Case Update (30 July 2024): Horacius v. Richard; No clear error in finding Canada was habitual residence of child who spent 9 months in Canada, then 3 years by time of trial in FL
This appeal followed a ruling in the U.S. District Court for the SD of Florida in March 2024, which ordered a child returned to Canada pursuant to the Hague Abduction Convention. As a reminder, in this case, the child was born in March 2020 in Montreal, Quebec, and then traveled with the parties to the Dominican Republic at age 9 months old to visit family. In February 2021, the family left the DR and traveled directly to Florida, and remained there until March 2022, when the alleged wrongful retention began. They had been living in Florida, in a relative’s home, “by mutual agreement of the parties.” While in Florida, the Respondent obtained a FL drivers license, a FL notary commission, a FL concealed weapons permit, and registered to vote. Further, the Petitioner filed affidavits of support with USCIS for the Respondent and child to become permanent US residents. In January 2022, the Petitioner left FL and returned to Canada. In February 2022, the Respondent filed a divorce petition in FL state court. Petitioner then purchased and sent airline tickets to Respondent for her to return to Canada with the child, but she refused. By the time of trial in January 2024, the child had been residing in Florida for almost 3 years (and had only lived in Canada for the first 9 months of their life).
On appeal, one of the primary issues was the child’s habitual residence. Was the time in Florida intended to be temporary or permanent? Was the Respondent’s conduct in March 2022, refusing to fly to Canada, a “wrongful retention”? Was the child a habitual residence of the USA or Canada immediately prior to March 2022? The Petitioner, despite evidence that he gave up their Canadian condo lease, spoke with realtors in FL, and got a FL phone number, asserted that his intention was never to live in Florida permanently. Respondent said that before the March 2022 retention date, the family had already decided to move to FL with the child “full time” and that the Petitioner only back peddled on this around the time he returned to Canada. The evidence seemed to imply that the child had more connections (family, activities, church) in FL than in Canada. The trial judge concluded Canada was the child’s habitual residence, and there seemed to be credibility determinations that assisted in reaching that conclusion.
The 11th Circuit noted that factual findings that lead the District Court to conclude that Canada was the child’s habitual residence must be reviewed for clear-error, a relatively high burden. [See Monasky v. Taglieri] The court stated that “[w]hen analyzing whether a child’s habitual residence has changed from one country to another, we have ‘held that ‘the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.’” The “unilateral intent of a single parent” is not enough to change a child’s habitual residence - there must be a shared intent. While the District Court’s conclusion was a “close call”, the 11th Circuit did not find a mistake had been committed in the Court’s analysis.
