Case: 20-30488 Document: 00516063771 Page: 1 Date Filed: 10/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 21, 2021
No. 20-30488 Lyle W. Cayce
Clerk
Christopher Ryan Harm,
Plaintiff—Appellant,
versus
Meschiya Rachel Lake-Harm,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-14662
Before Wiener, Dennis, and Duncan, Circuit Judges.
Wiener, Circuit Judge:
Federal courts do not ordinarily decide custody disputes. But in rare
instances, such as this one, such courts are called on to decide which country
has jurisdiction over an international child-custody dispute.
I. Introduction
Under the Hague Convention on the Civil Aspects of International
Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99–
11 (Treaty Doc.) (“Hague Convention”), the country in which a child
maintains his or her “habitual residence” almost always has jurisdiction to
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decide a custody dispute between the parents of that child. 1 There are
occasional situations, however, when a child moves to a new country but
whose presence there is deemed “transitory.” 2 In such circumstances, the
country in which the child habitually resided prior to such move remains the
child’s habitual residence. That country is the jurisdiction of any Hague
Convention custody dispute between such child’s parents.
We must decide today if the district court clearly erred in deciding
whether (1) a very young girl developed a habitual residence in Ireland or (2),
as the district court concluded, her residence in Ireland was only transitory.
The outcome we reach will determine whether Ireland (the residence of the
father) or the United States (the residence of the mother and the child’s
habitual residence at the time of her birth there) will be the locale, and thus
the source of the applicable law, of her parents’ custody dispute.
The district court correctly applied the “totality-of-thecircumstances” analysis in determining the child’s habitual residence, in
accordance with the United States Supreme Court’s most recent precedent
on the Hague Convention. 3 There is a plethora of conflicting facts affecting
the district court’s ultimate holding, but perceiving no clear error in the
district court’s findings of fact or conclusions of law, we affirm.
II. Factual Background
Petitioner-Appellant Christopher Ryan Harm is a citizen of the
United Kingdom and Northern Ireland, currently residing in the latter.
1
“Habitual residence” is not the same as residence or domicile. It is a term of art
defined by and uniquely applicable to Hague Convention cases.
2
See Monasky v. Taglieri, 140 S. Ct. 719, 726 (2020).
3
See id. at 730.
2
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Respondent-Appellee Meschiya Rachel Lake-Harm is a citizen of the United
States, currently living in New Orleans, Louisiana. Mr. Harm alleged that
their three-year-old child, SLH, was abducted by Ms. Lake-Harm from
Ireland on May 21, 2019, when SLH was between one and two years old.
Ms. Lake-Harm is a professional musician. She met Mr. Harm in
Germany or North Carolina — the parties dispute which 4 — while she was
performing. At that time, Mr. Harm was living in Kilkenny, Ireland, and Ms.
Lake-Harm was living in New Orleans. They both moved to New Orleans in
November 2016 and were married in Mississippi that December. SLH was
born to the couple in New Orleans on January 15, 2017. 5
Because Ms. Lake-Harm frequently performed in Europe and because
of “the political climate in the United States,” she and Mr. Harm discussed
setting up and maintaining a “home base” in Ireland for long enough that
Ms. Lake-Harm could obtain European Union residency. (The couple had
also become concerned about crime in New Orleans after a drug addict broke
into their van and left a used hypodermic needle under SLH’s car seat.) Both
parents also wanted to give SLH the opportunity of living in the European
Union and ultimately attending college there in the future if she so desired.
Ms. Lake-Harm was interviewed by OffBeat Magazine, during which she
explained that she could only live in New Orleans if she elected to live in the
United States, but that she wanted to move to Europe so that SLH would
have both United States and Irish passports.
4
The parties disagree about this and a number of other facts. As we explain below,
however, we must give credence to the district court’s findings of fact.
5
The parties also disagree whether they were living together when SLH was born
or whether they were in a “long-distance relationship.”
3
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The couple began to experience marital difficulties in February of
2018, after which they slept in separate bedrooms. Ms. Lake-Harm kept
traveling to perform, however, and did not cease her efforts to obtain
European Union residency for herself and SLH. In May of that year, after
spending time in New Orleans to sell some of her belongings, Ms. Lake-Harm
took SLH to Amsterdam. Along with Mr. Harm, she and SLH traveled in the
Netherlands, Switzerland, and Denmark for her performances. In June of
2018, Ms. Lake-Harm learned of sexual assault allegations against Mr. Harm,
and the couple’s relationship further deteriorated.
In July, two months after their arrival in Europe, the family moved to
Ireland and rented the Woodview House outside of Cork, but Mr. Harm and
Ms. Lake-Harm continued to sleep in separate bedrooms. Ms. Lake-Harm
applied for and obtained an international driver’s license. She deposited her
funds in an Irish bank account and closed her United States bank account.
