, that Derek ultimately sought full custody.

The judge then proposed a potential solution: “what if [the parties] did

some kind of an order that said, the Court finds that this temporary order that

was agreed to by the parties signifies [Derek’s] consent for [K.L.] to temporarily

reside with [Evelyn] in London, until such time as the Court hears . . . further

orders in . . . October of 2009 or something[?]” The attorneys agreed “that might

do the trick.” As the judge repeatedly made clear, however, any consent for K.L.

to stay overseas was to temporarily avoid separating him from Evelyn and

should not “prejudice [Derek’s] right to come back here and conduct a custody

trial in the future.”5 Yet, the judge also warned the parties that if they could not

reach an agreement along the lines she had proposed, she would not rule out

4

Specifically, Evelyn’s attorney claimed that certain “documents ha[d] been removed

from the house that she need[ed] to even establish residency here,” and that Evelyn “had to

come down here[] because she wanted to try to maintain some green card status.”

5

The Texas judge mentioned, among other things, that “one thing that we need to make

sure that we do is that there is an iron clad enforceable agreement that everybody agrees to

come back to Texas in October or whenever it is [that Derek returns] to permit this custody

hearing to occur.” She also observed that Derek would not “want[] to sign off on something

where he is not going to then be able to get the child back here for a hearing.”

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lifting the stay and finalizing the divorce. The attorneys agreed to work on an

agreed order and to come back before another judge in a few days.6

The next day, Derek’s attorney sent Derek an email about the “emergency”

proceedings. Attached to the email was an affidavit for Derek’s signature giving

consent for K.L. to “reside” with Evelyn. In line with the discussion at the June

30th Hearing, Derek’s attorney suggested that any consent would be valid only

through Derek’s return to the United States, noting that they would “have to

have a side agreement between [Evelyn], her lawyer, and [Derek’s attorney] that

[K.L.’s] residence in England is not permanent and that he shall be returning to

the US eventually and that this case shall proceed here and only here in Texas.”

Derek signed the affidavit on July 6, 2009 (the “Consent Affidavit”). In it, Derek

affirmed that he was K.L.’s biological father, reported that he was “currently

deployed in Afghanistan,” and gave his consent for K.L. to “reside with his

mother . . . in England,” which he considered to be in K.L.’s “best interest.” The

same day, Derek emailed the affidavit to his attorney, writing only that he had

“read, signed[,] and attached the consent form as discussed.”

On July 2nd—just two days after the June 30th Hearing—Evelyn filed an

amended counterpetition in the Texas court. Consistent with her stated desire

to maintain permanent residency in the United States, the counterpetition again

stated that Evelyn had been domiciled in Texas for the preceding six months and

had been a resident of Bexar County, in which San Antonio is located, for the

preceding ninety days. Evelyn also sought “the exclusive use and possession” of

the marital residence and an injunction against Derek’s “entering or remaining

on the premises.” The counterpetition further asked the Texas court to appoint

Evelyn as sole managing conservator of K.L. and to enter certain “temporary”

child support and spousal maintenance provisions “until a final decree [was]

6

The Bexar County district courts generally employ a “rotating” docket for hearings

such that different judges may hear motions filed at various times in a single case.

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signed.” The counterpetition also disavowed that K.L. was “under the

continuing jurisdiction of any other court” or subject to any “court-ordered

conservatorships, court-ordered guardianships, or other court-ordered

relationships.”

The second hearing on Evelyn’s motion to lift the imposed stay was held

on July 6, 2009—the same day that Derek signed and emailed the Consent

Affidavit. Evelyn’s representations differed from those made at the June 30th

Hearing in at least two crucial aspects. This time, Evelyn’s counsel reported

that U.K. immigration officials had scheduled K.L.’s deportation for July 9th,

just three days away, and that Evelyn “could never come back over here and live

with her child” because her green card had expired.7

Derek’s attorney had not yet heard back from Derek about the Consent

Affidavit and announced “not ready.” He argued that any action without Derek’s

participation violated the Servicemembers Civil Relief Act, but attempted to

work out some sort of agreement. The judge allowed a brief recess to attempt

contact with Derek, but he was unreachable.

Based on the alleged emergency, the judge crafted a compromise. She

“order[ed] that [Derek] sign the consent form to do a status quo. In the event he

fail[ed] to do that, [the judge would] enter a divorce decree.” Although the decree

would “grant the divorce and grant custody,” it would only be a temporary

arrangement to prevent K.L.’s deportation. After entry of the decree, the judge

proposed that a motion for new trial be filed by Evelyn’s attorney to “prevent it

becoming a final order until [Derek was] able to get back from Afghanistan.”

