On September 21, 2021, the Sixth Circuit Court of Appeals affirmed the district court’s summary judgment, dismissing Mr. Douglas’s Request to Return his son, JD, to Australia.
Nancy and Heath met online in October 2017. About a month or two later, Nancy left her job in Boston, took a remote freelance position, and traveled to Australia to see Heath. Upon her arrival, Heath gave her a debit card with $7,000 and told her she could use it to go home at any time. Heath and Nancy lived in separate residences. Not much later, Heath proposed, Nancy accepted, they moved in together, and Nancy got pregnant. The couple had a tumultuous marriage, with Heath making various physical threats against Nancy. They maintained their relationship, nonetheless, and in June 2018, Heath sponsored Nancy’s Permanent Partner Visa, and Nancy was linked to Heath’s Australian bank account. Nancy, however, maintained her accounts in the U.S., continued to pay U.S. taxes, and maintained a mailing address. Nancy got an Australian drivers license, they signed a 12-month lease, and they discussed staying in Australia for ten years. They started marriage counseling.
JD was born on November 4, 2018. Three days later, Heath and Nancy got into an argument, and Heath told Nancy to leave their apartment, threatening to take JD to Western Australia. The police were called. For the next three months, Nancy, her mother, and JD moved between rentals and other temporary housing. The last day Heath and Nancy lived together was November 7, 2018. Later in November, Heath and Nancy exchanged various emails, and Nancy retained counsel to pursue child support. Her counsel wrote to Heath expressing Nancy’s desire to return to Michigan with JD. In early 2019, shortly after he sued Nancy for custody, Heath moved three hours away from Nancy in Australia. The two continued their exchanges, and Heath eventually signed JD’s Australian passport application, dismissed his custody suit, and wrote Nancy an email that said, “You are free to go home now. … I want the best for you and [JD] and if that is back in America with your folks, you have my blessing! …” Heath then signed a letter authorizing JD to travel with Nancy to the U.S. Nancy unilaterally withdrew her Permanent Partner Visa application.
On February 13, 2019, Nancy and JD flew to the United States, and started living with Nancy’s parents in Michigan. Heath traveled to Michigan in August. Nancy filed for divorce a month later. Heath was served in Australia in October. Heath filed his petition for return of JD on May 14, 2020. Nancy sought summary judgment, arguing that the United States, not Australia, was JD’s habitual residence. Heath alleged that Nancy wrongfully retained Heath as of October 3, 2019. (He later sought to amend his Complaint to May 14, 2019, but the district court denied his motion to amend.) The district court agreed that the U.S. was JD’s habitual residence, citing to Monasky.