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Case Commentary: Douglas v. Douglas, No. 21-1335, 2021 WL 4286555 (6th Cir. Sept. 21, 2021)

James D. Garbolino
November 17, 2022

Habitual Residence | Summary Dispositions

In this case, the Sixth Circuit reviewed an habitual residence finding, applying the totality of the circumstances.


Because an infant is not able to acclimatize to their environment, facts illustrating parental intent may be relevant to the determination whether a particular place is the child’s “home” and habitual residence.


The mother, an American citizen, met the father on the internet and later joined him in Australia in December 2017. The parties married in February 2018; their child was born in November 2018. The parties separated almost immediately after the birth of the child; the mother and child moved to temporary housing. The parties exchanged emails confirming that their marriage was over. In December 2018, the mother applied for child support and requested that the father sign the child’s passport application so that she could leave Australia. The father signed the application and dismissed his pending custody proceeding. Less than a month later, the father wrote to the mother and stated that she was “free to go home now.” In February 2019, the mother took the child to the United States. The father filed a Hague petition in May 2020, fourteen months after the mother and child relocated to the United States. The father alleged a wrongful retention date of October 2019, the date he was served with divorce papers in Australia. The mother moved for summary judgment on the grounds that the child’s habitual residence was in the United States. The district court granted the mother’s summary judgment.


Citing to the Supreme Court’s decision in Monasky,[1] the court looked to the totality of circumstances and concluded that on the date of the alleged wrongful retention, the child’s habitual residence was not Australia. Because infants are too young to acclimate to an environment, courts must look to facts that illustrate the parents’ intentions about the child’s home. The Sixth Circuit first examined facts tending to establish residence in Australia:

  • The mother obtained a debit card linked to father’s Australian bank account.
  • The parents signed a twelve-month lease for an apartment.
  • The mother obtained an Australian driver’s license.
  • The parties considered a ten-year plan to live in Australia.
  • The mother applied for a permanent partner visa.

Next it considered evidence negating intent establish Australia as the child’s habitual residence:

  • At the time of the alleged wrongful retention, the child had lived in Michigan for seven months.
  • The parents intended that the child live in the United States.
  • The mother told father she wanted a divorce.
  • Three days after the child was born, the father ordered the mother to leave their apartment.
  • The parties lived separate and apart beginning three days after the child’s birth.
  • The mother’s lawyers informed the father that she wanted to move to the United States.
  • The father acknowledged that the marriage was over and the mother was not returning to him.
  • The father agreed to sign the child’s passport application, noting on the back that he had no conditions or expectations.
  • The father voluntarily dismissed his Australian custody proceeding.
  • The father acknowledged in writing that the mother was free to go to the United States.
  • The father authorized the mother and child to travel to the United States.
  • The child lacked any degree of integration in a social or family environment in Australia.

Because the totality of evidence did not support a finding that the child’s habitual residence was Australia, the Sixth Circuit affirmed summary judgment.

[1]. Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 723 (2020).