The Court of Appeals of Indiana concluded that the trial court committed clear error when concluding that Germany was the children’s habitual residence.
The parents and two U.S. citizen children lived in an apartment in Germany from 2017 to December 2020. In 2019 and 2020, the parents had “a number of conversations about a trip to the United States and even the possibility of moving there.” They agreed to an “extended vacation” to the U.S. “to get a better idea about whether an actual move” would work. They agreed that they would live with the children’s maternal grandmother in South Bend, Indiana, at least initially. The father sought a U.S. Permanent Resident Card. He represented that the family was planning to move to Indiana. Once receiving the PR card, the father terminated their German apartment’s lease, liquidated assets, and arranged for shipment of their property to South Bend. They transferred the bulk of their money to a South Bend bank. In a customs declaration, the Mother represented the family was “moving back.”
The family also purchased 8 weeks of travel insurance to cover medical needs in the U.S. They registered a new apartment in Germany with the German government as a home address for all four members of the family, and they renewed their German health insurance. In January 2021, the father sought to return to Germany, but mother disagreed. The father had believed that the parents agreed that the family’s “indefinite vacation” would end if either one of them wished to return to Germany. In February 2021, the father returned to Germany (as was pre-planned), and the parents continued discussing whether the entire family would return. In April 2021, father returned to South Bend, and rented his own apartment. He further tried to obtain a Social Security card and employment, but he was unsuccessful, so, in late May, he returned to Germany. In June 2021, the father petitioned for divorce in a German court, and mother petitioned in an Indiana court. On July 15, 2021, the father petitioned the St. Joseph Circuit Court for return of the children under the Hague Abduction Convention.
The Court concluded, “The Children moved to South Bend in December 2020 by agreement of both Mother and Father. While Mother and Father may have not seen eye-to-eye with respect to the circumstances under which the family might return to Germany, the facts are clear that Mother and Father both saw the family’s move to the United States as indefinite and at least possibly permanent.”
*One Side note – the case was resolved on the papers.