7

Both of these claims were questionable. Nothing in the record supports K.L.’s

imminent deportation. His residency appeal would not be decided until September, and he

was not deported. Furthermore, the expiration of Evelyn’s permanent residence status in the

United States was not a new development. Her green card had expired on June 27, 2009,

three days before the June 30th Hearing. Evelyn’s counsel nonetheless contended that the

only way to prevent K.L.’s deportation was to grant a divorce or to have Derek sign the consent

form.

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The judge noted that she did not expect Derek’s attorney to agree to this

solution. In fact, when Derek’s attorney asked for sanctions and attorneys’ fees

under the Servicemembers Civil Relief Act, the judge promised to take up those

issues when “we really do have a final hearing.” The judge was explicit that this

arrangement would “not prejudice [Derek] for his custody suit” and that he was

“not in any way precluded from coming back and obtaining [custody]—and [that]

if he want[ed] to come back sooner, [she would] grant him a new trial.”8

Although Derek emailed the Consent Affidavit to his attorney on July 6th,

there apparently was some objection to Derek’s failure to have it notarized. The

Texas court therefore entered a “final” divorce decree on July 30, 2009, awarding

Evelyn sole managing conservatorship over K.L. but notably omitting the

Temporary Order’s “without regard to geographic location” modifier. Evelyn

forwarded the “final” divorce decree to U.K. immigration authorities.

Derek returned from Afghanistan just over two weeks later. He quickly

filed motions for a new trial and to lift the stay. The Texas court entered an

agreed order granting the motion for new trial on August 26, 2009.

A U.K. immigration appeals judge granted K.L. permanent residency in

the U.K. a week later, but not because Evelyn had been granted sole managing

conservatorship. Rather, the judge found that it was “quite clear from the

[Texas court] documents that both parents retain[ed] a significant responsibility

for the care of [K.L.]” and that Evelyn’s “evidence [was] far from showing that

[she] ha[d] sole responsibility for [him].” Indeed, the U.K. judge noted that it

was “not in dispute that suitable arrangements [had] been made for [K.L.’s] care

both as a result of the American divorce proceedings and as a result of [Evelyn’s]

financial condition.” The judge thus affirmed the rejection of K.L.’s application

8

We do not address whether the Texas court’s actions violated Derek’s rights under the

Servicemembers Civil Relief Act and what effect, if any, such violations would have on

considerations under the Convention.

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under the U.K. law provision relied upon in the original decision. The judge

instead granted the appeal based on a provision allowing permanent residency

in cases where “one parent is present and settled in the [U.K.] and there are

serious and compelling family or other considerations which make exclusion of

the child undesirable.”

Derek filed a “Motion for Additional Temporary Orders” on September 16,

2009, seeking extended visitation with K.L. in the U.K. The Texas court granted

the motion on September 30th, and ordered Evelyn to allow Derek three weeks

of “continuous and unrestricted (twenty four (24) hours per day) visitation with

K.L.” from October 20th to November 10th. Evelyn lodged no objections to this

order even though she originally opposed Derek’s visitation request.

With Derek’s return, the divorce proceedings turned to discovery. The

record suggests that Evelyn refused to comply with several discovery requests

and court orders. Derek filed motions to compel, for sanctions, and for a

continuance. After a December hearing, the Texas court granted Derek’s

requests, ordering Evelyn to respond to the discovery requests and to pay Derek

$1538 in sanctions. Trial was continued to March 1, 2010.

Evelyn failed to comply with the order, and Derek filed another motion to

compel and other motions. The Texas court granted these requests by, among

other things, giving Derek the exclusive right to occupy the marital residence,

ordering Evelyn to comply with certain discovery requests, and setting other

matters for a hearing. Evelyn was ordered to bring K.L. to the hearing.

On February 4th, the Texas court issued a multi-part order addressing

several pending matters. Among other things, the order provided that Derek

discontinue child and spousal support payments as a sanction for Evelyn’s

failure to bring K.L. to the hearing; that Evelyn comply with the outstanding

discovery requests and finish paying the previously ordered sanction; that

Evelyn was prohibited from raising certain issues in future proceedings; and

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that Evelyn pay an additional $1200 in sanctions for her failure to abide by

various orders. The order also imposed heavy sanctions for her conduct, but

allowed her to fully participate in the final divorce hearing if she complied with

all unresolved orders and discovery requests by March 1, 2010.9

Evelyn apparently complied with the sanction order, as well as an order

to bring K.L. back to the United States for the trial. The Texas court heard

arguments on March 1 and 2, 2010. Derek and Evelyn both testified, along with

an immigration specialist and an accountant.

