The 10th Circuit affirmed the Pope v. Lunday decision on November 20, 2020. Ms. Lunday, pregnant with twins, returned to her home of Oklahoma from Brazil. The twins were born in Oklahoma, and shortly after, Mr. Pope filed suit under the 1980 Hague Abduction Convention, seeking the twins’ return to Brazil. The children had never been to Brazil, except in utero. The trial court’s focus was on pinpointing the twins’ habitual residence. It concluded it was the United States, and therefore denied Mr. Pope’s return request on the papers.
The 10th Circuit had the benefit of the Monasky opinion when it reached its decision in November, which not only discussed the habitual residence of newborns, but established the standard of review as “clear error.”
Mr. Pope argued that the parents shared an intent to make Brazil the home of their twins, with Ms. Lunday taking steps towards licensure for her profession in Brazil, and the couple registering their partnership as a “stable union” in Brazil. But, Monasky does not require the court to focus on the parents’ last shared intent. Instead, it gives the trial judge broad discretion to consider everything relevant. Ms. Lunday argues that the children have never stepped foot in Brazil, but Monasky also states that an infant’s physical presence is not a dispositive factor.
The 10th Circuit concluded that the district court’s ruling was consistent with Monasky‘s totality-of-the-circumstances analysis, and that the trial judge considered a wide range of factors, including their place of birth, citizenship, and duration of their residence. It looked at Mr. Pope’s argument that the parents had an agreement as to where to raise the children, but it rejected his argument that Ms. Lunday cannot withdraw from their pre-birth agreement that she “allegedly” had with him. The parents’ “shared” intent that existed when the children were 19-20 weeks in utero was insufficient to override all the other undisputed facts, which do not support Brazil as the habitual residence.
Finally, the 10th Circuit rejected Mr. Pope’s argument that he was entitled to a hearing on his request. The district court ruled on the papers, without discovery. The 10th Circuit said, “[N]either the Convention nor ICARA, nor any other law of which we are aware including the Due Process Clause of the Fifth Amendment, requires that discovery be allowed or that an evidentiary hearing be conducted as a matter of right in cases arising under the Convention.”