Evelyn Larbie v. Derek Larbie
2012 U.S. App. LEXIS 15789
| 5th Cir. | 2012Background
- Evelyn Larbie filed a Hague Convention petition seeking K.L.’s return from the United States to the U.K.; the district court granted return, overturning Texas custody proceedings.
- Texas temporary divorce order designated Evelyn as joint managing conservator with broad residence authority, and allowed temporary travel with K.L. without geographic restrictions.
- Derek Larbie signed a Consent Affidavit permitting K.L. to reside in the U.K. during Derek’s deployment, under conditions to preserve future custody litigation in Texas.
- After temporary orders and a subsequent final divorce decree, Texas ultimately found Evelyn’s conduct and sanctions adequate to proceed with custody resolution; a Final Decree awarded Derek possessory custody and imposed a U.S. residence designation.
- K.L. remained in the U.K. for a period during which Evelyn obtained permanent residency in the U.K.; Derek challenged the Texas order through the Hague Convention petition filed in 2011.
- The district court’s return order was vacated on appeal, with the Fifth Circuit’s ruling focusing on consent/acquiescence under the Hague Convention and K.L.’s habitual residence as the controlling questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is moot after K.L.’s relocation | Bekier v. Bekier supports mootness; return has occurred | Bekier is not controlling; relief remains possible through Convention mechanisms | Not moot; relief remains possible via Convention enforcement or future orders |
| Whether Evelyn consented or acquiesced to the Texas custody resolution | Evelyn participated in Texas proceedings and complied with orders; consent evidenced | Participation alone does not show consent; she opposed in U.K. | Derek prevailed; Evelyn consented/acquiesced to final Texas custody adjudication |
| K.L.’s habitual residence at the time of retention | K.L. had U.S. habitual residence pre-move; removal was wrongful | K.L.’s stay in the U.K. reflected shared intent to resolve custody; possible change in habitual residence | U.S. habitual residence remained; no change in habitual residence supported by the record |
Key Cases Cited
- Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010) (consent/acquiescence analysis governs Hague challenges; emphasis on petitioner’s intent)
- Whiting v. Krassner, 391 F.3d 540 (6th Cir. 2004) (shared parental intent governs habitual-residence determination for young children)
- Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003) (concludes that consent/acquiescence can defeat Hague return; later overruled on other grounds by Abbott II)
- Navani v. Shahani, 496 F.3d 1121 (10th Cir. 2007) (discusses post-removal acquiescence defenses in Hague cases)
- Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997) (mootness and habitual-residence principles in Hague challenges)
- Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010) (standard of review for habitual-residence determinations; deference to record)
- Abbott v. Abbott, 560 U.S. 1 (2010) (Abbott II; reaffirms limits and application of Hague Convention principles)