The Texas court entered a “Final Decree of Divorce” on May 25, 2010 (the

“Final Decree”), finding that it had “jurisdiction of [the] case and of all the

parties.” It appointed Derek and Evelyn as joint managing conservators of K.L.,

with Derek as the possessory parent, and found that such an arrangement was

in K.L.’s “best interests.” Because the parties “reside[d] in different and remote

countries,” the Final Decree imposed a custom possession order rather than the

Texas Standard Possession Order used in the Temporary Order. In lieu of child

support, Evelyn was ordered to pay “all costs of travel associated with her

visitation” rights. Unlike the Temporary Order, the Final Decree contained a

mutual ne exeat provision that required each party to obtain “written

authorization” from the other to take K.L. “beyond the territorial limits of the

United States,” provided that during her periods of possession, Evelyn had the

right to take K.L. to England, Scotland, and Wales. Before removing K.L. from

the United States, however, the Final Decree obligated Evelyn to post a $25,000

bond in Derek’s favor. The Texas court gave Derek “the exclusive right to

designate the primary residence of [K.L.] without regard to geographic location,”

and found “that the United States of America is the country of habitual

residence of [K.L.]”

9

These sanctions would have resulted in the Texas court striking Evelyn’s pleadings

and entering a default judgment in Derek’s favor.

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Derek took possession of K.L. shortly after the trial ended. Evelyn

appealed and in January 2011 filed a “Motion to Modify and Motion for

Clarification” of the Final Decree. Citing financial difficulties resulting from a

pregnancy, Evelyn requested that the Texas court order Derek to pay for her

travel costs and to forego the $25,000 bond requirement. Evelyn argued that the

bond provision should be lifted because “she ha[d] always subjected herself to the

jurisdiction of the Bexar County Courts and ha[d] always returned the child

promptly after each visit.” The record does not show how that motion was

decided, but the Bexar County Court docket shows that the underlying divorce

proceeding has been “disposed.” Evelyn dismissed her appeal following the

district court’s order in this case. See Larbie v. Larbie, No. 04-10-00593-CV,

2011 WL 3849492 (Tex. App.—San Antonio Aug. 31, 2011, no pet.).

On February 25, 2011, Evelyn initiated this action by filing a Convention

petition, an accompanying affidavit, and a copy of a Convention application filed

with the Central Authority for England and Wales. The district court scheduled

an evidentiary hearing, at which both parties testified and presented evidence.

The parties submitted brief summation arguments in writing.

The district court granted Evelyn’s petition on August 10, 2011, and

ordered that Derek immediately return K.L. to Evelyn’s possession. The district

court reasoned that Evelyn met her burden under the Convention by showing,

by a preponderance of the evidence, that Derek “wrongfully retained” K.L. in the

United States. Specifically, the district court found (1) that the U.K. was K.L.’s

“habitual residence” under the Convention; (2) that Derek breached Evelyn’s

U.K. custody rights by retaining K.L. pursuant to the Final Decree; and (3) that

Evelyn was actually exercising her U.K. custody rights at the time of retention.

Evelyn departed for the U.K. with K.L. in tow. Derek timely appealed.

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II. This Appeal is Not Moot

Evelyn primarily hinges her defense to Derek’s appeal on a single issue.

In her view, this court should adopt the reasoning of the Eleventh Circuit’s

opinion in Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001), and hold that this

case is moot in light of K.L.’s return to the U.K. The petitioner in Bekier took his

son from the United States to Israel immediately after the district court resolved

the Convention issue in his favor. The Eleventh Circuit dismissed the

respondent’s appeal, reasoning that it could provide her “no actual affirmative

relief” because any “potential remedies . . . lie in the Israeli courts.” Id. at 1054.

Bekier, however, is inconsistent with the grain of circuit authority. Indeed,

the Third and Fourth Circuits—the only other circuit courts to rule on the

issue—have explicitly rejected Bekier’s approach. See Whiting v. Krassner, 391

F.3d 540, 544-46 & n.2 (3d Cir. 2004) (characterizing Bekier’s analysis as

“unconvincing”); Fawcett v. McRoberts, 326 F.3d 491, 494-97 (4th Cir. 2003),

(criticizing Bekier for ignoring a “wealth of authority” contrary to its holding and

for relying on cases with “markedly different facts” and sought-after remedies

that were “impossible” to grant), overruled on other grounds by Abbott v. Abbott,

