Case Update (20 Dec 2024): Roberts v. Roberts; U.S. military family sent to England for 2-3 years did not shift habitual residence from USA
This is a Hague Abduction Convention case before the U.S. District Court for the EDVA. The parties are parents to one daughter, born in January 2019 in Dayton, Ohio. The parties, at the time, were both active duty U.S. military. In 2020, both parties were assigned to a base in Hawaii, and moved to Honolulu. In 2022, the Respondent Mother retired from the military. The parties resided in Hawaii for approximately 3 years with their child. The child was in several extracurriculars, daycare, and attended church with her parents. The family “also enjoyed a strong support system as they would visit family located in the continental U.S. and the family would visit them as well.” During this time, the parents were experiencing difficulties in their marriage.
In October 2022, the family were formally notified that the Petitioner Father was selected for the tour in England. When they had anticipated this move, Respondent expressed reservations, particularly due to their marital difficulties. Their marital difficulties worsened leading up to the move. From mid-2022 to mid-2023, Respondent expressed reservations, but actively participated in preparations for the move. In May 2023, the Petitioner received his permanent change of station orders, to begin July 2023. The papers said his tour was for 36-months. Despite the papers saying that, Respondent “testified that she expected the tour would last no longer than two years.” They officially moved on July 3, 2023. In England, both parties were authorized to drive, obtained international motor insurance to expire on June 10, 2025, registered with NHS, and signed a one-year lease, that would continue month-to-month. Both parties maintained a tax domicile in a U.S. state, and both remained registered to vote in the USA. They maintain U.S. bank accounts, retirement accounts, and credit cards. Neither opened a UK bank account.Respondent continued to work on her U.S.-based company and nonprofit. The family is only authorized to live in the UK so long as Petitioner was employed by the U.S. military and on orders for the UK. The child was enrolled in school, to start in September 2023, with a note, on the enrollment forms, that she would be withdrawn in July 2025. She participated in school activities, and the family attended church. They lived in a more isolated area where activities were less accessible than Hawaii. The child had formed friendships and had playdates.
In August 2023, the Petitioner booked a one-way plane ticket for herself and the child to Buffalo, NY. She expressed unhappiness in her marriage and concerns about returning to England, but she did return. Their marital strife culminated in a verbal altercation on February 10, 2024. English police and social services became involved and the US military conducted an investigation. The couple separated and, on March 12, 2024, Petitioner filed for divorce in England, and Respondent filed and sought to exclude Petitioner from the home and prevent contact. After an April 2024 hearing, the court indicated that Respondent should file, within 2 weeks, any application seeking permission to relocate the child to the USA, among other things. The Respondent represented she would make an application to the English court to determine whether she could return to the USA with the child. She never filed an application. On May 2, 2024, she departed England with the child, without advising Petitioner. On May 15, 2024, he filed a petition in the District Court for the child’s return.
The only real issue here was whether the UK became the child’s habitual residence prior to the removal on May 2nd. The District Court concluded it had not. Citing to Monasky, the court stated the standard for its examination of the child’s habitual residence and then stated, “[s]ome courts have noted that military families do not present the typical fact pattern and concluded that conditional stays may not demonstrate a shared intention to shift a child’s habitual residence away from the country where they previously resided.” The court noted that some of the factual findings suggest that the child’s habitual residence shifted to England, but, “this case involves a military family with strong ties in the United States and no indication that the family intended to stay in England beyond [Petitioner’s] tour albeit two to three years.” This all-U.S. citizen family “knew that their time in England was for a specific and delimited period - [Petitioner’s] command tour.” The parties disputed the duration of their stay in England - 2 or 3 years - but, at no time did either indicate it was a permanent or longer term relocation. Further, the family had many discussions about their next location, after England, pointing towards destinations within the USA.
The court also made another interesting conclusion: “ten months does not appear to be enough time for even an older child to acclimate to a new country, especially when they have spent most of their life in another country.” “Depending on the circumstances, courts have tended to find children not habitually resident in other countries where their stays were shorter than a year.” The court concluded that even if the child were en route to acclimating, she had not finished that process.
