Case Update (6 Aug 2026): Scheider v. Scheider; a close call after examining factors under habitual residence
The parties are parents to one child, now age 10. Petitioner Father is a citizen of Austria, and presently resides in Austria. Respondent Mother is a citizen of Austria and resides in Miami, Florida. Their son was born prematurely in Austria in 2016 and received speech, occupational, physical or structural therapies at various points in his life. Both parents agree that he has special needs and that continuity of therapeutic care matters to his development. In December 2021, the family traveled to Florida. Petitioner Father described the trip as one under a 90-day visa-waiver program, undertaken because pandemic restrictions in Europe interrupted the child’s therapy. The Respondent Mother described the trip as a relocation and the beginning of the child’s residence there. Petitioner was, thereafter, offered a position that sponsored him for an O-1 nonimmigrant extraordinary ability visa, authorizing a stay of 2.5 years. Petitioner accepted the arrangement, he believed, so that the family could return to Florida and pursue medical and therapeutic options for the child. The family ultimately relocated to Florida under that visa in November 2022. While they brought clothing, they left the majority of their personal belongings and all household furnishings in Austria. They rented a furnished apartment on a one-year lease in the Miami area. The child had physician treatment in Florida concentrated in 2023, but his therapeutic services continued ongoing through the present. The child is home schooled in Florida. While in Florida, the parties maintained Petitioner’s home in Austria, furniture, furnishings, bank accounts, phone numbers, the child’s health insurance, and their formal residence registration with the Austrian government. Petitioner continued operating his businesses in Austria and Germany. Neither parent earned U.S. income, filed a U.S. tax return, or obtained a Florida drivers license. The parties’ relationship was faltering in October 2024. Their apartment lease was ending, and the Respondent unilaterally renewed the lease for the same apartment herself, without discussing it with the Petitioner. In November 2024, the Petitioner sought legal advice from an immigration attorney, concluding that a green card was not an option to allow the family to remain in the USA, as it would commit him to having a primary residence there. He did not extend his O-1 visa, and it expired in June 2025. In March 2025, Petitioner advised Respondent that he did not consent to the child remaining in Florida beyond the visa’s expiration. On March 21, 2025, Petitioner was served with a petition for dissolution that Respondent had filed in Miami. On June 9, 2025, the Respondent sought to change her immigration status to an F-1 student in connection with a 40-week intensive English program. The Petitioner filed an application with the Central Authorities upon his return to Austria full time in June 2025. The Respondent and John are “lawfully present” pending adjudication of their request for F-1 visas. The court concluded that neither is “under an immediate or identified threat of removal”. Neither has permanent or long-term status. The court pinpointed the date of retention in the USA as June 30, 2025, the date on which the O-1 visa for the child expired.
After a review of all facts, without any one fact being determinative under Monasky, the court concluded that the Father had not met his burden to demonstrate that Austria was the child’s habitual residence as of June 30, 2025. On this basis, the court denied the Petitioner’s request to return the child to Austria.