130 S. Ct. 1983 (2010) (Abbott II). The Tenth Circuit refused to find that a

child’s location supports mootness in a pre-Bekier case, reasoning that to rule

otherwise would “give parents an undue incentive to flee from Hague Convention

proceedings.” Ohlander v. Larson, 114 F.3d 1531, 1538-39 (10th Cir. 1997). It

has not retreated from that approach. See Leser v. Berridge, 668 F.3d 1202, 1210

(10th Cir. 2011) (appeal moot on other grounds); Navani v. Shahani, 496 F.3d

1121, 1132 (10th Cir. 2007) (same). Although not discussing mootness, the

Eighth Circuit has ruled on a Convention appeal in a case where the subject

child left the United States after district court proceedings ended. See Rydder

v. Rydder, 49 F.3d 369 (8th Cir. 1995). The First Circuit has also observed that

“[w]hile it is true that the process for the adjudication of Hague Convention

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petitions should be as quick as possible, neither the Convention nor [ICARA]

restricts the appellate process.” Walsh v. Walsh, 221 F.3d 204, 214 (1st Cir.

2000) (internal citation omitted).

We hold that Derek’s appeal is not moot for basically the reasons

articulated by the Fawcett court. See 326 F.3d at 494-97. “‘[C]ompliance [with

a trial court’s order] does not [ordinarily] moot an appeal [of that order] if it

remains possible to undo the effects of compliance or if the order will have a

continuing impact on future action.’” Id. at 494 (citation omitted; first alteration

added). The Convention and U.K. law perhaps best demonstrate that granting

Derek relief can “‘affect the matter in issue.’” Id. (quoting Church of Scientology

v. United States, 506 U.S. 9, 12 (1992)). Both provide a “mechanism for

enforcing a judgment by this court or the district court on remand.” Id. at 496-

97 (noting also that the U.K. equivalent of ICARA allowed appellant to enforce

Convention judgment in U.K. courts). It also is possible that Evelyn could

voluntarily respond to an order requiring K.L.’s return or risk contempt

sanctions. Id. at 497. As Evelyn herself has observed, she has always submitted

to the jurisdiction of American courts and has never disobeyed an order

requiring her presence in the United States. In the event she does return, Derek

could domestically enforce the Final Decree as well as the denial of Evelyn’s

petition. Id. Our decision may also have implications as to Derek’s liability for

Evelyn’s fees and costs, which she has requested below, as well as any future

custody proceedings. See Whiting, 391 F.3d at 546.

Evelyn simply dismisses these possibilities as “absurd” and “convoluted”

and argues that Bekier provides a “very practical and common sense approach.”

Her only substantive point seems to be that Bekier’s supposedly analogous facts

mandate that this court reach the same result.10 She fails, however, to show

10

Bekier differs from this case in that the district court there returned the child to the

country in which a permanent custody order already existed, and the child had no pre-

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that Derek cannot obtain the forms of relief outlined in Fawcett and Whiting, as

is her “‘heavy burden’” as the party seeking refuge in mootness. Del-Ray Battery

Co. v. Douglas Battery Co., 635 F.3d 725, 729 (5th Cir. 2011) (citation omitted).

Accordingly, we follow the Third and Fourth Circuit’s lead and decline to adopt

Bekier’s approach.

III. Guiding Principles

We turn, then, to the merits of Evelyn’s case. Resolving disputes under

the Convention implicates multiple standards of review. Generally, this court

reviews factual findings for clear error and conclusions of law de novo. See, e.g.,

England v. England, 234 F.3d 268, 270 (5th Cir. 2000). A factual finding

survives review so “‘long as it is plausible in the light of the record as a whole.’”

Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 342 (5th Cir. 2004) (citation

omitted). A district court’s “habitual residence” determination, however,

presents a mixed question of law and fact subject to de novo review. See, e.g.,

Barzilay v. Barzilay, 600 F.3d 912, 916 (8th Cir. 2010).11

The Convention has two primary “objects”: (1) “to secure the prompt return

of children wrongfully removed to or retained in any Contracting State; and” (2)

“to ensure that rights of custody and of access under the law of one Contracting

State are effectively respected in the other Contracting States.” Convention

abduction connection to the United States.

11

We have considered Convention-related appeals in only three published cases:

England, Sealed Appellant, and Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008) (Abbott I),

which the Supreme Court overruled in Abbott II, 130 S. Ct. 1983. Two of these cases

addressed narrow issues that have no salience here. England addressed the Convention’s

“grave risk” and “age and maturity” exceptions, and Abbott I primarily concerned whether ne

exeat clauses vest a custody right in their intended beneficiaries.

