Case Update (25 Feb 2025): Laing v. Fortini-Laing; Respondent’s retention of children in Illinois was not wrongful; Petitioner consented to their new residence

The parties are the married parents of two children. The couple married on August 30, 2016. Petitioner moved to California in 2018 to commence living with Respondent, and their first child was born. They then moved to France in February 2019, about four months after their first child’s birth. Their second child was born in France in April 2021. Up until July 2024, the family resided in France. For Summer 2024, the family had an extended vacation scheduled to the USA. They were scheduled to return to France on August 21. On June 28, the Respondent Mother received an anonymous letter informing her that Petitioner Father had cheated on her. This precipitated a lot of strife, but the family left France as scheduled, and started their U.S. summer vacation. During the initial part of vacation, Petitioner and Respondent spent time trying to resolve their marital discord. Petitioner wanted to take a break, while Respondent did not. On July 26, while on vacation, Respondent who was pregnant with the parties’ third child, suffered a miscarriage. On August 1, the Petitioner reaffirmed he wanted a separation. He returned to France early, leaving the children and Respondent in Illinois. On August 7, he booked three roundtrip flights from France to Chicago so he could “visit the children.” On August 22, he filed a police report in France alleging that Respondent had abandoned him and did not return with the children on August 21 as originally scheduled. Petitioner went to Illinois on his first of the three trips, but additional issues arose, and he alleged Respondent prevented him from seeing the children. On September 3, 2024, Petitioner filed for divorce in France. On October 3, 2024, Respondent filed for divorce in Illinois. On October 22, 2024, the instant Hague Abduction Convention return petition was filed.

The key dispute at trial was whether Petitioner had agreed to the children residing in Illinois. Specifically, Respondent argued that, on August 1, Petitioner gave her the option of choosing where the children would live, and she chose Illinois. Also, she argued that, on August 2, the parties discussed the children’s residence in Illinois and their school attendance in Illinois. Respondent’s parents were apparently part of the conversation as to where the children would be attending school, and whether the children and Respondent could reside with them in Illinois. Respondent’s mother testified at trial. Respondent further testified that “she and Petitioner told the children together ‘you live here [Illinois] now,’ and that they would be going to school in Illinois and not returning to France.” Petitioner disagreed with this framing, and testified that the parties were going to “live in two separate apartments in France while ‘taking a break.’” He also stated that the August 2 conversation was “one regarding whether the children would continue to stay in Illinois through August 20” and not whether they were staying there indefinitely. He couched the three roundtrips that he booked to see the children as “play[ing] along”, so that he would not be cut off from his children when “Respondent threatened that he could either cooperate with her or he would not see the children again.”

After taking testimony and receiving evidence, the District Court concluded that the parties had agreed that Respondent and the children would remain in Illinois, and specifically discussed and agreed to enroll the children in school in Illinois, which “would have been unnecessary if there was any possibility of the children returning to France on August 21.”

The court focused on the disputed agreement between the parties as to whether the children would live in Illinois. The court queried whether it should analyze this dispute as part of Petitioner’s case or Respondent’s case. In other words, the court asked whether the children remaining in Illinois on August 21: (a) breached Respondent’s custody rights or (b) whether it was Petitioner’s consent under that exception to return. If the former (a), then the burden of proof rests with Petitioner. If the latter (b), then the burden of proof rests with Respondent.

The court analyzed the disputed issue under Petitioner’s case in chief first, and concluded “Petitioner has not presented the Court with any French law that would indicate that it would be a breach of Petitioner’s custody rights under French law for the children to remain in Illinois if Petitioner had agreed to let Respondent make that decision. For that reason, the Court concludes that Petitioner has failed to meet his prima facie case of wrongful retention by a preponderance of the evidence.” The court decided to look at the disputed issue through the Respondent’s case, as well, and concluded that “Respondent has demonstrated by a preponderance of the evidence that Petitioner consented to the children remaining in Illinois indefinitely.” The court concluded that it was likely around August 26, during Petitioner’s visit to Illinois “when Respondent prevented Petitioner from seeing the children” that he “changed his mind” but, he cannot revoke his consent once given.

The Petitioner’s request to return the children to France is dismissed, with prejudice.