She then legally added “Harm” to her last name, even though her marriage
continued to crumble.
When Ms. Lake-Harm entered Ireland, she informed a customs
official that Ireland was her new home. She also shared this information on
her social media accounts. In one social media post, for instance, Ms. Lake-Harm proclaimed that, although “[t]he journey was an exhausting struggle,”
her new “home” was “worth it,” and was “[p]erfect in every way.” She said
that she “never want[ed] to leave the Woodview House.” In another post,
she shared an article from the Irish Times with the headline, “I’m leaving a
country devoid of compassion, for Ireland.”
In March of 2019, Ms. Lake-Harm moved out of the Woodview House
and into a house in Wexford, Ireland, approximately three hours away from
the Woodview House, where Mr. Harm still lived. Following Ms. Lake-Harm’s move to Wexford, the couple attempted to share custody of SLH.
4
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An equal division was not often followed, however, because of Ms. Lake-Harm’s frequent international travel, in which she would take SLH along.
During that time, Ms. Lake-Harm expressed that Ireland was her “home base
of operations.”
The family traveled together to Italy in August of that year, but later
Ms. Lake-Harm alone took SLH to the United States. Ms. Lake-Harm and
SLH then traveled to Germany, where Mr. Harm was working at the time.
While on that trip, the couple got into a dispute during which Mr. Harm
attempted to take SLH from Ms. Lake-Harm forcibly. Ms. Lake-Harm
became afraid: She told Mr. Harm that she wanted a divorce and that she
could no longer co-parent with him. She consulted legal counsel in Ireland
but was told that she could not file for divorce there because she was not a
legal resident of Ireland.
Ms. Lake-Harm continued to travel with SLH, but no longer with Mr.
Harm. However, Ms. Lake-Harm went to Greece in November and left SLH
with Mr. Harm for six days. That was the first time SLH had been cared for
overnight by Mr. Harm alone. When Ms. Lake-Harm traveled to Moscow,
she again left SLH with Mr. Harm. But, after returning, Ms. Lake-Harm
learned that Mr. Harm had been bathing naked with SLH and had taught her
words for the male genitalia. After that, Ms. Lake-Harm no longer felt
comfortable leaving SLH alone with Mr. Harm for more than a few hours at
a time.
That December, after receiving permission from Mr. Harm, Ms.
Lake-Harm took SLH to New Orleans to visit family and friends and to
perform there. Ms. Lake-Harm and SLH returned to Ireland in mid-January
2019. SLH celebrated her January birthday in Ireland, but with no friends in
attendance. (She had celebrated the same birthday with parties in New
Orleans and Tucson prior to returning to Ireland.) With Mr. Harm’s
5
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permission, Ms. Lake-Harm continued to travel throughout Europe,
accompanied by SLH. During that extended period of travel, SLH was in
Ireland — together with Ms. Lake-Harm — for one-and-a-half weeks at the
most.
Early in May of 2019, Ms. Lake-Harm began planning the above-noted
move from Woodview House to Wexford, Ireland. Then, on May 21, Ms.
Lake-Harm took SLH to the United States — originally with Mr. Lake’s
permission — planning to go to Tucson, Arizona and visit Ms. Lake-Harm’s
parents there. However, the mother and child ended up traveling to New
Orleans instead.
III. District Court Ruling
Mr. Harm then initiated the instant action in the Eastern District of
Louisiana, claiming that Ms. Lake-Harm had abducted SLH, in violation of
the Hague Convention. The district court ultimately held that SLH’s
habitual residence was the United States, and that her residence in Ireland
was transitory. In its oral opinion and order, the district court considered
testimony and arguments from both sides. The court based its finding that
SLH’s residence in Ireland was transitory partially on the fact that Mr. Harm
had consented to all of SLH’s travels, including the “abduction” in May
2019. That consent, the district court noted, was buttressed by Mr. Harm’s
knowledge that Ms. Lake-Harm maintained substantial ties to New Orleans
and that SLH had been born there. The court also recognized that the couple
had set up a base in Europe.
The trial court then discussed in detail, month-by-month, Ms. Lake-Harm’s world-wide travel, almost always accompanied by SLH. The court
noted that in every instance of travel, Mr. Harm consented to SLH going
along with Ms. Lake-Harm. Testimony also established that, while in Ireland,
SLH did not meet any friends or attend school. The court further noted that,
6
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when SLH was in Ireland, she was never there “for more than a couple of
weeks” before again traveling with Ms. Lake-Harm. The court concluded
that SLH’s ties to Ireland were “extremely limited.”
The district court further found that Mr. Harm had not attempted to
be in SLH’s life very much. The court also noted the instability in the
couple’s marriage. Finally, the court summed up its holding by stating: “And
now to say that [the couple] established habitual residence as a married
couple and the parents of a minor child in Ireland under those circumstances
would be absurd.”