We also confronted Convention-related matters in two unpublished cases. See Dietz

v. Dietz, 349 F. App’x 930 (5th Cir. 2009); Grube v. Grube, 285 F. App’x 145 (5th Cir. 2008).

Both short per curiam opinions, Dietz and Grube provide limited guidance. Dietz concerned

the Convention’s one-year limitations and “age and maturity” exceptions. The two-paragraph

Grube opinion disposed of the respondent’s three issues on appeal as frivolous and waived.

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art. 1. These goals stand in “potential conflict” because the “desire to protect

factual situations altered by the wrongful removal or retention of a child” may

promote ends that are in disharmony with “respect for the legal relationships

which may underlie such situations.” Elisa Pérez-Vera, Explanatory Report ¶ 9,

in 3 Hague Conference on Private Int’l Law, Acts and Documents of the

Fourteenth Session, Child Abduction 426, 428 (1982) (the “Explanatory

Report”).12 Thus, although the Convention “is not essentially concerned with the

merits of custody rights[,] . . . the characterization of the removal or retention of

a child as wrongful is made conditional upon the existence of a right of custody

which gives legal content to a situation which was modified by those very actions

which [the Convention] is intended to prevent.” Id. Accordingly, “a refusal to

restore a child to its own environment after a stay abroad to which the person

exercising the right of custody had consented must be put in the same category”

under the Convention as situations where a person entitled to possess a child

removes or retains it outside of its “habitual environment.” Id. at ¶ 11.

The Convention uses the phrases “wrongful removal or retention” and

“right of custody” as terms of art. A removal or retention is “wrongful” under the

Convention when (1) “it is in breach of rights of custody attributed to a person

. . . under the law of the State in which the child was habitually resident

immediately before the removal or retention; and” (2) “at the time of removal or

retention those rights were actually exercised, either jointly or alone, or would

have been so exercised but for the removal or retention.” Convention art. 3. The

Convention considers “rights of custody [to] include rights relating to the care

12

“Elisa Pérez-Vera was the official Hague Conference reporter, and her explanatory

report is ‘recognized by the Conference as the official history and commentary on the

Convention and is a source of background on the meaning of the provisions of the Convention

available to all States becoming parties to it.’” Mozes v. Mozes, 239 F.3d 1067, 1070 n.3 (9th

Cir. 2002) (citation omitted); see also Robert v. Tesson, 507 F.3d 981, 988 n.3 (6th Cir. 2007)

(noting that the Explanatory Report is considered “an authoritative source for interpreting the

Convention’s provisions” (citations omitted)).

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of the person of the child and, in particular, the right to determine the child’s

place of residence.” Convention art. 5(a). These rights differ from “rights of

access,” which “include the right to take a child for a limited period of time to a

place other than the child’s habitual residence.” Convention art. 5(b).

The Convention inquiry, then, consists of three elements, which the

petitioner must establish by a preponderance of the evidence. See 42 U.S.C.

§ 11603(e)(1). First, the petitioner must show that the respondent removed or

retained the child somewhere other than the child’s habitual residence. See, e.g.,

Whiting, 391 F.3d at 546-51; Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2002). If

so, the question becomes whether the removal or retention violated the

petitioner’s “rights of custody” under the habitual-residence nation’s laws. See,

e.g., Fawcett, 326 F.3d at 498-501; Sealed Appellant, 394 F.3d at 343. These

rights need not be enshrined in a formal custody order issued before the removal

or retention; the Convention also recognizes rights of custody that arise “ex lege.”

Explanatory Report at ¶ 68; see also Convention art. 3 (“The rights of custody

mentioned . . . above, may arise in particular by operation of law or by reason of

a judicial or administrative decision, or by reason of an agreement having legal

effect under the law of that State.”). Assuming that the petitioner has rights of

custody, she then need only make the final, and “relatively easy,” Explanatory

Report at ¶ 73, showing that “at the time of removal or retention those rights

were actually exercised, either jointly or alone, or would have been so exercised

but for the removal or retention.” Convention art. 3(b). Generally, courts

“‘liberally find’” that rights of custody have been exercised unless evidence

demonstrates “‘acts that constitute clear and unequivocal abandonment of the

child.’” Sealed Appellant, 394 F.3d at 344-45 (citation omitted).

Convention respondents may assert “several narrow affirmative defenses

to wrongful removal.” Id. at 343. Pertinent here, a court has no obligation to

order a child’s return if the respondent shows by a preponderance of the evidence

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that the petitioner (1) “was not actually exercising the custody rights at the time

of removal or retention,” or (2) “had consented to or subsequently acquiesced in

the removal or retention.” Convention arts. 12 & 13(a)13; 42 U.S.C.

