The U.S. Court of Appeals for the Fifth Circuit recently had the opportunity to apply the Monasky v. Taglieri habitual residence test in the case of Smith v. Smith.  

The parents and children, all U.S. citizens, were residing in Argentina, when the mother traveled with the children to Texas for a funeral, and then retained them.  The couple shared custody in an Argentinian custody and divorce order.  The father petitioned the U.S. District Court for the Northern District of Texas for the children’s return.  The children’s mother argued that the United States, and not Argentina, was the children’s habitual residence, and prevailed.  At the time of the trial, the Monasky opinion had not been handed down by the U.S. Supreme Court, so the district court applied the parents’ “last shared intent” standard.  In doing so, it examined all the facts in the family’s history.  This included: everyone was born in the U.S. and continued to be U.S. citizens; the father was eligible for Argentinian citizenship, but did not apply for it; his work contract was at-will and contained provisions for “home leave” which referred to the United States; he had a 24-month housing allowance; the mother continued owning inherited land in Texas; the parents signed a 2-year lease in Argentina instead of purchasing a house; all 4 children attended an “American style” school; they did not own property or have family in Argentina; the mother now only qualifies for a 3-month tourist visa to travel to Argentina; the Argentinian custody order referred to the children having permission to travel to their “country of origin” and had no provision requiring any person to live exclusively in Argentina.  

Ultimately the Fifth Circuit concluded that the U.S. District Court examined all of the facts.  The Fifth Circuit found no clear error with the district court’s factual examination, and therefore, the Fifth Circuit applied the Monasky standard and concluded that Argentina is not the children’s habitual residence.  The Fifth Circuit followed the example of Monasky and did not remand, saying it would be too time consuming for a swift resolution and there was no evidence the district court would view the facts differently on remand.