Case Update (23 Feb 2023): Neiuwenhoven v. Pisani; pre-marital discussions to eventually relocate to Florida in the future does not equate to consent to Respondent's retention of child

The parties are parents to one child, born in 2018 in Adelaide, Australia. At the conclusion of a 3-week trip to Florida in July 2022, the Respondent Mother retained the child in Florida. At a trial on the Petitioner Father's request to return the child to Australia under the Hague Abduction Convention, the Respondent "offered various forms of vague testimony that the parties had agreed when they married to eventually settle in Florida" and therefore the child's habitual residence was Florida. This testimony was found to lack credibility, and be irrelevant, as the minor child had never resided anywhere but Adelaide, Australia. Evidence, to the contrary, showed that the Petitioner never consented to a permanent relocation of the child from Australia. The Respondent's "self-serving testimony that pre-marital discussions may somehow equate to parental consent to relocate the Minor Child" are not proof of consent. Further, the Petitioner's admission to limited alcohol consumption and occasional and measured marijuana use was credible and did not equate to clear & convincing evidence of a grave risk of harm. The child was ordered returned to Australia.

Compare this case to Peyre v. McGarey, where the parents had discussed moving to the United States during their marriage, even evidencing these discussions in texts to relatives, but that no plan was ever settled, and certain pre-requisites to a relocation were never met. The court concluded that planning, while evidence of intent, is not a change in habitual residence.