§ 11603(e)(2)(B).

IV. Evelyn “Consented” and “Acquiesced” Under the Convention

We conclude that Derek prevails. Indeed, the record suggests that the

petition process here effected what otherwise would be considered a wrongful

removal under the Convention. Rather than “prevent[ing] the consolidation in

law of [an] initially unlawful factual situation[]” by placing the “questions of

custody rights . . . before the competent tribunals,” Explanatory Report at ¶ 40,

the district court’s order has the effect of undoing the custody arrangement

ordered by the Texas court of competent jurisdiction—before which both parties

participated and sought relief—in favor of relitigating custody before tribunals

that, until this proceeding, Evelyn never argued had authority over the matter.

Derek thus contends that Evelyn consented to the Texas court’s resolution

of the custody issue and “waived” recourse to the Convention by failing to raise

it in the Texas court. The district court, however, held that Evelyn’s “[m]erely

participating in the Texas divorce and custody proceedings [was] not consent to

[K.L.’s] removal or retention in Texas.” According to the district court, Evelyn

attended the final divorce proceedings “under compulsion of the Texas court’s

order,” belying the voluntariness of her participation. Similarly, the district

13

Article 13(a) of the Convention in relevant part provides:

Notwithstanding the provisions of the preceding Article, the judicial or

administrative authority of the requested State is not bound to order the return

of the child if the person, institution or other body which opposes its return

establishes that –

a) the person, institution or other body having the care of the person of the child

was not actually exercising the custody rights at the time of removal or

retention, or had consented to or subsequently acquiesced in the removal or

retention . . . .

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court believed that “[t]here was nothing consensual or voluntary in her

surrender of her son.”

Under Article 13(a), “[t]he consent defense involves the petitioner’s

conduct prior to the contested removal or retention, while acquiescence

addresses whether the petitioner subsequently agreed to or accepted the removal

or retention.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005) (citation

omitted). “[T]he law construing the consent defense under the Convention is less

developed,” but the few reported cases provide some general principles. Id. The

focus of inquiry is “the petitioner’s subjective intent,” id., as “evinced by the

petitioner’s statements or conduct, which can be rather informal.”14 Nicolson v.

Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010) (citations omitted). “In examining

a consent defense, it is important to consider what the petitioner actually

contemplated and agreed to in allowing the child to travel outside its home

country. The nature and scope of the petitioner’s consent, and any conditions or

limitations, should be taken into account.” Baxter, 423 F.3d at 371.

Crucially, consent for a particular tribunal to make a final custody

determination—which may be established by entry of a temporary custody

order—suffices to establish an affirmative defense under the Convention. See

Nicolson, 605 F.3d at 106-07 (“The consent order in this case provided only for

temporary custody but, if it were read as agreeing to let the Maine courts

determine final custody . . . , we would think that this was an acquiescence or,

alternatively, a waiver of Hague Convention rights.” (citation omitted)); cf.

14

Because the petitioner’s “subjective intent” is the touchstone for both “consent” and

“acquiescence” under Article 13(a), the two concepts are essentially coterminous for

Convention purposes. See Baxter, 423 F.3d at 371-72. The terms appear to be distinguished

only by their temporal focus and “degree of formality.” Id. Consent applies to pre-

removal/retention activity and may be shown by less “formal” types of evidence, id., whereas

acquiescence applies to post-removal/retention activity and generally requires more “formal”

evidence such as a custody order or other “‘convincing written renunciation of rights.’”

Nicolson, 605 F.3d at 107 (citation omitted).

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Navani, 496 F.3d at 1132 (“As the English family court retained jurisdiction at

all times over [the child’s] custody, and we have never had jurisdiction over the

merits of the English family court’s custodial decisions, we are powerless to alter

the current custodial regime forbidding the very relief that [the appellant-

respondent] seeks: return of the child to the United States.”).

Applying these principles here leaves no doubt that Evelyn gave “‘clear

and unequivocal’” consent for the Texas court to make a final custody

determination. Nicolson, 605 F.3d at 108 (alterations and citation omitted).

Evelyn and Derek agreed to the Temporary Order because Derek’s military

service made a final resolution and trial impractical at the time. Not only did

Evelyn answer the divorce lawsuit, but also she filed a counterpetition seeking

affirmative relief.15 Evelyn exercised custody—as a temporary joint managing

conservator—under the Temporary Order until July 30, 2009, when the “final”

divorce decree was entered at the suggestion of a Texas judge and as a

compromise to forestall what was claimed to be K.L.’s imminent deportation.

