Coe v. Coe, Record No. 0854–15–4, decided on July 26 2016, adopts the U.S. Court of Appeals Fourth Circuit definition of habitual residence for purposes of the Hague Convention on Civil Aspects of International Child Abduction. Habitual residence is not defined in the Hague Convention, but in Virginia it now consists of the place where a child has been “physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.”
Most remarkable about this opinion is not its adoption of a widely-respected definition of “habitual residence”; but the fact that appellant’s case was so weak, and his counsel was so heavily criticized by the appellate court.
Briefly, here are the facts: Daughter was born in 2007. The parties lived in Arizona until 2011 when mother moved to her native Korea with daughter and father went to Afghanistan. Later that year, they vacationed in Phuket, Thailand. Father obtained an Arizona divorced in 2012, and returned to the States in 2014 taking up residence in Virginia.
At the end of 2014, father sent mother and daughter plane tickets to visit him from Korea. Immediately when they arrived, father hid their passports and filed for custody. Courts are critical of this sort of conduct. Father lost at every stage of the judicial process.
From 2011 to 2014 mother and daughter lived in Korea. During that time, father vacationed with them at a Thai resort, but apparently did nothing about challenging daughter’s residency outside the United States. It was not clearly erroneous for the trial judge to conclude that three years was enough time for daughter to establish habitual residence overseas. The Circuit Court ordered father to return the child to Korea, and the Court of Appeals did the same.
The Court of Appeals pointed out a slew of procedural errors. Originally, father had nine issues. After he was late challenging the final order of the Circuit Court, five issues could no longer be appealed. Among the issues that remained alive, father failed to provide any legal support for one of them beyond a list of case citations. If counsel does not argue it, the appeals court will not consider it. That contention would not be reviewed, either. Now, father was down to three issues.
The Court of Appeals accused father of “throwing everything at the wall and hoping something sticks;” cherry-picking language without regard for the context of the language cited, and without any analysis of its application to the facts of the case on appeal; and failing to provide any rationale for concluding mother’s statutory fee award was “clearly inappropriate”. Finally, father had alleged on appeal that he had no opportunity to challenge the trial court ruling. The court of appeals said “Not so”. He had over a month to challenge the ruling.
What about father’s core issue, alleging a lack of shared intention that the daughter would permanently remain in Korea? Father had no factual support for that, either; he did nothing for a three-year period to challenge daughter’s residence. Moreover, permanency is not part of the legal standard; passive consent and the passage of time are amply sufficient to establish habitual residence. Father seemingly had a weak case on the facts, and he appears to have misunderstood the law.
Finally, it is worth noting that father’s counsel is considered by many to be one of Virginia’s leading authorities on international child abduction.