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Case Commentary: Harm v. Lake-Harm, 16 F.4th 450 (5th Cir. 2021)

James D. Garbolino
November 17, 2022

Habitual Residence | Standard Appellate Review

In this case, the Fifth Circuit reviewed a district court’s finding of habitual residence. At issue was whether a court’s finding on habitual residence under the Monasky “totality of circumstances” test is subject to clear error.


Although the evidence on habitual residence was equivocal, the record supported the district court’s finding regarding habitual residence. Applying the deferential clear error standard of review, the appellate court affirmed the judgment.


The father was a resident of Northern Ireland, and the mother, a resident of New Orleans, Louisiana. The parties moved to New Orleans in November 2016 and were married shortly thereafter. The parties’ child was born in New Orleans in January 2017. The mother was a professional musician, frequently performing in Europe. The parties agreed to set up a “home base” in Ireland so that the mother could obtain EU residency. They also expressed a mutual desire that the child live in the European Union.

A year after the child was born the parties experienced marital difficulties and moved to separate bedrooms. In 2018 the mother traveled to New Orleans, the Netherlands, Switzerland, and Denmark. The parties later rented a house near Cork, in Ireland, but continued to use separate bedrooms. In social media posts, the mother referred to her “new home” and leaving the United States, a country “devoid of compassion.” In March 2019, the mother moved out of the house in Cork to a house in Wexford, approximately three hours away. The parties attempted to share custody of the child, but the mother took the child with her on her frequent travels, so an equal division of time with the child was not possible. The marriage further deteriorated when the father attempted to physically take the child from the mother. The mother sought legal advice regarding a divorce but learned that she could not begin a divorce action in Ireland because she was not a legal resident of that country. For a time, the mother left the child with the father for overnight visits. When she learned that the father bathed with the child, the mother decided not to leave the child with him for more than a few hours at a time. During 2019, the mother traveled frequently with the child throughout Europe. Ireland was their “home base.” However, from early 2019 until mid-May, the mother and child spent no more than ten days in Ireland. In May 2019, the mother removed the child to the United States and did not return to Ireland.

The father commenced an action for return of the child. The district court found that the United States was the child’s habitual residence and that the child’s residence in Ireland was transitory. The court’s finding was partially based on the fact that the child’s father consented to all of the child’s trips and travels. The court also noted that while in Ireland, the child did not meet with any friends or attend school. It concluded that the child’s ties to Ireland were extremely limited.


The Fifth Circuit observed that there was evidence both supporting and contradicting the finding that the child’s habitual residence was in the United States. The circuit court applied the “highly deferential” clear error standard,[1] explaining, “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”[2] The district court did not commit clear error when weighing the facts of the case and finding that the child’s residence in Ireland was transitory.

[1]. Monasky v. Taglieri, ––– U.S. ––– , 140 S. Ct. 719, 730 (2020).
[2]. Harm v. Lake-Harm, 16 F.4th 450 (5th Cir. 2021) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985)).