Case Update (15 May 2026): Moreau v. White; improper for U.S. Hague Abduction proceeding to require foreign court to proceed with custody litigation
The parties in this case have been litigating issues related to their children’s residence and care for about six years in both Canada and Texas. This particular opinion is that of the U.S. Court of Appeals for the Fifth Circuit, who was asked to revisit the opinion of the U.S. District Court for the Eastern District of Texas when it ordered the return of two children from Texas to Ontario. Parallel to this Hague Abduction Convention case in the federal courts in Texas were two simultaneous custody cases - one in Canada and one in Texas. These courts resulted in numerous conflicting orders. For example, “by August 2024, the Texas court had given [the Father in Texas] the exclusive ability to designate the children’s residence, but the Canadian court had recognized only [the Mother’s in Canada] ability to do so.” Another example, “Texas and Canadian courts both ordered that the children were habitually resident in their respective jurisdictions.” All of this conflicting custody litigation resulted in the Mother filing a Hague Abduction Convention petition on September 24, 2024, resulting in a January 17, 2025 order returning the children to Canada. After the return order, the Texas courts continued to adjudicate child custody matters. This resulted in the federal court enjoining the Father and two Texas state court judges from preceding with the custody litigation, and ordering “that the Canadian Court shall decide[] the child custody dispute.” This appeal followed.
On appeal, the Father challenged the habitual residence determination, arguing that a parent cannot unilaterally change a child’s habitual residence (here, from the U.S. to Canada) when the Texas court had only authorized the child’s temporary move out of the country. The Mother had testified that the move was temporary. The Fifth Circuit disagreed, however, stating “habitual residence is not governed by categorial rules”. Yes - a child’s residence is deemed habitual only when it is “more than transitory.” It should be “sufficiently enduring” and reflect “some degree of integration by the child in a social and family environment.” But, the Court of Appeals noted that “[Mother] lived in Canada with the children for two years without any contact from [Father] and while the Texas custody dispute was dormant.” The situation, apparently, evolved, while the Mother and children were in Canada, and there was indicia of them being settled there. Above all else, the district court judge’s finding of habitual residence is reviewed for clear error. This is a high standard. Therefore, it was affirmed on appeal. It likewise concluded that the Ontario court order gave the Mother a right of custody. The Court of Appeals was also not persuaded that the Mother consented to the Father’s actions because she engaged in litigation in Texas. She had repeatedly attempted to transfer the dispute to the Canadian courts. “To conclude that [Mother] must contest jurisdiction ad nauseum - including to the point of ignoring the proceedings in Texas and risking contempt - after the Texas courts repeatedly rejected her jurisdictional arguments to avoid the consent defense is impractical and redundant.” The Court of Appeals also declined to accept the Father’s judicial estoppel argument. “Judicial estoppel is unavailable as an extra-treaty defense to a mandatory return under the Convention in this case.” There was a dissenting judge who felt that equitable doctrines can still apply beyond the defenses elaborated in the treaty itself.
Finally, the Court of Appeals vacated the preliminary injunction that ordered the Canadian courts - sovereign courts - to decide custody of the children. This is an afront to comity. Furthermore, the corollary order - to enjoin the Texas courts from proceeding with the custody litigation - should be vacated. The parties identified no cases that would permit this type of order after a return order is fashioned. [As a quick note, please see the Uniform Law Commission’s commentary that distinguishes custody jurisdiction and Hague Abduction Convention return proceedings. They are distinct, and a return order is not a determination that any court has jurisdiction to resolve custody of a child. In fact, it is not uncommon that a court in the U.S. may simultaneously have jurisdiction to a court in another country under each country’s internal law.]
The district court’s order of return is affirmed.
