Smith v. Smith

United States Court of Appeals
for the Fifth Circuit

No. 19-11310

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.
United States Court of Appeals
Fifth Circuit
FILED
September 25, 2020

Lyle W. Cayce
Clerk
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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
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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.
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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
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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)).
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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 B
AYLOR
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.
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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
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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.
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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.
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