738 F.Supp.3d 1157
W.D. Mo.2024Background
- Petitioner (father, Argentinian) and Respondent (mother, American) led a nomadic lifestyle, meeting in Colombia, where Respondent became pregnant.
- Due to visa issues, Petitioner suggested moving to Argentina for the birth, as neither could remain in Columbia or enter the U.S. or Mexico.
- Both parties intended to resume traveling (not settling in Argentina) after the birth, but the COVID-19 pandemic imposed travel restrictions.
- The romantic relationship deteriorated; Respondent alleged abuse, obtained an order of protection, but remained in Argentina due to restrictions and Petitioner’s refusal to allow travel.
- An Argentine court later allowed Respondent to visit the U.S. for 40 days with the child, but she did not return; Petitioner sought return of child under the Hague Convention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Argentina was the child’s habitual residence when the child left for the U.S. | Argentina was the child’s habitual residence; Respondent’s removal violated Hague Convention and ICARA | No habitual residence in Argentina; parties never intended to settle there, and circumstances were compelled by the pandemic | Argentina was not the habitual residence; Petition denied |
| Whether the parties intended Argentina as home base | Argentina was intended as the family’s base for travel | No agreement to make Argentina a home base; only chosen due to visa limitations | No joint intention to make Argentina the home base |
| Effect of COVID-19 and court orders on habitual residence | Court’s travel order and post-birth residence support Argentina as home | Stay in Argentina was involuntary due to pandemic, not intent to settle; court order did not establish habitual residence | Dominant intent was not to settle in Argentina; pandemic and exigency dictated circumstances |
| Whether habitual residence must be found under the Hague Convention | Implied that if not Argentina, there is no alternative habitual residence | If not Argentina, court need not find an alternative residence | Petitioner bears burden; court not required to designate any habitual residence |
Key Cases Cited
- Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) (key inquiry under Hague Convention is whether child was wrongfully removed from country of habitual residence)
- Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) (habitual residence not found if residence is the result of coercion)
- Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003) (habitual residence not established where presence in country was temporary and not intended for settlement)
- Monasky v. Taglieri, 589 U.S. 68 (2020) (habitual residence determined by the totality of the circumstances, focusing on parental intent and where the child is at home)