Case Update (23 April 2024): Morrison v. Chang; court concludes U.S. is habitual residence of a chronically mobile child
The parties have ties to both Washington State and Mexico, and during their marriage, were chronically mobile between both countries, with each party having the legal right to reside in both. At various points in time between 2015, when they met in Mexico, and 2022, when the Petitioner Father alleged that the Mother wrongfully retained the child in Washington State, the parties shifted between Washington State and Mexico, with Petitioner owning houses in both. The parties never seemed to have fully agree as to where they would permanently reside, and, at times, their actions did not match their words. From December 7, 2021 until May 2022, the parties lived in Mexico at their house. In Spring 2022, Petitioner proposed looking at homes in Oklahoma and Colorado (although perhaps as a summer home). Finding no real estate at that time, Petitioner Father suggested returning to Mexico, whereas Respondent Mother suggested returning to Washington State. They traveled to Washington State in June 2022, and began residing with Petitioner’s Mother.
In November 2022, Petitioner purchased a flight to Mexico for himself and the child. Respondent refused to agree to the child traveling to Mexico. Petitioner then went to Mexico on his own and filed for divorce in Mexico in November 2022. On December 28, 2022, Respondent filed for divorce in Washington State, where the court issued a temporary restraining order, prohibiting both parties from changing the child’s residence until further court order, except with the written agreement of both parties. On December 29, 2022, Petitioner texted Respondent that he was ready to take the child to Mexico to start the school term. Respondent did not respond to the text.
On January 3, 2023, the Petitioner drove the child to Portland, Oregon and took the child to Mexico. Respondent sought relief using the Hague Abduction Convention, but, while proceedings were pending, took matters into her own hands. On March 2, 2023, Respondent and her brother went to the child’s school in Mexico, took the child out of school, went through customs in Tijuana, and traveled to San Diego. The parties then spent 2023 litigating custody and divorce matters in Washington. The court ultimately granted custody of the child to Respondent, prohibited the Petitioner from contacting Respondent, and granted him video visitation of fifteen minutes three times per week. In the custody case, the Washington State court found that “both parents exhibit emotional or physical problems” and noted that the Mexican court most recently declined to exercise jurisdiction, although the Petitioner is appealing that.
The District Court analyzed the issue of habitual residence and concluded that the parties had ever-changing views on where they intended to settle, and rarely agreed. Their actions sometimes did not even reflect their statements, for example when the Respondent contacted the Washington school about summer enrollment in 2022, but then the child remained in the school until January 2023, when the Petitioner removed him to Mexico. The child see-sawed between two countries. Ultimately the court looked at the various actions by the parties, and their marital discord, and concluded that Washington was the child’s habitual residence. The travel to Mexico in January 2023 did not serve to abandon the U.S. as the child’s habitual residence.
Because the U.S. was the child’s habitual residence, the Respondent Mother’s “retention” of the child in Washington was not wrongful. The Petitioner Father’s request to return the child to Mexico was denied. The court did not examine the Mother’s argument that the Father presented a grave risk of harm to the child if the child were returned to Mexico.
