Military Dad Gets Child Back From Mom in England
In reversal, a Federal Circuit Court of Appeals holds that Mother’s consent to Texas Trial Court custody order giving Father primary physical custody of Child means that Mother also consented to Father having custody of Child in Texas for Hague Convention purposes. Furthermore, Child’s short time in United Kingdom with Mother while Father was deployed with the military did not change Child’s habitual residence in United States. In the case of Larbie v. Larbie, Father, a naturalized U.S. citizen and an Air Force officer, married Ghanaian national (Mother), a permanent resident of United Kingdom, in San Antonio, Texas. At that time, Father was stationed in San Antonio; their son (Child) was born there in August 2006.
Although Father obtained green card for Mother, Mother never worked outside the home. The family stayed in San Antonio while Father was deployed in Iraq. The marriage was not successful and in March of 2008, Father filed for divorce in Texas Trial Court. Not long after, Father was ordered to report for training to prepare for deployment to Afghanistan. In light of Father’s imminent deployment, he and Mother agreed to temporary order giving them joint custody of Child, giving Mother authority to determine Child’s geographical location, but requiring Mother to give Father dates, places, and phone numbers where Child would be located if Mother and Child went outside of U.S. That order also authorized weekly visits between Child and Child’s step-sibling, permitted Mother to live in family home while Father was gone, and provided for certain expense payments.
At the same time, Father moved to stay the divorce action under Servicemembers Civil Relief Act until he returned from deployment, and Texas Trial Court granted his motion. A few weeks later, Mother took Child and minimal possessions and traveled to London. She exchanged emails with Father regarding her trip and her intent to return to San Antonio.
After Father deployed to Afghanistan, he was granted leave that coincided with Spring Break visitation awarded him in the temporary divorce order. Mother balked at letting Child visit Father, forcing Father to initiate legal action to enforce the order. After visiting Child in U.K., Father returned to Afghanistan. Meanwhile, Mother tried by various methods to obtain orders permitting Child to remain in U.K. permanently, but was unsuccessful.
Fearing that Child would be deported after his visitor’s visa expired, Mother sought to speed Texas divorce along. Texas Trial Court sought to fashion an order that would preserve Mother’s and Child’s immigration status while honoring Servicemembers Civil Relief Act, proposing that Mother and Father sign emergency affidavit allowing Mother to have temporary custody of Child in U.K. until further order of Trial Court, without prejudice to Father’s right to seek custody later. Father agreed, and emailed the signed affidavit to his attorney, which was evidently delayed in transmission. Two days later, Mother filed an amended divorce counter-petition, seeking to lift Servicemembers Civil Relief Act stay on the basis of the existing immigration problems. In response, Texas Trial Court ordered Father to sign a consent order or it would enter a divorce judgment.
When Father’s signed affidavit finally reached his attorney, it had not been notarized. Therefore, Texas Trial Court entered the divorce judgment, but specified that Father was free to seek new trial when he returned. The divorce judgment awarded primary physical custody of Child to Mother. When Mother sent the judgment to U.K. immigration judge, the judge refused to grant permanent residency to Child, reasoning that documentary evidence did not support Mother’s claim of sole responsibility for Child.
When Father returned, he moved successfully for a new trial and to lift Servicemembers Civil Relief Act stay. Father also sought and was granted a three weeks continuous visitation with Child in U.K. This time, Mother did not object. After further proceedings, Texas Trial Court imposed sanctions on Mother for failure to comply with the custody orders, which Mother subsequently paid. Mother appeared at Texas Trial Court divorce hearing, bringing Child with her. After a two day trial, Texas Trial Court issued a final divorce judgment, giving Mother and Father joint custody of Child, primary physical custody to Father, and visitation for Mother. Father took custody of Child pursuant to that judgment.
On February 25, 2011, Mother filed a Hague Convention petition, seeking Child’s return to his habitual residence in U.K. After a hearing, U.S. District Court, found that Child’s habitual residence was U.K. because Child had become acclimated to U.K., that Father had breached Mother’s custody rights by retaining Child in Texas pursuant to the divorce judgment, and that Mother was actually exercising her custody rights when the retention occurred. District Court ordered Child returned, and Mother took Child to U.K.
Father appealed, and now a Federal Circuit Court of Appeals vacates that order and rules in favor of Father. The Circuit Court has found that (1) Father’s appeal is not moot; (2) Trial Court need not order child’s return on the Hague petition if the petitioning parent consented to child’s removal or retention; (3) Mother clearly consented to Texas Trial Court’s orders regarding Child’s custody, therefore Mother consented to Child’s retention for Hague Convention purposes; (4) Child’s brief residence with Mother in U.K. did not change Child’s habitual residence from Texas to U.K.; and (5) Father met his burden of showing that Mother’s consent was complete defense to her Hague Convention action. Circuit Court vacates District Court’s order and renders judgment for Father.