That decree was vacated weeks later by agreement of the parties. During

Evelyn’s time in the U.K., she recognized and obeyed orders entered by the

Texas court on multiple occasions. Although Evelyn was sanctioned for

discovery abuses and for failing to bring K.L. to the United States on one

occasion, she ultimately paid the imposed sanctions and complied with all Texas

court orders. She participated in the divorce trial, appealed the Final Decree,

and later moved that the Texas court modify its terms based on her consistent

15

Evelyn arguably waived any argument that the Texas court was an inappropriate

forum to adjudicate the child custody issue by filing a counterpetition. In doing so, she did

more than simply answer in order to avoid default; she affirmatively invoked the protection

of the Texas court and its authority to provide her relief. Cf. Nicholas v. KBR, Inc., 565 F.3d

904, 908-10 (5th Cir. 2009) (holding that a party waived arbitration rights by “substantially

invoking the judicial process”); City of Dallas v. Albert, 354 S.W.3d 368, 374-75 (Tex. 2011)

(holding that municipality lost immunity against certain claims by filing counterclaim).

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obedience to the court’s orders and submission to its jurisdiction. By her own

admission, at no time did Evelyn initiate custody proceedings in the U.K.

Quite simply, the only thing in the record suggesting that Evelyn

disagreed with the Texas court’s authority is the filing of the instant action nine

months after Final Decree was entered and almost a year after the divorce trial

ended. Cf. Baxter, 423 F.3d at 367 (“The Convention is not designed to settle

international custody disputes, but rather to ensure that cases are heard in the

proper court.” (citing Convention art. 19)). Although Evelyn—like most

parents—was “‘devastated’” to lose primary custody of her child, that fact cannot

serve as evidence of nonconsent without undermining the Convention’s ability

“to deter parents from engaging in international forum shopping in custody

cases.” Id. (citation omitted). Accordingly, we hold that Derek proved as a

matter of law that Evelyn agreed to the Texas court’s final resolution of the

custody issue.16

V. K.L. “Habitually Resided” in the United States

Our conclusion that consent was given defeats Evelyn’s claim of “wrongful

retention.” Even if this analysis is incorrect, however, we conclude that Evelyn

failed to satisfy her burden on the elements necessary to establish wrongful

retention. Because wrongful-retention analysis depends on first determining

K.L.’s country of “habitual residence,” we begin there. See, e.g., Mozes, 239 F.3d

at 1072 (“‘Habitual residence’ is the central—often outcome

determinative—concept” under the Convention.).

“[A]lthough the term ‘habitual residence’ appears throughout the various

Hague Conventions, none of them defines it.” Id. at 1071 (footnote omitted).

“The inquiry into a child’s habitual residence is not formulaic; rather it is a fact-

16

Although we may not reflexively use the presence of the Final Decree as the “sole,”

dispositive fact, nothing precludes us from “tak[ing] account of the reasons for that [order] in

applying [the] Convention.” Convention art. 17.

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intensive determination that necessarily varies with the circumstances of each

case.” Whiting, 391 F.3d at 546 (citation omitted). At core, however, the inquiry

balances the interests of the child, who is the ultimate focus of the Convention,

and the intentions of its parents, who usually effect the removal or retention

giving rise to a Convention petition. See, e.g., Mozes, 239 F.3d at 1072-73;

Explanatory Report ¶¶ 57-58.

Courts use varying approaches to determine a child’s habitual residence,

each placing different emphasis on the weight given to the parents’ intentions.

At one end of the spectrum are those jurisdictions holding that a child’s habitual

residence cannot be changed without the clear agreement or acquiescence of the

nonpossessory parent. See Mozes, 239 F.3d at 1080-81 (discussing foreign

authorities, including Re S and another (minors), [1994] 1 All E.R. 237, 249

(Eng. Fam. Div.)). The Sixth Circuit takes the opposite approach, placing

paramount importance on the “child’s experience,” as established by the child’s

“acclimatization” and “degree of settled purpose,” to the exclusion of the parents’

“subjective intent.” See Robert v. Tesson, 507 F.3d 981, 989-95 (6th Cir. 2007).

We join the majority of circuits that “have adopted an approach that

begins with the parents’ shared intent or settled purpose regarding their child’s

residence.” Nicolson, 605 F.3d at 104 & n.2 (collecting cases). This approach

does not ignore the child’s experience, but rather gives greater weight to the

parents’ subjective intentions relative to the child’s age. For example, parents’

intentions should be dispositive where, as here, the child is so young that “he or

she cannot possibly decide the issue of residency.” Whiting, 391 F.3d at 548-49

(citing English case that looked to parents’ intentions because the child was “two

and one-half years old at the time of her abduction”).

