Case Update (3 Oct 2025): Lee v. Curcio; district court did not commit clear error in concluding Petitioner failed to meet habitual residence burden

The parties are unmarried U.S. citizen parents to one U.S. citizen child. It is undisputed that, at trial, there was sufficient evidence to indicate that the parties were planning on relocating with their child to Brazil. They traveled to Brazil to view apartments and tour schools for the child. When they arrived in Brail on January 11, 2025, they entered on 90-day tourist visas. Upon arrival, the parents each signed individual 30-month leases, enrolled the child in school, and initiated a process to secure the child a student visa. In early March 2025, the Respondent Mother contacted the U.S. Consulate in Sao Paulo “to inquire about her rights regarding [the child]”, because she intended to return to the USA. The consulate advised her that she had a tourist visa, it would expire on April 11, 2025, and after that time, she could be deported from Brazil without the child. Because of the impending visa expiration, the U.S. consulate issued the child an emergency one-time use passport. These passports are good for one, and only one, use - to fly back to the U.S. Mother and Child did just that, and on March 27, 2025, the Father petitioned for the child’s return to Brazil. The district court judge concluded that the Petitioner Father did not meet his burden to demonstrate that Brazil was the child’s habitual residence pursuant to the Hague Abduction Convention. The Father appealed.

The U.S. Court of Appeals for the Eleventh Circuit, in applying the Monasky totality-of-the-circumstances factors, concluded that the parties’ relocation was conditioned on the Mother securing employment and medications, which she struggled to obtain. It was agreed that they would only move for one year. The Mother testified she was unaware she signed a “three-year lease” because it was in Portuguese, although the Father claimed it was translated. The court also independently researched Brazilian tourist visas, and concluded that they are not intended for those wishing to remain in Brazil. The Court of Appeals also noted that “[f]inally, the district court also found as a ‘unique and compelling fact’ that [Mother’s] departure with [child] was facilitated by the U.S. consulate. The consulate ultimately issued an emergency passport for [child] after [Father] would not return [child’s] passport to [Mother].” All of this evidence pointed towards the parents having a settled intention to establish residency in Brazil, but those intentions were not as settled as the Father argued, were punctuated by reservations by the Mother, and were preconditioned on certain things that did not come to pass. Further, the child was only in Brazil for 60 days, and while the parties worked hard to put in place things that would allow the child to acclimatize, the child was not so acclimatized that it was “habitual.”

Father argued specifically that the district court committed legal error when it placed undue weight on the U.S. consulate issuing an emergency passport - but the court considered that harmless error, at best. He also argued that the district court should not have consulted two resources that neither party presented - a Brazilian government website and a U.S. government website. But, the Court of Appeals concluded that these sources were not independently dispositive.

Note: A U.S. consulate in another country may issue a U.S. limited validity direct-return emergency passport under certain conditions. These passports are simply travel documents. They are not permission to relocate or remove a child. The U.S. government does not resolve custody or parenting disputes. It authorizes travel into the United States and issues documents to that effect. You can learn more about the U.S. Passports Limited for Direct Return to the United States at the Foreign Affairs Manual.