Case Update (30 May 2023): Peyre v. McGarey; discussions to relocate to U.S. did not necessarily mean the family had a plan or father consented to the relocation in June 2022

The parents married in 2019 in France, and had children in 2021 in France. In June 2022, the Mother traveled to the United States on a one-way ticket with the children, and has not returned since. A large portion of the parties' respective arguments at trial involved whether or not the mother's trip to the United States in June 2022 was a permanent relocation. The court examined various communications between the parents leading up to June 2022. It looked at an email from the father in November 2021 where he stated that "we are looking forward to settle in Phoenix soon. We are talking about making it happen for June [20]22. ..." However, the court concluded that it sheds little light on the parents' actual plans, if any, to move, and it did not suggest that the mother and children would relocate without the father. The parents' marriage counselor testified that the parents spoke of relocating in therapy, but the move was contingent on selling an apartment and their business in France. Most importantly, the therapist said that the plan did not involve the mother and children moving without the father. There were additional exchanges, too, including an email from the father that seemed to acknowledge that there were scenarios in which the mother, who had asked him for a divorce, might move to the United States with the children, but without him. The court concluded that this was not tantamount to consent. There were some exchanges that seemed to imply that there might be an oral agreement for the mother and children to relocate to Arizona in or around January 2023, but those exchanges, in the court's mind, reaffirmed that the mother's trip to the U.S. in June 2022 was not to relocate, and the father did not consent to that trip being a relocation (even if, arguably, he agreed for a relocation six months later).

While it was unclear whether the mother was arguing that the children's habitual residence shifted to the United States or whether the father consented to the removal, or both, the court examined both. The court found that the habitual residence was France - per Monasky, it is a fact driven inquiry and is "the place where a child is at home, at the time of removal or retention[.]" "This conclusion is not undermined by the fact that Mother and Father had been discussing, in the months leading up to June 30, 2022, the possibility of jointly moving to the United States with the Children." While the parents' shared intent is a factor, no one factor is dispositive under Monasky. Further, in this case, there was no settled intent to raise the children in the United States. Their plan was ever-changing and subject to unfulfilled contingencies. As to whether the father consented prior to the children's removal, to their permanent relocation, the court finds that he did not. He needed to "actually, subjectively" intend to allow them to remain in the United States, and ambiguous statements or actions do not suffice. This consideration requires the court to look at the nature and scope of his consent, and any conditions or limitations on that consent.

The court ultimately concluded that the children must be returned to France.