Case Update (8 Dec 2023): Livingstone v. Livingstone; Petitioner failed to meet his burden to prove custody rights under Australian law

In August 2022, the U.S. District Court for the District of Colorado concluded that the existence of a 5-year domestic violence protective order coupled with the Petitioner’s failure to evidence the law in Australia vis-a-vis that protective order meant he did not have a right of custody, and therefore the Mother’s abduction of the parties’ children to Colorado from Australia was not wrongful. During trial, the Petitioner Father argued that the plain language of the protective order did not eliminate his rights of custody because he could conceivably have contact with his children with further permission of the court or through special authorization from the Department of Communities.

On December 8, 2023, the U.S. Court of Appeals for the Tenth Circuit affirmed the district court’s opinion, with one caveat. It corrected the district court’s examination of the parties’ permanent protective order, which should not have been part of the court’s examination as it was entered by the Australian courts after the Respondent Mother removed the children from Australia. The Tenth Circuit reviewed the temporary protective order, which was in place at the time of the children’s removal, and disagreed with Petitioner’s argument that the plain language left, in tact, his rights of custody. The Tenth Circuit, agreeing with the district court, concluded that while the TPO is not a parental order “which expressly contemplates parental responsibility, it appears to impact [Petitioner’s] custody rights” and the restrictions on his rights “are severe and, depending on the application of Australian law, they could substantially affect [Petitioner’s] ability to care for his children.” The Tenth Circuit was unwilling to “make unfounded conclusions about the content and nature of another country’s laws” and noted that the Petitioner “declined several opportunities to clarify the nature and extent of his de jure custody rights in the context of the applied protective orders.” He did not provide sufficient references to or interpretation of Australian law, and he did not put forth expert testimony to help explain Australian law. In that proving a right of custody is the Petitioner’s burden, the Tenth Circuit agreed with the district court that the Petitioner' did not carry his.