Case Update (2 March 2026): Powell v. Powell; relocation preconditioned on unpaid support becomes wrongful retention

The parties are parents to two children, both born in Germany and dual U.S.-German nationals. Under the terms of a joint custody arrangement in Germany, the children primarily resided with their Petitioner Mother in Germany. The Respondent Father moved back to the U.S. on November 30, 2021 (having first been in Germany with the U.S. military, and then stationed in Georgia, Africa, and then back in Germany as a civilian). At the time of this litigation, he resided in Maine with his new wife. Just prior to the German courts issuing their final divorce judgment in May 2024, the Father contacted the Mother about applying for an F-1 visa, attending community college near his residence, and bringing the children. An F-1 visa requires evidence of continuing ties to Germany, offers minimal work opportunities, and has a requirement to be a full-time student. The Father testified that he was going to provide a weekly allowance of $500, all school fees, and transportation for the Mother and children while in Maine. “The parties agreed that if the Petitioner’s visa was not granted, the children would return to Germany.” By summer 2024, the Mother still had no visa to enter the U.S., but agreed that the children could travel to Maine to start school on time. The Mother signed a travel authorization for the children to travel to Maine, expiring December 31, 2024. The children traveled to Maine on August 6, 2024. Petitioner’s visa was granted on October 8, 2024, and she was authorized to travel to the U.S. no earlier than December 14, 2024, which is when she flew to Maine. By all reports, the children, while having difficulty adjusting at first, particularly in that their Mother was not with them in Maine, ultimately did quite well.

After the Mother arrived in Maine, the Father advised her that her allowance would be less frequent, and the parents fought over the children’s wellbeing. Nonetheless, the Mother’s classes at the local community college began on January 13, 2025. On February 7, 2025, the Father and his new wife advised Mother that she had until March to find a way to pay for half of her housing, or move to student/shared housing, which would preclude her from having overnights with the children. “The Petitioner [Mother] felt like she had been tricked.” On February 8, 2025, the Petitioner texted the Respondent that she wanted to return to Germany with the children immediately, and she requested the passports be returned. The Respondent Father declined to do so. By this time, the children had been residing in Germany since August 6, 2024 - six months. The Father’s argument, at trial, was that there was no wrongful retention at all - that the parties had agreed the children would reside in the U.S. until the Mother completed her education, which was not done. Or, in other words, there is no retention, at earliest, until the day the Mother completes her education. The Mother argued, however, that this retention became wrongful under any definition among the circuits - she unequivocally demonstrated she no longer consented to the children living with the Respondent and demanded their return (3rd Circuit) or she unequivocally withdrew her consent to them living with Respondent and he clearly manifested an intent to not return them (D. Mass.). Perhaps more persuasive to the court was that even though the Mother had not completed her education, the other terms of the parents’ arrangement - that the Father pay for her housing and other expenses - was not fulfilled.

In analyzing the location of the children’s habitual residence, the court concluded that from August 6, 2024 until October 8, 2024 (when the Mother’s visa was approved) was, at best, transitory, and the children were not really settled. The children had connections in the U.S., but not as many or as significant as those in Germany. Furthermore, the Father had expressed interest in moving the children from Maine to Maryland, which undercut their settlement. Further, the Mother could not permanently relocate to the U.S. on the visa she was granted, and the court did not believe she would relocate the children permanently somewhere she could not also live permanently. Her intention on moving to Maine was premised on her education and receipt of the agreed financial support.

The Respondent Father raised no affirmative defenses to the children’s return. The court orders the children returned to Germany.