On March 23, 2022, the Court of Appeals of Texas reversed a trial court’s order that required the return of two children to Israel. This is the first case I have seen since Monasky v. Taglieri that has overturned the trial judge’s finding of habitual residence.

Father (a former Israeli diplomat) and Mother (American) met in Florida and married. Shortly thereafter, Mother became pregnant via in vitro fertilization using a donor egg and Father’s sperm. While pregnant, Father returned to Israel where he was convicted of spanking his 12-year-old daughter (from a previous marriage) with a belt. Father then told Mother that they were no longer married under Jewish law, because he believed she lied about being Jewish. At 32-weeks pregnant, Mother flew to Israel on a tourist visa. Father would not allow her to live with him, and so Mother attempted to return to the U.S., but was prohibited from flying due to her advanced pregnancy. She visited a doctor to obtain clearance to fly, and went into labor. Twin daughters were born in Israel on June 20, 2016. On November 8, 2017, the parties agreed to a Jewish divorce, and the Israeli court set out visitation and support obligations for the Father. It required the twins to live exclusively in Israel. Mother, unable to work, not speaking Hebrew, and having no personal items, told Father she wished to return with the children to the U.S., which prompted Father to obtain a ne exeat order for each twin in February 2018. Mother claimed she never had notice of the ne exeats. In April 2018, the Israeli government ordered Mother to leave, having overstayed her visa. The Mother obtained U.S. passports for the twins at the U.S. Embassy, and told the consular officer that no court had ever issued an order or decree that references the custody or travel of the children. Mother and twins left Israel for the U.S. that month. In August 2020, the Father filed a return petition in the Texas courts. Mother ultimately represented herself in trial. The trial court ordered the twins returned to Israel.

On appeal, the parties disputed the standard applied by the trial judge in determining whether Israel or the U.S. was the twins’ habitual residence at the time of their removal from Israel. The controlling case is Monasky v. Taglieri, which requires judges to look at the totality-of-the-circumstances, with no one factor controlling the determination. The US. Supreme Court further dictated that, on appeal, the habitual residence finding is only overturned on a finding of clear-error. The TX Court of Appeals referenced this standard of review, but also referenced the Alito concurrence, which suggested the review should be “abuse of discretion.” It also stated that the Texas Supreme Court has stated that “with regard to factual questions, the abuse of discretion standard is more akin to a clear error standard.”

The Court of Appeals focused on the fact that when the Father returned to Israel, he considered himself an unmarried man, leaving the Mother pregnant in the U.S., and that he even questioned the paternity of the twins (which he did over a year after they were born). He refused to let Mother live with him when she traveled to Israel. Mother, when she signed the custody agreement, did not understand it because it was not translated. The fact that an Israeli court established custody in a court order does not, in isolation, establish habitual residence. She was unable to legally remain in Israel or obtain employment. Further, she tried to return to the U.S. to give birth, but the airlines prohibited her from flying. When she returned, she was still breast-feeding. On this basis, the Court of Appeals reversed.

The appellate opinion did not address any other legal issue, of which the parties likely argued many at trial. In reading the opinion, it is not entirely clear whether the TX Court of Appeals applied a clear error standard of review, or an “abuse of discretion standard” that is “more akin to a clear error standard.” The Court of Appeals also did not directly state that the trial court failed to examine the totality-of-the-circumstances, and the Court of Appeals independently examined the facts adduced at trial, and reached a different conclusion.