IV. Standard of Review
The Supreme Court has observed that, for purposes of Hague
Convention cases, “[a] child’s habitual residence presents what U.S. law
types a ‘mixed question’ of law and fact—albeit barely so.” 6
The inquiry begins with a legal question: What is the
appropriate standard for habitual residence? Once the trial
court correctly identifies the governing totality-of-thecircumstances standard, however, what remains for the court
to do in applying that standard . . . is to answer a factual
question: Was the child at home in the particular country at
issue? The habitual-residence determination thus presents a
task for factfinding courts, not appellate courts, and should be
judged on appeal by a clear-error review standard deferential to
the factfinding court. 7
“Findings of fact, whether based on oral or other evidence, must not
be set aside unless clearly erroneous, and the reviewing court must give due
6
Monasky, 140 S. Ct. at 730 (quoting U.S. Bank N.A. v. Village at Lakeridge, LLC,
138 S. Ct. 960, 967 (2018)).
7
Id.
7
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regard to the trial court’s opportunity to judge the witnesses’ credibility.”8
“A finding is ‘clearly erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” 9 We may not “reverse the
finding of the trier of fact simply because [we are] convinced that [we] would
have decided the case differently.” 10 “Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” 11
V. Analysis
Although reasonable minds may disagree with the district court’s
conclusion, that court made a plausible finding in light of the record as a
whole. We thus will not set it aside as clearly erroneous. 12 There is evidence
that SLH might have established a habitual residence in Ireland. As noted
above, the family discussed and took steps toward setting up a “home base”
in Ireland to provide more opportunities to SLH. After the family’s arrival in
Ireland, Mr. Harm began taking SLH to the Sparks Toddler Group. The
couple also applied for and was granted residency status for SLH. It would
take SLH at least five years to get an Irish passport, but she got a Personal
Public Service Number, allowing her access to Irish social services. The
couple obtained a GP Visit Card for SLH to attend free medical appointments
8
FED. R. CIV. P. 52(a)(6).
9
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
10
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
11
Id. at 574.
12
We note at the outset that the district court did make at least one error here: It
noted post-removal facts, which the Hague Convention prevents courts from doing. This
error, however, does not constitute clear error because there is ample evidence supporting
a conclusion that SLH’s residence after moving from the United States was transitory.
8
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and checkups in Ireland and regularly saw doctors at the Grove Medical
Centre in Cork.
Ms. Lake-Harm also applied for residency status and later obtained a
Stamp 4 Visa and Personal Public Service Number, permitting her to work
and file taxes in Ireland. The couple signed and filed an election form,
electing to file taxes jointly in Ireland. Ms. Lake-Harm attested that she was
“an ordinary resident of Ireland,” and she obtained a European Union
Health Insurance Card, providing her access to European Union social
services. She purchased a vehicle in Ireland and registered and insured it
there in her name.
Mr. Harm cared for SLH whenever he was given the opportunity,
providing for her financially when she was with him. For example, SLH
enjoyed horses so Mr. Harm took her for walks around the horse stables and
for horseback rides near the Woodview House. And Mr. Harm’s brother
would visit Mr. Harm and SLH on weekends.
It is equally plausible, however, as the trial court concluded, that
SLH’s presence in Ireland was transitory. Ms. Lake-Harm’s career as a
professional musician sent mother and daughter on a dogged schedule of
travel outside Ireland. SLH was Ms. Lake-Harm’s constant companion on
these tours as Mr. Harm gave permission for his daughter to begin traveling
the world at three months old with her mother. This consent was given even
as the relationship between Mr. Harm and Ms. Lake-Harm was crumbling.
Far from setting up a new family home base in Ireland, the couple lived apart
as they continued to experience marital difficulties. Ms. Lake-Harm did not
even acquire the legal status she needed in Ireland to file for divorce. Ireland,
for SLH, is a place where she spent only brief periods of her life without the
company of friends or the normalcy of school. As evidenced by her lonely
9
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birthday in 2019, it was just another stop on the well-traveled young child’s
worldwide travels.
VI. Conclusion
We hold that the district court’s determinations are plausible in light
of the record as a whole. Despite the increase of SLH’s parents’ center of
gravity in Ireland, we are obliged to follow the Supreme Court’s precedent in
Hague Convention cases such as this one. When we do so — keeping in mind
the trial court’s unique position vis-á-vis the testimony of the witnesses and
the other evidence — we must conclude that it did not commit clear error in
determining and weighing the operative facts of this case. Because that court
determined, on the basis of all of the trial evidence, that SLH’s presence in
Ireland was transitory, the United States remains her habitual residence and
its law governs this case. For the foregoing reasons, and given our highly
deferential clear error standard of review, we cannot disturb the judgment of
the district court. AFFIRMED.
10
