Case Update (17 Jan 2025): Moreau v. White; engaging in child custody litigation in Texas was not consent to the children remaining in Texas
The parties are the divorcing parents of two children who are dual U.S.-Canadian nationals. The children were born in 2015 and 2017 in Texas, and a Texas court, on December 16, 2019, temporarily gave Petitioner Mother permission to relocate the children to British Columbia, Canada. She represented that the move was temporary, but a few years into living in Canada, she admitted her desire to remain in Canada became permanent. That same day of December 16th, the Texas court “orally granted Petitioner the right to establish the children’s primary residence without geographic restriction, the exclusive right to apply for and possess the children’s passports, and the right to travel internationally wit the children without Respondent’s consent.” Petitioner Mother and the children moved to Canada the following day. For almost 2 years, the Respondent did not contact Petitioner or the children. In 2021, Respondent began contacting Petitioner. It is unclear what happened in the Texas case that was opened in 2019 while the Mother and children were living in Canada.
Shortly after the Respondent Father re-emerged, the parties began litigating again in Texas. However, at some point prior to this, the Petitioner had filed a custody suit in the British Columbia courts. The two courts started issuing orders related to the children, which at times conflicted. The parties both sought to terminate the other’s litigation in their courts (or to transfer the litigation to their preferred court). Ultimately, with the Texas court refusing to decline its continuing, exclusive jurisdiction, and entering orders, the BC courts needed to decide whether to enforce those Texas orders. While it was setting in proceedings to address the recognition and enforcement of the Texas orders, the BC court permitted the children to go to Texas for August 2024 on the agreement of the Respondent that he would return the children in late August to resolve whether BC would recognize and enforce the Texas orders. However, on August 5, 2024, he decided to enroll the children in school in Texas, and keep them there. vBoth the Texas and BC courts then issued orders declaring that their country was the children’s habitual residence. On September 24, 2024, Petitioner filed the instant request to return the children to Canada.
Finding that Petitioner established her prima facie case, Respondent then argued that Petitioner consented to the children’s retention by “voluntarily submitting to the child custody jurisdiction in Texas by originally initiating child custody proceedings in the Texas Court, continuing to seek child custody relief from the Texas Court through the present, and consenting to multiple temporary custody orders in Texas.” He relied on a sentence in the Fifth Circuit case of Larbie saying “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.” The Court felt, however, that this one sentence cannot be taken out of the context of the facts in this case. Here, the Texas courts had not entered a final custody order, Petitioner had objected to the Texas court’s further jurisdiction over custody, she sought to have the Canadian courts resolve custody going forward, and she ultimately revoked her consent to jurisdiction in Texas. The court proposed a scenario, not unlike the one here, but a bit more extreme, where the parties were litigating custody in Texas, the Parent and Children relocated to Canada and became habitually resident there, and lived there for 10 years before the Texas court was asked to do something further. The court stated that this would be an “absurd result.”
As a quick note, the reader should look at the Uniform Law Commission’s 2024 guidance on the interplay between the UCCJEA (custody jurisdiction statute) and the Hague Abduction Convention found here. Custody jurisdiction is a distinct legal analysis than whether a child should be returned under the Abduction Convention. Assuming the Texas court did properly have custody jurisdiction pursuant to the UCCJEA is a separate analysis, unrelated to whether a child must be returned under the Abduction Convention. The court also dismissed an estoppel argument along the same lines.
The court rejected the argument that the oldest child was mature or objected to returning to Canada. Finally, the court noted that the mature child exception was only asserted as to the older child, and if the court concluded it would apply, it would mean splitting up the children, which would be “devastating to them given how close they are with one another.”