In such cases, the threshold test is whether both parents intended for the

child to “abandon the [habitual residence] left behind.” Mozes, 239 F.3d at 1075;

see also Whiting, 391 F.3d at 549-50. Absent shared intent, “prior habitual

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residence should be deemed supplanted only where ‘the objective facts point

unequivocally’ to this conclusion.” Mozes, 239 F.3d at 1082 (citation omitted).

Notably, when “the child’s initial move from an established habitual residence

was clearly intended to be for a specific, limited duration[,] . . . most courts will

find no change in habitual residence.” Whiting, 391 F.3d at 549 (holding that a

change in habitual residence had occurred because the parents had a written

agreement that the child should reside in Canada, not New York, at the time the

petition was filed); see also Mozes, 239 F.3d at 1077 & n.27 (collecting cases).

Mere retention in another country and “private reservations” or intentions that

are made “manifest and definitive” only after the child has left its country of

origin are generally insufficient to establish intent to change a child’s habitual

residence. Nicolson, 605 F.3d at 104.

The district court concluded that the U.K. was K.L.’s habitual residence

in March 2010 based on K.L.’s acclimation to the U.K. and Derek’s intent that

K.L. reside there with Evelyn during Derek’s deployment. The district court

relied primarily on Derek’s agreeing to the Temporary Order provision giving

Evelyn the right to determine K.L.’s residence without geographic restrictions

and on his executing the Consent Affidavit allowing K.L. to reside in the U.K.

The district court found that Evelyn and Derek’s “last shared agreement . . . was

that [K.L.] reside in the U.K. with his mother.” We disagree.

As an initial matter, the district court’s order did not consider several

components of the habitual-residence inquiry. The order never analyzes the

threshold question of whether Derek and Evelyn shared an intention that K.L.

abandon the United States, which was indisputably his habitual residence before

his arrival in the U.K. See, e.g., Whiting, 391 F.3d at 548 (citing Mozes, 239 F.3d

at 1075-76). Nor did the order address the fact that Evelyn never claimed before

filing her petition that she intended for K.L. to permanently remain in the U.K.

Derek, for his part, never intended for K.L. to “abandon” the United States for

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any amount of time and, at most, agreed for K.L. to stay in the U.K. through

resolution of the divorce proceedings. Thus, although Derek agreed that K.L.

could remain in the U.K. for some time, no objective facts “unequivocally” show

that the U.K. should “supplant[]” the United States as K.L.’s habitual residence.

Mozes, 239 F.3d at 1082.

Regardless of the ties that K.L. unavoidably developed in the U.K.,

moreover, the above authorities demonstrate that his young age requires Derek

and Evelyn’s shared intentions be the primary focus in the habitual residence

inquiry here. See, e.g., Whiting, 391 F.3d at 549-50; Mozes, 239 F.3d at 1079

(“The question whether a child is in some sense ‘settled’ in its new environment

is so vague as to allow findings of habitual residence based on virtually any

indication that the child has generally adjusted to life there.”). We therefore opt

against following the Sixth Circuit’s exclusively child-centered approach. To

focus on a young child’s experience encourages future “would-be abductor[s] to

seek unilateral custody over a child in another country” or to delay returning to

the child’s original habitual residence as long as possible. Mozes, 239 F.3d at

1079 (“The greater the ease with which habitual residence may be shifted

without the consent of both parents, the greater the incentive to try.”).

Under the de novo review applicable to habitual residence determinations,

see Barzilay, 600 F.3d at 916, we determine that the record establishes that

K.L.’s presence in the U.K. was to last for a limited duration; that Derek never

agreed to any other arrangement; and that no special circumstances justify

departing from courts’ general practice of finding no change in habitual

residence in such cases. See Whiting, 391 F.3d at 549-50. We therefore conclude

that Evelyn’s sojourn did not alter K.L.’s habitual residence. As a result, we

need not analyze any other element of the “wrongful-retention” analysis.

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Conclusion

We hold that this appeal is not moot; conclude that Derek satisfied his

affirmative-defense burden under the Convention to show that Evelyn consented

and acquiesced to the Texas court’s authority to make a final custody

adjudication; and find that K.L.’s habitual residence at the time of the alleged

retention remained the United States. Accordingly, we VACATE the district

court’s order and RENDER judgment in Derek’s favor. In light of the exigencies

of this situation, we order that the mandate shall issue if no petition for panel

rehearing or rehearing en banc is filed within seven days of the issuance of this

opinion. See Fed. R. App. P. 35 & 40.

25