HOUSTON (LN) — The 5th Circuit affirmed a district court’s order returning two children to Canada under the Hague Convention but vacated a preliminary injunction that improperly commanded foreign courts to adjudicate custody and barred Texas state judges from hearing the dispute.
Plaintiff-Appellee Sarah S.C. Moreau filed a Hague Convention petition in the U.S. District Court for the Eastern District of Texas, alleging that Defendant-Appellant Andrew Christopher White wrongfully retained their two children in Texas in violation of her Canadian custody rights.
The district court agreed after a bench trial, finding the children were habitually resident in Canada and that White’s retention violated Moreau’s rights of custody under Canadian law. The court ordered the children’s immediate return to Canada.
White challenged the habitual residence determination, the rejection of a consent defense, and the refusal to apply judicial estoppel. He also argued the district court overstepped by issuing a preliminary injunction that enjoined White and two Texas state court judges from continuing the custody litigation in Texas.
The 5th Circuit, in an opinion by Circuit Judge Kurt D. Engelhardt, affirmed the return order. The panel rejected White’s argument that Moreau could not unilaterally change the children’s habitual residence to Canada while Texas proceedings were pending, noting the Supreme Court’s directive in Monasky v. Taglieri that habitual residence is determined of the circumstances, not categorical rules.
The court also rejected White’s consent defense, distinguishing the case from Larbie v. Larbie. The panel found Moreau’s repeated efforts to dismiss the Texas custody dispute constituted a revocation of consent to the Texas court’s final adjudication, noting it would be impractical to require her to ignore proceedings and risk contempt to avoid the defense.
On judicial estoppel, the 5th Circuit declined to apply the common law defense to prevent the return remedy. The panel stated that judicial estoppel is unavailable as an extra-treaty defense to the Convention’s mandatory return requirement, citing Supreme Court caution against exporting background principles of U.S. law to treaty interpretation.
The court’s most significant ruling came in vacating the preliminary injunction. The district court had ordered that the Canadian court "shall decide" the child custody dispute and enjoined White and two Texas judges from proceeding with the litigation.
The 5th Circuit held that the district court’s directive to the Canadian courts affronted principles of international comity. The panel noted that restrictions on foreign courts should be issued sparingly and that the Anti-Injunction Act’s principles apply with even greater force to foreign tribunals.
Because the injunction against the Texas litigation was corollary to the improper injunction against the Canadian courts, the 5th Circuit vacated the entire preliminary injunction.
"We identified no cases—and the parties provided us none—enjoining a state court in this fashion after ordering a return under the Hague Convention," Engelhardt wrote. "The Convention’s central operating feature is the return remedy."
The dissenting opinion by Circuit Judge Edith Hollan Jones argued that the majority’s interpretation of consent was inconsistent with the Convention and that judicial estoppel should have applied to prevent Moreau’s "duplicitous conduct." Jones noted that Moreau had repeatedly submitted to the Texas courts’ jurisdiction before seeking to have custody decided in Canada.
The 5th Circuit’s decision leaves the custody dispute to be resolved by the Texas and Canadian courts, though the panel emphasized that the Convention implies Canada has exclusive jurisdiction over the merits of the custody dispute once the children are returned.
Engelhardt was joined by Circuit Judge Edith Hollan Jones, a George H.W. Bush appointee, and District Judge John Summerhays of the Western District of Louisiana, sitting by designation.